Standard Materials, Inc.

STANDARD MATERIALS 609 Standard Materials, Inc. and United Steelworkers of America, AFL-CIO. Case 15-CA-6567 30 September 1987 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 14 December 1982 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge' s rulings, findings,2 and conclusions as modified here3 and to adopt the recommended Order4 as modified here. judge and orders that the Respondent, Standard Materials, Inc., Slidell, Louisiana, its officers, agents, successors, and assigns, shall pay B. B. Allen, Ellis L. Beard, Theodore Charles, Charles Cousin Jr., Levy Crawford, Irvin J. Edwards, Clyde Farve, Harold Hart, Tally Hinton, Claude Ray Jenkins, James Jenkins, Robert Orange, Alt Owens, Oliver Lee Owens, Titus Owens, Alexan- der Paige, Albert Panks Sr., Edgar Peters, Ervin Pope, James W. Square, Edward Wise, and Roose- velt Wise the sums set out in the judge's recom- mended Order, 5 except that Oliver Owens' back- pay will be tolled for the 3-week period in late August and early September 1977 when he re- moved himself from the job market. 5 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 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 U S.C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C. § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law i The Respondent's request for oral argument is denied inasmuch as the record, exceptions, and briefs adequately present the issues and the positions of the parties Chairman Dotson would have granted oral argu- ment on the issue of whether the amount of unemployment compensation received by the discnmmatees should be deducted from their backpay 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are inconect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We will toll backpay for the 3-week period in late August and early September 1977 when Oliver Owens admittedly removed himself from the job market to work "full-time" on his fire-damaged housetrailer. We agree with the judge that the Respondent failed to show that the discnminatees fraudulently concealed earnings from the state unemploy- ment agency or the IRS, and therefore we find it unnecessary to pass on the judge's comments based on the assumption that a discruninatee had engaged in such a fraudulent concealment. In adopting the judge's conclusion not to toll Titus. Owen's backpay, and contrary to our dissenting colleague, we find the Respondent did not establish that Owens rejected a job that was substantially equivalent to the one he had with the Respondent 4 Chairman Dotson disagrees with his collegues' failure to modify the backpay recommendations of the judge in these respects- (1) He would deny all backpay to Clyde Farve, whose testimony disclosed a failure to make a reasonable and diligent search for interim employment. Farve earned only S75 during the 6-month backpay period He testified to very few contacts with other employers Even under the circumstances of lim- ited skills and job opportunities, Farve's search for irdenm employment fell short of reasonable. See NLRB v. Mercy Peninsula Ambulance, 589 F 2d 1014 (9th Cir 1979) (2) He would toll backpay for Titus Owens from the time in late September 1977 when he declined an offer from In- dustrial Concrete and Supply to perform the same driving job he had had with the Respondent but at a higher wage rate Although Owens was en- deavoring at the time to obtain even higher paying cement-finishing jobs, the Respondent's backpay liability did not include an obligation to under- write such speculative efforts at professional improvement when the dis- cnmmatee spurned a clear opportunity at substantially equivalent interim employment John H. Curley, Esq., for the General Counsel. H. Sloan McCloskey, Esq., for the Respondent. SUPPLEMENTAL DECISION FRANK H. ITKIN, Administrative Law Judge. On August 25, 1978, the National Labor Relations Board issued its Decision and Order in this proceeding (237 NLRB 1136), directing Respondent Employer, inter alia, to make whole the 25 employees named below,' for any loss of pay that they may have sustained as a result of the Employer's unfair labor practices against them in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. On October 15, 1979, the United States Court of Appeals for the Fifth Circuit entered a judg- ment enforcing in full the Board's Order (604 F.2d 449). The parties were unable to agree thereafter on the amount of backpay owed to the discriminatees and, con- sequently, on May 22, 1980, a backpay specification and ' The employees names were: B B Allen Ellis L Beard Jessie Lee Brown Theodore Charles Charles Cousin Jr Levy Crawford Irvin J Edwards Clyde Favre Harold Hart Tally Hinton Claude Ray Jenkins James Jenkins John Leonard Robert Orange Alt Owens Oliver Lee Owens Titus Owens Alexander Paige Albert Panks Albert Panks Jr Edgar Peters Ervin Pope James W Square Edward Wise Roosevelt Wise 286 NLRB No. 52 610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD notice of hearing issued alleging the amounts of backpay due to 24 of the 25 discriminatees.2 On June 6, 1980, Respondent Employer filed an answer to the backpay specification. The answer was later amended. On June 30, the General Counsel moved to strike the Employer's answer and for summary judg- ment. Thereafter, on September 30, 1980, the Board issued a Supplemental Decision and Order in this pro- ceeding (252 NLRB 679), stating in part as follows: Respondent, in its answer and amended answer, generally denied various of the allegations of the backpay computations, including, inter alia, vaca- tion pay, overtime, backpay periods, the rates of pay the discriminatees received at the time they were unlawfully discharged, the rates of pay each of them would have received during the backpay period, and the gross backpay due each discrimina- tee. Since this data is within the Respondent's knowledge, its failure to set forth fully its position as to the applicable premises or to furnish appropri- ate supporting figures is contrary to the specificity requirements of Section 102.54(b) of the Board's Rules and Regulations. Accordingly, we strike the Respondent's answer and amended answer to those allegations of the backpay specification and . . . deem such allegations to be admitted as true. Inasmuch as the availability