Matlock Truck Body & Trailer Corp.

MATLOCK TRUCK BODY & TRAILER CORP. 461 Matlock Truck Body & Trailer Corp., and its Agent Roy L. Matlock and District Lodge 155 of the International Association of Machinists and Aerospace Workers, AFL-CIO. Case 26-CA- 5204 March 14, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On October 9, 1979, Administrative Law Judge James T. Youngblood issued the attached Supple- mental Decision in this proceeding.' Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel 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, find- ings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The General Counsel excepts to the Administra- tive Law Judge's failure to find that backpay claimant James McClanahan was entitled-as set forth in the backpay specification-to $100 ex- penses for the replacement of his tools and a tool- box. When McClanahan went on strike, he left his tools and toolbox at Respondent's facility. Approxi- mately 3 weeks after the unfair labor practice strike commenced, McClanahan, while continuing to picket, accepted other employment. Upon obtain- ing this employment, he was required to furnish his I The Board's Decision and Order in this proceeding is reported at 217 NLRB 346 (1975). 2 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 However, we hereby correct the following inadvertent errors in the Administrative Law Judge's Decision. In his Decision, the Administra- tive Law Judge found that backpay claimants William R. Brown and Jimmy Cox were entitled to backpay of S775 and $1,613, respectively The correct amounts--as set forth in the backpay specification-are $777 and 613, respectively. We note that the Administrative Law Judge listed the correct amounts in his recommended Order In his Decision the Administrative Law Judge concluded that backpay claimant Gene A King was not entitled to any backpay. However, in his recommended Order, he inadvertently listed "George A. King" as being entitled to backpay of $1,597 We shall delete the name "George A. King" from the Order 248 NLRB No. 75 own tools, and he therefore spent $100 to acquire such tools. For substantially the same reasons that the Ad- ministrative Law Judge found that backpay claim- ant William Guynn was entitled to reimbursement for replacing the tools left at Respondent's facility, we find that McClanahan was entitled to expenses for replacing his tools. Absent Respondent's unfair labor practices, McClanahan would not have been forced to purchase new equipment. Admittedly, McClanahan, like Guynn, did not personally go to the plant and attempt to retrieve his tools. Howev- er, credited testimony established that some of the strikers' toolboxes were stripped by nonstriking employees and tools were taken home by nonstrik- ing employees. Further, Respondent offered no evi- dence to show that McClanahan's tools and tool- box were still intact in the plant and there was no offer by Respondent to produce these tools. Re- spondent bears some responsibility for protecting its employees' property, even if those employee are striking. Thus, absent a showing that Respondent made a reasonable effort to protect McClanahan's tools and toolbox, McClanahan is entitled, as set forth in the backpay specification, to $100 expenses for replacing his tools and toolbox. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order 4 the recommend- ed Order of the Administrative Law Judge, as modified below,5 and hereby orders that the Re- spondent, Matlock Truck Body & Trailer Corp., and its Agent Roy L. Matlock, Nashville, Tennes- see, its offiers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Delete the name "George A. King" and the sum of $1,597 opposite that name. 3 Although finding that McClanahan was not entitled to $100 expenses for the equipment replacement, the Administrative Law Judge, in his rec- ommended Order, listed that McClanahan as entitled to backpay of S2,234. However, that figure includes the $100 expense for McClanahan's tools and toolbox as set forth in the backpay specification. Accordingly, we find that McClanahan's net backpay is $2,234. 4The interest imposed by the Order shall be computed as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977) (see, generally, Iris Plumbing & Heating Co., 138 NLRB 716 (1962). 5 As heretofore noted, with regard to backpay claimants Brown, Cox, and McClanahan, the recommended Order correctly set forth the amounts to hich these individuals, under our Supplemental Decision, are entitled and therefore need not be modified as to themn 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE JAMES T. YOUNGBLOOD, Administrative Law Judge: On April 10, 1975, the National Labor Relations Board issued its Decision and Order in Case 26-CA-5204,' di- recting Matlock Truck Body & Trailer Corp., and its Agent Roy L. Matlock, herein Respondent or Matlock, to offer, upon application, full reinstatement to their former jobs or substantially equivalent positions to all those employees who participated in the strike which began on July 8, 1974, and to make them whole for any loss of earnings they may have suffered by reason of Re- spondent's refusal, if any, to reinstate them. On March 25, 1976, the United States Court of Appeals for the Sixth Circuit entered its decree enforcing in full the Order of the National Labor Relations Board. A contro- versy arose over which employees were to be reinstated, and the amount of backpay due certain of the striking employees, under the term of the Board's Order, where- upon the Regional Director for Region 26 issued a back- pay specification and notice of hearing on December 20, 1977, setting forth the amount of backpay due under the Board's Order as enforced by the United States Court of Appeals for the Sixth Circuit. Thereafter Respondent filed an answer to the backpay specification in effect denying that it owed any backpay to any of the employ- ees involved in the backpay specification because (I) cer- tain of the individuals involved did not apply for rein- statement at any time, or failed to apply for reinstate- ment within a reasonable period of time, (2) certain of the employees forfeit their reinstatement rights because of misconduct during the strike which bega n on July 8, 1974, and ended on April 7, 1975, and (3) certain of the employees had a willful loss of earnings because they did not use due diligence in searching for work following the termination of the strike. A hearing was held in this matter on March 27-31, 1978, and April 11-13, 1978. All parties were represented at the hearing and following the hearing the General Counsel and Respondent filed post- trial briefs which have been duly considered. Upon the entire record and upon my observation of the witnesses and their demeanor, and the arguments made during the hearing and the briefs filed by the Gen- eral Counsel and the Respondent, I make the following: FINDINGS AND CONCLUSIONS Following an election conducted by the Board on July 13, 1972, District Lodge 155 of the International Associ- ation of Machinists and Aerospace Workers, AFL-CIO, herein the Union, on August 25, 1972, was certified as the exclusive collective-bargaining representative of all the employees in the following unit: All production and maintenance employees, includ- ing working foreman, parts clerks, material handling employees, inspectors, truck drivers and janitors employed by the Company at its 1170 Visco Drive, Nashville, Tennessee, location, excluding all office 217 NLRB 346. clerical employees, salesmen, technical and profes- sional employees, guards and supervisors as defined in the Act. Subsequent to this certification the Board in a Deci- sion and Order 2 found that the Respondent's refusal to recognize and bargain collectively with the Union was violative of Section 8(a)(5) of the National Labor Rela- tions Act, as amended. The Board's Order was subse- quently enforced by a decision of the United States Court of Appeals for the Sixth Circuit on April 26, 1974, which is reported at 495 F.2d 671. On July 8, 1974, a strike began at Respondent by the employees in the pro- duction and maintenance unit, set forth above, which strike was subsequently found by the Board to be an unfair labor practice strike. It is the reinstatement of the unfair labor practice strikers and their amount of back- pay which is the subject of this proceeding. On April 6, 1975, shortly before the Board's Decision and Order issued in Case 26-CA-5204, the union mem- bership at Respondent met and voted uninamously to end the strike and report to work unconditionally on the following day. On the morning of April 7, 1975, approximately 100 strikers together with Tommy Jackson, president of the Local Lodge 1411, and Edgar Perry, director and busi- ness representative for District Lodge 155 (the Union), went to Respondent's plant. After inquiring if Roy Mat- lock, president of Respondent, was present and receiving a negative reply, the union representative spoke with Vice President Curtis Eddy and Plant Manager George Parrish. At this point Perry handed Parrish a letter dated April 7, 1975, addressed to Roy Matlock and verbally in- formed Parrish that they were terminating the strike and the men were ready to go to work unconditionally. The letter stated: We are reporting to work, unconditionally, and leaving all other matters up to the Courts and Gov- ernmental agencies. The letter was signed by Edgar Perry, Jr. Parrish ac- cepted the letter and informed the union representatives that they would hear from him after they had discussed the matter with their attorney. In the afternoon of April 7, 1975, Eddy and Gene Stone, plant superintendent for Respondent, went to the union hall and met with Perry. They presented Perry a letter dated April 7, 1975, signed by the company's president, Roy Matlock. The letter reads as follows: Dear Mr. Perry: In answer to your verbal statement to George Parrish and Curtis Eddy that the strike has been ter- minated and in answer to your hand delivered letter of April 7, 1975, the company will accept the em- ployees for work who have been on strike in accor- dance with your letter stating that the employees will report for work unconditionally. We will return each employee to work who pre- sents himself to the Personnel Manager for work, 2 203 NLRB 110. MATLOCK TRUCK BODY & TRAILER CORP. 463 provided he has seniority and qualifications to enti- tle him to work and, provided he has not been quilty of misconduct during the strike. During this conversation, Perry inquired of Eddy when Respondent wanted the men to come back to work. And according to Eddy, Perry was told "whenever they wanted to come back to work." Eddy testified that Perry asked would tomorrow morning be all right and he told him yes it would. It was agreed that the men would report to work at the company's personnel office on April 8, 1975. Thereafter the Union notified all the striking employees they could get in touch with to be present at the personnel office on April 8, 1975. Accord- ing to Perry, he also informed the company representa- tive that it was Respondent's obligation to notify the striking employees when it wanted them to report. On the morning of April 8, 1975, approximately 70 to 80 strikers reported to Respondent's personnel office and spoke with Respondent's representatives who informed the employees to place their names, current addresses, and telephone numbers on a form prepared by the Com- pany or on a pad, and were advised that the Company would get back in touch with them. On the afternoon of April 8 Perry telephoned Eddy and asked Eddy why the Company had not put the employees who showed up in the morning to work, as he had been told that Respon- dent wanted all the boys to report to work the next morning. Eddy responded that the Company needed some time to find out what their man power require- ments were, and to determine who had the seniority to go back to work. Eddy advised Perry that he would get back to him as soon as the employer was able to make out a list of employees they would put back to work. Neither the Union nor the employees received any fur- ther communication from Respondent until the afternoon of April 11, 1975. On April 11, 1975, the fifth day fol- lowing the termination of the strike, at approximately 2:30 p.m. Eddy and Stone delivered to Perry at his office a letter setting forth four categories of employees and the Company's action with respect to each on the ques- tion of reinstatement. 3 The letter contained four lists of employees entitled, List A, List B, List C, and List D. List A specified those former employees who had ap- plied for reinstatement, had sufficient seniority to resume work, and had not been guilty of misconduct. List B enumerated those individuals, regardless of seniority, whom the Company believed to have been guilty of suf- ficient misconduct to disqualify them for reinstatement. List C contained the name of one person, N. E. Singer, who did not have sufficient seniority to return to work, and whom the Company deemed guilty of misconduct. List D contained the names of individuals who indicated a desire to return to work by personal application but did not have sufficient seniority to justify immediate rein- statement. This letter also stated, "For reinstatement pur- poses, we are considering only those who have asked, or who will have asked, to return to work by 4 p.m. Friday, April 11, 1975." The letter requested that the employees on List A report to work at 7:30 a.m. I This letter is G.C. Exh 4 and Resp. Exh 6 Monday, April 14, 1975. The letter further stated that Respondent would expect everyone who was reinstated to report to work no later than 7:30 a.m. Wednesday, April 16, 1975. Perry acknowledged receipt of the letter and wrote on the letter as follows: Union is in disagreement with Company on list of employees that the Company is refusing to call back to work. The Union and Respondent's representatives discussed the matter of notifying the employees on List A who were to report on or before 7:30 Monday, April 14, 1975. Both parties insisted that the notification was up to the other, but nevertheless both agreed to undertake to notify the employees on List A. All employees on List A, with the exception of Charles E. White, reported for work or explained their absence by 7:30 a.m. Monday, April 14, 1975. It is noted that this letter was dated April 11, 1975, and was given to the Union at 2:30 p.m. on that date. And the letter also advised that no employee would be accepted for reinstatement who did not make a personal request for reinstatement prior to 4 p.m. on April 11, 1975. Thus the employees had an hour and a half, at least those who had not already made contact with the company had an hour and a half, to apply personally for reinstatement. The record reflects that Respondent de- clined to accept offers of striking employees to return to work after the April 11 deadline. However, after some prodding by the Regional Office, the Respondent sent letters offering reinstatement to all employees who had not been reinstated. Thus the backpay period extends from April 15, 1975, to October 6, 1976, and in some cases to November 15, 1976. Before resolving the backpay claimed by the individ- ual claimants there are several important issues which must be dealt with first. In this connection, Respondent contends that each striking employee must make his own individual application for reinstatement and that the Union cannot make a blanket unconditional offer to return to work for all the striking employees. Therefore Respondent argues that it was under no obligation to re- instate any employee who did not individually apply for reinstatement prior to the cutoff date of 4 p.m. April 11, 1975. The General Counsel on the other hand contends that the Union's offer of April 7, 1975, to return all the employees to work unconditionally covered every strik- ing employee whether or not they personally appeared and made an individual request for reinstatement. The next issue deals with the offer of reinstatement by the employer. Thus, once the offer to return to work is made by either the individual employee or by the collec- tive offer of the union, the General Counsel argues that the burden then shifts to the employer to reinstate the striker, and that the employer may not condition rein- statement upon individual applications to return to work. It is also argued by the General Counsel that the em- ployer may not place illegal conditions upon reinstate- ment, by proposing unreasonable periods of time, as the General Counsel contends Matlock did by the April 11, 1975, letter which limited the time for employees to make applications to return to work to 4 p.m. on April 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11, 1975. Thus, according to this letter, the striking em- ployees were allowed only 4 days to make even individ- ual applications to return to work. The Union was the certified collective-bargaining rep- resentative of Respondent's production and maintenance employees. There is no question that Perry was a union representative and the agent of the striking employees. It appears to be well settled that a union may make an un- conditional offer to return to work on behalf of all strik- ing employees. In Colonial Haven Nursing Home, Inc., 218 NLRB 1007, 1011 (1975), the Board in reversing an administrative law judge stated inter alia: The principle is well settled that a union can make a collective effort to return to work for all striking employees, and "Once such a request is made, the burden is on the employer to offer reinstatement to employees for whom positions are available." Con- trary to the Administrative Law Judge, we find the Union's letter of May 31 clearly reflected that the unconditional offer to return to work was for all striking employees, and not just for those personally applying thereafter." Here the Union's letter could convey no other meaning but that the employees were abandoning the strike and were offering to return to work unconditionally. This re- quest was made by the Union on behalf of all of the striking employees both verbally and in writing. Applying these principles to the facts in this case, it is clear that the Union made an unconditional offer to return to work for all of the striking employees and that it was incumbent upon Respondent in accordance with the Board's Decision in this case to offer reinstatement to all the striking employees. And Respondent was wrong in requiring the strikers to make personal applications to return to work as done in this case. The requirement that the employees personally make applications for reinstate- ment within a 4-day period was also clearly not in com- pliance with the Board's Decision in this matter. Thus, it is my conclusion that the Union made an unconditional offer to return all striking employees to work and it was incumbent upon Respondent to make offers of reinstate- ment to all striking employees. And its failure to do so places it in noncompliance with the Board's Order in this matter. Even assuming that Respondent could require from the striking employees individual applications to return to work, the imposition of a 4-day deadline in my view is clearly invalid as an unreasonable amount of time. More- over, in view of Respondent's unqualified opposition to reinstate any striker who applied after the 4 p.m. Friday, April 11, 1975, deadline as set forth in the April 11 letter, it would have been futile for the strikers to request reinstatement past that deadline. Therefore, I do not accept any defense on the Respondent's part that the striking employees did not apply for reinstatement. Respondent also raised one other defense that the striking employees seeking backpay did not make a rea- sonable good-faith effort to search for equivalent work which it alleges was available in the greater Nashville, Tennessee, area, thereby incurring a willful loss of earn- ings defeating their right to backpay. The law is well settled that the General Counsel has discharged his burden when he has found the gross amount of backpay due, and when that has been done the burden is on the respondent employer to establish facts which would negate the existence of liability to a given employee or which would mitigate that liability. The failure of an employee seeking backpay to make a reasonable search for employment constitutes an affirma- tive defense to backpay liability, and the burden is on the respondent to prove the necessary facts. In an attempt to establish that during the backpay period suitable employment was available for the back- pay claimants in the greater Nashville area, and that any employee seeking employment could find it, Respondent called various witnesses to testify. Lewis Gangi, vice president of personnel of Steiner-Liff Industries, Nashville, Tennessee, testified that, in the year 1976, Steiner-Liff hired 75 new employees and, in the year 1976 to October 6, they hired 59 employees. Of this 134 employees, some were rehires, but for the most part they were new entry employees, the lower rated jobs. Because of the competitive nature of the industry, Gangi claimed confidentially of documents and refused to disclose the job names and classifications as well as the wage rates of most of these 134. However, he did testify that five were mechanics, three were welders, and the rest iron pickers, laborers, and utility people. Some of these classifications were similar to those of the back- pay claimants. Gangi also specifically testified that it is the policy of Steiner-Liff not to hire people seeking tem- porary employment. Thus, it would appear that if any Matlock employee had made an application at this plant, and indicated that he was a striking employee, he would not have been hired anyway. When asked by Respon- dent's counsel if a striking employee, Andrew Tant, had filed an application with Steiner-Liff, he testified, "No, he did not; and I would like to qualify my answer. I re- ceived correspondence from Mr. Matlock requesting in consideration to whatever reason he had for asking it that I would search my employment applications; and I did during this period of time. I find that there was no one in our application file that applied for work that had been-that was listed-that had been-that was listed on the application that listed that they had been employed at Matlock Truck and Body Company." Thus, from this testimony, it is clear that Gangi did not check his appli- cation file for any specific employees, but merely checked to see if anyone had filed an application and had listed that they were previously employed by Matlock Truck and Body Company. In my view this testimony adds nothing because a striking employee would very likely not reveal that he was on strike, and that he would probably have to leave when the strike was over. John B. Wilson, testified