Sam Tanksley Trucking, Inc.

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sam Tanksley Trucking, Inc. and District No. 9, International Association of Machinists and Aero space Workers, AFL-CIO, and Teamsters, Chauf- feurs, Warehousemen and Helpers, Local Union No. 574, Jointly. Case 14-CA-6324 May 17, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On January 13, 1974, Administrative Law Judge Benjamin A. Theeman issued the attached Supple- mental Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 Supplemental Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Adminis- trative Law Judge and to adopt his recommended Order. 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, Sam Tanksley Trucking, Inc., Cape Girardeau, Missouri, its offi- cers, agents, successors , and assigns, shall take the action set forth in the said recommended Order. I We find no ment in Respondent's exceptions to the Administrative Law Judge's conclusion that Bradshaw was laid off from ajob he secured during the backpay period. Even if, as Respondent contends, Bradshaw voluntarily terminated his employment, it was not so unreasonable for him to do so that it could be considered a willful loss of earnings. Thejob paid less than Bradshaw had been earning in Respondent's employ, and entailed the expenditure of a considerable portion of Bradshaw's net earnings to cover the extra 48 miles he was required to travel dany to maintain this job In these circumstances, it was economically unfeasible for Bradshaw to continue this employment, and deprive himself of any real opportunity to find more suitable employment elsewhere Cf Mansion House Center Management Corporation, 208 NLRB No 104 SUPPLEMENTAL DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Administrative Law Judge: On 210 NLRB No. 104 July 20, 1972, the Board issued its Decision and Order in this case, 198 NLRB No. 45, directing Sam Tanksley Trucking, Inc. (Respondent), among other things, to offer Arthur Terry, Eric Robinson, Robert York, Robert Proffer, and J. R. Bradshaw their jobs back (except Eric Robinson and Robert Proffer who already have their jobs back) and to pay them for any loss of pay they may have suffered because Respondent had discharged them. The Decision also provided that such payment shall be "less net earnings, to which shall be added interest at the rate of 6 percent per annum in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating, Co., 138 NLRB 716." On July 3, 1973, the Umted States Court of Appeals for the Eighth Circuit enforced the Board's Order in full 83 LRRM 2409 (1973). On October 29, 1973, the Regional Director for Region 14 issued a backpay specification and notice of hearing, setting forth the specific amount of backpay which he claimed was due each individual. The Respondent filed an answer in which it admitted some of the allegations and denied others. The issues in dispute are discussed below. In essence, they are the method of computation of backpay, the items to be considered as part of backpay and the amount of backpay due. The hearing on backpay specifications whs held before me in Cape Girardeau, Missouri, on December 4, 1973.1 All parties were afforded full opportunity to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to present oral argument. Respondent and the General Counsel filed briefs which have been duly considered.2 Upon the entire record of this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS A. Backpay Due York and Proffer At the hearing Respondent agreed that it would pay to York and Proffer the amounts of backpay due each as set forth in the next paragraphs. The specifications show with regard to York: (1) his backpay period began on June 24 and continued till July 13, 1971;3 (2) for the 13-month period prior to June 24, 1971, while employed by Respondent, his average weekly earnings were $120.23; (3) he would have continued to earn at that rate during the backpay period; (4) thus during 1971-2, he would have earned for 8/ 10 of a week, $96.18, and during 1971-3 for 1-6/10 weeks the sum of $192.37, making a gross backpay due of $288.55; and (5) during the backpay period he earned no interim pay. Thus, the total net backpay due York is $288.55. i As shown hereafter, Respondent agreed at the hearing to pay the amounts specified as backpay to Robert York and Robert Proffer 2 Respondent in its brief stated that it "only intends to contest those amounts" specified for J R Bradshaw and Arthur Lee Terry Thus there is no contest-as to RoFiinson s backpay. 