Joyce Western Corp. And Miami Springs Properties, Inc., And James H. Kinley And Associates, Joint Employers, And Ex Coal Sales, Inc., And Christina Resources, Inc., And James H. Kinley & Sons, Inc.

592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Joyce Western Corporation and Miami Springs Properties, Inc., and James H. Kinley and Asso- ciates, Joint Employers, and Ex Coal Sales, Inc., and Christina Resources, Inc., and James H. Kinley & Sons, Inc. and Kenneth Wade Salyer and Joe Salyer and Cleveland Bailey and O'Banion Ritchie and United Mine Work- ers of America. Cases 9-CA-9276-1, 9-CA- 9276-2, 9-CA-9276-3, 9-CA-9276-4, 9-CA- 9276-5, and 9-CA-9368 30 September 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 18 September 1986 Administrative Law Judge John H. West issued the attached supple- mental decision. The Respondents filed exceptions, a supporting brief, and an answering brief. The General Counsel filed limited exceptions, a sup- porting brief, and an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, findings, and conclusions, as modified, and to adopt the recommended Order as modified. This is a backpay proceeding to determine the amounts of backpay owing to numerous discrimina- tees.' Both the General Counsel and the Respond- ents except2 to the judge's failure to allocate an exact amount of backpay to the operators and truckdrivers. We find merit in these exceptions. During 1979 through 1982 the Respondents maintained jobs in different locations, which the judge found fell under the Board's Order. Appen- dix B to the backpay specification covers reclama- tion work performed in Kentucky during the period 25 September 1979 through July 1985, while Appendix C covers backpay for work done at a mining operation in West Virginia during the period from 25 September 1979 through December 1982. An issue arises, however, because Appendi- ces B and C include some quarters of backpay, which overlap, regarding the laborers, truckdriv- ers, and operators. (These discriminatees could not i The Board's original decision is reported at 245 NLRB 278 (1979), enfd 653 F 2d 276 (6th Cir 1981) 2 The Respondents have excepted, inter alia, to the award of backpay for that period when the discriminatees were on strike Chairman Dotson would overrule Abilities & Goodwill, 241 NLRB 27 (1979), and would date the Respondents' backpay obligation to the discnmmatees from the time they made an unconditional offer to return to work. work in two places at the same time.) The judge found that the Respondents are liable for the back- pay arising from all the jobs described in Appendi- ces B and C and made an election for overlapping quarters for the laborers. The judge did not, how- ever, make an election between the jobs for those overlapping quarters with respect to the truckdriv- ers or operators. In making an election for laborers, the judge allocated backpay according to whichev- er job generated the highest wages during a quar- ter. The residual backpay allocation was then as- signed to "pool" employees, i.e., those other discri- minatees who were able to perform the work but who have not been allocated other backpay for that particular quarter. Apparently, the judge de- clined to make an election for the truckdrivers or operators because, in his view, there was insuffi- cient evidence on the record concerning the pro- priety of assigning the residual backpay allocation to any pool employees. In addition, he asserted that if an election were to be made with respect to one operator, this would have ramifications on the re- maining operators and these variables were not treated in this record. We see no hindrance to making an election so that a specific amount of backpay can be allocated to each discriminatee. We have decided to follow the judge's approach in selecting the method of as- signment and we will allocate backpay according to whichever job generates the highest wages during a quarter. Inasmuch as the remaining pool employees were not found to be qualified as truck- drivers or operators, we need not be concerned with assigning the backpay remaining after an elec- tion is made. We shall modify the judge's Order accordingly. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below3 and orders that the Re- spondents, Joyce Western Corporation; Miami Springs Properties, Inc.; James H. Kinley & Sons, Inc.; James H. Kinley and Associates; Ex Coal Sales, Inc.; and Christina Resources, Inc., jointly and severally, Salyersville, Kentucky, their officers, agents, successors, and assigns, shall pay to the per- sons listed in the attachment hereto the amount set forth opposite their names, together with interest (less amounts already paid), computed in the 8 The attachment includes the revised backpay figures resulting from our decision to make an election for overlapping quarters for the labor- ers, truckdrivers, and operators 286 NLRB No. 51 JOYCE WESTERN CORP. 593 manner prescribed in New Horizons for the Retard- ed.4 ' In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after I January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) ATTACHMENT Appendix A Appendix B Appendix C Amts. Already Totals Paid Pursuant to 1983 Discriminatees 3/10-8/1/75 8/1-10/30/75 9/25/79-7/85 9/25/79-12/82 Settlement Agreement L. Adams .. . .. .. ....... . $2,367 40 $551.24 $0.00 $0.00 $2,918 64 $545.30 M. Adams . ............................ 5,50540 81.60 1,407 71 27,639.84 34,634 55 603 80 Roy Arnett . ....... . ......... . 6,18800 4,779.51 0.00 0.00 10,967 51 616.51 W Auxier .......... ............ 6,46340 1,826.25 0.00 6,541.44 14,831.09 621.85 Monroe Bach ............ .............. 4,384.40 898.57 0.00 0.00 5,282.97 582.69 C. Bailey .... ............. ................. 5,288.40 102.05 6,515.81 722.02 12,628.28 559.71 P. Bailey .. . .......... . .... .......... 778.59 0.00 0.00 0.00 778.59 515.26 A. Holbrook ............... .................. 7,091.29 4,785.52 18,531.38 0.00 30,40819 633.45 B. R. Howard .................................... 6,684.00 81.60 0.00 1,33394 8,279.54 629.90 Calla Howard ........ ............ 6,88800 0.00 59.03 1,118.09 8,065.12 629.80 Henry James ...... .... . ............ 5,381.62 30.10 0.00 4,86871 10,215 83 60083 L. Jordan ............... ................. 6,660.00 81.60 1,746.49 8,754.97 17,234.06 625 22 J R. Minix ... ......... ... ............ 5,288.40 898.57 5,51665 0.00 11,703.62 699.00 R. V Minix .. ........... .......... 4,644.00 4,046.00 000 0.00 8,690.00 687.48 B. Montgomery ....... .................... 7,479.68 5,581.03 87,282.80 12,868.48 113,211.99 641.01 M. Pennington..... ...................... 4,269.96 0.00 0.00 000 4,269.96 580.42 B. Perkins . .............................. 4,312.00 2,311.33 4,772 82 24,683.68 36,079.83 581.99 0. Ritchie . ............................... 3,370 15 0.00 0.00 0.00 3,370.15 563.62 Joe Salyer ............... .................. 4,972 00 898.57 5,122.89 604.18 11,597.64 593.80 K. W. Salyer .......... .............. 5,10400 898.57 1,455.36 0.00 7,457.93 596.74 R. W. Salyer ................................. 5,104.00 898.57 5,752 48 686.02 12,441.07 596 74 C. Turner ........... ................. 4,876.88 898.57 000 6,783.35 12,558.80 592.25 G. Wisecup .. ............ .......... 6,864.00 81.60 1,998.37 19,631.21 28,575.18 620.61 Total .................................. 120,082.57 29,730.85 140,161.79 116,226.79 406,240.54 13,917.98 Engrid Emerson Vaughan, Esq., for the General Counsel. Edwin S. Hopson, Esq., of Louisville, Kentucky, for the Respondent. SUPPLEMENTAL DECISION JOHN H. WEST, Administrative Law Judge. The Na- tional Labor Relations Board (the Board), in its decision here (see Miami Springs Properties, 245 NLRB 278 at 280-281 (1979), G.C. Exh. 1(a)), ordered Respondents, Miami Springs Properties, Inc. and James H. Kinley and Associates, Joint Employers, Salyersville, Kentucky, their officers, agents, successors, and assigns to, among other things, take the following affirmative action: (a) Offer to each of the unlawfully laid-off em- ployees herein immediate and full reinstatement to their former jobs, dismissing, if necessary, anyone who may have been hired or assigned to perform the work they had been performing, or, if their former positions do not exist, to substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered (including all regular periodic in- cremental pay increases on and since March 10, 1975, and also including overtime, holiday, and va- cation pay, and hospitalization, medical and insur- ance benefits, claims, and reimbursements, if any), from the date of their discharge to the date they are offered reinstatement, together with interest. . . . Alternatively, in the event Respondents demon- strate that they have totally closed their entire oper- ations, backpay shall cease to accrue on the date upon which Respondents ceased their operations. The employees in question are: Lowell Adams Joe Randall Minix Milton H. Adams Roy Von Minix Roy Arnett Bubby Montgomery Walter Auxter Marcus Pennington 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Monroe Bach Burlie C. Perkins Cleveland Bailey O'Banion Ritchie Paul Bailey Joe . . . Salyer Arlie Holbrook Kenneth Wade Salyer Bobby Ray Howard Robert Wayne Salyer Calla Howard Conley Turner Henry James Glenny Wisecup Luther Jordan (b) In the event any of Respondents, any corpo- rate or other enterprise in which any of Respond- ents or any principal of any of Respondents, includ- ing but not limited to James V. Joyce, or any nomi- nee, proxy, dummy, fiduciary, trustee, deputy, part- ner, associate, manager, superintendent, foreman, su- pervisor, agent, attorney, subordinate, employee, designee, or person acting for, or in concert with, or subject to, the authority of the foregoing, singly or together, directly or indirectly, has or have a controlling interest, resumes, initiates, or conducts any mining or strip mining, earth-boring, or exca- vating or moving, prospecting, tippling, coal pro- duction or transportation or factoring or selling or related operation, in or within a radius of 100 miles of Magoffin, Breathitt, or Knott County, Common- wealth of Kentucky (whether within or outside of the Commonwealth of Kentucky), within a period of 10 years from the date of this Order, then and in that event he, she, it, or they and their associates shall, immediately prior to actually commencing any such operation establish and for 1 year thereaf- ter maintain a preferential hiring list for each such enterprise and location, giving immediate, absolute, and unqualified hiring preference to each of the un- lawfully laid off employees herein, listed in para- graph 2(a) of the Order, and thereafter secondary hiring preference to Respondents' other employees displaced from their employment by reason of Re- spondents' having terminated their operations herein under the circumstances described in the Decision of which this Order forms a part, before hiring any other persons at or for any such enterprise or loca- tion. Written notice of such preferential hiring re- quirement shall be publicly and prominently posted and continuously maintained during said year at all of said minesites , enterprises, and locations, their local headquarters and offices, and at all other places where employees therefore are locally inter- viewed for hire, hired, or paid. These extraordinary measures were explained by the Board at page 279 of its decision as follows: Respondents here engaged in extensive unfair labor practices, including many unlawful terminations, nu- merous threats of closure in the event of unioniza- tion, and promises of benefits for the purpose of de- terring employees from supporting the Union. In addition, Respondents have previously been found to have engaged in similar serious violations of the Act. t ° We conclude that the imposition of extraor- dinary remedies is necessary to alleviate the linger- ing coercive effect created by Respondents' unlaw- ful conduct. 