that he is employed by PEP Industries, a manufacturer of wire harnesses for auto- mobiles, and during the period April 14, 1975, to Octo- ber 6, 1976, PEP Industries hired 1,858 people, and its average work force during that time was approximately 700 people. Of these employees, 145 hired were males. Wilson testified that, for the type of employment they MATLOCK TRUCK BODY & TRAILER CORP. 465 have, women are more suitable because they are more meticulous in handling small wires. He also testified that their starting rate was $2.40. It is quite apparent from Wilson's testimony that there was a lot of turnover in the plant during the period in question, which indicates to me that the jobs at this particular manufacturer were not totally desirable and apparently not positions equivalent to which the backpay claimants were seeking. T. D. Holler, manager of labor relations of the Nash- ville Bridge Company, Nashville, Tennessee, testified that, during the period in question, 664 people were hired. This figure included up to 10 percent of rehires. Holler also testified that 225 of these new employees were welders, and that applicants for welding positions are required to have experience in vertical and overhead welding, the type of welding which is quite different from meg and teg welding which is done at Matlock. Applicants for other job classifications are required to have experience in specific areas. Nashville Bridge Com- pany is in the barge and marine fabrication industry, and industry quite different from the manufacture of truck body and trailers. Therefore, with certain exceptions, the Matlock employees would not have been qualified for employment with the Nashville Bridge Company. Holler also testified that the company policy is to hire only people who are seeking permanent employment with the exception of summer employees. Julia Collier, bookkeeper and office manager of Eng- lert Engineering Company, testified that, during the period in question, 16 new employees were hired, 6 were welders and 10 helpers. She testified that she had no knowledge of experience and qualifications required for helpers or welders, and that she had no knowledge of whether any Matlock striking employees applied for jobs at Englert. She further testified that applicants would drop by seeking employment and, if there were no posi- tions open, they would walk away without filing an ap- plication. Ray Minchey, an accountant with Allvan Corporation in LaVergne, Tennessee, testified that during the period in question 78 new employees were hired. Some of the new employees hired during that period were employed for only a very short period of time, and the 78 employ- ees hired during that period included replacements for those that worked only a brief period of time. Minchey testified that he interviewed applicants during that time and it was quite possible that some of the applicants were striking Matlock employees. Mary Tucker, payroll clerk and secretary at Fruehauf Corporation, a competitor of Matlock's, testified that, during the period in question, only nine new employees were hired. She testified that mechanics for Matlock had applied for jobs at various times when they were on strike. William Albright, president of Albright-Wohrley Equipment Company, testified that, during the period in question, 60 new employees were hired. There was no testimony to indicate that a Matlock employee was of- fered a job and rejected it at the Albright Company. Al- bright also testified that, when applicants inquired about jobs and were informed that there were no jobs, they would turn around and leave without filing an applica- tion. Robert Lundin, a representative of Peterbilt Motors Company, a manufacturer of trucks, testified that a total of 154 employees was hired during the period in ques- tion. Lundin testified that Peterbilt experienced an eco- nomic decline in the early part of 1975, and a great number of employees were laid off. There was no hiring or rehiring until April 1976. He testified that the compa- ny had a policy to recall layoffs before hiring new em- ployees. And as many of the employees were laid off for over a year, they were taken back as new employees, and as employees who had previously worked at Peter- bilt, were given preference over applicants who have not previously worked there, they were classified as new em- ployees and included in the 154 new hires. William Starks, personnel director of Rogers Manufac- turing Company, testified that during the period in ques- tion only 10 new employees were hired. Three were la- borers, three welders, three in the parts department, and one painter. From the above testimony, I cannot conclude that there was an overabundance of employment opportuni- ties in jobs commensurate with those of Respondent. A representative of Peterbilt, a manufacturer of trucks and a competitor of Respondent, testified that his company experienced an economic decline during the early part of 1975, and laid off a great number of employees and did not recall until April 1976. Respondent even admitted to experiencing an econom- ic decline in 1975. In fact, Fruehauf Corporation, Al- bright-Wohrley, and Rogers Manufacturing Company, all manufacturers of trucks and trailers, and competitors of Respondent, during the period in question hired only 9, 16, and 10 employees, respectively, and those figures included a number of replacements for new hires that worked just a short period of time. As indicated above, from these facts I cannot conclude that employment op- portunities were plentiful in the Nashville area, particu- larly with regard to jobs commensurate with those of Respondent. Even assuming that this evidence established that there were a reasonable number of equivalent jobs in the great- er Nashville area during the backpay period, this fact does not establish that Respondent has carried its burden of proving willful loss of earnings. Moreover, there is nothing in this testimony to demonstrate that, if Matlock employees had applied for jobs at these employers, they would have been hired. I again repeat that these employ- ees were on strike, and if they truthfully filled out an ap- plication they would have had to indicate they were working at Matlock, 4 and that fact would have indicated that they were only going to be temporary, pending the termination of the strike. Under these circumstances, I cannot accept the testi- mony of these witnesses to demonstrate that any of the striking employees had a willful loss of earnings. In order to carry that burden, Respondent has to show that a given backpay claimant was actually offered a job and had rejected it. It was common knowledge in the Nashville area that Respondent was being struck by the Union. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Additionally, Respondent placed into the record pho- tocopies of classified advertisements from the principal local newspaper in Nashville, some of which were dated and some of which were not, to show that employment opportunities existed throughout the backpay period. Based on these "want ads" Respondent argues that em- ployment was plentiful in the Nashville area during that period, and that an inference is warranted that the back- pay claimants did not make a reasonable and earnest search for interim employment. In Florence Printing Company, 158 NLRB 775, 793 (1966), enfd. 376 F.2d 216 (4th Cir. 1967), cert. denied 389 U.S. 840, the Board defined the Respondent's burden as follows: Respondent made no attempt at the hearing to show that any of the "want ads" jobs were offered to any of the involved given former strikers. Respondent has accordingly failed to meet the burden of proof required of it "to establish facts which would negate the existence of liability to a given employee or which would mitigate that liability." In Florence Printing, as in the present case, no showing was made by the respondent that specific backpay claim- ants actually had been offered jobs and had rejected any advertised positions. It is also well established that any uncertainty in the evidence should be resolved against the respondent as a wrongdoer. The respondent created the conditions by its unfair labor practices and it has the burden to establish that the backpay claimants willfully incurred a loss of earnings. Thus, I must conclude that the Respondent's shotgun approach by the testimony of the above witnesses, and the want ads to establish that employees willfully in- curred a loss of earnings, is totally unacceptable, and I reject this entire argument by Respondent. Certain of the employees were questioned concerning their attempts to obtain interim employment and this will be discussed as I take up each individual backpay claim- ant. Additionally, Respondent's last defense that certain of the backpay claimants were involved in misconduct and therefore not entitled to reinstatement and backpay will be taken up on an individual basis. The Individual Claimants In its answer Respondent admitted the first seven para- graphs of the backpay specification which dealt with the formula in arriving at the gross backpay and net backpay due each discriminatee. Although Respondent admitted the accuracy of the backpay formula and the amounts of the gross backpay, it did in each instance raise a specific separate defense to each employee, namely, they were either not entitled to reinstatement because they did not individually make an unconditional offer to return to work, or they were guilty of misconduct which caused them to forfeit any reinstatement rights to which they may have been otherwise entitled. And third, many of the individuals listed in the backpay specification made no reasonable effort to find interim employment in the period described, and therefore incurred a willful loss of earnings during the backpay period, which precludes their entitlement to backpay. 1. Roy D. Allen His backpay period begins on April 14, 1975, and ends on October 6, 1976, the day on which Respondent made an offer of reinstatement to some striking employees who had not previously been reinstated. Allen's gross backpay as set forth in the backpay specification, less the amounts of admitted interim earnings, gives him a net backpay of $331. In its answer Respondent denied that any backpay was due Allen because he did not make an unconditional offer to return to work following the end of the strike on April 7, 1975, and therefore is not entitled to any back- pay for the period April 14, 1975, through October 6, 1976. As I have concluded that the Union made an un- conditional offer to return to work for all of the striking employees on April 7, 1977, I find that Roy D. Allen is entitled to net backpay in the amount of $331 as set forth in this backpay specification. 2. Eli C. Baldwin His backpay period begins on April 14, 1975, and ends on November 15, 1976, when Respondent offered him reinstatement. In its answer Respondent denied backpay liability to Baldwin, asserting that Baldwin had physically attacked a nonstriking employee as that employee was attempting to leave the plant premises during the course of the strike. And by this conduct Baldwin forfeited any rights to backpay. Additionally Respondent alleged that Bal- dwin did not make a diligent search for interim employ- ment following the end of the strike on April 7, 1975, and incurred a willful loss of earnings during the second quarter of 1975 and during the first, second, and third quarters of 1976. Baldwin, a mechanic at the Matlock plant prior to the strike, testified that he went on strike and picketed the plant. In April 1975 he was notified of the termination of the strike, and on April 8, 1975, in the company of a group of striking employees, he went to the plant and made a request for reinstatement. Baldwin testified that he filled out a form and talked with Dick Tucker, the personnel manager, who told him he would be contacted when the Company needed him. When Baldwin did not hear from the Company, he went searching for interim employment and filled out applications at the following places: Stauffer Chemical Company, R. C. Bottling Com- pany, Coca-Cola Bottling Company, Roadway, Gate- way, PEP Industries, Englert Engineering, and Tempco. In June 1975 he obtained employment with Englert En- gineering and worked there until January 1976, when he was laid off. He then began searching for employment again and checked not only with the places he previous- ly filed applications, but also went to Volunteer Steel and the state unemployment office. He testified that he even went to Hendersonville, Tennessee, where he used to live, to search for work. In November 1976, Respon- dent offered reinstatement to Baldwin and he has been working there since that time. MATLOCK TRUCK BODY & TRAILER CORP. 467 The burden of proving that the discriminatee did not fulfill his obligation under the law to mitigate damages is on Respondent. Any uncertainty is resolved against the wrongdoer whose conduct made certainty impossible. Fi- breboard Paper Products Corporation, 180 NLRB 142-147 (1969). It is my conclusion that Respondent did not meet its burden in this regard, and that the evidence estab- lished affirmatively that Baldwin exercised due diligence in seeking interim employment and did not incur a will- ful loss of earnings. Shortly after the beginning of the strike, a nonstriking employee, Randy Carpenter, and his father William Car- penter were attempting to leave the plant premises at the end of the work shift in a truck driven by nonstriking employee Wayne Strayn. Eli Baldwin was walking picket at the gate the nonstriking employees were trying to exit. According to Randy Carpenter, Baldwin threat- ened to get him. Randy Carpenter testified that he was sitting on the passenger's side of the truck and Baldwin suddenly jerked open the vehicle door and pulled him out of the cab on to the ground and attacked him. Ac- cording to William Carpenter, the father, Baldwin jerked the door open and pulled his son out of the vehicle and they fell off into a ditch. He got out of the car and pulled Baldwin off his son. According to Baldwin, he was standing in the drive- way near a curb waiting for the truck to go past as the Carpenters and Strayn were leaving the plant. He testi- fied that Randy Carpenter pushed the truck door open, knocked him into a ditch, and jumped on top of him. He said that Carpenter is much smaller than he and he quickly turned Carpenter over and got on top of him. According to Kenneth Mosley, a nonstriking employee, he observed the incident as he was in the car right behind the Strayn truck. Mosley testified that he ob- served Baldwin and Carpenter talking and all at once Randy Carpenter slung open the door on the pickup truck and knocked Eli Baldwin into a ditch, and that Carpenter jumped on top of Baldwin and they began fighting. He said the scuffle lasted for about a minute and it was broken up and everybody went home. Randy Car- penter was not hurt and he characterized the incident as a "little scuffle." The testimony of Eli Baldwin and Ken- neth Mosley had a ring of truth which I cannot say for the testimony of Randy Carpenter and his father. Addi- tionally, Kenneth Mosley was a nonstriker and a totally disinterested witness. Therefore I credit the testimony of Baldwin and Mosley over that of the Carpenters. It is apparent that Randy Carpenter was the aggressor and, inasmuch as the incident was initiated by Carpenter, Bal- dwin's actions were in self-defense. Therefore, Respon- dent had no right to deny reinstatement for this reason. Baldwin testified that while he was employed at Eng- lert Engineering Company, Nashville, Tennessee, he had additional hospitalization costs over that at Matlock and that he had certain travel expenses in seeking interim em- ployment as set forth in the backpay specification. Bal- dwin's gross backpay and expenses, less the amounts of admitted interim earnings, give him a net backpay of S6,126. As I have concluded that Baldwin did not forfeit any reinstatement rights because of any picket line miscon- duct, and did not incur a willful loss of earnings at any time during the backpay period, I conclude that Baldwin is entitled to net backpay in the amount of $6,126 as set forth in the backpay specification. 3. William R. Brown His backpay period begins on April 14, 1975, and ends on October 6, 1976, when he was offered reinstatement. Brown's gross backpay and expenses,5 less the amounts of admitted interim earnings, give him a net backpay of $777. In its answer Respondent denies it owes any backpay to William R. Brown because he did not make an uncon- ditional offer to return to work following the end of the strike on April 7, 1975, and that he did not exercise rea- sonable diligence in attempting to obtain suitable interim employment for certain periods within the backpay period. Brown6 was not called to testify and other than its general allegation that there was suitable employment in the Nashville area and its allegation that an employee desiring a job could obtain employment, Respondent of- fered no evidence whatsoever to establish that Brown did not use due diligence in attempting to obtain employ- ment within the Nashville area. I have rejected this gen- eral argument. Also, as I have concluded that the Union made an unconditional offer to return all striking em- ployees to work on April 7, 1975, 1 find that Brown is entitled to backpay in the amount of $777 as set forth in the backpay specification. 4. Franklin C. Campbell Campbell's backpay period begins on April 14, 175, and ends on October 6, 1976, when he was offered rein- statement. His gross backpay, less the amounts of ad- mitted interim earnings, gives him a net backpay of $118. In its answer Respondent denies that Campbell is enti- tled to any backpay because he did not submit an uncon- ditional offer to return to work following the end of the strike on April 7, 1975. And that Campbell failed to exer- cise reasonable diligence in seeking interim employment and therefore sustained a willful loss of earnings preclud- ing his entitlement to backpay in any amount. Campbell was not called as a witness and Respondent offered no evidence to establish that Campbell failed to exercise rea- sonable diligence in seeking interim employment other than the general allegations as I have discussed previous- ly. As I have found that the Union made an uncondition- al offer to return all striking employees to work on April 7, 1975, it is my conclusion that Campbell is entitled to net backpay in the amount of $118 as set forth in the backpay specification. 5. Robert B. Chitwood Chitwood's backpay period begins on April 14, 1975, and ends on October 6, 1976, when he was offered rein- ' In its answer Respondent specifically denied interim expenses as to some of the hackpa) claimants. Where there is no specific denial of the interim expenses, as set forth in the backpay ' With the exception of three claimants. who will be discussed later, it is my understanding that the General Counsel furnished Responden i.th the addresses and ss hereabouts of all backpas claimants 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement. His gross backpay and expenses, less the amounts of admitted interim earnings, give him a net backpay of $1,683. In its answer Respondent contends that Chitwood is not entitled to any backpay because he did not submit an unconditional offer to return to work following the end of the strike on April 7, 1975, and that he failed to exer- cise reasonable diligence in obtaining interim employ- ment and therefore willfully incurred a loss of employ- ment during the backpay period precluding his entitle- ment to any backpay. Chitwood was called as a witness by Respondent and testified that he was employed as a painter at Matlock prior to the strike, and that on July 8, 1974, he went out on strike. Chitwood testified that during the strike he ob- tained interim employment at Nashville Surgical Supply and Belle Meade Buffet, both apparently in the Nashville area. In January 1976, he began operating and managing a luncheonette at Wilson Quick in Madison, Tennessee, and as it did not prove to be a profitable business, he closed on July 19, 1976, at which time his father took over the operation of that business. At this point he went to work again for Nashville Surgical Supply and worked there until he was offered reinstatement by Respondent on October 6, 1976. Based on this testimony I cannot conclude that Chitwood did not use reasonable diligence in seeking interim employment, and therefore I conclude that he did not willfully incur a loss of earnings during the backpay period which would preclude him from enti- tlement to backpay. Additionally, as I have concluded that the Union made an unconditional offer to return to work for all striking employees on April 7, 1975, it is my conclusion that Respondent is liable to Chitwood for backpay in the amount of $1,683 as set forth in the back- pay specification. 6. Daniel C. Cook Cook's backpay period begins on April 14, 1975, and ends on August 23, 1976, when he was reinstated. His gross backpay and expenses, less the admitted amounts of interim earnings, give him a net backpay of $1,173. In its answer Respondent denies that Cook is entitled to any reinstatement or backpay because he did not report for work until April 21, 1975, therefore forfeiting reinstatement rights by indicating a lack of interest in his job. This allegation in the answer is based on Respon- dent's contention that it notified all employees to return to work no later than 7:30 a.m., April 16, 1975. Addition- ally, in its answer Respondent argues that Cook failed to exercise reasonable diligence in seeking suitable interim employment during the second and third quarters of 1976 and accordingly incurred a willful loss of earnings. Cook was not called as a witness, however, Respon- dent Vice President Curtis Eddy testified that on April 11, 1975, shortly after he and Mr. Stone left to deliver the April 11 letter to the union hall, Daniel C. Cook came to the plant and applied for reinstatement. This was before quitting time at 4 p.m. on April 1, 1975. It is clear from this testimony that even under Respondent's con- tention that individuals must make application on their own, Cook did in fact make an unconditional offer to return to work prior to Respondent's deadline of April 11, 1975, 4 p.m. Additionally , it is also clear as I have previously found that the Union made an unconditional offer to return all striking employees to work on April 7, 1975. The record does not reflect what Cook was told when he made an application for reinstatement on April 11, 1975. Respondent does not argue that Cook did not make a proper application for reinstatement; its argument in this connection is based on the fact that he failed to meet its arbitrary deadline which it set for 7:30 p.m., April 16, 1975, for the time in which all striking employ- ees must return to work. There is nothing in this record to indicate that Cook was aware of the April 11, 1975, letter, or the fact of Re- spondent's arbitrary deadline for reporting to work on April 16, 1978. But it is clear in this record that Cook did report for reinstatement or for work prior to the deadline of April 11, 1975, at 4 p.m. In this instance he talked with R. C. Tucker, Respondent's personnel man- ager, but even though Tucker testified he does not indi- cate what he told Cook at that time. In my view Cook, on his own behalf and the Union also on his behalf, made a proper unconditional offer to return to work and reinstatement therefore was upon Re- spondent's shoulders. The obligation to reinstate is on Respondent. It cannot send a letter to the Union and tell the Union to notify the people to return to work. There- fore, it is my conclusion that, having made a bona fide unconditional offer to return to work both through the Union and on his individual application, Cook's reinstate- ment was Respondent's responsibility which reinstate- ment was not offered until August 23, 1976. As indicated above, Cook was not called as a witness and Respondent offered no evidence to establish that Cook failed to exercise reasonable diligence in seeking suitable interim employment during the second and third quarters of 1976, except the broad allegation of willful loss of earnings on the part of the striking employees be- cause there was ample employment in the Nashville area. As stated above, I have rejected this argument. Therefore it is my conclusion that Cook is entitled to net backpay in the amount of $1,173 as set forth in the backpay specification. 