Armstrong Tire and Rubber Co.

ARMSTRONG TIRE AND- RUBBER COMPANY 35a MEMBER JENKINB, dissenting : - I would assert jurisdiction in this case. The Congress of the United States has adjourned without taking any action with respect to the legal "no-man's land" created by the decisions -of the Supreme Court of the United States on March-25,1967.1 Pending a.reappraisal by- the Board of its jurisdictional standards, I would assert jurisdiction in every case where such assertion would effectuate the policies of the Act. I also disagree that the operations of the Employer in this case- do not meet the present jurisdictional standards. The Employer is engaged in the business of selling life insurance policies. The Em- ployer has its home office at Chicago, Illinois, and is licensed to do. business in Indiana, Missouri, and Ohio. During the calendar year 1956 it sold policies outside its home State of Illinois from which it received premiums in the approximate amount of $222,000. I con- sider this sum revenue derived from goods sold or services to be per- formed outside the State. The Employer's operations, therefore, in my opinion meet the minimal amount of $50,000 in revenue derived from out-of-State sales.4 3 Gass v. Utah Labor Relations Board, 353 U. S. I; Amalgamated Meat Cutters etc. V. Fairlawn Meats, Inc., 353 U. S. 20; San Diego Building Trades Councal `v. Garmon, 353. U. S. 26 4 Jonesboro Grain Drying Cooperative, 110 NLRB 481. Armstrong Tire and Rubber Company, The Test Fleet Branch and United Rubber, Cork,, Linoleum & Plastic Workers of America, AFL-CIO. Case No. 39-CA-359. November 7, 1957 SUPPLEMENTAL DECISION AND ORDER On February 18, 1955, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding,' which order was thereafter enforced by the United States Court of Appeals for the Fifth Circuit by a decree entered on January 19, 1956. The decree provided, inter alia, that the Respondent reinstate E. A. Albrecht and make him whole for loss of pay suffered by reason of the Respondent's discrimination against him. Thereafter, pur- suant-to a back-pay specification and appropriate notice issued by the Regional Director for the Sixteenth Region, a hearing was held for the purpose of adducing evidence with respect to the amount of back pay to which the discriminates is entitled. On May 21, 1957, Trial Examiner Reeves R. Hilton issued his Supplemental Intermediate Report, finding that a purported settle- 1111 NLRB 708. 119 NLRB No. 47. 476321-58-vol. 119-24 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment did not bar the proceeding, and recommending that the Respond- ent be required and directed to pay discriminatee Albrecht $1,935.24 :as the amount of back pay required to make him whole. Thereafter, the Respondent and Albrecht filed exceptions to the Supplemental Intermediate Report and the Respondent filed a supporting brief. The Board has reviewed the rulings made at the hearing by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case including the Supplemental Intermediate Report, the exceptions, and the brief, and adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent con- sistent herewith. 1. The alleged settlement The Respondent contends that the specification was improperly issued because a firm agreement had been reached prior thereto by the Respondent and a Board agent settling the amount of back pay due. The Trial Examiner found no merit in this contention. The undisputed facts regarding negotiations as to the amount of back pay due are as follows : The Respondent reinstated Albrecht on January 3, 1956. On February 8, 1956, the Respondent furnished the Board's Regional Office a gross back-pay computation covering the period August 10, 1953,2 until January 3, 1956, amounting to $8,618. On April 10, 1956, a regional enforcement officer wrote the Respondent enclosing a state- ment of net back pay in the amount of $5,736 and stating that because there was some doubt as to whether Albrecht had made a reasonable effort to find additional employment during an 11-month period, the Regional Office was prepared to settle for one-half the total net back pay, or $2,868. Thereafter, the Respondent submitted to the Regional Office a counteroffer amounting to $352. On October 29, 1956, a Regional attorney wrote a letter to the Respondent in which he set forth a computation of back pay due Albrecht in the amount of :$336.28 which, the Board attorney stated, "we are willing to use for the purpose of reaching a compromise settlement of the disputed amount. I would appreciate a definite answer on this proposal as quickly as possible." On November 2, 1956, the Respondent's attorney advised the Region's chief law officer, by letter, that the proposal advanced was satisfactory to the Respondent and enclosed a check for $232.12, which check has never been returned to the Respondent, representing the sum suggested by the aforesaid letter of October 29, i. e., $336.28, less social security and withholding tax. The Respond- 2 Albrecht was on sick leave when he was discriminatorily discharged on July 22, 1953. The sick leave would have expired, and he would have returned to work, absent the discrimi- nation, on August 10, 1953. ARMSTRONG TIRE AND RUBBER COMPANY 355 ent's attorney stated in conclusion, "I am happy that we are finally concluding this long drawn out matter." On November 9, 1956, Albrecht appealed to the Board and the General Counsel to rescind the settlement and issue a specification in the amount of $6,069. On December 13, the General Counsel directed the Regional Director to issue the specification and a notice of hearing. On December 21, the Regional Director issued his specification, in the amount of $6,063 3 and, on January 25, 1957, issued the notice of hearing. The Respondent contends that the General Counsel lacked authority to set aside the settlement, inasmuch as the Board's Rules and Regula- tions do not provide for such action and the settlement was neither arbitrary nor capricious. The Act, however, clearly vests in the Board itself authority to effect compromise back-pay settlement agree- ments, as part of its power, granted in Section 10 (c), to order the payment of back pay as will effectuate the policies of the Act 4 In its Rules and Regulations,' the Board has authorized its Regional Directors to issue specifications and notices of hearing in cases where no agreement is reached with respondents as to the amount of back pay due under Board orders. The Board has not, however, by its rules either expressly or impliedly delegated to the Regional Direc- tors, or to any of its employees, authority, on its behalf, to conclude binding compromise settlement agreements on back pay without its prior approval. The Board has, rather, authorized its Regional Directors, through certain Regional employees, to negotiate agree- ments with respondents concerning settlement of the amount of back pay due, subject to final approval by the Board. As the settlement negotiated in this case was never approved by the Board, it was not an authorized final settlement, and is therefore not binding on the Board.' Moreover, under the circumstances of this case, and as there is no showing that the Respondent has relied to its prejudice on the 8 The specification was amended at the hearing to reflect $5,832 as the amount of back pay due, as stated in the Supplemental Intermediate Report. I Wallace Corporation v. N. L. R . B., 159 F. 2d 952 ( C. A. 4) ; Marine Engineers' Bene- ficial Association v. N. L. R. B., 202 F. 2d 546 (C. A. 3). 5 Sections 102.51a and 102 .51e of the Rules and Regulations provide, in part , as follows : Sec. 102.51a . Initiation of proceedings.-After the entry of a court decree enforc- ing an order of the Board directing the payment of back pay , if it appears to the Regional Director that there has arisen a controversy between the Board and a re- spondent concerning the amount of back pay due which cannot be resolved without a formal proceeding, the regional director shall issue and cause to be served upon the respondent a back-pay specification in the name of the Board. Sec. 102 . 51e. Notice of hearing . . .-If, after the filing of the answer , the con- troversy still cannot be resolved informally, the Regional Director shall issue a notice of hearing. . . . e Contrary to the contention of the Respondent , the doctrine of estoppel does not operate against the Board . N. L. R. B. v. T. W. Phillips Gas & Oil Company, 141 F. 2d 304 (C. A. 3), enfg. 51 NLRB 376; Wooster Brass Company, 80 NLRB 1633 , at 1634, 1654. . See also Smale & Robinson , Inc. v. U. S., 123 F. Supp. 457 ( U. S. D. C., S. D. Calif.), where the court stated , at p. 465, "Those dealing with an agent of the United States are held to have notice of the limits of his lawful authority." 