10 Joyce Western Corporation and Miami Springs Properties, Inc, Case 9-CA-8642-1 (1974). Not reported in bound volumes of Board Decisions The United States Court of Appeals for the Sixth Cir- cuit on 30 July 1981, in No. 79-1538, entered its judg- ment enforcing in full the above-described Board Order. (G.C. Exh. 1(b).) The Regional Director for Region 9, on 30 June 1983, issued a backpay specification and notice of hearing (G.C. Exh. 1(e)) in which, among other things, it was al- leged that further unknown amounts of backpay [in addition to those specified therein for the first three calendar quarters of 1975] are due to said named discrimina- tees, and any other displaced employees, as a result of the reclamation work performed on Sandy Ridge Road near Campton, Kentucky pursuant to Ken- tucky Department of Natural Resources Mining Permits Nos. 119-0014 and 119-0015 in early 1983, the exact dates being unknown to the undersigned, reclamation work performed near Martha, Law- rence County, Kentucky in early 1983, the exact dates being unknown to the undersigned, reclama- tion work performed near Greenup, Kentucky in 1983, the exact dates being unknown to the under- signed and mining work performed by Jamie Coal Co. in Ary, Kentucky during 1981, the exact dates being unknown to the undersigned and any other mining, strip mining, earth-boring, excavating or moving, prospecting, tippling, coal production or transportation or factoring or selling or related coal operations, the exact location being unknown to the undersigned, since March 10, 1975 in accordance with paragraph (b) of the Board's Order. The 15 July 1983 answer to the backpay specification, General Counsel's Exhibit 1(e), denies the allegations contained in the next preceding paragraph except that it "admitted that reclamation work had been performed by one of the Respondents near Campton, Kentucky, in early 1983; near Martha, Kentucky, in early 1983; and near Greenup, Kentucky, in 1983." Additionally in the answer, page 11 , it is asserted: Respondent, Miami Springs Properties, Inc., is solely liable and responsible for any back pay amounts found due and owing in this proceeding by virtue of its having been the operating entity in full control of all operations involved herein, including the Carver Tipple. The second amended backpay specification, dated 30 April 1985, General Counsel's Exhibit 1(j), makes the fol- lowing additional allegations: 33. Additionally, a controversy having arisen re- garding corporate liability to pay the amounts of backpay due to the discriminatees named in para- JOYCE WESTERN CORP. 595 graph 31 above, and additional backpay liability which may exist as alleged in paragraph 32 above, the undersigned hereby alleges, as follows: (a) Respondent Joyce-Western Corporation, a New York corporation, is the sole owner of all of the corporate shares of Respondent Miami Springs Properties, Inc. (b) At all times material herein, Respondent Joyce-Western Corporation and Respondent Miami Spring Properties, Inc. have been affiliated business enterprises with common officers, own- ership, directors, management and supervision; have formulated and administered a common labor relations policy affecting the employees named above; have shared common premises and facilities; have provided services for and made sales to each other; have interchanged personnel with each other; have jointly engaged in the mining of coal in Breathitt and Magoffin Coun- ties, Kentucky; and have held themselves out to the public as a single integrated business enter- prise. (c) Respondent Joyce-Western Corporation is jointly and severally liable along with Respond- ent Miami Springs Properl ies , Inc. and Respond- ent James H. Kinley and Associates for the amounts of backpay as set forth in paragraph 31 above and any further backpay liability which exists as alleged in paragraph 32 above. 34. Additionally, further controversy having arisen regarding corporate liability to pay the amounts of backpay due to the discriminatees named . . . above, and additional backpay liability which may exist as alleged . . . above [see the second preceding non-quoted paragraph, which deals with reclamation], the undersigned hereby al- leges as follows: (a) During July 1980, the exact date being un- known to the undersigned, Respondent Joyce- Western Corporation formed a corporation known as Ex Coal Sales, Inc., possessed of cer- tain equipment and property formerly used by Respondent Joyce-Western Corporation and Re- spondent Miami Springs Properties, Inc. in the mining of coal in Breathitt and Magoffin Coun- ties, Kentucky. (b) During October 1980, the exact date being unknown to the undersigned, Respondent Joyce- Western Corporation formed a corporation known as Christina Resources, Inc., also pos- sessed of certain equipment and property former- ly used by Respondent Joyce-Western Corpora- tion and Respondent Miami Springs Properties, Inc. in the mining of coal in Breathitt and Magof- fin Counties, Kentucky. (c) Respondent Joyce-Western Corporation was, and presently is, the sole owner of all of the corporate shares of stock of both Ex Coal Sales, Inc. and Christina Resources, Inc. (d) During certain times since their formation, Ex Coal Sales, Inc. and Christina Resources, Inc. have each engaged in the surface mining of coal on premises formerly owned or leased by Re- spondent Joyce-Western Corporation, using equipment formerly owned by Respondent Joyce-Western Corporation. (e) On or about a date unknown to the Gener- al Counsel but on a date particularly within the knowledge of Respondents, Respondent James H. Kinley & Sons, Inc. was established by Respond- ent James H. Kinley and Associates as a subordi- nate instrument to and a disguised continuation of James H. Kinley and Associates. (f) At all times material herein, James H. Kinley and Associates and James H. Kinley & Son, Inc. have been affiliated business enterprises with common officers, ownership, directors, man- agement and supervision, have formulated and administered a common labor policy affecting employees of said operations; have shared common premises and facilities; have provided services for and made sales to each other; have interchanged personnel with each other; and have held themselves out to the public as a single integrated business enterprise. (g) By virtue of the acts and conduct described above in paragraphs 34(f) and (g), Respondent James H. Kinley and Associates and Respondent James H. Kinley & Sons, Inc. constitute a single integrated business enterprise, and are, and have been at all times material herein, alter egos and a single employer within the meaning of the Act. (h) Accordingly, Ex Coal Sales, Inc. and Christina Resources, Inc. are successors to Re- spondent Joyce-Western Corporation and Re- spondent Miami Springs Properties, Inc. within the meaning of the Board's Order in this matter and are jointly and severally liable with Respond- ent James H. Kinley and Associates and/or James H. Kinley & Sons, Inc. for the amounts of backpay due to the discriminatees named . . . above, and additional backpay liability which may exist as alleged . . . [See the second preced- ing non-quoted paragraph which deals with rec- lamation.] 35. (a) In November 1983, Miami Springs Proper- ties, Inc., Joyce-Western Corporation, James H. Kinley & Son, Inc., Ex Coal Sales, Inc. and Christi- na Resources, Inc. (Respondents) entered into a backpay Settlement Agreement, providing, inter alia that 70 percent of their coal royalty income was to be paid on a monthly basis to the Board 's Regional Office at Cincinnati, Ohio until the sum of $150,000 (backpay) was received by the Board, on and no later than December 1, 1986. (b) Paragraph 4 of the Settlement Agreement (described above in paragraph 35(a)) expressly provides that the Board may, at its option, set aside said agreement on the basis of noncompli- ance, therewith in the event Respondents' pay- ments under the agreement do not aggregate to a total of $50,000 per year. 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) During the period between November 1983 and January 1, 1985, Respondents' payments pur- suant to the backpay Settlement Agreement de- scribed above in paragraph 35(a) have totalled less than $50,000. (d) Respondents have, therefore, failed to comply with the terms of the Settlement Agree- ment described above in paragraph 35(a).1 As here pertinent, the answer to the second amended specification, General Counsel's Exhibit 1(n), filed 15 May 1985, in addition to alleging that each of the in- volved discriminatees about 18 November 1983 received $1000 minus taxes and that periodic payments were made to the Board totaling $3742.92, asserts as follows: 7. Deny the allegations contained in Paragraph 33, except that it is admitted that a controversy has arisen over corporate liability to pay the amounts of back pay due; that Joyce-Western Corporation is a New York Corporation and sole owner of all cor- porate shares of Miami Springs Properties, Inc.; and to some extent have common officers, ownership, directors, and management. 8. Deny the allegations contained in Paragraph 34, except that it is admitted that a controversy has arisen regarding corporate liability to pay the amounts of back pay due as aforesaid; that Ex Coal Sales, Inc., during July, 1980, was formed and ob- tained title to certain equipment and property for- merly owned by Miami Springs Properties, Inc. and Joyce-Western Corporation which had been utilized in the mining of coal in Breathitt and Magoffin Counties, Kentucky; and that Christina Resources, Inc. was formed in October, 1980, and that both Christina Resources, Inc. and Ex Coal Sales, Inc. are owned by Joyce-Western Corporation or its principal shareholder. In addition, it is admitted that James H. Kinley & Son, Inc. is the correct name of the entity previously mistakenly denoted as James H. Kinley and Associates. 9. Deny the allegations contained in Paragraph 35(a) except that it is admitted that Miami Springs Properties, Inc., Joyce-Western Corporation, James H. Kinley & Son, Inc., Ex Coal Sales, Inc. and Christina Resources, Inc. entered into a back pay Settlement Agreement, providing that 70 percent of the overriding coal royalties payable to Miami Springs Properties, Inc. The allegations contained in Subparagraph 35(b) and 35(c) are admitted. The al- legations contained in Subparagraph 35(d) are denied. II. Respondent, Miami Springs Properties, Inc., is solely liable and responsible for any back pay amounts found due and owing in this proceeding by virtue of its having been the operating entity in full i Official notice is taken of the fact that the allegations in pars 33(a), (b), and (c) and 34(a), (b), (c), (d), and (h) were first made in the amend- ed backpay specification and notice of hearing dated 18 October 1983 Also, in that specification the title of the case changed from Miami Springs Properties, Inc and James H Kinley and Associates, Joint Em- ployers to the way it appears above control of all operations involved herein, including the Carver Tipple. A supplemental hearing was held on 23-24 July 1985 and 21 and 22 January 1986 in Prestonsburg, Kentucky. On the entire record thus made, including my observa- tion of the demeanor of the witnesses, and after due con- sideration of the briefs filed 21 and 24 March 1986, re- spectively, by the General Counsel and counsel for Re- spondents, I make the following findings of and conclu- sions of law. At the outset of the hearing, the General Counsel moved to strike a portion of Respondents' answer to the second amended backpay specification, General Coun- sel's Exhibit 3.2 More specifically, the General Counsel argued that Respondents in the answer had raised as an affirmative defense that Miami Springs Properties, Inc. and James H. Kinley and Associates or James H. Kinley and Son are not joint employers for the purpose of the backpay hearing and liability; that it was pled in the un- derlying unfair labor practice proceeding and they were found by the Board to be joint employers that should make whole the discriminatees; and that, therefore, the matter is res judicata and not appropriate for litigation in this backpay proceeding. Respondents' counsel argued that while the two entities were described in the underly- ing unfair labor practices case as joint employers, the Board did not dispose of the question of joint and several liability; that Mr. Kinley and James H. Kinley and Sons participated in the coal mine operation in a very limited way in that Kinley, in effect, bought the [Carver] tipple and one other piece of equipment and paid the payroll of three, four, five employees over