7. Jimmy B. Cox His backpay period began April 14, 1975, and ends on October 6, 1976, the date he was offered reinstatement. His gross backpay, less the amounts of admitted interim earnings, gives him a net backpay of $613. In its answer Respondent contends that Cox is not en- titled to any backpay because he did not make an uncon- ditional offer to return to work following the end of the strike on April 7, 1975, and that during the second quar- ter of 1976, and the fourth quarter of 1976, Jimmy B. Cox voluntarily terminated his employment at Firestone Body Shop and began his own business, thereby incur- ring a willful loss of earnings. As I have concluded that the Union made a uncondi- tional offer to return to work for all striking employees on April 7, 1977, I find that Respondent has failed to es- tablish that Cox did not make an unconditional offer to return to work following the end of the strike on April 7, 1977. MATLOCK TRUCK BODY & TRAILER CORP. 46q9 Although Respondent alleges that Cox voluntarily ter- minated his employment at Firestone Body Shop, there was no evidence put in this record to indicate that fact. Cox did not testify and Respondent called no witnesses to testify that Cox opened his own body shop.7 I cannot conclude from the facts in this record that Cox incurred a willful loss of earnings, and therefore I conclude that Respondent has not carried the burden of proving facts to mitigate its liability. Accordingly, it is my conclusion that Cox is entitled to backpay in the amount of $1,613 as set forth in the backpay specification. 8. Wayne L. Donaldson His backpay period begins on April 14, 1975, and ends on November 15, 1976, the date he was offered reinstate- ment. His gross backpay and expenses, less the amounts of admitted interim earnings as set forth in the backpay specification, give him a net backpay of $1,773. By an amendment 8 to the backpay specification dated March 17, 1978, the General Counsel amended the backpay specification in paragraph 18E to strike out the $1,773 due as net backpay to Donaldson and inserted the figure of $2,022. By an answer to this amendment to the back- pay specification Respondent on May 27, 1978, denied that Donaldson is entitled to backpay in the amount of $2,022 or any amount in this proceeding. In its answer Respondent denied that Donaldson was due any backpay because he engaged in strike miscon- duct by threatening a nonstriking employee with a metal object which appeared to be a broken gearshift in the presence of other nonstriking employees. Additionally, Respondent alleges that Donaldson also used his auto- mobile to block the ingress and egress of nonstriking em- ployees going to and from work. And by such conduct he forfeited his rights to reinstatement and backpay for any period between April 14, 1975, and November 15, 1976. Respondent also alleges that Donaldson is not enti- tled to backpay because he was offered a job as a welder at Rogers Manufacturing Company, which would have yielded Donaldson more compensation than he would have received if employed by Respondent, and Donald- son chose to reject this employment because he was waiting to see what backpay he would receive from Re- spondent in this proceeding. Also, Respondent contends that Donaldson sustained a willful loss of earnings while employed by an interim employer, National Wire Prod- ucts Company, in that he was absent from work in excess of 33 days during a period of employment and was late on 44 other occasions, all of which unnecessar- ily reduced his interim earnings. Donaldson worked in the service department prior to the strike, and was not within the production and main- tenance unit, but became a sympathy striker. He picketed the plant until the strike was terminated. On April 7, ' The backpay specification indicates that he had interim earnings for Cox Body Shop, but this does not establish who ran or owned this busi- ness. 8 In the backpay specification no backpay was claimed from 4-14-75 until Donaldson obtained employment because the General Counsel was under the impression that he had refused employment at Rogers Manu- facturing. This amendment reflects a change in the General Counsel's po- stlion 1975, the Union made an unconditional offer to return to work all striking employees, which necessarily included Donaldson. Additionally, after the strike was terminated, Donaldson himself went to the Company and made a personal request for reinstatement, but was not offered reinstatement until November 1976. In support of Respondent's defense that Donaldson was not reinstated because he was guilty of misconduct, Clifford Dodrill, a supervisor of Respondent, testified that he saw Donaldson threaten to whip a nonstriker, Randy Carpenter, with a tire tool on August 2, 1974, at a WE-SAK-IT Market some distance from the Respon- dent's premises. Dodrill testified that on this night after work he and Robert McCarter, a foreman at Matlock, went to the Express-Way Market (otherwise called the WE-SAK-IT) and when they arrived he saw Randy Car- penter and Wayne Strayn. After a short period of time, several cars with strikers in them drove in to the market. He testified that he saw Wayne Donaldson with a tire tool or an automotive jack in his hand. Dodrill testified that Carpenter also had a piece of chain in his hand. When asked if William Carpenter, Sr., was present, Do- drill testified that he did not believe he was there. Do- drill further testified that there were no blows struck and that no one was injured and when someone hollered. "The police are coming," the people dispersed. Robert McCarter testified that, at approximately 1:30 in the morning on the night in question, he noticed three employees, Wayne Strayn, Randy Carpenter, and Russell Wicks. Shortly thereafter, three carloads of strikers pulled up. He testified that several of the strikers began bugging Randy Carpenter about cutting his hair. He stated that Wayne Donaldson was driving one of the cars and he raised the hood and later joined the crowd but that he did not have anything in his hands. He testi- fied that one of the strikers went towards Randy Carpen- ter and Carpenter jerked out a pocket knife and went to- wards the striker who began running off to the upper end of the lot. About this time McCarter testified that he opened the door of his car, stood up, and leaned up on the roof. He had a tape measure in his hand, and he pulled it off and the employees, thinking that he had a pistol, dispersed. Thus, according to McCarter's testimo- ny, Donaldson did not have anything in his hand. There- fore, he could not have threatened to whip nonstriker Randy Carpenter with a tire tool. Additionally, one striker allegedly involved in the incident testified that Donaldson was not even present. Donaldson himself denied involvement in the incident. Randy Carpenter himself, who allegedly was threatened by Donaldson, testified that Donaldson did not make any threats to him. Under these circumstances, in view of the conflicting testimony given by Respondent's witnesses, it is my con- clusion that Donaldson was not involved in the incident and Respondent had no basis for denying reinstatement to Donaldson for this alleged misconduct. Moreover, as- suming that the incident occurred as alleged by Respon- dent, it is my conclusion that this type of conduct is not so violent or so serious in character as to render the em- 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee unfit for future service.9 Accordingly, it is my conclusion that Respondent was wrong in denying Don- aldson reinstatement because of this alleged misconduct. In support of its argument that Donaldson rejected a job at Rogers Manufacturing Company, Respondent called William Starks, personnel director of Rogers Man- ufacturing Company, Nashville, Tennessee. Starks testi- fied that Wayne Donaldson filled out an application with Rogers Manufacturing Company and that he personally interviewed Donaldson on August 6, 1974. He said that Donaldson had applied for a welding job, but they were not hiring on that particular day. He stated that Donald- son told him that he was a striking Matlock employee and that he would go back to Matlock when the strike was over, even though he had received a termination notice. Starks admitted that he asked Donaldson if he would be a permanent employee if he were hired and he made a note on the back of the application on August 6 to this effect. Starks testified that on August 28, 1975, he called Donaldson on the phone and notified him of a job opening. According to Starks, Donaldson advised him that he was not working at that time, but was waiting to see the results of a lawsuit on back wages, and declined the job offer. Starks admitted that he made it clear to Donaldson that he was offering Donaldson a permanent job. Donaldson testified that, shortly after the strike start- ed, he went to Rogers Manufacturing Company and filed an application. He admits he was interviewed by Starks and during this interview was asked by Starks whether or not he was planning to go back to Matlock after the strike was over. Starks told Donaldson that he already had a number of striking Matlock employees working there on the night shift and that if Donaldson was hired he would be put on the night shift. According to Don- aldson, Starks told him he could have the job if he would promise not to return to Matlock. Donaldson ad- vised Starks that he could not promise not to return to Matlock because that was his intention; therefore a job was not offered him. According to Donaldson sometime later he called Starks on the phone to see if he had changed his mind about hiring him on a temporary basis. Starks again told him that they could hire him if he promised to stay with Rogers. Donaldson would not make such a promise and was never offered a job. Starks admitted that in the original interview on August 6, 1974, Donaldson told him that he would go 9 Randy Carpenter admitted to being involved in the WE-SAK-IT Market incident in which he threatened a striker with a knife. He ad- mitted to throwing a can of tobacco juice on one striker, pulling a knife on another, and hitting striker James McClanahan from behind with a two-by-four board. He also had fights with, among others, Charles Faulk, Earnie Wilson, Bob Merritt, Gene King, and Eli Baldwin. He also testi- fied that he was a participant in the overthrow of the strikers' trailer, which the record reflects was instigated by the suggestion of a former supervisor. Under these circumstances, Carpenter appears to be the lead- ing antagonist of the striking employees. Whether or not he did this at the behest of Respondent is unknown. However, I find it hard to believe that the striking employees were the aggressors in all the scrapes in which Carpenter was involved. For these reasons it is my conclusion that Respondent latched upon an opportunity to rid itself of some striking em- ployees by alleging misconduct on their part on each and every occasion there were any scuffles between the nonstriking and striking employees, notwithstanding or even caring who was the instigator. back to Matlock when the strike was over. Thus Starks knew that Donaldson was looking only for temporary employment. It seems somewhat inconsistent that Starks, knowing that Donaldson would not accept permanent employment, would on August 28 call and offer a perma- nent job to a man he knew would not take it. In his testi- mony, Starks admitted that he would cooperate with Matlock. I credit Donaldson because his testimony seemed to have a ring of truth and certainly seemed to make more sense. Therefore, I conclude that Donaldson did not reject the job because he was never offered a job. Although Respondent alleged in its answer that Don- aldson sustained a willful loss of employment while em- ployed by an interim employer, Nashville Wire Products, Respondent offered nothing in support of this contention and therefore I reject this defense. This record also re- flects that Donaldson used due diligence in seeking inter- im employment and in fact obtained interim employment in the third quarter of 1974, at Nashville Wire Products where he worked until he was offered reinstatement at Matlock. Therefore, it is my conclusion that Respondent has failed to establish that Donaldson was engaged in mis- conduct which would preclude his reinstatement or backpay; that Respondent failed to establish that Donald- son rejected a job offer at Rogers Manufacturing; and that Respondent failed to prove that Donaldson incurred a willful loss of employment. Under these circumstances, I conclude that Donaldson is entitled to net backpay in the amount of $2,022. 9. Roger A. Gregory Gregory's backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered re- instatement. His gross backpay, less the amounts of ad- mitted interim earnings, gives him a net backpay of $734. In its answer Respondent denies that Gregory is enti- tled to any backpay because he did not unconditionally apply to return to work following the end of the strike on April 7, 1975, and that, during the second, third, and fourth quarters of 1976, Gregory failed to exercise rea- sonable diligence in maintaining interim employment and therefore incurred a willful loss of earnings precluding his claim for backpay. Gregory did not testify in this proceeding. However, as I have concluded that the Union made an uncondi- tional offer to return to work for all the striking employ- ees on April 7, 1975, I conclude that Respondent was not entitled to deny reinstatement to Gregory for this reason. Respondent offered no evidence to establish that, during the second, third, and fourth quarters of 1976, Gregory failed to exercise reasonable diligence in maintaining in- terim employment, thereby incurring a willful loss of earnings precluding him from backpay. In fact, the back- pay specification indicates that, from the second quarter of 1974 until October 6, 1976, when Gregory was of- fered reinstatement, he was employed and had interim earnings during that period. Under these circumstances it is my conclusion that Respondent has failed in its burden of proving that Gregory was not entitled to backpay. MATLOCK TRUCK BODY & TRAILER CORP. 471 Therefore I conclude that Gregory is entitled to net backpay in the amount of $734 as set forth in the back- pay specification. 10. Larry D. Griffith Griffith's backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered rein- statement. In its answer Respondent denied that Griffith was enti- tled to backpay or reinstatement because he did not un- conditionally apply for work following the end of the strike on April 7, 1975. As I have concluded that the Union made a unconditional offer to return all striking employees to work on April 7, 1975, I shall reject Re- spondent's defense in this regard. Accordingly, I con- clude that Respondent has failed in its burden proving that Griffith was not entitled to reinstatement and back- pay. Therefore I conclude Griffith is entitled to backpay in the amount of $223 as set forth in backpay specification. 11. William H. Guynn Guynn's backpay period begins on April 14, 1975, and ends on November 15, 1976, the date he was offered re- instatement. In its answer to the backpay specification Respondent alleges that William H. Guynn forfeited his rights to re- instatement and backpay because he participated in acts of violence and threats to nonstriking employees at a market near Respondent's plant. Also, Guynn followed a nonstriking employee while leaving the plant and blocked the exit of another nonstriking employee seeking to leave at the end of the workday, and was seen threat- ening another nonstriking employee with a lug wrench. Respondent further alleges that Guynn was self-em- ployed in the second quarter of 1975 selling tools and he made no reasonable effort to find suitable interim em- ployment until on or about July 18, 1975. Therefore he failed to use reasonable diligence in attempting to find suitable interim employment and incurred a willful loss of earnings during the second quarter of 1975. Guynn was involved in the WE-SAK-IT Market inci- dent in early August 1974 involving nonstriking employ- ees Randy Carpenter, William Strayn, and Russell Wicks, and two foremen, Clifford Dodrill and Robert McCarter. The striking employees involved were Gene King, Larry Summey, and Orville C. Meeks, l° Joe Gant, Guynn, and Robert Tomlin. In support of the allegations that these picketing employees engaged in violence at the WE-SAK-IT Market, Respondent called Randy Car- penter and the two foremen, Dodrill and McCarter, to testify. As indicated earlier Dodrill testified that he and McCarter went to the WE-SAK-IT and observed Randy Carpenter and Wayne Strayn at the market. After going in to the market and purchasing some cigarettes they came out of the store and saw a car go towards Lebanon Road. He thought the driver was Gene King. Shortly thereafter four or five cars with strikers came back up the road. He testified that he saw Wayne Donaldson with something in his hand and he was going to whip 10 Meeks is apparently also called Mickie Randy Carpenter with it. He testified that Randy Car- penter had a piece of chain in his hand. He testified that Bill Guynn was in the crowd around the other men, and that Gene King and Joe Gant were also in the group. McCarter testified that approximately 1:30 in the morning he and Clifford Dodrill stopped at the WE- SAK-IT Market in early August 1974. He noticed three nonstriking employees, Wayne Strayn, Randy Carpenter, and Russell Wicks, were outside talking so he did not go in the store. A few minutes later, three carloads of strik- ers pulled up to the market. He testified that Bill Guynn immediately got a four-way lug wrench. He testified that Roger Tomlin was driving a car and Gene King was also present. He said that the strikers went after Randy Car- penter, wanting to cut his hair. He said that "they was just bugging him about his hair and said they were going to cut his hair." He testified that Joe Gant started every- thing by saying to Randy Carpenter, "Let's fight" and Mickie Meeks said, "No, let me have him," so Randy Carpenter told them, "Come on." As Mickie Meeks ap- proached Carpenter, Carpenter jerked out a pocket knife and went towards him. Meeks started running and ran to the upper end of the lot. He testified that Roger Tomlin, another striking employee, had a bumper jack so he went after Carpenter. At this point Wayne Strayn went after Roger Tomlin. Then the other strikers started moving up. He testified that at this point he just opened the door of his car and stood up and leaned up on the roof. He said he had a tape measure on his belt and he pulled it off so that it would not fail off, and Gene King said McCarter has a pistol. Bill Guynn then told all the strik- ing employees to leave. According to McCarter that was the end of the melee and they all left. He testified that he did see Mickie Meeks get hold of a Coca-Cola bottle and break it. He testified that Larry Summey was also pre- sent at this incident. McCarter testified there were no blows, no one was injured, and everybody left peaceful- ly. Randy Carpenter also testified about this incident. He stated that, on the night in question, four striking em- ployees, Mickie Meeks, Gene King, Wayne Donaldson, and Joe Gant, pulled in behind them at the WE-SAK-IT Market and blocked their cars in. He said the striking employees got out with lug wrenches and bumper jacks in their hands. He said that Joe Gant had a lug wrench in his hand and Roger Tomlin had a bumper jack. He said that Meeks also had something in his pocket but he never pulled it out. He said that Donaldson also had something but he does not know what it was. Joe Gant told Wayne Strayn to get out of the car, he was going to whip him. Then Meeks told Carpenter he was going to give him a whipping and King chimed in and said that he was going to get Carpenter after Meeks got finished with him. At this point Carpenter pulled a knife and Meeks grabbed a whiskey bottle and broke the end of it off, and started running away. About this time Robert McCarter pulled out a tape measure and scared the strik- ers away. He testified that there were no blows, no one was struck. He could not say that Bill Guynn had any- thing in his hands. Orville C. Meeks III testified that he was at the WE- SAK-IT Market on August 2, 1974. He testified that, 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD around 2:15 in the morning, he, Gene King, and Larry Summey got into a car and went to the Market. Joe Gant and Bill Guynn rode in another car. When they got there four or five cars were parked in the parking lot and they could not pull in so they just parked along the road. He said he was approached by Randy Carpenter who said, "You want to whip my ass?" He informed Carpenter that he did not want any trouble, he just wanted something to eat and wanted to leave. He stated that, as he started towards the Market, Carpenter fol- lowed him and told him, "You think you are pretty damn smart." He replied, "I do not think I'm smart at all, and if you do not get off my back, you