Electrical Workers Ibew Local 453 (Sachs Electric)

ELECTRICAL WORKERS IBEW LOCAL 453 (SACHS- 'ELECTRIC) International Brotherhood of Electrical Workers, Local 453 (Sachs Electric Co.) and Donald W. Jones. Case 17-CB-1921 18 December 1985 SUPPLEMENTAL ]DECISION AND ORDER IBY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 23 February 1984 Administrative Law Judge Martin J. Linsky issued the attached decision. The Respondent filed exceptions and a supporting brief, the Charging Party filed cross-exceptions and a supporting brief to which the Respondent filed a reply brief, and the General Counsel filed a reply brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings,2 and conclusions and to adopt the recommended Order as modified. The judge concluded that Samuel Miller is enti- tled to backpay through 1 May 1978, the date he refused a referral from the Respondent's hiring hall. The Respondent contends in its exceptions that Miller declined an earlier opportunity to work, ' We agree with the judge's dental of the Charging Party 's motion for allowance of fees to be paid from fund, created for discrimmatees in this action . The motion by the Charging Party , an attorney, constitutes a re- quest that the Board enforce an agreement between it and the discrimina- tees, who are its clients, regarding the payment of legal fees While the Board has, in circumstances not present here , ordered one party to pay an opposing party 's legal fees, the performance of a promise between an attorney and client is not within the Board's province 2 The Respondent excepts to the judge's finding that Larry Nolen's quitting of his interim employment at Carl Pons Electric did not consti- tute a failure to mitigate damages We find no merit in this exception It is well settled that the General Counsel's burden is to establish the gross amounts of backpay due, and that the Respondent then has the burden to establish facts which mitigate its liability See Kansas Refined Helium Co., 252 NLRB 1156 ( 1980), and cases cited therein. It is equally well settled that a discriminatee does not incur a willful loss of earnings by quitting an interim job for a justifiable reason East Texas Steel Castings Co, 116 NLRB 1336 ( 1956), Mastro Plastics Corp , 136 NLRB 1342, 1349-1350 (1962), enfd , in pertinent part 354 F 2d 170 (2d Cir 1965), cert denied 384 U S. 972 (1966), Florida Steel Corp , 234 NLRB 1089 ( 1978) Further, where there are uncertainties or ambiguities in calculating backpay, doubts are resolved in favor of the backpay claimant rather than the Re- spondent who committed the unfair labor practices United Air Craft Corp, 204 NLRB 1068 (1973) The record reveals that in late April 1978 Notion walked off his interim job at Pons , along with over 100 other elec- tricians, as part of a labor dispute It appears from the recoid that the walkout was immediately followed by layoffs. As noted by the judge, there was no evidence that the walkout was not protected concerted ac- tivity and Nolon returned to the union hall for the purpose of signing its referral books . There is no contention by the Respondent that Nolon re- moved himself from the job market by participating in the walkout Under these circumstances, we cannot say that Nolon's participation in the walkout, which resulted in the termination of his employment, was unreasonable or that he was engaged in a "willful" loss of employment Florida Steel, supra 1129 in March 1978. We find `1xrehrin `(he Respondent's position. Thus, Miller testified on, direct examina- tion that he was asked by the Respondent' in March 1978 if he could take a job at "Fart Leonard Wood and he replied that he was without transportation. Although he later testified there was no specific re- ferral offer made to him, on cross-examination Miller testified that he thought he had refused a job referral to Fort Leonard Wood around 21 March 1978. The judge's decision does not discuss the March 1978 referral. In view of the judge's finding that all discriminatees registered on the Re- spondent's referral books would have been referred out by 21 March 1978 and that Miller was regis- tered for referral in March, and in view of the fact that Miller refused the 1 May referral for reasons which existed in March (lack of transportation), we find the record establishes that Miller first declined an opportunity to work about 21 March, which tolled the Respondent's backpay liability to him at the time. Recalculation of the dollar amounts in- volved produces a total backpay figure of $7931.30, which figure consists of the following: net back- pay, $6929.18; pension $302.25; health and welfare contributions $284.12; vacation $415.75. We will modify the judge's recommended Order according- ly.