3 Particular periods or quarters as to all the individuals will be designated by year and quarter as for example 71-3 for the third quarter of 1971. SAM TANKSLEY TRUCKING, INC. The specifications show with regard to Proffer: (1) his backpay period began June 24 and continued to August 1, 1971; (2) for the 13-week period prior to June 24, 1971, while employed by Respondent, his average weekly earnings were $174.78; (3) he would have continued to earn at that rate during the backpay period; (4) thus during 1971-2 he would have earned for 8/10 of a week, $139.92 and during 1971-3 for 4-4/10 weeks, the sum of $769.03, making a gross backpay of $908.85; and (5) during 1971-3 he earned from other employment the sum of $709.92. The amount of $908.85 less $709.92 leaves a total net backpay due Proffer in the amount of $198.93. B. Backpay of Terry 1. The Board's computation of an average measure of weekly pay is reasonable Terry's backpay period commenced June 24 , 1971, and ended March 1, 1972, when he was offered reinstatement by Respondent . Respondent admits that for the 13-week period prior to June 24, 1971, Terry's weekly average earnings were $ 199.56 and as Respondent admits he would have continued to earn at that rate during the backpay period. The General Counsel alleged that Terry's average weekly earnings of $199.56 for the 13-week period immediately prior to June 24, 1971, constituted an appropriate measure of the weekly pay that Terry would have earned during the backpay period. Respondent denied that allegation .4 In support of its position, the General Counsel offered the testimony of Jay Robert King, compliance officer with Region 14. Mr. King has been a Board employee for 12 years and a compliance officer for 7-1/2 years. In the latter spot he has the "responsibility to see that all requirements of the remedy are met" upon the issuance of a formal or informal order . This includes "proper reinstatement in certain cases, computation of backpay, and other many and varied requirements of the individual and separate settlements." King also asserted that the wages and work duties of the employees considered here vaned from individual to individual. Under these circumstances, it was considered reasonable that the average of past weekly earnings of an individual for the 13 weeks preceding June 24 be an appropriate measure of that individual 's backpay. Mr. King prepared the formula and computation used to determine backpay in this proceeding. His explanation follows: Q. used? Did you prepare the formula and computation A. I did. Q. Would you describe which formula or formulas were used in the case and why they were used? A. In this case I used the average weekly earnings of the discriminatees over a representative period of time prior to their termination. Q. Would you explain how that procedure works? A. In this case we used a 12-week period prior, or 13-week period, excuse me, prior to the termination 657 date, and average weekly earnings were supplied to me by the employer. Q. Why do you use an average 13-week earnings? A. Because of the recognized formula, I consider this preferable because it gives a better picture of the individual discriminatee's work pattern. Average week- ly earnings will include, for example, overtime, and some cases will- MR. DRUSCH (interrupting): I would like to pose an objection in regard to any evidence now or later as to average weekly earnings calculated on anything'except a 40-hour week. JUDGE THEEMAN: You made your statement on the record, your objection is on the record, we will let it be continued. A. (Continuing) This represents the gross earnings of the individual over a representative period of time. One other reason for this, it also would reflect an absentee pattern of an individual discriminatee who may or may not average a 40-hour week. Q. Is this recognized Board formula? A. Yes, sir. Q. Is there such a formula that is recognized and used by the Board using a 40-hour week? A. Not to my knowledge. Q. Are there any advantages that you know of in using a 40-hour week, or disadvantages? A. I mentioned one disadvantage that it might not reflect on the absentee record of an individual. Q. O.K., and what is the disadvantage of using a 40-hour week versus a weekly? A. Disadvantage would be it would be confining to an arbitrary figure, when in reality the individual may have worked more than that or less than that. Q. So it might not reflect- A. (Interrupting) It might not be a true picture. * * * * * JUDGE THEEMAN (Interrupting): Are