the period of about a year; that in its decision, footnote 11, the Board noted that Miami Springs exercised full control over the oper- ation of the tipple that operated on land leased by it; that only one of the discriminatees, Kenneth Wade Salyer, was on the payroll; that the compliance stage is the ap- propriate place to resolve the question of joint and sever- al liability for backpay; that the General Counsel was now contending that Joyce-Western Corporation was also a joint employer "from day one"; and that if the General Counsel is "permitted to inject a new corporate entity for purposes of back pay liability, at this stage .. . Respondents should be permitted to litigate the issue of Joint and Several liability." In reply, the General Coun- sel contended that although it is appropriate to litigate derivative liability in a backpay proceeding, the Miami Springs/Kinley relationship does not fall into that cate- gory. In the motion received as General Counsel's Exhibit 3, it is contended that The original Complaint and Notice of Hearing in Case No. 9-CA-9368 named both Miami Springs Properties, Inc. and James H. Kinley & Associates (herein referred to as MSP and Kinley respectively) as Respondents and alleged them as joint employers 2 This was done after a corrected second amended backpay specifica- tion, G C Exh 2, and the amended answer thereto, R Exh 1, were re- ceived JOYCE WESTERN CORP. of all the employees involved in this proceeding. ... During the unfair labor practice hearing the pleadings in the Consolidated Complaint in Cases Nos. 9-CA-9276-1 through -5 pertaining to the re- lationship of Respondents were amended (with no objections from Respondent) to conform to the pleadings in Case No. 9-CA-9368. Respondents ad- mitted these allegations of their joint employer rela- tionship and the Administrative Law Judge so found. ([See] Respondent's Answer in Case No. 9- CA-9368.. .) The Board's Order, as enforced by the Court, is clear on its face that MSP and Kinley are both, jointly and severally, liable and responsible for any backpay amounts found due and owing herein. The pleadings and the Board's Decision and Order obvi- ously never intended or even contemplated any remedy but joint and several liability by MSP and Kinley. [Emphasis in original.] The General Counsel's motion was granted.3 At the outset of the second session, 21 January 1986, a number of documents were introduced by the General Counsel. One, General Counsel's Exhibit 1(c), is the third amended backpay specification,4 (the specification) and another, General Counsel's Exhibit 1(ff), is Respond- ent's answer thereto.5 The body of the specification con- tains the following additional allegations: 34(1) J & J Resources, Inc. was formed in July 1976 as a West Virginia corporation for the purpose of engaging in the business of mining coal. (j) Princess Cindy Mining, Inc., (herein called Princess Cindy), a West Virginia Corporation, has been at all times material herein, engaged in the business of mining coal near Oak Hill, West Virgin- ia. (k) During the years 1979, 1980, 1981, 1982 and 1983, Princess Cindy, Respondent Miami Springs and Respondent Joyce Western Corporation were affiliated business enterprises with common officers, ownership, directors, management, and supervision; have formulated and administered a common labor policy affecting employees of said operations; have shared common premises and facilities; have provid- ed services for and made sales to each other; have interchanged personnel with each other; and have held themselves out to the public as a single inte- grated business enterprises [sic]. 3 This ruling specifically applied also to Respondents' amended answer to second amended backpay specification R Exh I Regarding an alle- gation in this exhibit, it was stipulated that $500 of the $1000 Respond- ents paid to each discriminatee in November 1983 was applied with the remaining $500 "counted as the interest which it accrued upon that prin- ciple up to that date " Subsequently Respondents paid into a fund which was distributed among the discriminatees, as set forth in G C Exh 4 4 Pursuant to Sec 102 57 of the Board's Rules and Regulations, leave is expressly granted to amend the backpay specification b On brief the General Counsel requests that the above-described ruling regarding the defense raised in Respondents' answers that Miami Springs and Kinley were not point employers be applied to Respondents' answer to the specification To the extent that Respondents ' last answer implicitly or explicitly takes this position, the General Counsel's request is granted 597 (1) By virtue of their operations described above in paragraphs 33 and 34(i) and (j), Respondents and Princess Cindy constitute a single integrated busi- ness enterprise and a single employer within the meaning of the Act. (m) At all times material herein, Princess Cindy and J & J Resources, Inc. have been parties to a contract whereunder they agreed to mine coal near Oak Hill, West Virginia, such coal to be sold under the name of Princess Cindy Mining, Inc. (n) At all times material herein, J & J Resources, Inc., Princess Cindy and Joyce Western Corpora- tion through James V. Joyce and James H. Kinley administered a common labor policy for the em- ployees of Princess Cindy and as such have been joint employers of said employees. 36. Based on information currently available to the General Counsel, Appendices A, B and C set forth Respondents' additional alleged backpay liabil- ity for work performed by Respondents subsequent to the initial backpay period.24 24 It is also noted that the Board's affirmative remedial Order and reimbursement offers/lures continues until 1989 and that addi- tional backpay may still be accruing or accrue in the future The specification seeks backpay from 10 March through 1 August 1975. Additionally, the position is taken that Respondents did not totally close their entire operation on 1 August 1975 but rather certain aspects of their operations were continued through the end of 1975 at their Magoffin, Breathitt and Knox Counties, Ken- tucky minesites. Appendix A to the specification covers these operations. Paragraph I of Appendix A makes the aforementioned allegation. Additionally, the following appears on the first page of Appendix A: II. The gross amounts of backpay have been cal- culated from Respondents' records and have been allocated to the discriminatees by their respective job classifications. Interim Earnings have been cal- culated from Social Security records and written questionnaires received from the discriminatees. III. (a) Wherever, Respondents did not employ as many employees in a certain job classification as there are discriminatees in that job classification backpay has been divided equally among the discri- minatees who held that job classification and the discriminatees' interim earnings have been prorated accordingly. [See Jt. Exh. 1.] (b) Wherever, with the exception of mechanics or operators, Respondent employed a greater number of employees in a job classification than there were discriminatees in that job classification, the gross amount of backpay has first been allocated to those discriminatees who held that job classifica- tion and the remainder has been divided among those other discriminatees who were able to per- form the work and who have not been allocated other backpay for a particular quarter (designated as "pool" employees). Where Respondent employed 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD more mechanics or operators than there are discri- minatees in those job classifications , the excess backpay was unclaimed and not assigned to other discriminatees . [If however, it is found that other discriminatees were capable of performing mechanic or operator work, this excess backpay should also be divided equally among the other discriminatees.] [The bracketed sentence is in original.] Next, in Appendix B to the specification the position is taken that a substantial amount of reclamation work per- formed by Respondents' related enterprises falls under 2(b) of the Board 's Order, supra, and that Respondents did not abide by the Order in giving "immediate, abso- lute and unqualified hiring preference to each of the un- lawfully laid off employees." The first page of Appendix B contains basically the same explanatory material given on the first page of Appendix A, as set forth in the next preceding paragraph. The last appendix to the specification , Appendix C, sets forth the backpay alleged to be owed to the discri- minatees from Respondents' mining operation known as Princess Cindy during the period from 25 September 1979 through 31 December 1982. The explanatory matter quoted above with respect to Appendices A and B to the specification also appears on the first page of Appendix C. As here pertinent, Respondents' answer to the specifi- cation contains the following: 8. Deny the allegations contained in Paragraph 34, including subparts, except that it is admitted . .. that J. & J. Resources, Inc. was formed in July 1976 as a West Virginia Corporation for the pur- pose of mining coal; that Princess Cindy . . . is a West Virginia Corporation and was engaged in the business of mining coal near Oak Hill, West Virgin- ia; that during the years 1979, 1980, 1981, 1982 and 1983, Princess Cindy and Respondent Miami Springs and Respondent Joyce Western Corpora- tion have been affiliated business enterprises; and that Princess Cindy and J. & J. Resources, Inc. formed a joint venture at one time to mine coal near Oak Hill, West Virginia.. . . With respect to the above-described settlement pay- ments, the answer contains the following: "it is denied that these were payments 'by Respondents."' And the body of the answer ends with the following: 10. Deny the allegations contained in Paragraph 36, except that it is admitted that the information contained in Appendices A, B and C purports to set forth additional alleged backpay liability for work performed by certain of Respondents subsequent to the initial backpay period, and further state that the Board's Order runs until July 30, 1991. It is further averred, in the alternative, that assuming any back- pay is due as asserted in Paragraph 36 and its refer- enced Appendices, the discriminatees involved are nevertheless due no backpay for their failure to ade- quately mitigate their alleged losses and make rea- sonable efforts to find work during the relevant time periods. Attached hereto and incorporated by reference herein as Appendices A, B and C are Re- spondents further response to Paragraph 36 and its referenced Appendices. Respondents' specific response to Appendix A of the specification, as here pertinent, is as follows: I. Having denied any backpay is due and owing by virtue of Respondents claimed continuation of operations after August 1, 1975, Respondents, in the alternative, by way of specific response to each alle- gation of Appendix A: 1. Deny the allegations contained in Paragraph I; it is further averred that if any additional back- pay is found to be due hereunder, only Miami Springs Properties, Inc. could be liable therefor. 2. To the extent any responsive pleading is re- quired, it is asserted that Respondents lack com- plete knowledge or information sufficient to form a belief as to the truth of the allegations con- tained in Paragraph II and, therefore, deny same. 3. To the extent any responsive pleading is re- quired, deny the allegations contained in Para- graph III(a), except that it is admitted that allega- tions contained therein specify the methodology used by the Regional Director to calculate the amounts alleged to be due, but deny that the fig- ures used therein and results obtained are in their entirety correct or valid. 4. To the extent any responsive pleading is re- quired, deny the allegations contained in Para- graph 111(b). In the alternative, assuming it is found proper to allocate the remainder of gross backpay to discriminatees designated as "pool" employees, only excess night watchman and la- borers' pay should be pooled because employees placed in the pool were not qualified to perform work other than that of night watchman and la- borer. Respondents' specific response to Appendix B of the specification, as here pertinent, is as follows: Having denied any backpay is due, Respondents, in the alternative, by way of specific response to each allegation of Appendix B: 1. Deny the allegations contained in Paragraph I, but, in the alternative, admit that backpay may be due and owing based on earnings for employ- ees hired by Respondent after July 30, 1981. Re- spondents further aver that only Joyce Western Corporation would be liable for any backpay claimed under Appendix B since it was the em- ployer. 