Brotherhood of Teamsters & Auto Truck Drivers

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Teamsters & Auto Truck Drivers, Lo- cal No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Sea-Land of California , Inc.) and James Reliford. Case 20-CB-2394 ministrative Law Judge's Supplemental Decision, the exceptions and briefs, and hereby adopts the find- ings,3 conclusions, and recommendations of the Ad- ministrative Law Judge. July 31, 1974 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On May 25, 1972, the National Labor Relations Board issued its Decision and Order (197 NLRB 125) in the above-entitled proceeding, finding, inter aha, that the Respondent violated Section 8(b)(2) and (1)(A) of the Act by causing Sea-Land of California, Inc., to discharge the Charging Party, James Reliford, for nonpayment of dues to Respondent at a time when Reliford could not lawfully be required to pay such dues as a condition of continued employment. In consequence, the Board ordered the Respondent to notify Sea-Land that it had no objection to the em- ployment of Reliford and to make Reliford whole for any loss he may have suffered as a result of the unlaw- ful discrimination against him. On December 5, 1973, the U.S. Court of Appeals, Ninth Circuit, granted the Board's petition for enforcement.' Pursuant to a backpay specification and appropri- ate notice issued by the Regional Director for Region 20, a hearing was held on February 25, 1974, before Administrative Law Judge Jerrold H. Shapiro, for the purpose of considering various issues concerning the amount of backpay due. On April 18, 1974, the Administrative Law Judge issued the attached supplemental decision in which he found certain of the proposed modifications to the Regional Director's backpay specification to have merit and others to be without merit and in which he awarded backpay to Reliford. Thereafter, the Charg- ing Party and Respondent filed exceptions to the Ad- ministrative Law Judge's Supplemental Decision and supporting briefs and the General Counsel filed cross- exceptions and material in support of his cross-excep- tions.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Adminis- trative Law Judge made at the backpay hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has consid- ered the entire record in the case, including the Ad- 2 490 F 2d 87 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Supplemental Order of the Administrative Law Judge and hereby orders that Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, Oakland, California, its officers, agents, and representatives, shall take the ac- tion set forth in said recommended Supplemental Or- der. '490F2d87 2 The General Counsel filed in support of his cross-exceptions his brief to the Administrative Law Judge amplified in certain regards by a letter which in effect was a brief 3 Though we agree with the General Counsel and Charging Party that Respondent's letter of October 18, 1972 , to Sea-Land could have been more incisive we, nevertheless , find that it was sufficient to toll, as the Administra- tive Law Judge concluded, the running of the backpay period It was a sufficient notice to have caused a reasonable man to seek reemployment with Sea-Land, which Charging Party here apparently did not do SUPPLEMENTAL DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO. Administrative Law Judge. On May 25, 1972, the National Labor Relations Board issued a Deci- sion and Order in the above-entitled case' finding that Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America (herein called the Respondent), violated Section 8(b)(2) and (1)(A) of the National Labor Relations Act (herein called the Act), by causing an employer, Sea-Land of California, Inc., to dis- charge employee James Reliford for nonpayment of union dues accruing during periods when the Respondent had no right to compel union membership as a condition of em- ployment. The Board's Order, as amended on December 20, 1972, requires the Respondent, inter alia, to notify Sea-Land that it has no objection to the reinstatement of James Reli- ford without prejudice to his seniority or other rights and privileges, and to make Reliford whole for any loss of pay suffered by reason of the discrimination against him. There- after the Board's Order, as amended, was enforced by the United States Court of Appeals for the Ninth Circuit? On January 25, 1974, the Regional Director for Region 20 issued a backpay specification. Respondent answered the i 197 NLRB 125 212 NLRB No. 108 BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS 715 specification. On February 25, 1974, a hearing was held on the issues raised by the pleadings.3 The issues raised by the pleadings and litigated at the heanng are whether: (1) the Regional Director correctly computed the gross backpay for the fourth quarter 1970; (2) the Respondent tolled its backpay liability by sending