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, International Brotherhood of Electrical Workers, Local 453, Springfield, Missouri, its offi- cers, agents, and representatives, shall take the action set forth in the Order as modified. Substitute the following for paragraph 3. "3. The Respondent, its officers, agents, and rep- resentatives, shall satisfy its obligation to make whole Samuel Miller for backpay due him by paying him net backpay in the amount of $7931.30, plus interest thereon accrued to date of payment, computed in the manner prescribed in Florida Steel Corp., supra, minus any tax withholding required by Federal or state law." 3 We find no merit in the Respondent's exception that Miller's backpay claims be rejected because he willfully concealed interim earnings re- ceived from two employers, Southern Sun and Roper Electric. Miller's employment at Southern Sun in May 1979 was not concealed, but was revealed in a pretrial affidavit he proffered to the Board. Further, the record shows that Miller's employment at Roper apparently was first re- vealed during general questioning on cross-examination regarding interim employment during the backpay period when Miller volunteered that he was employed there I or 2 days in December 1977, for which the judge reduced the net backpay amount. We find no basis here to conclude that Miller willfully concealed his brief employment at Roper Lyn R. Buckley, Esq., for the General Counsel. 277 NLRB No. 122 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benjamin J. Francka, Esq.,` of Springfield, Missouri, for the Respondent. Donald W. Jones, Esq., of Springfield, Missouri, for the Charging Party. SUPPLEMENTAL DECISION MARTIN J. LINSKY, Administrative Law Judge. In a backpay specification, dated March 4, 1983, the Regional Director for Region 17 alleged that Local 453, Interna- tional Brotherhood of Electrical Workers (Respondent) had failed to pay backpay due under Order of the Na- tional Labor Relations Board, 248 NLRB 669 (1980), which was affirmed by the United States Court of Ap- peals for the Eighth Circuit in 668 F.2d-991 (1982). Trial was held before me on August 29-31 and September 1, 1983, in Springfield, Missouri. I. JURISDICTION Respondent appeared by counsel at the time and place prescribed by the Regional Director for the trial. Fol- lowing the trial, briefs were filed by the General Coun- sel, Respondent, and the Charging Party. II. BACKGROUND On March 26, 1980, the Board found, inter alia, that Respondent had violated the Act by unlawfully request- ing "travelers" to quit their jobs at the Sachs Electric Co. site in Fort Leonard Wood, Missouri, in favor of members of Respondent. "Travelers" are members of locals of the International Brotherhood of Electrical Workers other than Local 453 who were referred to the Sachs Electric Co. job at Fort -Leonard Wood from Local 453's hiring hall. The Board found and the court of appeals agreed that such "requests" to a traveler to quit his job in favor of the members of the Local violat- ed the Act because it unlawfully discriminated against employees on the basis of union membership Such re- quests, the Board found, were inherently coercive. The Board and court ordered that Bill Rodman and Larry J. Nolon, two travelers who were requested to quit by Re- spondent and did so, and any other similarly affected em- ployees be made whole for any loss of earnings they may have suffered as a result thereof. Respondent failed to do so and, on March 4, 1983, the Regional Director for Region 17 issued the backpay specification which was the subject of these proceedings. In the backpay specifi- cation, as amended, six other "travelers" are alleged to have been similarly affected by Respondent's unlawful request that they quit the Sachs job at Fort Leonard Wood in favor of members of Respondent, i.e., Samuel Miller, Harold Calk, Dennis Jolley, Elmer Murray, Charles N. Robinson, and Damon Rutledge. All six were members of IBEW Locals other than Local 453 and all six had been referred to the Sachs job at Fort Leonard Wood by Respondent's hiring hall. All six plus Rodman and Nolon were journeymen wiremen. III. ISSUES