Sioux Falls Stock Yards

SIOUX FALLS STOCK YARDS Sioux Falls Stock Yards Company and Local 304, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 18-CA-3499 May 31, 1978 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On July 15, 1977, Administrative Law Judge Rob- ert M. Schwarzbart issued the attached Supplemental Decision in this proceeding.' Thereafter, Respondent filed 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 Supplemental Decision in light of the excep- tions and brief and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as mod- ified herein.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 the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Sioux Falls Stock Yards Company, Sioux Falls, South Dakota, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the Backpay Grand Total to be paid to Wallace Kimball shall be $5,307.01. t The Board's onginal Decision is reported at 208 NLRB 64 (1974). Thereafter, the Court of Appeals for the District of Columbia Circuit en- tered its judgment enforcing the Board's Order. See 509 F. 2d 538 (1975) 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. In Appendix 17 of his Supplemental Decision, with respect to discrimi- natee Wallace Kimball, the Administrative Law Judge made inadvertent errors in certain of his computations. The correct figures should read as follows: 1972, 2d Quarter, Net Backpay-$1.685.12 and Quarterly Totals to Discriminatee-S1,853.06; Totals (of the Quarterly Totals to Discriminateef $4.315.14; and Grand Total-$5,307.01. Further, this error in the Grand To- tal is also reflected in the Administrative Law Judge's Supplemental Order in which the Backpay Grand Total for Wallace Kimball should be $5.307.01. In addition, in Appendix 28, with respect to Harold Rosheim, the Administrative Law Judge inadvertently listed the 1972. 2d Quarter. Quar- terly Totals to Discriminatee as $1,394.78 whereas the correct figure is $1,394.66. The other computations in that appendix, however, were not af- fected by this error. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART. Administrative Law Judge: On January 3, 1974, the National Labor Relations Board, hereinafter called the Board, issued its Decision and Or- der I directing, inter alia, Sioux Falls Stock Yards Compa- ny, hereinafter called the Respondent, to reinstate and make whole, with interest, certain employees of the Re- spondent for any loss of earnings suffered by reason of the discrimination against them. On January 23, 1975, the United States Court of Appeals for the District of Colum- bia Circuit entered its judgment denying the Respondent's petition for review and enforcing the Board's Order.2 The parties' having been unable to agree upon the amount of backpay due certain discriminatees, the Regional Director of the Board for Region 18 issued a backpay specification and notice of hearing and an amendment thereto,3 each of which were duly answered by the Respondent. The Re- spondent, in its answers to the backpay specification, as amended, denies that the discriminatees involved are due the backpay in wages and other reimbursement recited in the specification and has alleged certain affirmative de- fenses. On the issues thus joined, the matter was heard at Sioux Falls, South Dakota, during 30 days between March 22 and November 12, 1976. At the hearing, 4 the parties were represented by counsel and were given full opportunity to examine and cross-ex- amine witnesses, to introduce evidence, and to file briefs. The briefs filed by the General Counsel and the Respon- dent have been considered. Upon the entire record in this case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT A. Background The Charging Party, Local 304, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, herein the Union, as the duly constituted bargaining representative of the Respondent's hourly paid operational employees, following unsuccessful negotiations for a new contract, struck the Respondent on November 21, 1971. The Board, in the underlying proceeding, in addition to '208 NLRB 64. 2 509 F.2d 538. 3 The backpay specification and the first amendment thereto were dated January 20 and February 20, 1976, respectively. Additional amendments to the backpay specification made on the record were also duly answered. 'At the start of the hearing, counsel for the State of South Dakota De- partmeni of Labor entered a special appearance and moved that any back- pay order found herein provide for the repayment to that State of the amount of unemplo ment compensation previously afforded to the relevant recipients The motion was denied. Gullert Gin Company, Inc. v. N LR.B., 340 U.S. 361 ( 1951 ):. N.L. R B. . Sellers e al., Doing Business as Coca-Cola Bottling CompanY of Sacramento, er al., 57 LRRM 2141 (C.A. 9. 1964). cert. denied 379 U.S. 920. 236 NLRB No. 62 543 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding that the strike had been caused by the Respon- dent's unfair labor practices in violation of Section 8(a)(5) and (I) of the Act, also concluded that the Respondent had violated Section 8(a)(3) and (1) of the Act by its failure and refusal to reinstate the striking employees when, on March 21, 1972, they made an unconditional offer to return to work. To remedy the 8(a)(3) and (1) violations, the Board and the Court of Appeals for the District of Columbia Cir- cuit, as noted above, order the Respondent to offer to the 39 named employees against whom the Respondent origi- nally had discriminated immediate and full reinstatement to their former jobs, or to substantially equivalent posi- tions, and to make them whole "for any loss of earnings they may have suffered from the date of their uncondition- al offer to return to work to the date the Respondent un- conditionally offers or offered them reinstatement." The instant backpay specification seeks the reimburse- ment of 34 of these discriminatees for their earnings alleg- edly lost from March 22, 1972, the start of the backpay period, until the respective dates when the Respondent of- fered them reinstatemenf. In addition, the General Counsel and the Union. contrary to the Respondent, contend that the latter has an obligation, continuing to date, to make contributions to the Amalgamated Meat Cutters pension fund on behalf of the great majority of the backpay claim- ants from March 22, 1972, because of the conceded refusal by the Respondent to make such payments. The remaining six discriminatees for whom current pension fund contri- butions are not claimed left the Respondent's employ at various dates prior to the start of the hearing which will be specified below. As to them, pension contributions are being sought up to the time of their departure from the Respondent. B. The Formulas for Computing Backpav The answer admits that the backpay period for all claim- ants commenced on March 22, 1972, and thereafter contin- ued until the dates when they, respectively, either were re- called to work by the Respondent or, having received offers of recall, declined to accept same. The formula under which the number of hours per quar- ter of gross backpay were calculated in the backpay spec- ification was based on a determination of the number of hours worked by each replacement employee employed by the Respondent during the quarter. The total number of hours worked by replacement employees was obtained by adding all of the straight time hours plus the one and one- half times the number of overtime and holiday hours dur- ing which they worked. The base number of hours that each discriminatee would have worked in each quarter of the backpay period was then obtained by dividing the sum total of all replacement hours by the number of replace- ments employed during that quarter.5 The rate of pay applied for each employee was that 'The base number of hours thus derived is as follows: March 23 to March 31. 1972 56 hours (7 days, 8 hours per day): thereafter, the re- spective quarters and number of hours were 1972-2 522. 1972-3 568, 1972-4-574, 1973-1 588. 1973-2- 543, 1973-3 531. 1973-4- 622. fnd 1974-1 55 per week until the date of reinstatement. which he was receiving under the terms of the last collec- tive-bargaining agreement at the time he went on strike on November 21, 1971. To this was added 10 cents an hour representing a pay raise found in the underlying Decision to have been implemented unilaterally by the Respondent on February 2, 1972. Also, 2 cents an hour was added for all employees 6 representing the average increase which would have resulted from normal bidding on higher paying jobs open due to retirements, quits, and refusals of rein- statement. The base number of hours per discriminatee was modi- fied in the specification by individualized adjustments based upon the respective claimant's established record of absenteeism, past willingness to accept overtime work, and for intervals during the backpay period when an individual discriminatee was unavailable for work due to illness. Accordingly, where absences exceeded 60 hours per year in 2 of the 3 years preceding the strike, gross backpay was reduced by the average absence during the 3 years. These amounts were prorated per man-quarter among those dis- criminatees whose absences were less than 60 hours per year. Thereby, each claimant with less than 60 hours of absence a year in the above-defined period, in effect, was rewarded by having his base number of hours per quarter on the backpay period increased by 18, while those with absentee records of above 60 hours per year in 2 of the 3 years had their quarterly base number of hours reduced by an appropriate percentage.7 No adjustments were made for new employees whose attendance records had not been es- tablished in the test period. The base number of hours were adjusted upwards and downwards with respect to overtime following suggestions by the Respondent as to individual discriminatees. Based on a determination of who had refused overtime and to what extent (Le., weekday and/or Saturday overtime), quarterly overtime adjustments were made in the specifica- tion on a prorated basis for each discriminatee whereby their base number of hours per quarter were either in- creased or reduced on the basis of their respective records for overtime work. The formula adjustment that was made with respect to those unable to work because of illness was predicated upon the terms of the last collective-bargaining agreement between the Respondent and the Union. Under the con- tract, where an individual was unable to work due to ill- ness, starting with the second week, he would be entitled to receive $80 per week instead of the gross backpay calcula- ble under the herein described formula otherwise used in the specification. The quarterly gross backpay, with further adaptations to Excluded from the 2-cent hourly increment were discriminatees who already were receiving the highest pay rate and those whose compensation constituted sick pay pursuant to the collective-bargaining agreement. ? Charles J. Frisch. the attorney who prepared the backpa) specification. testified that he worked from data supplied by the Respondent and took the base period of 2 of the 3 years preceding the strike as a representative period. He noted that. while there were some employees with very good attendance records in the base period, absenteeism tended to rise substan- tially above 60 hours per sear. Therefore, this figure was selected The addi- tions of 18 hours per quarter and the drivers percentage reductions, based on prior attendance, were so applied and balanced that the total base num- ber of hours are the same as set forth above in fn. 5 544 SIOUX FALLS STOCK YARDS be discussed below, was determined by multiplying the ad- justed hours applicable to the backpay period of each dis- criminatee by the wage rates he would have received dur- ing such backpay period. Calendar quarter net interim earnings were defined in the specification as the difference between calendar quarter interim earnings and calendar quarter, while calendar quarter net backpay represented the difference between calendar quarter gross backpay and calendar quarter net interim earnings. Mileage expenses af- forded certain employees in the pursuit or fulfillment of interim employment beyond what would have been re- quired had they driven from their homes to the Respon- dent's premises was calculated at 10 cents a mile. The total net backpay due each discriminatee was the sum of the calendar quarter amounts of net backpay due him.8 The Respondent admitted the propriety of the General Counsel's method of computation to the extent set forth above, with certain exceptions which will be considered, and admitted the beginning 9 and end of the backpay pe- riod for each discriminatee. The Respondent's contention that it is not under a continuing obligation to make addi- tional contributions to the pension fund on behalf of the discriminatees under the terms of the collective-bargaining agreement which expired on November 21. 1971,10 and its other position will be considered below. As the backpay formula as described above is not ba- sically contested, it hereby is found to be appropriate. The areas of dispute will be considered below. C. Contentions Applicable to More Than One Claimant 1. The pay rate adjustment for job bidding The Respondent, in its answer and first affirmative de- fense, denied the propriety of adding 2 cents an hour to the in-force pay rate to adjust for the average increase from normal bidding on higher paying jobs which, for various reasons, became open. Excluded from this increment, as formulated and described above. were those receiving the top rate of pay and those whose earnings constituted sick pay under the terms of the most recent collective-bargain- ing agreement. It is well settled that the burden is on the Respondent to establish its affirmative defenses.' including the instant as- sertion. As no evidence was presented in the record in sup- port of this defense, the 2-cent-per-hour increment to pay rate will stand as alleged in the backpay specification. The Respondent, while agreeing in principal with the above definitions of calendar quarter net interim earnings, calendar quarter gross backlpas. and total net backpa., denies that these figures were accuratels calculated in the specification with respect to the various employees 9The start of the backpay period for each discriminatee is March 22. 1972 "'The contract, originally effective November I. 1968. to October 31. 1971. was extended on October 28. 1971. to remain in force subject to termination by either party on 48 hours' notice. Such notice of termination was given by the Union on November 19. 1971 ' N L R B v. Mastro Plastilic C(orporaiion and French American Rieeds Manufacturing (Compant, 354 F 2d 170 (( .A 2. 1965); Mid-eslP Ilanger (, and Liberti, Engrntering (Corp. 221 NLRB 911., 917 (1975). enfd. 550 F.2d 1101 (C. A. 8, 1977) 2. Vacation pay The backpay specification makes claim for vacation pay for claimants who would have received vacations from the Respondent during 1972 and 1973 had they been employed in the Respondent's stockyards during the backpay pe- riods. Vacation pay for 1972 was credited therein by reduc- ing the employees' interim earnings by the number of weeks of vacation due each employee for that year in the first quarter of 1973. With respect to employees who were recalled by the Respondent from January to March 1973, their interim earnings were reduced accordingly in the fourth quarter of 1972. Deductions from interim earnings were made in a later quarter of 1973 where there were no interim earnings in the first quarter of 1973. The specification credited 1973 vacation pay by reduc- ing the employees' interim earnings by the pertinent num- ber of weeks either in the quarter in which recall occurred or in the quarter immediately preceding. The Respondent's seventh defense, directed to the fore- going vacation pay allegations. was stricken at the hearing. This defense contended that, since under the Respondent's vacation policy employees are required to take vacations in order to receive vacation pay, the entitlement of claimants who had accrued a vacation in 1972 and 1973 already was credited to them by the assignment to them of gross back- pay for the relevant backpay period, without making de- ductions therefrom for absence due to vacation. Translat- ed, this means that. under the policy described by the Respondent, its employees who, for example, had accrued an annual vacation of 2 weeks must actually take their vacations to receive anything. Accordingly, the Respon- dent contends that they could not receive 54 weeks' pay for the year by electing to work on a straight time basis through their vacation periods while drawing extra com- pensation for their unused vacation period. As they could only be paid for 52 weeks each year, the Respondent ar- gues that the vacation pay computation in the backpay specification which provides an allowance for vacations over and above gross backpay calculated on a 52-week annual basis is incorrect. 2 It, of course, is settled law that vacation pay is properly included in a backpay award.'3 The Respondent's argu- ment on behalf of a policy, not otherwise supported or established in the record, that employees could only re- ceive vacation benefits by actually taking a vacation over- looks the fact that the discriminatees were precluded from exercising that option during their respective backpay pe- riods by the Respondent's unlawful conduct. The further contention that, under the General Counsel's computation, there was provided a possibility that employees then might receive annual compensation in excess of 52 weeks in con- sideration of their vacation pay was considered in Heinrich Motors, inc.,'4 where such a formula was upheld. In that case, it was noted that the discriminatee rather than the respondent should secure the benefit of working time in 2I he Respondent's position with regard to vacation pay is not supported bh any language In the collective-bargaining agreement. I .4von Conialesrent ('enttr, Inm. 219 NLRB 1210. 1214 (1975); The Rich- auri 1. Kaase C(ompani. 162 NL.RB 1320, 1325 (1967). 14 166 NL RB 783. 792 793 (1967). enfd. 403 F.2d 145 (C.A 2. 1968). 545 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excess of that which he would have worked for the respon- dent. This is valid here, for any computation based upon an assumption that the Respondent's employees would have worked through their vacation periods without specif- ically being paid therefore, as the Respondent in effect urges, would be based on a premise of unjust enrichment to the Respondent. As there is no independent evidence in the record that any employee, in fact, had followed a past practice of making the Respondent a gift of his vacation time, there would appear to be no basis for doing so at this time. Accordingly, the ruling made early in the hearing that the seventh affirmative defense be stricken is hereby reaf- firmed after review of the completed record, and vacation pay will be awarded to claimants as per the specification. 3. Pension fund contributions At the hearing, the Union moved, with the General Counsel's concurrence, that the backpay specification be amended to provide that all pension payment contribu- tions be made by the Respondent directly to the Amalga- mated Meat Cutters pension fund (national pension fund). As originally drawn, the specification alleged that such contributions should be made to the fund only on behalf of those claimants still in the Respondent's employ when the specification was issued. However, as to those identified as no longer being with the Respondent, the moneys that otherwise would have been contributed to the fund on their behalf should be paid directly to them as part of their gross backpay. The General Counsel and the Union further con- tend that, as the Respondent has made no pension contri- butions from March 22, 1972, through the time that the hearing closed, the Respondent is under a continuing obli- gation to make pension contributions to the fund on behalf of all employees. This obligation, they contend, survived the backpay terminal dates on which the respective dis- criminatees were recalled, and which, for all other pur- poses, tolled accrual of further liability by the Respondent. The only alleged exceptions to this continuing claim were II employees, who, after receiving their recall offer from the Respondent, decided to resign their jobs after a period of further employment, to retire, or to decline the recall offer in the first instance. The excepted claimants and the dates on or about which their connection with the Respon- dent and their alleged entitlement to further pension fund contributions would end are as follows: Lloyd Eitrem- April 17, 1974; Leo Groos-September 1, 1974; Richard Loftus-January 23, 1974; Arthur Styke-September 29, 1974: Jerry Baker-October 1, 1974; Arthur Robinson- November 9, 1973; Robert Ahrendt-December 3, 1973; Arnold Anderson-November 26, 1973; Ronald Lee--Oc- tober 29, 1973; Velmar Stevens-March 1, 1973; and Case Wagner-October 29, 1973. Although the Respondent concedes that the monthly contribution per employee to the pension fund, as alleged in the specification, of $17.30 or $51.90 per quarter accu- rately represents the size of the contributions previously made under the terms of the most recent collective-bar- gaining agreement, and admits that it has made no pay- ments whatsoever to that fund since the start of the back- pay period, the Respondent denied in its amended answer that it continues to owe pension payments t5 and inter- posed a series of affirmative defenses which will be consid- ered below. In support of its motion that all pension contributions be made to the above-named pension fund rather than to indi- vidual discriminatees, including those on behalf of claim- ants who were no longer employed by the Respondent when the specification issued, the Union cited Associated Truck Lines, Inc.,'6 and Finishline Industries, Inc., 17 which provide that such contributions more properly should be paid directly to the pension fund even though former em- ployees may not be benefitted directly since they had not obtained vested pension rights, and the payments made to the fund on their behalf, in effect, are forfeited. Those con- siderations were specifically considered in Finishline Indus- tries, Inc., supra, where Administrative Law Judge Sahmt' in his Board-approved Decision, found as follows: It is not inappropriate to note that actuaries take into account the fact that some contributions will be for- feited, in determining what per hour contributions will be necessitated in the future to keep the pension fund sound.19 The agreement establishing the pension plan in the present case did not condition contributions on eventual vestiture of interest by all employees on whose behalf payments were made. The Respondent's affirmative defense 20 to the effect that it was not required to make contributions to the pen- sion fund under the terms of the expired agreement and that such payments would force the Respondent unlawful- ly to pay things of value to the Union were considered in Wayne's Olive Knoll Farms, Inc., d/b/a Wayne's Dairy,2' where the following passage was quoted from Harold W. Hinson, d/b/a Hen House Market No. 3 v. N.L.R.B.. 22 The parties had agreed to a subsisting collective bar- gaining agreement which included the health, welfare, and retirement benefit provisions. The [Board's] order . . . simply requires [the employer] to abide by an obligation once extant by reason of the binding con- tract but then continuing on after its expiration, in limited form, not by reason of the contract itself but because of the dictates of the policy embodied in the Na- tional Labor Relations Act. [See also Sir James, Inc., 183 NLRB 256 (1970).] t It is undisputed that prior to the start of the 1971 strike. and in accor- dance with the terms of the collective-bargaining agreement then in effect. pension payments were made to the fund by the Respondent on behalf of all the claimants herein. 