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD settlement negotiations, we find that it would not effectuate the purposes of the Act to give effect to the settlement negotiations. For these reasons, therefore, we agree with the Trial Examiner that the settlement negotiations conducted by the Regional Office with the Respondent do not constitute a bar to the present proceedings, and that the specification was properly issued. 2. Amount of back pay due a. August 10, 1953, until March 22,1955 It is undisputed that, during the first 6 months after his discharge,. Albrecht devoted his full time to an icehouse business which he and his wife owned and operated, and did not look for other employment. For the next 14 months, he operated the icehouse and, in addition, sought employment, unsuccessfully, from several other employers.? On March 22, 1955, he leased out the icehouse. The Trial Examiner found that Albrecht should receive no back pay for this entire period because he did not make reasonable or diligent efforts to seek employ- ment. We find merit in Albrecht's exception to this finding. The Board has consistently held, with court approval, that unless unusual circumstances exist, a discriminatee who devotes his full time to self-employment and does not seek other employment is entitled to back pay, the amount to be computed by deducting his net profits from his gross back pay.' In the instant case, we find no unusual cir- cumstances warranting a departure from this established principle. Albrecht had been engaged, with his wife, in operating the icehouse on his own time for more than 6 months prior to his discharge by the Respondent. When, therefore, upon his discriminatory discharge by the Respondent, he decided to devote his full time to this endeavor, he was not entering a new field of activity in which he was entirely inexperienced. Instead, he continued in a business with which he was 7 Respondent contends in effect that the Trial Examiner's credibility findings should be overruled in all instances where he credited Albrecht over the Respondent 's witnesses. We find no merit in this contention , as the clear preponderance of all the relevant evidence does not convince us that the Trial Examiner's credibility resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544. BEfco Manufacturing, Inc., 111 NLRB 1032 , enfd. 227 F. 2d 675 ( C. A. 1), cert. denied 350 U. S. 1007; Harvest Queen Mill & Elevator Company, 90 NLRB 320 , at 339 and 341 ; Columbia Pictures Corporation , 82 NLRB 568 , at 584-585 ; Rathbun Molding Corporation, 76 NLRB 1019 , at 1023 and 1035 . See also N . L. R. B. v. Cashman Auto Company, 223 F. 2d 832 ( C. A. 1), enfg. 109 NLRB 720 . The Trial Examiner misinterpreted the Board's decisions in Cashman Auto and Brotherhood of Painters, Decorators & Paperhangers of America, et at. (Lauren Burt, Inc. of Colorado ), 114 NLRB 295, on which he relied. Both those cases involved periods during which the discriminatees were self -employed and also seeking other employment . In allowing back pay for such periods , the Board refused to find that self-employment alone should disqualify a discriminatee from receiving back pay, and went on to say that , in any event , the employees involved had engaged in diligent, albeit unsuccessful , quests for other employment during the periods in question. ARMSTRONG TIRE AND RUBBER COMPANY 357 familiar, trying during the first 6 months particularly to build up the business by extending the hours the icehouse was open from 12 to 15 hours a day and by operating it himself 7 days a week. This continued to be so after the first 6 months, while he was also looking for other employment. Under these circumstances, we find that Albrecht rea- sonably expected to improve his financial position, and therefore did not incur a willful loss of earnings, either when he devoted his full time to his icehouse business or when he was seeking outside employ- ment as well as operating this business. Accordingly, as Albrecht did not incur a willful loss of earnings, he is entitled to receive as back pay for this 20-month period the amount he would have earned work- ing for the Respondent less his net earnings.' With respect to the computation of back pay for this 20-month pe- riod, the Respondent contends that the record does not contain suf- ficient evidence upon which to base an accurate determination of Albrecht's net profit from his icehouse business. We find no merit in this contention. Although he kept no record of his sales, Albrecht testified that he estimated his gross profit on sales on the basis of an 18 percent markup over purchases, adjusted for estimated opening and closing inventories, and determined his net profit by deducting therefrom his estimated operating expenses. At the hearing the actual bills and receipts representing purchases for 1953, 1954, and 1955 were introduced in evidence, and 2 experts testified without contradiction that an 18 percent markup was reasonable for this type of business. The record, moreover, contains no evidence casting doubt on the ac- curacy of Albrecht's estimates of his inventories and operating ex- penses. Under all the circumstances, therefore, we find that the record contains sufficient probative evidence to warrant a determination of Albrecht's net profits for the period here in issue by the foregoing method, using as a basis for the computation the actual bills and re- ceipts representing purchases.10 b. March 227 1955, until January 3, 1956 In agreement with the Trial Examiner, and for the reasons given by him, we find that Albrecht incurred no willful losses, and is there- fore entitled to back pay less his interim earnings, for this entire period. Accordingly, in conformity with our findings herein, we find that the amount of back pay due Albrecht is to be computed as follows: 0 Member Rodgers would exclude the entire period of self-employment, for the reasons given by the Trial Examiner. 11 See N. L. R. B. v. Cashman Auto Company ; and Efco Manufacturing Inc., cited in foot- note 8, supra. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Net Back Pay 3d quarter 1953: Gross back pay------------------------------------------------------- $510.54 Interim earnings 11 ----------------------------- ------------ $131.56 N et back pay-------------------------------------------------------- $378 98 4th quarter 1953: Gross back pay------------------------------------------------------- 886.73 Interim earnings ------------------------------------------------------ 232. 76 Net back pay--------------------------------------------------------- 653.97 1st quarter 1954: Gross back pay----------------------------------------------------- 859.86 Interim earnings ------------------------------------------------------ 441.90 Net back pay--------------------------------------------------------- 417.96 2d quarter 1954: Gross back pay------------------------------------------------------- 873.30 Interim earnings ------------------------------------------------------ 446.81 Net back pay-------------------------------------------------------- 426 49 3d quarter 1954: Gross back pay------------------------------------------------------- 886.73 Interim earnings ------------------------------------------------------ 451.72 Net back pay--------------------------------------------------------- 435.01 4th quarter 1954: Gross back pay------------------------------------------------------- 904.84 Interim earnings-------------------------------------------------- 451.72 Net back pay--------------------------------------------------------- 453 12 1st quarter 1955: Gross back pay------------------------------------------------------- 885.61 ---------- Interim earnings------------------------------------------------------ Net back pay-------------------------------------------------------- None 885.61 2d quarter 1955: Gross back pay 12--------------------------------------------------- 899.44 Interim earnings------------------------------------------------------ N et back pay--------------------------------------------------------- 3d quarter 1955: - Gross back pay---------- -------------------------------------------- None 