you now going into something specific? Before you go into that I would like to know in the determination of the average rates was this done on over-all basis or with regard to each individual employee? THE WITNESS: Each individual employee. JUDGE THEEMAN: Then, for each, back pay was based on the individual earnings of the employee during the 13-week period you took as a base? THE WITNESS: Right. JUDGE THEEMAN: Thank you. * * * * JUDGE THEEMAN: You are talking now about the 13- week period you selected? Q. (By Mr. Friedman) Is this used in many occasions? A. Yes; preferably a calendar quarter. If there is a possibility of a seasonal fluctuation, I might prefer a 4 Respondent's brief does not refer to this denial in any way. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 26-week period to get the truest earning picture possible. Q. You "might prefer"; do you pick these? A. I recommend. Q. What formula does the Board recommend for situations like this; is it that formula you designated? A. The average weekly earnings formula is quote, "representative period of time." Q. Do you handle the majority of the cases or only a few cases? A. The majority of cases. Q. This is the recommended formula in most of the cases that come by your desk? A. Yes. * * * * * Q. (By Mr . Friedman) Why did you pick 13 weeks and not 6 or 8? A. It is a broader period of time and over a longer period to get a truer picture rather than just one or two isolated weeks is a true picture of the person's absentee record, for example. Q. And who determined 13 weeks, is that Board formula? A. Not to my knowledge, I isolated as I have done- Q. You used this in several cases before? A. Yes, sir. CROSS-EXAMINATION Q. (By Mr. Drusch) Mr. King, in your use of average weekly wage you, of course, include sums which were termed overtime? A. Total earnings, yes. Q. Does it make any difference whether or not the employee worked overtime on voluntary or involuntary basis, or are there any other determinants involved in using the average weekly wage? A. The average weekly wage is just what the individual made during the representative penod of time. Whether it is voluntary or involuntary, it is just a total figure. Q. To your knowledge, are there any criteria which in some instances would make the average weekly wage inapplicable, in particular with regard to overtime, to your knowledge? A. Not to my knowledge with regard to overtime. Respondent offered nothing in the record or in its answer to support its denial that $199.56 constituted an appropriate measure of weekly pay for Terry to compute the backpay due him.5 At the hearing, Respondent's ,counsel raised an objection "in regard to any evidence now or later as to average earnings calculated on anything except a 40 hour week." No evidence was offered by Respondent to show what the workweek of Respondent was or that the employees were restricted to a 40-hour week, or why the representative period should properly be based on a 40-hour week. In any event, King testified that overtime occurred during the 13-week period he had considered in arriving at his average. No evidence was adduced to show that overtime was an extraordinary item and did not occur on a regular basis. Despite the lack of evidence thereto, it is considered that the restriction of computations to a 40-hour week would be arbitrary and unrealistic. Such a basis would eliminate absences from employment as well as overtime from the computation of the average weekly pay of the employees involved. Accordingly, on the basis of the evidence in this record it is found that the method used by the Board to compute "an appropriate measure of weekly pay" for Terry is reasona- ble. It is further found that $199.56 is such an appropriate measure .6 2. Terry's self-employment After his discharge by Respondent, Terry was employed by G. & G. Truck Repairs for a period of 3 months. At the end of that period he bought out one of the partners in G. & G. and became a half owner in the business . That was the state of his affairs when he was offered reinstatement by Respondent in March 1972. Terry testified that his business "didn't do too good for the first year ." As a result, he took "approximately $ 150 a week" when the partnership could afford it, "some weeks less." After a period of time they went to $175.7 Respondent does not contest Terry's figures.8 Nor does Respondent contend that in carrying on his business Terry did not put forth an honest effort to mitigate his loss of earnings.9 Respondent does contend that by going into business for himself, Terry took himself out of the labor market and for that period was not entitled to backpay. Respondent's contention is rejected . The record clearly shows that Terry was engaged in bona fide self-employ- ment from the time he became a partner in the business. Nor is there any question that he received earnings from his self-employment. These are clear evidence that he did not remove himself from the labor market. McCann Steel Company, Inc., 203 NLRB No. 115; Mel Croan Motors, Inc., 174 NLRB 1189, 1191, 1192. 