2. To the extent any responsive pleading is re- quired, it is asserted that Respondents lack com- plete knowledge or information sufficient to form a belief as to the truth of the allegations con- tained in Paragraph II and, therefore, deny same. 3. To the extent any responsive pleading is re- quired, deny the allegations contained in Para- JOYCE WESTERN CORP. 599 graph III, except that it is admitted that allega- tions contained therein specify the methodology used by the Regional Director to calculate the amounts alleged to be due, but deny that the fig- ures used therein and results obtained are in their entirety correct or valid. And, Respondents' specific response to Appendix C of the specification, as here pertinent, is as follows: Having denied any backpay is due, Respond- ents, in the alternative, by way of specific re- sponse to each allegation of Appendix C: 1. Deny the allegations contained in Paragraph I in as much [sic] as this operation was more than one hundred miles from Magoffin , Breathitt and Knott counties, but, in the alternative, admit that assuming backpay were due, it would only be based on earnings for employees hired after July 30, 1981 [the date of the judgment of the United States Court of Appeals for the Sixth Circuit]. Respondents further aver that only Joyce West- ern Corporation and Princess Cindy Mining, Inc. would be liable for any backpay found to be due under Appendix C. 2. To the extent any responsive pleading is re- quired, it is asserted that Respondents lack com- plete knowledge or information sufficient to form a belief as to the truth of the allegations con- tained in Paragraph II and, therefore , deny same. 3. To the extent any responsive pleading is re- quired, deny the allegations contained in Para- graph III, except that it is admitted that allega- tions contained therein specify the methodology used by the Regional Director to calculate the amounts alleged to be due, but deny that the fig- ures used therein and results obtained are in their entirety correct or valid . .. . Although Respondents concede that the backpay period encompasses all the second calendar quarter of 1975 and up to 1 August 1975 of the third calendar quar- ter, its position regarding the first quarter of 1975 is that because all discriminatees claiming backpay for the first quarter of 1975 were on strike during the appproximately 3-week period beginning 7 March 1975 , no backpay is due to any of them. Respondents' attorney concedes that this position is contrary to existing law. In Abilities & Goodwill, 241 NLRB 27 (1979), the Board held that a dis- charged striker is entitled to backpay until the date he or she is offered reinstatement. Also in footnote 15 in Miami Springs Properties, 245 NLRB 278 (1979), the Board indi- cated it was modifying the Order in the case to provide that backpay for unlawfully discharged strikers com- menced on the date of the discharges . Consequently, the ruling made in the hearing here stands. The backpay specification correctly includes the applicable portion of the first quarter of 1975. Respondents contest various aspects of the backpay claims regarding specified individual discriminatees. These will be dealt with below. With respect to certain discriminatees ' attempts to find other work, the General Counsel contends that Respond- ents first raised this issue in their answer to the (third amended backpay) specification "thus inferentially apply- ing a `mitigation' defense to Appendices A, B, and C [of the specification] only." She neither took this position at the hearing here nor did she object to Respondents' counsel's questioning the discriminatees regarding their attempts to find work during , among others, the first three quarters of 1975 . As pointed out by the General Counsel, Respondents have the burden of proof regard- ing mitigation factors. It will be determined below whether Respondents have met that burden with respect to all the involved periods. Judge Ohlbaum concluded that there was uncertainty and doubt regarding Respondents claimed total or partial discontinuance of business operations . And the Board concluded that the unlawfully laid-off employees should receive backpay in the alternative, "in the event Re- spondents are able to demonstrate that they have totally closed their entire operations, until the date upon which Respondents ceased their operations." (Footnote in quote omitted.) Miami Springs Properties, supra at 280. The evi- dence of record, General Counsel's Exhibit 5, demon- strates that Respondents employed specified individuals and did not totally close their entire operations at the mine locations in Kentucky until late December 1975. The positions held by these individuals during the in- volved period were as follows : night watchman, welder, parts runner, mechanic, mechanic's helper, truckdriver, and operator (heavy equipment). James V. Joyce, who is the principal of Joyce Western Corporation and Miami Springs, testified that while Miami Springs ceased operations at mines in the involved Kentucky area on 1 August 1975, there was some work done during the remaining months of 1975; that in shut- ting down the operations employees were retained to wind up whatever was there ; that the men kept on each project were those most familiar with it; that many of the discriminatees were employed at the Bee Tree mine that "did not require the reclamation like the other projects because Ashland took it over and was going to continue to use it"; and that, as here pertinent, Robert Miller, one of the individuals who appears on the afore- mentioned payroll records, General Counsel's Exhibit 5, had worked for Joyce since before 1973, and another, Cletus Jack Norman , has worked for Joyce for 35 years. Citing Buncher Co. v. NLRB, 405 F.2d 787 (3d Cir. 1969), and W. C. Nabors Co. v. NLRB, 323 F.2d 686 (5th Cir. 1963), cert. denied 376 U.S. 911 (1964), the General Counsel contends that Respondents have to demonstrate that following the discriminatory layoff the discrimina- tees would have been laid off nondiscriminatorily; and that as pointed out in McDonnell Douglas Corp., 270 NLRB 1204 (1984), this showing must be made with cer- tainty and not be based on speculation . The General Counsel argues that there is a presumption that the dis- criminatees are entitled to backpay during the entire period that Respondents ' employed employees at their minesites absent evidence to the contrary that assertedly Respondents did not advance ; that apparently Respond- ents did not keep seniority lists and there is no evidence of record to show how employees were selected for 600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD layoff prior to the end of December 1975; that Respond- ents failed to show that any of the discriminatees would have been lawfully laid off; and that because employees were employed through December 1975, the backpay ac- cordingly continues through that time. Proof that an employer had no available jobs is an af- firmative defense and the burden of establishing it rests on the employer. Respondents have not met that burden. Consequently, backpay for the fourth calendar quarter is appropriate. The methodology utilized in computing the backpay for the fourth calendar quarter of 1975 is set forth above. The General Counsel submits that it could not be deter- mined in what order discriminatees should have been re- instated to the remaining jobs because Respondents did not indicate that any system like seniority was used. Consequently, the backpay is divided equally among those discriminatees eligible for reinstatement . Also, as noted above, Respondents take the position, in the alter- native, that assuming it is found proper to allocate the re- mainder of gross backpay to discriminatees designated as "pool" employees, only excess night watchman and la- borers' pay should be pooled because employees placed in the pool were not qualified to perform work other than that of a night watchman and laborer. Citing Chase National Bank, 65 NLRB 827, 829 (1946), the General Counsel argues that although a discriminatee need not be offered reinstatement to a position that no longer exists, Respondents must reinstate the discrimina- tee to a substantially equivalent position or, under Nibco, Inc., 119 NLRB 277, 278 ( 1957), in certain circum- stances, to one which that individual is qualified to per- form. The General Counsel points out with the exception of Cleveland Bailey, the individual pool discriminatees credibly testified that they were able to perform the work of a mechanic's helper. 6 Cleveland Bailey did not believe that he could be a mechanic 's helper. In the remedy section of his decision , dated 12 April 1978, Judge Ohlbaum cited "the serious (as well as reci- divistic) nature of the violations here , involving among other things discriminatory mass layoffs in reprisals for no more than exercising basic rights under the Act." G.C. Exh . 1(a). He then went on to include the follow- ing language in the affirmative actions of his Order:' 2. In the event any of Respondents , any corpo- rate or other enterprise in which any of Respond- ents or any principal of any of Respondents , includ- ing but not limited to James V. Joyce , or any nomi- nee, proxy, dummy, fiduciary, trustee, deputy, part- ner, associate, manager, superintendent, foreman, su- pervisor, agent, attorney, subordinate, employee, designee, or person acting for or in concert with or subject to the authority of the foregoing, singly or together, directly or indirectly, has or have a con- 6 Included are Joe Salyer , Cleveland Bailey, Monroe Beck , Joe Minix, Robert Salyer, Kenneth Salyer , Conley Turner, and Paul Bailey The last named individual did not testify Consequently it was not shown that Paul Bailey could be a mechanic's helper 7 The Order spoke to Miami Springs Properties , Inc. and James H Kinley & Associates, Joint Employers, and their and each of their offi- cers, agents, successors, and assigns trolling interest , resumes, initiates, or conducts any mining or strip-mining, earth-boring or excavating or moving, prospecting, tippling, coal production or transportation or factoring or selling or related op- eration, in or within a radius of 100 miles of Magof- fin, Breathitt or Knott County, Commonwealth of Kentucky (whether within or outside of the Com- monwealth of Kentucky), within a period of 10 years from the date of this Order, then and in that event he, she, it, or they and their associates shall, imme- diately prior to actually commencing any such op- eration establish and for one year thereafter main- tain a preferential hiring list for each such enterprise and location, giving immediate, absolute and un- qualified hiring preference to each of the unlawfully laid off employees herein , listed [above] in this Order, and thereafter secondary hiring preference to Respondents' other employees displaced from their employment by reason of Respondents' having terminated their operations herein under the circum- stances described in the Decision of which this Order forms a part, before hiring any other persons at or for any such enterprise or location. Written notice of such preferential hiring requirement shall be publicly and prominently posted and continuous- ly maintained during said year at all of said mine- sites, enterprises and location [s] , their local head- quarters and offices, and at all other places where employees therefor are locally interviewed for hire, hired, or paid. [Emphasis added.] The following is quoted from footnote 52 in the remedy section of Judge Ohlbaum 's decision: There is a massive wealth of material in the record indicating, for example, that even as of the date of trial herein, some operational activity by Respondents was continuing ; that there were new hires and other transfers; that Respondents' stripmin- ing bonded