Artim Transportation System, Inc.

ARTIM TRANSPORTATION SYSTEM , INC. 179 Artim Transportation System, Inc., and Everett W. Batcheller. Case 13-CA-8230 September 17, 1971 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On January 27, 1969, the National Labor Relations Board issued a Decision and Order in the above- entitled case I finding that the Respondent, Artim Transportation System, Inc., had discriminated against Everett W. Batcheller in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, and ordered that he be reinstated and made whole for any loss of earnings, with interest added thereto, by reason of the discrimination. On February 12, 1970, the Court of Appeals for the Seventh Circuit issued its opinion sustaining the Board's Order,2 and on March 19, 1970, the court entered its judgement enforcing said Order. Subse- quently, the Respondent's petition to the Supreme Court of the United States for a writ of certiorari was denied by the Court.3 A backpay specification and notice of hearing was issued by the Regional Director for Region 13 on February 2, 1971, and the Respondent filed an answer to the backpay specification on March 2, 1971. Pursuant thereto, a hearing was held before Trial Examiner Lloyd S. Greenidge on March 23, April 5 and 6, 1971, for the purpose of determining the amount of backpay due to Batcheller. On June 14, 1971, Trial Examiner Greenidge issued the attached Supplemental Decision in which he found that Batcheller was entitled to the amount of backpay therein set forth. Thereafter, the Respondent filed exceptions to the Supplemental Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Supplemental Decision, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. SUPPLEMENTAL ORDER Pursuant to Section 10(c) of the National Labor 193 NLRB No. 27 Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Artim Transportation System, Inc., Hammond, Indi- ana, its officers, agents, successors, and assigns, shall make Everett W. Batcheller whole by payment to him of the amount set forth by the Trial Examiner in his attached Supplemental Decision, plus interest, less deductions required by state and Federal laws. 1174 NLRB No 40. 2 N L R B V Arum Transportation System, Inc, 422 F 2d 853 (C A. 7). 3 400 U S 825. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE LLOYD S. GREENIDGE, Trial Examiner: This proceeding was instituted by the Regional Director for Region 13 of the National Labor Relations Board, pursuant to authority conferred on him by the Board, for the purpose of determining the controversy which had arisen over the amount of backpay, if any, due to Everett W. Batcheller, who, according to the Board's Decision and Order herein,' as enforced by the United States Court of Appeals for the Seventh Circuit,2 had been discriminatorily discharged by Artim Transportation System, Inc., herein called the Respondent, in violation of Section 8(a)(3) and (1) of the Act. Subsequently, the Respondent's petition to the Supreme Court of the United States for a writ of certiorari was denied by the Court.3 Backpay Specifications and Notice of Hearing issued herein on February 2, 1971, and were later amended at the hearing held before me in Chicago, Illinois, on March 23 and April 5 and 6, 1971. Upon consideration of the amended backpay specifica- tions, Respondent's answer, the evidence adduced at the hearing, and the briefs submitted by counsel for both sides, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. PRELIMINARY STATEMENT The specifications allege, the answer generally denies but I find, that the backpay period runs from December 1, 1967, the day following Batcheller's discharge, to December 29, 1970, the date of his reinstatement. The parties agree that an appropriate measure of the gross backpay for Batcheller can be determined by comparing his earnings for the years 1964-1966, inclusive, to the earnings of the 10 Respondent's drivers with seniority dates immediately preceding Batcheller's starting date and the 10 Respondent's drivers with seniority dates immediate- ly following Batcheller's starting date. It was also agreed that, during the said 1964-1966 period, Batcheller's earnings were $32,110.68, his yearly average was 1 174 NLRB No 40. 2 N L R B v Artim Transportation System, Inc., 422 F.2d 853 (C A. 7). 3 400 U S 825 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $10,703.56, and that the yearly average of the earnings for the 20 comparison drivers was $10,171 29.4 The parties further agreed that, during the said period, Batcheller's average yearly earnings were 105.23 per cent of the average yearly earnings of the 20 drivers in the same period. The amended specifications allege, and I find, that Batcheller's gross earnings during each calendar quarter of the backpay period are 105.23 per cent of the average gross earnings of the 20 comparison drivers in each such calendar quarter.5 Richard B. Simon, Compliance Officer for Region 13, testified, credibly and without contradiction, that the figures and computations in Appendixes A and B are based on information he obtained directly from the Company's records. Accordingly, I find that such figures and computations accurately reflect the earnings of Batcheller and others during the periods indicated therem.6 Respondent contends, in substance, that: (1) Batcheller did not engage in a diligent search for work during December 1967, during the first, second, and third quarters in 1968, and during October and November 1968, and in consequence thereof backpay should not be awarded for those periods; (2) Batcheller unjustifiably terminated interim employment with Midwest Emery Freight System and thereby incurred a willful loss of earnings; (3) Batcheller's discharge by interim employer Brady Motor Freight allegedly for having failed to report for work was, in all the circumstances, an unjustified voluntary termination of employment; (4) claims for $730 and $310, representing expenses incurred by Batcheller to hold interim employ- ment should be disallowed for the reason that they are indefinite and speculative; and (5) claims for medical expenses incurred by Batcheller during the backpay period should be denied because it has not been established that they would have been