Isaac and Vinson Security Services, Inc.

ISAAC'AND VINSON SECURITY SERVICES Isaac and Vinson Security Services, Inc. and Interna- tional Union, United Plant Guard Workers of America, Ind. Case 15-CA-3996 December 28, 1973 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY AND PENELLO On October 21, 1971, the National Labor Relations Board issued its Decision and Order in the above- entitled proceeding, finding, inter alga, that Respon- dent had violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by discriminatorily discharging guards Brister, Fair- banks, Jordan, Rhoden, and Walker.' The Board ordered that they be reinstated and made whole for any loss of earnings suffered by reason of the discrimination against them. On November 24, 1972, the United States Court of, Appeals for the Fifth Circuit issued as a mandate its judgment enforcing the Board's Order in full.2 Thereafter, on June 1, 1973, the Regional Director for Region 15 issued and served on the parties a Backpay Specification and Notice of Hearing. Respondent filed an answer on June 20, 1973. On July 24 and 25, 1973, a hearing was held before Administrative Law Judge David S. Davidson for the purpose of determining the issues and the amounts of money due under the Backpay Specification. On September 28, 1973, Administrative Law Judge Davidson issued the attached Supplemental Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.3 SUPPLEMENTAL ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Isaac and Vinson Security Services, Inc., New Orleans, Louisiana, its officers, agents, successors, and assigns, shall take the 47 action set forth in the Administrative Law Judge's recommended Order. I Isaac and Vinson Security Services, Inc., 193 NLRB 847. 2 Judgment (entered October 13, 1972) unpublished. Opinion, issued September 21, 1972, 467 F 2d 213 Petition for rehearing denied, November 16, 1972. The court's mandate was subsequently recalled and stayed, and was reissued on April 3, 1973 3 As the record, exceptions, and briefs adequately present the issues and positions of the parties , the Respondent's request for oral argument is hereby denied SUPPLEMENTAL DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: On October 21, 1971, the Board issued its Decision and Order' finding that Respondent had discriminatorily discharged guards Earl T. Brister, John H. Fairbanks, Carroll Jordan, Everett E. Rhoden, Sr., and Todd Walker in violation of Section 8(a)(1) and (3) of the Act. The Board ordered that they be reinstated and made whole for any loss of earnings suffered by reason of the discrimination against them. The Board's Order was subsequently enforced by the United States Court of Appeals for the Fifth Circuit.2 Controversy having arisen over the amounts of backpay due under the terms of the Board's Order, on June 1, 1973, the Regional Director for Region 15 issued a Backpay Specification and Notice of Hearing. On June 20, 1973, Respondent filed its answer. A hearing was held before me at Monroe, Louisiana, on July 24 and 25, 1973. At the conclusion of the hearing oral argument was waived and the parties were given leave to file briefs which have been received from the General Counsel and Respondent. Upon the entire record in this case, including my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. ISSUES AFFECTING MORE THAN ONE CLAIMANT A. The Application of the Backpay Formula Although Respondent does not dispute generally the method for computing gross backpay used in the backpay specification, in its answer Respondent contends that the formula was improperly applied in computing the backpay for the first quarter of the backpay periods for each of the discriminatees. As none of the discriminatees were dis- charged at the beginning of a calendar quarter, for the initial quarter of each backpay period the Regional Director computed gross backpay on the basis of the average hours worked by Respondent's guards for that part of the quarter which followed the discriminatory discharge. For example, in the case of Brister the Regional Director determined that , Brister's backpay period began on October 9, 1970, that 555 average hours were worked by 1 193 NLRB 847. 2 467 F 2d 213. 208 NLRB No. 33 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guards from October 9 through December 31, 1970, and that Brister's gross backpay for that period was $971.3 Brister's backpay was then reduced by interim earnings for work performed by him between October 9 and December 31. Respondent contends that the Regional Director should have computed gross backpay on the basis of all average hours worked during the entire first quarter of each claimant's backpay period and should then have deducted all earnings received from Respondent during those quarters as well as from other sources. Thus, in the case of Brister, Respondent contends that Brister's gross backpay should have been determined by computing his gross earnings on the basis of 653 hours, the average hours worked by all the guards during the entire last quarter in 1970, and that his gross backpay should have then been reduced by earnings he received from Respondent during that quarter before his discharge4 as well as by his earnings from other sources. Respondent contends that this method of computation is required by the Woolworth formula.5 However, the Woolworth case provides specifically for-the method followed by the Regional Director in this case,6 and the application of the formula in the Specification is consistent with long-established practice and the remedy provided in the Board's initial Decision and Order in this case. Accordingly, I reject this contention of Respondent and its similar contention, first advanced in its brief, as to the computation for the final quarter of each backpay period. B. The Availability of Work for Walker and Brister During the Backpay Period With respect to claimants Walker and Buster, Respon- dent contends that their backpay should be tolled as of November 13, 1970, because they would have been laid off at that time if they had not previously been discharged. Walker was discharged on October 5, 1970, and Brister was discharged