reclamation obligations, requiring manpow- er, were as yet unfulfilled; that Respondents contin- ued to derive income from allied operations (e.g., A and P Coal Company of Sheriff Patrick) into which they had funneled contractual rights and expecta- tions; that Respondents or their principals continue to hold mine lease and other local properties and in- terests which are actually or potentially income- producing, saleable , or manpower-requiring; that the stripmines here in question are located in a Ken- tucky area which borders on another State (West Virginia) in which Respondents may have similar enterprises or interests ; and that Respondents or their principals, in one corporate or other guise or another, are even expanding their operations in the areas in question. The carefully worded and seem- ingly hedgingly equivocative nature of Respond- ents' affirmative defenses (i.e., "third defense") in each of their Answers raising these matters also does not escape attention . These and related matters are for searching inquiry in supplemental compli- ance or other proceedings or places . Cf. Northridge JOYCE WESTERN CORP. 601 Knitting Mills, Inc., 225 NLRB 1054 (1976). [Em- phasis added.] As noted above, the Board adopted Judge Ohlbaum's approach reiterating verbatim Judge Ohlbaum 's language as set forth in the second preceding paragiaph, including the following : "within a period of 10 years from the date of this Order .. .." The Board's Order is dated 25 Sep- tember 1979. Miami Springs Properties, Inc. petitioned the United States Court of Appeals for the Sixth Circuit to set aside the Board's Order, as indicated above. The petition was dismissed and the Order of the Board was ordered en- forced without change on 30 July 1981. Respondents argue that the reclamation work per- formed in Kentucky covered in Appendix B to the speci- fication does not fall within the affirmative provisions of the Board's Order "since it was not a part of any coal mining operation . Therefore, there was no requirement that Joyce Western Corporation offer said work to any of the discriminatees ." (R. Br. 4.) Respondents point out that the restoration work was done by Joyce Western Corporation on lands in Kentucky that were never a part of Miami Springs Properties , Inc. Also, Respondents take the following position (see R. Br. 6-7): Should backpay be awarded this discriminatee for the restoration work performed in Kentucky (Ap- pendix B), it should be only for calendar quarters following the Sixth Circuit's mandate of July 30, 1981. Respondents argue against the inclusion of Joyce Western's New York and Pennsylvania em- ployees' pay in the calculation of gross backpay for this discriminatee since the testimony reflects that the following employees have worked for the Com- pany for some time prior to the work at issue [Tr. 228, 275-276, 531 -532]: Cletus (Jack) Norman, John Ingalls, Donald Walters, James Flynn, Clarence Phillips, Dan Norman and George Phillips [see, General Counsel, hereinafter designated "GC," Ex- hibit Nos. 42, 43(f) and (j); 44(1-p); and 45(a-g)] The only Kentucky truck driver hired at this location was James Edward Fulks [See GC Exhibit No. 44(j)]. If any award is made for this restoration work [Appendix B], it should be based on this truck driver's pay alone. . . . [Bracketed material in origi- nal as set forth above.] Subsequent to the Board's order here reclamation work was performed at or near Ashland, Campton, and Martha, Kentucky, all of which points are in the Ken- tucky area involved here, under obligations incurred by James Joyce. As here pertinent, such work continued up to July 1985 . Joyce Western Corporation employed the individuals who performed the reclamation work. The corporation is owned by James Joyce, and James Kinley is a member of the board of directors . Respondents nei- ther offered any of the discriminatees this work nor did Respondents establish a preferential hiring list for the dis- criminatees.8 8 Some of the discnmmatees have performed this type of work Contrary to the position Respondents take , the opera- tive date regarding this reclamation work covered by Appendix B to the specification is the date of the Board's Order, 25 September 1979, and not the date of the court's Order, 30 July 1981 . This aspect of the Board's Order was not the first time that Respondents were put on notice that this was the approach that should be taken in this type of a situation; Judge Ohlbaum's April 1978 decision placed Respondents on notice that this would be the recommendation to the Board . Judge Ohlbaum's de- cision also put Respondents on notice that reclamation work was an area where discriminatees could be used. Respondents now argue , in the alternative , that this aspect of the backpay should only begin on the date of the court order . There is no evidence of record that Re- spondents established a preferential list subsequent to the court's order. And if there were any postcourt order openings, none of the discriminatees were asked to fill them. Respondents' argument that the involved reclama- tion work is not covered by the Board Order is nothing more than a refusal on their part to admit the obvious. And, in view of the relationship of the individuals and corporations involved here , an assertion that the in- volved work was not covered on that basis lacks merit. With respect to Respondents' argument that the posi- tions held by Joyce Western's New York and Pennsylva- nia employees in the involved Kentucky reclamation projects should not be considered in computing backpay, the General Counsel, on brief, at 13 and 14, contends as follows: Respondents further argue that because James Joyce had some employees who had worked (albeit intermittently at various jobs) for him for many years such "long term" employees were privileged to be employed on these reclamation projects in place of the discriminatees. However , Respondents' argument is based on a false premise and assumes that once James Joyce hired an employee , he or she was a continuous employee whom Joyce did not have to layoff in order to "make room" for any of the discriminatees. Joyce admitted that even these "long term" employees are laid off from time and time and are expected to find other work during the periods which he or any of his other corporate enti- ties do not have work for that employee. (Tr. 523- 524, 541-542) Thus, Respondents are not talking about long term continuous employees . They are talking about employees who have been hired and work for James Joyce in various of his enterprises throughout the years as they were needed, going from job to job, from company to company and from time to time . Moreover the Board's Order mandates giving immediate , absolute and unqualified hiring preference to the discriminatees. Such an Order does not allow for preference to be given to employees employed at other jobs or related com- panies. The reclamation projects (which are the basis for Appendix B) comprise separate jobs from other jobs Joyce happened to be operating. (It would appear that even among the reclamation work, there were 602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD several distinct and separate jobs to the extent that the work was performed at different times at differ- ent locations.) "Unqualified hiring preference" cer- tainly does not mean that Joyce may work employ- ees instead of the discriminatees simply because they have worked with him in the past at other jobs and locations. Clearly, the discriminatees were enti- tled to these jobs and Respondents' failure to hire them results in backpay due to them. In the circumstances involved here, the General Coun- sel's position is well taken. The involved reclamation work will be included in computing the backpay owed. With respect to Appendix C of the specification, Re- spondents take the position, as noted above, that the Princess Cindy operation near Oak Hill, West Virginia, was more than 100 miles from Magoffin County, Ken- tucky.9 More specifically, Respondents, at page 5 of their brief, argue as follows: Moreover, it is the position of the Respondents that the Oak Hill, West Virginia operation, owned by James V. Joyce, was outside the territorial limits in coverage of the affirmative provisions of the Board's Order. The 100-mile radius mentioned in the Order should not and could not be construed to mean as the crow flies' since that would have re- quired the discriminatees by virtue of the nature of the terrain and road system to have relocated to Oak Hill. The most reasonable construction of that portion of the Order is commuting distance by road. Thus, Oak Hill would have been well over 100 miles away from Miami Springs' former operations by road and inaccessible to any of the discrimina- tees. Furthermore, and, in the alternative, no Re- spondent could have had any affirmative obligation to employ the discriminatees until after the Board's Order was enforced on July 30, 1981. [Emphasis in original.] Taking the second argument first, the contention has already been treated above; the operative date is the date of the Board's Order, 25 September 1979. Regarding the 100-mile radius, the only way such language could be en- forced is if it means straight-line miles. Respondents con- cede that the Princess Cindy is within 100 miles of Ma- goffin County, "as the crow flies." 10 Regarding the Princess Cindy operation, James Joyce testified that the Princess Cindy Mining Company was purchased by Joyce Western Corporation in 1978; that he was president of Joyce Western Corporation, which at that time was owned by his family; that it was an on- going coal mining operation; that when Joyce Western Corporation purchased the Princess Cindy Mining Com- pany it, hired the employees who were already working under the predecessor and then it hired Keith Grable, Robert Miller, and specified truckdrivers; that Miami Springs' equipment was utilized on the Princess Cindy 9 Even on a straight-line mileage basis, the Princess Cindy operation would be more than 100 miles from the other named Kentucky counties 10 Although a crow might not always fly in a straight line, this is inter- preted to mean straight line or air miles operation; that his purpose in purchasing and operating the Princess Cindy was to have an ongoing operation so that he could "get rid of the equipment" he had previ- ously used at the Miami Springs locations (in other words, whoever bought the Princess Cindy lease would have a use for the equipment located at that operation); that there was not enough additional work at the Prin- cess Cindy to hire the 23 discriminatees and "the original crew that was there, the help didn't fluctuate by four or five people"; that there was a very small crew at the Princess Cindy because, as indicated above, "the object . . . was not to go in . . . and mine the top of the hill off . . . it was simply to have an ongoing operation so that we could sell the operation and the equipment"; that coal was mined and sold at the Princess Cindy; that this mine was shut down during the winter months because it was not economical and coal mines did not sell in the winter; and that each winter the employees were termi- nated when the mine was shut down and they were free to look for jobs elsewhere, but in the spring when it came time to start up the same people came back. Subse- quently, Joyce testified that when the Princess Cindy was shut down in the winter, [a]ll the employees were laid off. They could do whatever they wanted to. If they wanted to go out on unemployment or go to work for someone else, they're welcome to, but they also knew they would have the first opportunity to return to work in the spring when they started up. Then Joyce testified that he was not at the Princess Cindy jobsite and he did not personally tell the employ- ees that they could return when work started up but he "just assume[d] that they're all kin folk and work for Joe Paisley [who was superintendent on the job and who de- cided who worked and who did not] and they did return 11 On brief, the General Counsel argues that the over- whelming weight of evidence demonstrates that "Eastern Kentucky citizens who are in the job market, including the discriminatees , frequently travel seemingly long dis- tances for employment . . . temporarily moving