paid, in whole or in part, by Teamsters Union No. 142, Health and Welfare Trust Fund. II. THE EVIDENCE A The Extent of Batcheller's Search for Work Prior to his discharge by the Respondent on November 30, 1967, Batcheller was a truckdnver assigned to its City Division in Hammond, Indiana. At all times relevant, Batcheller has resided in a rural area about 14 miles south of Lowell, Indiana. Lowell is approximately 30 miles distant from Hammond. Following his discharge, Batchel- 4 Appendix A attached and p 2 of G C Exh 1-0 5 Appendix B attached 6 As originally drafted, the specifications covered the period 1963-1966 and showed Batcheller's average yearly earnings in this period to be 108 1% of the average yearly earnings of the 20 drivers However, at the hearing, the Regional Director modified the specifications by accepting the 1964-1966 period and the 105 23 percentage figure as proposed by the Respondent 7 Batcheller recorded in two notebooks the names of the places he had visited and the dates of such visits On occasions, his recollection of such places and dates was refreshed by a reference to the notebooks 5 Batcheller referred in his testimony to visits to the East Chicago and Hammond offices of the ISESD According to Batcheller, the former did not issue identification cards to individuals seeking work but instead recorded such visits mechanically on something resembling a credit card which it retained Batcheller did, however, obtain employment identification cards but, again according to Batcheller, they were issued by the Hammond office (G C Exh 16 and 17) M W Ruddell, manager of the Hammond office, acknowledged that ler spent on an average of 1 full day each week in search for employment.? With respect to his work situation from December 1, 1967, to the end of that year, Batcheller testified that there was a grievance hearing in connection with his discharge on December 27; that 2 days later he filed a claim for unemployment compensation with the East Chicago office of the Indiana State Employment Security Division (hereinafter ISESD) but did not register for employment at that time; that the same day, December 29, one Carl Marcus, a supervisor assigned to the East Chicago office, referred him to Wonder Bread Bakeries reported to be in need of a truckdriver; that later the same day or the next he appeared at the Wonder Bread plant where he filled out an application for the job of truckdriver and was then instructed to return after the first of the year; that on or about January 2, 1968, he returned to Wonder Bread and was told he had not been selected for the job; and that shortly thereafter he went back to the East Chicago office, informed Marcus of the final result of the interview, and requested another referral.8 Continuing in the year 1968, Batcheller testified that during the first quarter of 1968 he made abortive attempts to obtain work with approximately 17 different employers, approaching I on about eight separate occasions; 9 that during the second quarter of that year he sought without success to secure employment with four employers, approaching one on three occasions,10 and in addition registered with the ISESD on March 25, April 15, and May 27; that in the third quarter of the same year he applied to three employers but there were no openings and, further, he made about 16 visits to the ISESD. Finally, in the fourth quarter, Batcheller attempted to obtain employment with four employers and, in addition, registered with the ISESD on November 13, 29, and December 17. In October and November 1968, Batcheller was active with an insurgent organization called the Fraternal Group of Concerned Teamsters which had entered a slate of candidates in an intraunion election scheduled for early December 1968 and was then engaged in campaigning in its behalf. Batcheller did not, however, remove himself from the labor market as he used what money he received from the group" to continue his search for employment as shown by the four trips to employers and the three visits to the ISESD in that quarter. Later in the fourth quarter and on December 23, G C Exh 17 which bears the stamp of the Hammond office on its face was issued by his office and allowed that G C Exh 16 which does not bear such a stamp could also be a record of Batcheller 's visits to the Hammond office Ruddell went on to say that his office handles registration for work and that until June or July 1970 the East Chicago office was only concerned with processing claims for unemployment compensation Ruddell's area of responsibility was the Hammond office and it was not shown that he had personal knowledge of the day-to-day practice in the East Chicago office at any time material herein However, accepting for the moment Ruddell's assertion that East Chicago was strictly a claims office, the fact is Batcheller's testimony concerning a job referral by Marcus of that office and resulting interviews with Wonder Bread personnel stands uncontradicted by Marcus or by anyone from Wonder Bread Accordingly, I credit this testimony of Batcheller 9 Ruan Transport Corporation 70 D & L Transport ti In fact, the money was a reimbursement to Batcheller for sums he had expended to purchase food and gasoline ARTIM TRANSPORTATION SYSTEM, INC. 181 1968, Batcheller obtained work with Carlson Trucking Company. As to the first quarter and part of the second quarter in 1969, Batcheller testified that his employment with Carlson continued until March 11, 1969, that it was followed by employment with Midwest Emery Freight System begin- ning the same day, March 11, and continuing up to April 21, and that this employment was, in turn , followed by employment with Tri-State Coach Lines from the latter part of April to the end of May 1969. Again , according to Batcheller, while employed by Tri-State, he continued to seek other employment more suitable to his background and training . On May 31, Batcheller journeyed to Portland in his search for work and was away until June 17. In the latter part of June, he sought employment with Rogers Cartage but there were no vacancies . In the third quarter, Batcheller filed an application with Great Lakes Express which was rejected for reasons of age . From July through August, he