on October 9. Although Respondent contended that both were discharged for cause, the Board found in the initial decision that they were discharged because they had signed a letter complaining about their wages and working conditions and because it was suspected that they either had or were about to join a union. The Board further found that before Walker's discharge from August 23 through September 19 Walker had been discriminatorily assigned to a post which required extensive walking despite Respondent's knowl- edge that Walker had a bad leg, that Walker performed this job until September 19 when he was no longer able to do so, and that his job and pay were effectively terminated on September 19 when he could no longer perform the task discriminatorily assigned to him. On November 14, 1970, Rhoden and Jordan were terminated allegedly because of a reduction-in-force. In the 3 Multiplying 555 by $1 75, Brister's rate 4 Although Respondent's answer set forth amounts which it claims should be deducted From the first quarter gross backpay of each of the claimants as earnings received from Respondent during those quarters, no evidence was presented to establish those amounts 5 F W Woolworth Company, 90 NLRB 289 6 90 NLRB at 292-293 original proceeding there was evidence that on November 11, 1970, Olinkraft, for whom Respondent provided guard services, instructed Respondent to reduce the number of guard hours in its plant by 126 per week and that thereafter until the time of the initial hearing guard hours were in fact drastically reduced. However, the Board found merit in the allegation of the complaint that Rhoden and Jordan were discriminatorily selected for layoff and were not chosen for the reasons stated by Respondent's supervisor captain, Faulk, in his testimony at the initial hearing. Respondent now contends that if Walker and Brister had not been previously discharged, they would have been laid off on November 13 in the reduction- in-force because they would have been the two least senior guards in the unit and their layoff would have been justified by their lack of seniority, inexperience, and evidence that they were the least qualified guards and committed violations of compa- ny policy more than other guards. Respondent introduced no evidence in support of this contention at the backpay hearing but relies on the evidence adduced at the initial hearing. Respondent took the position at the initial hearing that it never observed any rule or principle of seniority to determine retention rights during a layoff, and in fact the evidence established that two guards with less seniority than Walker or Brister were retained at the time of the layoff and another junior guard was transferred into the Olinkraft guard group after the layoff. With respect to Walker the only deficiency to which Respondent points in his record is his absence from work after September 19, 1970, which the Board found was caused by his discrimina- tory assignment to a post he was physically incapable of performing. In these circumstances this absence cannot be considered as an nondiscriminatory factor which would have justified his layoff if he had not been previously discharged. In the case of Brister the Board in its original decision rejected testimony then offered to support his discharge but which is now relied on to support the contention that he would have been laid off.7 There is no evidence as to the experience or qualifications of Walker and Brister relative to other guards who were not laid offs I find that Respondent has failed to establish its defense that Walker and Brister would have been laid off on November 14, 1970, if they had not been previously discharged. C. Unemployment Compensation Respondent contends that the backpay of Fairbanks and Rhoden should be diminished by amounts they received in unemployment compensation payments during 1970 and 1971 because they allegedly fraudulently concealed earn- ings while they were collecting unemployment compensa- tion. Respondent concedes that unemployment compensa- tion is not ordinarily set off against backpay but contends 7 The initial decision indicates that alleged falsification of a report with which Respondent in its brief now charges Brister was in fact attributed to Fairbanks in the testimony 8 An exhibit introduced at the initial hearing indicates that after the layoff there were 15 or 16 guards employed by Respondent at the Ohnkraft plant ISAAC AND VINSON SECURITY SERVICES that credit should be allowed where such payments have been received as a result of fraud because Respondent's unemployment insurance rates are adversely affected as a result of the fraud. At the hearing I refused to permit litigation of this issue. I adhere to that ruling and find that the question of the alleged fraud by Fairbanks and Rhoden is better left for forums more appropriate for that purpose.9 II. THE INDIVIDUAL CLAIMS A. Earl T. Brister 1. The date of tolling of Brister's backpay The specification alleges that Brister's backpay period ended on December 18, 1971, the day before he was reinstated . Respondent in its answer contends that Brister's backpay period ended on December 1, 1971, when it offered him reinstatement. On December 1, 1971, Respondent's attorney mailed Brister a letter stating that his position was being held for him and that he was being offered unconditional reinstate- ment to his former position. The letter concluded: Please let me know within five (5) days of your receipt of this letter whether you desire to come back to work and if so when you will be available. If I do not hear from you within the five (5) days mentioned above or if you are not available within a reasonable time I shall assume that you are not interested in returning and will proceed to fill the position. On December 7 Brister replied by letter that he accepted the offer of reinstatement and would be available for work on December 10. Brister received no reply to this letter. On December 19 on his own initiative he reported for work and was permitted to work thereafter. In American Manufacturing Company of Texas,10 the Board held, "It is settled that the backpay period is tolled on the date of actual reinstatement, on the date of rejection of the offer, or in the case of discriminatees who did not reply on the date of the last opportunity to accept the offer of reinstatement." Here Respondent's letter set no reporting date. Brister promptly replied and indicated almost immediate availa- bility for employment. He heard nothing further until he reported for work. In these circumstances, I find that the date of actual reinstatement which was used in the backpay specification was the appropriate date for tolling Brister's backpay. 