13.28 ----899.44 Interim earnings--------------------------------------------------- 292.96 Net back pay--------------------------------------------------------- 620.32 4th quarter 1955: Gross back pay------------------------------------------------------ 976.27 Interim earnings ------------------------------------------------------- 575.43 Net back pay-------------------------------------------------------- 400 84 1st quarter 1956: Gross back pay------------------------------------------------------- 14.64 Interim earnings ----------------------------------------------------- Net back pay--------------------------------------------------------- None 14.64 Total net back pay------------------------------------------------- 5, 586.38 n The computation of Albrecht 's yearly and quarterly earnings from the icehouse are at- tached hereto as appendixes A and B. 12 The computations for this and subsequent quarters are adopted from the Intermediate Report. [The Board ordered that the Respondent , Armstrong Tire and Rub- ber Company, The Test Fleet Branch, shall pay to E. A. Albrecht the amount of $5 ,586.38 as back pay due.] MEMBERS BEAN and JENKINS took no part in the consideration of the above Supplemental Decision and Order. ARMSTRONG TIRE AND RUBBER COMPANY 359' APPENDIX A YEARLY EARNINGS--ICEIIOUSE Purchases___________________________ Plus opening inventory ------------- Total------------------------ Minus closing inventory ____________ Cost of goods sold_____________ Times 18 percent markup ----------- Gross profit on sales -_________ Less expenses: Advertising_____________________ Truck or automobile ____________ Depreciation ____________________ Utilities________________________ Insurance ----------------------- Interest------------------------- Legal and accounting ___________ Repairs to equipment----------- Taxes and licenses ______________ Telephone______________________ Misc. expense ___________________ Store expense and supplies______ Detective service___ ____________ Bad debts______________________ Cash short ______________________ Discounts allowed -_________..___ Total_________________________ Net profit --------------------- `Loss. Year 1953_____ Quarter 1954----- 1955_____ 1953 1954 1955 __________ $20,796.75 ___ _______ $34,151. 57 __________ $7,386.02 __________ +560.00 ---------- 00 __________ -{- 1,225.00 __________ 21,356.75 -- -------- 4,951 . 57 __________ 8,611.02 __________ -800.00 1,225.00 -900.00 20,556.75 3,726.57 7,711.02 X.18 X. 18 -- X.18 __________ 3,700.22 ---------- 6,070. 78 __________ 1,387.98 $176.93 _ _ ___________ $125.00 - ----------- 180.39 _ ____________ 157.00 ------------ 374.82 _ __ __________ 121.26 ------------ 465-14 _ __ 170 . 00 170 . 00 ____________ 200.95 __ __________ 285.95 ___ - 305.00 _ ----------- 478.63 _____ ______ 526.87 _-_ 517.87 __ __________ 95.50 ----------- 97.60 - --- 39.27 ----------- 198.00 -_________- 256.00 ___ 96.37 ------------ 178.10 ____________ 168.10 ___ 179.12 ____________ 78.00 ______-____ 126.00 ------------ 27.00 __________- 6.00 ------------ 36.00 ------------ 12.00 ------------ 315.15 ------------ 397.35 ----- ------- 97.36 -- ---------- 26.00 - ----------- 60.00 ----------- - 15.00 -- ---------- ---------- ------------ 287.00 - - - ---------- ------------ 97.00 ------------ 35.00 -- ---------- ---------- ------------ 183.00 ------------ 90.00 ------------ ---------- -2,773.61 _ ---------- -1,987.25 __________ 926.61 __________ 1,791.74 ---------- -'599.27 APPENDIX B QUARTERLY EARNINGS-ICEI].OUSE Remarks Aug. 10 to Sept. 30=52 days. $926.61=365=$2.53X52 days_________________ Oct. Ito Dec. 31 = 92 days. $926.61 .365=$2.53X92 days ___________________ Jan. 1 to Mar. 31=90 days. $1,791.74=365=$4.91X90 days----------------- Apr. 1 to June 30=91 days. $1,791.74=365=$4.91X91 days_________________ July 1 to Sept. 30=92 days. $1,791.74-365=$4.91X92 days -------------.__ Oct. Ito Dec. 31=92 days . $1,791 .74=365=$4 .91X92 days----------------- Jan. 1 to Mar . 22 =83 days------------------------------------------------- SUPPLEMENTAL INTERMEDIATE REPORT Earnings $131.56 232.76 441.90 446.81 451.72 451.72 None STATEMENT OF THE CASE This proceeding is on remand for the purpose of determining the amount of back pay due to one discriminatee, Erwin A. Albrecht. On February 18, 1955, the National Labor Relations Board (herein called the Board), after usual proceedings including the issuance of the Trial Examiner 's Inter- 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report, dated April 8, 1954, entered its Decision and Order ( 111 NLRB 708) wherein it found that Armstrong Tire and Rubber Company, The Test Fleet Branch (herein called the Respondent or the Company ), had discriminatorily dis- charged Albrecht in violation of Section 8 (a) (3) and ( 1) of the Labor Manage- ment Relations Act (herein called the Act ). In its Order, in customary terms, the Board directed the Company to cease from engaging in proscribed conduct and to offer Albrecht immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority and other rights and privi- leges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, and to post appropriate notices. On December 21, 1955, the Court of Appeals for the Fifth Circuit issued its decision granting the Board 's petition for enforcement of its Order (228 F. 2d 159), and about January 19 , 1956, entered its decree enforcing in full the provisions of the Board's Order. On January 3, 1956, Albrecht was reinstated in accordance with the terms of the decree and Order. On December 21, 1956, the Regional Director for the Sixteenth Region (Fort Worth, Texas ), in accordance with the Board's Rules and Regulations , issued his back-pay specification setting forth the amount of back pay due Albrecht, and on January 25 , 1957 , served notice upon the parties scheduling a hearing thereon for February 13, 1957. The Company having filed a motion for a bill of particulars dated January 14, 1957, which was denied by the Trial Examiner on January 31, the Regional Director postponed the hearing until February 19, 1957 . The Com- pany duly filed its answer and thereafter hearing was held on February 19, 20, and 28, and March 1, 1957, at San Antonio, Texas. All parties were represented by counsel' and were afforded opportunity to be heard , to examine and cross-examine witnesses, and to introduce evidence relevant to the issues herein. After the close of the hearing 2 the General Counsel submitted a memorandum showing "Corrected Earnings," and other counsel filed briefs, which have been considered by the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. CHRONOLOGY OF EVENTS After issuance of the Intermediate Report, the Company filed a motion with the Board, dated May 20, 1954, requesting that the Board remand the matter for further hearing to determine whether Albrecht had incurred willful losses during the back-pay period, which motion was denied by the Board on the ground that such matters should be left for determination at the compliance stage of the pro- ceedings (111 NLRB 708, footnote 3). Thereafter, according to the answer, and it is not disputed, the Company about February 8, 1956, submitted its gross back-pay computation , including wages, vacations, increases, and overtime, which for the period from the third quarter of 1953 to the first quarter of 1956 amount to $8,617.92. Subsequently, by letter dated April 10, 1956, as stated in the answer, the Company was notified by the Regional Office that it would accept the sum of $2,867.83 in settlement of Albrecht's back pay, which offer was rejected by the Company. On or about May 20, 1956, as appears in the answer, the Company submitted a counterproposal in the sum of $486 .45 (or $489 .45 as appears in the exhibit attached to the answer), less $137.19, refund on pension restoration, or a net back-pay settlement of about '$352.26. By letter dated October 29 , 1956, the Regional Office notified counsel for the Company that "we are willing to use for the purpose of compromise settlement of the disputed amount" the net sum of $336.28. The Trial Examiner granted Albrecht's motion for leave to intervene. 