applied for work with four other employers and, in addition , filed an application with the United States Civil Service Commission for the position of clerk -carrier in a Post Office .12 In response to a newspaper advertisement, Batcheller sought employment with Inland Steel Company, one of the five civilian employers approached in that quarter . After being refused a job by Inland Steel on three or four occasions , Batcheller went to the Hammond office of ISESD and complained to Ruddell. According to the credited and uncontroverted testimony of Batcheller, Ruddell stated that he had read about Batcheller's "case," advised that the Indiana Employment office could not "put pressure" on Inland Steel or on any other employer to give Batcheller a job , and declared that, in view of all the "controversy" surrounding his case, he (Ruddell) consid- ered Batcheller "unemployable in the region." On Septem- ber 2, 1969, Batcheller obtained employment as a crane operator and warehouseman with Brady Motor Freight through a friend who had held the position but had quit allegedly because of unsafe working conditions. Finally, as to the first , second, and third quarters of 1970, Batcheller testified that he continued to work for Brady until July 3 and then sought employment with six other employers without success . During the fourth quarter of that year, on or about October 1, Batcheller signed up with a local distributor for Bestline Products. This was an attempt at self employment necessitating loans in amounts of $2,000 from a local bank, $800 from a son, and $300 from a daughter . The venture proved unsuccessful and, on December 28, Batcheller obtained employment with Transamerican Freight Line , Inc., through a personal contact. The same evening, December 28, he received a telegram from the Respondent offering him reinstatement. The offer was accepted and, as reported above, Batcheller was reinstated on December 29, 1970. It is thus evident that during the entire backpay period 12 Batcheller was unsuccessful in this effort, having failed to score a passing grade in the written examination 13 Batcheller did not seek work with Red Top Trucking, National Cartage, or American Transit Lines, three of the I I companies I note, however, that Red Top did not offer substantially equivalent employment as its drivers are required to be out of town overnight and that, in 1968 and 1969, National Cartage had a constant work complement of city or company drivers Batcheller was either seeking work or working. It is also apparent that although his efforts were concentrated initially on getting employment as a city truckdriver he did not meet with much success in this regard; and that thereafter some of the employment which he did obtain was as a crane operator and warehouseman or in his own business rather than as a truckdriver. Batcheller recounted that, at the December 29, 1967, grievance session pertaining to his discharge, he criticized the Union's officials and, after this, Business Representative Jacob Abshire declared that Batcheller would never again work in a shop under Local 142's jurisdiction. Batcheller described his frustration in obtaining employment as follows: "In fact, I went to many, many places looking for work . . . under contract to Local 142, and in every case I couldn't get ajob. It was evident I had been blackballed by that union." In support of its position that Batcheller did not exercise due diligence in his quest for employment and also passed up available jobs, Respondent points, in its brief, to testimony of 11 witnesses 13 called by the Respondent. In general these witnesses, employees of various trucking companies, testified that substantial numbers of company and fleet drivers were hired by them in 1968, 1969, and 1970. In this regard, Respondent calls attention to statements by Batcheller to the effect that he made oral applications for work at four14 and filed written applica- tions with three 15 of the seven remaining companies, yet not one of the witnesses remembered having received a call or an application from Batcheller. I find no merit in the foregoing. A review of the testimony of the seven witnesses reveals that four conceded a lack of personal knowledge, prior to 1970, as to who had applied for work locally and allowed that unbeknown to them Batcheller might have approached a subordinate with an oral request for employment. As to written applications, William P. Frantz, safety and personnel director for Welsh Brothers since January 4, 1971, testified at one point that there is no way to determine whether an individual applied for work in 1968, as Batcheller credibly averred, since it was not until January 1, 1971, that the company began to keep a file on all job applicants pursuant to the rules and regulations of a federal agency. However, at another point Frantz testified that, prior to January 1971, it was company policy not to accept an application unless a man was actually hired and only such applications were retained. Frantz' association with Welsh dates only from January 1971 and it is clear from the foregoing and the record as a whole that he is not familiar with the Company's employment practice in 1968. Accord- ingly, I do not accept this testimony of Frantz. Peter B. Ondrak, director of labor relations at D & L Transport for the past 15 years, testified that his base of operations is Cicero, Illinois, and that the Company has a terminal in East Chicago. Ondrak went on to say that short form Batcheller testified credibly that, in November or December 1968, he applied to Simms Motor Transport, another of the Il employers represented at the hearing, understandably without success as the ratio of its owner operators to company drivers was 5 to I and, as with National Cartage, the turnover among company drivers was practically nil 14 Ruan Transport Corporation, Rogers Cartage, Gary Transfer, and Great Lakes Express 15 Welsh Brothers, D & L Transport, and C P.T. Freight 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applications are kept for 6 years and that a search of the Company's files had disclosed no application from Batcheller. For his part, Batcheller testified that, on June 10, 1968, he approached a D&L dispatcher in