2. Brister's efforts to obtain interim employment Respondent contends that Brister did not make a diligent search for interim employment throughout the period between his discharge and his reinstatement and that he should therefore not be granted any backpay. The only evidence as to this issue was the testimony of Brister on cross-examination by Respondent. That testimony shows that Brister registered with the Louisiana State Employment Service on October 14, 1970, and thereafter 9 See Liberty Scrap Materials Inc, etc, 152 NLRB 480, 485 , enfd. 64 LRRM 2686 (C.A. 6, 1967), Gullett Gin Company, Inc v N L RB, 340 U.S. 361. 49 visited the employment office each week seeking employ- ment. He also registered with the Veterans Administration Employment Office. During the week after his discharge Bnster visited Friday's Used Car lot in Monroe and sought employment as a salesman from Friday who was a lifelong friend. Brister visited Friday seeking employment a number of times during the backpay period , but Friday never offered him a job. In December 1970, Buster visited another used car lot two or three times unsuccessfully seeking employment there . Brister also kept in contact with the other employees who had been discharged by Respon- dent concerning job opportunities and in December, through claimant Todd Walker, was referred to a tempo- rary 2-day job at Bayou Knits which he took. In January 1971, Brister was referred by the Louisiana State Employment Service to a job at Union Compress but when Brister applied he was told the job was filled . He left his name, address, and telephone number in the event that another opening arose. Also in ' January 1971, Brister sought employment in the maintenance parks department for the city of West Monroe. He was told there were no openings for jobs which he could do. In mid -February 1971, Brister again sought employment with the city of West Monroe and received similar response . About that time he visited K-Mart but was told that they were not taking applications. In mid-March he again sought employment with the city of West Monroe. In June or July he inquired about a job with Pinkerton Guard Service but was told that the job was filled . In August or September he sought a job as a guard with Vanguard Paper Company in West Monroe and was told that that job was filled. In September and November 1971, he sought employment with General Motors Acceptance Corporation repossessing cars on a contract basis. He was advised that there were no openings . During the period between October 9, 1970, and December 19, 1971, Brister worked only 2 days as a temporary employee for Bayou Knits. Brister was 58 years old and suffered from some physical disabilities of which officials of the Louisiana State Employment Service and the Veterans Employment Service were aware. He was a plumber by trade and worked for the Umted States Government for 17 years. He retired from the government in February 1969, as a result of an on-the-job back injury. Respondent contends that Brister did not make a diligent search because he visited only a small number of potential employers over the period he was unemployed, because he worked only 2 days during that period, in contrast with the other claimants who found more substantial employment, and because wherever he went he announced himself as disabled and thereby extinguished any possible interest in him as a potential employee. In a backpay proceeding the burden is on the General Counsel to show the gross amount of backpay due. When that has been done, the burden is on the Respondent to 10 167 NLRB 520, 521 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD show willful loss of earnings or other facts to diminish the Respondent's liability.ll Uncertainty must be resolved against Respondent who made the uncertainty possible, and the backpay claimant must receive the benefit of any doubt.12 Here there is no evidence to show that during the backpay period there were any sources of actual or potential employment for Brister which he failed to explore, and there is no evidence that he rejected any offers of employment. The fact that other claimants may have been more successful than Brister in finding other employment is not evidence of lack of diligence on Brister's part.13 While Respondent points to the fact that Brister told employment service officials and others of his physical limitation as evidence that he was not diligent in seeking employment, there is nothing in Brister's testimony to indicate that he did so in order to assure that he would not get a job. Brister had disclosed his condition to Respondent when he applied for employment there and clearly he was not expected to conceal his condition in order to obtain employment. Absent any evidence from those to whom Brister spoke about employment that he did so in a fashion calculated to discourage any consideration of him as an applicant, I cannot conclude that Brister's efforts to obtain employment were a sham. I find that Respondent has not established that Brister failed to make a diligent effort to obtain interim employment and conclude that Brister is entitled to backpay in the amount set forth in the specification. 