2 The parties concluded the submission of testimony on March 1 . At that time company counsel requested additional time within which to determine whether he would seek en- forcement of an outstanding subpoena duces tecum and for that purpose the Trial Ex- aminer agreed to keep the record open until March 8, 1957. By letter dated March 8, counsel informed the Trial Examiner that he had decided not to seek enforcement of the subpena, so on March 12 the Trial Examiner entered an order closing the record as of that date and allowing the parties until April 1 to file briefs. ARMSTRONG TIRE AND RUBBER COMPANY 361 By letter dated November 2, 1956, counsel for the Company advised the Regional' Office that it would accept the sum of $473.47 as back pay, less social security and withholding taxes and the pension equity, making the net sum $232.12, and. enclosed a certified check for that amount. About November 9, 1956, counsel for Albrecht filed an appeal from this pro- posed settlement with the General Counsel and the failure of the Regional Director- to issue a back-pay specification, claiming that back pay amounted to about $6,000, and not the amount mentioned in the offer of settlement. By letter dated December 13, 1956, the Associate General Counsel notified counsel for Albrecht, and the other parties, that the case had been considered "and. referred back to the Regional Director with appropriate instructions." As already stated, the Regional Director issued his back-pay specification dated. December 21, 1956, and notice of hearing on January 25, 1957. II. THE GENERAL COUNSEL'S BACK-PAY SPECIFICATION The original back-pay specification fixes the back-pay period from August 10, 1953 (the date Albrecht would have returned to work had he not been discharged) to January 3, 1956, the date of his reinstatement. The specification excludes from the above back-pay period the interval from August 10, 1953, to January 31, 1954, because Albrecht withdrew his services from the labor market during this time. The General Counsel then computes gross back pay, on the basis of the undisputed records submitted by the Company, from February 1, 1954, to January 3, 1956, on, a yearly quarterly basis and determines net back pay by crediting earnings received from other employers in the period. The specification shows interim earnings for only the third and fourth quarters of 1955, and net back pay amounts to $6,063.44. In this connection the General Counsel has excluded as deductible interim earnings, income or earnings derived by Albrecht and his wife from the operation of a com- bination grocery store, beer parlor, and icehouse, which amounted to $1,176.09 in 1954, and $246.86 to March 22, 1955. The General Counsel contends in his specification that the Company was not entitled "to a credit of this income against gross back pay since it would have accrued to Albrecht and his wife irrespective of the discrimination." In its answer the Company admits the mathematical accuracy of the specification but denies that any back pay is due for the reason, in substance, that Albrecht incurred willful losses and that all earnings from any source are properly deductible from gross back pay. The Company's affirmative defenses are discussed below. A. Albrecht's background; the amended back-pay specification Albrecht testified he was first employed by the Company about July or August 1945, and worked continuously as a test car driver until his discharge on July 22,. 1953. Albrecht, who is about 37 years of age, stated he had a seventh grade educa- tion and worked on a farm until he was about 18 or 19 years old when he left the farm and obtained successive employment as a sack lifter in a cotton mill, gas station attendant, service employee for Western Auto Company (changing: tires, batteries, etc.) and, in San Antonio, as a meatcutter for Roegelein Pro- vision Company, bus driver, and packer at Pearl Brewery. He admitted that physically he could have performed all these jobs, except those of sack lifter and bus- driver, during the back-pay period. From about December 1952, until March 1955, Albrecht and his wife operated an "icehouse" business, as detailed below. During the course of Albrecht's testimony the General Counsel orally moved to amend his back-pay specification by striking the allegation (paragraph A) ex- cluding the period August 10, 1953, to January 31, 1954, from the back-pay period, and that portion (paragraph D) eliminating income from the icehouse business as interim earnings. The Trial Examiner granted the motion. Thereafter the General Counsel filed an amended back-pay specification, dated February 23, 1957, which fixes the back-pay period from August 10, 1953 to January 3, 1956, and credits the net income from the icehouse business as interim earnings during this period. On February 20, the Trial Examiner continued the hearing until February 28, in order to give counsel for the Company opportunity to file an amended answer and to study certain records produced by Albrecht relating to his business. On February 28, the Company filed an answer to the amended back-pay specifi- cation in which it admits the mathematical accuracy of certain computations but denies that Albrecht is entitled to any back pay for the reasons that he incurred willful losses and withdrew from the labor market. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The evidence relating to Albrecht's efforts to secure employment Albrecht admitted that he never registered with the State unemployment service, for the reason that he was self-employed. 1. The period August 10 to December 31, 1953 Albrecht admitted he made no efforts to secure employment during this period. The amended back-pay specification alleges that Albrecht was self-employed through- out this time. 2. The period January 1 to December 31, 1954 Albrecht first attempted to obtain employment about February or March when he asked Bob Garcia, constable, for a job as constable or night watchman in his precinct. Garcia informed him he had no constable positions, but he would be on the lookout for any jobs as night watchman. Albrecht called Garcia about 3 weeks later and also talked to him on 2 occasions, once at the icehouse, around August or September in regard to employment and Garcia told him if he heard of anything he would get in touch with him. Garcia testified that as constable of precinct 3 he performed the usual duties of a law enforcement officer as well as the service of civil process. Garcia stated Albrecht's icehouse was located within his precinct and that he had met him some- time prior to May. Around the latter date Garcia said he was at the icehouse when Albrecht asked him for a job. Garcia told him he was not authorized to hire .anyone but if he heard of any jobs as night watchman-there were quite a few :industrial plants in the precinct-he would get in touch with him. According to ,Garcia's best recollection this was the only conversation he had with Albrecht con- -cerning employment. Albrecht said around March he applied for work to Walter Czeck, who operated .a Texaco service station. On this occasion Albrecht drove to the station to buy .gas and during a conversation with Czeck the latter remarked he "was having lubrication and washing trouble." Albrecht said if he needed anyone he had had -experience in service station work and Czeck replied that if business picked up he would keep him in mind and to come back and see him. Albrecht returned in 2 or 3 weeks, and thereafter applied 9 or 10 times, these applications taking place every 2 weeks, but he was not employed. On some of the trips Albrecht purchased gas from Czeck. Czeck said he operated a service station from April 30, 1954, to April 30, 1955, and between May and August, Albrecht, who was an occasional customer, asked him for a job. Czeck, after being informed that Albrecht had experience in service station work, stated he had no jobs available unless business increased. Czeck estimated that Albrecht applied for work about 3 times. Albrecht said that in March or April, he and J. R. Bedford, operator of a Sinclair service station, were discussing business at the icehouse when Bedford stated he was going to switch from Sinclair to Texaco. Albrecht then asked if he was going to need anyone and Bedford replied he did not know definitely at that time. About August or September, Albrecht heard that Bedford was switching to Texaco so he went to the station and Bedford promised him a job as night manager, if he made the change. Thereafter, Albrecht talked to Bedford about 10 times but he was not employed because Bedford did not effectuate the change to Texaco. Bedford testified that he operated a Sinclair station and about September or October he negotiated a deal with Texaco to take over one of its new stations which would be completed sometime