a letter to Sea-Land and Reliford on October 18, 1972; (3) the evidence demonstrates a willful loss of earnings or a failure to use reasonable diligence by Reliford, during all or part of the backpay period, in seeking interim employment; and (4) Reliford received earnings from interim employment which are not included in the backpay specification. Upon the entire record,' from my observation of the de- meanor of the witnesses, and having considered the post- heanng briefs, I make the following: FINDINGS AND CONCLUSIONS Although the Regional Director in computing Reliford's gross backpay for the fourth quarter 1970 might have prop- erly used the formula suggested by the Respondent, I am of the opinion, it was not mandatory that he do so, but only that he use a method which was not unreasonable or arbi- trary. See, e.g. N. L. R. B. v. Brown & Root, Inc, 311 F.2d 447, 452 (C.A. 8, 1963). The method, described above, used to compute Reliford's gross backpay for this quarter is not arbitrary or unreasonable. In addition, there is no evidence or even a suggestion that the use of Respondent's method of computation would have made any difference in Reliford's gross backpay for the fourth quarter 1970. In sum, there is no showing that the Respondent has been unfairly penalized by the use of the Regional Director's formula. For these reasons, I deny the Respondent's motion to strike the portion of the backpay specification dealing with the fourth quarter 1970. 1. The Regional Director used the earnings of employee Cody, the employee just below Reliford on Sea-Land's se- niority list, as the yardstick for determining the amount of earnings Reliford would have received at Sea-Land during the backpay period; his so-called gross backpay. Respon- dent does not contest the use of this replacement formula in computing Reliford's gross backpay but contends that the formula was incorrectly applied for one quarter, the fourth quarter 1970. Reliford was discriminatorily discharged November 10, 1970, the middle of the fourth quarter. In computing Reliford's gross backpay for this quarter, the Regional Di- rector computed Reliford's earnings for the quarter up to the date of his discharge, November 10, and subtracted them from Cody's earnings at Sea-Land for the whole quar- ter. The Respondent points out that, under this formula, if Cody from October 1 through November 9 earned more money at Sea-Land than Reliford that the Respondent would in effect be reimbursing Reliford for moneys he did not earn.5Respondent urges that the more appropriate method to compute Reliford's gross backpay for this quar- ter would have been to determine Cody's earnings at Sea- Land following Reliford's discharge, November 10 through December 31. The General Counsel urges that the method used by the Regional Director in computing Reliford's gross backpay for the fourth quarter 1970 is an appropriate one. 3 The backpay specification was amended at the hearing to correct an error in computation 4 At the hearing, the Charging Party's attorney, over the objection of the General Counsel and Respondent, moved that the Backpay Specification be amended to include his fees I denied this motion for the reason that the Charging Party had not previously urged the Board to adopt such a remedy and the Board did not grant such a remedy The Charging Party. in my opinion, cannot for the first time in this supplementary proceeding on the day of the hearing urge that the Board erred in failing to grant this type of relief Moreover, the Board has consistently refused to grant attorney's fees or litigation costs absent extraordinary circumstances not present in this case See, e g, Heck's Inc, 191 NLRB 886, John Singer, Inc, 197 NLRB 88, Fuqua Homes Missouri, Inc, 201 NLRB 130 5 Conversely, if Reliford during this period earned more money than Cody then, according to Respondent's argument, Reliford would be the one alleg- edly receiving unfair treatment. II The General Counsel contends that Reliford's backpay period began on November 10, 1970, and still continues to run. Respondent admits that the backpay period began on November 10, 1970, but takes the position that its backpay obligation was tolled on October 18, 1972, or at the very latest on January 4, 1973. The evidence pertinent to this issue can be briefly stated. The Board's Order, as corrected on August 3, 1972, inter alia, at paragraph 2(a) ordered Respondent to: "Notify Sea- Land that Respondent has no objection to the employment of James Reliford and to furnish James Reliford a copy of such notification" and, at paragraph 2(b), to make Reliford whole for any loss of pay or other benefits by paying to him a sum equal to that which he would have earned from the date of his discharge "to a date which is 5 days after Re- spondent advises Sea-Land that it has no objection to the employment of Reliford.. .. " On October 18, 1972, Respondent, by