16 196 NLRB 222. 224 225 (1972). ? 181 NLRB 756. 760 (1970). enfd. as modified 451 F.2d 1280 (C.A. 9. 1971). 'i 181 NLRB at 760. 19 Contrary to the Respondent, I find that the three-page letter introduced in the record as part of C.P ELh. Exh. its motion to amend the pension allega- tion of the specification. is relevant as it tends to show the supporting actu- arial basis therefor. 20 See G.(. Exh. Il(k) which is an answer to certain amendments to the specification made at the hearing. -223 Nl.RB 260. 264 (1976) 2- 428 I 12d 133. 138 (C.A 8. 1970). 546 SIOUX FALLS STOCK YARDS The Wayne Dairy decision then considered the respon- dent's point about the legality of such contributions in the following passage (223 NLRB at 264): This conclusion does not ignore Respondent's argu- ment that to have continued to make the contributions after expiration of the underlying contracts would have been a misdemeanor under Section 302 of the Act.'° Rather, it reflects disagreement with Respon- dent, in light of the policy considerations behind the enactment of Section 302, that continued contribu- tions would have constituted a crime. The legislative intent was to enhance the bargaining process, not to truncate the traditional obligations of bargaining. To quote from the Supreme Court in Arroyo v. U.S., 359 U.S. 419, 425-26 (1959): The provision [Sec. 302] . . . was aimed at practices which Congress considered inimical to the integrity of the collective bargaining process .... Those members of Congress who supported the amend- ment were concerned with corruption of collective bargaining through bribery of employee representa- tives by employers .... This congressional concern would not be served by permitting Respondent to escape its pension and health and welfare obligations in the present case be- cause of the expiration of the underlying contracts; yet, the congressional concern on which Section 8(a)(5) is based would be significantly undermined. On the other hand, the latter concern would be served without visiting detriment on the former by treating the expired contracts as meeting the "written agree- ment" requirement of Section 302(c)(5)(B)--at least absent circumstances not present when Respondent discontinued its contributions.... Respondent's Section 302 defense is rejected, in short, because it breaches the familiar axiom that a construction bring- ing statutory schemes into harmony is presumed cor- rect as against one placing them in conflict, ' Sec. 302 states in relevant part: Sec. 302 (a) It shall be unlawful for ant: employer . . to pay. lend. or deliver . . . ans money or other thing of value (2) to any labor organization . . . which represents . . . ans of the employees of such employer .... Sec. 302(c) The provisions of this section shall not be applicable .... (5) with respect to money .. paid to a trust fund established by such representative, for the sole and exclusive benefit of the em- ployees of such employer . .. : Provided, That . .. (Bi the detailed basis on which such payments are to be made is specified in a written agreement with the employer . . For the reasons in Wayne Dairy, supra, it is found that the Respondent's obligation to continue contributions to the pension fund survived the expiration of the collective- bargaining agreement and that such contributions would not constitute unlawful payment to the Union within the meaning of Section 302 of the Act.23 23 Also see Associated Truck Lines. Inc., 196 Ni RB at 225. fn 15s. There also is no merit to the Respondent's defense that it is under no liability to make pension fund contributions on the ground its failure to make such remittances to the Am- algamated Meat Cutters pension fund after expiration of the contract had not been alleged in the charge in the un- derlying case, and the matter was not litigated in the un- derlying proceeding. The short answer to this argument is that it runs contrary to the holding in the earlier case. In his Decision in the underlying matter, approved .by the Board and the District of Columbia Circuit, Adminis- trative Law Judge Saunders made ample reference to the position of the parties with respect to pensions during their unsuccessful negotiations toward a new agreement. In ad- dition to specifying the Respondent's bad-faith bargaining at the negotiating table, Administrative Law Judge Saun- ders also considered its bad-faith conduct away from the table. In the latter connection, Administrative Law Judge Saunders specifically found 24 that the respondent had ceased making pension contributions for strikers who, by the time of the hearing, had returned to work. Accordingly, not only was the matter of the Respon- dent's nonpayment of pension contributions for returning unfair labor practice strikers, such as the claimants herein, apparently litigated, but it also was one of the specified elements of bad-faith conduct that served as a basis for the Respondent's liability in the instant proceeding. No merit is found to the Respondent's further conten- tion that it would be denied the opportunity of negotiating the pension issue with the Union were that item to be preempted by a Board Order requiring the Respondent to pay into the pension fund under the terms of an expired contract while the matter allegedly is still on the bargaining table. As was held in the Eighth Circuit's decision in Hinson, d:;h a Hen House Market No. 3 v. N.L.R.B., supra, quoted above and emphasized in the Wa)vne Dairy case, the Re- spondent's duty to make pension contributions on behalf of its employees continues past the expiration of the bind- ing contract which created the obligation, not by reason of the contract itself, but as a matter of legal policy. The con- tinuity of this obligation having been established, no effort is being made here to change the amount of the monthly contribution per employee previously agreed to by the Re- spondent when the last contract was executed. Any changes in the amount of the Respondent's contributions are still subject to negotiation by the Respondent and the Union in the same manner as are any changes to the over- all pension plan itself. The Respondent's difficulties in this matter have not been predicated upon a lack of opportuni- ty to negotiate. 4 208 NLRB at 72 * The Respondent objected that on the first days of the hearing certain written and oral motions made by the General Counsel and Union to amend the backpay specification were granted. These motions, which in- cluded the amendment to the pension plan allegations considered herein. were opposed on the grounds that, coming after the start of the hearing without good cause, they were not timely made and should not have been granted. This argument is rejected. The granting of reasonable motions to amend the pleadings is a valid exercise of discretion as contemplated b' the National Labor Relations Board Rules and Regulations. Series 8, as amended, and its exercise is particularly appropriate at the start of a lengths Continued 547 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the foregoing reasons, consistent with the "make- whole" remedy previously ordered, it is concluded that the Respondent has an obligation commencing with the start of the backpay period and continuing to date to make con- tributions to the Amalgamated Meat Cutters pension fund for all claimants, except the discriminatees named above, in the per capita amount of $17.30 per month or $51.90 per quarter as set forth in the amended specification. With re- spect to the claimants for whom continuing pension contri- butions are not due, the Respondent is obligated to make contributions to the pension fund on their behalf from the start of the backpay period until the above-listed dates when, following their recall by the Respondent, they, re- spectively, concluded their employment with the Respon- dent. 4. Insurance premiums The backpay specification alleges that the gross backpay of each claimant was increased by the amount that would have been paid by the Respondent in life and health and welfare insurance premiums on their behalf during the backpay period, as such benefits had been maintained in force by the Union.26 In accordance with the uncontradicted testimony of Francis Krier, union business agent and corresponding sec- retary, I find that, prior to the 1971 strike, the Respondent had provided the employees with hospitalization, medical, surgical, and major medical insurance under Blue C'ross- Blue Shield paying full premiums for this coverage. After the start of the strike, the Union paid the premiums for this insurance to the Respondent for a period of 6 months through a series of loans to the employees. When after that period the Respondent would no longer accept the premi- ums, payments were made by the Union directly to the insurance carrier. These premiums were carried for all em- ployees until the first day of the first month following their recall. It also is found from Krier's testimony that life insurance premiums had also been paid by the Respondent until the start of the 1971 strike and were continued by the Union, also on a loan basis to, and on behalf of, the employees. Unlike the health benefits discussed above, which contin- ued throughout the respective backpay periods, the Union paid the life insurance premiums for the discriminatees only for a period of 6 months ending May 31, 1972.27 That these premium payments were repayable loans was com- municated to the employees at a union meeting and, after a vote, was accepted by them on that basis. proceeding encompassing many allegations, including the rights of 34 claim- ants The Respondent, in the course of a proceeding that was extended over a period of about 8 months, was afforded ample time to answer and to prepare to meet all new matters raised in the amendments, opportunities which it exercised. It is further noted that, on the 30th dal, of hearing, the Respondent itself twice sought to further amend the pleadings bh the inier- position of additional defenses. !2 The last collective-bhirgaining agreement provided that the Respolndci would provide certain life insurance, accidental death and dismemberilent coverage. and weekly disability benefits either through participaiiomn II Ihe packinghouse workers welfare fund or other equivalent programs. ' Accordingly, the insurance premium loans by the Union comnmenced and were mostls made before the start of the hackpay period. It is established that loans made by a union to its adher- ents during the backpay period are not deductible from gross backpay as interim earnings. 2 8 It is also well settled that the Respondent would be liable for any expenses in- curred by its employees during their respective backpay periods had their life or health and welfare insurance cov- erages been permitted to lapse.29 Had the discriminatees been reinstated when they should have been, they would have been covered by the aforementioned insurance plans at no cost in premiums to themselves. Accordingly, it is clear that the costs of these premiums for hospitalization, medical, surgical, and major medical insurance at the stated rates represent a part of the claimant's entitlement and that additions to gross backpay to allow therefore were properly made in the specification. However, the specification also provided that life insurance premiums at a rate of $19.65 per quarter throughout each discriminatee's backpay period should be included as part of their gross backpay. There appears to be no factual basis for so extending these premiums as Union Business Agent Krier testified that such premiums had been advanced by the Union on behalf of claimants only through May 1972. While the General Counsel and the Union, in my view, are correct that the Respondent was required to maintain the preexisting insurance coverage, including life insurance, during the backpay period and thus, would have been obli- gated to make whole the estate of any deceased discrimina- tee under the terms of that policy, it is not also required to make such life insurance premium payments retroactive af- ter the second quarter of 1972. For after that quarter the Respondent, by not continuing the premium payments, had placed itself in the role of a self-insurer in maintaining the life insurance program, and employees who were not otherwise adversely affected have no claim to those premi- um payments as the Respondent, however involuntarily, assumed the risk. See Impressions, Inc., 221 NLRB 389, fn. 2 (1975). However, the Respondent is obligated to make retroactive life insurance premium payments as part of backpay to its employees for so much of the first two quar- ters of 1972 as fall within the backpay period: for in that time the Respondent was not the insurer of these claim- ants, and they may be financially liable to the Union for the life insurance protection thev received at that time. 5. Strike benefits and unemployment compensation received by the discriminatees during the backpay period The Respondent repeatedly offered to show with regard to each discriminatee that the amounts received by them during the backpay period in unemployment compensation from the State of South Dakota and in strike benefits from the Union either equaled or exceeded what they would have earned had they been employed by the Respondent during their respective backpay' periods. From this, the Re- spondent argues that an inference is warranted that the employees were less than diligent in seeking interim em- (, G;arv tirrlt ( -r/arlhot.ur, 211 N LRB 554 556 (l974) :9 Ri, l.l k, c t ,c.i:o (' ,,i,lnL 11 NIlRB I 13 1129 (1965). enfd 365 F. 2d 888 ( C.A I) (.. 19661. Lee ( r tnoh,, Dlii oi l q (ol s & ( o. In . ,I, 184 NL.RB 241. 273 ( 1974)), cnfd 447 : 2d 291 ((A 7, 1971). cert denied 404 I .S. 1058 (1972 548 SIOUX FALLS STOCK YARDS ployment as they were not under financial stress. In its 10th affirmative defense, the Respondent argues that, in the very least, the strike benefits received constitute interim earnings for which deductions should have been made from the gross backpay allegedly due the claimants)'0 The record reveals that without exception the discrimi- natees, soon after the start of their backpay period on March 22, 1972, registered with the Employment Securitr Department of the South Dakota Department of Labor after which they became eligible for and received unem- ployment compensation. The majority, except for those who obtained interim employment before the expiration of their entitlement, continued to receive this compensation for the full 26-week period. During their entitlement pe- riods, all discriminatees maintained their eligibility status, as required by the department, by meeting the reporting requirements and making active searches for worked No discriminatee was denied unemployment compensation at any time because of failure to meet the State's continuing eligibility requirements or for having rejected job opportu- nities at possible places of employment to which they had been referred by the Employment Security Department. The record also reveals through the testimony of Krier and various claimants that weekly strike benefits were paid to all discriminatees throughout their respective hackpay periods. These payments, unlike unemployment compensa- tion which did not continue beyond 26 weeks for anyd indi- vidual, were made throughout the backpay period even to those who had found interim employment and were not repayable. The strike benefits thus afforded, it is clear, were not dependent upon picketing or the performance of other services by the recipients. It is well established that unemployment compensa- tion 32 and strike benefits 33 are not interim earnings de- ductible from gross backpay. In N.L.R.B. v. Mtr Store. Inc., cited by the Respondent. it was argued that, as the union was paying strike benefits to the discriminatees during the backpay period in an amount equivalent to their net take home pa, there vwas little incentive on the part of the claimant to seek outside employment. The court noted, however, that this was only a permissible inference from the facts and did not, h. itself. -3 Although in this connection the Respondent subpenaed a inld ...mlried records of the Union herein and D)istrict Eleven of the MW.l ( uttrs, i.n intermediate body of which the Union at a component part. thc Rc.pondcnl was unable to establish that ans moness were pird i, the .-1. rlinn.lecs beyond weekly strike benefits. In addition. while certain offers of proof made reference to other benefits allegedlN asailable during the bh.ckpir period, such as food stamps, no esidence was adduced Ihlat. durlg the backpay period, any of the specific claimants had received hcnelfit ither than the unemployment compensation and strike benefits referred to herein n Donald Norby, manager of the Job search office of the F mployimnent Security Department in Sioux Falls. testified that, under the repirting re quirements of his office. applicants for unemployment comperia.i, n sh,. have met the eligibility prerequisite of having been employed for the prrced- ing 2 years must visit the Employment Securit? Departmen aifter the 1st and 10th week of nonemployment. They could mail in their ueekls benefil forms which must show at least tIwo job efforts a week during Ihe other weeks. 2 Gullet! Gin Compan,. Int. v. '. i R B. .340 U.S. 361 13 Rice Lake Creameri ('impani, 1sl NLRB at 1131. '4 468 F.2d 1146, (1151 (..A 7, 1972), enfg. as modified 181 Nl RB 21 f1970), cert denied 410 tI.S 910 (19731 prove that the discriminatees had failed to make a diligent job search. The court noted with approval the following conclusion by the Board's Administrative Law Judge: The fact that some of them may not have searched as diligently for work before the Union ceased making the loans as they did afterwards is an indication of the impelling necessity to obtain employment and does not mean that they were not searching for reasonably equivalent employment prior to that time.35 Contrary to the Respondent's contention, the courts, and the Board have consistently refused to draw an infer- ence that strike benefits, even equal in amount to what the discriminatees might have earned from their employer dur- ing the backpay period, per se would serve to take them out of the labor market during the periods of time such pay- ments were made. The Seventh Circuit in its decision in .L.R.B. v. Mtv Store. Inc., supra, also quoted with ap- proval (at fn. 4 therein) the following findings by the U.S. Court of Appeals for the District of Columbia in N.L.R.B. v. Madison Courier Inc.. 3 The application of rigid rules regarding the effect of picketing or receiving union strike benefits during the backpay period on the determination of mitigation doctrine questions has similarly been eschewed. The fact that unfair labor practice strikers received strike benefits does not diminish their right to receive back pay. providing they otherwise made reasonable efforts to locate suitable interim employment." Likewise, the fact that such persons engaged in picketing during the back pay period does not automatically negate their right to reimbursement by their employer. However, like the receipt of strike benefits, picket line activity does not relieve the discriminatees of the obligation of making reasonable efforts to obtain appropriate inter- im employment.?- 41 See It,retiti Printing (C s . L R.B.. 376 F.2d 216. 218 220 (4th it )i. cert denied 389 t S.S 40 . %7). . N.L.R B v Rice Lake 'reanert (o .... 365 F 2d 888. 893 1)966): N.L R B v. Brashear Fr i'ght lines. Inc. 127 F:.2d 198. 199-200 (8th Cir. 1942). 42 See OalrlA HIrdi.ood (,i. 119 N.L.R.B. 1130. 1135 n. 18, 1136 1138. remanded otn other grounds. 282 F.2d I (8th Cir. 1960): N 1. R B. v Rice Lakei (reamer l Co. supra. As strike benefits have been held by the Board not to constitute interim earnings,3 7 the burden is on the Respon- dent to prove that the amounts received from the Union by the striking employees were in the nature of pay for interim employment and were not strike benefits. This burden was not met. Accordingly, it is concluded that the amounts of moneys advanced by the Union to the discriminatees in the form of strike benefits do not constitute interim earnings. At no time during the backpay period were the discrimina- tees employees of the Union. I It is clear then that, in de- ' The strike benefits made hbs the union to the employees were in the fornm of loans in the Mi Store. In,. case : 472 F.2d 1307 (1972). The District of Columbia Circuit remanded the IadirI n ( our!r case to the Board on other grounds. 'See also LoGano Enterprises, 151 NLRB 258. 260. 254 (1965). affd 356 F.2d 487 (( A 9. 1966). Standard Printing C ornpan, of Canton, 151 NLRB 963 I 19651 Rene Deitte and ( arroll Barnes, claimants herein. respectively re- 549 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminging the respective discriminatees' backpay entitle- ments, the emphasis has been placed upon whether the re- spective claimants had made reasonable efforts to find in- terim employment and not upon whether they were in some way automatically removed from the job market by virtue of the strike benefits and unemployment compensa- tion afforded to them during the backpay period. In this connection, it is noted that the Respondent made its argu- ment concerning the impact of these benefits upon the dis- criminatees in a rather blanket fashion directing it as readi- ly against those who had been successful in obtaining interim employment almost immediately as against those who experienced greater difficulty. For the above reasons, it is concluded that there is no merit to the Respondent's 10th affirmative defense that strike benefits should be deducted from gross backpay as interim earnings. 6. Mileage expenses The specification includes allowances for travel expenses in seeking or maintaining interim employment on the basis of 10 cents per mile. In the past, the Board has approved such allowances at the specified rate.3 Accordingly, I find no fault with the specification in this respect. 