and I are going to have some problem." At this point Carpenter pulled a knife and came towards him. He backed off and picked up a whiskey bottle and a coke bottle and then came back towards Carpenter. He stated that when he came back Carpenter appeared to be getting in the back seat of the car in which McCarter and Dodrill were sit- ting. Bill Guynn told him, "You better put that stuff down, McCarter has a .38 gun and you are liable to get blown away." He noted that Bill Guynn had a lug wrench. Some words were exchanged between the non- striking employees and the strikers and ultimately Bill Guynn said, "I think the best thing to do is go back to the picket line and let's not even fool with going in the store." Bill Guynn testified that in the first week of August 1974 he was at the WE-SAK-IT Market. He said that he did not have a lug wrench when he got out of his car, but he got that out because some guy between him and the door of the store had a chain. The versions of this incident by the nonstriking em- ployees and the company supervisors and that of the strikers are not materially in dispute, except as to which faction was the aggressor. In this regard I note that had the striking employees wanted to attack the nonstriking employees they could have done so at the picket line when these employees were leaving work from the night shift. It does not make much sense to me that they would permit the nonstriking employees to leave the plant and then follow them to a location away from the plant and attack them in the presence of company super- visors. The testimony of Meeks and Guynn appeared to me to be straightforward and had a ring of truth. It also makes more sense than that of the nonstriking employees and the company supervisors. For these reasons I credit the version of the strikers and conclude that they were not the aggressors in this melee but were merely attempt- ing to defend themselves. Therefore I conclude that Re- spondent cannot deny these striking employees the right to reinstatement for such self-defense. This strike from its inception at Matlock was by no means a peaceful one. This record clearly demonstrates that there was strike misconduct on both sides. Respon- dent was keenly aware of the violence being engaged in by its nonstriking employees during the course of the strike. There was a great deal of violence on the part of the nonstriking employees as well as the conduct that Respondent relies on here as a defense to its backpay ob- ligation to the striking employees. We must also take into account that this was an unfair labor practice strike caused by Respondent's refusal to bargain with the em- ployees' certified collective-bargaining representatives. The unfair labor practices of the employer must be taken into account when balancing the equities between the unfair labor practices and striker misconduct. It is well settled that striking employees may disqualify themselves from reinstatement by engaging in serious misconduct. Not all impriorities on the part of the em- ployees automatically result in disqualification. The Board has long held that certain acts on the part of the striking employees, while not condoned by the Board, are insufficient to deny the striking employees reinstate- ment and attribute such conduct to the "moments of animal exuberance." Capital Rubber & Specialty Co., Inc., 201 NLRB 715 (1973). Even if the striking employees had been the aggressors in this incident, and actually en- gaged in misconduct, I do not find that this misconduct is so violent or of such serious character as to render the employees unfit for future service. I find that the incident involved was minor and caused no damage to any property or to any person, and there- fore I conclude that this act falls within the category of impulsive, trivial incidents which the Board has found in- sufficiently serious to deprive employees of the protec- tion of the Act. Accordingly, I conclude that Respon- dent cannot deny reinstatement to William Guynn or to the other strikers involved in this incident. James Rodney Ford, a foreman of the Respondent, tes- tified that, shortly after the strike started, Bill Guynn, George Osborne, and another striker followed him in Bill Guynn's Ford 3 miles down the interstate. Ford ad- mitted that no threats were made towards him, and that no attempt was made to run him off the road and they did not follow him to his home. The Board has held that such conduct on the part of strikers without attempting to impede the right of way is insufficient misconduct to bar reinstatement. Under these circumstances, it is my conclusion that Respondent has failed to prove that Guynn was guilty of misconduct which would disqualify him from reinstatement and backpay. Shortly after Guynn was denied reinstatement, he ob- tained employment at Preston Lincoln-Mercury where he had to furnish his own tools. In the backpay specifica- tion General Counsel has set forth the figure of $339 ex- pense for the purchase of new tools needed at the new work location. The General Counsel contends that, had Guynn been properly reinstated, he would not have had to purchase these additional tools and that Respondent is liable for this amount in backpay as set forth in this specification. Although Guynn did not personally go to the plant and ask for his own tools and toolbox he was informed by the employees who were in the plant that they had been gone for a long time. Kenneth Dougley Mosley who was called by Respondent testified that some of the strikers' toolboxes were stripped and some tools were taken home by some nonstriking employees. He also testified that on one occasion he saw where two roll-away toolboxes belonging to strikers were being car- t It is noted that Respondent offered unconditional reinstatement to each of the 18 individuals alleged to have been guilty of strike conduct in this proceeding. Of these 18 employees. 7 actually accepted reinstatement and have worked to date without incident . __ MATLOCK TRUCK BODY & TRAILER CORP. 473 ried away in a company truck with some scrap metal. There was no testimony offered by Respondent to indi- cate that Guynn's tools and his toolbox were still intact in the plant and there was no offer by Respondent to produce these tools. Under these circumstances, it is my conclusion that the General Counsel has made out a case in which Guynn should be reimbursed by Respondent for the tools in question. Therefore it is my conclusion that Respondent has failed in its burden to establish that Guynn was guilty of misconduct which would cause him to forfeit his right of reinstatement and that Guynn is entitled to net backpay in the amount of $997, as set forth in the backpay specifi- cation, 12 as amended at the hearing. 12. Michael P. Haynie Haynie's backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered rein- statement. His gross backpay, less the amounts of his in- terim earnings, gives him a net backpay of $13. In its answer Respondent denied that Haynie is enti- tled to any backpay because he did not unconditionally apply to return to work following the end of the strike on April 7, 1975. Additionally, Respondent contends that Haynie is not entitled to $240 as set forth in the backpay specification for maternity benefits because he would have been laid off during that particular quarter; namely, the second quarter of 1975. However, as no backpay is claimed for that quarter, this argument by Respondent is moot. As I have concluded that the Union made an uncondi- tional offer of reinstatement for all striking employees on April 7, 1975, it is my conclusion that Respondent cannot deny Haynie reinstatement because he did not make any individual application for reinstatement. There- fore it is my conclusion that Haynie is entitled to net backpay in the amount of $13 as set forth in the backpay specification. 13. Roy A. Horstmeyer Horstmeyer's backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered re- instatement. His gross backpay, less admitted interim earnings, gives him a net backpay of $1,686. In its answer Respondent argues that Horstmeyer for- feited his right of reinstatement and was not entitled to any backpay because on or about August 7, 1974, five shots was fired from a car owned and operated by Roy Horstmeyer, at a security guard at Respondent's plant. Additionally, Respondent argues that Horstmeyer failed to use reasonable diligence in securing and maintaining interim employment during the period April 15, 1975, through October 6, 1976, and was absent an excessive period of time from his interim employer, Precision Rubber Products Corp., Lebanon, Tennessee, which re- duced his interim earnings and thereby constituted a willful loss of earnings. As Respondent offered no proof whatsoever to support this later allegation, it is my con- clusion that Horstmeyer did not fail to use reasonable *2 Respondent also failed to establish that Guynn incurred a willful loss of earnings diligence in securing and maintaining interim employ- ment. In fact, at the time the strike ended he was work- ing at Precision Rubber Products Corp. and continued working there until he was offered reinstatement on Oc- tober 6, 1976. Robert McCarter, a supervisor of Respondent, testified that during the course of the strike he heard what he thought was pistol shots. It sounded as though the shots came from the lower plant where completed trailers are parked and ready for sale. He further testified that the guard at the main plant heard the shots and went to the lower lot to see what had happened. He stated that the guard returned, told him that the guard on the lower lot had told him that five shots were fired down there, and that they had come from a rust-colored Maverick. t 3 McCarter testified that approximately 20 minutes later he saw Horstmeyer arrive at the plant in a rust-colored Maverick. McCarter concluded from this that Horst- meyer was the person who had fired the shots. Neither of the security guards testified at the hearing. Horst- meyer denied any involvement in this incident. In the face of no supporting evidence to show any connection between Horstmeyer and the shots that were allegedly fired, I must credit Horstmeyer's denial of any involve- ment in this incident. Accordingly, it is my conclusion that Respondent has failed to carry its burden of proving that Horstmeyer was engaged in strike conduct. There- fore, it is my conclusion that Horstmeyer is entitled to backpay in the amount of $1,686 as set forth in the back- pay specification. 14. Larry D. Hymer His backpay period begins on April 14, 1975, and ends on November 15, 1976, the date he was offered reinstate- ment. His gross backpay, including expenses, less ad- mitted interim earnings, gives him a net backpay of $1,285, as set forth in the specification. In its answer Respondent contends that Hymer forfeit- ed his right to reinstatement or backpay for the period April 14, 1975, through November 15, 1976, because Hymer in the vicinity of Respondent's plant struck the automobile of a nonstriking employee with a picket sign or other instrument, thereby damaging the vehicle. Re- spondent also contends that Hymer was self-employed for the period December 7, 1974, through September 20, 1975; therefore any hospital expenses incurred on or about September 2, 1975, were directly attributable to Larry D. Hymer's failure to properly insure himself and are not chargeable to Respondent. Hymer testified that he went on strike on July 8, 1974, and picketed the plant during the entire strike. In Sep- tember 1974 he obtained employment at Dupont and worked there until November 1974 when he was laid off. In December 1974, he started working at H. Cohen Fur- niture Company doing maintenance work. While he worked for Cohen he was not covered by any insurance program. 13 This hearsay testimony was allowed in the record because Respon- dent's counsel indicated that he was offering it only for the fact that McCarter had received a report and not for the truth of the report. 474 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD On April 8, 1975, after the termination of the strike, Hymer returned to the Company and made a personal request for reinstatement. According to the April 11, 1975, letter from Matlock to the Union, Hymer was denied reinstatement for alleged misconduct. His name was on List B. Hymer was not offered reinstatement until November 1976, at which time he had obtained a better job and declined the offer. In support of its denial of reinstatement to Hymer, Robert McCarter, Respondent's supervisor, testified that, sometime during the course of the strike, he witnessed Larry Hymer hit the automobile of a nonstriking em- ployee with a picket sign. McCarter admitted that he could not see that any damage was done to the car. Hymer denied ever having struck an automobile with a picket sign during the strike. As I credit Hymer's testimony over that of McCarter's, it is my conclusion that Hymer did not strike the automobile of a nonstriking employee as testi- fied to by McCarter. In any event, had Hymer actually touched the automobile with a cardboard or paper picket sign, it is my conclusion that such impulsive, trivial inci- dent would not be sufficient to deprive him from rein- statement. Therefore it is my conclusion that Respondent has failed to establish that Larry Hymer was engaged in misconduct sufficiently to deprive him of an offer of re- instatement. According to the backpay specification, it appears that the bulk of Hymer's backpay is out-of-pocket medical ex- penses which Hymer incurred when he was hospitalized for treatment of a kidney stone condition and surgery when he was working for H. Cohen Furniture Company where he was not covered by an insurance plan. Respon- dent has objected to paying any backpay during this period because Hymer could easily had insured himself, and thus obviated Respondent's obligation to meet such medical expenses during that period. The backpay specification indicates that in the third quarter of 1975, Hymer incurred a total hospital expense, including doctors, of $1,022.50 and Hymer confirmed this without contradiction. When the savings on cost of insurance at Matlock was deducted for this period the net hospital expenses was $953.86 as set forth in the backpay specification. Had Respondent properly reinstat- ed Hymer when he applied for reinstatement on April 8, 1975, he would have been covered by the insurance at Matlock. These hospitalization expenses would have been covered by Matlock's insurance program. There- fore it is my conclusion that these hospitalization ex- penses are properly chargeable to Respondent. See Bowen Transports, Inc., 196 NLRB 665, 670 (1972). Therefore it is my conclusion that Hymer is entitled to net backpay in the amount of $1,285 as set forth in the backpay specification. 15. Jesse C. Keel Keel's backpay period begins on April 14, 1975, and ends on November 15, 1976, when he was offered rein- statement. His gross backpay and expenses, less admitted interim earnings, gives him a net backpay of $2,534. In its answer Respondent denied that Keel was entitled to reinstatement or any backpay because during July or August 1974 he pulled a shotgun from under the front seat of a car in which he was a passenger, stuck it out of the automobile window and pointed it towards a non- striking employee, and shouted that he "ought to blow his brains out" or words to this effect. Additionally, Re- spondent alleges that during the second and third quarter of 1975, and the third and fourth quarter of 1976, Jesse Keel failed to exercise reasonable diligence in securing interim employment and therefore incurred a willful loss of earnings for these quarters. Respondent offered no evidence to indicate that Keel failed to exercise reason- able diligence in securing interim employment, and there- by incurred a willful loss of earnings, other than its gen- eral allegation that there was ample work in the Nash- ville area. As I have rejected this defense, it needs no further discussion. Keel testified that he went out on strike in July 1974 and picketed the plant until the strike ended. After the strike was terminated he returned to the plant and signed up for work but was not reinstated. He then started searching for a job and applied at the following places: Stanford, Volunteer Steel, Rogers Manufacturing, Tenico, Massey Seeding Company, the Nashville Bridge Company, Fruehauf Trailer Corp., and TVA. Finally, in July 1976, he obtained employment with Massey Seeding Company, and continued working there until November 1976, when he was offered reinstatement by Respondent. He accepted reinstatement by Respondent and since that time has been working without incident. Under these circumstances, it is my conclusion that Respondent has failed to establish that Keel failed to ex- ercise reasonable diligence in securing interim employ- ment. According to the contention of Respondent, Jesse Keel's misconduct occurred at the WE-SAK-IT Market. This obviously is another incident at that market and not the one discussed earlier, which occurred on August 2, 1974. James Robins, a nonstriking employee, testified that, in January or February 1975, when he got off from work around 1:30 in the morning he stopped at the WE-SAK- IT Market. When he stopped, another car pulled up alongside him. Jesse Keel and another guy by the name of Andy were in the car. As he started to get out of the car Jesse Keel, who was on the passenger side, drew his shotgun on him and said, "There is one of the scabs." Robins testified that Keel said, "I ought to blow your brains out." When Robins got out of his car Keel put the shotgun back in his car and pulled off. Robins testified that Billy Sanders, Randy Carpenter, and Randy's father were there at that time. Robins testified that prior to this time he never had any words with Keel and that they work in the same department now and they get along fine. Robins testified that he did not report this to the police but he did report it to his foreman the next day. Billy Sanders, who at the time of the strike was a me- chanic in the fabrication department, testified that cur- rently he was a foreman over the fabrication department. He testified that on the night in question he was present at the WE-SAK-IT Market. Wayne Strayn and James Robins were standing there talking to him, when Jesse Keel and Andrew Tant pulled up in a car and they MATLOCK TRUCK BODY & TRAILER CORP. 475 pulled up next to Robins' car. He said that Jesse Keel said something to Robins and then turned around and reached over the back seat and reached to get his shot- gun. He said he put the shotgun down against the door panel and told Robins, "I'm going to get you." He said they walked over and told Jesse, "We do not want any problems or any trouble just put the gun up and go home." He said Keel put the gun up and said, "I'm going to get him," and then backed up and went on around behind the store and left the market. He said Randy Car- penter was also present but he was not right there at the spot. According to Sanders, Jesse Keel was driving the car and Andrew Tant was on the passenger's seat. It is noted that this is just the opposite position as testified to by Robins. William Carpenter, father of Randy Carpenter, a non- striking employee, testified that he accompanied his son Randy, and William Strayn, to the WE-SAK-IT Market where they encountered Jesse Keel. He testified that it was about 1:20 a.m. and he saw Keel and another guy named Andy sitting in a car with a shotgun between them with the barrel sticking up. He said they pointed the shotgun towards James Robins and then told Randy Carpenter that he was not going to live to spend his pay- check. Mr. Carpenter told his son to go on in the build- ing and buy what he wanted and they would leave. He said that Jesse Keel had the shotgun, and that Keel was standing on the opposite side of the car from where they were parked. On cross-examination Mr. Carpenter testi- fied to the fact that Keel got out of the car with the shotgun in his hand and pointed it over the car hood straight in the air. Later in his testimony Carpenter said the guy with the gun was a one-eyed fellow. He was certain that it was the one-eyed man who had the gun and he thinks Jesse Keel is the one who still works at the plant. He said the man who had the gun does not work there now. Randy Carpenter testified to this incident and he stated that the one-eyed fellow, Andy Tant, had the shotgun. He said Tant got out of the car and leaned the shotgun across the hood and pointed it at him. Jesse Keel was driving the car. He testified that he does not remember whether he saw James Robins that night or not. Both Jesse Keel and Andrew Tant testified and they denied any involvement in this incident. In view of the many inconsistencies the testimony of Respondent's witnesses, such as who was driving the car, who was on the passenger's side, who had possession of the shotgun, whether the holder of the shotgun was inside or outside of the car, and at whom was he point- ing the shotgun, I accept the testimony of Keel and Tant that the incident never happened. Under these circumstances, I must conclude that Re- spondent has failed to carry its burden of proving mis- conduct on the part of Jesse Keel or Andrew Tant in this WE-SAK-IT incident. Therefore Respondent's denial of reinstatement to these striking employees for this incident was unlawful. Accordingly, I conclude that Jesse Keel is entitled to net backpay in the amount of $2,534. 16. Charles L. Kelly Kelly's backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered rein- statement. Kelly's gross backpay, less admitted interim earnings, gives him a net backpay of $256. In its answer Respondent denies that Kelly is entitled to any backpay for any period between April 14, 1975, and October 6, 1976, because he did not make an uncon- ditional offer to return to work following the end of the strike on April 7, 1975. As I have concluded that the Union made an unconditional offer to return to work for all the striking employees on April 7, 1975, I reject this defense of Respondent's. Therefore I conclude that Charles Kelly is entitled to net backpay in the amount of $256 as set forth in the backpay specification. 17. Gene King No backpay is claimed for King during the second, third, and fourth quarters of 1975, and the first quarter of 1976. Backpay is claimed for the second and third quar- ters of 1976, in the amount of $1,597. However, the record reflects that King, who went on strike on July 8, 1975, shortly after the strike started, abandoned his em- ployment at Respondent and had no desire to return to work at Matlock. Under these circumstances it is my conclusion that King is not entitled to any backpay. 