their residences [if necessary]"; that the Princess Cindy was a continuation of Miami Springs and they were a single employer in that Princess Cindy utilized Miami Springs equipment transported from Kentucky and involved the same business operations; that a reasonable interpretation of the Board's Order would require Respondents to rein- state the discriminatees at Princess Cindy even to the extent of displacing other employees; that, in the alterna- tive, if the Respondents did not have the obligation to hire the discriminatees until they hired new employees at Princess Cindy consideration should be given to the fol- lowing : (a) although an employee's name appears on a Princess Cindy payroll for one or several weeks this does not necessarily mean the individual has been hired exclusively to work on the Princess Cindy job and, therefore, the individual, i.e., mechanic Robert Miller, was not a permanent Princess Cindy employee, (b) whenever an employee reappears on a Princess Cindy payroll but in a new job classification, they should be JOYCE WESTERN CORP. 603 considered as a new hire because that job classification was required for the first time and, therefore, preferential hire should have been given to the discriminatees and (c) any ambiguities in Respondents' evidence, namely, Re- spondents' payroll records, regarding who was hired when at the Princess Cindy should be resolved against Respondents, who are the wrongdoers and, therefore, the payroll records should be interpreted to mean that in April 1980 Princess Cindy required the employment of additional operators and the discriminatees were not hired to fill those positions;"' that with respect to the formulas used for Appendix C, (a) the job classification of operator/mechanic could have been filled by discri- minatee operators since they were able to and did in fact perform some mechanical work and assisted mechanics who worked on their equipment, and Respondents' pay- roll records indicate that when a mechanic was needed an employee was hired in that job classification, (b) that wherever Princess Cindy employed a greater number of employees in a job classification than there are discrimin- atees in that job classification, i.e., night watchman, that other discriminatees who were capable of doing the work should have been offered the jobs except with re- spect to mechanics and operators under the theory that those jobs required special and particular skills, (c) that if any discriminatee is capable of performing operator work he should be entitled to the operator's pay, and the record reveals that discriminatee Walter Auxier qualified as an operator because his uncontroverted testimony re- veals that he has worked as a heavy equipment operator at various other jobs, qualifies as one and was able to do the work, and (d) the pool correctly includes the excess pay derived from Respondents' employment of a greater number of truckdrivers than there are truckdriver discri- minatees, because the testimony revealed that although a coal truckdriver is required to have a chauffeur's license to haul coal over the road, such chauffeur's license is not difficult to obtain and those with operators' licenses can readily obtain a chauffeur's license and, therefore, it is apparent that the requirement of a chauffeur's license would not have prevented the "pool discriminatees" from working as truckdrivers; 12 that the record reveals that the Princess Cindy mining operation venture was entered into by James Joyce and James Kinley via J & J Resources, Inc. and it was a direct channel from Miami Springs in terms of operations and equipment and ap- pears on the payroll of Joyce Western Corporation; that Joyce and Kinley were the principals in all the above corporations; that Kinley served on the board of direc- tors, participated in the corporate meetings, signed the corporate minutes for J & J Resources, Inc. and thereby was directly involved with Princess Cindy; that, there- fore, Joyce and Kinley fall squarely within the Board's Order requiring any "corporate or other enterprise in which any of Respondents or any principal of any of Re- spondents has or have a controlling interest"; and that all I I Those characterized as additional new hires are set forth in in 22 of G C Br 20. 12 As Indicated by the General Counsel, two of the discriminatees were already classified as truckdrivers When Princess Cindy employed a third truckdriver, the backpay for that driver went into the "pool" ac- count Respondents should, therefore, be liable for the backpay arising out of the Princess Cindy West Virginia oper- ations. In a backpay proceeding the General Counsel has the burden of establishing as nearly as possible what the em- ployees would have earned but for the unlawful conduct of the Respondents. Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), and NLRB v. Brown & Root, 311 F.2d 447 (8th Cir. 1963). The General Counsel has the burden of establishing a formula for the calculation of gross backpay due to employees, but in many cases it is diffi- cult to ascertain the precise amount due and, therefore, a wide range of discretion is accorded the fashioning of such a formula provided it is reasonably designed to produce approximations and it is not arbitrary and unrea- sonable. Once the General Counsel has established a rea- sonable formula, the burden then falls on Respondent to establish facts that would negate or diminish the exist- ence of liability. Brown & Root, supra. Board calculations based on calendar quarters have been approved. Id. With some exceptions, described below, I agree with the positions taken by the General Counsel as summa- rized in the second preceding paragraph. Regarding the first exception, in my opinion paragraph (b) in the affirm- ative action section of the Board's Order should not be interpreted to mean that individuals hired at the Princess Cindy operation before the date of the Board's Order, 25 September 1979, should have been displaced to make room for the discriminatees. There was a hiatus between the closing of the Miami Springs operations and the pur- chase of the Princess Cindy. The above-described ties, which are set forth by the General Counsel, are not suffi- cient, in my opinion, to conclude that the Princess Cindy was a continuation of the Miami Springs operation. The discriminatees should have been given preference with respect to any hiring at the Princess Cindy after 25 Sep- tember 1979, which should include, as the General Coun- sel asserts, positions filled by nonpermanent employees and changes in classification. Second, I cannot agree with the General Counsel's po- sition regarding the placement of the wages of the third truckdriver into a "pool." The fact that to obtain a chauffeur's license in Kentucky may require no more than having an operator's license (and the fee) does not fully resolve this matter. Some States differentiate their chauffeur's licenses based on the gross weight of the ve- hicle involved and/or type of vehicle involved. The skills required to operate a small truck or an off-the-road dump truck are clearly different from the skills required to operate large, over-the-road, coal-hauling truck. Al- though Kentucky may not require an applicant to prove these skills through testing or documentation (i.e., past experience or training), in my opinion it would not be proper to conclude that just because the discriminatees had operator's licenses and may have been able to obtain chauffeurs' licenses that they were qualified to drive large, over-the-road, coal-hauling trucks. In this respect the General Counsel cites the testimony of Turner and James for the proposition that the requirement of chauf- feur's licenses would not have prevented the "pool dis- criminatees" from working as truckdriver. Turner, how- 604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ever, on recross when asked if he had ever driven a coal truck testified that [n]ot the one that they haul coal in, no, not big trucks. I've got one, but I mean I wouldn't myself no [sic] qualified drivers for that." Earlier he tes- tified that he had driven 2-1/2- to 3-ton trucks but not trucks that hauled coal. James' qualifications to drive more than an off-the-road rear dump, rock truck are not clear on this record. At one point he testified, "I drive them on the highway." But it is not clear on this record exactly what type of vehicle he was referring to. None of the other three pool members (Walter Auxier will be taken out of the pool and given an operator's pay), namely, Marcus Pennington, O'Banion Ritchie, or Paul Bailey, testified here and it, therefore, cannot be con- cluded that they were qualified to drive a large, over- the-road, coal-hauling truck. Consequently, the backpay for the third truckdriver will be withdrawn from the pool. 13 Regarding the overlap between Appendices B and C to the specification with respect to the backpay for la- borers for the first calendar quarter of 1981, it is my opinion that each of the six laborers14 should receive the backpay designated in Appendix B. With this approach four of the six would receive more money and the posi- tion of the remaining two would be unchanged. The $630.17 each would have received should go into the pool established with respect to Appendix C. As indicat- ed above, three of the pool members did not testify.15 Consequently, while the job of a laborer is not a position requiring specialized skills it is not known whether any or all three of these individuals may suffer from or may have suffered from some physical impairment that would have precluded them from qualifying for that position. The remaining pool members, Conley Turner and Henry James, did testify and, based on my observations of them and their testimony, it is my opinion that they are and were qualified to be laborers. Accordingly, the laborers' backpay for the first quarter of 1981, $3781.02, will be divided evenly between Turner and James. A review of Respondents' records demonstrates that these two men could have handled the mechanic's helpers and laborer functions during the first calendar quarter of 1981. As noted in the specification, there is an overlap in Appendices B and C thereto regarding operators (the fourth calendar quarter of 1982) and truckdrivers (the second calendar quarter of 1981 and the third calendar quarter of 1982). In footnote 73 of the specification, which apparently refers to this situation as well as the aforementioned laborers' situation, the following, as here pertinent, is indicated: Should it be found that Respondents are liable for backpay in both appendices [B and C] for this quar- 18 Because these three individuals did not testify, it cannot be conclud- ed that they were capable of being mechanic 's helpers either Conse- quently, these three will not share in that part of the pool representing the pay of mechanic's helpers. (This is of no consequence to Ritchie and Paul Bailey because of their interim earnings. It would mean a difference of $19 05 to Pennipgton ) Instead the mechanic's helpers portion of the pool will be divided evenly between Turner and James is Monroe Bach, Joe Minix, Cleveland Bailey, Joe Salyer, Kenneth Salyer, and Robert Sayler 15 Marcus Pennington, O'Banion Ritchie, and Paul Bailey ter [the quarter footnoted is the first calendar quar- ter of 1981 and deals with the laborers' overlap], it must be determined at which location the discrimin- atee would have worked. The gross backpay from the appendix not assigned to the discriminatee should be divided among other discriminatees in classifications not employed. Although such an approach is feasible with respect to a laborer's position, in my opinion it is not appropriate with respect to operators and truckdrivers. Only those possessing the special qualifications to fill those positions should receive that portion of the backpay . In my opin- ion Respondents are liable for backpay in both appendi- ces B and C of the specification. But regarding the choice occasioned by this conclusion it does not appear that, with respect to operators and truckdrivers, suffi- cient evidence has been placed in the record so that this choice can be made. 1 e The aforementioned 10-year period continues to run until September 25, 1989. This matter can be cleared up with either a