7. Alleged disqualification from backpay because of picketing The Respondent also contends that, because the discrim- inatees (almost without exception) were engaged in picket- ing throughout their respective backpay periods, an infer- ence is warranted that these activities conflicted with their obligation to secure employment. Accordingly, it is urged that backpay should be reduced during periods devoted to "excessive picketing." The fact that such persons engaged in picketing during the backpay period did not automatically negate their right to reimbursement by the employer. However. like the re- ceipt of strike benefits, picket line activity does not relieve discriminatees of the obligation of making reasonable ef- forts to obtain appropriate interim employment.40 In any event, the burden of proving that the discrimina- tees failed to make a reasonable search for employment was on the Respondent. 4 ' The record does not disclose that the picketing prevented any of the discriminatees from searching for or obtaining other employment. To the con- trary, the evidence shows that the union leadership had reminded the discriminatees of their obligation to do so instructing them to keep records of their job search ef- forts.4 2 It is further noted that, after the start of the back- ceived nominal compensation from the Union in their successive capacities as assistant business agents pursuant to a policy that predated the strike and backpay period and, therefore, said compensation is not chargeable against their gross backpay. 39 See Rice Lake Creamer'v Co. supra: Lee Cylinder D)lro ol ;I1 (l .nd111 Co., Inc. 184 NLRB at 273. 4" N.LR.B. . Madison Courier Inc., supra. N.L. R B s ,'t Siorl. ,Il, supra. 4' Rice Lake Crearner Co.. supra. HW'. C. Nabor.s, h , CI ( Sa/,ilr Compans, v. N.L.R.B., 323 F.2d 686 (C.A 5. 1963). pay period, the Union materially' reduced picketing sched- ules cutting them by about 50 percent. Moreover, in ad- ministering these schedules, there was appreciable flexibili- ty which enabled some discriminatees to picket more than others and to exchange picketing shifts. Discriminatee Case Wagner, who had obtained interim employment, even paid another discriminatee to take his shift. It is further noted that certain of the most dedicated pickets walked the picket line only at nighttime and on weekends when em- ployment opportunities were at a minimum. In view of the foregoing, there is no support in the record for the conten- tion that by their picketing the discriminatees had fore- closed themselves from employment. 8. Area employment opportunities The Respondent put into evidence a chart showing sea- sonallv adjusted statistics for the South Dakota civilian work force on a monthly basis from January 1971 through December 1973 prepared and published by an agency of the State of South Dakota. These indicate that the overall unemployment rate in South Dakota and, more specifical- ly, in the Sioux Falls area during the backpay period was relatively low when compared with that of the rest of South Dakota.4 3 The Respondent also placed into the record photocopies of classified advertisements from the Sunday editions of the principal local newspaper from Sunday, March 26, 1972. through Sunday. December 30, 1973, to show that employment opportunities existed throughout the backpay period. As the discriminatees had not applied for these ad- vertised jobs and in many cases did not consult the news- paper, the Respondent argues that an inference is warrant- ed that they did not make a reasonable and earnest search for interim employment. In Florence Printing Comapunl,,44 the Respondent therein also contended that, although suitable jobs were available in the area as indicated by advertisements in its newspa- pers, employees had failed to avail themselves of other em- ployment during the backpay period. In that matter, the Board agreed with the following definition of the Respon- dent's burden as stated by the Administrative Law Judge (158 NLRB at 793): Respondent made no attempt at the hearing to show that any of the "want ad" jobs were offered to any of the involved given former strikers. Respondent has ac- cordingl: failed to meet the burden of proof required of it "to establish facts which would negative the exis- tence of liability to a gitten employee or which would mitigate that liability." 4: Mfer a lapse .f several scalrs the job search records which the employ- ees hid kept at Ihe urging o Itheir union provided the basis for much of their re.sp cll. e lestllntt l. l Iin t;i area.; I ce ,,r ta;itc slimited Ioi Slit/lh Dakota were not broken down to show the , ork c;aitciores mnlt sigiifica.ntly affected by unemployment or the eduii,tliona; l Ilcel i the-se princlpalll dislocated or their age grouping,. ex- cepi that the cinmpltil ligI ents hld. in accordance with the requirements of the I ederal (,,ei tii,,il, ro(ken the aurk force down to reflect those under lred csr Ihe .ge Iof 4S I hat inrtrmallon, however, was not contained in the cxihlbit 14 158 N RB 775, 777 0(t66). enfd 376 F. 2d 216 (C A. 4. 1967. cert denicd 3sit 1 S 8401 550 SIOUX FALLS STOCK YARDS In Florence Printing Companv and in the present matter, no showing was made by the Respondent that specific backpay claimants actually had been offered and rejected any advertised position. Upon the record herein, the General Counsel, in his brief, justifiably quoted the following excerpt from Admin- istrative Law Judge Weil's Decision in The Laidlaw Corpo- ration. 45 With the exception of a bundle of unassimilated news- paper advertisement and a letter from the state au- thorities concerning the relative levels of unemploy- ment in [the area], Respondent produced no evidence of any employment available to any discriminatee, nor of the willful failure of any to accept such employment ... . It is not enough that the Respondent thinks that employees should have been able to secure jobs. Sus- picion and surmise are no more valid bases for deci- sion in [the] backpay hearing than in an unfair labor practice hearing, and I decline to indulge in them. The limited applicability of generalized evidence as to work opportunities in a given geographic area in the form of broad employment statistics or as newspaper advertise- ments were also noted in Midwest Hanger Co.46 The test then is whether each claimant made diligent and reason- able search for employment or whether he incurred willful losses, and it is against this backdrop that we must view the efforts of the individual claimants to obtain employment during the backpay periods. D. The Respondent's Remaining Affirmative Defenses 47 1. The second, third, and fourth affirmative defenses The Respondent takes the position that 29 of the 34 claimants had forfeited backpay rights for various quarters because they did not make a bona fide effort to seek em- ployment, they were willfully idle, and the) had incurred a willful loss of earnings. As a part of the second defense, which itself embraces all these conceptually overlapping defenses, the Respondent also adds that backpay should be reduced for those claimants who had elected to stav with their interim employers rather than to accept the Respon- dent's ultimate recall offer, from the dates when such inter- im employment was obtained, on the ground that they had abandoned the Respondent's employ. Administrative l.aw Judge Shapiro, in Aircraft and Heli- copter Leasing and Sales Inc.,4 8 correctl? restated the rule as follows: An employer may mitgate his hackpay liability by 5' 207 NLRB 591. 594. enfd 507 F.2d 1381 (( . 7 1974). cerl denied 422 U.S 1042 11975) '4 See 221 NL RB at 919, where it u is noted thai. while discriminatee aire obhligated to trN to find work. the' max not necesa.ril, he bound Io consult newspaper advertisements In so doing. 4' The allegalion In the first afflrrnllv e defense Ih.it the backpa\ sper- ification contained an inappropriale inclusion of in hourls sum of 2 ccinl per discriminatee as an allow ance for increa;se resulttilc from hidding on higher paid jobs. considered abohe. was allou ed to .land ils unrefuted hx the Respondent. '4227 NI RB 644. 646 (1976) showing that a discriminatee "willfully incurred" loss by a "clearly unjustifiable refusal to take desirable new employment" (Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 199-200(1941)). but this is an affirmative defense and the burden is upon the em- ployer to prove the necessary facts. N.L.R.B. v. Moo- nev Aircraft, Inc., 366 F.2d 809, 813 (C.A. 5, 1966). The employer does not meet that burden by pres- enting evidence of lack of employee success in obtain- ing interim employment or of low interim earning; rather the employer must affirmatively demonstrate that the employee "neglected to make reasonable ef- forts to find interim work."N.L.R.B. v. Miami Coca- Cola Bottling Company. 360 F.2d 569, 575-576 (C.A. 5, 1966). Moreover, although a discriminatee must make "reasonable efforts to mitigate [his] loss of income . . . [he] is held . . . only to reasonable exertions in this regard, not the highest standard of diligence." N.L.R.B. v. Arduini Manufacturing Co., 395 F.2d 420, 422-423 (C.A. I, 1968). Success is not the measure of the sufficiency of the discriminatee's search for inter- im employment; the law "only requires an honest good faith effort." N.L.R.B. v. Cashman Auto Compa- ni' and Red Cab Company, 223 F.2d 832, 836 (C.A. I). And in determining the reasonableness of this effort, the employee's skill and qualifications, his age, and the labor conditions in the area are factors to be con- sidered. Mastro Plastic Corp., 136 NLRB 1342, 1359. It is also well established that any uncertainty in the evidence is to be resolved against the Respondent as the wrongdoer. 4 ' In determining whether the individual claim- ant has made a reasonable search for employment, the test is whether, on the record as a whole, the employee has diligently sought other employment during the entire back- pay period.50 Thus, an employee who has been discnmina- torilv discharged need not instantly seek new employ- ment.,5 nor will the backpay claimant be found to have incurred a willful loss in earnings merely because the search for interim employment was not made in each and ever? quarter of the backpay period. Rather, as the Board stated in Cornwell Company, Inc.. 52 . . I the entire backpay period must be scrutinized to determine whether throughout that period there was, in the light of all surrounding circumstances, a reason- able continuing search such as to foreclose a finding of willful loss. The Respondent also argues that the great majority of the discriminatees sought to avoid finding work by reap- plying for work at places where they already had been un- successful. sometimes on several prior occasions. Contrary 4 \ ., R B v .Mianm Coca-Cola Blitting Comparni. supra. Southern House- hold Prodlrt (;omipani, In . 203 NLRB 881 (1973). S;iolnar l 4lreecae Irn . 191 NLRB 553 (1971)i: V'icrer Chevrolet SI/,i. Ira. 195 NlRB 395.198 (1972) SrSaina Aggrerralr, Inc .Iupra '(ir,trr l ( romprn. Inc. 171 NLRB 342. 343 ( 1968). '\ hile reglstratlion with a stale or other governmental agenc) is prima facre evidence of a reasonable search for work. it is not conclusive. Firestone 5.nththctr Firhe-r and It xilt/ ( ornpar,. Dri.vion of the Firestone Tire and Ruh- her (; 'epani. 207 NLR B 810. 812 (1973): also see Southern Household Prod- u, i, ( ,,nipai. Ifnc. aprr 551 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Respondent's contention, it appears that a number of discriminatees, to be considered separately below, were able to find jobs only after applying several times at the same place. In Nickey Chevrolet Sales, Inc., 54 the discriminatee's backpay entitlement was not reduced al- though he had made 72 contacts at the 24 different auto dealers during an unemployment period of 1-1/2 years. Some of these attempts were repeat calls by telephone. It was noted in Nickey Chevrolet that the discriminatee during 13 of 18 months had contacted but 21 of these prospective employers and had applied to 4 of them 11 times each. Nonetheless, it was found that the respondent had failed to sustain its burdening of establishing that the discrimina- tee had willfully incurred a loss of interim earnings during the backpay period. The record is devoid of evidence that any employee re- fused to accept proffered interim employment in the form of ajob referral or otherwise or that, having received inter- im employment, he willfully resigned it during the backpay period. 2. The fifth affirmative defense Here, the Respondent alleged that discriminatees, Rob- ert Ahrendt, Arnold Anderson, Ronald Lee, and Case Wagner, during the backpay period, abandoned their jobs with the Respondent for other employment. The record reveals that the above-named claimants were among those who were successful in obtaining interim em- ployment during their respective backpay periods. If the Respondent's position as to these individuals were to be affirmed, their backpay would be cut off as of the time they had succeeded in obtaining their interim positions. It is well settled that these discriminatees, as victims of un- lawful conduct, are entitled to a valid offer of reinstate- ment from the Respondent before electing whether they would rather return to work for the Respondent or earn their livings in other fields. The Respondent did not pres- ent them with such an alternative until at least a year and one-half from the start of the backpay period. At any time, the Respondent might have made such an offer of rein- statement and, had any of the discriminatees rejected such an offer, the Respondent thereafter would have been free of any further liability for backpay as to the rejecting dis- criminatee. However, the Respondent did not take this ac- tion but chose instead to do nothing while litigation prog- ressed before the Board. On the present record, it is my conclusion that there is no merit to this contentions For the foregoing reasons, the fifth defense is hereby dismissed. 3. The sixth affirmative defense Respondent's allegation that discriminatee Arnold Tronson's gross backpay should be reduced as he was un- available for work for reasons other than illness during certain days in November, 1972, will be considered below '4 195 NIRB 395, 396 (1972) 'The Richard H1 Kaasie Conpanr, 162 NLRB 1320. 1331 (1967); tli Texas Si.eel (asting ( ornranv, I . 116 NLRB 1336, 1343 44 (1956). crifd. 225 F.2d 284 (C.A. 5, 1958) under the discussion of Tronson's individual claim. 4. The eighth affirmative defense 56 The Respondent contended that discriminatees Robert Ahrendt, Arnold Anderson, Carroll Barnes, Charles Ber- nard,5? Donald Bloomhall, Glenn Buus, Rene DeWitte, James Gallagher, Leo Groos, David Hanson, Paul Kreber, Gerald Meyer, Arthur Robinson, Orvid Rolfson, Willard Rose, Harold Rosheim, Velmar Stevens, Arthur Styke, Ar- thur Tronson, and Wayne Wallenberg failed to disclose all interim earnings received by them during their respective backpay period. From the record as a whole, it is concluded that the Respondent has failed to establish this contention. As indi- cated by the General Counsel in his brief, it is noted that, during the hearing, the Respondent had the opportunity to review all income tax returns and the supporting wage and tax statements of the various discriminatees, and that spe- cial efforts were undertaken to provide such data when it was not readily available. In addition, through the subpena process, the Respondent could have had access to the rec- ords of any interim employers of the discriminatees during the backpay period. Nevertheless, as the Respondent failed to produce any material evidence of unreported income, this defense is hereby dismissed. 5. The ninth affirmative defense Although the Respondent alleged that discriminatees Robert Ahrendt, Arnold Anderson, Jerry Baker, Carroll Barnes, Donald Bloomhall, Rene DeWitte, Roland Floren, Norman Gustafson, Earl Haamman. David Hanson, Wal- lace Kimball, Paul Kreber, Ronald Lee, Gerald Meyer, Dale Pritchard. Thomas Reinke. Case Wagner, and Wayne Wallenberg received fringe benefits from interim em- ployers which were not credited against fringe benefits al- leged in the backpay specification. no evidence was ad- duced in support thereof. The ninth affirmative defense is therefore dismissed.5s 6. The 10th affirmative defense This defense, which contends that all of the claimants received additional payments of moneys from various la- bor organizations which constituted additional interim earnings during the backpay periods herein and which should have been credited against gross backpay, was con- sidered above where it was found that there was no evi- dence to support this contention. 5' "' Fhe seventh affirmativ e defense relating to 'vacation pay 'as discussed above. As noted. this defense was stricken at the hearing ' I he Respondent in its brief stated thlat it no longer contests Bernard's hacikpas ientitlement : s set forth In the specification. s Ithe ninth affirmat'ive defense as originall% drawn also listed Eugene (;undvaldson a mong Ihe rele .iant discrlilinatees trowever, the Respondent. in its Ibiief, contends that it no Ihonitei disputes his backpas claim as alleged in the specification 5 t On the last da) of tihe hearling. the Respondcnrt sought to further amend its answer tResp Exh. 46) hs introducing iir the first time its Ilth, 12th. and 13th affirmative defenses. While the anmendments were allowed, the allegationii themselves were stricken As theN related generallN to the same genela l suhect nmatter. it .Il pploil te .at this time to hriefls review them 552 SIOUX FALLS STOCK YARDS E. The Individual Claimants I. Charles Bernard, Eugene Gundvaldson, and Wallace Kimball The Respondent, in its brief, agreed to the correctness of the backpay computation for discriminatees Bernard, Gundvaldson, and Kimball 60 as contained in the specifica- tion. The Respondent argues, however, that the fact that these three claimants had obtained interim employment was proof that any of the discriminatees could have found interim employment during their respective backpay pe- riods. However, such an argument was rejected in Isaac and V'inson Security Services, Inc. ,6 where it was found that the fact that some discriminatees may have found jobs in the backpay period while others did not is not evidence of the lack of diligence on the part of those who were less successful. I therefore find that Bernard. Gundvaldson. and Kim- ball are entitled to backpay as set forth in the specifica- tion.62 2. Robert Ahrendt Ahrendt's backpay period ran from March 22. 1972. un- til December 3, 1973. when he declined the Respondent's offer of recall having elected to remain with his interim employer, All American Transport. Inc. He has been em- ployed at All American Transport as a mechanic since Sep- tember 25, 1972. Commencing with the third quarter of 1972, the spec- ification alleged certain expenses for Ahrendt in connec- tion with his interim employment at All American Trans- together The Respondent contends that no interest should he attal.hed I its backpay liabilitl with respect to so much of the award as had been paMd bh the Union as strike benefits. insurance premium payments. and pension payments, as the employees had actually received these benefit, In (he form of gifts or interest-free loans. The Respiondent contends that the aImotunt awardable as interest should he reduced to make allowance for the unenl- ployment compensation payments received hs the v;rious discriminiatees during the backpay period The Respondent In support thereof cites the US. (Court o(f Appeals' decision in ANL. R.B . M, Store, Ina, 468 1 2d 1 146 (C.A. 7, 1972). cert. denied 410 l; S. 910 (1973), where interest was disal- lowed on that part of the award which represented lost wages for the periods when the union in that matter had advanced interest-free loans in the form of strike benefits on the ground that it would be inequitable io require the Respondent to pay interest on these sums as the claimants had suffered no loss of use of those moneys. I. of course, am hounid hb the Board's decislon in My Store, Inc. 18I NLRB 321, 350 (1970). and in other cases tooi numer- ous to cite, where under like circumstances interest was allowed It should be noted, however, that even the Seventh ( ircuit. in its a:bove-clted decision. did not question the Board's authoril ito allow the inclusion of interetl. "'Bernard's backpay period ended on August 20. 1973: (unds.aldsn's on July 23. 1973: and Kimball's on January, 15, 1973 As noted, the hbackpa period for all discriminatees began on March 22. 1972. except for discrili- natee (Case Wagner, whose health did not pertlit him to reenlel the lob market until April 1, 1972. bi 208 NLRB 47. 50 (1973) h' As found above, backpay for all discriminatees herein. including (;und- valdson. Bernard, and Kimball, will be reduced from that alleged in the specification by deducting therefrom. after the second quarter of 1972. on a quarterly basis 19 .65 in life insurance premiums as the item was disallioed after May 31. 1972. To avoid repetition, findings made hereinlfter that these and other discriminatees are entitled It) receive bahckpals in accrda;nce with the backpas specification will autoimaltcalls comprehend (his adllst- menrit port. These included an allowance for 23 miles per week at a rate of 10 cents a mile in reimbursement for the addition- al distance driven between his home and All American Transport beyond what he would have been required to travel between his home and the Respondent's stockyard. The specification also alleged the following amounts as ex- penses in connection with his employment as a utility me- chanic at All American Transport in the third quarter of 1972: $25 as the purchase price of a uniform: $47.50 for the price of a tool cabinet, depreciated in that and in all subsequent quarters for a period over 7 years at a rate of $1.70 per quarter. The sum of $172.50, originally alleged in the specification as having been spent by Ahrendt in the purchase of handtools 63 to be used in connection with his employment in the third quarter of 1972. is hereby changed in the computation to the first quarter of 1973 in accor- dance with Ahrendt's testimony. However, as Ahrendt did not convincingly justify the increased cost of the handtools at the the original figure alleged therefor of $172.50 will remain. The Respondent, while not challenging the foregoing ex- penses, maintains that Ahrendt failed to conduct a reason- able search for interim employment, was willfully idle dur- ing the first three quarters of 1972, and abandoned the Respondent's employ on September 25, 1972. when he be- gan to work for All American Transport, Inc. I find no merit to these contentions. By the Respon- dent's own count, after examining Ahrendt's job search records at the hearing, it appeared that Ahrendt had ap- plied for 76 jobs during this disputed period. The Respon- dent, however, as it did with most of the other discrimina- tees, asserted that Ahrendt's efforts in obtaining interim employment were not calculated to be successful as a num- ber of his applications were remade at places where he previously had been denied hire during the backpay period and to which he had returned even in the absence of specif- ic encouragement. As matters worked out, Ahrendt did not get his job with All American Transport until on or about his fifth attempt there during the backpay period. There is a strong presumption that, if he had been less persistent in going back to All American Transport, he would not have obtained his job there. In any event, for reasons discussed above, there is no merit to this argument.64 Similarly, no basis is found for the Respondent's conten- tion that Ahrendt was less than diligent in seeking work because, during the backpay period, he had not applied for farmwork. Although Ahrendt had lived on a farm for many years. he had never worked in agriculture profession- ally except to assist members of his family. Ahrendt testi- fied that he never had requested day-farm labor work from the State Unemployment Office as such work did not pay sufficiently, and he was not looking for part-time work. This argument, which in effect would require him to lower his sights, has been rejected by the Board.6 5 Although agri- cultural work was not comparable to the position that he had held with the Respondent, during the backpay period ' Contrars to the speciflcation. Ahrendt testified that he did not pas the $172 S51 alleged in Ihe specificaltin but instead paid approximately $325 for his handtoolo 14 See i5,<A,l ( h roleth Slahi. Inc.. upra ' id, i ii Hangers C, .r e a!, .5upri 553 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he did apply for employment at three places where he might have found related work in the handling and yarding of yard stock-John Morrell and Company, Iowa Beef Packers, and Spencer Foods. However, he was unsuccess- ful in these efforts. As to the Respondent's contention that Ahrendt had abandoned his employment with the Respondent upon starting his interim employment with All American Trans- port, it is well established that a discriminatorily discharged employee is absolutely and unconditionally entitled to an offer of reinstatement before being required to make a de- cision as to whether to return.6 6 A subsequent election not to return does not eliminate his right to backpay. Noting that Ahrendt not only was diligent in seeking interim employment, but also was successful, the Respon- dent's contentions are rejected, and he is entitled to back- pay in the amount set forth in the amended specification, as modified herein above.67 3. Arnold Anderson Anderson's backpay period ended on November 26. 