Laredo Packing Company

LAREDO PACKING COMPANY Laredo Packing Company and Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, Local No. 171, a/w Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, AFL-CIO. Cases 23-CA-6444, 23-CA- 6520, 23-CA-6762, and 23-CA-6797 September 28, 1982 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On May 21, 1982, Administrative Law Judge Gerald A Wacknov issued the attached Supple- mental Decision in this proceeding. I Thereafter, the General Counsel and Respondent filed excep- tions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the ex- ceptions and briefs and has decided to affirm the rulings, findings, 2 and conclusions 3 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent. Laredo Pack- ing Company, Laredo, Texas, its officers, agents, successors, and assigns, shall pay to the employees involved in this proceeding as net backpay the I The Board's Decision and Order In this proceeding is reported at 241 NLRB 184 (1979q 2 Respondent has excepted to certain credibility findings made by the Administrative iaw Judge it is the Board's established policy not to overrule an administrative law judgc's resolutions with respect to credi- bility unless the clear preponderance of all of the rievant evidence con- vinces us th:lt the resolutions are incorrect Siandard Dr ' W'all IProucit. Inc.. 91 NIRB 544 (19t0), enfd 18i F,2d 362 (td Cir 1951) We have carefully examined the record and find no basis for reversing his findings 3 In adopting the Administratise La;ls Judge's recommended backpay award to Rodrigo Gaona. we rely on the credited testimony that Gaona went to many places to find work while he was unemployed from Janu- ary 24 to December 2. 1977 Accordingls. we find lno merit in Respond- ent's exceptions that Gaona be denied hackpay for this period. although it correctly states that the Administrative L au Judge failed to limit his analysis of Gaona's hackpay data sheelts to the applicable backpay period In adopting the Administrative l aw Judge's recommendation regard- ing Oscar Martinez. who was unable to he located at the time of the hearing on the backpay specification herein, we note that the General Counsel has stated that Martint/ has nisu been lo;ated and requllsl. remand of this position of the case for hearing Ac ordingly. Respond- ent's liability to Martinre, for hackp:ls may nosw hbe established il the manner sel forth in the Adminitr:atisc I as Ilidge's Deciion 264 NLRB No. 37 amounts set forth in the said recommended Order of the Administrative Law Judge. SUPPLEMENTAL DECISION STATEMENT OF I HE CA.SE GERA D A. WACKNOV, Administrative Law Judge: The hearing in this matter was held before me on Janu- ary 12 and 13, 1982, based on a backpay specification which issued on September 11, 1981, alleging that the discriminatees as found by the Board in Laredo Packing Company, 241 NLRB 184 (1979), enfd. 625 F.2d 593 (5th Cir. 1980), cert. denied 449 U.S. 1080 (1981). wXere enti- tled to various amounts of backpay as a result of their terminations in contravention of the Act. The parties were given a full opportunity to introduce evidence, to examine witnesses, and to submit post-hear- ing briefs. Timely briefs were filed by counsel for the General Counsel and counsel for Respondent. A. The Uninsurability Issue (Discharges of April 29. 1977) Eight truckdrivers were unlawfiully discharged on April 29, 1977. They are Abel HinoJosa, Juan Macias. Oscar Martinez, Samuel Medina, Jr., Alfredo Moncivais, Jose Escamilla, Jaime Galvan, and Gregorio Juarez. Re- spondent maintains that the backpay period for these em- ployees begins on April 29, 1977. the date of their dis- charge, and ends when they either refused Respondent's May 1977 offer of temporary reinstatement to positions other than truckdriving jobs pending their reinstatement as truckdrivers when they became insurable, or quit Re- spondent's employ after initially accepting interim em- ployment with Respondent. Counsel for the General Counsel argues, to the con- trary, that the backpay period for the aforementioned employees continued until December 1978, when a valid offer of reinstatement was admittedly made. In its detailed analysis of the issue, and in support of its finding of a discriminatory motivation for the dis- charge of the truckdrivers, the Board repeatedly empha- sized that Respondent acted precipitously in acceding to the demands of its insurance agent and carrier, and dis- charged the aforementioned drivers without first investi- gating, on a specific driver-by-driver basis. the insurance carrier's underlying rationale for excluding each driver from insurance coverage. Thus, the Board suggested that Respondent could have contacted the insurance agent or carrier to ascertain whether insurance coverage had been mistakenly denied, or if alternate insurance might have been available at additional cost with the same or an- other carrier, and even posited questions which Re- spondent