letter, notified Sea- Land and Reliford that it had no objection to Sea-Land's employment of Reliford The letter reads as follows: This letter is written in accordance with Paragraph 2(a) of the Order of the National Labor Relations Board in Case No. 20-CB-2394 that Teamsters Local 70 has no objection to the employment of James Reli- ford. This letter is written without prejudice to the right of Local 70 to seek judicial review of the aforesaid order of the Board, and to insist upon the uniform applica- tion of Local 70's contract with Sea Land to all employ- ees, including James Reliford, in the event he is employed by you. On November 7, 1972, Sea-Land's lawyers, by letter, noti- fied the Respondent's attorney that they had advised Sea- Land, "We are unable to read the [Respondent's] letter of October 18 as either a recommendation or consent that 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sea-Land reemploy Reliford in the same status with respect to seniority, etc., which he had on November 10, 1970." Sea-Land's lawyers told the Respondent's attorney, "[I]f it is in fact [the Respondent's] intention to recommend that Reliford be restored to his November 10, 1970, seniority status, we assume this intention will be communicated to Sea-Lund by supplemental letter." On November 9, 1972, the Respondent's attorney sent the following reply letter to Sea-Land's lawyers: In accordance with the foregoing revision, Teamsters Local 70 hereby notifies Sea-Land that Local 70 has no objection to the reinstatement of James Reliford with- out prejudice to his seniority or other rights and privi- leges. This letter is written without prejudice to the right of Local 70 to seekjudicial review of the aforesaid order of the Board and to insist upon the uniform application of Local 70's contract with Sea-Land to all employees, including James Reliford, in the event he is employed by you. This is in response to your letter of November 7, in the above case. The letter of October 18, 1972 from Teamsters Local 70 is intended to comply with Paragraph 2(a) of the Board's Order in case No. 20-CB-2394 issued on May 25, 1972. That provision of the Board's Order requires that Local 70 notify Sea Land that Local 70 has no objection to the employment of James Reliford, and the letter of October 18, 1972 conforms precisely with that requirement. Neither more nor less is intended by the letter. If you have any questions with respect to the mean- ing of the Board's Order I would suggest that you com- municate with a representative of the National Labor Relations Board. Any further action by Local 60 in connection with Paragraph 2(a) will be guided by the requirements of that provision. If there is a problem of any kind I will be in touch with the Labor Board in order to obtain its views and advise Local 70 accord- ingly. On or about November 10, 1972, the General Counsel, without opposition from the Respondent, filed a motion with the Board to amend the Board's Order to delineate more clearly the action which Respondent must take to remedy the unfair labor practices. In response, the Board on December 20, 1972, issued an Order in which it noted that it had considered the General Counsel's motion to amend, "and, in view of the lack of opposition thereto, grants the motion in full." Accordingly, paragraph 2(a) of the Board's Order which directed Respondent to, "notify Sea-Land that Respondent has no objection to the employ- ment of James Reliford and furnish James Reliford a copy of such notification" was amended to read, "notify Sea- Land that Respondent has no objection to the reinstate- ment of James Reliford, without prejudice to his seniority or other rights and privileges, and furnish James Reliford a copy of such notification." (Emphasis supplied.) On January 4, 1973, the Respondent sent the following letter to Sea-Land and Reliford: This letter is written in accordance with the Board's Order, as revised on December 20, 1972, in case No. 20-CB-2394. On or about January 5, 1973, Reliford was reinstated by Sea-Land to his formerjob and given his former position on Sea-Land's seniority roster with no loss of seniority or other rights and privileges previously enjoyed. On January 17, 1974, the Court of Appeals for the Ninth Circuit entered its judgment enforcing in full the backpay provisions of the Board's Order, as amended. The Board's amended Order, as described above, re- quired the Respondent, inter alia, to notify Sea-Land and Reliford that it has no objection to the reinstatment of Reliford without prejudice to his seniority and other rights and privileges and further directed the Respondent to make Reliford whole for lost wages from the date of his discharge, until 5 days after the Respondent took the remedial action just described. The Respondent contends that its letter of October 18, 1972, complied with the Board's Order and terminated its responsibility