in December. During September, October, and November, Bedford, who was a neighbor of Albrecht's, discussed the Texaco deal frequently with Albrecht, principally at the icehouse. Bedford made no spe- cific mention of Albrecht's applying for a job or that he had promised him a job if his deal went through. In any event Bedford finally turned down the Texaco deal sometime prior to the opening of the new station in December. About March or April, Albrecht applied to William Hauck for a job as constable. Hauck said to "come back and see us, if we see something, we will let you have it." Albrecht returned in about 2 weeks and later on 4 or 5 other occasions but he did not see Hauck. After about 3 months he talked to Hauck who gave him the same answer as on his first visit. Hauck, constable of precinct 1 (his duties are substantially the same as Garcia's, except on a larger scale), stated that in the spring of 1956, he was interviewed by Attorney Keenan (counsel agreed it was in April) concerning any conversations he may have had with Albrecht in regard to employment. Hauck said that some 3 or 4 months prior to this interview, in late 1955, or early 1956, Albrecht came to his ARMSTRONG TIRE AND RUBBER COMPANY 363 office and asked if he had any vacancies and he told him there were none at that time. Hauck explained he had a small crew, only eight men, and that he had little turnover among his personnel. - Albrecht asked if he could file an application and when Hauck said he would be glad to accept it, Albrecht wrote out his name and address on a piece of paper which he handed to him. As far as Hauck could re- member this was the only time Albrecht talked to him in regard to a job. Hauck did not use a form application, nor did he maintain any file on job applicants. Since Hauck had no vacancies at the time he did not discuss job qualifications with Al- brecht but as he had no training facilities he made it a custom to hire only former peace officers. In May or June, Albrecht went to Vane Hugo's garage, which he thought was a distributing business because of the large number of trucks therein, and asked Allen Usener, the foreman, for a job. Usener stated it was garage and, in response to Usener's question concerning his experience as an auto mechanic, Albrecht said he had had a little experience in this field and did a little bodywork on the side. Usener explained that he had 1 or 2 mechanics working under the GI bill, that he did not know whether they would be retained upon completing their time but to return in about a week when he would probably know whether Hugo would au- thorize him to put on another mechanic. Albrecht went back the following week and again talked to Usener who told him Hugo was sick but to keep coming back until he was permitted to put on an extra mechanic. Subsequently, Albrecht returned 4 or 6 times, and about the fourth trip Usener said Hugo was getting worse and the next time he was advised that he had died. On the last occasion Usener informed Albrecht the business had been sold and he was no longer in a position to hire him since the new company had brought mechanics from their own garage. Albrecht did not apply for a job with the new company. Usener said he was running the garage business during the last illness of Hugo (he did not state the period of the illness) and that he died in April. Sometime dur- ing the interval of illness and prior to Hugo's death Albrecht applied for a job as mechanic and Usener informed him he was "filled up" and could not use him. Usener denied he gave any promises of future employment and stated that he talked to Albrecht on only one occasion. Usener admitted that he had two mechanics work- ing under the GI bill but he could not recall telling Albrecht of this employment. He further stated that when Hallmark Automotive Service bought the business he remained as shop foreman and the original crew was retained for about 6 months when 1 of the mechanics was terminated and replaced by another man. In June, Albrecht talked frequently to Adolph DeLeon, a small contractor and his next door neighbor, about performing rough carpenter work on 1 or 2 houses DeLeon expected to construct. Albrecht had previously worked for DeLeon and worked for him again in October 1955. During July, August, and September, Albrecht did not seek employment from new or different employers but confined his efforts in that respect to contacting DeLeon, Hauck, and Czeck. In October, November, and December, Albrecht made only one attempt to secure employment. In the latter part of the period he went to Falstaff's, a beer distributor, and talked to some man in the office about any kind of steady employment. When asked where last worked and why he left, Albrecht replied he had worked for Armstrong and that he "was fired on account of union trouble." The man then told him the company was not likely to hire anyone during the winter months but might do so in the summertime. 3. The period January 1 to December 31, 1955 Albrecht conceded he made no effort to obtain employment in January, Febru- ary, or March. Around the first of April, Albrecht at the suggestion of a friend, Walter Hillmer, went to Gugenheim-Goldsmith, wholesale distributors of assorted goods and mer- chandise, and asked someone in the produce department for a job. Albrecht was advised the job had been filled but to see Gugenheim, which he did. After explaining that he knew Hillmer, Gugenheim "was pretty well pleased," and stated that more changes were made in the beer department than in the produce department. Gu- genheim then asked where he was last employed and why he left and he answered he had worked for Armstrong and was fired because of union trouble. Gugenheim further inquired if Albrecht had been against the union and when he said he was for the union, Gugenheim told him to leave his name and telephone number, that he would call him later. About a month later Albrecht went back to see Gugenheim but was informed he was out and to call him before making any trips to the estab- lishment. About 2 weeks later Albrecht called Gugenheim and when he asked for a job Gugenheim said he did not have any work for him and hung up. Sometime 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after this conversation, Albrecht saw a driver who had formerly worked for another beer distributor driving a beer truck for Gugenheim-Goldsmith. In April or May, he filed an application for employment (no particular job), at the office of Handy-Andy Company, a grocery and hardware chain, and was told he would be called if needed. About the same time or perhaps July or August, Albrecht, pursuant to newspaper ads, telephoned the Cigarette Vending Machine Company and Carnation Creamery for employment and was informed that he was too old for the respective jobs. Albrecht also telephoned M. L. Howes, who maintained special police patrols, and asked if he had any jobs. Howes said he had no openings but that Albrecht could establish a patrol in his area. Howes said he operated a merchant police company which furnishes protection to business properties at night and that Albrecht was one of his customers. On one occasion when Howes went to the icehouse to collect for his services (he could fix no date at all) Albrecht asked if he had any jobs and he explained that his business was on a strictly commission basis and all he could offer Albrecht was an opportunity to build up his own patrol or route. Howes denied that he had any telephone conversations with Albrecht concerning employment. Sometime in July, Albrecht, through an ad in the newspaper, obtained a job, selling novelties and advertising matter for Brown & Bigelow. He held the job 2 or 3 weeks when he quit, without having earned any money. Counsel stipulated that if the manager of Brown & Bigelow was called as a witness he would testify Albrecht was employed from August 4 to August 24, and had no earnings whatever. The parties stipulated that about August 23, Albrecht applied for employment at the Lone Star Brewery. In the latter part of August, Albrecht went to work for Select Foods Company as a route salesman selling groceries on a salary and commission basis. During the period of his employment Albrecht earned $518.29. In substance, Albrecht said he quit under the following circumstances: One day at the warehouse he overheard 2 men conversing, 1 of them being Manager R. D. Hoppstetter, in the course of which 1 of them said the company was discontinuing Viviano