18. William W. Mayes His backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered reinstate- ment. His gross backpay, less the amounts of admitted in- terim earnings, as set forth in the amended backpay specification, gives him a net backpay of $567. In its answer Respondent denies that Mayes is entitled to any backpay for any period from April 14, 1975, through October 6, 1976, because he did not uncondi- tionally apply to return to work following the end of the strike on April 7, 1975. As I have concluded that the Union made an unconditional offer to return to work for all striking employees on April 7, 1975, Respondent's de- fense in this regard is not accepted. Therefore I conclude that William W. Mayes is entitled to backpay in the amount of $567 as set forth in the amended backpay specification. 19. James H. McClanahan His backpay period begins on April 14, 1975, and ends on November 15, 1976, the date he was offered reinstate- ment. His gross backpay and expenses, less the amounts of admitted interim earnings, give him a net backpay of $2,234. In its answer Respondent contends that McClanahan forfeited any right to reinstatement or backpay in any amount for the period between April 14, 1975, and No- vember 15, 1976, because he drove a blue Volkswagen automobile in pursuit of two nonstriking employees as they left the plant at the end of the work shift, and shot at the occupants of this vehicle with a slingshot. Addi- tionally, McClanahan shot a marble at another nonstrik- ing employee, hitting him on the foot. Additionally, Re- 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent contends that McClanahan is not entitled to re- imbursement for equipment expenses in the amount of $100 as set forth in the backpay specification. McClanahan testified that he went on strike and pick- eted the plant until the strike terminated. Approximately 3 weeks after the strike started he obtained employment with Fruehauf Corporation and has worked there con- tinuously. He was denied reinstatement allegedly for strike misconduct. McClanahan testified that when he obtained his job at Fruehauf he spent $100 on tools and a toolbox because he was required to have his own tools. In support of Respondent's allegations of strike mis- conduct, President Roy Matlock testified that during the strike he saw McClanahan with a slingshot shooting mar- bles over towards Respondent's property. He said he ob- served McClanahan with a rifle, following their custom- ers and nonstriking employees, and at one point he fol- lowed Matlock. He said that "McClanahan would follow along behind you like he was going to chase you and would try to run you off the road." And for these rea- sons McClanahan was not reinstated. On cross-examina- tion Matlock admitted that he drove a large Cadillac and that McClanahan had a Volkswagen. When asked if McClanahan was trying to run people off the road with a little Volkswagen, Matlock responded, "I do not know, it seems like you can be out on the highway doing a 140 mph and a little Volkswagen will go by you for some reason or the other." He said that in his experience people go wild when they get in a Volkswagen. When asked if he exaggerates, Matlock admitted that he was exaggerating when he said that Volkswagens go 140 miles per hour. Matlock also said that he did not think a Volkswagen could run him off the road unless he decid- ed to let it do so. When questioned about the rifle that McClanahan was supposed to have in his possession, Matlock said he had it lying in the back seat and that he took it out over across the street in the gateway parking lot. Matlock admitted that he was 150 feet away and that it could have been a toy rifle. He admitted that he did not see McClanahan shoot the rifle. He also said that he did not see McClanahan throw any rocks and did not see him threaten anybody. Although Matlock was insistent that he saw McClanahan shoot a slingshot on his proper- ty and that he shot out a window, he testified that he did not have McClanahan arrested. For the most part Mat- lock's testimony was conclusionary and obviously exag- gerated. In fact he admitted that he exaggerated about the speed of the Volkswagen. The record reflects that McClanahan was involved in a fight with a nonstriker named Randy Carpenter. McClanahan was walking picket when Carpenter hit him in the back with a two-by-four board. And, according to McClanahan, after he fell Carpenter stomped him on the face. Carpenter admitted to striking McClanahan with a two-by-four board but denied having stomped him. As Carpenter was obviously the aggressor in this matter and as McClanahan did nothing, this cannot be a basis for denial of reinstatement. Bob Burton, the plant superintendent, testified that in December 1974 he saw McClanahan pointing a gun at the guard shack where he was standing. McClanahan was 50 to 75 feet away. On cross-examination Burton stated that McClanahan did not threaten him with the rifle or gun but was sitting down with the gun in his lap and just holding it. McClanahan, although he owned sev- eral guns, denied ever having one at the picket line except one time he found a toy gun in the vicinity of the picket line and he picked it up and played with it. It is quite obvious that Burton was not threatened by McClanahan's gun since he did not report it to the police and try to have McClanahan arrested. Therefore, this is another trivial incident insufficient to warrant denial of reinstatement. Burton also testified that he had witnessed McClanahan spitting on company trucks. This also is an insufficient basis for denying reinstatement. See H. N. Thayer Company, 99 NLRB 1122, 1210-11 (1952). James Dudley, a nonstriking employee, testified that McClanahan hit his foot with a marble. He stated that one evening as he was standing in front of the suspension department a marble hit his foot. He looked across the street and saw McClanahan standing 50 to 60 feet away. He admitted that there was very little visibility that evening, that the lights in the Matlock building were turned off, and he did not see McClanahan prior to the marble hitting his foot. He stated he did not see McClan- ahan with a slingshot. It is my conclusion that this evi- dence does not sustain the allegation that McClanahan was the one who shot Dudley's foot with a marble. Therefore this cannot be a basis for denying reinstate- ment to a striking employee. Thus, the only remaining basis for denying McClana- han reinstatement is the testimony of Matlock that he shot out a window with a slingshot. McClanahan denied that he did any of the conduct alleged. Matlock's general testimony was conclusionary and he admitted that in part was an exaggeration. As I accept the testimony of McClanahan over that of Matlock' 4 it is my conclusion that McClanahan did not have a slingshot and he did not shoot out the windows in the company premises. There- fore it is my conclusion that there is no testimony in the record showing that McClanahan was guilty of strike misconduct which would justify Respondent's refusal to reinstate him. McClanahan testified that he made no attempt to return to Respondent's premises to obtain his toolbox, but that he just purchased the additional tools needed at Fruehauf. Under these circumstances I conclude that McClanahan is not entitled to the $100 expenses for the purchases of the tools and toolbox as alleged in the back- pay specification. While I recognize that had Respondent not engaged in the discrimination, McClanahan would not have to purchase any tools, however, there is no evi- dence in this record to reflect that McClanahan did not already have these tools in his toolbox on Respondent's premises, tools which were readily available and he could obtain without any problem. Therefore, I shall reduce his backpay by $100, and conclude that McClana- han is entitled to backpay in the amount of $2,134. 14 It appeared to me that Roy Matlock was so emotionally involved in the proceeding that all his testimony was exaggerated and not believable. MATLOCK TRUCK BODY & TRAILER CORP. 477 20. Earl R. McClendon McClendon's backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered re- instatement. His gross backpay and expenses, less ad- mitted interim earnings, leave him a net backpay in the amount of $608. In its answer Respondent contends that Earl R. McClendon is not entitled to any backpay in any amount for any period between August 14, 1975, and October 6, 1976, because he did not unconditionally apply to return to work following the end of the strike on April 7, 1975. As I have concluded that the Union on April 7, 1975, made a unconditional offer to return all striking employ- ees to work I shall reject Respondent's defense in this regard. Additionally, Respondent alleges that Earl R. McClendon failed to use reasonable diligence in seeking interim employment near his home and, during the first and second quarters of 1976, incurred a willful loss of earnings which denies his entitlement to backpay for the period in question. McClendon did not testify and Respondent offered no proof whatsoever to show that McClendon failed to use reasonable diligence in seeking interim employment or that he incurred a willful loss of earnings during the backpay period. Therefore it is my conclusion that McClendon is enti- tled to backpay in the amount of $608 as set forth in the backpay specification. 21. Daniel M. McMillian His backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered reinstate- ment. McMillian's gross backpay, less admitted interim earnings, leaves him a net backpay of $343. In its answer Respondent contends that McMillian for- feited any right to reinstatement or backpay in any amount for any period from April 14, 1975, to October 6, 1976, because on or about August 2, 1974, together with a number of other striking employees, he blocked the automobile of two nonstrikers after the nonstriking employees had left work, and that he threatened a non- striking employee with bodily harm. The record reflects that Daniel McMillian was identified as one of the group involved in the WE-SAK-IT Market on or about the night of August 2, 1974. Although he was not identified as armed with any weapon he was part of the group. As I have concluded that this incident was an insufficient basis to deny an employee reinstatement or backpay, I conclude that McMillian is entitled to backpay in the amount of $343 as set forth in the backpay specification. 22. Dwight Medley Medley's backpay period begins on April 14, 1975, and ends on November 15, 1976, the date he was offered re- instatement. His gross backpay, less admitted interim earnings, leaves him a net backpay in the amount of $2,152. In its answer Respondent contends that Dwight Medley terminated his employment with the Company in August 1974 and joined the pickets outside the Compa- ny's plant. In August 1974, Medley, while picketing the plant, threw rocks at the Company's sign, located on company premises, rocks which struck the sign and also struck automobiles of company officials and nonstriking employees parked on company premises in the company parking lot. Because of this misconduct Dwight Medley forfeited any rights to reinstatement or backpay in any amount for any period from April 14, 1975, to November 15, 1976. Respondent also alleged that, during the second quarter of 1975, Medley failed to exercise reasonable dili- gence in maintaining his job at Harsco Corporation, Camp Hill, Pennsylvania, and that he was discharged for excessive absenteeism. Accordingly Respondent alleges that Dwight Medley incurred a willful loss of earnings. Medley testified that he went on strike on July 8, 1974, and began picketing the plant with the other striking em- ployees. In January or February 1975, he obtained em- ployment with IKG, Division of Harsco Corporation, making $3.25 an hour. His rate at Matlock was $3.94. According to Respondent's Exhibit 8 he returned to the plant on April 8, 1975, and requested reinstatement. He talked with Gene Stone who informed him that he was on a list of people that the Company was not going to take back.1 5 In June 1975 he terminated his employment with IKG making $4.10 an hour and accepted employ- ment with Graham Structures in Ashland City as a welder making $3.56. He testified that he terminated his employment with IKG because he was working on the night shift from 11:30 p.m. to 7 a.m. and he was going to sleep driving home. As indicated one of Respondent's defenses is that Medley's voluntary termination of his employment with IKG and his taking a lower paying job amounted to a willful loss of earnings. The Board has held that in backpay cases the willful loss of earnings is not proved where the employee had reasons to terminate his interim employment and where there is no showing of prior proclivity for termination and where employees have found other jobs. United Aircraft Corporation, 204 NLRB 1068 (1973). Respondent produced no evidence to prove actual misconduct on the part of Medley al- though it contended that Medley was guilty of strike misconduct by throwing rocks at company signs and trucks, thereby disqualifying himself for reinstatement. Medley denied that he engaged in any misconduct or that he threw any rocks at company property as alleged by Respondent. Under these circumstances, it is my conclusion that Respondent has failed to establish that Medley was in- volved in strike misconduct which would cause him to forfeit his reinstatement rights and backpay, and that there was no showing that he incurred a willful loss of earnings as alleged by Respondent. Therefore it is my conclusion that Medley is entitled to net backpay in the amount of $2,152 as set forth in the backpay specification. 23. Orville C. Meeks III His backpay period begins on April 14, 1975, and ends on November 15, 1976, the date he was offered reinstate- ment. His gross backpay and expenses, less admitted in- terim earnings, leave him a net backpay of $558. 's His name appeared on List B 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its answer Respondent contends that Meeks forfeit- ed any right to reinstatement or backpay in any amount for any period from April 14, 1975, to November 15, 1976, because Meeks was guilty of numerous acts of mis- conduct during the period of the strike. On July 24, 1974, he called a supervisor a filthy name; on July 31, 1974, he spat at his supervisor in the supervisor's auto- mobile as the supervisor was passing through the gate at Respondent's plant. On August 3, 1974, Meeks together with a number of other striking employees threatened nonstriking employees of Respondent after they had gotten off from work. Respondent also alleges that during the period from May 8, 1975, through November 8, 1976, Meeks was absent 47 days from his interim em- ployer, and thereby failed to use reasonable diligence in maintaining suitable interim employment, and according- ly is guilty of a willful loss of earnings. Meeks, an employee in the service department prior to the strike and not a member of the certified unit, was a sympathy striker. Shortly after the strike started he ob- tained employment at Fruehauf Corporation. When the strike was terminated he went to the Company and made a request for reinstatement on April 8, 1975. He was re- fused reinstatement on the basis that he was guilty of strike misconduct, because of his involvement in the WE-SAK-IT Market incident on August 2, 1974. Inas- much as I have concluded that this incident was an insuf- ficient basis for Respondent to deny reinstatement to any of the striking employees involved, I shall reject Respon- dent's defense in this regard. Additionally, Meeks was alleged to have spat on his supervisor's car, used profane language towards the plant superintendent, Bob Burton, and threatened to stomp Burton. Meeks admitted that his language was profane, abusive, and that both strikers and nonstrikers used pro- fane language in addressing each other. The Board has consistently held that such conduct, although not con- doned, is insufficient to bar reinstatement. It is equally well settled that spitting at a foreman in a car is insuffi- cient misconduct to deny an employee reinstatement, es- pecially in a case of an unfair labor practice strike. See H. N. Thayer Company, supra at 1210-11. The Board has also held that threats not accompanied by violent actions are insufficient to deny reinstatement. See Federal Pre- scription Services, Inc., 203 NLRB 975 (1973). Therefore it is my conclusion that Respondent had an insufficient basis for denying Meeks reinstatement based on miscon- duct. In the backpay specification Meeks' backpay was re- duced due to high absenteeism in the first quarter of 1976. There was no evidence offered by Respondent to establish that Meeks was otherwise absent from his inter- im employer and thereby failed to use reasonable dili- gence in maintaining suitable interim employment. It is my conclusion that he was not guilty of a willful loss of earnings. Therefore I conclude that Meeks is entitled to net backpay in the amount of $558 as set forth in the backpay specification. "6 '6 Meeks testified that he incurred additional travels at Fruehauf as set forth in the backpay specification. 24. David L. Miller Miller's backpay period begins on April 14, 1975, and ends on November 15, 1976, the date he was offered re- instatement. His gross backpay and expenses as set forth in the backpay specification leave him a net backpay of $1,256. In its answer Respondent denied that Miller was enti- tled to reinstatement or backpay in any amount for any period from April 14, 1975, through November 15, 1976, because, in July or August 1974, he struck the side of a nonstriking employee's automobile w'ith a picket sign as the nonstriking employee was passing through the gate of Respondent's plant. Additionally, Respondent alleges that Miller failed to use reasonable diligence in finding interim employment in the Nashville, Tennessee, area during the period April 14, 1975, through November 15, 1976, and incurred a willful loss of earnings by failing to accept suitable job opportunities in the Nashville area, which would have eliminated any necessity of interim expenses. David Miller testified that he went on strike on July 8, 1974, and picketed the plant every night until the strike ended. His strike shifts were from 8 p.m. until midnight, and from midnight until 4 a.m. After the strike was ter- minated Miller made a personal application for reinstate- ment on April 8, 1975. He was denied reinstatement be- cause of the alleged strike misconduct. Robert McCarter, a supervisor of Respondent, testified that I day during the strike at approximately 4 p.m. he saw David Miller strike Doug Mosley's automobile with a picket sign as Mosley was leaving the employee's park- ing lot. Mosley testified that he worked the first shift at the plant and he normally finished around 4 p.m. He testified that at the time of the strike he did not know David Miller; however, he knows him now. When questioned about the incident in which his car was scratched in August 1975, Mosley testified that he can remember something about it, but he cannot remember the details. After refreshing his recollection from an affidavit, he tes- tified that in August 1974 when he was leaving the plant there were two pickets, one by the name of James Barker, and another fellow. He testified that according to his affidavit the other picket was a fellow by the name of David Miller. Mosley testified that as he remembered he signed the statement saying that he and Barker had a few words and, "I heard something scrape or tap my car." He said at that time David Miller was the one standing on that side of his car, that when he got home he looked at his car and it had a scratch on it. Mosley testified that he did not see Miller do anything to his car. As a matter of fact, Mosley testified that he did not re- member Miller being at the incident. It was only because Miller was placed at the picket line according to his affi- davit that he so testified. Miller denied being at the picket line, denied this incident, and testified that he was never at the picket line except the hours 8 p.m. to mid- night, and from midnight to 4 a.m. As I find McCarter to be an unreliable witness, who was obviously biased in favor of his employer, Matlock, I do not credit his testimony in this regard. Moreover, Mosley, the victim whose car was scratched testified that MATLOCK TRUCK BODY & TRAILER CORP. 479 he was not certain that Miller was present and that in any event he did not see Miller do anything to his car. Under these circumstances it is my conclusion that Re- spondent has failed to establish that David Miller was guilty of picket line misconduct sufficient to warrant his denial of reinstatement. Although Respondent's answer alleges that Miller failed to use reasonable diligence in finding interim em- ployment in the Nashville, Tennessee, area, and thereby incurred a willful loss of earnings, this record reflects that Miller not only sought employment but he found employment and was employed until he was offered rein- statement by Matlock on November 15, 1976. Miller was employed as a manhole builder by the CFW Construc- tion Company, Inc., of Fayetteville, Tennessee, during the entire period. During a portion of this time his em- ployer transferred him to Louisiana for about 9 to 10 months. If an employee is transferred out of the city this cannot give a respondent in a backpay proceeding an op- portunity to argue that the employee did not use dili- gence in finding interim employment in the area. It would be ridiculous to conclude that Miller would have to quit his job in order to maintain employment in the area. Therefore, it is my conclusion that Respondent has failed to show that Miller did not use reasonable dili- gence in finding interim employment. In its brief the General Counsel states that the backpay specification was amended in regards to Miller to allege additional expenses of $7.50 for each day that Miller worked in New Orleans. I find no such amendment. There was an amendment in Appendix C-31, footnote 6, to strike out boarding house and substitute rooming house, but there was no amendment that I can find that covers the $7.50 for each day that he worked in New Orleans. In any event, as this $7.50 a day was for meals, it is my conclusion that Miller is not entitled to this be- cause he would have had to spend the same amount had he been in Tennessee working for the same employer. Therefore it is my conclusion that David Miller is enti- tled to net backpay in the amount of $1,256 as set forth in the backpay specification. 