for Reliford's subsequent loss of pay. The General Counsel contends that the letter was equivocal and because of this did not terminate the Respondent's backpay liability. The parties' positions on this question must be evaluated in the light of the following standard: Where a union undertakes to remedy its prior unlawful conduct, the Board has recognized the inequity in con- tinuing to charge it with backpay liability simply be- cause the employer, whose actions the union cannot control, declines to hire the victim of the past, union- caused discrimination. Nonetheless, the Board has in this type of case required clear, unequivocal action by the union, so as not to permit it to escape liability by virtue of a token act not calculated or likely to achieve a correction of the wrong committed. (Reinforcing Iron Workers Local Union No. 426 (Tryco Steel Corp), 192 NLRB 97). Tested by this standard, I am convinced that the Respondent's letter of October 18, 1972, terminated its re- sponsibility for Reliford's subsequent loss of pay. Cf. West- wood Plumbers, 131 NLRB 562. In reaching the conclusion that Respondent's letter of October 18, 1972, terminated its responsibility for Reliford's subsequent loss of pay, I have been motivated by the follow- ing considerations. The letter unequivocally stated that Re- spondent had no objection to the employment of Reliford by Sea-Land .6 The letter complied with the terms of the then 6 The evidence is insufficient to demonstrate that the Respondent' s insis- tence that its contract be uniformly applied to all employees, including BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS outstanding Board Order against Respondent , and, there is insufficient evidence to establish that the Respondent was not making a good-faith effort to cure its previous misdeeds. The circumstances surrounding the letter do not indicate a lack of good faith . To the contrary, Respondent did not object to the motion by the General Counsel to clarify the Board Order and, as soon as the Board clarified the Order, the Respondent immediately complied with the amended Order in pertinent part. In short, Respondent has made a sincere effort to cure its misdeeds , at all times, by complying with the Board's original and amended Order. The fact that Sea-Land's attorney viewed the letter of October 18, 1972, with skepticism is not relevant, in my opinion, because the letter complied with the then outstanding Board Order and there is a lack of evidence to indicate that the Respondent was acting in bad faith or even intended to object if Sea- Land reinstated Reliford without prejudice to his past se- niority. I realize that the Respondent's attorney , in response to the letter from Sea-Land's attorney, could have easily reassured Sea-Land that Respondent would not object if Reliford was reinstated with his seniority . But, when the entire record is considered , I am unable to conclude that this one bit of conduct is sufficient to taint the letter of October 18, 1972. On balance, I am of the opinion, that the equities in this case favor the Respondent and that its letter of October 18, 1972, effectively terminated the Respondent's backpay liability. Accordingly, I find that the backpay liability of the Respondent terminated on October 23, 1972.7 Respondent in its answer urges that its backpay liability should be mitigated because Reliford during the backpay period "did not use due diligence in seeking employment, and specifically alleges that he did not seek to use the hiring hall facilities of Respondent. .. . Respondent operates a hiring hall for casual employees. During the hours of 5 a.m. to 4 p.m. for 5 days a week it dispatches employees to jobs as truckdrivers, drivers-help- ers', and tojobs loading and unloading trucks. The referrals, 1 day in duration, are known in the trade as casual work. Employers use the Respondent's hiring facility when they cannot handle the work load with their ordinary comple- ment of employees. If an employer likes the work of a particular casual and has a continuing need for extra men it can, and usually does, continue to request the casual by name for a number of consecutive days, or whenever a casual is needed. Of the various registration lists maintained at Respondent's hiring facility, Reliford signed four: The heavy-duty drivers list for Class A drivers; the grocery list for drivers and helpers employed by the large grocery chains; the night dock list for loading and unloading trucks at night ; and the lumpers list for loading and unloading trucks for less than a full day. Reliford was required by the Reliford, was intended or calculated to qualify the unequivocal nature of its expressed lack of objections to Reliford's employment The Board's usual policy is to terminate backpay liability 5 days after such notification 717 rules of the Respondent's hiring hall to register on the sever- al out-of-work