The issues to be decided in this case are how much are Rodman and Nolon entitled to receive to make them whole and are any of the six other travelers properly named as discriminatees and, if so, how much are they entitled to receive to make them whole. The Charging Party is an attorney and has filed a pleading entitled "Charging Party's Motion For Allow- ance of Fees to be Paid From Funds Created For Discri- minatees in This Action." The gravamen of the motion is that if the Charging Party had not filed a charge on behalf of both his original clients, Rodman and Nolon, as well as other similarly affected travelers and, if he had not filed exceptions to the original administrative law judge's decision limiting backpay to Rodman and Nolon, then the similarly affected travelers, six of whom are named in the backpay specification, would not be enti- tled to any backpay. Therefore, according to the Charg- ing Party, it is only just and proper that a fund be cre- ated consisting of all moneys ordered to be paid to the discriminatees and that the Charging Party be paid one- half of what each discriminatee is entitled to receive and the remainder disbursed to the discriminatees. Seven of the eight discriminatees, i.e., Rodman, Nolon, Miller, Calk, Jolley, Robinson, and Rutledge, have filed affida- vits in which they state that they have no objection to the granting of the Charging Party's motion. The Gener- al Counsel takes no position on the motion. Respondent opposes the motion. The eighth discriminatee, Elmer Murray, is deceased. Neither he nor his widow, Jean Murray, who testified at the trial of the backpay specifi- cation, have taken a position on the motion. It is recom- mended that the motion be denied. The Charging Party's motion is without precedent. No persuasive authority has been presented to justify the granting of this extraordi- nary motion . This is not a class action. Neither the trial of the original unfair labor practices nor this trial of the backpay specification are class actions. Seven of the eight discriminatees (all except Murray) in'their affidavits in support of the Charging Party's motion state that the Charging Party is their attorney for these proceedings. The Charging Party should look to his clients for the payment of his legal fees and not employ the Board or its agents as a collection agency. There is no dispute concerning the applicable wage rate In determining the hours worked per week the General Counsel's position is adopted. The formula of using the number of hours worked by a substantial number of journeymen wiremen to determine the number of hours the discriminatee would have worked is a better formula than the average number of hours worked per week by the journeymen wiremen on the job because the latter method fails to properly account for employees who were newly hired during the week, quit, were off sick, or absent for some other reason. The back- pay figure represents the net difference between the earnings the discriminatee would have received, less the interim earnings, calculated quarterly. Expenses incurred in connection with interim employment which would not have been incurred but for the discrimination were, of course, used to reduce the amount of interim earnings. All eight discriminatees were laid off from the Sachs Electric Co. payroll for job 314 at Fort Leonard Wood, Missouri. Job 314 was the so-called enlisted men's bar- racks job. Sachs Electric Co. was also employing jour- ELECTRICAL WORKERS IBEW LOCAL 453 (SACHS ELECTRIC) neymen electricians on job 717, the so-called surveillance job. The record is unclear whether an employee would have automatically transferred from 314 to 717, or vice versa, if work was light at one but not at the other, or if an employee would have been referred from one or the other only by going back through the hiring hall. It is rioted that Bill Rodman in transferring from the barracks job to the surveillance job went back through the hiring hall. There was,' however, a short hiatus of several days between jobs for him The backpay period commences on the discriminatees being "requested" by Respondent to quit their jobs in favor of local members. The backpay period commenced on December 1, 1977. The General Counsel and Charg- ing Party contend that the backpay period should end on July 1, 1979, at which time the number of a journeymen electricians working at Sachs Electric Co. two jobsites (jobs 314 and 717) fell below eight in number. 