could have asked concerning the matter. At the backpay hearing. Respondent presented unre- butted evidence showing that it swas. at the time of the April 1977 discharges, in an assigned high-risk insurance classification. and was then paving 180 percent of the customary premium for coverage; that there wxas not even a remote expectation that it could obtain insurance from another carrier at any cost: and moreover, even if 24s DECISIONS OF NATIONAL LABOR RELATIONS BOARD such insurance would have been available, the cost would have been prohibitive. However, Respondent presented no evidence showing that, at the time it offered temporary reinstatement to the employees in nondriving positions pending their insurabi- lity, it would have been unable to change the insurance carrier's decision with respect to any particular employee on the basis that the carrier had made a mistake in the denial of coverage. It would appear that evidence of this nature would have been obtainable through the testimo- ny of representatives of the insurance carrier or Re- spondent's insurance agent. Nor did Respondent attempt to prove that current evidence of this nature was un- available at the time of the backpay hearing. Such evidence would have shown whether, as of about May 31, 1977, Respondent could then have reem- ployed any of the employees as drivers. Assuming that the evidence would have supported Respondent's posi- tion that the drivers were indeed uninsurable, then the action it took in offering temporary reinstatement to the drivers in alternate positions would have tolled backpay as of that date. As no such evidence was presented, I find that the offers of reinstatement to alternate nondriv- ing positions did not toll Respondent's backpay obliga- tion. It is obvious, and there is no evidence to the contrary that work on the kill floor, which involves the slaughter- ing and processing of cattle, is clearly unlike the work of hauling cattle or delivering processed meat. Moreover, working on the loading dock, a job which one or two discriminatees were offered, does not appear to consti- tute work substantially similar to that of truckdriving. Nor does it matter, in my opinion, that some emloyees initially accepted the jobs on the kill floor and thereafter quit, while others refused the job in the first instance. Those employees who accepted the jobs were justified, I believe, in quitting after a period of time in order to seek interim employment more acceptable to them; similarly, those employees who refused such interim work were under no obligation to then accept Respondent's offer of employment substantially unlike that of truckdriving.' The fact that the kill floor or loading dock jobs were offered the discriminatees after a meeting with the union representative on or about May 5, 1977, and that the Union apparently acquiesced in this procedure, does not alter my conclusions. The precise nature of the agree- ment between Respondent and the Union is not con- tained in the record. Insofar as the record shows, the agreement was not intended to constitute a waiver of the employees' rights under the Act, but was merely de- signed to provide interim employment with Respondent should the employees desire it, pending a final determi- nation of the matter. Indeed, the Union pursued the matter thereafter by filing an appropriate charge with the Boaru, thus showing that the parties reached no mutually satisfactory resolution of the employees' entitlement to their rights under the Act. Thus, I find to be without merit Respondent's argument that the Union somehow waived the employees' rights under the Act. Additionally, many of the discriminatees wvere offered interim jobs at lesser rates of pas than they had earned as drivers. We now turn to the question of whether the employ- ees made a diligent search for work during the backpay period .2 Jose Escamilla accepted a job on the kill floor on May 17, 1977, and quit after 3 weeks, on or about June 7, 1977, because he considered himself to be a truckdriver. He did not find employment until February 23, 1978. During the 9-month interim period, according to the backpay data sheet submitted to the Regional Office3 by Escamilla, he sought work with only two employers, one in October and one in November 1977. He does not recall whether he sought work elsewhere and he testified that he talked to friends and other drivers about leads for jobs. He registered with the Texas Employment Com- mission (TEC) and received unemployment benefits, but does not recall whether he was referred to any job inter- views.4 Particularly because of his testimony that he could not recall whether he searched for work during the backpay period, I find that Escamilla did not make a diligent effort to find employment between the time he quit his job with Respondent on June 7, 1977, and the time he obtained work on February 23, 1978. Thus, his backpay period for the second quarter of 1977 begins on April 29, 1977, and extends until June 7, 1977, as follows: 2d Quarter 1977 (5 weeks only-Apr. 29 to June 7, 1977) 191.60 reg. hrs. x $2.30 72.50 OT hrs. x $3.45 Gross backpay Less interim earnings Net backpay $440.68 250.13 690.81 374.00 316.81 Escamilla is entitled no backpay between June 7, 1977, and February 23, 1978, when he began working for Wilmar Electronics. His backpay beginning the first quarter of 1978 is as follows: Ist Quarter 1978 (5 weeks only-Feb. 23 to March 31, 1978) 205.05 reg. hrs. x $3.25 100.35 OT hrs. x $4.875 Gross backpay Less interim earning Net backpay S 666.41 489.21 1,155.62 582.00 573.62 2 See, generally, fighiL., Incorporated. 