a house trailer; that he requested, received, filled out, and returned an application to the dispatcher who then advised that he would send it to East Chicago for approval. Several weeks later someone told Batcheller that the East Chicago office was not authorized to accept applications and that he did not know anything about the application. Still later, Batcheller was informed that there had been no reply from East Chicago. Batcheller's account contains a fair amount of corroborative detail which tends to buttress his story. It is therefore credited. Batcheller submitted an application for employment with D & L but it is doubtful that it ever left the house trailer. Finally, E. M. Heisterberg, President of C.P.T. Freight, testified that, prior to January 1, 1971, his Company did not retain applications, allowed that Batcheller might have filed an application with C.P.T. in 1968, as Batcheller asserted, and conceded that in such event there would be no record of the application. Respondent furnished evidence to show that the Gary- Hammond-East Chicago area 16 was not a depressed section of the country at times relevant and has requested the Trial Examiner to consider the job market conditions prevailing in the area during the backpay period. I have done so and am satisfied that this was not a depressed area. However, the problems Batcheller faced in finding employment was not due to any lack of diligence on his part but to the difficulties he encountered through the ISESD which had contacts with the greatest number of employers in the area and also to the opposition of the Union which had contracts with many of the same employers. Thus, considering the limitations imposed on Batcheller it is impossible to determine how many jobs were actually available to him. On the basis of the above, I find that Batcheller made a diligent effort to secure employ- ment. Accordingly I conclude, and find further, that Respondent has not sustained its burden of showing, as it contends, that Batcheller did not exercise due diligence in seeking work during the backpay period and thereby incurred a willful loss of earnings.17 B. Batcheller's Interim Employment in Dispute Batcheller was hired by Midwest Emery Freight System as a fleet or over-the-road driver on March 11, 1969, following consummation of a leasing arrangement between Carlson Trucking Company and Midwest Emery and remained in the latter's employ until about April 21, 1969, when he quit. However, while still employed by Midwest Emery, he continued to look for more suitable employment. Batcheller testified credibly that he terminated his employ- ment with Midwest Emery because of an accumulation of separate incidents as follows: (1) he encountered difficulty in obtaining reimbursement of $80 which he had spent to 16 Resp Exh 1 11 In December 1968 Batcheller was referred by the ISESD to a Mr Williams but refused the referral for the reason that he could not work on a commission basis As this was not substantially equivalent employment, Batcheller can not be faulted for his action in August 1970 Batcheller was again referred by ISESD this time to Midwest Pipe but did not report The repair a Thermo-King in a company truck; (2) the company deducted from his pay money it had advanced to cover road expenses; (3) on one occasion, he could not obtain an advance to pay road expenses for a return trip to his home base; and (4) he could not get an advance to cover expenses required to complete a delivery of goods in Milwaukee. Batcheller explained that he was without funds at the time he was detailed to go to Milwaukee and needed the money to pay a city man to help unload his truck. Norbert Kustra, director of safety and personnel for Midwest Emery and a witness for the Respondent, testified that his company gives money advances and issues charge authorizations or purchase money orders to drivers of leased equipment for use in the event of breakdowns. He did not, however, directly challenge the credited testimony. Batcheller started to work for Tn-State Coach Lines on April 24, 1969, and remained with the Company until about the end of May when he quit this interim employer. Batcheller drove a limousine for Tn-State between Gary and the O'Hare airport. Under an arrangement with the Company, he was supposed to make three trips in a 12- to 13-hour workday and average about $2.00 per hour. In point of fact, however, after the first week, the trips were cut to two, the workday to 8 hours. To make matters worse still, Batcheller learned in time that drivers were expected to make up shortages. Further, the limousine he drove had many breakdowns and flat tires and there were with no replacements for the flats. The incident that precipitated his voluntary termination occurred the night he lost his wallet amid much confusion. Batcheller obtained employment with Brady Motor Freight on September 2, 1969, on a referral by a friend who had quit allegedly because of hazardous working condi- tions. His employment with this employer terminated in July 1970 under circumstances here in dispute. Batcheller was assigned to operate a mill type crane of 1917 or 1918 vintage. The crane ran on tracks overhead and was controlled from a box below. It was used primarily to load and unload steel onto and from flat bed trucks. He also operated a forklift truck which did the same thing. Batcheller recounted numerous complaints voiced to management about the condition of the crane, many admittedly valid, among them the fact that he had received electric shocks and had expressed a fear of being electrocuted. On or about June 19 he observed that the crane was not tracking properly and asked Regional Manager Lewis to have it repaired but he refused. A few days later, a shaft in the main drive broke and, after this, the crane was inoperative for a period extending through July 3. In the meantime, Batcheller used the forklift to transport products. About 4:30 p.m., Fnday, July 3, while operating the forklift, a few steel pieces fell off the truck and damaged a wall of a warehouse. Lewis ran out of his office and remonstrated with Batcheller about moving products in an unsafe manner. Batcheller then reminded Lewis that the record here does not show the