1973, when he declined the Respondent's recall offer in favor of retaining his position as a high school custodian employed by the Minnehaha County School Board. Ander- son had begun to work for Minnehaha County on a part- time basis on October 11, 1972, continuing in that status until December 1, 1972, when he became a probationary custodian within that school district at Western High School. On February 1, 1973, he became a full-time perma- nent employee. The only special expense alleged on Anderson's behalf was for the additional 25 miles per week that he was obliged to drive to his job at Minnehaha Coun- ty during the backpay period over the distance from his home to the Respondent's premises. However, Anderson testified that he only drove 2 miles extra each day based on a 5-day week, which would come to only 10 additional miles per week or 130 miles per quarter. This expense item is adjusted accordingly. The Respondent contends that Anderson was not suffi- ciently diligent in seeking interim employment and that when he became a full-time probationary employee at the high school on November 26, 1972, he abandoned his em- ployment with the Respondent. Anderson's situation is much the same as that of Ah- rendt, discussed above, except that Anderson found inter- 66 The Richard UW' Kaase (ompan., 162 NL.RB at 1331. t7 At the hearing, the backpay specification was amended as to Ahrendt so as to delete fringe benefits in the amount of $740.98 commencing wuth the month of March 1973. The modification, the Compliance Officer teis- lied, represented fringe benefits made available to Ahrendt by All American Transport. which, in fact, exceeded the life and health insurance henefits that would have been available from the Respondent had he been employed there during the backpay period. Accordingly. this adjustment represent, a monetary credit to the benefit of the Respondent. However. as Ahrelidt received no vested pension rights from All American Transport, I agree v ith the General Counsel that the Respondent is obligated to make pensiion contributions to the pension fund on Ahrendt's account until the date he refused to return to the Respondent's employ. In addition, pursuant to the stipulation of the parties. $40 in interim earnings received from Jim's Sales and Service, previously reflected in the backpay specification as han ng been realized in the second quarter of 1972, is hereby moved for purposes, of computation to the third quarter of that year. im employment somewhat later in his backpay period.68 Shortly after the start of the backpay period, Anderson registered with the South Dakota Employment Security Department and was referred for possible employment at McKennon Hospital, which declined to hire him as he lacked experience in air-conditioning. Anderson, at the hearing, gave uncontradicted evidence of an active and ultimately successful search for employ- ment. At John Morrell and Company, a major meat pack- ing house, the largest employer in Sioux Falls, and the only place where he applied on prior information that they might be hiring, he was turned down on grounds that he belonged to a different union than Morrell's employees and because he was on strike against the Respondent. When the backpay period began, Anderson was 42 years old and had been with the Respondent for 20 years during which he had worked with the maintenance crew. He also performed odd jobs and, although he did not have a chauffeur's license, had driven a truck for the Respondent at its stockyards and elsewhere. The Respondent adduced no evidence that Anderson deliberately failed to mitigate backpay by not diligently seeking interim employment. It is therefore concluded that backpay should be paid to him in accordance with the backpay specification, as modified above.6 9 4. Jerrv Lee Baker Baker's backpay period ended on January 21, 1974, when he returned to work for the Respondent. The Respondent contends that Baker was willfully idle during the first two quarters of 1972 and that backpay should be reduced accordingly. The record, however. shows that Baker was extremely active in seeking and hold- ing interim employment.'< On March 22, 1972, when the backpay period began, Baker registered with the South Da- kota Employment Security Department but was not re- ferred to a prospective employer until June 1972 when he was sent to the Pepsi-Cola Company. Although Pepsi-Cola was prepared to hire him as a truckdriver at $2 an hour, he declined this offer to take more renumerative employment from the A-I Sanitary Service where he began work on June 21, 1972. He thereafter was employed by a succession of employers through the remainder of the backpay period. During the several month interlude of unemployment before starting his job with A-I Sanitary Service, he volun- teered to put in additional time with the Air National Guard of which he has been a member since January 1972. These services represented interim earnings which were X In accordance with Anderson's testimonN. $25 earned h, Anderson In part-time employment bs Schweigerl Itrucking during the third quarter of 1972 has been added to his interim earnings fuIr that period 9 The computation will also reflect a deletion In fringe benefits from D)ecember 1972 to the end of the backpali period In the amount of $276 at the motion iof the General C('ounsel. as the life and health insurance benefits afforded to Anderson ha Minnehaha ( iunts apparently exceeded those which would hase been available from the Respondent The claim for pen- sion contributions bh the Respondent continued to the end of his backpas period. " At the time of the strike in November 1972. Baker had been emplosed hby the Respondent as an apprentice yardsmnin for ownll 6 dayss When the backpa. period began. Baker "as approximately 22 sears old and he Is the soiungest of the claimants 554 SIOUX FALLS STOCK YARDS credited against backpay in the specification.7' The record reveals that in the period from March 22 to June 21, 1972, in addition to his services for the Air Na- tional Guard, Baker had applied for employment on 21 occasions. From July through October 1972, Baker was employed by Sweetman Construction Company in Sioux Falls. From the middle of October until the end of December 1972, he was employed with several other discriminatees by Na- tional Storage Systems, Inc. In January 1973, Baker began to work for Midwest Auto Crushing as an equipment oper- ator, ajob which he held until April 1973 when he began to work again for Sweetman Construction Company. From April 1973 until late October that year, Baker was again employed by Sweetman Construction Company as the driver of the gravel truck. Both Baker's Midwest Auto Crushing job and his second job with Sweetman Construc- tion required that he work in various other communities, some of them hundreds of miles from Sioux Falls. Accord- ingly, Baker's interim earnings have been reduced by the unquestioned expenses incurred by him in travel and board incidental to his employment with Midwest Auto Crushing and Sweetman Construction Company to the extent al- leged in the specification. When his job with Sweetman Construction ended, he promptly found new work as a la- borer for Colwill Brothers, Inc., an excavation company. From the foregoing, it is apparent that not only was Bak- er diligent in seeking and finally obtaining interim employ- ment, but that he went through very considerable effort to mitigate backpay. I therefore find that backpay be afford- ed in accordance with the specification, as modified above, to reflect his Air National Guard earnings in December 1972.72 5. Carroll Barnes Barnes' backpay period ended on November 12, 1973. when he returned to work for the Respondent.7' As Barnes had no interim earnings from the start of the backpay period on March 22, 1972, until October 1972, the Respondent contends that Barnes' backpay should be re- duced because he had failed to conduct reasonable search for interim employment, had been unlawfully idle during the first three quarters of 1972, and had failed to disclose income received from interim employers during the back- pay period. The record reveals that, at the beginning of the backpay period, Barnes registered with the Employment Security Department of South Dakota and thereafter frequently 71 Baker testified Ihat he attended Air National Guard camps in 1972 from June 3 through 18. and again from December II to 28, for which. of course, he was paid. The second encampment relieved him of his summer obligation for the year 1973. In accordance with Baker's testimony and the motion of the General Counsel, Baker's National Guard earnings for the December National Guard encampment, in the amount of $193. 6. are in- cluded among the deductions from gross backpay in the fourth quarter of 1972. His interim earnings of $195.20 for the first encampment are reflected in the second quarter of 1972. 72 As Baker left the Respondent's employ on Octoher I. 1974. after his recall. contributions are payable to the pension fund on his account oni, through September 30. 1974. 71 Barnes, an assistant business agent of the Utnion since Januarv 1973, replaced Rene DeWitte, also a claimant herein. In that capaciCt went to that office for the purpose of receiving job refer- rals. However, after the fifth week, an interviewer of that office told him that he would be better off to seek work on his own because there were not too many jobs, and many people were looking for them. As a result of this advice, he no longer frequented the premises of the Employment Se- cunty Department but continued to seek work on his own. At the hearing, the Respondent had the opportunity to ex- amine Barnes' extensive job search record, which revealed that he had sought employment on a continuing basis. No contradictory evidence was adduced. In the fall of 1972, having been unable to obtain steady employment, Barnes began to perform assorted short term maintenance and repair jobs for various local homeowners. These services consisted at various times of home painting, installation of insulation and of room paneling, garage construction, door hanging, and the removal of trees and small structures. From these 21 jobs, he received the fol- lowing earnings totaled quarterly: 1972-4--$1,252, 1973- I $456. 1973-2-$824, 1973-3-$500,74 and 1973-4-$550. From the record herein it is clear that Barnes was consci- entious in seeking new employment and, although not wholly successful, actively attempted to mitigate backpay. After October 1972, he was required to travel extensively in connection with his work, and mileage expenses, not challenged by the Respondent, are hereby affirmed. Ac- cordingly, it is found that Barnes should be paid backpay on the basis set forth in the backpay specification, as modi- fied by his actual interim earnings listed above. 75 6. Donald Bloomhall The backpay specification alleges that Bloomhall is enti- tled to backpay for the period from March 22, 1972, until January 15, 1973, when he resumed his employment with the Respondent. The Respondent would reduce Bloomhall's backpay entitlement on grounds that he was not sufficiently diligent in seeking interim employment and on the allegation that he had failed to disclose his true interim earnings. At the time the backpay period began, Bloomhall was 55 years old and had been employed by the Respondent for 21 years. As the other claimants did at the start of the backpay period, he registered with the South Dakota Em- ployment Security Department and visited that office on a number of occasions in search for work. He received no job referrals. 74 Barnes was hospitalized for I week starting June 7, 1973. and under his phsician's order did not resume work until September 3. Accordingly, in the manner described above in the discussion concerning the formula com- pulation in cases of illness, an appropriate adjustment was made in the second and third quarters of 1973. I he Union's motion made at the hearing and renewed by the General (Counsel In his brief. that the specification be amended to allege as an ex- pense on Barnes' behalf the sum of S150 for tools and equipment in connec- tion with his maintenance and repair work, is again denied. As noted at the hearing. a number of amendments to the pleadings were allowed to cover rea.ionable inadvertencies. These are reflected in the computations in the appendices hereto. However, a formal backpay hearing is not a discosers proceeding. and to allow a continuing series of such amendments on an unlimited basis whenever a discriminatee indicates that he is entitled to more than i, alleged in the specification on his behalf could well serve to deprive the Respondent of a fair hearing 555 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For appoximately I years before the start of the back- pay period, Bloomhall performed a variety of odd jobs for which he had earned approximately $20 to $30 a week. As his earnings from these sources did not increase during the backpay period, they do not constitute interim earnings. He continued with these tasks during the backpay period. During the second quarter of 1972, Bloomhall also worked on a part-time basis for Bershide Auto, a concern engaged in buying and selling automobiles. Bloomhall's work con- sisted of accompanying Bershide, the proprietor of the business, on a weekly basis to other communities to drive back purchased automobiles. On several of these trips, Bloomhall applied for work with employers, usually auto- mobile dealers, in towns more than 200 miles from Sioux Falls. On these occasions, when applicable, he offered to move to the communities of the prospective employers if they would hire him.76 During 5 days in August 1972, Bloomhall was employed by the Sioux Empire Fair Association to work at the fair which was in progress at that time. Bloomhall next found work at National Storage Systems, Inc., where, with other discriminatees, he was employed between October 16 and December 22, 1972. While with National Storage Systems, Bloomhall worked each day of the week, including all but four Sundays. On the basis of a referral by the South Dakota Employment Security Department, he obtained employment as a laborer at the C. J. Delbridge farm after his employment at National Storage Systems ended. He remained with Del- bridge through the end of 1972.77 No merit is found in the Respondent's position that Bloomhall was not earnest in seeking employment because he principally tended to apply for work with individuals he had known before or that, on occasions when he sought work in other communities, he happened to be there while on a business trip for Bershide. It is not an unusual practice for individuals looking for employment to seek assistance from friends and acquaintances in helping them to find work. The Board has never ruled that a job effort is not sincere merely because the applicant was also transacting other business at the time of application. As a practical matter, it is hard to see how a job applicant could hurt his standing with a prospective employer by spending his money there. References by the Respondent to Bloomhall's prior work experience as a plumber, in heavy equipment operation, and in automotive body repair tend to overlook the factors of his age and that he had been employed hby the Respondent continuously for a period of 21 years when the backpay period began. His last job with the Respon- dent, far removed from those fields, had been to weigh and count cattle. Noting that Bloomhall had made an on going effort to find employment, with partial success, during the backpay period and that he had accepted the job referral '6 On certain of these trips for Bershide. BlooInih ;ll Imade secil .ai ppli..l- lions for employment in Aberdeen, South l)iakotl ;lapproximalely 235 tinile from Sioux Falls. Aberdeen was Blo,.mh;ll's hometoswn i7 Ihe only expense alleged for Rhonihh;all wais $20 representing 20l cxtla miles driven from his home to the National Storage Systems job heyoltd the distance from Bloomhall's home toe the stocka;rds On the baisis of 4 cstra miles a day round trip. for a total If 20 miles ;ia week for 7 weeks. thi itl lc is allowed. from the Employment Security Department and any other work opportunities that appeared to come his way, it hereby is concluded that Bloomhall is entitled to receive backpay as set forth in the specification. 7. Glenn Buus Buus' backpay period began on March 22, 1972, and ended on January 7, 1974, when he accepted the Respon- dent's offer of reinstatement. Except for $40 in return for picketing on behalf of other strikers during the second quarter of 1972, Buus had no interim earnings during that period. 78 The Respondent contends that Buus had not been dili- gent in seeking interim employment and that he had will- fully been idle. At the time his backpay period began. Buus was 49 years old, a high school graduate, and had been continuously employed by the Respondent as a mechanic since May 1959. In this capacity, he had checked trucks and front-end loaders gassing the equipment and changing tires. Prior to the start of his employment with the Respondent, he had had 9 or 10 years experience in automotive bodywork. Ac- cordingly, Buus' initial job efforts were made with a variety of firms involved in the automotive field-repair stations and salvage companies. When he was unsuccessful in ob- taining employment in jobs where his experience was greatest, he turned to other work offering his services as a laborer. From time to time, however, Buus again tried to find work with employers who utilized motor vehicles in their business. Buus' testimony as to his unfruitful but continuing ef- forts to find interim employment was uncontradicted and is credited. Accordingly, his lack of success in obtaining work does not impeach his testimony or relieve the Re- spondent of its burden of proving facts to mitigate its lia- bility.?7 I therefore conclude that Buus is entitled to backpay in accordance with the specification. 8. Rene DeWitte DeWitte's backpay period ended on January 21, 1974, when he accepted the Respondent's offer of reinstatement. The record shows that, although DeWitte was unem- ployed during the first two quarters of 1972, in July 1972 he was able to obtain work with both Baltic Farmers Ele- vator Company and concurrent employment with the Obert Oien farm.80 From July 1972 to the end of the back- pay period, DeWitte had continuous interim earnings, al- though they were less than what he would have earned had he been employed by the Respondent during that period. The Respondent, however, does not contend that DeWitte RK Buus did have certain inctlome during the hatckpa;i period from purchas- rieg wrecked cars, repilring them and reselling them at a profit However. since he had been doing this from aI time prior to the start of the backpas period, it is not tnterlided bh either of the parties that thesr proceeds constl- Iluted inlerinl earnings. 7 [11alhir :lld ( or,,nt, 1 l /n. 215 NI RB 21 1. 215 (1Y71, enld 530 F.2d ,93 I(t A. t,. 197t) 1/hi I idlat (1 ,p 2107 NLRB at 595 596i ,)e'eWittc lived in Itllti South Da)kota, .,here the elevalt ir was located 11;ilc i stiuated apprinlanilev 1 5 miles frim the Respondent' st ocksards 556 SIOUX FALLS STOCK YARDS had failed to meet his responsibility to mitigate backpay after July 1972. As to the Respondent's contention that DeWitte had not been diligent in the first part of his back- pay period, it appears that DeWitte applied at approxi- matel 5y 24 places of employment between April 10() and JulN 5, 1972, and that he had registered with the limplonment Security Department. which he revisited on an average of once a week until he bagan his employment in Jul, 1972. The Respondent adduced no evidence that l)eWittc did not make a good-faith effort to find interim employ ment or failed to the best of his ability to mitigate backpa, herein. Accordingly, I conclude that DeWitte should he awarded backpay in accordance with the specification. 9. Lloyd Eitrem Eitrem's backpay period ran from March 22. 1972. to January 21. 1974. when he returned to work for the Re- spondent. During his backpay period. he had hut one inter- val of interim employment- from Novemhbei 1. 