250 N RB 54(1 (1980). fior a discussion of applicable criteria It should he noted that Resporndent does not conitend that the methods utilhzed ill computig gross backpay, or the gross backpa, amounts cotntained in the backpay specification, are incor- rect :' All the discriitliatees herein were sent "Backpa' Data Sheets" each quarter. and were required to c:omplete them and return them to the Re- gional Office. Ihe backpay data sheets contain, inter ulia. a section headed "Efforts to Seek Emploment Since Discharge." 4 Regarding the weight to be gisen to registration with a Gorernmenl emplo yment office vis-a -is atl employee's search for olterinl emplo> ment. see Rogers Furniture Sahuli. Inc.. 213 NLRIH 834 (1974), wherein the Board at fit 5 states that such registratiotn is onl' one facr I to be weighed in determining whether ai etmployee's search for interitl em- ployment has been reasonably diligent 246 LAREDO PACKING COMPANY Thereafter, Escamilla's backpay is as contained in the backpay specification. Thus, Escamilla's total net back- pay is $4,626.43. Abel Hinojosa was offered, and declined, a job on the loading dock at $2.30 an hour about 2 weeks following his discharge. Hinojosa testified that he would have at- tempted this job at the rate of $3.25 per hour which is what he earned as a truckdriver, even though he had a permanent disability which prevented him from walking or standing for extended lengths of time. However, pri- marily because he would have earned considerably less than truckdrivers' wages, he decided to seek work else- where. Hinojosa testified that he "tried everywhere" to secure a driving position, but that his poor driving record, par- ticularly an inordinate number of speeding violations, precluded him from obtaining employment. He was hired by A. M. Vogel Company on July 16, 1977, driving a dump truck, and worked until about September 3, 1977, when he was laid off. He registered with the TEC, but was not referred to interviews. He continued looking for a truckdriving job, and recalled applying with three or four companies, but testified that he eventually "just gave up hopes that I was going to get a driving job" be- cause of his driving record. Hinojosa testified that he did not at any time look for a nondriving job. I conclude that Hinojosa did not make a diligent at- tempt to find work during the 13 months between Sep- tember 3, 1977, when he was laid off by A. M. Vogel Company, and apparently about October 1, 1978, when he began working for Terry Cattle Company as a truck- driver. Hinojosa testified that he was clearly aware that his driving record virtually precluded him from obtain- ing employment as a truckdriver. Although he testified that he did not attempt to seek a nondriving job because of his physical condition, he also testified that he would have been willing to undertake the loading dock job of- fered him by Respondent had it paid enough. Thus, it ap- pears reasonable to conclude that Hinojosa should have at least attempted to seek and interview for jobs other than truckdriving, and that truckdriving was not the only work he was capable of performing. Moreover, as Hinojosa virtually admitted, he made only limited efforts to secure a truckdriving job after September 3, 1977, due to his belief that such work, given the nature of his driv- ing record, was unobtainable. Under the foregoing cir- cumstances, I believe that Respondent's backpay liability should be tolled during the 13 months Hinojosa remained idle. I thus conclude that Respondent's backpay liability for Hinojosa is as follows: 3d Quarter 1977 (9 weeks only-July I to Sept. 3, 1977) 386.73 reg. hrs. x $3.25 213.48 OT hrs. x $4.875 Gross backpay Less interim earnings Net backpay $1,256.87 1,040.72 2,297.59 1,764.00 533.59 He is entitled to no backpay between September 3, 1977, and October 1. 