14 B. John H. Fairbanks The principal challenges to the backpay specification with respect to Fairbanks go to the method of computation of his first quarter earnings and his alleged fraudulent unemployment compensation claim, both of which have been rejected above. The backpay specification includes a deduction from interim earnings for expenses incurred seeking employment during the 9-week period between Fairbanks' discharge on October 8 and the time he started working as an independent contractor in December 1970. Those expenses are supported by Fairbanks' testimony and will be allowed as a deduction from interim earnings. I find that Fairbanks is entitled to backpay in the amount set forth in the specification as amended at the hearing.15 C. Carroll Jordan The issue as to Jordan is whether the backpay specifica- 11 Mastro Plastics Corporation, etc, 136 NLRB 1342, 1346-47, enfd as modified 354 F.2d 170 (C.A 2, 1965), cert. denied 384 U S 972 (1966) 12 Southern Household Products Company, Inc., 203 NLRB No. 138 13 International Trailer Company, Inc., etc, 150 NLRB 1205, 1218. In fact only two of the five claimants found substantial employment as guards during the backpay period. One other claimant worked at tasks for which there is no showing that Brister was qualified 14 There is no evidence to support the allegation in Respondent's answer that Brister was fired for cause by Bayou Knits in December 1970 15 The specification was amended to reflect increased interim earnings by Fairbanks during the first quarter of 1971 As a consequence thereof, Fairbanks' net backpay for that quarter was reduced by $56 and the total net backpay claim was changed to $1,794 16 Jordan's testimony was the only evidence offered as to the dates of his tion fails to deduct all interim earnings from his gross backpay. About 6 weeks before Respondent terminated Jordan, he started to work at Buddy's Discount Grocery on a part- time basis while he continued to work full-time for Respondent. He worked at Buddy's 3 to 4 hours a day, usually between the hours of 5 and 9 p.m. His average weekly earnings from this job during that period were approximately $37 a week. After his discharge Jordan continued to work part-time at Buddy's until around December 1, 1970. At that time he transferred to another store known as Hogan's Supermar- ket under the same ownership as Buddy's. At Hogan's Jordan worked full time 5 days a week. His hours were Monday from 5 a.m. to 4 p.m., Wednesday from 7 a.m. to 4 p.m., Thursday from 10 a.m. to 9 p.m., Friday from 7 a.m. to 7 p.m., and Saturday from 10 a.m. to 9 p.m. In July 1971, Jordan left Hogan's to go to work for Brookshire Grocery Company at a higher rate of pay. He remained there until around November 1, 1971, when he was laid off in a reduction-in-force.16 After leaving Brookshire Jordan looked for work for about a week and a half and then went to work for Rose Oil Company where he remained until November 30. Thereafter he worked for Wackenhut Corporation during the first or second week in December and during the second week in December he went back to work for Hogan's Supermarket. In the backpay specification for the period that Jordan initially worked at Buddy's and Hogan's Supermarket the Regional Director showed as Jordan 's interim earnings the difference between his gross earnings at those stores and the amount of $37 a week he had earned when he worked part-time at Buddy's prior to his discharge. In the specification as issued, no credit was given Respondent for any interim earnings by Jordan in the last quarter of 1971 attributable to employment at Rose Oil, Wackenhut, or Hogan's Supermarket. However, after Jordan testified, the specification was amended to reflect interim earnings of $171 at Rose Oil from November 10 to November 27, 1971, the date backpay was tolled. Respondent contends that all of the earnings received by Jordan from Buddy's and Hogan's should be deducted from his gross backpay in the appropriate quarters up to the time that Jordan left Hogan's in July 1971. Respondent further contends that all of Jordan's earnings from Rose Oil, Wackenhut, and Hogan's should be deducted from his gross backpay for the fourth quarter in 1971. Second job earnings normally are not considered as interim employment and showed considerable confusion. He initially testified he was laid off "around September, October or September, the last of October or the first of September" He further testified that he did not work at Brookshire in October However he was subsequently recalled and testified that he had discovered a paycheck stub from October which refreshed his recollection and that he worked through the week ending October 30, 1971 The check stub was available at the hearing for inspection it is apparent that Jordan in his initial testimony was substantially confused as to the dates of his employment in late 1971 In light of Jordan's testimony as to how he refreshed his recollection and in the absence of any evidence from any other source , I find that his testimony after recall is entitled to greater reliance than his initial testimony in this regard. ISAAC AND VINSON SECURITY SERVICES interim earnings to be deducted from gross backpay particularly where as here the claimant held a second job prior to his discharge . Where a part-time job has been developed to a full-time job after discharge the Board has also excluded from interim earnings that portion which reflects what the claimant would have continued to earn from his part-time second job if he had not been discharged from his full-time job.17 Here Jordan continued to work part time for about 2 weeks after his discharge and then transferred to another store under the same ownership to work full time. It is apparent from his hours at the second store that the transfer made it impossible for him to continue at his part-time job at the first store. There is no evidence to indicate that Jordan's part-time job at Buddy's would not have continued indefinitely if he had not been discharged by Respondent . Accordingly I conclude that the exclusion from interim earnings of $37 a week for the period that Jordan worked at Buddy's and Hogan's from the time of his discharge until July, 1971, was proper. With respect to Jordan's earnings during the fourth quarter of 1971, Respondent contends that because Jordan at one point testified that he was employed by Hogan's at the time he was offered reinstatement and was previously employed by Rose Oil and Wackenhut all his earnings from those employers should be deducted as interim