1972, to December 31, 1972 -when. with seseral other discrimina- tees, he obtained a temporary position wsith National Stor- age Systems, Inc. There, Eitremin served as steel construc- tion foreman. The Respondent contends that Eitrem was not diligent in seeking interim employment and was willfully idle dur- ing the four quarters of 1972 and the first quarter of 1973. Eitrem was hospitalized on June 25, 1973. with a heart condition. a continuing ailment which apparently served to interrupt and delay his testimony at the hearing."s How- ever, the Respondent argues that Eitrem. who was 49 at the time his backpay period began. was a high school graduate with prior work experience in a range of activities and that his principal efforts at obtaining interim employment, which consisted of applying at a variety of bars on a repeti- tive cycle while having drinks. does not constitute a serious or sincere search for work. The record reveals that Litrem. prior to the start of his employment by the Respondent in November 195S, :2 had farmed for I year in 1948, owned his own restauriant for I year in 1949, and had worked as an electrician welder in 1957 for a firm in St. Paul. Mlinnesota. $3 While Eitrem's job search at s arious bars under the cir- cumstances described seemed at first to be dubious, it ap- pears that Fitrem's principal prior work experience before joining the Respondent had been as a hlrlender, a profes- sion in which he worked for 8 Nears staiting in 195(. lie continued to tend bar even during his year a.i an electrician welder and was hired awal, fronm a bartender position b, the Respondent. AccordinglN. it is found, contrarv to the Respondent's position, that Fitrem's efforts at obtaining bartending work during the backpas period constituted valid efforts at obtaining interim emplonmenrit in a field consistent with his experience. After his heart ailenlt in i Erenm left the Respondeln's implo n April 1974 with a d, iahillt pension folloAing his recall during Ihe precediln .Jiiuil.l s2 Fitrenl was a sardiman willh the Respondenl .As sixth he droie hIC stock, "iardi"ng them ofH the scale ald lino pens. 83 In Jariuirs 1973. during his hbackpa pclriod. -inpIdl ni n lde 311 tulsti cessful effort to return i, work for the St I'aul oiinceri \ln .,il ppl.l.n fo(l a sitillar posltion c elsewshire \i is als ) I t ristil the summer of 1973, he continued, again unsuccessfully, to seek bartending work explaining that his physical condi- tion had made inside work desirable. 4 IFor unrecalled reasons. Eitrem did not register with the Employment Security Department until April 12, 1972, and thereafter visited there each month until his benefits expired on October 1972. However, he did not receive ajob referral. He then began his temporary job with National Storage Systems, as noted above. F rom the foregoing, it is concluded that Respondent has failed to show that Eitrem, in view of his work experience anid poor health. did not conduct a diligent search for in- terim employment and, accordingly, that backpay should be awarded as alleged in the specification. 10. Roland Floren Floren was recalled to the Respondent's stockyards on D)ecember 10. 1973, thereby ending his backpay period. Floren, 44 sears old at the time the backpay period be- gan. had begun his employment with the Respondent in August 1954. His entire work experience was in the perfor- mlnce of common labor. From 1960, he had had a second job performing maintenance work with the Northwestern National Bank of Sioux Falls, which paid him $100 a month or $300 per quarter.8 5 At an unrecalled date earlier in the backpay period. Floren registered with the South Dakota Employment Security Department but received no job referrals. lie was able to find employment with the Sioux Falls Street Department from September I to 7, 1972. and from September I I to 22, 1972, he was employed 1b Norlin Concrete. He worked as a janitor-floorsweeper for the Farmer's Union Grain Terminal Association from September 25. 1972. through December 30, 1972. He was not thereafter employed. except for his continuing work at the bank, until August 6, 1973, when he was hired by the Sioux I alls Park Department. He continued to work there until l)ecember 7. 1973, after which he was recalled by the Re-spondent. I he Respondent contends that Floren had failed and refused to conduct a reasonable search for interim employ- ment arnd was w illfully idle during portions of the backpay period. Although his job search record shows that, during his initial period of unemployment in the backpay period (f approximniatel 5 months, he made 76 unsuccessful at- tempts to obtain interim employment, the Respondent questioned the validity of his efforts noting that he had had a substantial picketing obhligationAs ' and that he had visited onls 39 different prospective employers in the course of these 76 attempts. The Respondent also argues that, during the second period of unemployment experienced by Flo- I'l triin prslusls had been hospilallzed from March II to 15. 1973. a:lh ia Iroke and hspertension and did not apply for work Irom Ma) 16 to .c1lne 1 Oiif th.t ,eair for reason,s of health The hackpay computation in the rpeliflutaiiii O.as a.djustcd aicordingls. I he' ,IpeC.Iatio pro.lides a credit against gross backpay for Floren's earlnillg. til .bank during the hackpas period which were in excess of ,uhihat h had carried prior tiW the start of the hackpas period. Such credits are li0ficted II the se.ond quarter of 1972 a:n In the second and third quarters h ified that lie had ikee 7 hurs a da1 or 4 d s a (' 1|h{cnll h.d tirtifhed that e had plliketed 3 hours a da. 3 or 4 days a 557 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ren, the large number of unsuccessful job contacts listed in his work search record were also of insufficient caliber as he had only, in this period, submitted three formal written applications and had persisted in returning to employers unsuccesssfully tried in the past. These arguments have been unfavorably considered in detail above. The Respon- dent has not offered proof to contradict Floren's testimony as to a pattern of continuing job efforts in his area of com- petence. Apparently, the Respondent is as ready to con- demn those claimants who have made many job contacts during the backpay period as those who in its opinion had not made enough. Floren's lack of success in obtaining employment during certain intervals of his backpay period does not impeach his testimony or relieve the Respondent of its burden of proving facts to mitigate its liability.87 I therefore find that Floren is entitled to be made whole as alleged in the backpay specification. I . James Gallagher Gallagher's backpay period ended on January 15, 1973. when he returned to work for the Respondent. When the backpay period began, he was 59 years old, had an eighth grade education, and had been employed by the Respon- dent since November 2, 1952, in a specialized capacity."8 During the backpay period, he found no employment and, thus, had no interim earnings, although the record indi- cates that he made a diligent search and, on at least three occasions, was rejected by prospective employers because of his age. The Respondent adduced no contrary evidence that Gallagher had made other than a good-faith search for employment during the backpay period or that he other- wise took himself out of the labor market. Accordingly, it is concluded that Gallagher be paid in accordance with the backpay specification. 89 12. Leo Groos Groos' backpay ran from March 22, 1972, until January 21, 1974, when he was recalled by the Respondent. Al- though his record of job attempts, kept during the backpay period, showed that he had made approximately 82 at- tempts at finding interim employment, he was not success- ful in his efforts and, thus, had no interim earnings.' -7 See Valley Mold Company, supra. s8 Gallagher's job classification with the Respondent was as a scalecoun- ter. As such, he counted sheep as they came off the scale and saw that the) were separated properly as to the respective buyers. e8 It is also noted that Gallagher had applied for state unemploynlenl benefits on March 22, 1972, but received no job referrals. For reasons stated above, no merit is found to the Respondent's repeated assertions that Gallagher's job efforts were compromised by virtue of the fact that he ap- plied for employment with a variety of prospective employers at times when he was also a customer at their premises or because he returned to places where his applications had previously been rejected. 9 Groos experienced emotional difficulty which interrupted his testimony at the hearing when he was first called This apparently was traceable to al incident on May 30. 1974, after his recall by the Respondent. when he wa' struck by an animal in the cattle arena of the Respondent's stockyards. As a result, he sustained injuries to his legs and abdomen. According to a stipulation reached by the parties at the hearing based upon representations made by the Respondent from its records, from the time of Groos' recall in January 1974, until the time of his mishap at the end of May of that sear. At the time his backpay period began, Groos was 61 years old and had been employed as a truckdriver by the Respondent since June 1953. It is not disputed that he also had a 60-percent disability in his left hand stemming from a job-related injury occurring in 1958. As did the other applicants, at an unrecalled date soon after March 22, 1972, Groos registered with the Employment Security De- partment and received unemployment benefits for approxi- mately 26 weeks. For reasons specified above, no merit is found to the Respondent's contention that Groos was not active in seeking work during the backpay period because he reapplied for work with a number of prospective em- ployers although without previous success, and as he did not always have relevant experience for each job sought. As the General Counsel indicates in noting Groos' educa- tion, age, experience, and manual disability, his lack of success in finding work is not sufficient in itself to disquali- fy him from backpay. As the Respondent has presented no evidence to disqualify Groos from receiving backpay as set forth in the specification, it is found that the amount al- leged therein should be paid.9 ' 13. Norman D. Gustafson Gustafson's backpay period ended on November 12, 1973. He was not employed from the start of the backpay period on March 22, 1972, until July 1972 when he began to work for the Farmers Union Grain Terminal Associa- tion. He remained there for the rest of the backpay period. The Respondent contends that no backpay should be al- lowed for the first two quarters of 1972 as Gustafson was willfully idle and was not sufficiently diligent in seeking interim employment. 92 This position, however, is contra- dicted by the evidence in the record which shows that, during the disputed first two quarters of 1972, Gustafson conducted an active job search. At the start of the backpay period, Gustafson, then 44 years old, registered with the Employment Security De- partment of South Dakota and visited that office from 8 to 10 times before finding work independently at the Farmer's Union Grain Terminal. He received no job refer- rals. The first place he sought work was at John Morrell Gro,, s had consistently worked schedules of at least 40 hours a week and on two occasions worked weeks of 50 and 54 hours However. from the time of his injury, he no longer continued his work schedule and left the Respon- dent's employ on September 1, 1974, Months later, when recalled by the Respondent. (iroos was able to complete his testimony only with great ar- duousnes. From m) observation of the witness on the stand and in consid- eration of the a ailable evidence. I find no justificaion for the Respondent's characterization. in its brief. that Groos had tried "to lull those present at the hearing, b) creating an atmosphere of sympathy precipitated by his emotional instability [whichl would hase captured the esteem of even the most seasoned members of Broadway's Screen Actors Guild." Accordingly, (iroos' uncontradicted testimony as to his job eflorts during the backpay period are hereby credited. It is also found from the foregoing that this disability, which apparently made difficult (iroos testimon) at the hearing, occurred only after the conclusion of the backpa) period and was not a factor in his ability to obtain interim employment. ' As noted above. the specification, as amended, alleges that pension payments need bhe made on (roos' account only until August 31, 1974, when his emplo!metnt with the Respondent formally ended Accordingly. this is sio found ~2 This would encompass a period of approximately 14 weeks within the backpay perlod 558 SIOUX FALLS STOCK YARDS and Company, the highest paying employer in Sioux Falls and an enterprise related in nature to that of the Respon- dent. Morrell's interviewer was not interested in him be- cause of his age but was complimentary as to his 15-year record of employment as a maintenance man with the Re- spondent. Thereafter, he applied at Morrell approximately 6 to 10 times during the second quarter of 1972. The record also reveals that Gustafson sought work at a wide variety of other places. There is no showing that Gustafson was other than extremely diligent in attempting to find interim employment and, in fact, was employed for more than 85 percent of his backpay period in a position where his earn- ings were comparable to those which would have been paid by the Respondent during that period.9 3 The General Counsel seeks expenses of 14 miles a day in connection with the mileage traveled by Gustafson to the grain terminal above what he would have driven to the Respondent's stockyards. Computed at the above-noted rate of 10 cents per mile, I find that the record justified this expense and it should be allowed. It therefore is concluded that Gustafson be reimbursed by the Respondent in the amount set forth in the specifica- tion. 14. Earl J. Hamman Hamman's backpay period ended on January 28, 1974, when he resumed his employment with the Respondent. The record revealed that Hamman was unemployed from the start of his backpay period on March 22, 1972, until around October 20, 1972, when he and several other dis- criminatees found temporary work with National Storage Systems, Inc., for a period of approximiately 1-1/2 months.94 Hamman was again unemployed during the first quarter of 1973 but, by the second quarter of that year, had obtained modest employment at the Truck Haven Cafe, Inc., of Minnehaha for which interim earnings were de- ducted from backpay in specification. Hamman testified that, as he was earning so little money at the Truck Haven Cafe, he sought and soon found better employment with Sweetman Construction Company (Concrete Materials Co.). He continued to work for Sweetman Construction Company early in the second quarter of 1973 until he was recalled to work by the Respondent. His position at Sweet- man Construction Company required that he operate a truck at a quarry owned by the concern. His job was to drive rocks from the bottom of the quarry owned by Sweet- man to a crusher located on top of the quarry where he would dump the rocks on to a conveyer leading into the crushing machine.95 Hamman's compensation while with 93 As certain fringe benefits were paid by his interim employer in the form of life insurance and health and welfare benefits, his overall backpa) entitle- ment was reduced accordingly. On or about March 1, 1972, shortly before the start of the backpay period, Hamman's wife purchased a beer tavern in her own name with her own funds. She continued to operate this tavern at a loss until she sold it in September 1972. During the period that his wife continued to operate this tavern, Hamman assisted her by opening the establishment at around 2:30 or 3 p.m. each afternoon. by sweeping. and by serving an occasional late afternoon beer. Traffic in the tavern did not plck lip until around 5 p.m, by which time his wife was there prepared to take over. HFe was never paid for his services at his wife's tavern Sweetman was roughly comparable to what he would have earned had he been employed by the Respondent during that period. The Respondent contends that Hamman has failed to conduct a reasonable search for interim employment dur- ing the first, second, and third quarters of 1972, and that his backpay entitlement should be reduced accordingly. The Respondent further contends that Hamman's testi- mony concerning his efforts at finding interim employment should not be credited in that his job search records were inaccurate, largely undated, and at times exaggerated. Hamman's job search list, as presented at the hearing, had been recopied at his request by a friend from a notebook and from various scraps of paper on which he had re- corded his efforts at or around the time when they were made. The original records thereafter were discarded. Hamman conceded that the recopied job search records were incorrect in several respects. The entries had not been arranged in chronological order, many were undated, and there were a number of duplicate and unduly repetitive entries shown at various points throughout the list. Ham- man, however, to his best ability attempted to clarify any incorrect impressions that might be drawn from the list and sought to indicate which entries were not arranged in their proper order and which entries were improperly repetitive. Early in his backpay period, he registered with the Employ- ment Security Department and continued to draw unem- ployment benefits for 26 weeks until October 1972. There is no record that he had ever rejected work to which he had been referred by that office and for which he was qualified. He testified, without contradiction, that during his back- pay period he actively sought employment at least 3 days a week and also continued to seek work while he was with National Storage Systems and with the Truck Haven Cafe. At the time the backpay period began, Hamman was about 46 years of age. His education had ended at the eighth grade. At most, the evidence as to Hamman's search for interim employment during the disputed quarters of his backpay period shows poor recordkeeping, uncertainty as to mem- ory, and perhaps exaggeration; but there is no difficulty in ascertaining his interim earnings within a reasonable ap- proximation.6 For reasons discussed above, I do not find that his picketing activities, which did not exceed the time spent by other discriminatees, interfered with his search for work, nor did the 2 or 3 hours he spent assisting his wife in her tavern during the mid to late afternoon effectively serve to remove him from the labor market. From the evidence at the hearing, it would appear that his picketing activities, if anything, conflicted only with the time available to assist his wife in the tavern. No merit is found to the Respondent's contention that there were employment opportunities opened to Hamman in other fields inasmuch as he had had prior experience in truckdriving, construction work, sandblasting, common la- bor, and as a short order cook. Hamman had been with the Respondent for approximately 24 years, and his sandblast- " Hamman was not required to have a chauffeur's license to perform this function as the truck was operated solely on company property. ' Patrick F Icci, d/h, a Pat Izzi Trucking Company, 162 NLRB 242. 245 19h66. enfd. 395 F 2d 241 (C A 1, 1968). 559 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing experience had taken place more than a quarter of a century before. His essential prior experience had been in the performance of manual labor, and, even as a driver, he was merely concerned with operating a Sweetman truck for short distances entirely on that company's premises.97 From the record as a whole, I find that Hamman was in fact active in seeking interim employment and, upon ob- taining such work, diligent in attempting to improve his situation. Accordingly, I find that Hamman should be al- lowed backpay as alleged in the specification.98 15. David A. Hanson Hanson's backpay period ended on January 21, 1974, when he was recalled to work b) the Respondent. The Respondent contends that Hanson's backpay enti- tlement should be reduced in that he willfully was idle dur- ing the four quarters of 1972 and the first quarter of 1974. and that he had failed to disclose income received from interim employment during the backpay period. Hanson. about 34 years old when the backpay period began and a high school graduate, had been employed by the Respondent as a delivery man." In the first quarter of 1972, he obtained very brief interim employment on a part- time basis as a substitute school busdriver for the Brandon Valley School District No. 150. This work was not per- formed in the second quarter of that year, but, in Septem- ber 1972 at the start of the fall term. Hanson became a full-time driver for that school district. As such, he had his own route which he ran 5 days a week for a total of 3 hours a day. In the early morning he would drive the students to school, returning at about 3 p.m. to drive them home. He continued this part-time job as a school busdriver through the fourth quarter of 1973. In addition to the foregoing, Hanson testified that he picketed for others beside himself for which he sometimes was paid. Accordingly Hanson shows interim earnings for having performed six extra picketing shifts at the rate of $4 each during the third quarter of 1972 for a total of $3(). Hanson also earned $30 during the fourth quarter of 1972 from Brandon Bowling Lanes, and additional sums as a surveyor's assistant in the employ of Brandon Realt C'om-- panv, a firm ,wined by his brother-in-law ."" Hanson's job search record introduced at the hearing, which had been copied from original but since discarded i Plielr toi' TC iike, l l olllll n hid haid ai pairl-Iin icn p(olltii ll Iith t \illlI, Vucking in c ich i e t d!scpitchedl iie'IcCk [iTom tilhe Respondient', pTcniisc Io WVillcTs-o.,nedn tlucks I his ciiplhciienti v, as discointinued as it vimld have required him ti riosi his t niin's picket line au the Respondenll' pielI- ises. 'I At tile }leirille. the is~ecificltllnl .il .us lnCinl ede 1o reduce tlanilnllSI ilileagce entitlellil t while p cllhl) ed b5 Sceetmn n's ('onstiucliion ( 'onlp ani ifrom 1i to 8 miles a dai. , or 40 miles pcl- c leek. ill the second quarter. .land lt reduce the suhbscquent iileage expenses mil connection iA itithi jhi b bh\ ' percent in thil Icllillilng qliari s. A htie had lied ili liin . lking ciit.llc oif the Rcspondei icii hil a In iurled this cxpense drivinlg to Sweelnanri'i , I find that thcesi c I . leglc expenses, allowed ait Ihie ire of I1( cent, per milc. iar reasonable a niid ihllld bi e a:llowIed. 9 III i his ol c th iie Rcs'poindc t, lit. all in dlltlCs incie Ito drice thie 111- ch:sers of li ii stoiik hi tile Respondent's peals alid it clOuilt tihc lixcstci k i '\lllg ti i thl e I lll'.k i t) B iratndoti , K.citl . Ilaon aciIssls de tie scrcc ve r prilcipali c htilcd cig the rianig pob notes, shows that Hanson made 25 job contacts from the start of his backpay period on or about March 22, 1972, until September 5. 1972, when he began to work as a regu- lar school busdriver. In his job search list, Hanson set forth his interim earnings from September 5, 1972, to the end of his backpay period. These listed earnings are inconsistent with those set forth in the backpay specification to the fol- lowing extent: In his own record, Hanson had written that during the period from September 5 to 30. 1972, he had earned $151.35 from the Brandon Valley School District as a busdriver. This sum is added to his interim earnings dur- ing the third quarter of 1972. During the fourth quarter of 1972, Hanson listed earnings of $498.60 from the operation of the school bus as compared to $620.40 for that period alleged in the specification. In the first quarter of 1973, Hanson's earnings from the operation of the school bus, according to his own records, came to a total of $635.91 as opposed to the $579.04 set forth in the specification. The difference between his record and the figure in the spec- ification for the second quarter of 1973 from the operation of the school bus was rather nominal. He recorded earn- ings of $602.43. while the specification set forth $604.89. During the third quarter, which included the school vaca- tion period, Hanson realized only $237.73 as compared to $24.50 in the specification. 