1978. Thereafter, Hinojosa's backpay is as contained in the backpay specification. Thus, his total backpay is $2,698.59. Gregorio Juarez, Jr., was offered and accepted a job on the kill floor on or about May 30, 1977. On June 13, 1977, he requested lighter work because he was not used to the kill floor. Upon being told there was no other job available, he advised Respondent that he was quitting and would return as a truckdriver when his driving record became acceptable to the insurance carrier. Juarez registered with the TEC but was not referred to any job interviews. He did not seek work prior to en- tering the CETA program, apparently in or about August 1977. Thereafter, he was sent by CETA to possi- bly three or four employers to seek work, but was unem- ployed until April 7, 1978, when he started working under the CETA program for the Laredo Independent School District Warehouse. I conclude that during the 10 months between June 13, 1977, and April 7, 1978, Juarez did not make a diligent effort to seek work. Thus, while his testimony is vague, he relied solely upon the TEC and/or CETA to find him a job, and was sent, apparently by CETA, to only three or four places. Insofar as the record reflects, Juarez did not seek work independently of these sources, and I find that his efforts to find employment, constituting only three or four attempts within a 10-month period, are in- sufficient. His backpay is calculated as follows: 2d Quarter 1977 (6 weeks only-Apr. 29 to June 13, 1977) 229.92 reg. hrs. x $3.25 87 OT hrs. x $4.875 Gross backpay Less interim earning Net backpay S 747.24 424.13 1,171.37 577.00 594.37 Juarez is entitled to no backpay between June 13, 1977, and April 7, 1978. 2d Quarter 1978 (12 weeks only-Apr. 7 to June 30, 1978) 482.64 reg. hrs. x $3.25 $1,568.58 211.92 OT hrs. x $4.875 1,033.11 Gross backpay 2,601.69 Less interim earnings 1,092.00 Net backpay 1,509.69 Thereafter, Juarez' backpay is as contained in the back- pay specification. Thus, his total net backpay, including vacation pay and sick pay, is $5,003.06. Jaime Galvan, Jr., went to work on the kill floor about 2 weeks after his April 29, 1977, discharge. He quit this job on June 27, 1977, and was thereafter employed throughout the backpay period by several employers. He is owed the amount specified in the backpay speci- fication; namely, $3,107. Alfredo Moncivais was offered a job in the plant by Re- spondent, but he declined the offer as he preferred to be self-employed operating a dump truck on a full-time basis. While employed by Respondent, he made $4,000 to $5,000 per year hauling dirt on Saturdays and Sundays. 247 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moncivais testified that following his discharge his rev- enues from the dump truck business gradually increased, so that, beginning about April 1978, he commenced earn- ing about $20,000 per year. The data contained in the backpay specification shows that, during the 12-month period immediately following his discharge, Moncivais earned about $6,500 from his full-time hauling business. This seems improbable, due to the fact that he admitted earning between $4,000 to $5,000 per year performing this work only on Saturdays and Sundays while working for Respondent. Moreover, the figures contained in the backpay specification are in- herently implausible, as it seems highly unlikely that his earnings would have been identical during the third and fourth quarters of 1977 ($1,618 for each quarter), and would only differ by $1 during the first, second, and third quarters of 1978 ($2,881, $2,882, and $2,881, respec- tively). Further, the backpay specification does not show that, beginning in or about April 1978, Moncivais began earning about $20,000 per year, as he testified, but rather indicates earnings of only about $12,000 per year. Counsel for the General Counsel made a request at the hearing, and reiterated in his brief, that the backpay specification should be amended to delete substantial in- terim earnings as a result of Moncivais' testimony that he would have earned between $4,000 and $5,000 in his dump truck business while working for Respondent, and that such income should not be considered as interim earnings. See S. E. Nichols of Ohio, Inc., 258 NLRB I (1981). Under the unclear and seemingly contradictory circumstances herein, and because the General Counsel's request is not supported by an amended backpay specifi- cation clearly stating the amounts to which Moncivais is allegedly entitled, I shall deny the request to amend the backpay specification, and shall award Moncivais the amount of backpay claimed; namely, $2,721. Juan Macias denied that he was offered another job by Respondent after his April 29, 1977, discharge. However, it is clear, and I find, that Respondent attempted to offer Macias employment in or about May 1977, to a job other than truckdriving. It appears unnecessary, under the cir- cumstances, to determine whether this offer was commu- nicated to Macias through his father whom, I find, Re- spondent contacted as a result of Respondent's inability to contact Macias directly. Macias registered with the TEC, and remained unem- ployed until August 20, 1978, with the exception that during the first quarter of 1978 he earned $252 perform- ing "misc. truckdriving for cash," according to the back- pay specification. Regarding his search for work, Macias' testimony is