'Their theory is that it should be presumed that the last eight electricians to be laid off from the job would be the eighth discriminatee listed in the backpay specification. Their theory is defective for several reasons. First, it ig- nores the reality of the coniruction business. Like most construction jobs, this one also had a large turnover, e.g., every single journeyman electrician who was either kept on the job after the travelers were "asked to leave" or who replaced the travelers who "quit" were themselves off the job by the end of June 1978 as a result of reduc- tion in force or voluntary quits. Throughout the project, bad weather or other factors resulted in layoffs. It is un- realistic to suggest that these eight discriminatees were so elite that they would not have left the job at some point prior to July 1979. Second, approximately 32 trav- elers quit at Respondent's request in December 1977. Only eight are pressing claims for backpay. It strains cre- dulity to suggest those eight discriminatees would be the last eight employees on the job. It is more realistic to find that these eight named discriminatees may have worked up to the point where the complement of jour- neymen electricians fell below 32, rather than 8. All 8 left job 314 in December 1977 and, according to payroll records, for only 3 weeks in October 1978 were there as many as 32 electricians on job 314 and for only 1' week in February 1979 were there more than 32, i.e., 34 (G.C. Exhs. 3 and 4). On job 717 payroll records were intro- duced only for the period of April 1978 to January 1980 and at no time did as many of 32 work at that job'' (G.C. Exh. 5). The total number of journeymen electricians working on both job 314 (EPvl barracks job) and job 717 (surveillance job) did not total 32 in number until the week ending August 5, 1978. The General Counsel relies on Fruin-Colnon Corp,, 244 NLRB 510 (1979), which tends to support her position. However, this case is factually distinguishable from the facts in Fruin-Colnon Corp. In the instant case we had 32 travelers leave the Sachs job in December 1977 but only Hare pressing claims. To apply the principle of Fruin- 1131 Colnon Corp. to the case would .unjustly enrich the eight discriminatees. For example, seven of the eight dropped their claims for one reason or another; the last discrimin- atee should not be entitled to have his backpay period extend to a time when the number of employees left on both jobs fell below one in number. Credible evidence at trial reflects that as of March 21, 1978, all journeymen electricians current on book I and book II had been referred out by Respondent's hiring hall. Any of the discriminatees current on the books at that time would have been referred out by Respondent's hiring hall thereby terminating the backpay period. The Board had found that Rodman and Nolon were unlaw- fully refused permission to sign book I and were not per- mitted to sign book II under protest. It was not until July 5, 1978, that they were permitted! to sign book I. Accordingly, the backpay period ends for Rodman and Nolon when they secured gainful employment after July 5, 1978. The backpay period ends for the other six discri- minatees when they obtained gainful employment subse- quent to March 21, 1978. If they had been current on book II as of March 21, 1978, they would have been re- ferred out and quite probably back to Sachs Electric at Ft. Leonard Wood. It will not necessarily terminate on March 21, 1978, since the discriminatees may either have been working elsewhere and not available to be referred out by Respondent's hiring hall or were seeking employ- ment in another area to which they moved seeking em- ployment after they left Sachs in December 1977. Individual backpay amounts will be discussed below for each of the eight discriminatees separately. A. Bill Rodman Bill Rodman was referred out for employment to Da- meron Electric Co. and Meyer Electric Co. by Respond- ent's hiring hall on July 6, 1978, and July 11, 1978, re- spectively, after finally being permitted to sign book I on July 5, 1978. The backpay period for him ends at the end of the second quarter of 1978. Rodman's expenses associ- ated with his interim employment at Carl Pons Electric Co., Gentry, Arkansas, are reasonable and allowable. Rodman quit his interim employment but this quit will not count against him. I credit Rodman's testimony that he