0° l With the resumption of the school sear, Hanson returned to full-time school busdriv- ing and, during the fourth quarter of 1973, earned $558.86 as opposed to $609 set forth for that period in the specifica- tion. Although the specification alleged that Hanson had no interim earnings during the first quarter of 1974, his backpacy period having ended on January 21 of that year, Hanson's own records show that he continued to drive the school bus for which he received an additional $231. I find that these records of earnings which were kept by Hanson are more accurate than the more secondary figures set forth in the backpay specification and they are hereby cadopted."? 2 T o these earnings, of course, must be added his concurrent interim quarterly receipts from other em- ploNers, such as Brandon Realty, and Brandon Bowling Ianes, and from his paid picketing. At the hearing, Hanson was a difficult witness. His rec- ord of job searches, as noted, was not well kept and his memory of events was quite poor. Nonetheless, his testi- mony is uncontradicted and there appears to be no basis for concluding that Hanson's efforts at obtaining interim employment were inadequate. As noted above in the dis- cussion of Earl J. Hamman's claim, a discriminatee's poor recordkeeping and bad memorN do not in themselves con- stitute grounds for disqualifying him from backpay.1 03 In Ohio [foist Maiufacturing Co;., '4i a discriminatee's backpay was not reduced although he had recorded the name of only one prospective employer a week in order to meet unemployment compensation requirements. As did Han- ro t Aihough Hiianson did nlot work fir the Briandon V alle School D)istrict l!om tiin e 22 itc Septcillher 4. 1973. the laciathin period. according to his job search records. he miade t0 separ;ate wicik Ipplications in that interval. i'i: N\thh tugh lianon adsll iltedl. did not in the first instance inform the (;cclci.l ( culiclsel htforc tihe Iicaring if all the incolme set Ftrth ion his job c:.cllh hst there is n evidenc thatll he deliberately had attempted to con- cal tIll, ilnformati, il and it k:as full aiind free affirmed at the hearing. " ec ParicA lz i / cl d h 1I P 1::il Irl Aint (* nani.i ciprac iI l0U2 NI RB 472, 475 11)73) 560 SIOUX FALLS STOCK YARDS son, the discriminatee in that case testified that he also visited other employers as his resources permitted. Simi- larly. there is no basis for a finding that Hanson's backpay should be reduced because he had accepted part-time work from the Brandon Valley School District for substantially all of the backpay period.' ° s The Respondent has not shown that Hanson refused an, employment offered to him. For the above reasons, it is concluded that Hanson is entitled to backpay as alleged in the backpay specification. as modified above. 16. Paul Kreber Kreber's backpay period ended on January 28. 1974. when he was recalled to work by the Respondent. Although the Respondent contends that Kreber was willfully idle during the first three quarters of 1972 and that any backpay awarded to him should be reduced accord- ingly, there is no evidence in the record to support this position. Rather, the record shows that Kreber registered with the Employment Security Department of South Dako- ta shortly after his backpay period began on March 22. 1972. and, although not required to do so to maintain eligi- bility for benefits. he visited that office once a week to look for work. The Employment Security I)epartment referred him but once, to a truckdriving job at Sweetman Construc- tion Co., but he was not hired. Although he conducted a normal search for employment from late March to Septem- ber 1972, he did not get work until October I. 1972. when he, together with several other discriminatees. began a pe- riod of temporary employment with National Storage Sys- tems, Inc.106 In February 1973. after several attempts there, he suc- ceeded in obtaining a position as a taxi driver for the Safe- way Cab Company' in Sioux Falls where he Aorked for the balance of 1973. His earnings from Safewa': Cab were sub- stantially less than they would have been had he been em- ployed by the Respondent during that period. He contin- ued to visit the Employment Security Department for work referrals even though his eligibility for unemployment compensation had long since expired. The Respondent has adduced no evidence that Kreber made less than a good-faith search for employment partic- ularly in view of his physical size and disability. As it also is noted that he was also successful in obtaining interim earnings, I find that he should receive backpay in accor- dance with the specification. 17. Ronald Lee Lee's backpay period was from March 22, 1972. until he declined to accept the Respondent's recall offer on Octo- ber 29, 1973, as by that date he had other employment in another county. Ohio Hnirsr Manufacturing (, 202 NLRB It 475. 1In Kreber. who is 6 fool and I Inch tall and weighs 3()X poulind. ha.d hltd two operations on his knee and leg from a scrl c-connneitted inljurs ()rigl- nalls. this disabililv. which was incurred in .IhouI 19SI. , as rated at '() percent but was reduced to 10 percent in 1963 ftc worked for Ihe Respll- dent as a hog chute counter No merit is found to the Respondent's contention that Lee had abandoned his employment with the Respondent when. in mid-July 1972. he took the above-mentioned job with Titonka Plumbing. Heating & Supply in Titonka, Iowa, a town distantly situated from Sioux Falls. As noted above, a discriminatee does not abandon his right to rein- statement at the time he fulfills his obligation to obtain interim employment but has an absolute right to receive an offer of reinstatement from the Respondent before exercis- ing his option as to whether to continue his relationship with the Respondent."") Accordingly. the Respondent's backpay responsibility to Lee. including its obligation to make payments to the pension fund on his behalf, did not end until an offer of recall was made and declined on Oc- tober 29, 1973. SimilarNl. there is no basis for the Respondent's conten- tion that Lee was not sufficiently diligent in his efforts to obtain interim employment in the first two quarters of 1972. the only inter\ai in his backpay period when he was not employed on a full-time basis.oS In this connection, the Respondent argues that Lee. who was 31 years old when the backpiay period began and a high school graduate. through the exercise of appropriate effort could have found a plumbing job in the Sioux Falls area sooner than he ulti- mately did in Titonka on the basis of his background in the field and the related newspaper advertisements for plumb- ers. Although it is true that Lee had had 5 years' previous experience as a sprinkler fitter with a fire protection com- pan, in Kansas City, he would have needed an additional 2 sears to finish a related correspondence course he was taking while on the road and had never completed an ap- prenticeship program. Lee, therefore, did not apply for plumbing work in Sioux Falls as the head of the local plumbers and steamfitters union in that area had informed him that his prior experience would not be recognized by that union, and he would have to start at the bottom as an apprentice.1°9 During Lee's period of unemployment from March 22. 1972, to mid-July 1972, he made approximately 35 contacts to find interim employment °s and registered with both the South Dakota Employment Security Department and, for from 4 to 6 weeks, with a commercial employment agency. There is no record that Lee, who was employed for so much of the backpay period by virtue of his willingness to relocate his family and himself to a distant community. had ever rejected a job or was less than diligent in seeking employment at any time during the backpay period. At the hearing, the backpay specification was amended to allow Lee closing costs in the amount of $917 in connec- tion with the sale of his home in Sioux Falls at the time of ,rlhard if Aa aii (Cmrqipa supru "' As noted. the segment [If the first quarter of 1972 that Is includable in the hibkpalt peri..d amounted Io onls slighll more than I week. " I.ee leestfiled that he knew of but two nonunion plumbing shops In Slosx F;lls. tIe ier was able to work at a plumbing job in Iowa as that Slate has ni licenling icquirement i As was the cilse with mosl of the discriminatees. certain of Lee's job iliemlps were ilth prospeutlc emplo'sers who prevousls had dechlined it hire hlml NU,nclhcc,. is indicated. for some iof these claimants their persis ltn..C is leae.rded .tnd he iBoa.rd. in ans event. hits not held that repealed J.,h atiempts ;it gi'en m l catlilns Is 111OllrlIstcrl wiih a good-fallh search for tnterllll eltpll, mcll . 561 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his move to Titonka on or about August 1, 1972."' It is well-established that discriminatees who move to other communities to obtain interim employment are entitled to be reimbursed for their closing costs and other incidental expenses, including the expenses involved in transporting their possessions." Accordingly, I find that Lee is entitled to backpay as set forth in the amended specification." 3 18. John Loewen Loewen's backpay period ended on January 15, 1973, when he returned to work for the Respondent resuming a job that had begun in September 1949. Approximately 53 years of age when the backpay period began and the victim of an earlier heart attack 1' which precluded him from doing heavy work, he sought interim employment princi- pally in automobile repair, janitorial work, and truckdriv- ing areas where he had had prior experience."5 Unsuccessful in his efforts at obtaining employment dur- ing the backpay period until finding part-time janitorial work with a church on December 1, 1973, he had registered with the South Dakota Employment Security Department. had returned to that office a number of times in search of referrals, and had conducted an active search for employ- ment. Loewen did not incur a willful loss of earnings by his refusal to take a job as the driver of a gravel truck at $2 an hour. Not only would this job have entailed a pay rate much lower than he would have earned with the Respon- dent, but also would have resulted in substantial separation from his family. Discriminatees are not required to so "lower their sights" in seeking to mitigate backpay. The Respondent could submit no probative evidence that Loewen, who also had been rejected by Sioux Falls' largest employer because of his age, had not made a dili- gent search for employment. I therefore find that he should be made whole in the amount set forth in the specification. 19. Richard Loftus Loftus' backpay period ran from March 22, 1972, when he was approximately 61 years of age, until his recall by the Respondent on Jan)uary 15, 1973. Noting that Loftus was unemployed during his entire backpay period, the Respondent charges that he was insuf- ficiently diligent in seeking interim employment, that he l In connection witn this amendment, $240 originally alleged as moving expenses were deleted and the $917 in closing costs were added to $90 in U-Haul rental equipm :nt fees as the total of Lee's moving expenses 112 The Respondent's contention that as a setoff against the closing costs and transportation expenses it is entitled to any profit made by Lee in the sale of his Sioux Falls home is rejected. 1i3 As it is established that, in the third quarter of 1972. Lee made five round trips of 150 miles each in connection with seeking and maintaining his job in Titonka before moving from Sioux Falls, an expense item of $75 is allowed therefor. Accordingly. Lee's overall allowable expense in the third quarter of 1972, including the above mileage, $917 in closing costs, and $90 in moving expenses, totaled S1,082. 4 Loewen's heart attack had occurred about 8 years before the start of the backpay period. Al the time of the 1971 strike, he was employed by the Respondent as a chute counter and deliveryman. ' Loewen had worked in a garage about 30 years before the start of the backpay period and had driven a truck in the service dunng World War II. was willfully idle, and that he had failed to disclose income received from interim employers. However, no probative evidence was adduced in support of these allegations. Loftus, as did the others, registered with the Employ- ment Security Department, and conducted a continuing search for employment," 16 visiting that office once a month for referrals during the 6 months he drew benefits, well beyond the number of visits required to maintain eligibility for benefits. When his employment benefits did expire, Loftus continued his visits on the chance of being selected for day labor. The issue is whether Loftus made a reasonable and dili- gent effort to obtain a job during his period of unemploy- ment. In view of his uncontradicted testimony which is hereby credited, the Respondent has not met its burden of proving that Loftus failed to do so."7 He therefore is enti- tled to be made whole in accordance with the backpay specification. 20. Gerald Meyer Meyer's backpay period was concluded on July 23, 1973, when he returned to the Respondent's employ. The Respondent contends that Meyer was not sufficient- ly diligent in his job search efforts during the second and third quarters of 1972 and the third quarter of 1973, that he had incurred a willful loss of earnings, and that his back- pay should be reduced accordingly. The record reveals that Meyer, about 40 years old when the backpay period began and a high school graduate, reg- istered with the State Employment Security Department and, in the second quarter of 1972, earned $65.33 on a truckdriving trip for Dakota Heavy Hauling, Inc. Although he was not formally employed during the third quarter of 1972, an estimated $200 in interim earnings was deducted from gross backpay for that period in the specification as the approximate value of services stemming from a busi- ness relationship with his brother. Meyer testified that he has assisted his brother, Norman, in his scrap metal business and with other tasks every since he had been old enough to work and, also without compen- sation, had rendered aid to scrap dealer John Scollen, a good friend. Gerald Meyer gratuitously hauled scrap for sale to Pitts Scrap Yards for both Norman and Scollen at various times during the backpay period. According to a stipulation reached by the parties at the hearing, in 1972, following March 22, 15 purchase tickets "8 prepared by '" By the Respondent's own count from his job search list. Loftus applied for work 71 times during the backpay period. "i It further is noted that Loftus, while applsing unsuccessfully for one position, was asked by his prospective employer how the strike was coming The record amply reflects that one of the difficulties shared by various claimants in obtaining work was a resistance to them both as strikers and as potentially impermanent employees. who, if hired, might at any time be recalled by the Respondent. '" Pitts Scrap Yards' purchase tickets reflected purchases of scrap steel made by Pitts. Issued to the person delivering the scrap. they merely bore the name of the driser rather than the owner of the truck and or the scrap load purchased and. accordingly. did not necessarily reflect the name of the seller. Accordingly. it is not possible to conclude from the purchase slips that any moneys paid by Pitts to Gerald Meyer were intended for his own use or. in fact. were kept bs him. Meyer testified. without contradiction. that he had turned oser any funds so received either to his brother or to Scollen. 562 SIOUX FALLS STOCK YARDS Pitts Scrap Yards show scrap deliveries there by, and corre- sponding payments to, Gerald Meyer; and, between Janu- ary I and July 23, 1973, approximately 52 purchase tickets reflect the name of Jerry Meyer or the initials "J.M." During the fourth quarter of 1972, Meyer earned $238 from Kenny Pickard Trucking and was employed continu- ously by Burnell Hinsch of Larchwood, Iowa, from Octo- ber 11, 1972, through January 23, 1973. Meyer's work for Hinsch, which consisted of driving truckloads of cattle, re- quired that he be away from his home for 6 days a week, from midnight on Sundays to midnight on the following Saturdays, and that he stay with his truck for 24 hours a day. As he virtually was required to live in his truck on the job, his work with Hinsch was far more onerous as to sche- duling and work requirements than was his job with the Respondent." 9 Although it has been found that Meyer actively and gra- tuitously continued to assist his brother, Norman, and his friend, Scollen, during his intervals of unemployment in the backpay period, no probative evidence was adduced to show that these efforts removed him from the labor mar- ket. To the contrary, his record of job searches shows that he applied to one prospective employer or another during virtually every workday when he was not employed by Hinsch. The apparently spontaneous notations accompa- nying the various job search entries set forth in his record and commenting on them, although recopied from original entries with the assistance of his wife, lends additional sub- stance to the accuracy of that document. Meyer's uncon- tradicted testimony, supported by these records, is credit- ed. Noting again that Meyer through his efforts, including his employment with Hinsch, worked hard to acquire inter- im earnings, I find that he is entitled to backpay as set forth in the adjusted specification.' 2 0 21. Dale Pritchard Pritchard's backpay period came to an end on January 15, 1973, when he returned to work for the Respondent. as appropriate. having used their trucks to make the deliveries. Accordingly. Meer's respresentations are credited. I[t was uncontradicted that Meyer. in connection with his job with Hinsch, drove to work a distance of 30 miles each way beyond the distance from his home to the Respondent's stockyards and that he took 15 such round trips of 60 net miles. one during each week that he was employed there. Accordingly, in agreement with the General Counsel. I find that. after deducting the miles that Meyer would have driven Irom his home to thc stockyards each working day during those 15 weeks, Meyer is entitled to credit for at least the 600 additional miles he was required to drive In con- nection with his interim employment This. of course. is calculated at the rate of 10 cents per mile. '20 The Respondent, in its brief, expressed concern over the fact that, for virtually every Monday recorded in Meyer's job search list, there was an entry to the effect that he was "on call" at the Respondent's stockyards. Meyer explained this by stating that he expected to be summoned for work each week by the Respondent. but that this did not mean that he had applied each week for work with the Respondent. The Employment Security Department manager. Norby. testified. In possible clarihfication, that an "on call" entry recorded by an employee who expected to be recalled b) his employer would serve as a substitute for one of the 2 weekly employment applications claimants were required to make to remain eligible for unem- ployment compensation. However, from the credited evidence, Meyer made so many independent efforts to obtain work that this point is of no signifl- cance. His only interim earnings during the backpay period were accrued from a 9-week long job starting in October 1972 when, with several other claimants, he was employed by National Storage Systems, Inc. In support of its contention that Pritchard was willfully lax in seeking interim employment during the backpay pe- riod. the Respondent emphasized the fact that Pritchard had lost his original job search list after the Union's assis- tant business agent and fellow discriminatee, Carroll Barnes, at his request, had made a copy therefrom for sub- mission to the General Counsel.'2' The latter copy, which was produced at the hearing, appeared to contain certain inaccuracies. At the start of the backpay period, Pritchard was 56 years of age, had completed the seventh grade, and had been employed by the Respondent since about 1945.122 He had a 10-percent disability from an injury sustained during World War II. As did the other discriminatees, he regis- tered for unemployment compensation asking only that the Employment Security Department refer him to jobs in Sioux Falls as his wife was bedridden. His testimony that he sought interim employment at at least two places a week was not contradicted, nor was his testimony that two major Sioux Falls employers had rejected his application with them because of his age. As to the Respondent's point that his recopied job search list, as produced, and his memory of events, which had occurred 4 years before the hearing, were less than accurate, the Board held in Pal Izzi Trucking Company, supra, that discriminatees are not automatically disquali- fied from backpay because of their poor recordkeeping, uncertainty as to memory, and even exaggeration. Other points raised by the Respondent with respect to Pritchard's nonaccess to newspaper advertisements and his repeated visits to prospective employers who previously had de- clined to hire him were considered above in connection with other claimants. It appears that Pritchard conducted a normal search for interim employment in the backpay period, and I find that he should be made whole in accordance with the specifica- tion. 22. Thomas Reinke Reinke's backpay period ended on November 5, 1973, upon recall by the Respondent. From March 27 to April 8, 1972, Reinke was employed by Grotewold & Rutten Construction as a carpenter,' 2 3 but thereafter he was unemployed until early in July 1972 when he resumed his carpentry work with Larco Homes, Inc.. which since had taken over Grotewold & Rutten. He continued to be employed by Larco on a full-time basis until the end of his backpay period. The Respondent has adduced no probative evidence to contradict Reinke's 12 When Pritchard had brought his original record for copying to the Union temple, he had forgotten to also bring his eyeglasses and received assistance from Barnes 12 Pritchard's job with the Respondent was to use a loader machine to clean the pens and to yard cattle moving them from the pens to scales. 12 Reinke, who had been employed by the Respondent since June 1962 as a scale master, weighing cattle, had had no prior work experience in carpentry. 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credited testimony that during his period of unemployment he conducted a diligent and ultimately successful search for work, which included registering with the South Dakota Employment Security Department and making frequent work applications at the premises of prospective em- ployers. Accordingly, it is concluded that Reinke is entitled to be reimbursed in accordance with the specification. 