subsequent filing or in a subsequent proceeding.17 The amounts set forth below will include the overlap to the extent it may exist. Respondents argue that a number of the discriminatees did not mitigate damages during specified periods in that while they claimed to have searched for work allegedly their efforts were less than satisfactory."" the General Counsel contends that Respondents fell far short of their burden to prove discriminatees did not seek out available work. The discriminatees' testimony as well as the record as a whole describes a situation where the jobs were scarce and the discriminatees, for the most part, made extensive efforts to apply at every job that was ongoing. Many of the discriminatees qualified for, and did draw, unemployment compen- sation which by State law required their continuous search for employment. [Tr. 447.] There was also testimony that the food stamps program as adminis- tered by Kentucky also required that the recipients of food stamps be actively looking for work. [Tr. 556.] Some of the discriminatees registered with their respective Union's referral lists. [Tr. 550.] Even in the cases of a few of the discriminatees, like Cleveland Bailey, who testified that he only ac- 16 If an election is made with respect to one operator , this will have ramifications on the remaining operators The variables were not treated on this record 14 Since their interim earnings exceed gross backpay, it would not matter to operators Calla Howard and Luther Jordan and truckdnver Burke Perkins, whether App B or C were chosen regarding the involved calendar quarter for the operators (1982-1984 ) on the involved quarters for the truckdnvers (1981-1982 and 1982-1983) Because more than one truckdriver was utilized during the involved period, that portion of the backpay not chosen should not go to the other truckdnver discnminatee It appears that a different situation exists with the operators and, there- fore, once the election is made for Howard and Jordan the gross backpay available will change regarding the others in this classification who might chose the backpay listed on the appendix not chosen by Howard and Jordan 16 Respondents take this position with respect to Roy Arnett , Cleve- land Bailey, Arlie Holbrook, Henry James, Joe Minnix, Roy Van Mmnix, Bubby Montgomery, Joe Salyer , and Robert W Salyer JOYCE WESTERN CORP tually applied at one or a few jobs, such limited ap- plication activity is not conclusive of the issues sur- rounding their search for work. In that respect Bailey testified that he talked to friends, neighbors, and relatives around the community and there wasn't any work. [Tr. 457] One must keep in mind that the geographical area in which these men reside was such that in the words of Calla Howard, "It's a small area and everybody knows what's going on . . . if a company is hiring people every- body knows it and if there's a strike, everybody knows it, and if there's a lay off everybody knows it." [Tr. 457.] The only conclusion to be drawn from the record testimony was that those were "lean years" [Tr. 444] for the job situation, necessitating discrimina- tees like Milton Adams, Bubby Montgomery, Burlie Perkins and others to expand their search for work way beyond even the 100 miles set forth in the Board's Order. Thus, Respondents did not prove any lack of diligence on the part of the discrimina- tees and even those cases where Respondents might show that discriminatees made few applications for work, that does not end Respondent's burden. The record reveals that there were very few jobs avail- able to the discriminatees during that time period and the law does not require discriminatees to un- dergo constant exercises in futility simply to rebut any mitigation issue. It is amply clear that all the discriminatees who were out of work and were unable to find work frequently discussed the job sit- uation with members of the community, constantly sought news of employment opportunities and in fact their individual employment records indicate that most of the discriminatees did go to great lengths to actually find work. The efforts discriminatees are expected to make to obtain interim employment are those expected of reason- able persons in like circumstances, which include, as here pertinent, age, education , employment history, and sta- tion in life as well as unemployment trends in the area where discriminatees reside when the discrimination oc- curred. Although it is not conclusive, one element indi- cating that a reasonable effort has been made to seek work consists of continued active registration for work with a state employment service. The absence of such, however, does not necessarily demonstrate a lack of dili- gence. In my opinion each of the discriminatees, considering the circumstances present here, made a reasonable effort to obtain other work. Cleveland Bailey testified, begin- ning on cross-examination, as follows: Q. So, from 1975, when [you] were laid off, until the present time [January 1986], you put in the one application, there, at Addington Brothers, and that's all? A. That's the only one I can remember of. Q. Is it possible you might have put in an appli- cation somewhere else? A. Not that I know of. Redirect Examination 605 BY Ms . VAUGHAN: Q. Mr. Bailey, did you remember filling out a questionnaire for the Labor Board, some time ago, many years ago, as to where you looked for work? A. No, I don't. It's hard to remember 11 years. Q. Did you ever look for work at Montry Mining? A. No. Not that I know of. Q. You don't have any-that doesn't jog your memory? Did you ever look for work at Wolverine Coal, at Royalton, Kentucky? A. I don't remember if I did. Q. Crest Coal? A. I can't remember neither of them, if I looked there. 11 years-it's pretty hard to remember. Q. Were you-how old are you? A. 62 the 17th of this month. Q. So, you weren't old enough to retire, after you were laid off at Miami Spring, were you? A. No. Q. Okay. What did you live on? A. Well, you might say food stamps, partly. Q. Okay. Okay. During that time, did you draw any unemployment at all? A. No, I didn't draw any on him. Q. Well, why didn't you look for work? A. Well, they-I didn't think there was any use of it. Q. And why did you figure that? A. Because they wasn't hiring. Q. And how did you know that? A. I knowed. Q. Well, can you tell me how you knew? Did you talk to other people or did people tell you? A. Yeah. Q. Can you describe that to us? A. Well, I'd ask around, you know, people, if they was a hiring. Asked the people in the country and they wasn't hiring nobody. Q. Who all did you ask? A. Well, I can't remember that. Q. Well, can you tell us what kind of people they were? Were they neighbors, were they friends, were they relatives? A. They was just people I knowed, you know. Q. How often did you ask people if there was any work? A. Well, several times, but it didn't do any good. Q. Okay. Did you get any leads at all, from these people? A. No. The only thing I'd hear-they was a hiring. Q. Was the job market or the availability of jobs discussed quite a bit around in the community where you were? A. No, if they had a been I would have got one. Q. Okay. Was there quite a bit of talk around town that there wasn't anybody hiring? MR. HopsoN : Object. Leading. 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. Oh, there was a lot people, you know, trying to get jobs and couldn't. JUDGE WEST: Overruled. BY MS. VAUGHAN: Q. How did you know that? A. Well, I just talked to them. Q. Okay. Ms. VAUGHAN: I have no further questions. Recross-Examination BY MR . HOPSON: Q. Mr. Bailey, did you ever come over here to Prestonsburg and try to find employment? A. No. Q. Did you ever go over to Paintsville, which is about 20 miles from Magoffin County and ask for work over there? A. It wouldn't help the case any. Q. Well, did you or not? A. No, I didn't. His testimony is indicative not of a total lack of effort but rather of the conditions that existed in the involved area. When viewed in the light of the criteria set forth above in my opinion a finding is warranted that even Cleveland Bailey made reasonable efforts to seek work. The remaining issues involving the discriminatees will be covered in the following treatment of them. Lowell Adams' backpay (with an overlap) is correctly set forth in the specification and the appendices thereto as amended at the hearing here and subsequently correct- ed (hereinafter references to the specification will include the amendment and corrections thereto).19 Respondents do not challenge the figure, but rather contend, as noted above, that Adams and other discriminatees who were on strike should not receive backpay for that period and that the backpay for the restoration work should be lim- ited to the calendar quarters following the Sixth Circuit's mandate of 30 July 1981. As concluded above, both of these arguments lack merit. In the light of the conclusions in the next preceding paragraph and in light of other conclusions reached above, in my opinion the specification correctly sets forth the backpay of Milton Adams, Roy Arnett, Arlie Holbrook, Bobby Ray Howard, Calla Howard, Luther Jordan, and Glenny Wisecup.20 Respondents contend that no backpay should be awarded to Milton Adams for the fourth calendar quarter of 1982 and the first quarter of 1983 in view of the discriminatee's discharge from in- terim employment. On this record, it has not been dem- onstrated that there was sufficient cause for the involved discharge. Consequently these two quarters will be in- cluded in the computation. 19 There is a mathematical error in the gross backpay computation for the fourth calendar quarter for 1981 in App C to the specification for this discriminatee As indicated in in 71 in the specification the amount should be $6347.88 This same mistake was made for the other truckdriv- er, Burlie Perkins The former's interim earnings exceeded the gross backpay The latter's did not, a matter more fully treated below 20 As noted above and below , there remains an overlap with respect to some of these discrimmatees Walter Auxier's backpay is correctly computed in the specification except with respect to Appendix C thereto because it is concluded above that he was qualified to be a operator at the Princess Cindy. As modified the rele- vant portion of Appendix C will read as follows: Yr. /Qtr. Gross Backpay Interim Earnings Net Backpay 80-2 $6,782.02 $6,600.00 $182.02 80-3 6,391.76 6,600.00 0 80-4 3,431.72 6,840.00 0 82-2 5,808.49 1,921.51 3,986.98 82-3 4,293.65 1,921.51 2,372.14 Total ........................ $6,541.14 Monroe Bach's backay is correctly computed in the specification except with respect to Appendix A there- to.21 Bach's share of the amount given to the pool in Appendix A is increased because the shares of two other pool members were decreased because it was not demon- strated that they (Cleveland Bailey and Paul Bailey) were qualified to be mechanic's helpers. Because he had no interim earnings or expenses for the fourth calendar quarter of 1975, Bach's net backpay for that quarter is $898.57. As indicated in the next preceding paragraph, in my opinion, Cleveland Bailey was not qualfied to be a me- chanic's helper. Consequently, his share of the Appendix A pool is limited to the night watchman's pay. Because he had no interim earnings or expenses in the fourth cal- endar quarter of 1975 Cleveland Bailey's net backpay for that period is $102.05 With respect to Appendix C to the specification, as discussed above, the $630.17 backpay for a laborer in the first calendar quarter of 1981 is deleted to eliminate an overlap. With the correction for the fourth calendar quarter of 1979, namely, $117.84 net backpay, the total net backpay in Appendix C for Cleve- land Bailey would be $722.02. Otherwise the specifica- tion correctly sets forth the backpay of Cleveland Bailey. Paul Bailey's backpay is correctly set forth in the stip- ulation except with respect to Appendices A and C thereto. As noted above, because Paul Bailey did not tes- tify, it cannot be concluded that he could have qualified for anything except a night watchman. Accordingly (1) his share of the pool in Appendix A is reduced to $102.05 gross backpay (because his pertinent interim earnings exceed this, his net backpay is $0 for the fourth calendar quarter of 1975); and (2) his share of the pool in Appendix C is limited to one-fifth (as noted above, the sixth member of the pool, Walter Auxier, has been desig- nated an operator) of $768.93 or $153.79 gross backpay for the third calendar quarter of 1980 . (Because his inter- im earnings exceed this his net backpay for the quarter is $0.) 