quit his interim employment at Carl Pons Electric on the good-faith belief (based on receipt of an attorney's letter) that he would be treated fairly if he returned to Local 453. Rodman honestly believed lie would be per- mitted to sign book I but was unlawfully refused. Rodman was also refused permission to sign book II "under protest." Under the circumstances Rodman's quitting Carl Pons Electric and his refusal to sign book II unless he was allowed to note that it was "under pro- test" were not willful failures to mitigate damages. According to the backpay specification, as amended, Rodman's gross and net backpay by calendar quarters is as follows: 1132 1977 - 4th Qtr. DECISIONS OF NATIONAL LABOR RELATIONS BOARD GROSS ,BACK- PAY INTER- IM EARN- INGS & EX- PENSES NET BACK- PAY Gross Backpay (160 hrs. at ^51 L595 per hr.). _ ' $185520 Interim Earnings $1380.20 Carl Pons Electric Co. Ex- penses- Motel 158.00 Food 10400 Net Backpay $ 737.00 1978 - 1st Qtr. Gross Backpay (508 5 firs. "at $11 595 per hr ) $5896 06 Interim Earnings $3941.23 Carl Pons Electric Co Ex- penses. Motel 435.60 Food 20600 Net Backpay $259643 1978-2dQtr. Gross Backpay (424 hrs, at $11 595 per hr.) $4916.28 Interim Earnings Expenses Net Backpay None None $491628 Total Net Backpay Due Rodman PEN- HEALTH & VACA- BACKPAY SION WEL- TION FARE $824971 $ 315.50 $296.57 $43999 Total $9300.07 B. Larry J. Nolon The only issue in Nolon's case is how much backpay he is entitled to receive to,be made whole. As noted above, Nolon was unlawfully prohibited by Respondent from signing book I until July 5, 1978. He was also denied the right to sign book II under protest and, there- fore, as Rodman, did not sign book II. Subsequent to July 5, 1978, Nolon was referred out by Respondent's hiring hall and, therefore,, the backpay period for him ends after he was referred out, on July 6, 1978. During the backpay period Nolon incurred reasonable and al- lowable expenses in copnection with his interim employ- ment. He incurred 'no willful loss of earnings. Respond- ent's argues that Nolon and Rodman should have signed book II if they had done so then on March 21, 1978, they would have been referred out since everyone cur- rent on book I or book II was referred out at that time. Therefore their failure to sign book II was tantamount to a willful loss of earnings. This argument is without merit. If Respondent had obeyed the law and let Rodman and Nolon sign book I, there would be some merit to their argument but since they did not the failure of Rodman and Nolon to sign book II because they were not permit- ted to write in "under protest" is not a willful .loss of earnings caused by them. During the backpay period Nolon quit his interim job at Carl Pons Electric Co. when he and other electricians on, the job engaged in a general walkout. The walkout was followed by a layoff at Carl Pons Electric. There was no evidence that the general walkout was not pro- tected concerted activity and therefore Nolon's joining in the walkout was not a willful loss of earnings or a fail- ure to mitigate damages. After leaving Carl Pons Elec- tric at Gentry, Arkansas, Nolon returned to Springfield and attempted to sign book I. According to the backpay specification, as amended, Nolon's gross and net backpay by calendar quarter is as follows: INTER- IM GROSS EARN- NET BACK- INGS & BACK- PAY BACK- PAY PAY 1977 - 4th Qtr. Gross Backpay (160 hrs at $11 595 per hr ) $1855.20 Interim Earnings $1545.00 Carl Pons Electric Co. Ex- penses: Motel and Food 36000 Mileage (600 miles at $ 10) 6000 Net Backpay $730 20 1978 - 1st Qtr. Gross Backpay (508.5 hrs at $11.595 per hr.) $589606 Interim Earnings $5347.40 Carl Pons Electric Co Ex- penses Motel and Food 936 00 Mileage (1950 miles at $ 10) 195 00 Net Backpay $1679 66 1978 - 2d Qtr. Gross Backpay (424 hrs at $11.595 per hr.) $4916.28 Interim Earnings $1320.00 Carl Pons Electric Co Ex- penses: Motel and Food 28800 Mileage (600 miles at $.10) 6000 Net Backpay $3944 28 Total Net Backpay Due Nolon BA CKPA Y PEN- HEALTH VACA- SION `t` TION WEL- FARE $6354.14 $ 191.50 S18001 $26646 Total. $6992.11 C Samuel Miller Samuel Miller qualifies as a discriminatee because I credit his testimony that Respondent's steward J. C. ELECTRICAL WORKERS IBEW LOCAL 453 (SACHS ELECTRIC) Danner asked Miller, who was a traveler, to quit the Sachs job in favor of members of Respondent Local and be did so. After leaving the Sachs job, Miller looked for work