124 23. Arthur Robinson Robinson's backpay period ended on November 5, 1973, when he accepted the Respondent's offer of recall. Robinson had started to file or sharpen saws as a hobby several years before the 1971 strike. While he was away from his employment as a chute counter with the Respon- dent after the start of the 1971 strike, he began to pursue sawfiling on a more serious basis. After March 1972, par- ticularly, he spent gradually increasing amounts of time in his workshop and in building his sawfiling business. Al- though from April 10, 1972, Robinson looked without suc- cess for other employment, on or about September 15, 1972, his business had grown to the point where he felt that it would be in his best interest if he continued to pursue it on a full-time basis. 125 The Respondent, however, contends that Robinson's backpay entitlement should be reduced as he was willfully idle during all quarters of the backpay period. The Respon- dent argues that Robinson did not conduct a particularly vigorous search for interim employment during the early backpay quarters applying for work principally to parties who were friends or whom he had known, and that his overall earnings from his sawfiling operation during the backpay period were quite modest, never reached one-third of what his estimated gross backpay would have been for any particular quarter. Nonetheless, at 57 years of age when the backpay period began, Robinson was not a young man. At the hearing, the Respondent had the opportunity to examine Robinson from his business records of gross receipts and purchases, customers lists, and his 1972 and 1973 income tax returns. It is clear that Robinson slowly, but perseveringly, built up his business over a period of time. Robinson also testified that there were delays in receipts of payment which result- ed in certain additional moneys being paid after the back- pay period. Although the Respondent had access to the above-described records from Robinson's business, it ad- I24 It is noted that Reinke, who was but 30 years of age at the starl of the hackpay period and who had had I year of college, was one of the )oungcst of the discriminatees and had received the highest formal education 2' I he record revealed that from March 22. 1972, the start of the baik- pay period, to mid-June 1972, Robinson spent 3 to 4 hours a: da,. 6 dais a week, in his workshop. Additional amounts of time were spent in studling to acquire additional skills. in obtaining more machinery and equipment. and in soliciting business. Irom June to September 1972. Rohinson's doilt shop time, still on a 6-da basis, increased to 5 hours, Even a fter his retail bh the Respondent Robinson only continued to work at the stocks ards ot1 an additional 4 da:ls. after which he resumed his sawfiling business. At the time of the hea:ring, Robinson was working at his business 8 hours aI dass (i days .a week. Accordingsl , pension fund contributions the Respondcint made in Robinson's .cclunt would be payable only up to Novembel 9h 1973. duced no probative evidence to counter Robinson's testi- mony relating to the establishment of his business. In Llod's Ornamental and Steel Fabricators, Inc.,'2 6 the rule was restated that: IS]elf-employment does not constitute a withdrawal from the labor market, is not the equivalent of a will- ful loss of earnings, and is to be treated as other inter- im employment. Again, the U.S. Court of Appeals for the Second Circuit, in Heinrich Motors, Inc. v. N.L.R.B., 1'27 noted: It is indisputable that self-employment is an ade- quate and proper way for the injured employee to at- tempt to mitigate his loss of wages. Cashman Auto Co., 109 NLRB 720, 722 (1954), enf'd, 233 F.2d 832 (Ist Cir. 1955); Arduini Mfg. Corp., 162 NLRB 972 (1967). Self-employment should be treated like any other in- terim employment in measuring back pay liability. N.L.R.B. v. Mastro Plastics Corp., supra, 354 F.2d at 179; Brown & Root, Inc., 132 NLRB 486, 500 (1961), enf'd, 311 F. 2d 447 (8th Cir. 1963). Although the General Counsel has the burden of going forward with evidence that the employee has not wilfully incurred a loss of earnings, the ultimate burden of proving a wil- full loss is on the employer. N.L.R.B. v. Mastro Plas- tics Corp., supra. * * . . .The time spent by an entrepreneur in seeking business opportunities is in the circumstances neces- sarily a part of his self-employment. Cf. Cornell v. T. V. Development Corp., 17 N.Y.2d 69, 268 N.Y.S.2d 29, 215 N.E.2d 349 (1966). It would be unfair to Cira to view this time as adversely reflecting upon his dili- gence in minimizing the Company's back pay obliga- tion. . . .As was stated in N.L.R.B. v. Cashman Auto Co., supra. 223 F.2d at 836, "The principle of mitigation of damage does not require success: it only requires an honest good faith effort." We agree with the Board that Cira's failure to make a profit at his used car business is not grounds for disregarding his sworn and uncontradicted testimony. Accordingly, it is not a defense to Robinson's continuing efforts to build his own business during the backpay period that he did not make more money in his business or that some of his time was spent in acquiring additional skills and equipment. It therefore is found that Robinson should be made whole in accordance with the specification. 24. Orvid Rolfson 128 Rolfson's backpay period ended on August 27, 1973, when he returned to the Respondent's employ. Although Rolfson, who was 60 years old when the back- '' 211 Nl RB 217. 219 (1974). 403 : 2d 145, 148 149 11968). i , Rolfson. who had an eighth grade educ:tion, had been employed b) the Resp ondeln as a; chute counter for aIppromximately 13 years. 564 SIOUIX FA.L S STOC(K YARDS pay period began, had registered with the South Dakota Employment Security Department and had diligently and consistently sought work during the backpay period, he was able to find formal employment only from October 15 to December 16. 1972. as one of those hired in that period by National Storage Systems. Inc."'2 In addition, Rolfson had $250 in interim earnings in both the second and third quarters of 1973 '3" representing moneys earned by him in painting the homes of several persons. As no evidence was adduced bx the Respondent that Rolfson had not made a diligent search for work or that he refused to accept employment. I find that he is entitled to reimbursement as per the specification.l' t 25. Willard A. Rose Rose's backpay period ended on January 15. 1973. when he was recalled to work by the Respondent. Rose was unemployed during the entire backpay period except that it was stipulated at the hearing that Rose was paid $50 during each of the third and fourth quarters of 1972 and the first quarter of 1973 in return for having pick- eted the Respondent's premises on behalf of other discrim- inatees. 32 Rose. as did the other claimants, registered with the South Dakota Employment Security Department earls in the backpay period but was not referred for employment. At the hearing, the Respondent had access to Rose's job search list, a meticulously prepared document showing the names and addresses of the various prospective employers to whom Rose had applied. Each entry contained a brief notation by Rose as to the reasons whs he was not hired. Of the 119 entries in the period from March 21. 1972. through December 27, 1972, covered b, the job search list, the accompanying notations showed that there had been negative discussion concerning his age at at least 17 of the places where he had applied.1'3 25 Although the brief emplo ynmenl opport untli ith National .torage Systems. Inc.. that became available to seera.l dlcnriminatee. Including Rolfson. In October 1972. happened to follow sho. tl alfter the expiram,,l of their unemplosment conmpensation beiefits, contralrs to he Respoidenn' consistent argument. there is nothing in the record ii show that Rollfon, or ans other relevant claimant. ohtained thi, or an oither enlplosnment heciause those benefits happened to have expired at that inme. Ithe uncontrladicted evidence shows that Rolfson was consistentls actlie in seckili, sork. nllak- ing an affirmative job effort on an a.erage of about e'.ers I da. d ring hi, backpas period, and that his joh with N.itional Storlage sstcenls sa .a resul of these actis ties "m Prior to amendment ai the hearilng. the speclfication showved these earnings as having been realized in the second and third quairter, iof 1t'7 The amendment conforms to the tesimnion ai t he hc.rinel and I i, n prelu dicial to the Respondent. 13i Rolgers f[ururue Sa/cr. In,. 213 NI.RB 834 (19741. cited hs IhC Re- spondent. is inapposite, as here. unlike R,i,~ri ihere for a perrod the clailn ant therein had merels relied upon his registratlonl ;1ith , Ii to. rind refer- rals bh the state emplo, menl office to get work vhile coltinuiig to drai i benefits, Rolfson had conducted a consistenl and independcnl loh se.lrh throughout his backpas period 11 Rose was principall' compensated for his additional pickenlg duties bh, Case Wagner, another dlscrliminat;e. who o1 Jult 24. 1972. started a new, permanent jobh with the Veteran' Administtration .nd is. no longer available to picket at the Respondent's premitses ( n.mrars to the Rcspon- dent's contention. I find that Rose's ow n picketing schedule. h.ith r;ln fronm noon to 4 p m on alternate da's. iand his picketing for iagner. i hlch ran from 4 p m to 8 pm., also on alternate dais. altihoagh continuing intil his recall ht the Respondentl. did not remo,.e Rose from the libor market Although the Respondent contends that Rose was will- fully idle throughout his backpay period and that he had not disclosed income received from interim employment, no probative evidence was adduced to support these con- tentions or to show that Rose had declined to accept any employment opportunity. Accordingly. it is found that Rose is entitled to be reimbursed as set forth in the back- pay specifications, except that there be deducted therefrom the $150 in interim earnings he had received from his paid picketing acti ities during the last three quarters of his backpa} period. 26. Harold Rosheim Roshcim's backptay period ended on January 15. 1973, when he accepted the Respondent's recall offer. At the time the backpay period began, Rosheim was 60 years old. had completed the eighth grade in school, and had been employed by the Respondent since 1951.134 Earls in the backpay period, Rosheim registered with the South Dakota Employment Security Department and re- ceived benefits for the next 26 weeks. He visited that office once a week to seek employment, although such frequent visits were not required merely to maintain eligibility for unemployment compensation. Even after his benefits ex- pired he continued to visit the office to see if any work referrals were available, but none were. Noting that Rosheim, except for the compensation re- ceived for his extra picketing duties on behalf of other dis- criminatees, was not formally employed before his recall, the Respondent argued, in its brief. that Rosheim was will- fully idle during his entire backpay period. In support of this position the Respondent noted, in its brief, "In fact Mr. Rosheim did not even start to look for interim employ- ment until May 2. 1972." The testimony, however, shows that Rosheim did apply for work as a janitor at the Silver Moon Bar on March 22, 1972. On March 24, however, he was obliged to take his wife to the hospital where she passed away on April 15. As contended by the Respon- dent, he did not thereafter seek employment until May 2. iThe Respondent also indicated, accurately, that Rosheim's job efforts, although continuing consistently throughout the backpay period, were almost exclusively made at places where he was attending to other business at the same time. Accordingly, Rosheim applied at various taverns while he was buying a drink, at service stations where he was purchasing fuel for his automobile, and at lumber yards. meat packing houses, groceries, and other concerns where he also was present as a customer. There is " Rose. at the start of his backpas perid. was approximatels 53 ,ears old and had compleled the eighth grade In schoolh Having previcously beetl ciipio!oed ho, the Respondent for 23 ?ears prior to the 1971 strike as a chute cmunter of Incnoming hest,.tok. In the performance of custodial work. and as the utlit frelmian otn aeekelntid his primars job efforts were directed to io rkk eqlilrign mantanual lahbor '4 Roshelnl had a background In the operatioln of smaller vehicles In 1949 before coming to Sioux I alls. he had drisen a gravel truck For his first 7eirs, with the Respolndent he performed sard labotr After 1958. he btigir to operlate a arietl of s ehlcles on the Respondent's premises includ- ring a diuip truck and i smniil trictor with a trailer behind it used to haul tnlured and deaid catile 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no evidence that his customer status or the money he was spending at the time in any way detracted from his desira- bility as a job applicant or that he did not, in fact, make the job contacts described. At the hearing, the Respondent had access to his 1972 and 1973 Federal Income Tax returns and his record of job searches. No probative evidence was presented by the Respondent that would tend to show that Rosheim was not diligent in seeking interim employment in the period from May 2, 1972, until the end of his backpay period, or that he had declined any work opportunity af- forded to him. Accordingly, for the above interval, he is entitled to be made whole in accordance with the specifica- tion. However, there is merit to the Respondent's argument that Rosheim should not be entitled to backpay during the period from about March 24, 1972, until May 2, 1972, when, for the unfortuante reasons of his wife's final illness and his own bereavement, he was required to remove him- self from the labor market. The General Counsel, noting that Rosheim was otherwise diligent in seeking employ- ment during the remainder of the backpay period, argued, in his brief, that "there is no requirement that an employee search for work every minute of the day, and periods where no search was conducted for as long as a month have been held to not disqualify a discriminatee." Cases cited in sup- port of the proposition were Southern Household Products Co., supra; Ohio Hoist Mfg. Co., supra; and Gary Aircraft Corporation.' 3 5 In these cases, discriminatees who generally had been conscientious in seeking interim employment during their respective backpay periods received the bene- fit of any doubts that may have been generated by their vagueness or poor recollections as to what their job search efforts were in certain limited disputed quarters. However, unlike Rosheim, they had not formally removed themselves from the job market during the times in question. As an hourly paid employee of the Respondent, Rosheim would not have been compensated for the month of April 1972, in these circumstances even under the terms of the most re- cent collective-bargaining agreement between the Respon- dent and the Union.'36 Rather, his absence from the labor market, although most regrettable and hardly voluntary in nature, is nonetheless analogous to those situations where backpay is reduced because of a discriminatee's own ill- ness. 13 7 Throughout the backpay period, to reduce interim earnings, Rosheim picketed not only on his own behalf but also for other employees who, in turn, paid him for this service at the rate of $6 a week throughout the backpay period. This compensation is shown as interim earnings in the backpay specification in each quarter of Rosheim's backpay period. As the Respondent has not shown that Rosheim did not make a good-faith attempt to secure interim employment, except for the period connected with his wife's final illness, I conclude that the Respondent should make Rosheim whole by payment to him of the amount set forth in the 135 211 NL RB 554. 557 (1974). petition for review denied 510 F. 2d 1405 (C.A. 5, 1975). 136 The contract affords a maximum of 3 days' paid funeral leave in con- nection with the loss of a close relative. 117 See Champa Linen Service Company, 222 NLRB 940. 943 (1976) backpay specification, less the amount alleged therein as backpay for the month of April 1972. 27. Velmar Stevens Stevens' backpay period ran from March 22, 1972, until March 1, 1973, when, upon receiving an offer of recall from the Respondent, he retired.'38 Early in the backpay period, Stevens registered with the Employment Security Department and thereafter remained eligible for benefits for 26 weeks. Although he visited that office on a monthly basis to seek work referrals, none were made. Stevens had worked for the Respondent since 1956 performing carpentry and cement work. Although Stevens had interim earnings of $750 139 during the backpay period, the Respondent adduced no evidence that his search for employment had been less than ade- quate or that his failure to find interim employment was deliberate.'" Accordingly, it is found that Stevens should be afforded backpay in the amount set forth in the back- pay specification, as amended. 28. Arthur Styke Styke's backpay period came to an end on September 4, 1973, when he accepted the Respondent's recall offer. Although the record reveals that he sought employment on more than 175 occasions during the backpay period with various employers in and around the Sioux Falls area, his only interim employment was between mid-October and mid-December 1972, with National Storage Systems, Inc., where he worked with several other discriminatees on a temporary basis. Shortly after the start of his backpay period on March 22, 1972. Styke registered with the South Dakota Employment Security Department and went there approximately once a week until September 3, 1973, long after his benefits had expired and far more frequently than was required merely to maintain his original eligible status. Styke testified that he made these visits in order to have access to the list of available jobs maintained in that office. The Respondent's principal reason why Styke's pay should be reduced during those quarters when he was not employed, not otherwise considered above, was that Styke had attempted to find work in classifications beneath his level of skill. Styke did have prior experience in operating 1s Stevens was 64 Nears old when his backpay period began As his em- ployment relationship with the Respondent validly ended on March 1. 1973. coinciding with the end of his backpay period, pension contributions need be made by the Respondent to the pension fund only from March 22, 1972. to February 28, 1973. 11 At the hearing, the backpay specification was amended to show that Stevens had interim earnings of $750 in the fourth quarter of 1972 having worked in that period with discriminatee Carroll Barnes in the building of two garages and work on an apartment house In the absence of affirmative evidence from the Respondent that Stevens had deliberately failed to miti- gale backpay by searching for interim emplosment, I find, in agreement with the General Counsel. that the fact that these earnings did not appear on his 1972 Federal Income Tax return is immaterial to the issues of this case. 140 In Ohio Hoist Mffg. Co 202 NL.RB at 473, it was found that a discrimi- natee was entitled to backpay although. as did Stevens. he had visited an average of but one employer a week during the backpa) period, had regis- tered with the state unemployment office, and had quit his job with his emploser on or about the time of his reinstatement 566 SIOUX FALLS STOCK YARDS heavy equipment, in sheetmetal cutting, and in automobile repair. However, due to an illness contracted in 1951 af- fecting his back and kidneys, his physical abilities became limited and he could no longer operate heavy equip- ment.'4 ' The record reveals that Styke variously did at- tempt to find employment in automobile servicing and wrecking and in various construction jobs. As these efforts were for work not consistent with his physical condition, they reflect his earnestness. The Respondent adduced no evidence that Styke's search for employment was other than thorough. Although he reapplied at several places where he previously had been unsuccessful, the record herein amply shows that such per- sistence on the part of other discriminatees was occasional- ly rewarded. As found above, this argument, under the cir- cumstances herein, would not be material. 4 2 Accordingly, it is found that Styke be afforded backpay as set forth in the backpay specification.' 43 29. Arnold Tronson Tronson's backpay period ended on April 9, 1973, when he returned to the Respondent's employ. At the time the backpay period began, Tronson was ap- proximately 35 years old, had completed the 10th grade and had had agricultural experience from having worked on his father's farm.'" Early in the backpay period, Tronson registered with the Employment Security Department and thereafter reported to that office once a week. He received three job referrals but was not hired. During the first quarter of 1972. he was employed briefly as a driver by Safeway Cab, on a tempo- rary basis, but thereafter did not have interim earnings un- til around October 1, 1972, when he began to work for All American Transport, Inc. He continued with All American Transport, Inc., until he was laid off on December 7, 1972. From January I to March 31, 1973, he was again employed as a driver by Safeway Cab at night on a part-time basis. His interim earnings from these various occupations, ac- cordingly, were deducted from gross backpay in the spec- ification. The Respondent's contention, in its brief, that Tronson was not available for interim employment because he was incarcerated from April I to 9, 1973, the last date of his backpay period, whether or not true, is not substantiat- ed by the record. However, gross backpay during the first quarter of 1973 was adjusted in the specification to reflect Tronson's hospitalization from March 7 to 30, 1973. There 41 Nonetheless, in his efforts to find interim employ ment, Styke did at- temRt to find a job operating a bulldozer in May 1972. See Nickev's Chevrolet Sale., supra It further is noted that Stake also had been denied employment hb certain employers on the basis of his age. about 44 at the start of the backpay period SiNke's home was in the small community of Larchwood, Iowa, where he was further handicapped hb the fact that he did not have a telephone. 14' A ruling made at the hearing, denying the motion of the General Counsel and the Charging Party for leave to amend the hackpal specifica- tion by striking as interim earnings $200 allegedly earned bs SIske during the third quarter of 1972. is hereby reaffirmed See fn 75, iuiprlr '44 Tronson testified that he continued to assist his father on the latter's farm during the backpay period in his spare time as he had prior to the start of his backpay period. hut that he did not desote more time to this function during the backpay period. appears to be no basis for further modification of Tronson's entitlement as set forth in the specification, as the Respondent had made no showing that Tronson's search for interim employment has been anything but thorough. Accordingly, it is concluded that Tronson be made whole in accordance with the backpay specifica- tion. 45 30. Darrell Tverberg At the time his backpay period began on March 22, 1972, Tverberg was 37 years of age and had had an eighth grade education. He had been employed by the Respon- dent since October 1965, and, at the time of the 1971 strike, his job with the Respondent was to operate a front-end loader. This machine, attached to a small tractor, was used to clean the livestock pens. Tverberg's backpay period ended on August 21, 1973, when he accepted recall by the Respondent. He had no interim earnings from the start of his backpay period until July 1972 when he began to work for Obert T. Oien as a farm laborer on a full-time basis. He continued to work for Oien until he was recalled by the Respondent.' 