3. Terry's medical expenses While employed by Respondent, Terry was a member of Respondent's workmen's welfare fund which covered the S There appears to be an inconsistency in Respondent's position in admitting that each dischargee would have made weekly during the backpay period the sum that the General Counsel alleged was an "appropriate measure of the weekly pay." and at the same time, denying that the same was an "appropriate measure " 6 This finding of individuality of the backpay measure applies equally to each individual named herein as it does to Terry See N LR.B v. Rice Lake Creamery Company, 365 F.2d 888, 891 (C A.D C, 1966), enfd 151 NLRB 1113 (dealing generally with the basis for with computation of backpay and also the basis for the computation of backpay of individual workers) See also Chef Nathan Sez Eat Here, Inc, etc., 201 NLRB 343, where the past average weekly earnings of the individual employees was used rather than the average weekly earnings of all the employees. 7 Terry testified without refutation that for no week during the backpay period did his weekly earnings exceed $199 56 8 Terry stated there was no way he could take more out of the business. "The business was just getting started, we didn't have the equipment we should have had and that's all we could take at the time." 9 See N L R B v Cashman Auto Company, 223 F.2d 832, 836 (C.A. 1) SAM TANKSLEY TRUCKING, INC. 659 employees, among other things, for hospital and medical lexpenses for the employee and his family.10 The monthly ,cost to Terry for coverage for himself, his spouse, and one or more children was $14 per month. The fund also rovided for a $20 deductible on any one illness, accident, or doctor's call. After his discharge, Terry did not carry such coverage. He testified that neither he nor his company could afford it; that he checked with an insurance agent and was quoted a cost of $20 to $25 per month. Terry while in the backpay penod incurred medical expenses on account of himself, his wife, and his children. Respondent contends for two reasons that these expenses are not to be included in the amount due for backpay: (1) the expenses were incurred after Terry became self- employed and thereby the period for which he was otherwise entitled to backpay had terminated; and (2) the expenses do not in fact come within the terms of the workmen's welfare fund. Reason (1) is rejected because of the above finding that, Terry never took himself out of the labor market by his self-employment and was in a backpay period until March 1, 1972, when he was offered reinstatement. Reason (2) is also rejected because as shown in the next section the medical expenses paid by Terry came within the provisions of the fund. The fund provides: Benefits W. W. F. will pay up to twenty five hundred dollars ($2500.00) or for a period of one year, subject to twenty dollars ($20.00) deductible on any one illness or accident. : * * s : Subject to the twenty dollar ($20.00) deductible any expense incurred on a Doctors call is covered; such as office visit and any tests. MEDICINE will be paid on an employee for thirty (30) days from the first doctors visit on W. W. F. will pay for all medicine while employee is off from work and will pay for medicine for thirty days (30) after employee returns to work. W. W F will not pay any bills from cash register tapes or receipts. An itemized statement from the doctor is necessary and an invoice from the drug store listing prescription numbers and charges. The General Counsel placed in evidence bills for medical, hospital, and doctor's expenses that Terry had paid for his wife's illnesses during the backpay period. Generally, Terry's recall as to the illnesses and the events covered by the bills was not good. However, he did recall IU A document setting forth the fund agreement and coverage dated January 30, 1969, was placed in evidence 1 I The General Counsel and Terry showed that backpay was due Terry. The responsibility