registers between 5 a.m. and 7:30 a.m. He could register on all four of the above lists simultaneously. He remained registered until his name was called out for a job. If Reliford accepted the referral, his name was stricken from each one of the registers he had signed. Likewise, it was stricken if he was not in the hall and failed to answer when his name was called for referral. When his name was signed on the heavy-duty drivers list, Reliford had to stay at the hall until 12 noon to avoid missing a referral and thereby having his name scratched from the registration lists . And, according to the Respondent's Secretary-Trea- surer Mack, when Reliford registered for work on the night dock or lumper lists and "possibly" the grocery list, he had to remain at the Respondent's hiring facility throughout the afternoon as well as the morning to make sure that his name was not called out and scratched from the registration lists in his absence. Reliford testified, in effect, that from his discharge on November 10, 1970, through April 1971 he registered for work at the Respondent's hiring facility approximately two or three times .8 He also testified that from June through September 1971 he registered about once a month. Respondent's registration roster for class A drivers from November 1970 through April 1971 reveals that Reliford registered on this roster five times .9 Based on the foregoing, I find that between November 10, 1970, the date he was discharged, through May 1971 Reliford registered approxi- mately five times at the Respondent's hiring facility for casual work and from June through September 1971 regis- tered, at the most, once a month. In other words, the record establishes that from November 10, 1970, through Septem- ber 1971 Reliford did not regularly register for work at the Respondent's hiring facility. I further find that if Reliford regularly registered during this period he would have re- ceived a certain amount of work depending on the amount of casual work available. How much work Reliford would have received, however, is speculative.10 In any event, the amount of money that Reliford would have earned or the amount of casual work he would have secured if he had regularly registered at the Respondent's hiring facility is not the issue in this case . The issue is whether the whole record, including Reliford's failure to regularly register at the Respondent's employment facility, preponderates in favor of a showing of a willful loss of employment or a lack of reasonable diligence on the part of Reliford in seeking em- ployment. In this regard, the law is settled that the Respon- dent may mitigate its backpay liability by showing that Reliford "willfully incurred" loss by a "clearly unjustifiable 8 To the extent that Reliford's affidavit, submitted by him to the Regional Director, p 2, creates the inference that he registered each day during a 3-month portion of this period , I reject the inference as being inconsistent with his oral testimony e Respondent's registration rosters were unavailable for the period from Many 1971 through April 1972 having been destroyed by fire I do not believe that the $5 ,000 earned by the Respondent's secretary- treasurer. Chuck Mack , as a casual employee between December and May can be used as a guideline A substantial amount of this work was the result of employers calling Mack for referral by name Mack is an articulate college graduate who between 1966 and 1970 served the Respondent as an elected business agent and in 1971 was a lobbyist for the Teamsters Union On the other hand. Reliford impressed me as an ordinary worker with very little education who has a difficult time communicating 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusal to take desirable new employment." Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 199-200 (1941). "The cases are unanimous," however, that the defense of willful loss of earnings is an "affirmative defense" and the burden is on the Respondent to prove the necessary facts. N.L.R.B. v. Mooney Aircraft, Inc., 366 F.2d 809, 813 (C.A. 5, 1966). "It was incumbent upon the Respondent to demonstrate by a fair preponderance of evidence that [Reliford] did not make reasonable efforts, when considered in the light of all the surrounding circumstances, to seek out work that might have been available to [him]," Cornwell Company, Inc., 171 NLRB 342, 343. Moreover, while the Respondent may show that Reliford failed to make "reasonable efforts to mitigate [his] loss of income . . . [Reliford is] held . . . only to rea- sonable exertions in this regard, not the highest standard of diligence." N.L.R.B. v. Arduini Manufacturing Corp., 394 F.2d 420, 423 (C.A. 1, 1968). "Success" is not the measure of the sufficiency of Reliford's search for interim employ- ment; the law "only requires an honest good faith effort." N.L.R.B. v. Cashman Auto Company and Red Cab