46 The Respondent contends that Tverberg's backpay should be reduced in that he was willfully idle during the first and second quarters of the backpay period. However, the record reveals that during that time he made approxi- mately 32 job contacts with prospective employers '47 and registered with the South Dakota Employment Security Department. He thereafter received unemployment bene- fits until the start of his employment with the Oien farm. The Respondent has produced no evidence to show that Tverberg was less than diligent in seeking and finally ob- taining interim employment. The Respondent's conten- tions that Tverberg had made repeated visits to places where he previously had been unsuccessful in gaining em- ployment, did not always apply to fill specific vacancies thathe knew in advance to exist, and did not necessarily follow newspaper advertisements have been considered elsewhere in this Decision and are found to be without merit. I therefore conclude that he be made whole in the amount provided in the amended specification.'"4n 14' Although the Respondent, in the sixth affirmative defense pleaded in its answer, alleged that Tronson was unavailable for work due to reasons other than illness during 7 working days in November 1972, no evidence was presented to support this specific contention, and none was argued in its brief. The defense. therefore, is dismissed. 14 Tserberg was Oien's only assistant in the farming of his 1.000 acres until later in the backpay period when, Oien's having become ill, discrimina- tee Rene DeWit'te was also hired to work on the farm. D4 D)uring the hackpay period. Tverberg continued to drive a taxi for the Safewas (Cab Company on a part-time basis. He had started to do this in 1970 operating the cab on certain nights and weekends when he was not on duty at the Respondent's stockyards As he did not increase his driving time for Safewa,, after the start of the backpay period, there is no basis for treating his earnings from Safeway as interim earnings deductible from hackpals The Respondent does not contest this point. 14' It is uncontested that. during each day that Tverberg was employed by Oien. he traveled an additional 40 miles to his employment beyond what he swould haie traveled had he been employed by the Respondent in that pe- riod Computed al the above-noted rate of 10 cents per mile, this mileage expense is reasonable ,and proper and is hereby allowed. 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 31. Case Wagner Wagner's backpay period, in effect, began on April 1. 1972, as before that date he was convalescing under a doctor's care from surgery undergone prior to March 22, 1972, and could not seek work. His backpay period ended on October 29, 1973, when he declined the Respondent's offer of recall having elected to stay with his interim posi- tion as a policeman at a Veteran's Administration Hospi- tal. Wagner had no interim earnings until July 24, 1972, when he began his full-time job with the Veteran's Admin- istration Hospital. He continued to work there to the end of his backpay period and was still in this job at the time of the hearing. In connection with his employment there, it is undisputed that Wagner was required to purchase a uni- form at his own expense at a cost of $185. As the estimated life of this uniform was I year, this expenditure was prorat- ed throughout the backpay period by deducting $46.25 as estimated expenses from interim earnings. Wagner, as a Federal Government employee at the Veteran's Administration, also incurred additional expense in connection with his job by the need to contribute 33 percent of the cost of his life insurance coverage and 50 percent of the premiums for both his health insurance and pensions, respectively. Accordingly, an adjustment in the amount of $106.65 representing the total noncontributorN portion of these fringe benefits is allowed during each full quarter when Wagner was employed by the Veteran's Ad- ministration.'4 9 As the Respondent has presented no evi- dence and as they otherwise appear to be correct and prop- er they are allowed as set forth in the backpay specification. Although the Respondent contends that Wagner's back- pay should be reduced during the second quarter of 1972 '50 on the ground that he had failed to conduct a rea- sonable search for interim employment and was willfully idle during that period, no probative evidence was adduced to substantiate this position. Rather, the evidence sho-ws that Wagner registered with the South Dakota Employ- 149 Wagner and discriminatees (iundvaldson and Gustafson. considelTed above as the only three claimants in this proceeding who received contrihu- tory life insurance coverage as it fringe benefit from interim emploxiiltn during their respective hackpa., periods, are exceptions to mx geneclill ap- plied finding that life insurance premiums in the amount paid by the Re- spondent before the strike should not be included in gross backpas afiel the second quarter of 1972. 'Ihis, as noted. was based on the theors, thut aite that time, when the Union stopped advancing the premium pavnilents a loans on behalf of the discriminatees, the Respondent. in its obligation l provide the discriminatees with continuing life insuraince protection. hird assumed the role of a self-insurer. Having absorbed the risk, the Respondent should not at the same time be compelled to pay premiums on anothei plall. However, this rationale would not be true as to Wagner. (Gustalfsoi. :iand Gundvaldson from the time they, respectively. became covered under the life insurance programs of their interim employers aind. for the first tinic. were compelled to contribute to the maintenance of such coveralge As the Respondent, for certain intervals of their backpay periods. was no longer assuming the life insurance risk as to these claimants. it is appropriale that in the manner set forth in the specification, as clarified bh Appendixes 13. 14, and 33 of the General Counsel's brief, the quarterly costs to tihce li'- criminatees in maintaining their life insurance coverage should hbe recog- nized in computing their respective entitlements. 150 As noted. Wagner's backpay period did not begin until the secinid quarter of 1972. ment Security Department and received benefits from April 10 to the week ending Jul)' 27, 1972, by which time he had begun his employment with the Veteran's Administra- tion Hospital. It is noted that, in April 1972, he utilized his 16-1/ 2 'sears of prior experience as a law enforcement offi- cer to run for the elective office of sheriff of Lincoln Coun- ty. Hie, in fact, succeeded in obtaining the signatures neces- sary to be placed on the ballot in June of that year but, ultimately, was not successful. However, during the second quarter of 1972, he also conducted an additional thorough search for interim employment seeking a variety of posi- tions in the Sioux Falls area. Wagner was not only assidu- ous in his efforts but eventually obtained employment on a full-time basis for six of the seven quarters involved in his backpay period. Again, no merit is found to the Respondent's assertion that because Wagner declined to accept the Respondent's offer of recall on October 29, 1973, he had abandoned his employment as of the time he began to work for the Veteran's Administration on July 24, 1972. As was noted in connection with the above discussions concerning the claims of Ahrendt, Anderson, and Lee. a discriminatorily discharged employee is entitled to an offer of reinstatement before making an election as to whether to return. Subse- quent election not to return does not eliminate his right to backpay. It is therefore concluded that Wagner be made whole in the amount provided in the amended specification. 32. Wayne Wallenberg Wallenberg's backpay period ended on January 15, 1973. when he accepted the Respondent's recall offer.' 51 Since at least September 1969, Wallenberg, while em- ployed by the Respondent, had pursued a second job in Sioux Falls with Davis Tailors, a drycleaning and laundry operation, where he installed and repaired equipment. From correspondence dated May 29, 1975,12 by Wallenberg's employer there, John R. Davis, prepared as a statement of Wallenberg's earnings and expenses in con- nection with his employment at Davis Tailors, it appears that in the time before the start of the backpay period Wal- lenberg reported to Davis Tailors for work at 7 p.m. on weekdays and remained there until he finished whichever project he was working on. Wallenberg testified that he also worked for Davis during certain weekends. As ex- pressed by the General Counsel. in 1971, the last calendar year before the backpay period, Wallenberg earned $3,511.30 from his employment with Davis Tailors. After the backpay period began. Wallenberg began to work additional hours for Davis, and, on about July 2, 1972, he commenced work at Davis Tailors' newly ac- quired plant in Worthington, Minnesota, approximately 62.5 miles from Sioux Falls. Here, Wallenberg remained for the rest of his backpay period. In so doing, he drove to work alone each day in his own vehicle-a daily round trip distance of at least 120 miles. Sl though accepting recall as of Jainuars 15. 1973. Wa;llenberg did nul iactual.ls return to work for tile Respondent until another week had passed in ordel to cnmplete certain work for his interim emplsoyer. Davis lallors f* I his d.cuilttnl t a:si Icceived bh stipulation as (i.(. t xh. 4 568 SIOUX FAI.LS STOCK YARDS When Wallenberg began to work for Davis in Worthing- ton in July 1972, his status changed from that of an hourl' rated employee receiving $3 an hour to that of an indepen- dent contractor. This arrangement, which continued throughout the backpay period, was initiated or agreed to by Wallenberg who believed he thus could make more money. However, the new status was not to his advantage. The General Counsel, apparently on the theory that Wallenberg's new contractor status created what was. in effect, a new position for him, moved at the hearing to amend the specification '5 to delete the interim earnings originally alleged as having been earned by Wallenberg from Davis Tailors during the first two quarters of 1972 and the first quarters of 1973,154 and to rearrange the amounts earned by him in the third and fourth quarters of 1972 while preserving the previously alleged total for those two quarters.' 5 I conclude that the General Counsel's computation. even with the above amendment. is not accurately premised in consideration of Wallenberg's testimony and the record as it relates to him. Wallenberg testified that he, in fact, did have interim earnings during the first two quarters of 1972 from his job with Davis Tailors in Sioux Falls based upon additional hours of work in comparison to preceding quar- ters. In fact, although Wallenberg had not vet become a contractor, his earnings from Davis Tailors, as described in Davis' statement, during the second quarter of 1972 were appreciably higher than in any of the proximate preceding quarters. Accordingly. it is appropriate, as was originall? done, that interim earnings should be deducted from gross backpay for those quarters. As Wallenberg clearls also had interim earnings during the first quarter of 1973. that figure too, should be accounted for. While the specification origi- nally recognized interim earnings for all quarters of Wallenberg's backpay period, no deductions were made at that time so that the figures might approximately reflect the quarterly amounts he earned at Davis Tailors during the backpay period above what he had been earning from that company in his employment there before the start of the backpay period. Since, as noted, it is clear that at least some of what Wallenberg received from Davis Tailors during the back- pay period represents moneys he would have earned in any event from his prior employment with them, it is relevant to establish a formula for adjusting his interim earnings to reflect what they were in the backpay period above what they previously had been. Since Wallenberg's $3,511 in earnings from Davis Tailors in 1971, the last full year be- fore the backpay period began, were only somewhat less than what he had received from the same source in 1970. it appears to be appropriate to use his prior earnings for that ' See G. ( Exh 7 t54 is nioted that Wallenberg's hackpsa perrod for the firsl quarter of 1972 was approximatelx of I week's duratoln aind extended but 2 ,aceks into the first quarter of 1973. qs Accordingl. the General ( ounsel's amendment would delete origl- nall) alleged interim earnings of S90 In the first quarter of 1972. $1,335 in the second quarter of 1972. and $150) In the firsl quarter of 1973 As to the third and fourth quarters of 1972, the amendmenlit would change Interim earnings from $1,.504 to $650.00 and fronm $552 to $1.406 .50 respctivels. thereby preserving the originalls alleged ht.tl for those iotv qu:lrters vear as a base for computing this adjustment. A reasonable estimate can be arrived at by deducting one-fourth of $3.S11 or $878 from his quarterly interim earnings for each of the second, third, and fourth quarters of 1972 on the basis of what was alleged as such for those quarters in the original backpay specification and as set forth in Davis' correspondence of May 28, 1975. Since, as noted, Wallen- berg also had interim earnings for so much of the first quarters of 1972 and 1973 as fell within the backpay pe- riod, the amounts originally alleged as interim earnings in the unamended specification of $90 and $150 should be likewise adjusted by deducting therefrom amounts calcu- lated on the basis of 1/13 x $878, and 2/13 x $878, re- spectivel., reflecting the prorated number of weeks in- volved in each of the two quarters. Although the General Counsel points out that, as a con- tractor. Wallenberg received less money from Davis for equivalent work after July 1972 than before, the method of comnputation herein, which provides for substantial adjust- ments to the interim earnings originally alleged and actual- IN received. would appear to be an equitable way of dealing with the situation. As the court said in N.L.R.B. v. Rice LXke ('reamncr Compan', 156 "The approximation thus reached is permissible in view of the impossibility of exacti- tude." 15' Wallenberg is entitled to a travel expense allow- ance based on 10 extra miles each day between his home and Davis Tailors' Sioux Falls facility during the first two quarters of 1972 as mileage over what he would have trav- eled between his home and the Respondent's premises. This travel was incidental to the continuation of a preexist- ing employment relationship and the record does not show that Wallenberg incurred any greater travel liability during that period than would have been the case if he then had been employed by the Respondent. Accordingly, the total of 729 additional miles alleged in the original specification is not allowed. However, the situation changed at the start of the third quarter of 1972 when, in July, Wallenberg be- gan to work for Davis in Worthington. Extra mileage for this distance was claimed at 120 miles per day on a basis of 10 cents per mile for the remainder of the backpay pe- riod- a total of 16.800 miles. It is clear that Wallenberg, who was compelled to drive these distances without receiv- ing other reimbursement, is entitled to be made whole for this additional expense at the 10-cent-per-mile rate estab- lished herein. As the General Counsel correctly argues in his brief, the fact that such expenses are high in relation to the income received provides no basis for disallowing them if reasonable."' As the increased distance to Worthington "I 365 f- 2. 8X8. 89 {C.A D.C.. 1966).: see also Midwest Hanger Co.. er al.. 221 Nl RB .i 917, fn 21 7 'xs I amn in agreement with the General Counsel that Wallenberg's greatl' expanded trasel obligation after starting at Worthington necessarily had to work some change in his status, this is noted in his allowed travel expenses. as adjusted inlra. bi tirtlonc S inibthte Fit fihers and Texile Comparny. etc 207 NLRB at 812. 814 81S In firci,,tn. it also was found that a discriminatee who obtains emplo)menil .ubstantial distance from his home is entitled to the benefit of the rele;ant presumptions In that matter. Administrative Law Judge Charles W Schneider quoted from West Teras Utilihtes Company, Inc.. 109 NI.RB 936. 938 (19 54t. as follows: "We cannot believe that Huddleston. perslltent ai he Was In seeking interim employment. would deliberately have chose to lixe an unreas,nable distance awa) from such employment. We Con rin ueJ 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was so great as to materially change the nature of Wallenberg's work-related travel obligation, I will allow the computation at a distance of 120 miles per day and will not deduct therefrom the 10 alleged extra daily miles that Wallenberg previously had traveled from his home to Da- vis Tailors' Sioux Falls facility. The Respondent's contention, in its brief, that backpay should be reduced on the ground that Wallenberg, in changing his method of compensation from a certain $3 an hour, had caused "a built-in-loss" by contracting to do the same work on a less profitable basis is hereby rejected. It is well established that an employee who accepts appropriate interim employment, even at a lower rate of pay, is not required to search for better employment.' 59 Accordingly, backpay for Wallenberg will be allowed as computed above and in accordance with Appendix 34 to this decision. THE REMEDY For the reasons set forth above, I find that the Respon- dent's obligation to the discriminatees herein will be dis- charged by the payment to them of the respective amounts set forth in the Appendixes annexed hereto. Such payments shall be payable with interest at the rate of 6 percent per annum,' to accrue commencing with the last day of each calendar quarter of the backpay period of the amount due and owing for each quarterly period as set forth in the Appendixes, and continuing until the date of this Decision is completed with, minus any tax withholding required by Federal and state law. 16' The gross backpay figures in the Appendixes are based upon those set forth in the specification, as amended, ex- cept where I have modified them hereinabove. The Appen- dixes state the figures for each quarter in which any back- pay is found to be due. As found above, contributions to the Amalgamated Meat Cutters and Butcher Workmen's Union and Industry Pension Fund (the "National Pension Fund") continue to be due and owing to date by the Re- spondent at a rate of $17.30 per month or $51.90 per quar- ter on behalf of all discriminatees except for those discrimi- natees specifically indicated in the Supplemental Order and the relevant Appendixes below. As to these claimants, the appropriate termination dates for pension contribu- tions are also shown below, calculated to the last days of the final months for which such contributions are due. Upon the basis of the foregoing findings and conclu- sions, and upon the entire record in this proceeding, I hereby issued the following recommended: shall allow the estimated cost on this item." In West Teras Utiliriei ( ompa- ny, Inc., the expense considered was for room and board 59 Firestone Synthetic Fibers and Textile Company. 207 NLRB at 815 Ti.mr Texas Steel (astings Comprany, Inc., 116 NLRB 1336, 1343 44 (1956) 160C.P. Exh. 2 herein, actually a memorandum of law. presents argu- ments as to why the current interest rate on backpay awards should be increased from 6 percent. I. of course, am bound b) the Board's decisions on this matter. 161 As is provided for in F. W Woolworth Compani, 90 NLRB 289 (195(). and Isis Plumbing & Hearing Co., 138 NLRB 716 (l962). ORDER 162 The Respondent, Sioux Falls Stock Yards Company, Sioux Falls, South Dakota, its officers, agents, successors, and assigns, shall make the employees involved in this pro- ceeding whole by payment to them of the following amounts, together with interest at the rate of 6 percent per annum, in the manner set forth in the section of this Sup- plemental Decision entitled "The Remedy," and continu- ing until the amounts are paid in full, but minus tax with- holding required by Federal and state law.163 1*. In the event no exceptlionr are filed as provsided h) Sec. 102.46 of the Rules arid Regulations of the National I.ahbor Relations Board. the findings. conclusions. and reconmmended Order herein shall. as provided in Sec. 102 48 ofr the Rules and Rcgulations. be adopted bs the Board and become it. finding'. cronclusions. and Order. and all objections thereto shall he deenied waived for all purposes. ftl ihe hackpals grant totals herein listed. as the attached appendixes show. also include the amounts due in fringe benefits. including contribu- tions tol the pension fund on behalf of the respective claimants Pension fund contributions, which, except where otherwise indicated, are continu- Ig. have been totalled herein through December 3. 1976 Where applicable. pensionr fund pa'ments continue Ito be due thereafter at a rate of $17 30 a nimonth or $51.9 per quarter Discriminatee Ahrendt, Robert Anderson, Arnold Baker, Jerry Barnes, Carroll Bernard, Charles Bloomhall, Donald Buus, Glen DeWitte, Rene Eitrem, Lloyd Floren, Roland Gallagher, James Groos, Leo Gundvaldson, Eugene Gustafson, Norman Hamman, Earl Hanson, David Kimball, Wallace Kreber, Paul Lee, Ronald Loewen, John Loftus, Richard ,[eyer, Gerald Pritchard, Dale Reinke, Thomas Robinson, Arthur Rolfson, Orvid Rose, Willard iRosheira, Harold Stevens, Velmar Styke, Arthur Tronson, Arnold Tverberg, Darrell Wagner, Case Wallenberg, Wayne Backpay Grand Total 163/ $5,718.86 7,310.96 7,330.49 11,750.67 5,403.41 6,378.62 15,093.63 11,376.90 7,456.16 12,298.38 8,293.24 16,426.97 3,906.62 4,961.65 10,807.31 14,530.66 4,307.01 13,151.17 6,818.88 7,828.24 7,463.77 10,515.51 7,057.08 7,011.60 12,004.91 12,398.14 8,202.13 7,257.41 7,355.71 11,945.97 8,044.83 9,680.66 4,522.41 8,041.95 Pension Liability Termination Dates 12/31/73 11/30/73 9/30/74 Continuing Continuing Continuing Continuing Continuing 4/30/74 Continuing Continuing 8/31/74 Continuing Continuing Continuing Continuing Continuing Continuing 10/31/73 Continuing 1/31/74 Continuing Continuing Continuing 10/30/73 Continuing Continuing Continuing 2/283/73 9/30/74 Continuing Continuing 10/31/73 Continuing 570 SIOUX FALLS STOCK YARDS -0 - z Z O w 3 I.- 0 N ' EH u0 i-C, HC.) 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