for fixing the amount due Terry was that of Respondent. Mastro Plastics Corporation, 136 NLRB 1342, 1346, enfd 354 F 2d 170, 178 (C.A 2, 1965), cert denied 384 U S 972 ( 1966). It is considered that the evidence of Terry's medical expenses is sufficiently substantial to support the findings made thereon 12 Respondent contends that this incident involved two girls and that there was a time that his wife was in the hospital; that she had been hemorrhaging and had had doctor's care. He also recalled that both he and she had been in the hospital because of bronchitis. Another bill placed in evidence was for hospital care for Terry's children arising from a bicycle accident. As to this item Terry only recalled that the accident had occurred. Terry impressed me as a reliable witness despite his failure to recall any specifics and I am convinced that the bills in evidence each of which was made out to Terry were bills for the items and events shown thereon." Accordingly, it is found that the illnesses and accidents, and the medical expenses ensuing there- from, occurred. The dates show they occurred during the backpay penod. Dealing with the bills in order of dates it is clear that the expenses involved and the incidents giving rise to those expenses are covered by the language of the welfare fund quoted in the paragraphs above. The first charge on August 27, 1971, was for $42 to Deborah and Elaine Terry. The statement in the amount of $42 shows Arthur is the father. This is the item that Terry testified covered the bicycle accident to his children. Again, such an accident is clearly covered by the language of the fund first above-quoted subject to the $20 deductible clause.12 The second group of charges is shown on a set of bills from the Ferguson Medical Group. It is assumed this is a group of doctors. The charges are for medical services to Darla, wife of Terry on December 20 and 21, 1971.13 There are nine items dated December 20, 1971, for lab tests of different nature on Darla, and an office visit for her account. These nine total $44. There is one item dated December 21, 1971, in the amount of $30 for an "Xray-gall bladder" taken of Darla. The total amount of these charges is $74. There is no question but that these items are within the scope of language "office visits and any tests" contained in the fund. These items occurred within the year 1971 and are subject to a deductible of $20. The balance subject to the terms of the fund is $54.14 The third group of items covers the penod from February 9-18, 1972, and again concern Darla. From inspection it appears that she was in St. Francis Hospital, Cape Girardeau, for treatment. First she was treated by Dr. Chapman of the Internal Medicine Group of Cape Girardeau. On February 9, she was admitted to the emergency room of the St. Francis Hospital. Dr. Chapman was there and he treated her and she went home again. His charge was $10. On February 14, she was admitted to the hospital as a patient. Dr. Chapman treated her while there at the rate of $15 a day for 5 days. He also performed a sigmoidoscopy for $15. The total bill for the Internal Medicine Group was $100. The next item is a bill from the St. Francis Hospital, therefore two deductibles apply The evidence shows that one accident on a bicycle occurred involving both girls The language of the fund makes the reimbursable "subject to . ($20 00) deductible on any one accident " Accordingly, it is found that one deductible applies here i3 The bills also show that medical services were given to Arthur Terry For reasons not specified no reimbursement of Arthur's expenses are requested as to these items i4 There will be a recapitulation at the end of this section of the items discussed herein for medical expenses 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cape Girardeau, Missouri. It shows that Mrs. Darla Jane Terry was a patient from February 14 through 18, 1972.15 The responsible party is Arthur L. Terry and the bill is for $356.35. The next item is a bill from Dr. McGintyls for $135. It shows that he was in consultation at St. Francis Hospital with regard to Darla on February 16, 1972. His fee was $10. On February 17, 1972, he performed a larynoscopy, esophagoscopy, and bronchoscopy. His charge was $125. The total due to Dr. McGinty was $135. The next item is a bill from the Shoss Radiological Group for X-rays on Darla: chest X-ray and gallbladder on February 14 and 15, 1972, respectively.17 The total charge is $12. , The next item is a bill from an esthesiologist