exceedingly vague. The backpay data sheets he submitted to the Regional Office show that he sought work with only about seven employers within a 15- month period. However, Macias testified that he also looked elsewhere for a job. Macias acknowledged that his excessive number of speeding violations caused prospective employers to reject his applications for work, and it appears that he did not apply for nondriving positions. I conclude that during the 15-month period between April 29, 1977, and August 20, 1978, Macias did not make a diligent effort to seek interim employment, and that he is owed no back- pay during this period. Thereafter, his backpay is as fol- lows: 3d Quarter 1978 (6 weeks only-Aug. 20 to Sept. 30, 1978) 246.30 reg. hrs. x $3.25 81.66 OT hrs. x $4.875 Gross backpay Less interim earnings Net backpay $ 800.48 398.09 1,198.57 877.00 321.57 I find that the total net backpay owed Macias is $581.57. This amount includes $321.57 for the third quar- ter of 1978, plus vacation pay for 1979 and 1980, totaling $260, as contained in the backpay specification. Samuel Medina, Jr., was offered a job on the kill floor in late May 1977, but declined the offer. He testified that he looked for "a lot of jobs" following his April 29, 1977, discharge. A review of the backpay data sheets he submitted to the Regional Office during this backpay period shows that Medina applied for work with about eight different employers, apparently during the first two quarters following his termination. Thereafter, for the re- mainder of the backpay period, some 15 months, the backpay data sheets indicate that Medina contacted only one new employer he had not previously contacted. Moreover, Medina was able to recall the name of only one other company, which did not appear on the back- pay data sheet, where he claimed he sought work during the interim period. He registered with the TEC, but was never sent to interviews, and earned $66 during the second quarter of 1978. I conclude from the foregoing that Medina made a reasonable search for work during the first two quarters of his backpay period, but that he did not make a dili- gent effort to look for work following the third quarter of 1977. 5 I therefore find that he is owed $3,946 for the first and second quarters of 1977, plus $260 vacation pay in 1979 and 1980, as contained in the backpay specifica- tion. Thus, his total net backpay is $4,206. Oscar Martinez was subpoenaed by Respondent, by certified mail, return receipt requested, to appear at the hearing. His address was obtained by Respondent from the Regional Office, and neither a return receipt nor the subpoena had been returned to Respondent by the post office at the time of the hearing. Martinez did not appear at the hearing, and counsel for the General Counsel rep- resented that his efforts to locate Martinez had been un- successful and that, with the exception of one backpay data sheet received from Martinez in June 1978, the Re- gional Office has not heard from him. The backpay specification claims total net backpay for Martinez in the amount of $14,408, based on the assump- tion, unverified by Martinez, that he had been unem- ployed during the entire backpay period. Respondent takes the position that Martinez' name should be stricken from the backpay specification. Coun- b As a result of this conclusion, I deem it unnecessary to decide wheth- er the evidence supports Respondent's contention that Medina willfully concealed interim earnings as a cattle hauler during some unspecified time within the backpay period. 248 LAREDO PACKING COMPANY sel for the General Counsel maintains that Respondent should remit the amount set forth in the backpay specifi- cation, and that it should be held in escrow pending fur- ther efforts to locate Martinez. Whatever backpay may be owed Martinez is entirely speculative at this point. Under the circumstances, I con- clude it reasonable that an amount of $3,000 be remitted to the Regional Director for Region 23 to be placed in escrow for Martinez for a period not exceeding I year from the date of this Supplemental Decision, and that, upon locating Martinez, Respondent be given an oppor- tunity to examine him regarding the amount of its back- pay liability. See No Ho's Unique Clothing Warehouse, Inc., 246 NLRB 537 (1979). Thereafter, should there be no mutually agreeable resolution of the matter, the Re- gional Director may issue a supplemental backpay speci- fication, and Martinez' entitlement to backpay will be re- solved at a supplemental hearing. B. The Additional Discriminarees Gerard Moncivais was discharged on December 26, 1976. He testified that upon his discharge he proceeded to make an active search for work. While he only sub- mitted one backpay data sheet, which does not list any of the places he looked for work prior to obtaining em- ployment on November 14, 1977, with Crystal Invest- ments, Inc., he was readily able to recall nine specific employers to whom