terms, conditions, and location of the lob and, in the absence of such evidence, there is no warrant for finding-on the basis of the abovementioned entry in Batcheller's record with the ISESD-that he failed in his duty to mitigate damages by not reporting for the same ARTIM TRANSPORTATION SYSTEM , INC. 183 crane was inoperative and asserted that it should have been repaired some time ago. Whereupon , and without further ado, Lewis directed Batcheller to pack up and go home. Batcheller asked whether he was fired and stated that, if such were the case, he was entitled to a letter of discharge. To this, Lewis replied that such a letter would have to emanate from Des Moines . And, as Batcheller turned to leave, Lewis said "Don't bother to come back Monday." Batcheller had worked the entire week of June 30 through July 3. Under an agreement between the Company and a union, when a holiday falls on a Saturday or Sunday, an employee is entitled to take off with pay the preceding Friday or the following Monday. Batcheller did not work Monday, July 6, and was not paid for that day. Further, he did not report for work on July 7 and July 8. On Thursday, July 9, Batcheller telephoned Lewis to ascertain whether Lewis had sent a letter to Des Moines recommending his discharge. Operations Manager Urbane answered and, on Lewis' instructions, told Batcheller "don't bother coming back." 18 Respondent contends that Batcheller unjustifiably termi- nated his employment with Midwest Emery and incurred a willful loss of earnings . I do not agree . It has long been the rule that ". . . a claimant who obtains a job but then leaves it for justifiable reason is not deprived of all further claims; the assumption is that the reason for his quitting the job would not have been present at Respondent 's plant and therefore the job is not substantially equivalent." 19 Applying the rule to the facts here present, I find that Batcheller voluntarily quit his employment with Midwest Emery for justifiable personal reasons , namely, the facts that the Company had shortchanged him by deducting from his earnings money he had spent to pay road expenses and, on occasions, refusing to advance money for this purpose ; and, further, had dragged its heels in reimbursing him for money expended to repair its equipment. Small wonder then that he decided to look elsewhere for work. Moreover, the job with Midwest Emery was not substan- tially equivalent to the job Batcheller had with the Respondent . In view of the foregoing , the quitting did not constitute a willful loss of earnigns. A similar result is warranted in the case of employer Tri- State Coach Lines. In that instance , Batcheller's earnings were considerably less than he was led to believe they would be. Further, the Tri-State job did not provide substantially equivalent employment. I find , therefore, that by quitting his employment with Tri-State Batcheller did not violate his obligation to minimize his losses. Finally, Respondent argues that Batcheller's discharge by Brady Motor Freight "was the result of his failure to report for work and as such [must be] found to be a voluntary leaving of employment ." There is no support in the record is The facts above with respect to Brady are found from credited testimony of Batcheller, as corroborated in certain particulars by admissions of Lewis Testimony of the latter in conflict with the findings is not credited for various reasons as follows (I) at one point, Lewis testified that he told Batcheller not to report for work on Monday, July 6, but later averred that he did not tell Batcheller he had Monday off, (2) Lewis recalled having an argument with Batcheller on July 3 and telling him to leave but did not recall telling him to return, (3) Lewis did not know whether Batcheller was paid for Monday, (4) Lewis decided to fire Batcheller on July 7 and the decision related back, to some extent, to an argument on July 3 which he did not recall , and (5) Lewis did not for the contention. The evidence is that Batcheller was discharged by Lewis following an argument about the operation of certain equipment in the plant . Lewis told Batcheller on July 3 to go home and not to return the following Monday, July 6 . Batcheller did not and was not paid for Monday which for him was a holiday with pay. Moreover, when Batcheller asked for a letter of discharge Lewis did not deny that he had been discharged . Further, even in Lewis' view of the facts, Lewis was influenced to some degree in arriving at his decision to discharge Batcheller by the events of July 3. As there is no claim and no evidence that Batcheller engaged in misconduct and as he immediately resumed his search fcr employment, I find that he did not incur a willful loss of earnings on July 3. C. Expenses Incurred To Retain Interim Employment The Regional Director allowed an offset of $1040 from interim earnings for expenses incurred by Batcheller to hold interim employment . In this regard, a stipulation was received to the effect that logs maintained by Batcheller show that, in the first quarter of 1969, he spent 71 days out of the Hammond area on business for Carlson Trucking and, in the second quarter of the same year, spent 31 days out of the area on business for Midwest Emery , for a total of 102 days on the road. Prior to his unlawful discharge, Batcheller was a city driver for the Respondent at its terminal in Hammond . Questioned as to these expenses, Batcheller testified that, at one time, an agent for the Internal Revenue Service had advised that he could deduct $10.00 per day for road expenses without itemizing provided he kept a daily log showing the days spent away from home . Continuing Batcheller related that his expenses were for subsistence, lodging, telephone calls, and other general road expenditures . In its brief, Respondent invites attention to testimony by Kubsta that certain trailers leased by Midwest Emery were "five-axle sleeper operations," inferentially contending thereby that Batcheller could have avoided motel expenses by using a trailer. There is no substance in the contention . Notwithstanding the paucity of proof to sustain the position , it will suffice to say that Batcheller was not required to sleep in a trailer to mitigate damages arising from his unlawful discharge by the Respondent.20 I find that Batcheller's road expenses were necessary to retain interim employment and that $10 .00 per day is a reasonable and proper allowance for defraying these expenses . However, in computing Batcheller's road days while at Carlson Trucking, the Regional Director inadvert- ently credited him with 73 rather than with the stipulated 71 days. I have, therefore, modified the backpay specifications remember whether the crane was inoperative on June 3 In view of this self-contradiction , his uncertainty, vacillation , and evasion, as well as demeanor, I regard Lewis' testimony as generally unworthy of belief and credit it only when it conforms with other credited testimony or constitutes an admission against interest. 