as an electrician in Springfield, Missouri, where he lives, and kept current on the books at Respondent's hiring hall. On May 1, 1978, Miller refused a referral from Respondent to a job at Fort Leonard Wood. His stated reason was that he had transportation problems but since he would have had transportation problems at the time, whether he had been unlawfully requested to leave the job in December 1977 or not, his refusal to take a referral back to that same job terminates the back- pay period for Miller. Later that month Miller accepted a referral to O'Byrne Electric. Between December 1977 and May 1978 Miller made reasonable efforts to secure employment and incurred no willful loss of earnings. According to the backpay specification , as amended, Miller's gross and net backpay by calendar quarter is as follows: GROSS BACK- PAY INTER- IM EARN- NET- INGS & BACKPAY EX- PENSES 1977 - 4th Qtr. Gross Backpay (160 hrs at $11.595 per hr) $1855.20 Interim Earnings Pat Roper Expenses $80.00 None Net Backpay $1775 20 1978 - 1st Qtr. Gross Backpay (508.5 hrs. at $11.595 per hr.) Interim Earnings Expenses $589606 None None Net Backpay $5896.06 1978 - 2d Qtr. Gross Backpay (424 his at $I L595 per hr.) $4916.28 Miller is entitled to 1-month pay up to May 1, 1978, or $1229.07. On May 1, 1978, he refused a referral from Re- spondent 's hiring hall back to Fort Leonard Wood. Total Net Backpay Due Miller BACKPAY $8900.33 $ 542.75 Total- $10„708.49 HEALTH PEN- & VACA- SION WEL- TION FARE $510.18 $755.23 D. Harold Calk Harold Calk qualifies as a discriminatee because I credit his testimony that he left the Sachs job when re- quested to do so by Steward J. C. Danner so that jobs could be available for members of Respondent Local. On March 21, 1978 , Calk was referred back to the Sachs job at Fort Leonard Wood by Respondent's hiring hall. This 1133 referral terminates the backpay period for him. Calk was terminated on May 13, 1978, for cause and the termina- tion will not revive the backpay period . Calk incurred no willful loss of earnings during the backpay period since he kept current on the books at Respondent's hiring hall and he kept in contact with another IBEW hiring hall in Little Rock, Arkansas. According to the backpay specification , as amended, Calk's gross and net backpay calendar quarter is as fol- lows: INTER- GROSS IM BACK EARN- NET- PAY INGS & BACKPAY A.X- PENSES 1977 - 4th Qtr. Gross Backpay (160 hrs. at $11.595 per hr.) Interim Earnings Expenses $1855.20 None None Net Backpay $1855.20 1978 - 1st Qtr. Gross Backpay (412 5 hrs. at $11.595 per hr.) Interim Earnings Reinstated to Sachs Electric on March 4, 1978 $4782.94 None Net Backpay $4782.94 Total Net Backpay Due Calk HEALTH PEN- & V4CA- BACKPAY SION WEL- FARE TION $6638 14 $ 286.25 $269.07 $398.29 Total- $7591.75 E. Dennis Jolley Dennis Jolley is properly named in the backpay speci- fication as a discriminatee since I credit his testimony that he "drug up" or quit at Sachs Electric at the request of Jim Hensley, Respondent 's business manager. Jolley's backpay period ends when he was referred to Trans-Dyn Corp. in March 1978 . Between December 1977 when he left Sachs at Respondent's "request" in favor of members of Respondent's Local and March 21, 1978, when re- ferred to other work, Jolley acted in a reasonable manner to mitigate damages by keeping current on the books at Respondent's hiring hall. - According to the backpay specification , as amended, Jolley's gross and net backpay by calendar quarter is as follows: 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 77 4th Qtr. INTER- IM GROSS EARN- BACK- INGS & PAY EX- PENSES NET BACK- PAY 77 - 4th Qtr. GROSS BACK- PAY INTER- IM EARN- INGS & EX- PENSES NET- BACKPAY Gross Backpay (160 hrs. at Gross Backpay (160 hrs. at $11.595 per hr) $1855.20 er hr ) $11 595 $1855 20 . p Interim Earnings None Interim Earnings None Expenses None Expenses None Net Backpay $1855.20 Net lackpay $1855.20 1978 - 1st Qtr. 1978 - 1st Qtr. Gross Backpay (508 5 hrs at Gross Backpay (508 5 hrs at $11.595 per hr) $5896.06 $11595 per hr) $5896.06 Interim Earnings Interim Earnings $ 846 67 Bechtel Power Corp $2158 27 Sonmer Electric Co., Inc. 84.83 Trans-Dyn Corp. Expenses Net Backpay None $5049.39 Industrial Electrical Con- tractors 737 00 Expenses None Net Backpay $191596 Total Net Backpay Due Jolley 1978 - 2d Qtr. Gross Backpay (424 hrs. at HEALTH $11 595 per hr.) $4916.28 PEN- & BACKPAY SION WEL- VACA- TION