Company, 223 F.2d 832, 836 (C.A. 1, 1955). Further, it is settled that any uncertainty is resolved against the wrongdoer, the Re- spondent, whose conduct made certainty impossible. N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 572-573, (C.A. 5, 1966). Tested by these principles, I believe that Reliford made a reasonable effort, in the cir- cumstances of this case, to secure employment. Reliford testified, in substance, that he did not regularly register at the Respondent's hiring hall for casual work for the reason that at certain times there was little work avail- able and, for the further reason that he would not register if he believed he would not be referred to a job the same day. Reliford, in this regard, testified that he had been informed by an agent of the Board that he was obliged to go around to as many places as possible to look for jobs. It is undisputed that, in an effort to secure employment, Reliford took the following steps: 11 (1) In December 1970, Reliford registered for work at the State of California employment office and from that date until about May 1972 went to this office twice a week to inquire about employment. During 1971 he was referred by the employment office to two jobs which he applied for unsuccessfully. (2) Reliford visited three local Teamsters unions which have jurisdiction over newspaper, construction, and auto- motive work and also visited two other local Teamsters unions with jurisdiction in the trucking industry. (3) During the backpay period, a total of about 102 weeks, Reliford throughout the period personally visited between 51 and 55 different employers, some more than once, where he applied for a job.1 Reliford did not limit his search for work to the georgraphical area immediately adja- cent to his home but went as far south as Compton, Califor- nia, and as far north as Eureka, California. In sum, as described above, I find that Reliford during 11 Reliford was handicapped in his quest for work due to the fact that about 4 months after his discharge his automobile was repossessed because of his inability to continue to make payments. 12 At the very least, Reliford visited 24 of these employers during 1971. In the first quarter, 7 , second quarter, 5; third quarter, 5 and fourth quarter, 7 the backpay period through various labor organizations, the State of California employment agency, and on his own made a reasonably diligent effort to obtain employment. There is no evidence that his efforts were not undertaken in good faith. I further find that the Respondent has failed to sustain the burden of establishing that Reliford willfully incurred a loss of interim earnings at any time during the backpay period. In concluding that Reliford's failure to regularly register at the Respondent's hiring facility does not constitute evidence, by itself, to establish a willfull loss of earnings, or otherwise mitigate Respondent's backpay liability, I have considered the nature of the employment involved. At the time he was unlawfully discharged, Reli- ford was employed as one of Sea-Land's senior employees with a guarantee of steady work. I do not believe that, upon being unlawfully discharged, he was obligated to immedi- ately register regularly at the Respondent's hiring facility and accept intermittent casual employment. Indeed, such a requirement would interfere with Reliford's effort to secure regular employment. For, as described above, in order to maintain his place on the registration list, Reliford was forced to remain at the hiring facility at least until noontime each day and under,certain situations all day. For these reasons, in my opinion, Reliford was entitled to forego casu- al employment through the Respondent's hiring facility and to seek out steady employment for at least a reasonable period of time. Reliford did this. After he failed to secure a steady job, Reliford commencing in about July 1972 regu- larly registered at the Respondent's hiring facility for casual work. Based on the foregoing, I am of the opinion that the claim of willful loss or lack of reasonable diligence in Reliford's case has not been affirmatively established by a preponderance of the evidence.13 IV. For the reasons described above, I have concluded that by failing to regularly register at the Respondent's hiring facility that Reliford did not incur a willful loss of earnings or engage in the type of conduct which establishes that he was not engaged in a diligent search for work or which enables the Respondent to otherwise mitigate its liability. But, the record does indicate that on certain dates Reliford was referred by the Respondent to certain employers, and his earnings from said employers were not included in the Backpay Specifications. Respondent introduced into the re- cord referral slips made out by, the Respondent's hiring hall dispatchers during the normal course of business, which 13 In arriving