products and if the men were to keep their routes they would have to buy the trucks. The following week Viviano products were discontinued and on Saturday of the next week each truck was inventoried by Hoppstetter. Albrecht assumed this meant the drivers had to purchase the trucks, which he was unable to do, and since he knew he could work for DeLeon, quit his job the following Monday, October 31. Hoppstetter stated Albrecht complained about the long hours and low pay and said he was going to quit. About 4 or 5 weeks later Albrecht told Hoppstetter he was not making enough money, that the job was simply a "fill-in" for him and that he was quitting, which he did. Hoppstetter said that in March 1956, the company gave the men an opportunity to buy their trucks but did not compel them to do- so in order to keep their routes. In May 1956, the company went out of business. On November 1, Albrecht commenced working for DeLeon on a contract basis for which he was to receive $350 for doing the rough carpenter work on a house and he worked on this job until December 7 or 8. Albrecht related some fuzzy deal whereby he and DeLeon traded jobs, which resulted in another man completing the carpentry work and that his net pay amounted to $326. He did no further work for DeLeon in December for the reason that DeLeon did not start any new con- struction until after the first of the year. In December, Albrecht applied for work to a Mr. Sisk, building contractor, but he had no jobs at that time. DeLeon said he was in the home building and repair business, that he worked himself, and never employed more than two employees. He lived next door to, Albrecht and knew that he had been discharged by the Company. After his dis- charge Albrecht frequently spoke to him about employment and during 1954 or 1955, they discussed forming a partnership which never materialized. DeLeon said he paid Albrecht $350 for work in November and December 1955, plus about $30 for some weekend job he performed. However, the total sum he paid Albrecht included the purchase of saw from him, so that Albrecht's net wages or earnings amounted to $350. Albrecht admitted that he did not attempt to find employment through news- paper ads until around July or August 1955. He further stated he did not apply for work at Southwest Research Company, which operates a test car fleet, because Frank Pressly, a former employee of the Company, was manager or did the hiring and firing. Pressly was secretary-treasurer of the benefit fund when Albrecht was discharged and when he applied for benefits,'Pressly said he had nothing coming as ARMSTRONG TIRE AND RUBBER COMPANY 365 far as he was concerned. In addition, Albrecht said about 85 or 90 percent of the work at Southwest was of a temporary character. Albrecht did not apply for a job at Automotive Research or Test Company, which operates a test fleet, because he first heard of this company after he had been reinstated in January 1956. C. The icehouse business Albrecht and his wife purchased a lot, apparently in 1952, upon which he con- structed a building and in the latter part of December 1952, opened a drive-in store selling groceries, beer, soft drinks, and ice. While Albrecht's wife did not con- tribute any money -towards the purchase price or the cost of the building, or the stocking thereof, he stated they "bought it together" and "worked the place to- gether." Neither Albrecht nor his wife drew any salary from the business but the building was used as a combination store and home for the family and they "lived off the business." While employed by the Company, Albrecht worked a 5-day week, Monday through Friday, on alternating shifts running from 6 a. m. to 2 p. m., from 2 to 10 p. m., and from 10 to 6 a. m. In this period Albrecht worked at the icehouse on his off hours, which was open from 10 a. m. to 10 p. m., 7 days a week. At all times he and his wife ran the business, except for occasional part-time help of I or 2 customers who worked off their bills, and following his discharge the business was open from 8 a. m. to 11 p. m., 7 days a week. In the period following his discharge, Albrecht could not estimate the time he and his wife spent in operating the icehouse, other than "we opened the place together at the same time" and that he was at the icehouse throughout opening hours, except when he was looking for employment. Albrecht, when asked by the General Counsel what efforts he had made to secure employment from the date of his discharge, replied: Well, from July 22 or 23 [1953], to March 1955, I was self-employed, but the first six months in the ice station, the reason I didn't seek other employment, I was trying to build up my business so I wouldn't have to seek other employ- ment, but what I was trying to do was build up the business for the first six months. Admittedly, Albrecht had no outside employment throughout the time he and his wife were operating the business. Albrecht estimated his gross income from the icehouse business by adding 18 percent to his total purchases and his net income by deducting therefrom costs of operation or expenses such as gas, light, interest on loans, and other.like items. Counsel stipulated, after checking the records during the recess of the hearing, that the receipted bills for 1953, 1954, and 1955 amounted to $20,796.75, $34,151.57, and $7,386.02, respectively. Using the above formula and figures, the General Counsel estimated the income from the icehouse on a quarterly basis, which he deducted as interim earnings, and arrived at the sum of $5,584.94 as net back pay, as appears in his "Corrected Earnings." The Trial Examiner has not attempted to audit these figures. Albrecht was unable to give any breakdown or percentage figures on the earnings received from the icehouse covering the period August 10, 1953, to December 31, 1953, because income was estimated on an annual basis at the end of the year. He further stated that about March 22, 1955, the icehouse was sold or leased to another individual, without any profit, and that he was merely paid dollar for dollar for stock and equipment. III. THE RESPONDENT'S CONTENTIONS The answer and amended answer admit the mathematical accuracy of the back-pay specifications but deny that Albrecht is entitled to any back pay for the reason that he incurred willful losses and withdrew from the labor market from August 10, 1953, to about August 5, 1955, and that his belated reentry on the latter date does not justify or cure his withdrawal therefrom. As alternative defenses the Respond- ent urges that (1) if any back pay is due, the Respondent and representatives of the Regional Office reached a settlement as the amount thereof in accordance with the Board's Rules and Regulations, and (2) since Albrecht obtained suitable employ- ment about August 5, 1955, which he voluntarily left about November 5, back pay should be limited to this period. Concluding Findings Unquestionably, counsel for the Company and representatives of the Regional Office engaged in negotiations in respect to the amount of back pay due to Albrecht 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and at one phase of the negotiations the Regional Office indicated a willingness to compromise the matter for approximately $336, which sum (less certain deductions) was acceptable to the Company. However, the Regional Office withdrew the offer and on December 21, 1956, the Regional Director issued his back-pay specification, to which the Company filed its answer about January 16, and thereafter on January 25, a notice of hearing was issued, all in accordance with the Board's Rules and Regu- lations (section 102.51 a, b, c). The rules further provide (section 102.51e): If, after the filing of the answer, the controversy still cannot be resolved in- formally, the regional director shall issue a notice of hearing before a trial examiner at a place therein fixed and at a time not less than 10 days after the service of the notice of hearing. Here there is no. evidence or indication that the Regional Office offered or agreed to compromise the amount of back pay as set forth in the back-pay specification at any time subsequent to the issuance thereof. The controversy therefore was not resolved as provided in the Board's Rules and Regulations. The Trial Examiner concludes and finds that the preliminary negotiations between the Regional Office and the Company, in which the Regional Office indicated a willingness to compromise the amount of back pay, do