earnings. As set forth above, the burden is on Respondent to show diminution of gross backpay as a result of interim earnings. Thus, it was Respondent's burden to show that Jordan's earnings from those sources were attributable to the backpay period . While Jordan's initial testimony was inconsistent with his testimony when recalled, it was clear that Jordan's initial recollection of the dates of his employment was confused and that his testimony when recalled after refreshing his recollection was entitled to reliance. Respondent introduced no evidence from any independent source to contradict Jordan's testimony on recall and did not seek any opportunity to conduct a further investigation after hearing Jordan's testimony. I find that Respondent has not proved that Jordan's interim earnings attributable to the fourth quarter of 1971 exceeded the amounts set forth in the specification as amended at the hearing. The backpay specification shows a credit for transporta- tion expenses attributable to Jordan 's employment at Brookshire for 8 weeks during the fourth quarter of 1971. On the basis of Jordan's testimony as to the date he left Brookshire the General Counsel concedes in his brief that the allowance for expenses should be limited to the first 4 weeks of that quarter. Jordan's testimony otherwise supports the mileage claimed in the specification based on the increased distance he traveled each week to work at Brookshire. Accordingly the deduction for expenses during the fourth quarter of 1971 is reduced to $7 and the amount of Jordan's net backpay for that quarter is changed to $207 reflecting that change and the amendment to the specifica- tion at the hearing. On the basis of the above findings I conclude that 51 Jordan is entitled to net backpay in the amount of $1,054 plus interest accrued to the date of payment. D. Everett E. Rhoden, Sr. 1. Rhoden's efforts to obtain interim 'employment Rhoden was 57 years old at the time of the hearing. At one time he had worked as an automobile mechanic before he was employed by Respondent but he had been forced to give up that kind of work because of arthritis and bursitis. The kinds of work which he could perform were limited by his physical condition and education. After Rhoden was laid off by Respondent he went to the Louisiana Employment Service and was told that there was nothing then available for which he could qualify . Rhoden continued to visit the employment service office thereafter once or more a week and also periodically contacted it by telephone to inquire about the availability of jobs. Rhoden also kept in touch with the other backpay claimants in this case and with friends to learn whether they knew of any job openings . He also read the newspapers daily. Rhoden testified that during December 1970 he applied for employment at several places but could not remember their names. He was able to name some places that he visited at other times during the period of his employment. During the summer of 1971 he heard that International Paper was looking for guards at a plant in Bastrop, Louisiana, about 20 miles from Monroe . He went there but was told that the opening was filled and that they were not taking applications. Rhoden answered a newspaper ad for a guard job at Capital Warehouse but that job was also filled before he applied. He visited K-Mart and Barker's Stores in Monroe looking for security guard work but was told that they had no openings and were not taking application. Rhoden also looked for work as a filling station attendant in two stations in Monroe and sought light delivery work at several employers in the area whom he named, as well as at places the names of which he could not remember. Ultimately, in November 1971, he was referred to a G.C. Murphy warehouse by the Louisiana Employment Service and accepted the job there as a security guard shortly before Respondent offered him reinstatement. Rhoden was not offered any other job during the backpay period and was never referred to any place where he refused a job . During the period he was unemployed only G.C. Murphy and one other employer accepted written applications from him. For some years prior to his layoff by Respondent Rhoden had sold insurance in his spare time while holding other full-time jobs including his job with Respondent. During the backpay period Rhoden continued to sell insurance. His gross receipts from those sales during the calendar year 1971 were approximately double his average gross receipts from that source for the 3 previous years. Rhoden testified that during the backpay period whenever he had leads for prospective purchasers he pursued them. He usually visited prospects once or twice a week and at most three or four times a week. He sold insurance mostly in farming areas within a radius of about 100 miles around 17 Lee Cyclinder Division of Golay & Co, Inc, 184 NLRB 241, enfd 447 F 2d 290 (C.A 7, 1971). 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monroe. Very few of his contacts were in Monroe or west of Monroe. Respondent contends that the testimony of Rhoden shows that his efforts to obtain employment were few and far between and that he devoted his time instead to selling insurance. The only evidence offered to meet Respondent's burden to show that Rhoden did not diligently seek work was that adduced on cross-examination of Rhoden. There was no evidence offered to show that there were any jobs available for which Rhoden failed to apply and for which he reasonably should have made application. Rhoden's age, education, and physical limitation necessarily limited the kind of jobs which he could perform. His uncontradict- ed testimony shows that he kept in regular communication with the employment service and that when he learned of possible openings he explored them. There is no inconsis- tency between making an effort to secure full-time employment and continuation of Rhoden's insurance selling activity even on an expanded basis during the backpay penod.is The small number of employers that Rhoden could recall making application with and the failure to recall the names of some employers is not sufficient to carry Respondent's burden in the absence of evidence that he failed to pursue reasonable possibilities and in the light of the evidence that he regularly visited the employment service, that he declined no jobs, and that he pursued job leads he obtained. I find that Respondent failed to establish that Rhoden did not make a diligent search for employment during the backpay period. 