7 25. William J. Newman Newman's backpay period begins on April 14, 1975, and ends on November 15, 1976, the date he was offered reinstatement. Newman's gross backpay less admitted in- terim earnings gives him a net backpay of $4,678. In its answer Respondent states that Newman forfeited any right to reinstatment or backpay in any amount for any period of time from April 14, 1975, through Novem- ber 15, 1976, because as a picket he scattered roofing nails in the driveway of Respondent's plant as a part of the Union's effort to prevent company officials and non- striking employees from entering and leaving the prem- ises. Newman denied scattering roofing nails in the driveway and Respondent offered no evidence whatso- ever to support this contention. Therefore it is my con- clusion that Respondent has failed in its burden to estab- 1" Miller testified that he incurred additional travel and living expenses as set forth in the backpay specification lish that Newman was guilty of misconduct sufficient to warrant his denial of reinstatement. Additionally, Respondent alleges in its answer that during the second, third, and fourth quarters of 1975, and the first quarter of 1976, Newman failed to exercise reasonable diligence in obtaining interim employment in the Nashville area, and that he failed to report certain in- terim earnings from employment at Nashville Mobile Home Park, where he was employed as a contract labor- er and paid in cash. For these reasons Respondent alleges that Newman incurred a willful loss of earnings disquali- fying him from backpay for the period in question. Newman, a welder prior to the strike, testified that he went on strike and picketed the plant until the strike was terminated. After the strike ended he went to the plant and made a personal request for reinstatement on April 8, 1975. He talked with Personnel Manager Dick Tucker, who told him that he did not have any record on him and that his name was not on the list to be called back. There was no mention at that time about any involve- ment in strike misconduct. Newman credibly testified that he made a diligent search for interim employment. He testified that he went to the following places in and around Nashville, Tennes- see: Baltz Brothers Packing Company, Nashville Bridge Company, Cummings Sign Company, Steiner-Liff Indus- tries, Rogers Manufacturing Company, United Parcel Service, a carwash station, Dorsey Trailers, Curtis Ser- vice Station, Mid-South Bolt and Screw Company, Tri- angle Truck Terminals, and Shoney's Commissary. Addi- tionally, he testified credibly that he inquired of employ- ment through the Union, but found nothing. Also he tes- tified credibly that he would go to the Teamsters Union Hall once or twice a week to see about getting employ- ment there, as he knew some people because he was a former teamster. The Respondent argues that as there were many other employers in the Nashville area that Newman did not contact to seek employment, and if he had he certainly would have been employed. This is an assumption on Respondent's part and has no foundation in fact. Respondent offered no evidence whatsoever to establish the fact that had Newman applied at these var- ious employers he would have been offered a job. On this assumption I cannot conclude that Newman failed to use due diligence in seeking interim employment. On the other hand, the evidence establishes that he did use due diligence in seeking interim employment and I so find. As his testimony regarding his search for interim em- ployment was not contradicted, his lack of success in ob- taining employment does not impeach his testimony or relieve Respondent of the burden of proving facts to mitigate its liability. See Valley Mold Company. Inc., 215 NLRB 211 (1974). Therefore it is my conclusion that Newman is entitled to net backpay in the amount of $4,678 as set forth in the backpay specification. 26. George D. Osborne His backpay period begins on April 14, 1975, and ends on November 15, 1976, the date he was offered reinstate- ment. His gross backpay and expenses, less admitted in- terim earnings, leave him a net backpay of $3,541 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its answer the Respondent states that Osborne for- feited any right to reinstatement and backpay in any amount for the period April 14, 1975, through November 15, 1976, because as a picket he scattered roofing nails in the driveway of the Respondent's plant in an effort to prevent company officials and nonstriking employees from gaining access to plant premises. Additionally, the Respondent alleges that employment opportunities were plentiful in the Nashville area during the entire period from April 14, 1975, through October 15, 1976, and that during the second or third quarters of 1975, and the first and second quarters of 1976, Osborne failed to use rea- sonable diligence in seeking interim employment and therefore incurred a willful loss of employment. Osborne testified that he went out on strike and after the strike was terminated he went to the plant and made a request for reinstatement on April 8, 1975. He was denied reinstatement for having engaged in strike mis- conduct. Rodney Ford, a supervisor of Respondent, testified that I night shortly after the strike started he saw Os- borne standing across the street from the entrance to the plant office in the gateway parking lot with three or four other strikers. He testified that although it was night the place was lighted and the only employee that he recog- nized was Osborne. He has testified that he saw Osborne throwing roofing nails overhand like a baseball across the street towards the plant. He testified that he was standing inside the gate and that he picked up the nails that were in the driveway. Robert McCarter also testi- fied that he had also seen Osborne throwing roofing nails on one occasion. As I have discredited McCarter in other regards, I give no credence to his testimony on this point. Osborne denied ever having thrown any nails around the plant premises. Ford further testified that I day during the strike he saw Osborne following him in a car when he, Ford, was leaving the plant. I carefully observed both Ford and Osborne as they were testifying. The record reflects that Ford was ap- proximately 53 feet from where Osborne was allegedly scattering nails. Ford testified that he recognized only Osborne. I find it hard to believe that at this distance, and at night, that Ford could have recognized any em- ployee. As indicated, I observed both witnesses and it is my conclusion that Osborne testified straightforward and that his testimony had a ring of truth whereas that of Ford did not. Ford, who at the time of this incident was a demoted foreman, has since been placed back in the category of a foreman. Thus, I accept the testimony of Osborne over that of Ford and conclude that Osborne was not guilty of scattering nails on the company prem- ises. In any event, although the Board has held that the scattering of nails in the entrance of the employer's plant is misconduct sufficient to sustain denial of reinstatement to a striker, it has also held that, where the nails were removed and thus no damage caused by them, the em- ployer's unfair labor practices outweighed this type of conduct. Thus, in weighing Respondent's unfair labor practices against the roofing nails which were allegedly thrown, in the absence of any evidence, the scales should be tilted in favor of the striker. See Coronet Casuals, Inc., 207 NLRB 304 (1973). Additionally, the mere following of a nonstriker's vehicle with no attempt to run the non- striker off the road is not misconduct which would justi- fy an employer's denial of reinstatement. Therefore it is my conclusion that Respondent has failed to carry its burden of proving that Osborne was engaged in picket line misconduct sufficient to deny him reinstatement. Respondent also contends that Osborne did not use reasonable diligence in seeking interim employment and therefore he should be denied any backpay. The backpay specification reflects and Osborne testified that he was unemployed during the first quarter of 1976 due to his having been laid off at this former position. Osborne tes- tified that when he was laid off in December, 1975, he went to Murfreesboro, Tennessee, and put in an applica- tion at Yellow Freight. He also went to the unemploy- ment office there. He also went to Samsonite where they make bread sacks. Although Osborne did not apply for employment at various places in Nashville, Tennessee, this is no indication that he did not use due diligence in seeking interim employment. Under these circumstances, it is my conclusion that Osborne used due diligence in seeking interim employment and that Respondent has failed to establish its burden of mitigating liability in this regard. The backpay specification contains certain travel ex- penses incurred by Osborne in travel to work in Colum- bia, Tennessee, and Tullahoma, Tennessee, during August, September, October, November, and December, 1975, as well as April and May 1976. Osborne credibly testified that he incurred these expenses and Respondent offered no evidence to contradict these figures. There- fore it is my conclusion that these interim expenses are chargeable to Respondent. Therefore it is my conclusion that Osborne is entitled to backpay in the amount of $3,541 as set forth in the backpay specification. 27. Clifton L. Overton His backpay period begins on April 14, 1975, and ends on April 5, 1976, the date he was offered reinstatement. Overton's gross backpay, less admitted interim earnings, gives him a net backpay of $214. In its answer Respondent denies that Overton is enti- tled to any backpay or reinstatement because he termi- nated his employment on July 31, 1974, and therefore was not a striker entitled to reinstatement on April 14, 1975. There is nothing in this record to support Respon- dent's contention that Clifton L. Overton terminated his employment with Respondent on July 31, 1974. This record clearly reflects and Respondent's own Exhibit 6 indicates that Clifton L. Overton applied for reinstate- ment on April 8, 1975, indicating his desire to return to work but at that time he did not have sufficient seniority according to the Company's record and therefore he was being considered as laid off. The backpay specification recognized that Overton would have been placed on a preferential hiring list from April 14, 1975, until he would have been recalled on February 1976. According- ly no backpay is claimed for that period. However, as MATLOCK TRUCK BODY & TRAILER CORP. 481 Respondent failed to recall Overton until April 5, 1976, backpay is claimed for that period. Therefore it is my conclusion that Overton is entitled to backpay in the amount of $214 as set forth in the backpay specification. 28. John Dempsey Perry Perry's backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered rein- statement. Perry's gross backpay and expenses less ad- mitted interim earnings leave him a net backpay of $10,563. Respondent alleges Perry forfeited reinstatement or backpay for the period April 14, 1975, through October 6, 1976, because on July 15, 1974, Perry subjected a company official to verbal abuse and assaulted him by driving a motorcycle at him with the purpose of attempt- ing to strike the company official with the motorcycle as he was attempting to unlock a truck. Additionally, Re- spondent contends that Perry failed to exercise reason- able diligence in obtaining interim employment for the period from April 14, 1975, to October 6, 1976, although employment opportunities were plentiful in the Nash- ville, Tennessee, area. Therefore Perry is guilty of a will- ful loss of earnings for the backpay period. Also, Re- spondent denies that Perry is entitled to any interim ex- penses as set forth in the backpay specification. Perry testified that he went on strike in July 1974 and picketed fulltime. On April 8, 1975, the day after the Union made the unconditional offer to return to work on behalf of all the striking employees, Perry went to the plant to sign up for work. After he signed up the Com- pany told him that they would get in touch with him. Perry's name appeared on Respondent's Exhibit 6, the April 11, 1975, letter, List B, which sets forth those em- ployees who would not be returned to work because of misconduct. Perry started searching for work after he did not hear from Respondent. Perry searched for work at Nashville Bridge Company, where he was told he was not qualified as a welder; Texas Boot and Lux Time, both in Lebanon, Tennessee; Fruehauf Company, about two or three times; Service Merchandise; Steiner-Liff; Waco; United Parcel Service; Dorsey Trailers; Aladdin Industries; Davis Cabinet Company; the Hartsville Nu- clear Plant; and Pep Industries, where he was told they were hiring mostly women. Additionally he applied with the following companies: Peterbilt, where he was told that they already had 2,000 to 3,000 applications; Kroger Warehouse; Northern Telecom; Trailer Service and Rental; Ford Glass Plant; Allvan Corporation; and AVCO. Perry obtained work with the Firestone Plant in LaVergne, Tennessee, and Downey Finishing Corpora- tion during the backpay period. As indicated, Respon- dent contends that Perry is guilty of a willful loss of earnings thereby disentitling him from any backpay. Ad- mittedly, his interim earnings during the backpay period were low but the inference of willful loss of earnings is not warranted. His testimony regarding his extensive search for interim employment was not contradicted. Perry testified credibly about his efforts to secure interim employment and his lack of success in obtaining employ- ment does not impeach his testimony nor relieve Respon- dent of its burden of proving facts to mitigate liability. Valley Mold Company. Inc., 215 NLRB 211. Respondent did not present any evidence showing Perry was offered a job and rejected it. Therefore I conclude that Respon- dent has not carried its burden of proving facts to estab- lish willful loss of earnings on the part of Perry to negate or mitigate its liability. George Parrish, executive vice president of Matlock, testified that shortly after the strike started he was look- ing out on Visco Drive, the street in front of the plant, from the lobby of the main building on the ground floor and he saw Johnny Perry riding on a motorcycle travel- ing west down the street. He states that a customer of Respondent was walking across the street towards the Matlock office when Perry attempted to run into him with his motorcycle. Parrish testified that Perry was sub- sequently stopped by the police about 500 or 600 yards down the street and was driven away in the police car. On cross-examination Parrish admitted that the only time he saw Perry was when Perry was riding on the motor- cycle at 20 to 30 miles an hour and he was 130 to 140 feet away. Although Parrish testified that he saw Perry's face from the side, he did not remember whether or not there was a faceplate on the helmet. Roy Matlock also testified to this incident. He stated that he was looking out on Visco Drive from the conference room on the second floor of the plant when he saw Perry swerve his motorcycle and attempt to run over a customer who was getting out of a tractor parked across the street from the plant. Matlock testified that he knew this was Johnny Perry who was on the motorcycle; however, he did not remember whether or not Perry was wearing a crash helmet. Perry denied any involvement in this incident. Tommy Brown, also a striking employee, testified that in June 9, 1974, shortly after the strike started he was riding his motorcyle, with his helmet on, down Visco Drive when he leaned on the motorcycle too hard, caus- ing it to swerve, and he was stopped by a policeman who cited him for reckless driving. According to Brown this citation was later taken care of by someone from the Union. In its answer Respondent alleged that Perry assaulted a company official by driving a motorcycle at the com- pany official with the purpose of attempting to strike the company official with the motorcycle as the company official was attempting to unlock a truck. There is no testimony at all in the record regarding this incident as set forth in the answer. Therefore I shall strike this alle- gation as a defense. In view of the testimony of Tommy Brown, who testi- fied that it was he who was riding the motorcycle on that particular day and that it was he who was given a ticket by a policeman, it is my conclusion that Respon- dent's witnesses, Parrish and Matlock, are mistaken in their identification of John Perry, or that the story was deliberately concocted by Parrish and Matlock in an at- tempt to come somewhat close to the allegations as set forth in the answer. In any event I have credited Tommy Brown and John Perry over that of Parrish and Matlock and it is my conclusion that Respondent has failed in its burden of establishing that John D. Perry 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was guilty of misconduct causing him to forfeit his right of reinstatement and entitlement to backpay. Therefore it is my conclusion that John Dempsey Perry is entitled to net backpay in the amount of $10,563 as set forth in the backpay specification. 29. Vincent Earl Petty Petty's backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered rein- statement. Petty's gross backpay and expenses, less ad- mitted interim earnings, leave Petty a net backpay in the amount of $105. In its answer Respondent states that Vincent Earl Petty forfeited any rights to reinstatement or any back- pay in any amount for the period April 14, 1975, through October 6, 1976, because on or about August 7, 1974, Petty cursed Respondent's plant superintendent and called him vile and filthy names. Additionally, Respon- dent contends that, during the second quarter of 1976, Vincent Earl Petty was guilty of excessive absenteeism at his interim employer which reduced his interim earn- ings accordingly, thereby incurring a willful loss of earn- ings during the second quarter of 1976 which disqualified him for backpay. Also, Respondent denies Petty's interim expenses as set forth in the backpay specification. Petty worked in the service department, not covered by the certification, and on July 8, 1974, he joined the strike as a sympathy striker. He walked the picket line every day throughout the entire strike. After the strike was terminated on April 7, 1975, he went with the group of strikers and the union representatives to the plant and offered to return to work. Petty was denied reinstate- ment because of the alleged misconduct. In August 1975 Petty obtained employment with Dixie Wire Company, and he was working there at the time of the hearing. The backpay specification seeks a total net backpay for Petty in the amount of $105. This was during the second quarter in 1976. Included in this amount are travel ex- penses, as well as additional hospitalization and insurance premium expenses. Petty testified that he incurred these additional travel expenses and increased hospitalization and insurance premiums as set forth in the backpay specification. As Respondent offered no evidence to refute Petty's testimony it is my conclusion that such ex- penses are legitimate items includable in any backpay award. Respondent alleged in its answer that Petty was guilty of excessive absenteeism at his interim employer and therefore incurred a willful loss of earnings during the second quarter of 1976. Respondent produced no proof or testimony to support this contention and I therefore reject it as a defense to the backpay award. Robert Burton, the plant superintendent, testified that on one or two occasions Petty used profanity directed toward Burton when Burton was in the office parking lot. James Rodney Ford, a supervisor, testified that he witnessed Petty calling Burton unbecoming names on certain occasions. Petty denied this and I credit his denial. Assuming that Petty did use profanity and called Burton vile and filthy names, the Board has held that in the context of an intense labor dispute and unfair labor practice strike, such as here, the mere use of profanity or harsh epithet does not constitute sufficient misconduct on the part of the striking employee of a nature justifying discharge. See Associated Grocers of New England, Inc., 227 NLRB 1200 (1977), and W. C. McQuaide, Inc., 220 NLRB 593 (1978). Therefore, it is my conclusion that Respondent has failed in its burden of establishing that Petty was engaged in strike misconduct sufficient to war- rant a denial of reinstatement. Accordingly, I conclude that Vincent Earl Petty is entitled to net backpay in the amount of $105 as set forth in the backpay specification. 30. George D. Rambo Rambo's backpay period begins on April 15, 1975, and ends on October 6, 1976, the date he was offered rein- statement. Rambo's gross net backpay, less admitted in- terim earnings, leaves him a net backpay of $4,038. In its answer Respondent denies that Rambo is entitled to any backpay for any period from April 14, 1975, through October 6, 1976, because he did not apply to return to work following the end of the strike on April 7, 1975. Additionally, Respondent alleges that during the second, third, and fourth quarters of 1975, and the first and second quarter of 1976, Rambo failed to exercise reasonable diligence in attempting to gain interim em- ployment in the greater Nashville area, thereby incurring a willful loss of earnings which precludes him from eligi- bility for backpay in any amount. Rambo testified that he went on strike on July 8, 1974, and picketed actively for 3 to 4 weeks. He obtained part- time employment with Metal Craft Machine as a deliver- yman on July 31, 1974, and worked there until March 5, 1975, when he was laid off. He testified that he applied for jobs all over the Nashville area and checked with all the machine shops in that area and looked for jobs at the following places: Dixie Wire, Skyline, E. L. Bruce Com- pany, State Stove, Mid-South Tool & Die, Allvan Cor- poration, and Davis Cabinet Company. Additionally, he checked with the Tennessee Department of Employment Security in Madison, Tennessee, once every 2 weeks. Fi- nally, on January 10, 1976, he was hired by E. L. Bruce Company, one of the many places he went seeking work, and worked there until September 11, 1976, when he ob- tained better employment with Bennett Tool & Die. Rambo's testimony regarding his efforts to search for interim employment was uncontradicted. It is true that Rambo was unemployed for quite an extended period of time during which he drew unemployment and searched for work. Respondent seems to be arguing that, since Rambo had no earnings for such an extended period, he could not have been looking for work. Accepting such an assumption on the part of Respondent would require a shifting of the burden of proof to the General Counsel to establish that the backpay claimant used reasonable ef- forts to find interim employment. In the instant case the Regional Director did find that Rambo was not making sufficient efforts to obtain interim employment during the fourth quarter of 1975 and therefore tolled the back- pay due him accordingly. As to the rest of the backpay period Rambo testified credibly that he did seek interim employment and this was not contradicted in any way. His lack of success in obtaining employment does not im- - -------- - ___ MATLOCK TRUCK BODY & TRAILER CORP. 483 peach his testimony. It is my conclusion that as Respon- dent did not present any evidence showing Rambo was actually offered a job and rejected it Respondent has not carried its burden of proving facts to establish willful loss of earnings to negate or mitigate its liability. As I have concluded that the Union made a valid offer to return all strikers to work on April 7, 1975, I reject Respondent's defense that Rambo did not apply to return to work following the strike. Following the offer by the Union on April 7, 1975, Respondent never contacted Rambo until October 6, 1976, when Respondent offered Rambo reinstatement. Upon receipt of the offer of rein- statement he returned to Matlock and has worked there since that time. As Respondent did not offer reinstate- ment to Rambo until October 6, 1976, notwithstanding the Union's valid offer to return all striking employees to work, including Rambo, on April 7, 1975, it is my con- clusion that Respondent is liable to Rambo for backpay in the amount of $4,038 as set forth in the backpay speci- fication. 