not constitute a bar to the present proceedings. The next question to be determined is whether the time during which Albrecht and his wife conducted the ice business, August 10, 1953, to March 22, 1955, should be included in the back-pay period, with credit for income derived therefrom, and whether there was any duty upon Albrecht diligently to seek other employment dur- ing this period. As set forth above, the General Counsel in his original back-pay specification eliminated the period August 10, 1953, to January 31, 1954, from the back-pay period and, secondly, excluded income derived from the ice business throughout its opera- tion, as interim earnings, because such income would have accrued to Albrecht and his wife irrespective of the discrimination. In explaining his theory the General Counsel stated at the hearing that the above period was excluded for the reason, "we felt that aside from his icehouse operations, that he should have gone out and tried to obtain other employment as he had previously." However, he offered no expla- nation concerning the second phase of his theory, i. e., the nondeductibility of in- come from the icehouse, other than that was the position of the General Counsel. Obviously, the foregoing theory was premised upon averments in Albrecht's affi- davit, dated April 6, 1956, submitted to the Regional Office, in which he admitted he did not seek employment until February 1954. Further, in relating his interim earnings, Albrecht stated that while he worked at the icehouse, which was run by his wife, he was not paid a salary although he received some money, and that his wife leased the business in March 1955, for which she is paid $150 per month. Ac- cording to Albrecht, his wife paid income taxes on $1,176.09 in 1954, but he did not, know the amount of her tax for 1955. It is sufficient to state that Albrecht com- pletely repudiated the statement in his affidavit concerning ownership of the busi- ness and his alleged meager information in regard to income therefrom when he testi- fied at the hearing as set forth above. In his amended back-pay specification the General Counsel fixes the back-pay period from August 10, 1953, to January 3, 1956, and deducts from gross back pay the income derived from the icehouse business on the ground that Albrecht was self-employed during this period. Counsel for Albrecht agrees with this method of computing back pay. The remedy of back pay, of course, is entrusted to the Board for the purpose of dissipating the effects of violations of the rights guaranteed employees under the Act. As an award of back pay to discriminatees is imposed as a public right, the Board and the courts have consistently held that there is a duty upon the discrim- inatee to minimize his losses in such cases (Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177, 197-200; N. L. R. B. v. Pugh and Barr, Inc., 231 F. 2d 558 (C. A. 4); N. L. R. B. v. Moss Planing Mill Co., 224 F. 2d 702 (C. A. 4); Southern Silk Mills, Inc., 116 NLRB 769; American Bottling Company, 116 NLRB 1303). Generally speaking, the Board has held that discriminatees who are self-employed during the back-pay period are entitled to back pay, less their net earnings from such self-employment (Rathbun Molding Corporation, 76 NLRB 1019, 1023, 1034, foot- note 21; Harvest Queen Mill & Elevator Company, 90 NLRB 320, 323; Baxter Bros., 91 NLRB 1480, 1482, footnote 6; Adams Motors, Inc., 96 NLRB 1198, 1201, 1206; The L. B. Hosiery Co., 99 NLRB 630, 631, 634). In substance, the Board ruled in the L. B. Hosiery case (citing the Baxter and Adams cases) that the mere fact that the discriminatee became self-employed during the back-pay period did not of itself indicate a decision not to return to work if offered rein- ARMSTRONG TIRE AND RUBBER COMPANY 367 statement. In the Rathbun case the Board adopted the Trial Examiner's con- clusion that a discriminatee who was engaged in full-time employment on his farm was entitled to back pay, less his earnings, since this employment, without registra- tion with United States Employment Service, constituted compliance with the then- existing policy established in the Ohio Public Service Company case (52 NLRB 725), Subsequently, a majority of the Board affirmed its general rule regarding self- employment in Cashman Auto Company (109 NLRB 720), where the company contended that self-employment by the discriminatees in the auto repair business. carried with it a recognized element of risk which it should not be required to bear and that the business was undertaken without reasonable expectation of any earn- ings. The majority of the Board rejected these contentions with Board Member Rodgers dissenting on the ground that self-employment alone should disqualify dis- criminatees from receiving back-pay awards during such intervals. The majority held that acceptance of such a premise would discourage discharged employees from. engaging in self-employment, "although as in this case they are at the same time diligently seeking jobs with other employers," and continued their business in the. hope of making a profit. On this point, Member Rodgers pointed out that the rule: as applied in this case was contradictory in that it required the discriminatees to make "earnest and continuous efforts" to seek employment at the same time he is. supposed to be diligently working for himself. Consequently, if he fails in his duty to seek employment he is not entitled to back pay and if he neglects his business. there is no justification or logic for making the employer liable for any losses oc- curring under such circumstances. However, the Board majority stated: (p. 722). We are satisfied that our present rule, recognizing that the special circumstances. of a particular case may warrant denying back pay to a discriminatee who in- curs a willful loss by engaging in a business of his own, effectively insures that the discretionary power to award back pay which Congress delegated to this. Board will be exercised "with due regard to the equities of all parties." In any event, we would note that the record in this proceeding fully supports the Trial Examiner's findings that, notwithstanding their self-employment, Marshall and. Shawcross nevertheless engaged in a diligent albeit unsuccessful quest for other suitable employment during that period, and did not withdraw themselves from the labor market. Accordingly, the Board held the discriminatees were entitled to back pay minus their- net earnings during this period. In Brotherhood of Painters, etc. (Lauren Burt, Inc. of Colorado) (114 NLRB. 295, 299), the Board adopted the Trial Examiner's finding that a discriminatee, by acquiring a State sales tax license for the purpose of conducting a floor-covering, business and by advertising for jobs in the newspapers, did not thereby remove him- self from the labor market, because he was at the same time diligently seeking em- ployment as evidenced by his registration with the State Employment Service and applications for work to at least two employers every week. It seems clear to the Trial Examiner that the back-pay award in the Cashman, case, as well as in the Painters case, was predicated primarily upon the fact that the discriminatees diligently sought employment throughout the time they conducted their own enterprises. Consequently, it follows that compliance or noncompliance- with the obligation upon discriminatees diligently to seek other employment, if not decisive of the question of back pay, is certainly an important element in the deter- mination of whether the circumstances warrant or justify the awarding of back pay to discriminatees during periods of self-employment. Manifestly, the question of" whether a discriminatee has diligently sought other jobs cannot be resolved in ac- cordance with rigid standards or a fixed schedule outlining precise procedures to be. followed by him in cases of this nature. Of course, the discriminatee is required? to exercise a reasonable degree of diligence in this respect, but even so the question of whether or not he has met this requirement is dependent upon the facts and'. circumstances of the particular case. Here the evidence conclusively proves that Albrecht devoted full time to the ice- house operation and made no attempt to find a job from August 10, 1953, to January 31, 1954, and from the latter date through March 1955 spoke to only seven. persons regarding employment, without success. These facts alone, in the opinion, of