he applied for work, and credibly testified that there were many others. Indeed, it appears that his recollection was not exhausted and that he would have been able to remember the names of other companies with whom he sought work had he been given the opportunity to testify further. He registered with the TEC, but was not referred to jobs, and was un- employed for a 10-month period. Following his initial employment with Crystal Investments, Inc., he has been continuously employed by various employers to the present date. I conclude that Moncivais made a diligent effort to seek interim employment, and credit his testimony that he actively sought work during the backpay period. He is therefore entitled to the amount set forth in the back- pay specification; namely, $11,538. Mario Moncivais was discharged in April 1977. He was a truckdriver and delivered meat. During the school year he worked from 15 to 36 hours per week, primarily on Saturdays. He had been working as a part-time employee for Respondent for 10 to 12 years, and worked full time during the summers. He graduated from school in May 1977, and was thereafter available for full-time employ- ment. In June 1977, following his discharge, he began working for Martin Fuels as a truckdriver, and thereafter had substantially steady employment with various em- ployers throughout his backpay period, which ended during the first quarter of 1981. I find that, as contended by the General Counsel, had Moncivais not been discharged he would have been re- tained by Respondent as a full-time employee upon his graduation from school. The record contains no evidence that Respondent did not intend or would have been unable to employ him on a regular full-time basis upon his graduation, and any uncertainty in this regard is to be resolved against the respondent as the wrongdoer. A 'L.R.B. v. Miami Coca-Cola Bottling Company. 360 F.2d 569, 575-576 (5th Cir. 1966); Southern Household Products Company, Inc., 203 NLRB 881 (1973). There- fore, Moncivais is entitled to the amount of backpay con- tained in the backpay specification; namely, $4,511. Ignacio Santos was discharged on January 17, 1977. He injured his back at work in 1976, and his unlawful 1977 discharge occurred shortly after returning to work. In June 1977, he received a workmen's compensation award for the aformentioned injury. Santos registered with the TEC, but remained unem- ployed until November or December 1977, when he began working for the Webb County Manpower Pro- gram. Thereafter, he was employed throughout the back- pay period. Santos testified that he went to many meat markets looking for work and, although he could name only four specific companies, I credit his testimony and find that he made a diligent search for work during the 10 months he was unemployed. Respondent did not seek to introduce Santos' backpay data sheets into evidence, nor is there evidence that Santos failed to submit these forms. Moreover, it is likely that his back injury may have been a detriment to obtaining other work. Contrary to the position of Respondent, I find that Santos' inadvertent failure to report the sum of $70, which he earned during I week, slaughtering animals for Heights Meat Market, does not constitute fraudulent con- cealment of interim earnings. There is no evidence that Santos at any time attempted to conceal this fact, and indeed he, rather than Respondent, raised the matter at the backpay hearing. I find that Santos is owed the amount contained in the backpay specification, less the $70 interim earnings from Heights Meat Market. He is thus owed $11,303. Rodrigo Gaona was terminated on January 24, 1977. Upon his discharge, he registered with the TEC. He was unemployed until about December 2, 1977, and thereaf- ter was employed throughout the backpay period on a fairly regular basis. Gaona testified that he had difficulty finding a job because of his inability to speak English. He was unable to recall where he went to seek work, but testified that he went to many places. The backpay data sheets he submitted list eight companies where he ap- plied for work. While he had interim earnings consisting of I or 2 hours of work at a packing plant every now and then, and was paid by personal check, he does not remember how much he earned. I conclude that Gaona made a sufficiently diligent effort to obtain interim employment during the 10 months he was unemployed. I credit his testimony that he went to many places to find work and, although he was unable to independently identify them, the backpay data sheets corroborate his testimony. I do not find merit to Respondent's argument that, because Gaona failed to report certain minimal interim earnings of $5 or $10 on various occasions, he is therefore entitled to no backpay. Moreover, such amounts appear to be de minimis, and there is no accurate estimates of such earnings which would warrant modification of the amount set forth in the backpay