2. Rhoden's earnings from his insurance business The question remains whether Rhoden's gross backpay should be reduced because of earnings attributable to his part-time insurance business. As set forth above, when work at a second job is expanded during the backpay period the Board normally deducts as interim earnings the increase in earnings above the amount previously attribut- able to the part-time job. However, on the basis of Rhoden's income tax returns which showed a loss from the sale of insurance during the backpay period the Regional Director deducted nothing from Rhoden's gross backpay as interim earnings from that source during the entire backpay period. Respondent contends that Rhoden could not properly claim a loss from his insurance business and that it is entitled to a substantial credit against Rhoden's gross backpay. The basis for the claim that Rhoden lost money from his insurance business is a deduction shown on his tax return for 1971 for 35,000 miles traveled in connection with his insurance business. 18 Mel Croan Motors, Inc, 174 NLRB 1189,1191-92 19 During the year 1971 Rhoden had two cars and deducted the mileage of both of them. He testified that his daughter also had a car which she and his wife used for their personal needs. 20 It is unnecessary to consider in this proceeding whether the deduction claimed on his return was proper for income tax purposes 21 I reject Respondent's contention that Rhoden's testimony indicates that he adjusted his mileage figure to offset his gross receipts The testimony on which Respondent relies merely indicates that Rhoden did not keep track of actual expenses and claimed a mileage deduction to save the paperwork of keeping track of actual car expenses 22 In computing this average I have excluded an income item in 1970 shown both on Rhoden's tax return and a supporting information return as Rhoden testified that he kept no record of the trips he made to sell insurance other than reports he sent to insurance companies when he was successful in making sales. He estimated that he sold insurance to about 25 percent of the prospects he visited. His method of determining his mileage was to record his odometer reading at the beginning of each calendar year. He gave those figures to his accountant who usually deducted Rhoden's entire mileage for the year as a deductible expense. i9 Rhoden's testimony thus indicates that he claimed all his mileage as an expense attributable to his insurance business. His testimony otherwise, however, warrants the inference that for purpose of determining his interim earnings in this proceeding not all of his mileage should be considered as attributable to this business.20 Thus Rho- den's estimate of the number of visits he made to prospects each week and the places named by him or his records as places he visited make the average of 675 miles a week claimed on the tax return unduly high. The absence of complete records or a reliable recollec- tion of Rhoden's trips makes the task difficult but not impossible. As Rhoden's tax returns for the 3 years prior to his discharge are in evidence it is possible to determine both his average gross receipts and his average mileage claimed in prior years. Since both Rhoden's gross receipts and his mileage increased substantially in 1971, it is reasonable to infer that the increase in mileage was attributable to the increase in Rhoden's efforts to sell insurance?i A reasonable measure of the increment of Rhoden's net earnings from insurance sales is the differ- ence between the increase in his gross receipts and the cost attributable to his increased mileage, the only expense of doing business claimed by Rhoden. Rhoden's tax returns for 1968, 1969, and 1970 show that Rhoden's average receipts for these years were $1,736.22 Those returns also show average mileage of 23,500 miles.23 Rhoden's return for 1971 shows gross receipts of $3,496 and mileage of 35,000 miles. Thus, I find that $1,760 represents the increase in Rhoden's gross income from insurance sales attributable to the increase in his efforts to sell insurance during the calendar year 1971 and that $1,150 represents the increase in his travel expenses attributable to those sales.24 From these figures I conclude that the net deductible interim earnings attributable to the increase of Rhoden's insurance sales for 1971 was $610. As the parties stipulated that such earnings should be divided evenly over the calendar year, I find that Rhoden had net interim earnings of $152 per each calendar quarter of 1971. As the last 5 weeks of the last quarter of 1971 are excluded from dividends Although Respondent contends that this item constituted additional income from sales, there is no evidence to support that contention As Rhoden's income from insurance sales in 1970 was below the average for the 3 years, I find that no portion of it should be deemed interim earnings for the period he was unemployed in 1970. 