marked "anesthesia for Darla" dated February 17, 1972. The amount is $42.18 The foregoing items clearly show that Mrs. Darla Terry was in the hospital, ill, and being treated for that illness. It is further clear that this illness and its cost are subject to the language of the fund first above quoted subject to the $20 deductible. Finally, as stated above, the cost to the Respondent's employees for coverage under the fund is $14 a month. Terry, to have received fund coverage, would have been required to pay that $14 for the entire time of his backpay period. Accordingly this item is a deductible from the amount that would be due him under the fund. 19 A recapitulation of the foregoing shows: Medical Expenses 1. Darla Terry 12/71 Ferguson Medical Group $ 74.00 Insurance Deductible -20.00 $ 54.00 2. Darla Terry 2/71 Internal Medical Group 100.00 Dr. McGinty 135.00 Shoss Radiolo- gical Group 12.00 Esthesiologist 42.00 St. Francis Hosp. 365.35 $645.35 Insurance Ded. -20.00 625.35 3. Children 8/71 Chaffee Gen. Hosp. 42.00 Insurance Ded. -20.00 22.00 701.35 Less 8 mos. premium @ $14 a mo. -112.00 Final Total $589.35 The foregoing shows that Terry during the backpay period was employed by G. & G. and then self-employed. He was paid earnings in both instances. There is no evidence to show that he willfully incurred any loss of earnings during the backpay period, nor that he took himself out of the labor market . The foregoing also shows that had it not been for the illegal discharge of Terry by Respondent the illness and accidents occasioned by himself, his wife, and children during the backpay period and the ensuing expenses would have been paid by the welfare fund and not by Terry. Under the circumstances, Terry is entitled under the language of the Board's Order that Respondent "make [him] whole for any loss of pay [he] may have suffered by reason of the discrimination against [him ]." Such loss of pay includes hospital and medical expenses Terry was required to pay and which he would have recovered from the welfare fund but for Respondent's act of discharging him. See N.LR.B. v. Rice Lake Creamery Co., supra at 893; Bowen Transports, Inc., 196 NLRB 665. Under these circumstances it is found that Terry is entitled to recover gross backpay in the amount of $6,984.60 less his net interim earnings of $6,192 , leaving a net backpay of $792.60 plus $589.35 for hospital and medical expenses he otherwise incurred. The total net backpay due Terry is $1,381.95.20 15 One of the bills from the Internal Medicine Group contains the notation, "2-18-72: Dismissed, Hospital Care." 16 Terry confirmed that Dr. McGinty had treated his wife 17 Undoubtedly she was then in the hospital is Same comment as in previous footnote. is See N L R B v Rice Lake Creamery Company, supra at 893 20 The computations are in conformity with the determinations of the Board and the court in Rice Lake Creamery, supra. The computations follow Name -- Arthur Lee Terry Calendar Weeks and Gross Net Interim ' Net A. Qtr. Pay Rates Backpay Earnings Backpay 71-2 71-3 71-4 72-1 .8 @ $199.56 13 @ 199.56 13 @ 199.56 8.2 @ 199.56 $ 159.65 2,594.28 2,594.28 1,636.39 NONE $2,507 2,250 1,435 $159.65 87.28 344.28 201.39 Calendar Interim Gross Travel Net Interim B. Qtr. Employer Earnings & Exps . Earnings 71-3 G & G $1,877.00 NONE $1,877 Scott Co. 630.00 NONE 630 71-4 Diesel Scott Co. 2,250.00 NONE 2,250 72-1 Diesel Scott Co. 1,435.00 NONE 1,435 Diesel Recapitulation Gross Backpay $6,984.60 Gross Earnings -6,192.00 Net 792.60 Medical and Hospital Expenses 589.35 Net Backpay $1,381.95 SAM TANKSLEY TRUCKING, INC. 661 C. Backpay of Robinson 2i Robinson's backpay period commenced June 24 and ended August 6, 1971, when he got his job back with Respondent. Respondent admits that for the 13-week period prior to June 24, 1971, Robinson's weekly average earnings were $201.27 and as Respondent admits he would have continued to earn at that rate during the backpay period. As determined above with regard to Terry, Robinson's average weekly earnings for the 13-week period immediately prior to June 24, 1971, constitute an appropri- ate measure of the weekly pay that he would have earned during the backpay period. Respondent also admitted that during the backpay period Robinson had no expenses nor had any interim earnings. Robinson testified without any denial or refutation that he is a mechanic and that type of work was all he knew how to do or had ever done. After his discharge he immediately applied for unemployment insurance in