19 Mastro Plastics Corporation, etc, 136 NLRB 1342, 1349, enfd on this point 354 F 2d 170 (C A. 2), cert denied 384 U S 972; East Texas Steel Casting Company, Inc, 116 NLRB 1336, 1347-1348, enfd. 255 F.2d 284 (C A 5), American Manufacturing Company of Texas, 167 NLRB 520, 527. 20 See My Store, Inc, 181 NLRB No. 47 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the extent of deducting $20 from such expenditures as appears at footnote 2, Appendix C of this Decision. D. Medical Expenses Prior to Batcheller's discharge on November 30, 1967, Respondent was a party to a collective-bargaining contract with Teamsters Union Local No. 142, IBT and insured under a group plan administered by the Union's Health and Welfare Trust Fund. The premiums on such insurance were paid solely by the Respondent. During the backpay period, Batcheller incurred hospital and medical expenses as the result of injuries sustained by his dependent children in a common occurrence. Louis Morande, administrator of this Fund, related that the health program provides basic and major medical coverage for all eligible employees and their dependents; that under the basic plan the Fund pays the first $750 of hospital charges and 80% of the balance plus a maximum of $40 per day for a hospital room; that, while there is a $100 deductible on major medical expenses where, as here, there is a common incident only one deductible is assessed; and, finally, that where, again as in this instance, the wife of a covered employee has insurance and her carrier pays part of a claim the Fund picks up the balance including the $100 deductible. Batcheller testified that not one of the bills has been paid by the Fund The Regipnal Director's amended backpay specifications claim the 'amount of these medical bills and hospital expenses21 to the extent that Batcheller would have been compensated for such expenses under the group health insurance policy then in force, less amounts paid by Mrs. Batcheller's insurance. I find that Batcheller was an employee covered by the Fund-applicable to all regular employees and to new employees after 60 days of employment-and that such coverage would have contin- ued but for Respondent's discrimination against him. Inasmuch as Batcheller incurred medical and hospital expenses for which he would have been compensated by the Fund, and as no evidence to the contrary was adduced by the Respondent, I find further that he is entitled to $911 for such expenses from the Respondent, and the claim therefor as set forth in the amended specifications is allowed. Additionally, the parties stipulated that, while employed by Brady Motor Freight, Brady deducted $208.20 from Batcheller's earnings to pay premiums in a group health policy. Absent the wrongful discharge Batcheller would not have been deprived of coverage under the Fund and substitute insurance would not have been necessary. For this reason, the claim of $208.20, as set forth in the amended specifications, is also allowed. In sum, the total amount awarded Batcheller for medical and health insurance premium payments is $1,119.20. E. Pension Insurance Premiums At least since April 1, 1967, the Respondent has been party to a pension fund agreement, created pursuant to its collective-bargaining contract with the Union, the purpose 21 G C Exh 20(a) through (g) 22 One of the three employer trustees is R Ralph Artim , president of the Respondent 23 The terms pension plan and pension fund are used interchangeably of which is to provide employees "pension, death and other such benefits ...." All regular employees are eligible to participate in these benefits and the premiums for such pension insurance are paid in full, weekly, by the Respondent to the trustees of the pension fund,22 who in turn pay them to the insurance carrier. According to credited and uncontradicted testimony of Morande, who is also administrator of the pension fund, in situations where no contributions have been made on behalf of an employee for 3 or more years, the employee forfeits his credits in the fund for those years. He also related that no payments to the pension fund were made by the Respondent for Batcheller during the backpay period. On March 10, 1971, Morande sent Batcheller a letter which stated, in pertinent part, that "As of December 31, 1968, you have accumulated six (6) years of Pension credit." Batcheller was hired by the Respondent in September 1961 and, absent his discriminatory discharge, would have had about 9 years and 6 months of creditable service as of the date of the Morande letter. In his amended specifications, the Regional Director alleges that "inasmuch as Batcheller was terminated from membership in the Pension Plan . . . by reason of his discharge," Respondent should be required to pay to the pension plan 23 a sum representing the contributions it would have made to the pension plan for Batcheller during the backpay period if he had not been wrongfully discharged. The Regional Director also requests the Trial Examiner to include in his Decision a provision permitting the Director or Batcheller to reopen the record on motion in the event the pension plan refuses to accept contributions tendered on Batcheller's behalf or refuses to restore the status quo ante with respect to his pension rights. In its brief, Respondent asserts that it has "no objection tendering to the pension fund the amount found due for those periods in which Mr. Batcheller was engaged in a