31. Charles G. Rich His backpay period begins on April 14, 1975, and ends on August 23, 1976, the date he was offered reinstate- ment. Rich's gross backpay, less admitted interim earn- ings, leaves him a net backpay of $521. In its answer Respondent alleges that Charles G. Rich is not entitled to reinstatement because he did not uncon- ditionally apply to return to work within a reasonable time following the end of the strike on April 7, 1975, and that he did not unconditionally apply for work until after the April 16, 1975, deadline set forth in Respondent's April 11, 1975, letter. As I have concluded that the Union made an unconditional offer to return to work for all striking employees on April 7, 1975, I will disregard this defense. Rich testified that from April 6 to April 8, 1975, he went to Jamestown, Tennessee, to visit his mother-in-law who was seriously ill. On his return he was informed by a fellow employee that the strike had ended and that he was to return to work. At this point Rich went to the plant the next morning and talked with Dick Tucker in the personnel office who advised him he was too late for the deadline to return to work. The im- position of the 4 p.m. Friday, April 11, 1975, deadline by Respondent on the striking employees to make individual applications to return to work, as I have concluded, amounts to an illegal condition relieving the strikers from any obligation to make applications to return to work in order to perfect their right to reinstatement. The Union made an unconditional offer to return all strikers to work on April 7, 1975. Once that offer to return to work is made the burden shifts to the Employer to rein- state the strikers. Respondent made no effort whatsoever to contact Rich to inform him personally of when he was to return to work. Respondent made no effort what- soever to reinstate the strikers other than its letter to the Union of April 11, 1975. And as I indicated earlier this contained an illegal condition. Therefore it is my conclu- sion that Respondent has failed in its effort to establish that Rich is not entitled to backpay in the amount set forth in the backpay specification. Thus I conclude that Rich is entitled to backpay in the amount of $521 as set forth in the backpay specification. 32. Randall D. Rye His backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered reinstate- ment. Rye's gross backpay and expenses, less admitted interim earnings, leave him a net backpay of $762. In its answer Respondent denies that Rye is entitled to any backpay in any amount for any period of time from April 14, 1975, through October 6, 1976, because he did not unconditionally apply to return to work following the end of the strike on April 7, 1975. As I have con- cluded that the Union made an unconditional offer to return all striking employees to work on April 7, 1975, I disregard this defense of Respondent. Additionally, Respondent denies the interim expenses as set forth in the backpay specification. Rye did not testify in this proceeding and, other than the allegation contained in the backpay specification, there is nothing to establish the interim expenses of Rye during the period set forth in the backpay specification. Backpay is claimed for Rye in the first quarter of 1976 and in the second quarter of 1976. As no evidence was offered by the General Counsel to prove interim ex- penses I will deny the interim expenses for the first and second quarters of 1976. Therefore as the net backpay claimed in the first quarter of 1976 was $607, I will deduct the $159.12 claimed as additional hospital expense and, as the net backpay claimed in the second quarter of 1976 was $155, I will deduct therefrom the $159.12 which leaves no backpay for that period. Therefore it is my conclusion that Rye is entitled to net backpay in the amount of $447.88. 33. Nathan E. Singer Singer's backpay period begins on April 14, 1975, and ends on November 15, 1976, the date he was offered re- instatement. Singer's gross backpay and expenses, less ad- mitted interim earnings, leave him a net backpay of $575. In its answer Respondent contends that Singer dis- qualified himself for reinstatement and forfeited any rights to backpay for any amount for the period of April 14, 1975, through November 15, 1976, because on or about July 11 and 12, 1974, Singer, while picketing Re- spondent's plant, threw rocks at Respondent's auto- mobiles and trailers moving on the Respondent's prem- ises and at Respondent's trailers parked on the plant parking lot. Additionally, Respondent contends that Singer failed to use reasonable diligence in maintaining his employment at Sherling Tire and Rubber Company, Nashville, Tennessee, and that he voluntarily terminated his employment with that interim employer and there- fore incurred a willful loss of earnings precluding his en- titlement to backpay in any amount. Also, Respondent denies that Singer is entitled to the interim expenses as set forth in the backpay specification. Singer was not called as a witness by either the Gener- al Counsel or Respondent. As Respondent offered no evidence that Singer was guilty of misconduct as alleged in the answer, it is my conclusion that Respondent has 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed to establish that Singer was engaged in strike mis- conduct sufficient to warrant Respondent's denial of re- instatement to Singer. Additionally, it is my conclusion that Respondent has failed in its burden to establish that Singer failed to use reasonable diligence in maintaining employment and thereby did not incur a willful loss of earnings precluding his entitlement to backpay. As Singer did not testify, it is my conclusion that the General Counsel failed to prove the $4 interim expenses as set forth in the backpay specification for the first quar- ter of 1976. Therefore I shall subtract $4 interim ex- penses from the $17 net backpay claimed in that quarter, leaving a net backpay for that quarter of $13. Accordingly it is my conclusion that Singer is entitled to net backpay in the amount of $571. 34. Malcom D. Stack Stack's backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered rein- statement. Stack's gross backpay and expenses, less ad- mitted interim earnings, leave him a total net backpay of $2,631. In its answer Respondent denies that Stack is entitled to any backpay or reinstatement because he did not apply unconditionally to return to work after the end of the strike on April 7, 1975, within a reasonable time. Re- spondent states that Stack did not contact Respondent until on or about May 22, 1977, 6 weeks following the Union's unconditional offer to return to work and signify his interest in returning to employment at Respondent. Additionally, Respondent alleges that Stack failed to use reasonable diligence in endeavoring to obtain interim em- ployment during the period in question and thereby in- curred a willful loss of earnings disqualifying him for any backpay. Also, Respondent denies that Stack had the in- terim expenses as set forth in the backpay specification. Stack testified that he went on strike in July 1974 and participated in the strike by walking the picket line. In January 1975 he obtained employment with Smotherman AAA Tree Service in Smyrna, Tennessee, where he re- sided and continued working until that company went out of business. In the middle of March 1975, Stack start- ed working for Allvan Corporation, Smyrna, Tennessee, making about the same wage as he did at Matlock. He was laid off from Allvan on June 16, 1975. In April 1975 Stack testified he was notified that the strike had ended. He called Tommy Jackson, the union representative, and asked him what he should do. Jack- son told him to return to work at Matlock. Stack testi- fied that he took leave of absence from Allvan, and went to Matlock the next day, which was a Friday. He said that when he went to Matlock there were 20 or 30 em- ployees there signing up to return to work. He talked to Dick Tucker, the personnel manager, in Tucker's office and he gave Tucker his name and told him he was there to get his job back. Tucker stated to Stack that "I don't even have a record on you of ever working here." Stack testified that he was not asked to fill out any forms nor was he told that he was too late to apply for reinstate- ment. He had no further contact with Matlock until Oc- tober 6, 1976, when he received a letter offering him re- instatement. Stack testified that he never contacted Mat- lock again because Tucker had told him "don't call us, we'll call you." Respondent produced no evidence to rebut the testimony of Stack. It is my conclusion that Respondent's allegation in its answer that Stack's application for return to work was untimely is without merit. Stack testified that he went to the Company personally within a few days after termina- tion of the strike to sign up for work. There were 30 to 40 other striking employees there. This apparently was around April 8, 1975. He was not asked to sign any doc- uments nor was he told that he was too late. He was only told that the Company did not have any record of him ever having worked there. In addition, the Union made an unconditional offer to return to work on behalf of all the striking employees on April 7, 1975. Once that offer to return to work is made the burden shifts to the employer to reinstate the strikers. This Respondent did not do. Therefore it is my conclusion that Respondent has failed in its burden to establish that Stack did not apply unconditionally to return to work after the end of the strike on April 1975 within a reasonable period of time. Stack's testimony reflects that he did in fact make a diligent effort to obtain interim employment. In fact, as set forth in the backpay specification, it appears that Stack was in fact employed for the most part of the entire backpay period. As Respondent offers no evidence to support its allegations that Stack failed to use reason- able diligence to search for interim employment I shall reject this defense of Respondent. Although Stack testified, he did not testify as to the in- terim expenses as claimed in the backpay specification. As Respondent specifically denied these interim expenses and there was no evidence offered to support the interim expenses I shall deduct $3 interim expenses from the third quarter of 1975 and $3 interim expenses from the net backpay for the fourth quarter of 1975. Therefore it is my conclusion that Stack is entitled to net backpay in the amount of $2,625. 35. Gary A. Summey His backpay period begins on April 14, 1975, and ends on April 6, 1976, the date he was offered reinstatement. Summey's gross backpay and expenses, less admitted in- terim earnings, leave him a net backpay in the amount of $3,719. In its answer Respondent denies that Summey is enti- tled to any backpay during the backpay period because he did not unconditionally apply to return to work fol- lowing the end of the strike on April 7, 1975, and that he was employed on or about August 1, 1974, by the Met- ropolitan Government of Nashville, and remained there for the entire period in question which explains not only why Summey failed to unconditionally apply to return to work after April 7, 1975, but also disqualifies his entitle- ment for any backpay during any period of time from April 14, 1975, through October 6, 1976. Additionally, Respondent alleges that Summey, although accepting employment with the Metropolitan Government of Nashville, did not exercise reasonable diligence securing employment commensurate with his skills as a draftsman and thereby failed to use reasonable diligence and in- curred a willful loss of earnings. Also, Respondent denies MATLOCK TRUCK BODY & TRAILER CORP. 485 the interim expenses as set forth in the backpay specifica- tion. Summey, a receiving clerk at Matlock prior to the strike, testified that he went on strike on July 8, 1974, and stayed out the entire strike. He walked picket about twice a week. In August 1974 he obtained employment with the Metropolitan Government of Nashville as a drafter in the water and sewer department to supplement his income which was $40-a-week strike pay. He testified that his salary at Metropolitan was approximately $511 a month, substantially lower than what he was making at Matlock which was aproximately $800 a month. He testi- fied that he attended a meeting at the union hall one Sunday afternoon and signed his name on a list of strik- ers desiring to end the strike and return to work. He tes- tified he has no knowledge whether such list was ever presented to Respondent. After the strike ended he and a group of striking employees went back to the Company, accompanied by Union Representative Tommy Jackson. This was apparently on April 7, 1975, the date of which an unconditional offer to return to work was made by the Union on behalf of all the striking employees. Summey testified that he did not talk to anyone at the Company on that day. He stated that after that time he did not receive any communication for an offer of rein- statement from the Company until October 6, 1976, when Respondent offered him reinstatement. After re- ceiving this letter he went to the Company and talked with Gene Stone, the personnel manager, and found that his previous job had been abolished and that he would have to be a tow motor operator if he decided to return to work at Matlock. As he had no interest in driving a tow motor he decided to decline this offer. As I have concluded that the Union made an uncondi- tional offer to return all striking employees to work on April 7, 1975, I reject Respondent's contention that Summey did not make an unconditional offer to return to work. In fact, the record reflects that he did personal- ly appear at the premises of Matlock in the company of the business agent and other striking employees. Respon- dent argues that because Summey was fully employed during the entire backpay period he is not entitled to any backpay. I assume from this argument the Respondent is arguing that Summey had no desire to return to Matlock and therefore he is not entitled to any backpay. There is nothing in this record to support that conclusion. The fact that an employee accepts interim employment does not mean that he does not want reinstatement. The facts in this case indicate clearly to the contrary. As soon as Summey was offered reinstatement on October 6, 1976, he made an application to Matlock and when he was in- formed that his job was no longer there then he decided not to stay. There is nothing to indicate that he would not have accepted employment from Matlock had he been offered reinstatement prior to this time. In fact the record reflects had he been offered a job similar to that which he had as a receiving clerk he would have accept- ed it. This is no basis for denying him backpay to which he is otherwise entitled. Summey's efforts to seek interim employment to mitigate Respondent's liability certainly should not be held as evidence of his desire not to accept employment at Matlock. When the strike ended he ac- companied the union representative to the Company to unconditionally offer to return to work. It is well estab- lished that once an unconditional offer to return to work is made by an employee or union representative on behalf of an employee the burden is on Respondent to accomplish reinstatement. Further, Respondent cannot condition reinstatement upon a personal request. Absent some showing on the part of Respondent that Summey would not have accepted employment at Matlock had he been offered reinstatement to his former job or equiv- alent position, it is my conclusion that he is entitled to backpay as set forth in the backpay specification. In its answer Respondent contends that Summey failed to exercise reasonable diligence in securing employment commensurate with his skills as a draftsman and there- fore incurred a willful loss of earnings. The Board has held that a discharged employee is not obligated to seek the same type of interim employment as that from which he was discharged in order to show his entitlement to backpay. Additionally, an employee who accepts appro- priate interim employment even at a lower rate of pay is not required to continue to search for better employ- ment. Therefore it is my conclusion that Summey did ex- ercise reasonable diligence to secure interim employment and I shall reject Respondent's defense in this regard. Summey also testified as to the additional travel and insurance expense as set forth in the backpay specifica- tion. These expenses are legitimate items includable in backpay, and had Respondent reinstated Summey as it was required to do these items would not have been in- curred by Summey. Therefore it is my conclusion that Gary A. Summey is entitled to net backpay $3,719 as set forth in the backpay specification. 36. Larry Charles Summey His backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered reinstate- ment. His gross backpay and interim expenses, less ad- mitted interim earnings, leave him a net backpay of $838. In its answer Respondent denies that Larry Summey is entitled to any backpay for any period from April 14, 1975, through October 6, 1976, because he accepted em- ployment with the Metropolitan Government of Nash- ville and was employed there at the time the strike ended on April 7, 1975, and he did not make an unconditional offer to return to work after April 7, 1975, when the strike ended. As I have concluded that the Union made an unconditional offer to return to work all striking em- ployees on April 7, 1975, I reject this contention of Re- spondent. Additionally, Respondent contends that Summey is not entitled to any backpay because he failed to exercise reasonable diligence in finding interim em- ployment comparable to that for which he was qualified during the second, third, and fourth quarters of 1976, and thereby incurred a willful loss of earnings. Also, Re- spondent denies the interim expenses as set forth in the backpay specification. Larry Summey was a helper in the fabric department at Matlock prior to the strike. He testified that he went on strike on July 8, 1974, and walked picket at night from 8 p.m. to 12 midnight practically every night until the strike was terminated. Shortly after the strike began 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he started searching for interim employment to supple- ment his benefits of $40 a week. He obtained temporary employment at Young Roofing Company for I week prior to his employment at the Metropolitan Govern- ment in December 1974. He continued working for the Metropolitan Government of Nashville until the compa- ny offered him reinstatement in October 1976. He testi- fied that his pay at the Metropolitan Government was less than what he was making at Matlock. Upon receipt of the letter offering reinstatement he went to the Com- pany on October 13 or 14, 1976, where he talked with Gene Stone, the personnel manager. He accepted rein- statement from Matlock and turned in his resignation at the Metropolitan Government and started working for Matlock the following day. He has been with Matlock continuously since that time. In its answer Respondent contends Summey failed to exercise reasonable diligence in search for interim em- ployment comparable to that for which he was qualified during his second, third, and fourth quarters of 1976, and thereby incurred a willful loss of earnings disqualifying him from backpay. The record clearly reflects that Summey was employed by the Metropolitan Govern- ment from December 1974, until October 1976, at which time he was offered reinstatement. The fact that he ob- tained interim employment is proof of his efforts and the fact that he worked is the proof of his desire. As Summey accepted appropriate interim employment even at a lower rate of pay he is not required to continue to search for better employment. Therefore it is my conclu- sion that Respondent has failed in its burden of proof to establish that Summey failed to exercise reasonable dili- gence in searching for interim employment. Summey testified to the additional travel and insurance expenses as set forth in the backpay specification. As such expenses are legitimate items includable in backpay, it is my conclusion that Summey is entitled to net back- pay in the amount of $838 as set forth in the backpay specification. 37. Andrew T. Tant His backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered reinstate- ment. Tant's gross backpay and expenses, less admitted interim earnings, leave him a net backpay of $5,249. In its answer Respondent denies that Tant is entitled to any backpay because he did not unconditionally apply to return to work within a reasonable time after April 7, 1975, when the Union offered unconditionally to return to work. The answer states that Tant did not contact the Company until April 22, 1975, 2 full weeks following the end of the strike and thereby disqualified himself for im- mediate reinstatement as an unfair labor practice striker. Additionally, Respondent alleges that in the second, third, and fourth quarters of 1975, and in the first and second quarters of 1976, Andrew Tant did not exercise reasonable diligence in obtaining interim employment in the Nashville area and accordingly incurred a willful loss of earnings disqualifying him from backpay in any amount. Also, Respondent denies the interim expenses as set forth in the backpay specification. 