23 In 1970, unlike other years, the return showed both a total mileage figure and a lesser amount claimed as deductible In the light of Rhoden's testimony I have interpreted the figures shown in 1968, 1969, and 1971 as total mileage and used the higher figure shown for 1970 in determining the average 24 Mileage expense is computed at the rate of 10 cents a mile, the figure used elsewhere in the Specification. ISAAC AND VINSON SECURITY SERVICES the backpay period, on the basis of the stipulation the amount of deductible interim earnings for that quarter must be reduced to $94. Accordingly I find that Rhoden's net backpay should be reduced from that set forth in the backpay specification by $152 for each of the first three quarters of 1971 and by $94 for the last quarter of 1971, reducing Rhoden's net backpay for the entire period to $3,939 plus interest accrued to the date of payment. E. Todd Walker 1. The effect of Walker's termination from an interim job After Walker's discharge by Respondent he first found interim employment as a security guard with Ouachita Industries during December 1970.25 Walker remained on that job until May 26, 1971, when he was mailed a termination slip notifying that he was terminated because he had been absent from work for 3 or 4 days. Although Walker conceded that he received a termina- tion slip, he denied that he was discharged and testified that he had quit in order to go into the moving business with a brother-in-law and had so informed a foreman or someone else in authority at Ouachita. Despite my impression that Walker testified with commendable frank- ness and candor with respect to other aspects of his testimony, I find it difficult to credit his testimony that he gave notice that he was leaving. Walker concededly did not give any notice to Calvin Pipes, his supervisor at Ouachita. He explained this omission on the ground that he never went to Pipes for anything but dealt with a member of the family which owned Ouachita. Yet he also conceded that he did not recall notifying any of the owners that he was leaving. Even accepting Walker's testimony that there was confusion and turmoil at Ouachita at the time he left, I find it impossible to believe that Walker, who was considered as head guard at Ouachita, would have given notice to persons he could not identify rather than to those with whom he normally dealt. The moving business never materialized, according to Walker, because the financial end didn't work out. Walker testified that he learned definitely that the financing had fallen through on June 1 and that he had an inkling that it would not work out before that. After learning that the business venture had fallen through Walker again sought employment, and in mid-June started to work for Dumas Air & Heating. As a result of Walker's combined interim earnings from Ouachita and Dumas from April through June 30, 1971, no net backpay is claimed for Walker for this quarter. Respondent contends that Walker's gross backpay 2s Walker did not receive his first paycheck until after January 1, 1971, and his earnings from this employment have been considered to have commenced in the first quarter of 1971 26 See Mastro Plastics Corporation, supra 27 Harvest Queen Mill & Elevator Company, 90 NLRB 320, 327 See also American Manufacturing Company of Texas, 167 NLRB 520, 527; McCann Steel Company, 203 NLRB No 115 28 See Mastro Plastics Corporation, 145 NLRB 1710, 1713, enfd as modified 354 F 2d 170 (CA 2, 1965), cert denied 384 US. 1342 (1966). 29 Walker had recently been laid off from other interim employment and 53 should be reduced by the earnings he would have received if he remained employed at Ouachita. However, assuming that Walker might have handled his departure from Ouachita in a more business-like fashion, Respondent has not established that Walker willfully lost interim earnings by leaving his job with Ouachita. 26 There is no evidence to controvert Walker's testimony' that he left the job with Ouachita in order to go in business with his brother-in-law and that the venture failed because the financing did not work out. Absent special circumstances, it is to be presumed that one who leaves a job for self-employment expects thereby to improve his financial position.2r Moreover, when the financing for his business fell through Walker promptly sought and found new employment and his net interim earnings for this calendar quarter exceeded his gross backpay. In these circumstances, I find no merit in Respondent's contention that Walker's backpay should be reduced because of the circumstances under which he left his job at Ouachita.28 2. The offer of reinstatement to Walker in January 1972 By letter dated January 13, 1972, Walker received the following letter from Respondent's attorney.29 In connection with our telephone conversation of this week, please report to Dr. S.I. Courtman, 417 Wood Street, Monroe, Louisiana for a physical on Monday, January 17th at 10:00 A.M. to see if you are eligible to return to work as a guard for Isaac & Vinson Security Services, Inc. at the Olinkraft Plant in West Monroe, Louisiana. If you pass the physical, then your job will be reinstated. After we have received a report from Dr. Courtman we will be in touch with you concerning your return to work. On January 18, 1972, Dr. Courtman examined Walker and told him that he was physically fit to return to work as a security guard for Respondent. He also asked Walker to sign a release before he left. When Walker read the release which has been dictated by the doctor and typed by his secretary, Walker told the secretary he would not sign it, and wrote a more limited release which he told the secretary he would be willing to sign. She told him to call later to see if it was typed and ready for him to sign. Walker spoke to her once thereafter when she said it was not ready, tried to reach her once more without success, and made no further effort to sign the release 30 had spoken to Respondent's officials on January 7, apparently for the purpose of seeking employment. so Walker so testified, and I have credited him Dr Courtman testified that the release which he dictated was identical in scope and substantially identical in form to the release which Walker said he wrote to replace a broader release which he testified had been prepared for him to sign Although there is no reason to question Dr. Courtman 's veracity, there is reason to conclude that his memory a year and a half after the fact was based largely on what he found in Walker's file at the time of the hearing. The presence of the release in Walker's file is explained by Walker's (Continued) 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 22, 1972, Walker wrote Respondent's attorney as follows: As directed by you I reported to Dr. S.I. Courtman and taken [sic] a physical examination to determine my physical fitness to return to work as a guard for Isaac and Vinson Security Services, Inc., at Olinkraft Plant in West Monroe, Louisiana. Upon completion of this