at this conclusion , I have considered that during the last quarter 1970 Rehford's search for work was limited to registering at Respondent's hiring facility on three occasions, applying for work with the U S. Post Office and registering for work with the State department of em- ployment. This, however, was the period of time immediately following his unlawful discharge and encompassed a limited period of about 35 working days. It is undisputed that during this period there were not many employees being referred through the hiring facility inasmuch as work was slow. This is vividly illustrated by the fact that although Reliford registered on Decem- ber 9 his name was not reached for a I-day job until December 21. Under these circumstances, and in the light of Reliford's efforts to secure work during the entire backpay period I am of the opinion that the evidence does not preponderate in favor of a showing that he failed to make a diligent search for work during the 35 working days immediately after his discharge, or was obligated to regularly register at Respondent's hiring facility. BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS 719 indicate that on specific dates Reliford was referred to spe- cific employers. These referral slips establish prima facie that Reliford in fact was referred and worked for the named employer for I day, the day he was referred. A comparison between the Regional Director's backpay computation (Resp. Exh. 3), upon which the backpay specification is based and the names of the employers to whom Reliford was referred and the dates of the referrals , establish that in the second, third, and fourth quarters of 1972 Reliford was referred to the employers named in Appendix A attached herein, on the dates aside of their respective names and that his earnings from these referrals were not included in the interim earnings contained in the backpay specification. 14 Accordingly, as detailed in Appendix A, Reliford's interim earnings should be increased in the second quarter of 1972 by $155.04; in the third quarter of 1972 by $480.64 and in the fourth quarter of 1972 by $300.005 At the request of the Respondent, the General Counsel after the close of the hearing, with the cooperation of Reli- ford, secured a copy of the income tax return filed by Reli- ford with the Internal Revenue Service for 1972.16 Reliford's income tax return shows earnings of $7,167 for 1972 where- as the Regional Director's backpay specification shows earnings of $6,282 .69 for 1972, a difference of $884.31. In the circumstances of this case, Reliford's income tax return contains more reliable evidence of his interim earnings for 1972 than the figures relied on by the Regional Director.17 Murray Ohio Manufacturing Co., 151 NLRB 1430. There is no way to exactly compute during which quarter in 1972 these additional interim earnings were earned . Under the circumstances, I shall divide by four the $884 of additional interim earnings , thereby, prorating the amount over the four quarters . This results in additional interim earnings of $221 for each quarter in 1972. Regarding the fourth quarter, inasmuch as Respondent's backpay liability was tolled Oc- tober 23, 1972, and there is no exact way to determine on this record what percentage of the additional interim earn- ings occurred between October 1 and 23, I have divided the additional $221 by 63, the number of work days in the fourth quarter excluding Christmas and Thanksgiving, and on this basis prorated the $221 over the 16-work days for which backpay is owned in the fourth quarter. This totals $56. In reviewing the Respondent's registration records, I have considered the possibility that on certain dates when Reliford's name was scratched off the registration lists,18 14 There is no indication that the above earnings were deliberately withheld from the Board by Reliford His records were destroyed by fire and it appears these were jobs he inadvertently omitted 15 These earnings are computed based on the testimony of Secretary-Trea- surer Mack (Tr 115-117) In this regard, I also note that Reliford, in effect, testified that he preferred truckdriver work and for the most part registered for truckdriver work 16 The parties entered into a posthearing stipulation agreeing to the receipt into evidence of Reliford 's 1972 income tax return Accordingly , the afore- said income tax return and stipulation are a part of the record 17 It is clear that Reliford, without the aid of a complete set of records, was supplying the Regional Director with only the best estimate of his interim earnings The record, however, does not establish fraudulent conduct or the deliberate withholding of interim earning information by Reliford 15 The parties stipulated that when Reliford's name was scratched from the registration lists it was because of either one or two occurrences He was either referred to a job or did not