1 8 Tant was a welder at Matlock prior to the strike and he went on strike in 1974 and walked the picket line until the strike was terminated. Sometime around April 7, 1975, he re- ceived a phone call from Bill Guynn, who advised him to return to work. Tant testified that the next day he went to the plant and talked with Personnel Manager Tucker, who told Tant he had no work for him. Tant was unemployed during the first three quarters of the backpay period. However, in January 1976 he obtained employment at B. F. W. Contractors, Inc. To establish that he used due diligence in looking for work during this period, he testified that he went to the following places searching for employment: Avco, The Nashville Bridge Company, McCann Steel, and the Fruehauf Com- pany. Respondent offered no evidence showing that Tant did not use due diligence to search for interim employ- ment or that Tant was offered a job and had rejected it. While Tant's interim earnings during this backpay period were low, the inference of willful loss of earnings is not warranted. Tant testified credibly about his effort to secure interim employment and this testimony was not contradicted. His lack of success in obtaining employ- ment did not impeach his testimony nor relieve Respon- dent of its burden of proving facts to negate or mitigate its liability. Under these circumstances it is my conclusion that Re- spondent has failed to carry its burden of proof to estab- lish willful loss of earnings on the part of Tant. As Tant credibly testified without contradiction to the additional hospitalization insurance premiums incurred at B. F. W. Contractors as set forth in the backpay specification, it is my conclusion that these are legitimate expenses includ- able in the backpay. Therefore I conclude that Tant is entitled to net back- pay in the amount of $5,249 as set forth in the backpay specification. 38. James Leon Walker Walker's backpay period begins on April 14, 1975, and ends on August 23, 1976, the date he was offered rein- statement. Walker's gross backpay, less admitted interim earnings, leave him a net backpay of $3,560. In its answer Respondent denies that Walker is entitled to any backpay because he did not unconditionally apply to return to work within a reasonable period of time after April 7, 1975, the date on which the Union notified the Company that all employees were unconditionally offering to return to work. Walker did not contact Re- spondent concerning his desire to return to work until April 19, 1975, 5 days after the April 14, 1975, reporting date and 3 days after the April 16, 1975, grace period. Additionally, Respondent alleges that Walker failed to make reasonable effort to obtain interim employment and incurred a willful loss of earnings as there were abundant opportunities in the Nashville area. 1s During the hearing there was some testimony involving Tant in the shotgun episode along with Jesse Keel at the WE-SAK-IT Market. How- ever, in its brief Respondent indicates that the Company was unaware of his involvement at the time the strike ended. Respondent admits that Tant was not denied reinstatement because of misconduct but simply be- cause of his April 22, 1975, return date to the plant. MATLOCK TRUCK BODY & TRAILER CORP. 487 Walker was a mechanic in the service department prior to the commencement of the strike, he was not a part of the bargaining unit. He was a sympathy striker. He participated in the strike until it was terminated. On April 6, 1975, Walker testified that he attended a union meeting and voted to end the strike. He was later noti- fied by his brother to go to the Company and sign up for work. According to Walker, although he was not clear on the date, he went to the plant the first day the men returned to work, and on that morning about 30 employ- ees were put back to work. He talked with Mr. Tucker, the personnel manager, who told him that he could not help him get his job back because his name was not on the list to return to work. As I have found that the Union made an unconditional offer to return all striking employees to work on April 7, 1975, the reinstatement was up to Respondent. Respondent's Exhibit 8 indicates that Walker reported to the plant on April 14, and ap- plied for reinstatement, but was not put to work. Thus, it is clear in this record that the Union made an uncondi- tional offer to return to work all strikers and Walker himself applied for reinstatement and was denied em- ployment. Therefore it is my conclusion that Respondent failed to reinstate Walker as set forth in the Board's De- cision and Order. In its answer Respondent also alleges that Walker in- curred a willful loss of earnings during the backpay period. From the backpay specification itself, it is appar- ent that Walker was employed for almost the entire backpay period. Although his interim earnings were lower than what he would have received at Matlock, he testified credibly that he got a job where he could find one. Once having obtained interim employment he is not required to continue search for better employment. Therefore it is my conclusion that Walker is entitled to net backpay in the amount of $3,560 as set forth in the backpay specification. 39. Roosevelt West West's backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered rein- statement. His gross backpay, less admitted interim earn- ings, leaves him a net backpay of $2,271. In its answer Respondent denies that West is entitled to reinstatement or backpay in any amount because, in July and August 1974, West, while a picket, spat at the automobile driven by a supervisor of Respondent and called the supervisor a vile and filthy name. Additional- ly, West in the company of other pickets shouted threats of physical harm to nonstriking employees as they at- tempted to leave the plant premises at the end of the work period. Additionally, Respondent alleges that West failed to exercise reasonable diligence in finding suitable employment in the greater Nashville area, although em- ployment opportunities were plentiful, thereby incurring a willful loss of earnings. West was not called as a witness. However, according to Respondent's Exhibit 6, West was denied reinstate- ment for misconduct during the strike. James Rodney Ford, a supervisor of Respondent at the time, testified that during the strike as he passed through the plant gate West and Orville Meeks spat on his car. Ford testified that he was not hit personally by the spittle but it landed on the right door of his car. The Board has consistently held that such conduct, although not condoned, is insuf- ficient to bar reinstatement. Coronet Casuals, Inc., supra. It is also well settled that spitting at a foreman in the car is insufficient misconduct to deny an employee reinstate- ment, especially in the case of an unfair labor practice strike. See H. N. Thayer Company, supra at 1210-11. Therefore it is my conclusion that Respondent has failed to establish that West was guilty of misconduct sufficient to warrant his denial of reinstatement. Respondent offered no evidence to establish that West failed to exercise reasonable diligence in finding suitable interim employment in Nashville. Therefore it is my con- clusion that West is entitled to net backpay in the amount of $2,271 as set forth in the backpay specifica- tion. 40. Charles E. White White's backpay period begins on April 14, 1975, and ends on August 25, 1976, the date he was offered rein- statement. White's gross backpay, less admitted interim earnings, leaves him a net backpay in the amount of $1,413. Charles White testified that he went on strike in 1974 and walked the picket throughout the entire strike. When the strike was over he was notified by Union Rep- resentative Jackson to report to work. He testified that the second day the strike was over he went to the plant and talked with Personnel Manager Dick Tucker who took his name, address, and phone number and told him that he would be contacted when he was to return to work, that he (Tucker) was going to call them back in groups. He testified that he did not fill out any papers at this time. When he did not hear from the Company he called Gene Stone on the phone and Stone informed him that he had not reported for work at the designated time and therefore he was no longer employed by Matlock. White testified that he was never informed by the Com- pany to report to work at any time prior to his telephone call to Gene Stone, and at the time Stone told him he was past the deadline. On August 25, 1976, Respondent offered White reinstatement by letter. According to White he did not accept reinstatement.' 9 In its answer Respondent denied any liability for back- pay to White because White did not unconditionally apply for work within a reasonable time following the end of the strike on April 7, 1975, when the Union noti- fied the Company that the strikers were unconditionally offering to immediately return to work. Charles White did not contact the Company until after 10:30 a.m. on April 16, 1975, therefore he waived any right he had to immediate reinstatement as an unfair labor practice strik- er. Additionally, Respondent contends that White failed to use reasonable diligence in attempting to find suitable interim employment during the third quarter of 1975 and 1' Although the backpay specification indicates that White's backpay period extends to October 6, 1976, it is clear that by the August 25, 1976, letter White was offered reinstatement and refused. Therefore his back- pay is tolled after this point. This makes no material difference because in the backpay specification no backpay is claimed for the second, third, and fourth quarter of 1976. I 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the first quarter of 1976 as employment opportunities were plentiful in the greater Nashville area. As I have found that the Union made an unconditional offer to return to work all the strikers on April 7, 1975, the burden is on Respondent to reinstate the strikers. Further, I have concluded that Respondent's deadline for personal applications for work amounted to an illegal condition for reinstatement which relieved the strikers who had not applied of any obligation to do so in order to perfect the right to reinstatement. Here White had made a personal application for reinstatement around April 8, 1975, and was informed at the time that he would be contacted. I credit White's denial that he was contacted by the Company, and therefore it is my con- clusion that Respondent failed to offer White reinstate- ment as directed in the Board's Decision and Order. Also, Respondent's contention that White did not use due diligence in seeking interim employment is clearly without merit. The backpay specification clearly indi- cates that White was employed virtually full time during the backpay period. Although White voluntarily terminated his employ- ment with Pressure Concrete Construction Company, he did this because the employment and the commuting was disruptive of his life. While employed by Pressure Con- crete Construction Company, White worked in Florence, Alabama, which is quite a difference from Nashville, Tennessee. In John S. Barnes Corporation, 205 NLRB 585 (1973), the Board held that where a day-shift discrimina- tee took night shift as interim employment, but left be- cause it was too disruptive to his life pattern, he should not be deprived of further claims for backpay. Therefore as commuting was disruptive of White's lifestyle he should likewise not be deprived of further claims for backpay. Under these circumstances, it is my conclusion that Respondent has failed to meet its burden to show a willful loss of earnings. Therefore I conclude that White is entitled to net backpay in the amount of $1,413 as set forth in the back- pay specification. 41. Fitzroy E. Willabus His backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered reinstate- ment. His gross backpay and expenses, less admitted in- terim earnings, leave him a net backpay of $596. In its answer Respondent denies that Willabus is enti- tled to any backpay for any period from April 14, 1975, through October 6, 1976, because he did not uncondi- tionally apply to return to work following the end of the strike on April 7, 1975, nor did he contact Respondent concerning employment thereafter. Additionally, Re- spondent denies that Willabus had incurred the interim expenses as set forth in the backpay specification. Willabus was not called as a witness. However, as I have concluded that the Union made an unconditional offer to return all striking employees to work on April 7, 1975, which necessarily included Willabus, it is my con- clusion that Respondent's defense must fall. Therefore I conclude that Willabus is entitled to net backpay in the amount of $596 as set forth in the back- pay specification. 42. Rodney K. Williams Williams' backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered re- instatement. His gross backpay less admitted interim earnings leaves him a net backpay in the amount of $596. In its answer Respondent denies that Williams is enti- tled to backpay for any period in any amount between April 14, 1975, and October 6, 1976, because Willabus did not apply unconditionally to return to work follow- ing the end of the strike on April 7, 1975, nor has he contacted Respondent about employment since then. Rodney K. Williams was not called as a witness in this proceeding. For the reasons set forth above under Fitz- roy E. Willabus, I conclude that Respondent's defense must fall. Therefore I conclude that Williams is entitled to net backpay of $596 as set forth in the backpay specification. 43. William A. Biffle Biffme's backpay period begins April 14, 1975, and ends on October 6, 1976, the date he was offered reinstate- ment. His gross backpay as set forth in the backpay specification is $4,711.20. Respondent denies that Biffle is entitled to backpay for any period between April 14, 1975, and October 6, 1976, because he did not unconditionally apply to return to work following the end of the strike on April 7, 1975. Additionally, Respondent alleges that Biffle did not make a reasonable effort to find interim employment and there- fore incurred a willful loss of earnings. 44. John F. Marino His backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered reinstate- ment. His gross backpay as set forth in the backpay specification is $8,451.67. In its answer Respondent denies that Marino is entitled to any backpay for any period in the amount between April 14, 1975, and October 6, 1976, because he did not unconditionally apply to return to work after the end the strike on April 7, 1975, nor did he contact Respondent concerning employment at any time between April 14, 1975, and October 6, 1976. Additionally, Respondent argues that Marino failed to exercise reasonable diligence in finding interim employment from the second quarter of 1975 through the first quarter of 1976, although em- ployment opportunities were plentiful in the greater Nashville area, thereby Marino incurred a willful loss of earnings. 45. Robert B. Sveinson His backpay period begins on April 14, 1975, and ends on October 6, 1976, the date he was offered reinstate- ment. His gross backpay as set forth in the backpay specification is $6,539.12. In its answer Respondent denies that Sveinson is enti- tled to any backpay during the period April 14, 1975, and October 6, 1976, because he did not unconditionally apply to return to work within a reasonable time at the end of the strike on April 7, 1975, and that he did not communicate to Respondent an unconditional offer to MATLOCK TRUCK BODY & TRAILER CORP. 489 return to work within a reasonable time following the end of the strike, and thereby waived any right which he might otherwise have had to immediate reinstatement and backpay as an unfair labor practice striker. Addition- ally, Respondent argues that Sveinson failed to exercise reasonable diligence in obtaining interim employment al- though employment opportunities were plentiful in the greater Nashville area, and thereby incurred a willful loss of earnings disqualifying him from backpay in any amount. These latter three claimants, Biffle, Marino, and Svein- son, did not testify in this proceeding. The General Counsel was unable to locate these employees during the compliance period following the Board's Decision and Order and the backpay specification contains nothing re- garding interim earnings or interim expenses. The back- pay specification contains only the gross backpay for each claimant. Respondent was unable to call these claimants as witnesses because neither it nor the General Counsel knew of their whereabouts. The General Counsel requests that the gross backpay allegedly due each claimant be paid by Respondent into escrow and further proceedings be directed for final ad- judication if they are found. Respondent argues that it would be unjust to require the Company to pay backpay to these claimants as the General Counsel concedes he does not know their whereabouts and there is no evi- dence that they have any interest in the proceeding. It is understandable that the General Counsel could not pro- duce them to testify if he did not know their where- abouts. It is also understandable that Respondent could not mitigate its liability if he was unable to call these em- ployees to question them concerning their interim earn- ings, interim expenses, and whether or not they in fact used due diligence to seek interim employment. There is no doubt that these employees were pickets according to the testimony of Business Agent Jackson. What happened to them shortly after the strike is un- known. As I have concluded that the Union did make an unconditional offer to return all striking employees to work on April 7, 1975, it is my conclusion that this offer covered the three claimants involved herein. As I understand the representations made by Respon- dent at the hearing it attempted to subpena these claim- ants but without an address it was unable to do so. It is also my understanding that the General Counsel does not know their whereabouts. Therefore it is clear to me that these three claimants were not aware of, or served with notice of, the hearing in this matter. Therefore it would be unjust to completely eliminate them from the backpay proceedings where they had no knowledge of the pro- ceedings. Likewise, as Respondent was unable to ques- tion these individuals concerning their interim earnings and activities during the backpay period, it should be af- forded an opportunity to do so, to show mitigation of its backpay liability towards them. Therefore it is my conclusion that Respondent should pay to the Regional Director for Region 26 the amounts of backpay for each of these three individuals as set forth in the backpay specification, to be placed in escrow for a period of 1 year. In the event these three backpay claim- ants are located by the General Counsel or by Respon- dent, suitable arrangements shall be accorded Respon- dent together with the General Counsel's representative to examine these claimants as to their interim earnings and activities during the backpay period. The Regional Director shall make a final determination on any amounts which shall be properly deductible from the backpay award of each of these claimants under the ex- isting Board precedent. When so determined the Region- al Director shall make such deductions and return the amounts deducted to Respondent. In the event that these claimants are not located within the I-year period, then all amounts of the backpay placed in escrow shall be re- turned to Respondent. See Avon Convalescent Center, 219 NLRB 1210 at 1214, and Brown and Root Inc., 132 NLRB 486. 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 20 The Respondent, Matlock Truck Body & Trailer Cor- poration, and its Agent, Roy L. Matlock, Nashville, Ten- nessee, its officers, agents, successors, and assigns, shall make whole the discriminatees involved herein and the backpay claimants by payment to them of the amounts of net backpay set forth opposite their names, plus interest thereon accrued to the date of payment less tax with- holdings required by Federal and state law. Roy D. Allen $331.00 Eli C. Baldwin 6,126.00 William R. Brown 777.00 Franklin C. Campbell 118.00 Robert B. Chitwood 1,683.00 Daniel C. Cook 1,173.00 Jimmy B. Cox 613.00 Wayne L. Donaldson 2,022.00 George A. Gregory 734.00 Larry D. Griffith 223.00 William H. Guynn 997.00 Michael P. Haynie 13.00 Roy A. Horstmeyer 1,686.00 Larry D. Hymer 1,285.00 Jesse C. Keel 2,534.00 Charles R. Kelly 256.00 George A. King 1,597.00 William W. Mayes 567.00 James H. McClanahan 2,234.00 Earl R. McClendon 608.00 David M.McMillian 343.00 Dwight Medley 2,152.00 Orville C. Meeks III 558.00 David L. Miller 1,256.00 William J.Newman 4,678.00 George D. Osborne 3,541.00 Clifford L. Overton 214.00 John Dempsey Perry 10,563.00 21 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 findings, 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 soA s 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vincent Earl Petty George D. Rambo Charles G. Rich Randall D. Rye Nathan E. Singer Malcom D. Stack Gary A. Summey Larry Summey Andrew T. Tant James Leon Walker Roosevelt West Charles E. White Fitzroy E. Willabus Rodney K. Williams William A. Biffle2 1 John F. Marino 2 ' Robert B. Sveinson 2 l 105.00 4,038.00 521.00 447.88 570.00 2,625.00 3,719.00 838.00 5,249.00 3,560.00 2,271.00 1,413.00 596.00 596.00 4,711.20 8,451.67 6,593.12 Federal and state law, awarded William A. Biffle, John F. Marino, and Robert B. Sveinson, and in the event these employees are located to make suitable arrange- ments to accord Respondent together with the General Counsel's representative an opportunity to examine these claimants as to their interim earnings and activities during the backpay period. In the event these employees' whereabouts are not located by the end of the I-year escrow period, the total amount of backpay placed in escrow shall be returned to Respondent. In the event these employees are located, the Regional Director shall make a final determination whether any interim earnings or other amounts are revealed which are properly de- ductible from the backpay award of each of these three claimants under existing Board precedent. When so de- termined the Regional Director shall make such deduc- tions and return the amounts deducted to Respondent. The Regional Director is further directed to report to the Board when these matters have been fully resolved in any event, no later than I year from the date of the Board's Supplemental Order herein, the status of these cases at such time. The Regional Director for Region 26 is hereby direct- ed to place in escrow the total amounts of backpay plus interest, without excluding tax withholdings required by 21 Interest need not be paid on these escrow amounts until a final adju- dication is made.