the Trial Examiner, are sufficient to raise a question concerning Albrecht's sin- cerity in seeking employment, especially in a city the size of San Antonio where a large number of industrial plants are located together with the usual commercial' establishments found in such an area. But any doubt in this respect is eliminated by Albrecht's own testimony. Thus Albrecht made no effort to obtain work at- any of the industrial plants or commercial places of business, while running the ice-- .368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD house, which seemingly would have job categories substantially the same as the one he held at the Company, that of car or truck driver, but instead he limited his attempts to contacts or discussions with individuals concerning employment as deputy constable or night watchman, service station attendant, auto mechanic, rough carpenter, and beer-truck driver. With the exception of 1 visit to Constable Hauck and Falstaff and some 6 trips to Hugo's garage, all his contacts were made at the icehouse, in his neighborhood, at nearby service stations, or by telephone. Again, his assertion that he made numerous contacts with these persons is refuted by 5 of the 6 individuals themselves. In this respect Garcia and Hauck testified he spoke to them on only I occasion,3 Usener said he came to Hugo's once when he told Albrecht he had no jobs and did not promise him a job (there is no evidence Albrecht was a qualified auto mechanic), and Czeck and Bedford denied he spoke to them ,9 or 10 times, although he did talk to them. In considering this evidence the Trial Examiner is convinced that Albrecht grossly exaggerated his efforts to secure employment from these persons. Undoubtedly, he talked frequently to his neighbor, DeLeon. Albrecht's contention that it was seemingly futile to apply for a job as test car driver at Southwest Research because of some words he and Pressly had had regarding the payment of benefits while both were employed by the Company is flimsy and vague and is rejected. On the evidence herein the Trial Examiner concludes and finds that Albrecht did not make reasonable or diligent efforts to seek employment during the time he was operating the icehouse. Under the circumstances and in view of the foregoing authorities, the Trial Examiner further concludes and finds that the period August 10, 1953, through March 1955, should be excluded from the back-pay period.4 The remaining questions to be resolved are (1 ) whether Albrecht incurred willful losses from April to August 4, 1955 , and (2 ) whether by quitting a job about October 31 he thereby relieved the Company of any liability for subsequent back pay. The record shows that Albrecht applied for work at Gugenheim-Goldsmith in April, returned the following month to check on his application, and shortly thereafter, at the company 's suggestion , telephoned Gugenheim concerning employ- ment and was told no jobs were available. Around April or May, he also filed an application for a job with Handy-Andy Company. About the same time he began using newspaper ads as a means to secure employment and unsuccessfully contacted two employers . He also talked to Howes in regard to employment. Finally, on August 4, he obtained a job, through an ad , with Brown & Bigelow. It appears to the Trial Examiner that although Albrecht could have been more diligent in seeking employment in the above period, he was not required to exercise the highest degree of diligence in this respect and it cannot be said that the efforts he did make to find work were so unreasonable as to constitute willful losses thereby depriving him of back pay for this period (Efco Manufacturing, Inc., 111 NLRB 1032, 1035). The Trial Examiner so concludes and finds. From August 4 to 24, Albrecht was a salesman for Brown & Bigelow but had no earnings from this employment. On August 23 he applied for work at the Lone Star Brewery. In the latter part of August he obtained a job as driver- salesman with Select Foods, which he left about October 31. While there may be some discrepancies in the testimony of Albrecht and Hoppstetter as to his reasons for quitting, it is undisputed that he did quit and on the following day went to work for DeLeon on a contract basis. Albrecht completed his contract about December 7 or 8. He did no further work for DeLeon because DeLeon 8 Hauck was obviously mistaken when he fixed his conversation as taking place in the latter part of 1955 or early 1956. The Trial Examiner finds the conversation took place about 'March or April 1954. 4 Here Albrecht and his wife were conducting their business during a portion of the time he was working for the Company, but he was unable to estimate the income from the busi- ness for the year 1953, or the percentage of income derived during the course of his em- ploymnent . In the cases cited herein , particularly the Cashman and Painters cases, the discriminatees were not engaged in any enterprises prior to the date of their unlawful dis- charges. However, the General Counsel's method of computation as stated in his amended back-pay specification makes it unnecessary to discuss the rule, expressed in early Board cases, that collateral earnings received by a discriminatee during the course of his em- ployment prior to his unlawful discharge are not deductible, to the same extent , from gross back pay during the period of discrimination . ( See Pusey, Maynes and Breish Company, 1 NLRB 482, 488; Link-Belt Company, 12 NLRB 854, 872, 882 ; H. J. Daniels Poultry Co., 65 NLRB 689, 692, footnote 6.) KRAMBO FOOD STORES, INC. 369 decided to wait until after January to start new construction. In the meantime Albrecht sought employment from Sisk, another contractor. In quitting Select Foods and immediately going to work for DeLeon it cannot be seriously argued that he thereby intended to remove himself from the labor market. Moreover, his job with DeLeon was a higher-paying job and it is reasonable to assume he expected to continue in this line of work. However, Albrecht was precluded from doing so by reason of DeLeon's decision not to commence new building at that time. Under the circumstances it cannot be said that Albrecht incurred willful losses (Harvest Queen Mill & Elevator Company, supra, p. 327; East Texas Steel Castings Company, Inc., 116 NLRB 1336, 1347, 1367). Accordingly, the Respond- ent's contention in this respect is rejected. The Trial Examiner therefore concludes and finds that Albrecht is entitled to back pay, less net interim earnings , for the period April 1, 1955, to January 3, 1956. The Trial Examiner adopts the undisputed figures appearing in the General Counsel's amended back-pay specification and "Corrected Earnings " memorandum and com- putes Albrecht's back pay as follows: 2d quarter 1955: Gross back pay------------------------------------------------------- $899.44 Interini earnings------------------------------------------------------ Net back pay--------------------------------------------------------- None $899.44 3d quarter 1955: Gross back pay------------------------------------------------------- 913.28 Interim earnings------------------------------------------------------ $292.96 Expenses------------------------------------------------------------- Net back pay--------------------------------------------------------- None 620.32 4th quarter 1955: Gross back pay---------------------------------------------------- 976.27 Interim earnings ---------- ------------- ------------------------------- $575.43 Expenses ------------------------------------------------------------ Not back pay----------------------------------------------------- None 400.84 1st quarter 1956: Gross back pay--------------------------------------------------- 14.64 Interim earnings --------------------_____ _______--------- Net back pay-------------------------------------------------------- None 14.64 Total amount net back pay---------------------------------------- 1.935.24 [Recommendations omitted from publication.] Krambo Food Stores, Inc. and Krambo Independent Union, Pe- titioner. Case No. 13-RC-5505. November 7,1957. DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Allen P. Haas, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations here involved claim to represent certain employees of the Employer. 3. The unit sought by the Petitioner includes all employees in the grocery and produce departments in the Milwaukee County, Wiscon- 119 NLRB No. 54. 476321-58-vol. 119-25