diligent search for work or was employed by an interim employer." Thus, it is clear, and I find, that Batcheller was entitled to participate in the pension program during the backpay period and that absent the discrimination would have received all benefits which flowed from the Respon- dent's contributions to the pension insurance . The amounts the Respondent would have contributed during the backpay period are not disputed and are quite substantial.24 Accordingly, I conclude that Batcheller is entitled to be made whole for the contributions the Respondent would have made to his pension insurance absent the discrimination and the claim therefor in the amount of $1,566.00, as set forth in the Regional Director's amended specifications, is confirmed.25 It is well settled that pension payments made by an employer are a form of wages.26 Although "wages," Respondent's contributions were not paid to the discrimi- natee but went to the Pension Fund and then to the insurance carner as premiums for the pension insurance. The Regional Director proposes, and I agree, that it would be appropriate and reasonable in this backpay proceeding 24 Appendix D attached 25 NLRB v Brown & Root, Inc, 311 F 2d 447, 452 (C A 8) 28 Inland Steel Company v N LR B, 170 F 2d 247, 250-25I (C A. 7), cert denied 336 U S 960 ARTIM TRANSPORTATION SYSTEM, INC. 185 to require the Respondent to pay the contributions omitted during the backpay period to the Pension Fund. However, Morande disclaimed knowledge as to whether the Fund would accept a tender of the omitted premiums and restore Batcheller's pension insurance in the status it would have been absent the discrimination. The question, he went on to say, has not been presented to the trustees who are the sole arbiters in the matter.27 It is this uncertainty as to whether a tender of contributions will be accepted by the Trustees and the status quo at the time of the discrimination restored in respect to Batcheller's pension rights that has prompted the Regional Director to request inclusion of a provision in this Decision granting leave to reopen the record on motion. However, to accede to the request, and I do not, would only invite further delay in what has already been a protracted proceeding. More important is the fact that the contingency the Regional Director envisions can be provided for at this time. Under Section 10(c) of the Act, the Board has the power to order restoration of insurance rights and to provide alternative relief.28 Accordingly, I shall recom- mend that Respondent attempt to procure for Batcheller the restoration of his pension rights and privileges as they had existed immediately prior to his unlawful discharge on November 30, 1967, by tendering to the Pension Fund the amount of $1,566.00 which represents the contributions Respondent would have made to the Pension Fund during the backpay period on Batcheller's behalf absent the wrongful discharge or, if exact restoration is not possible, that the Respondent procure substantially equivalent pension insurance rights and privileges for Batcheller. F. Vacation Time As an employee with more than 9 years of service with the Respondent, Batcheller is entitled to a 3-week vacation. Sometime in March 1971 he requested and was denied a 1- week vacation to attend this hearing. Jack McMahon, Respondent's operation manager for its city division and the individual who had denied the request, testified that the application was rejected because he believed the matter of Batcheller's vacation time and holiday pay would be resolved in this proceeding. In his brief, the Regional Director poses the question whether Batcheller is entitled to normal vacation benefits in 1971. The question is moot, of course, but if guidance is sought it is suggested that the Region obtain compliance with the Board's Order and the court's decree under which the Respondent is obligated to restore Batcheller to his former or substantially equivalent position, "without prejudice to his seniority or other rights and privileges," and this includes the restoration of his vacation time and holiday pay from on and after November 30, 1967. RECOMMENDED ORDER On the basis of the foregoing findings and conclusions and the entire record in this case, it is hereby ordered that Respondent, Artim Transportation System, Inc., its officers, agents, successors, and assigns pay to Everett W. Batcheller as net backpay herein determined to be due the amount of $29,245.82 with interest at the rate of 6 percent per annum computed on the basis of the quarterly amounts of net backpay due, less any tax withholding required by law; 29 that Respondent pay to Batcheller the amount of $1,119.20 as reimbursement for medical expenses and health insurance premiums; and that Respondent attempt to procure for Batcheller the restoration of all his rights and privileges of pension insurance as they had existed immediately prior to his unlawful discharge on November 30, 1967 by tendering to the pension fund the amounts of $1,566.00 which represents the contributions the Respon- dent would have made to the pension fund during the backpay period on Batcheller's behalf, or procure substan- tially equivalent pension insurance rights and privileges for Batcheller. 27 Article 17, section I, in the April I, 1967, collective-bargaining contract between the Respondent and Teamsters Union Local No 142, repeated in the April I, 1970, contract between the parties, recites in part The Trustees of the Fund shall have the sole power (a) to construe the provisions of the Trust Agreement and rules and regulations and all terms used therein , and (b) to determine all disputes with respect to eligibility, the right to participate in benefits of the Fund, time, method of payment, payment during periods of Employee illness or disability, methods of enforcement of payment and related matters, and any construction adopted and any determination made by the Trustees in good faith shall be final and binding upon all Employers, Employees, participants, legal representatives, dependents, relatives, and all persons and parties 28 See, for example, CB Cottrell & Sons Company, 34 NLRB 457, 471-472, Continental Oil Company v N L R B, 113 F 2d 473, 485 (C A 10), enforcing as modified 12 NLRB 789, remanded for other reasons 313 U S. 212 29 Appendix C attached 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A 1963 1964 1965 1966 1967 D. Pearson 2-16-59 $ 9,014.99 $ 9,410 . 