Interim Earnings Newton Assoc $3381.69 FARE Watson-Flagg 578.40 $690456 $ 297.50 $279.65 Total. $7895 68 $41394 Expenses Net Backpay None $956 19 1978 3d Quarter expenses of F. Elmer Murray Elmer Murray died of natural causes on March 31, 1979. His widow, Jean Murray, testified. Murray is ap- propriately designated as a discriminatee. I credit the tes- timony of Harold Calk, another discriminatee, that he and Murray were asked by Respondent's steward J C. Danner to quit the Sachs job to make room for members of Respondent Local. Calk and Murray left the next day. No backpay for Murray is claimed after the second quar- ter of 1978 because he worked steady thereafter. His widow credibly testified and was not contradicted that she and her late husband incurred medical expenses of $1114 in connection with an emergency appendectomy performed on their daughter during the third quarter of 1978. If Murray had remained at Sachs and had not left in December 1977, he would have worked the required number of hours by the time of his daughter's medical problem so that his IBEW health insurance would have covered all medical bills and not left him and his wife with $1114 in uncovered medical bills. Murray took rea- sonable and prudent steps in an effort to obtain employ- ment after December 1977. Mrs. Murray testified that her husband was out of work less then 2 months before he found employment. After leaving Sachs the Murray went home to Jonesboro, Arkansas, and Murray sought employment through the local hiring hall. He had fairly steady interim employment till his backpay period ended at the second quarter in 1978. According to the backpay specification, as amended, Murray's gross and net backpay by calendar quarter is as follows: $1114 medical bills Total Net Backpay Due Murray BACKPAY $4727.35 Total including medical ex- penses: HEALTH PEN- & VACA- SION WEL- TION FARE $ 203 50 $191 29 $283 14 $6519.28 G. Charles N. Robinson Charles N. Robinson qualifies as being "similarily af- fected" because he was asked to leave the Sachs job by Respondent's steward J. C. Danner because Robinson was a traveler. Robinson's testimony, which I credit, supports the reasonableness of his quitting his job at Carl Pons Electric Co. in the fourth quarter of 1977. Robin- son quit because the job required him to work out of doors 80 or 90 feet in the air. It was winter and there was no warmup room at the site. Robinson, who is 65 years old, felt that these conditions, which were different and harsher than the conditions at the Sachs job, were too much for him at his age and he quit. There was no evidence of willful loss of earnings and his claims for ex- penses are reasonable and allowable. The backpay period for Robinson ended when he was referred to Overhead Electric Co. by Respondent in March 1978. Robinson was laid off by Overhead Electric and referred out to AFB Contractors with no loss of earnings between those ELECTRICAL WORKERS IBEW LOCAL 453 (SACHS ELECTRIC) two jobs. Robinson was thereafter fired for cause from that job but that firing will not revive the backpay period. At the time Robinson was referred to Overhead Electric he could have been referred back to the Sachs job which he had left in December 1977. I credit Jim Hensley's testimony that he offered both jobs to Robin- son and Robinson chose Overhead Electric rather than Sachs. Robinson denied that he was offered a job back at Sachs. It is possible that Robinson might have forgotten that he was offered the job at Sachs. According to the backpay specification, as amended, Robinson's gross and net backpay by calendar quarter is as follows: GROSS BACK- PAY 1977 - 4th Qtr. Gross Backpay ( 160 hrs. at $11 595 per hr.) $ 185520 Interim Earnings James P. Driscoll, Inc. Expenses 1135 INTER- IM EARN- NET- INGS & BACKPAY ET_ PENSES $112320 Mileage 68.00 Rent 100.00 Food 2'30.00 Net Backpay 77 - 4th Qtr Gross Backpay (160 hrs. at GROSS BACK- PAY INTER- IM EARN- INGS & EX- PENSES NET- BACKPAY 31978 - 1st Qtr. Gross Backpay (508.5 hrs at $11.595 per hr) Interim Earnings LK Comstock, Co. James P. Driscoll, Inc. Expenses Mileage (James P. Dris- $589606 $11.595 per hr.) Interim Earnings $185520 coll, Inc) Rent Carl Pons Electric Co. $1091 90 Food Expenses None Mileage (LK Comstock) Net Backpay $ 763.30 Motel Food 1978 - 1st Qtr. Gross Backpay (508.5 hrs at Net Backpay $115915 per hr.) $5896.06 1978 - 2d Qtr. Interim Earnings $294.98 Gross Backpay (424 hrs. at Overhead