their office in Perryville, Missouri. They sent him to the St. Genevieve Ready Mix Concrete Co., Cape Girardeau, Missouri, but there Robinson was not hired. On his own initiative he applied for a job at a trucking concern in Bloomsdale, Missouri, and Mary Lee Packaging, Perry- ville, Missouri. He was not hired. Someone in the latter concern referred him to a job at Martha White Milling in Steelville, Illinois. He went a distance of 40 miles to apply for this job but again was unsuccessful. The Hertz Rental Co. advertised for help in the St. Genevieve, Missouri, area. Robinson went to St. Louis for an interview. Thereafter he called them once a week for 3 weeks, but was eventually informed the job was filled. Unsuccessfully he applied for an overseas job, and sought work through his friends and relatives.22 The foregoing shows that Robinson, during the backpay period, sought employment but was not hired. There is no evidence to show that he willfully incurred any loss of earnings. Under these circumstances, Robinson is entitled to recover his gross backpay in the amount of $1,207.62.23 N.LR.B. v. Brown & Root, Inc., 311 F.2d 447 (C.A. 8, 1963). D. Backpay of Bradshaw Bradshaw's backpay period commenced June 24, 1971, 21 See In. 2, supra 22 Robinson testified that during the entire backpay period he advised the unemployment office weekly of two or three places where he had applied for work during the previous week but had not been hired s The computation of this amount is as follows: 71-2 8/10 wk. @ $201.27 = $ 161.02 71-3 5-2/10 wk. 0, $201.27 = 1,046.60 TOTAL $1,207.62 s+ When rehired by Respo^bMhsjobwas+ Q. What is your Job down at Tankaky now5 A. I am a wash boy and supposed to be washing those trucks and a lot of times I do different work, I clean out trailers, maybe picking up stuff and cleaning and picking up around the place and shop, picking up paper, and involves some other jobs that was given to me. I drum the fuel and ended February 22, 1972, when he got his job back with Respondent. Respondent admits that for the 13-week period prior to June 24, 1971, Bradshaw's weekly average earnings were $164.17 and further admitted that he would have continued to earn at that rate during the backpay period. As determined above with regard to Terry, Bradshaw's average weekly earnings of $164.17 for the 13- week period immediately prior to June 24, 1971, constitute an appropriate measure of the weekly pay that he would have earned during the backpay period. As admitted it is found that Bradshaw had no expenses during the backpay period and earned the sum of $827.04 during 1971-3. Bradshaw was employed as a man-of-all-work by Respondent 24 At the time of his discharge he was assisting in the construction of a building that Respondent was completing. He helped to bring in forms, levelled up, made ready-to-pour concrete, swept, and cleaned up by picking up boards and stuff. He also worked at the home of one of the officials of Respondent, by mowing the orchard, digging out a cesspool, digging around trees, fertilizing, and doing other handy work. Bradshaw lived at Advance, Missouri.25 Respondent stipulated that there was no question that Bradshaw had adequately looked for work during the backpay period.26 After his discharge, Bradshaw went to work for Burger Chef in Sikeston, Missouri. This job required a round trip of 78 miles each day he worked. He started there on July 13, 1971, and continued through September 11, 1971. The question to be resolved is whether Bradshaw quit the job or not.27 Bradshaw was the only one who testified in this matter and he did so frankly and openly. His testimony is credited. He stated: Q. You said you got laid off. Is that what happened? I don't understand, did you quit or were you laid off? A. I got laid off. The reason why because if I quit I couldn't go on unemployment. He told me he would give me the layoff so I go on unemployment. I draw a few checks before I went to work at Burger Chef of unemployment. You have to put in two weeks' waiting period before you start unemployment, and that is the reason why it was done this way. Q When did you sand? A Tram and sand and in the fuel tanks that I was told to take care of every so often. u To work for Respondent he was required to drive about 30 miles per day round trip His family consisted of seven persons including his wife. ss In addition to the stipulation, the following question and answer occurred between Respondent's counsel and Bradshaw. Q Did you find any other work before you went to Tanksley? A. No, sir, I tried Q. I am sure you did 2T Incidentally, it is considered not unreasonable under the circum- stances that the round trip of 78 miles per day and the attendant expense contributed to Bradshaw's request for a raise The question whether the trip was an excessive distance to travel does not need to be determined in view of the holding that Bradshaw did not quit . See N LR B. v. Mastro Plastics Corporation, 354 F.2d 170, 179. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. You said he laid you off. Did you just tell the man you were going to quit? A. No, I didn't tell him. We talked it over and he said, "You've got a big family" . . . . He was an understandable man and we talked it over and he said, when asking for the raise , "I'm sorry, I can't give you the raise. I will just lay you off and that way you can get unemployment." Q. What was your job there? A. I did general work and washed a few pots and pans and Rut french fries in racks for the french fry machine, you -might say all-around maintenance work, and if I helped in the err Chef if I was needed on the line of cooking hamburgers, cheeseburgers and whatever. Q. Was it mainly janitor work, you started off by saying janitor work. A. That was my first job in the morning when it was opened. Q. I can't seem to get off the subject, and getting back to the distance of Burger Chef, how far did you have to drive from your home in Advance to Sam Tanksley where you worked in 1971? A. It is 30 miles. Q. One way or round trip? A. Well, round trip. Q. Thirty miles round trip. How far did you say it was round trip from your home to the Burger Chef where you worked? A. The mileage checked out 39 and a quarter tenths one way and it comes out to 78 miles round trip. Q. So you were driving an additional 48 miles or so a day? A. More. Q. You mentioned that you had a problem with not being able to afford driving there. A. Yes, sir. Q. That was $20 more than what it usually cost you to drive? A. Sure was. Q. Was it more than $20? A. Yes; if you figure it up I imagine it would be. ss Having found that Bradshaw did not quit, Respondent 's contention based on the assumption that Bradshaw voluntarily left Burger Chef falls zs Computed as follows 71-2 8/10 wk. @ $164.17 $ 131.34 71-3 13 wks. @ $164.17 = 2,134.21 71-4 13 Wks. @ $164.17 = 2,134.21 72-1 7-2/10 wks. @ $164.17= 1,182.02 TOTAL $5,581.78 D Q. (By Mr. Friedman) Now, you mentioned a big family. How big is your family? A. I have five children; seven altogether. Q. Who is Ernie? A. He is the manager of Burger Chef down there. I told him I had to have a raise because I was driving too far and I couldn't make ends meet on my expenses and couldn't make a living on $1.60 an hour. Q. What did Ernie say to that? A. He said he would have to think it over and he would check it for me, but he said, "I'll let you know." Q. Then what happened? A. Then he come up with the answer he couldn't give me the raise, I hadn't been hired long enough, and there were others going to be laid off, too, so I can draw unemployment. It is clear from the foregoing that Bradshaw was laid off; that he did not quit his job at Burger Chef. There is no question that he intended to quit if he did not receive a raise. He was saved from making that decision by "Ernie," the manager of Burger Chef who decided to lay him off.28 The foregoing also shows that Bradshaw during the backpay period sought employment but was not hired except for the job at the Burger Chef. It is found that he did not quit that job voluntarily. Thus, on the whole record, there is no evidence to show that Bradshaw willfully incurred any loss of earnings during the backpay period. Under these circumstances, Bradshaw is entitled to recover gross backpay of $5,581.7829 less his net interim earnings of $827.04 during 1971-3 to equal a net backpay of $4,754.74. On the basis of the foregoing and the entire record in this proceeding, I hereby issued the following recommended: ORDER 30 Sam Tanksley Trucking, Inc., its officers, agents, successors, and assigns, shall pay to (a) Robert York, the sum of $288.55 ; (b) Robert Proffer, the sum of $ 198.93; (c) Arthur Terry, the sum of $ 1,381.95; (d) Eric Robinson, the sum $1,207.62; and (e) J. R. Bradshaw, the sum of $4,754.74, plus interest at the rate of 6 percent per annum accrued to date of payment in accordance with the formula set forth in his Plumbing & Heating Co., 138 NLRB 716, with deductions for applicable taxes. 30 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.