21 As noted above, the election for Bach and other laborers is herein made so that they would not receive the laborers' backpay for the first quarter in 1981 as covered in App C to the specification. JOYCE WESTERN CORP. 607 Henry James' backpay is correctly computed in the specification except with respect to Appendix C. As modified, the pertinent portion of Appendix C reads as follows: Yr. /Qtr. Gross Back-pay Interim Earnings Ex- penes Net Backpay 1980-3 22$153.79 $655.17 0 0 1981-1 292789.01 24891 .45 0 $1897.56 1981-2 25849.00 891.45 0 0 1981-3 0 891.45 0 0 1981-4 0 891.45 0 0 1982-1 26$155675 27$515.59 0 $1041.15 1982-1 28244400 515.59 0 1928.40 1982-4 0 515.59 0 0 Total....... $4867.11 Joe Randall Minix's backpay is correctly computed in the stipulation except with respect to Appendices A and C. Appendix A is modified here as a result of the failure of Cleveland Bailey and Paul Bailey to demonstrate that they were qualified to be mechanic's helpers. The amount should be $898.57.29 As indicated above, the la- borers overlap has been resolved with Joe Randall Minix and the other laborers receiving backpay under Appen- dix B and not Appendix C. Consequently, his net back- pay under Appendix C is $0. Roy Von Minix's backpay is correctly computed in the specification except with respect to gross backpay for the last calendar quarter of 1979 and the first calen- dar quarter of 1980 as set forth in Appendix C thereto. More specifically, inasmuch as it is determined above that Respondents did not have to fire employees at Prin- cess Cindy on 25 September 1979 to make way for the discriminatees, Roy Van Minix should not receive back- 22 With Walter Auxier's removal from the pool (considered above as an operator), the remaining pool members share his portion ($128 16 di- vided by 5 = $25 63 and $ 128.16 divided by $25.63 = $153.79) 23 As noted above, of those remaining in the App C pool, only Henry James and Conley Turner testified herein demonstrating that they were qualified to be mechanic's helpers Consequently, the mechanic's helper backay for the first calendar quarter of 198 1 will be divided equally be- tween these two ($1,797 divided by 2 = $898 50) Additionally because only these two pool members testified, only they will share equally the laborers' backpay for this calendar quarter ($3781 02 divided by 2 = $1890.51 and $898 50 plus $ 1890 51 = $2789 01) 24 After dividing James' annual interim earnings by 4 (for the calendar quarters), his annual interim earnings for 1981 were further divided by six, for the number of pool members. Since Auxier has been taken out of the pool, the quarter interim earnings were divided herein by five for each of the quarters of 1981 2a For the reasons stated above James and Turner alone should share equally the mechanic's helpers wages ($ 1698 divided by 2 = $849) And for the reasons stated above, none of the pool members should share the truckdnvers' wages 26 This represents one half of the mechanic helper's pay 27 This figure was adjusted to take into account that there are now five individuals in the pool 29 This represents one-half of the mechanic helper's pay 29 For the reasons given by the General Counsel on brief the farming interim earnings of Joe Randall Minix will be considered as interim earn- ings in the fourth calendar quarter of 1984 when he actually received the money and not when he did the farming in the summer of 1984 Accord- ingly, App B to the stipulation correctly sets forth Joe Randall Minix's backpay for that period pay for the two aforementioned quarters under Appendix C. Similarly Bubby Montgomery's backpay is correctly computed in the specification except with respect to Ap- pendix C thereto. For the same reason set forth in the next preceding paragraph this discriminatee also should not receive backpay for the fourth calendar quarter of 1979 as set forth in Appendix C. Marcus Pennington's backpay is correctly computed in the specification except with respect to Appendix C thereto. Because Marcus Pennington did not testify at the backpay hearing, it cannot be concluded that he was qualified to be a mechanic's helper, a truckdriver, or for that matter even a laborer. Consequently he should re- ceive no gross backpay under Appendix C, except his share (now one-fifth of $768.93 = $153.79) of the leftov- er night watchman's pay for the third calendar quarter of 1980. Pennington's interim earnings for that quarter ($721.83), however, exceed the gross backpay.30 Burlie Perkins' backpay is correctly computed in the specification except for the aforementioned mathematical error for the fourth quarter in 1981 in Appendix C. The gross and net backpay (no interim earnings) for that quarter is $6347.88, which results in a change in the total net backpay that should be $24,683.68. Joe Salyer's backpay is correctly computed in the specification except with respect to Appendices A and C thereto. Regarding the former, Joe Salyer's share of the amount given to the pool in Appendix A is increased be- cause the shares of two other pool members were de- creased inasmuch as it was not demonstrated that they (Cleveland Bailey and Paul Bailey) were qualified to be mechanic's helpers. The gross and net backpay (no inter- im earnings) for the fourth calendar quarter of 1975 is $898.57. Regarding the latter, as indicated above, the la- borers' overlap has been resolved with Joe Salyer and the other laborers receiving backpay under Appendix B and not Appendix C for the first calendar year of 1981. Kenneth Wade Salyer's backpay is correctly computed in the specification except with respect to Appendices A and C thereto. Regarding the former, this discriminatee's share of the pool is increased to $898.57 for the same reason given in the next preceding paragraph. Regarding the latter, as indicated in the next preceding paragraph this discriminatee, along with the other laborers, will not receive backpay under Appendix C for the first calendar quarter of 1981 for the reason given in that paragraph. Robert Wayne Salyer's backpay is correctly computed in the specification except with respect to Appendices A and C thereto. Regarding the former, this discriminatee's share of the pool is increased to $898.57 for the reason given in the next two preceding paragraphs. Regarding the latter, this discriminatee, along with the other labor- ers, will not receive backpay under Appendix C for the first quarter of 1981 for the reason given in the next two preceding paragraphs. 30 These same modifications to App C to the specification should be made to the computations for O'Banion Ritchie for the same reasons. Similarly Ritchie's interim earnings for the third calendar quarter of 1980 exceed the gross backpay Otherwise, the computations for Ritchie in the specification are correct 608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Conley Turner's backpay is correctly computed in the specification except with respect to Appendices A and C thereto.31 Regarding the former, this discriminatee's share of the pool is increased to $898.57 for the reason given in the next three preceding paragraphs. Regarding the latter, Turner's gross backpay is modified to reflect (1) an increased pool share because Walter Auxier has been removed from the pool, (2) the removal of the third truckdriver's pay from the pool, and (3) the increase in Turner's share of the pool, along with James', because other members of the pool did not testify and demon- strate their qualifications to be either mechanic's helpers or laborers. Turner's gross backpay under Appendix C is the same as James', which is set forth in detail above. During the hearing here, the interim earnings for the first, second, and fourth quarters of 1982 were modified to read ($170.63 for each of these quarters). Consequent- ly, Turner's net total backpay under Appendix C is $6783.35. As noted above and below there remains an overlap with respect to some of these discriminatees. Also, as in- dicated above, Lowell Adams, Paul Bailey, Marcus Pen- nington, and O'Banion Ritchie did not testify here. Spe- cifics were provided in the specification regarding their interim earnings during the involved period. With the ex- ception of Lowell Adams, each under the specification is receiving backpay only up to 1 August 1975. And Lowell Adams, under the specification, is only receiving net backpay of $551.24 for the period during which the involved sites were being closed down to the end of si With respect to the second and third calendar quarters of 1975 the specification notes that in addition to his hourly rate Turner received $50 a week for his truck and tool maintenance Because it is estimated that maintenance costs were only $25 a week, it is contended that, in effect, Turner received an additional $25 pay a week Respondents argue that the General Counsel's contention that Turner " should be paid $50 per week for truck and tool maintenance during the second and third quar- ters of 1975" lacks merit because "such maintenance costs were not in- curred after his [Turner's] layoff, [and therefore] he is not entitled to that sum " R Br 63 Apparently Respondents miss the point The General Counsel is not claiming the full $50 Rather, she is only claiming that portion over and above actual costs that that portion ($25) may reason- ably be treated as pay Turner's testimony about receiving free gasoline from Respondents and using a portion of that gasoline to drive between his residence and work is not contradicted by Respondents Consequent- ly, the General Counsel's inclusion of $360 for expenses for the third quarter of 1975 to cover transportation costs is proper 1975. The involved amounts are relatively small. Re- spondents did not specifically on this record request that these individuals be made available. And Respondents' argument that their failure to testify should count against them regarding their capabilities, as noted above, was found to have merit. Considering all the circumstances, it is my opinion that the backpay of these four should not be placed in escrow. ORDER32 The Respondents,33 Joyce Western Corporation; Miami Springs Properties, Inc.; James H. Kinley & Sons, Inc.; James H. Kinley and Associates; Ex Coal Sales, Inc.; and Christina Resources, Inc.; jointly and severally, Salyersville, Kentucky, their officers, agents, successors, and assigns, are ordered to pay the persons listed in the attachment hereto [omitted from publication] the amount set forth opposite their names, together with interest (less amounts already paid), computed in the manner pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977).34 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 32 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 in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 33 For the reasons given above, this includes each and every one of the Respondents so designated above . On brief, the General Counsel also requests that in addition to Respondents, the backpay order be issued against any related corporation that Joyce and/or Kinley hold a control- ling interest . Without the specifics demonstrating relevancy, I do not be- lieve that it would be proper to include unnamed related corporations. Also, I do not believe that the General Counsel has shown, in the cir- cumstances present here, that it would be proper for me to grant her re- quest for an ongoing order for Respondents to periodically make avail- able and provide for the Board (in addition to the books and records al- ready required by the Board's original order) notification of every time they put into effect a preferential hiring list as well as all their records showing the business operations and employee/payroll information for all business ventures with which they have a connection throughout Ohio, West Virginia, Kentucky, Tennessee, and Virginia. Accordingly , both requests are denied 94 As noted above, the 10-year period that commenced 25 September 1979 continues to run.