Electric Expenses None $11 595 per hr) Interim Earnings $4916.28 Net Backpay $5601 08 LK Comstock Co Mack-Obyrne Expenses Total Net Backpay Due Robinson Mileage (LK Comstock) Rent HEALTH Food (9 days at $10) PEN- BACKPAY SION & WEL- FARE VACA- TION Net Backpay $6364.38 $ 278 50 $233 65 $380.54 Total. $7257.07 H. Damon C. Rutledge Damon C. Rutledge is properly named as a discrimina- tee in this case as I credit his testimony that Respond- ent's steward J. C. Danner asked Rutledge to quit the Sachs job along with other travelers for the benefit of members of Respondent Local and Rutledge did so. His backpay period ends on July 5, 1978. Rutledge took rea- sonable steps to find interim employment and incurred no willful loss of earnings. According to the backpay specification, as amended, Rulledge's gross and net backpay by calendar quarter is as follows: $2773.80 126900, 68.00 100.00 28000 288.00 150.00 270.00 $1198.20 1855.20 96 00 :50.00 90.00 $1130.00 $3009 26 $2098.88 Total Net Backpay Due Rutledge BACKPAY HEALTH PEN- & VACA- SION WEL- TION FARE $6238.14 $ 156.50 $10974 $21776 Total $6722.14 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER 1. Respondent, its officers, agents, successors, and as- signs, shall satisfy its obligation to make whole Bill i If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided to Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rodman for backpay due him by paying him net back- pay in the amount of $9300.77, plus interest accrued to date of payment, computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977),2 minus any tax withholding required by Federal or state law. 2. Respondent, its officers, agents, successors, and as- signs, shall satisfy its obligation to make whole Larry J. Nolon for backpay due him by paying him net backpay in the amount of $6992.11, plus interest accrued to date of payment, computed in the manner prescribed in Flori- da Steel Corp., supra, minus any tax withholding required by Federal or state law. 3. Respondent, its officers, agents, successors, and as- signs, shall satisfy its obligation to make whole Samuel Miller for backpay due him by paying him net backpay in the amount of $10,708.49, plus interest accrued to date of payment, computed in the manner prescribed in Flori- da Steel Corp., supra, minus any tax withholding required by Federal or state law. 4. Respondent, its officers, agents, successors, and as- signs, shall satisfy its obligation to make whole Harold Calk for backpay due him by paying him net backpay in the amount of $7591.75, plus interest accrued to date of payment, computed in the manner prescribed in Florida Steel Corp., supra, minus any tax withholding required by Federal or state law. 2 See generally Isis Plumbing Co, 138 NLRB 716 (1962) The request of Respondent to waive the accrual of interest is denied in the absence of any good and sufficient reasons being advanced to justify it 5. Respondent, its officers, agents, successors, and as- signs, shall satisfy its obligation to make whole Dennis Jolley for backpay due him by paying him net backpay in the amount of $7895,68, plus interest accrued to date of payment, computed in the manner prescribed in Flori- da Steel Corp., supra, minus any tax withholding required by Federal or state law. 6. Respondent, its officers, agents, successors, and as- signs, shall satisfy its obligation to make whole the estate of Elmer Murray for backpay due him by paying him net backpay in the amount of $6519.28, plus interest ac- crued to date of payment, computed in the manner pre- scribed in Florida Steel Corp., supra, minus any tax with- holding required by Federal or state law. 7. Respondent, its officers, agents, successors, and as- signs, shall satisfy its obligation to make whole Charles N. Robinson for backpay due him by paying him net backpay in the amount of $7257.07, plus interest accrued to date of payment, computed in the manner prescribed in Florida Steel Corp., supra, minus any tax withholding required by Federal or state law. 8. Respondent, its officers, agents, successors, and as- signs, shall satisfy its obligation to make whole Damon Rutledge for backpay due him by paying him net back- pay in the amount of $6722.14, plus interest accrued to date of payment, computed in the manner prescribed in Florida Steel Corp., supra, minus any tax withholding re- quired by Federal or state law. 9. The Charging Party's motion for attorney's fees is denied.