94 $ 9,730.57 $ 9,845 . 77 $ 10,452.25 C. Byquist 6-1-59 9,258 . 29 9,854 . 00 10,451.50 10,869.84 10,914.09 L. Scheenya 1-10-59 10, 193.80 10,680.22 10, 935.54 11,624 . 27 11,425.13 C. Graves 11-13-59 10, 110.92 10,891.67 11,200 . 49 10 , 968.53 119429.18 R. Brogg 6-6-61 8,919 . 74 9,710 . 22 10, 039.40 10,014 .70 10,374.06 D. Donato 6-5-61 9,885.36 10,255.35 11,200.41 11 , 261.01 11,081.09 R. Finch 6-27-61 9,534 .83 10 , 008.67 10,604 . 63 8,933 . 50 9,893.21 C. Hawk 8-11-61 10,070 . 26 9,460.03 10,571.45 10,072.60 9,542.17 J. Boll 8-25-61 9,436 .40 10 , 082.50 11,069.75 10,435 .87 10,752.44 R. Artier 9-5-61 8,748.18 9,549 . 00 10 , 324.26 10,137 . 15 11,020.91 Everett Batcheller 10,571 .85 10 , 124.03 10,475. 13 11,511 . 52 8,820.16 J. Oliphant 10-17-61 9,736.75 9 , 304.46 10,491 .89 10 ,415.17 10,218.19 D. Gardener 12-4-61 8,606 .34 8,444 . 67 9,892.45 10,056 . 45 9,755.91 R. Leesow 12-5-61 9,004 . 02 9,033 . 02 9,135.69 9,599.98 9,665.80 K. Yeas 1-28-62 9,008.94 9,843.45 10,357.20 10,700.60 10,617.41 P. De Boer 2-7-62 9 , 250.36 9,923 .32 10 , 204.26 10,400.47 10,727.44 W. Brewer 4-26-62 9, 114.33 10,708 .76 11,513 . 56 11,539.44 11,462.62 R. Ericks 2-13-63 7 ,530.76 9,512.93 9 ,311.66 9,044.49 9,968.11 C. Mathews 2-13-63 8,006 . 98 10 , 495.72 10,482 .98 10,937.05 10,817.34 C. Nelson 3-16-63 7,101.99 8,802.82 9,739.27 10, 629.31 10, 733.62 L. Richardson 3-18-63 6,784 .46 9,086.84 10,506 . 53 9,971.07 9,852.16 Total $210,703.43 Average 10 , 535.17 105.23 of Average 11,086.16 APPENDIX B 1968 1969 3 3 4 4 1 2 4 1 2 1 2 3 D. Pearson $ 2,784.10 $ 3,267 . 57 $ 2,662.77 $ 2,841 . 40 $ 3,019 .86 $ 3,169 .82 $ 3,507 . 85 $ 3,848 . 31 $ 2,680 .48 $ 1,072.44 $ 3,026 . 68 $ 3,415.54 C. Byquist 2 , 768.46 2,892.57 2,807 . 00 2,834.92 3,139.65 3,401 . 86 3,864.57 3,566.24 2,937.34 581.13 3,131.65 3,326.17 L. Scheenya 3,204.60 3,823.42 3,243.63 2,989.17 3,322.03 3,788.84 3,750.81 4,383 . 60 2,957.94 895.48 3,392 . 14 4,492.43 C. Graves 3,032 . 71, 3,249 . 48 3,249.13 3,018.05 3,329 . 11 3,648 . 47 3,545.18 3,963 . 24 2,938.61 861.49 2,933.73 4,239.59 R. Brogg 2,652 . 50 2,659 . 12 3,013.53 2,713.67 2,972 . 26 3,137.15 3,072.82 3 ,467.81 2,824.45 327.12 2,812 . 10 3,483.80 D. Donato 3,104 . 41 3,543.52 3,257 .77 3,073 . 06 3,292 .18 3,660.47 3,685.54 3,866.82 2,879.50 752.12 2,894.11 3,878.89 R. Finch 2,410. 57 3,033.74 2,353.49 2, 618.18 2,421.07 3,395 . 29 3,298.49 3,414.45 2,387 . 54 917.93 3 , 071.43 3,631.97 C. Hawk 2,896 . 61 3,171.15 3,056 . 74 2,755 .30 3,081.12 3,489 . 46 3,379 . 05 3,526.09 3,364.61 196 . 11 3,021.28 3,392.90 J. Boll 2,874.00 3,152.89 3,008 . 81 2,930 . 20 3,174.24 3,044.77 3,320 . 48 3,668.59 2,844.06 786.29 2,911.15 3 , 722.88 R. Artie 3,103.07 3,163 . 22 2,633.69 2,946.50 3,050.27 3,459.30 3 , 180.18 3,446 . 17 2,760.60 667.84 3,051.24 4,122.84 J. Oliphant 2,643.13 3,033 . 15 2,994 . 64 2,755.32 3,013.52 3,285 . 95 3,298.50 3,744 .86 2,503.12 431.79 2,143.44 2,441.25 D. Gardener 2,625 .30 2,732.26 2,784.59 2,547.05 2,818.02 2,996 . 07 2,750.48 2,896.22 2,458.23 703.70 2,917 . 64 3,415.54 R. Lessow 2, 254.32 2,711 . 81 2,584 .36 2,434 .88 2,481.60 3,255 .86 2,369.44 2,835.18 2,429.77 664.77 2,173.10 2,736.34 K. Yeas 2,796 . 14 3,260 . 10 2,958.50 2,772 .42 2,919 . 22 2,754.78 3,023.34 2,791 . 51 2,244.37 453.41 2,590.67 3,386.88 P. De Boer 2,829 .89 3,113.97 2,857.70 2,729.58 3,072.48 3,239.54 3,093.32 3 ,438.55 2 ,388.16 842.75 2,914.20 3 , 698.81 W. Brewer 3 , 115.18 3,253 . 24 2,741 . 20 2,701 .47 3,071.49 3,301 .48 2,620.98 3,803.52 2,810.86 601.52 2,685.79 3,831.64 R. Ericks 2 , 629.81 3,106.45 3,220 . 26 2,829.22 2,757 . 09 3,131.48 3,365.38 3,131.00 2,693.81 673 . 41 2,856.26 3,720.09 C. Mathews 3,151.07 3 ,340.91 3,087 . 41 3,043.80 3,053 . 61 3,180,54 3,384 . 66 3,352.26 2,937 .77 582.16 2,665.01 3,459.24 C. Nelson 2 9 505.17 3,152.96 2,811.94 2 , 705.63 3,077.60 3 , 235.09 3,017.60 3 , 344.78 2,749 .74 583.79 2,733.03 3,657.33 L. Richardson 259.26 2,466 . 63 2,547.05 2,852.90 2,883.83 3,331 . 26 3,323 . 59 3,701.01 2,842.16 668.05 2 ,833.46 3,726.15 Total $55,973.65 $63,328.16 $57 , 874.21 $55,992.72 $59, 950.25 $65,908.34 $64,852 . 26 $70, 190.26 $54,633.12 $13,263.30 $56,758.11 $71,780.28 Average 2 , 798.68 3,116.41 2,893.71 2,799.64 2,997.51 3,295 . 42 3,242.61 3,509.51 2,731.66 663.17 2,837.91 3,589.01 105.232 of Average 2,945.05 3 , 279.40 3 , 045.05 2,946.96 3,154.28 3,467.77 3,412.20 3 , 693.06 2,874.53 697.85 2,986.33 3,776.71 1970 00 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX C Calendar Quarter Gross Earnings Interim Earni_fts Net Back r 4-67 $9,238.47 $8 ,820.66 $ 417.81 1-68 2 , 945.05 2,945.05 2-68 39279.40 39279.40 3-68 3 , 045.05 3,045.05 4-68 2 , 946.06 2,946.06 1-69 3,154.28 1,270.85 a1 2,478.12 115.31 1 (710.00) 1 2-69 3 , 467.77 894 .67 1 2,325.10 558.00 e/ (310.00) 1 3-69 3,412 . 20 280.80 1 3, 131.40 4-69 3,693 . 06 2,250 .70 l o442.36 1-70 2 , 874.53 1,940 . 85 f/ 933.68 2-70 697.85 942.75 1 - 3-70 2,986.33 461.25 1 2,525.08 4-70 3,776.71 - 3,776.71 $29,245.82 a Earnings from interim employer Carlson Trucking Company. 1 Expenses incurred in holding interim employment with Carlson* c Earnings from interim employer Midwest Emery Freight System. J Expenses incurred in holding interim employment with Midwest Emery. 1 Earnings from interim employer Tri-State Coach Lines. 1 Earnings from interim employer Brady Motor Freight. ARTIM TRANSPORTATION SYSTEM, INC. APPENDIX D 189 Contributions Required by Contract from Artim Transportation System , Inc., to Pension Fund of Teamsters Union. Local 142 Period Amt. pe r week 4-1-67 through 3-31-68 $ 8.00 4-1-68 m 3-31-69 9.00 4-1-69 m 3-31-70 10.00 4-1-70 m 10-1-70 11.00 10-1-70 m present time 12.00 Computation of Contributions which would have been made by Artim Transporta- tion System, Inc., to Pension Fund of Teamsters Union , Local 142,on behalf of Batcheller 1967 4 weeks @ $8.00 per week $ 32.00 1968 13 104.00 1968 39 " 9.00 351.00 1969 13 " of 117.00 1969 39 " 10.00 390.00 1970 13 " of 130.00 1970 26 " 11.00 286.00 1970 13 " 12.00 156.00 Total $1,566.00