very limited physical Dr. Courtman informed me that I was physically fit, however, arthritis did show up in the X-Ray. I am now awaiting word from you to resume work as a guard pursuant to the decision handed down by the National Labor Relations Board. Please be informed that I did not authorize release of any information medical or otherwise to anyone in writing or verbally. This includes the findings of the physical taken by me on January 18, 1972, other than verbally to Dr. S.I. Courtman the fact that I was found physically fit. On March 24, Dr. Courtman sent Respondent's attorney a memo stating that he had been unable to comply with requests from Respondent for a copy of Walker's examina- tion because Walker refused to sign an authorization for its release. Walker received no response to his letter from Respon- dent's attorney and heard nothing further from Respon- dent until by letter dated December 4, 1972, he was offered unconditional reinstatement without the requirement of a physical examination. The other claimants in this case were offered reinstate- ment on various dates without any requirement of physical examination 31 New employees, including the claimants, were required to take physical examinations at the time of their initial hire but were not required to sign any releases. Dr. Courtman testified that he asked for a release in Walker's case because the request for the examination had come from an attorney and he gathered that litigation was involved. I find that the offer of reinstatement made in the, January 13, 1972, letter was conditional and reject Respondent's contention that Walker's backpay should be tolled as of that date. Respondent advanced no reason for singling Walker out for this treatment,32 and in the absence of any other,proferred reason, the inference is strong that Walker was required to take a physical examination because just prior to his original discharge, Walker had reported that he was sick after being assigned to a job which Respondent knew he was physically unable to perform. The Board found both the assignment and Walker's subsequent discharge discriminatory. Respondent can no more rely on testimony that he left it with the secretary to be typed In the absence of testimony from the secretary, I have credited Walker. 31 Brister, Jordan, and Rhoden were offered reinstatement in 1971, before the first letter sent to Walker 32 Although Respondent sought to examine Walker at the hearing as to his physical condition before the offer of reinstatement was made, it introduced no evidence to show that it had any knowledge at the time the letter was sent beyond what it possessed at the time of his discharge to explain its requirement that Walker be examined. 33 General Electric Company, 150 NLRB 192, 255-256, 284, enfd. 418 F.2d 736 (C.A. 2, 1969), cert denied 397 U S. 964 In N L RB v. Industrial Walker's predischarge physical condition as a reason for requiring that he take and pass a physical examination prior to reinstatement than it could in support of his original discharge. I find that Respondent's offer of reinstatement conditioned on Walker's taking and passing a physical treated Walker as a new employee, was not a valid offer of reinstatement, and did not toll Respondent's backpay obligation to Walker.33 The fact that Walker took the examination and apparently passed it, but then failed to sign a required release does not alter this conclusion. Respondent did not initially require the release, but the requirement was acquiesced in by its attorney, who never responded to Walker's January 22 letter or sought to inquire as to what Walker meant by its enigmatic last line. 3. Walker's availability for, employment in 1972 Respondent contends that Walker was out of the market during the first and second quarters of 1972. During those quarters Walker had no interim earnings, and the backpay specification shows no excepted periods from the backpay period. However, the specification shows that the periods of October 12 through November 9, 1970, and September 1 through October 17, 1971, were excepted from the backpay period. Walker testified that during both these periods he was hospitalized for alcholism. Walker also testified that before his second hospitalization he was jailed overnight on one occasion. Although Respondent contends that he must have been unavailable for employment at other times because he was drinking, there is no evidence to support this contention. Walker's testimony, which indicated frank acceptance of his condition, distinguished between suffer- ing from alcoholism, drinking, and being constantly intoxicated. While Walker conceded the first he did not concede the last, and absent any other evidence I do not infer that he was incapacitated and out of the market for the period alleged in the answer. Accordingly, I find that Walker is entitled to the backpay alleged in the backpay specification. RECOMMENDED ORDER34 Upon the basis of the foregoing findings and conclusions it is ordered that Respondent Isaac and Vinson Security Services, Inc., its officers, agents, successors, and assigns, shall pay to the employees involved in this proceeding as net backpay the amount set, forth opposite their names. Earl T. Brister - $5,321 John H. Fairbanks - $1,794 Carroll Jordan - $1,054 Everett E. Rhoden, Sr. - $3,939 Todd Walker - $5,148 Cotton Mills, 208 F.2d 87 (C A. 4), on which Respondent relies, the Court found that the respondent company had valid reason for requiring a physical examination of a returning striker wholly unrelated to any past discrimination against him and arising from a condition which made it impossible for him to perform his full duties before the strike. &i In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. ISAAC AND VINSON SECURITY SERVICES 55 Each of the foregoing sums shall accrue interest at the amounts social security taxes, income tax withholding and rate of 6 percent per annum, computed in the manner set such other deductions as may be required by the laws of forth in Isis Plumbing & Heating Co., 138 NLRB 716. the United States or the State of Louisiana. There shall be deducted from each of the foregoing