respond when his name was called out for under circumstances which indicate that he was not referred to a job, i.e., the absence of the issuance of a referral slip, that it should be presumed that Reliford in effect willfully rejected employment on those days and that the Respondent's backpay liability should be reduced to that extent. The Respondent's registration records indicate that during the backpay period this situation occurred on the following dates: Registration Scratched 11/30/70 12/1/70 12/9/70 12/21/70 12/14/70 12/21/70 4/15/71 4/23/71 4/21/71 4/26/71 5/30/72 5/30/72 9/21/72 9/22/72 10/18/72 10/18/72 10/19/72 10/19/72 I am of the opinion that a claim of willful loss has not been affirmatively established by a preponderance of the evidence by the failure of Reliford to respond when his name was called out for a job on the dates described above. There is no showing that Reliford willfully refused to take a job on those occasions. It is just as reasonable to presume that he was not present in the hiring hall when his name was called. As described earlier, it is necessary for a registrant to remain at the Respondent's hiring facility from about 5 a.m. to 12 noon and in the case of Reliford who signed the grocery, lumpers, and night dock lists to stay into the af- ternoon in order to make sure that his name was not called out and scratched from the registration lists because of his absence. For the reasons expressed earlier, I do not believe that Reliford was obligated to stay at Respondent's hiring facility for hours or days on end hoping to be referred to a casual job which would normally only last 1 day. It was more productive to do what Reliford testified the Board agent told him to do; namely, to ¢o around and personally seek out regular employment. Under the circumstances, and mindful of Respondent's burden and the fact that any un- certainty is to be resolved against it, I am of the opinion that Respondent has not sustained its burden of proving Reli- ford willfully incurred a loss of earnings on the above dates on which his name was scratched from the Respondent's registration lists. To recapitulate I have found that the Respondent's back- pay liability was tolled on October 23, 1972, and that certain sums of money should be added to Reliford's interim earn- ings in 1972. In all other respects, the Regional Director's backpay specification, as amended, properly defines the Respondent's liability. Because of the foregoing changes in the basis for computing interim earnings and gross backpay, I have recomputed Reliford's interim earnings, gross back- pay, and net backpay as follows. When the additional inter- im earnings found above for the first, second, and third quarters of 1972 are deducted from Reliford's gross back- pay for these periods it results in a total of $22,819 net a job 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD backpay owed Reliford from November 10, 1970 through the third quarter of 1972. The backpay period ends in the fourth quarter on October 23, 1972. It is not possible, how- ever, on this record to exactly compute the net backpay owed Reliford for this 23-day period. Under the circum- stances, I have divided Reliford's gross backpay and interim earnings for the entire fourth quarter 19 by 63, which is the number of workdays in the fourth quarter 1972 excluding Christmas and Thanksgiving, and prorated these amounts over the 16 workdays for which backpay is owed during the fourth quarter. This totals, in round numbers, gross back- pay $1,180 and interim earnings $565 to which must be added the additional interim earnings of $300 and $56 for this period previously found. Accordingly, Reliford's net backpay for the fourth quarter of 1972 is $259. On the basis of the foregoing, I recommend that Reliford be awarded backpay in the amount of $23,078. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: SUPPLEMENTAL ORDER 20 Respondent, Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives , shall pay James Reh- ford as net backpay the sum of $23,078 and the pension trust fund, $1,170, together with interest thereon at 6 per- cent per annum less any tax withholdings required by Fed- eral and state law. 19 Based upon the backpay specification, Reliford's gross backpay for this period is $4,644 and his interim earnings, $2,235 38 20 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 APPENDIX A 2d Quarter employer earnings 5/22/72-Inter Lyons 51.68 5/26/72-ONC 51.68 6/5/72-U.S. Cold Storage 51.68 155.04 3d Quarter employer earnings 7/3/72-Ohio Medical 60.08 7/6/72-Transcontinental 60.08 7/7/72-Marathon 60.08 7/10/72-SF Trucking 60.08 8/14/72-Transcontinental 60.08 8/16/72-Hunts Foods 60.08 8/ 17/72-Transcontinental 60.08 9/5/72-Central 60.08 480.64 4th Quarter employer earnings 10/2/72-Consolidated 60.08 10/3/72-Haslett 60.08 10/4/72-Secunty 60.08 10/9/72-Security 60.08 10/1 1/72-Simmons 60.08 3 0