specification. I conclude that he is entitled 249 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the amount contained in the backpay specification; namely, $10,627. Daniel (Rodolfo) Mendoza was discharged on or about January 3, 1977. He registered with the TEC, and was sent to numerous job interviews. He also looked for jobs on his own. He became employed by Early Electric Company on May 6, 1977, and worked until he was laid off in October 1977. Mendoza was unsuccessful in ob- taining work until he was recalled by Early Electric Company on April 13, 1978. Thereafter, he had regular employment throughout the remainder of the packpay period. I find that Mendoza made a reasonably diligent effort to seek interim employment during the two periods, each of about 5 months' duration, he was unemployed. While he was unable to recall the names of all the various places he applied for work, he did name some seven or eight specific companies, and I credit his testimony that there were others he was unable to recall at the time of the hearing. He is owed the amount set forth in the back- pay specification; namely, $6,055. Felix Rodriguez was discharged in January 1977. He went to the unemployment office every month, and was sent by the TEC to various companies to apply for work. He testified that he also looked for employment on his own. Rodriguez' backpay data sheet shows that he applied for work with four companies in March 1977, and in addition he recalled applying at one other compa- ny. He went to work for McDonald's Restaurant on August 10, 1977, and worked there cooking hamburgers for about 3 weeks at the rate of $2.45 per hour (he was apparently earning $2.75 while working on the loading dock for Respondent). He quit McDonald's in September 1977 to seek a better paying job, but did not find other employment until February 1978. He did not reapply with the TEC after quitting his job at McDonald's, and, although he testified that he looked for work, he was unable to recall where he sought employment. In Febru- ary 1978, he obtained a job with San Antonio Specialty Services, Inc., and thereafter he was employed on a fairly regular basis by various employers throughout the backpay period. I find that Rodriguez made a sufficient effort to seek work prior to his employment at McDonald's. However, in agreement with Respondent's contention, I conclude that it was unreasonable for Rodriguez to quit his em- ployment at McDonald's. Rodriguez testified that he was working only about 30 hours per week at McDonald's, and thus it would appear that he had sufficient time to seek other work during his off-duty hours. Moreover, Rodriguez' unconvincing testimony that he sought work thereafter, unsupported by backpay data sheets which would corroborate such testimony, causes me to con- clude that he did not make the necessary diligent effort to seek employment between September 1, 1977, and about February 1, 1978, when he went to work for San Antonio Specialty Services, Inc. His backpay is modified as follows: 3d Quarter 1977 (9 weeks only-July 1 to Sept. 1, 1977) 63.63 OT hrs. x $4.125 Gross backpay Less interim earnings Net backpay 262.47 1,034.92 250.00 784.92 Between September 1, 1977, and February 1, 1978, he is entitled to no backpay. Ist Quarter 1978 (9 weeks only-February I to March 31, 1978) 299.34 reg. hrs. x $3.00 5.76 OT hrs. x $4.50 Gross backpay Less interim earnings Net backpay $898.02 25.92 923.94 874.00 49.94 Thereafter, Rodriguez' backpay is as appears in the back- pay specification. Thus, his total net backpay is $5,360.86. Manuel Olivares, Jr. In the absence of any contention to the contrary, I find that Olivares is owed the amount of $80.73, as contained in the backpay specification. Jose Villarreal. In the absence of any contention to the contrary, I find that Villarreal is owed $175, as contained in the backpay specification. ORDER a The Respondent, Laredo Packing Company, Laredo, Texas, its officers, agents, successors, and assigns, shall: 1. Pay to each discriminatee named below the sum set opposite his name, together with interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). Name Jose Escamilla Abel Hinojosa Gregorio Juarez, Jr. Jaime Galvan, Jr. Alfredo Moncivais Juan Macias Samuel Medina, Jr. Gerard Moncivais Mario Moncivais Ignacio Santos Rodrigo Gaona Daniel (Rodolfo) Mendoza Felix Rodriguez Manual Olivares, Jr. Jose Villarreal Net Backpay $4,626.43 2,698.59 5,003.06 3,107.00 2,721.00 581.57 4,206.00 11,538.00 4,511.00 11,303.00 10,627.00 6,055.00 5,360.86 80.73 175.00 2. Remit the amount of $3,000 to the Regional Direc- tor for Region 23, said amount to be held in escrow for Oscar Martinez pending further efforts to locate him and accurately determine backpay. 6 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National L abor Relations Board, the find- ings, 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 vvaised for all purposes 250 $ 772.45 280.89 reg. hrs. x $2.75