of interim jobs in the area, the discriminatees' failure to seek and accept or retain such employment, and the quitting of in- terim jobs are factors that are an aspect of the gen- eral aspect of interim earnings and are outside the general knowledge of the Respondent, we find the Respondent's general assertion of the discriminatees' failure to seek and retain available interim employ- ment to be sufficient under the Board's Rules and Regulations to put into issue the general question of interim earnings. Therefore, we shall deny the Gen- eral Counsel's "Motion To Strike Respondent's Answer to Backpay Specification and for Summary Judgment" with respect to the allegations of the specification pertaining to interim employment issues. Accordingly, we shall order a hearing limited to the determination of the discriminatees' interim earnings including the availability of discriminatees for interim employment and the discriminatees' fail- ure to seek and/or retain such interim employ- ment.3 Hearings were conducted in accordance with the Board's Supplemental Order commencing on January 26, 1981, and closing on April 14, 1982.4 Preliminary to a 2 The backpay specification was amended both before and during the hearings The General Counsel only seeks backpay for 24 discriminatees; no backpay claim is being made for Jessie Lee Brown a Also see the Board's Order, restating the limited issues in this supple- mental proceeding, entered on February 5, 1981 (G C Exh l(cc)) There were, as the record reflects, adjournments and continuances as a consequence of, inter alia, the unavailability of counsel and witnesses and pending subpoena enforcement proceedings recitation of the evidence adduced at these hearings, it is appropriate to restate the following controlling princi- ples. It is now settled law that the "finding of an unfair labor practice . . . is presumptive proof that some back- pay is owed" (NLRB v. Mastro Plastics Corp., 354 F 2d 170, 178 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966)), and the General Counsel's burden is limited to showing "what would not have been taken from [the employee] if the Company had not contravened the Act." Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 544 (1943). This allocation of the burden was expressed in NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963), as follows: [I]n a back pay proceeding the burden is upon the General Counsel to show the gross amounts of back pay due. When that has been done, however, the burden is upon the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate the liabil- ity. Further, as the court explained in NLRB v. Brown & Root, supra at 452: Obviously, in many cases it is difficult for the Board to determine precisely the amount of back pay which should be awarded to an employee. In such circumstances, the Board may use as close ap- proximations as possible, and may adopt formulas reasonably designed to produce such approxima- tions.. . . [W]ith respect to the formula for arriving at back pay rates or amounts which the Board may deem necessary to devise in a particular situation [judicial], "our inquiry may ordinarily go no further than to be satisfied that the method selected cannot be declared to be arbitrary or unreasonable in the circumstances involved." "Certainty in the fact of damage is essential. Certainty as to amount goes no further than to require a basis for a reasoned conclusion." Palmer v. Connecticut Railway Co., 311 U.S. 544, 561 (1941). In addition, "the cases are unanimous" that the defense of willful loss of earnings is an "affirmative defense" and the burden is on the employer to prove the defense. NLRB v. Mooney Aircraft, 366 F.2d 809, 813 (5th Cir. 1966). Moreover, while the employer may show that the employee failed to make "reasonable efforts to mitigate [his] loss of income . . . [the employee is] held . . . only to reasonable exertions in this regard, not the highest standard of diligence." NLRB v. Arduini Mfg. Co., 394 F.2d 420, 422, 423 (1st Cir. 1968). "Success" is not the measure of the sufficiency of the employee's search for interim employment; the law "only" requires an honest good faith effort." NLRB v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955). And, although the General Counsel is required to present only the "gross amounts of backpay due," he goes further, pursuant to the Board's Rules and Regulations (29 CFR, sec. 102.53), and includes in the backpay specification a deduction from gross backpay of all those amounts in mitigation which he discovered through, for example, social securi- STANDARD MATERIALS 611 ty records. The General Counsel does not thereby assume "the burden of establishing the truth in all of the information supplied or negativing matters of defense or mitigation." NLRB v. Brown & Root, supra, 311 F.2d at 454. In the instant supplemental proceeding, the General Counsel, in compliance with the procedures and princi- ples summarized above, made available to the Employer the "documents prepared by the Regional Office . . . relevant to the computation of the net backpay, includ- ing the [claimants'] search for employment and availabil- ity for employment . .. " (G.C. Exh. 3). The General Counsel thus "turned over" all documents (including W- 2 forms, income tax forms, and social security data) that the General Counsel had in his possession for the 24 backpay claimants. s Further, the General Counsel pro- duced at the hearings his compliance officer, Richard K. Baird, for examination by Respondent with respect to the data contained in the some 24 folders thus "turned over." Respondent's counsel was permitted "to examine the compliance officer who compiled the data . . . turned over" to determine and resolve any "question as to the meaning of words or documents contained in these files" and to ascertain "whether he knows of any- thing else contained in these files that was not turned over" (see generally, Tr. 1-34, 62, 66-68). The examina- tion of the compliance officer by counsel for Respondent occurred during the initial 4 days of hearings and was also supplemented by explanations by the General Coun- sel where appropriate (see, generally, Tr. 68-239, 243- 260, 367-400, 404-528, 532-579). In addition, the General Counsel produced (with two exceptions discussed below) all backpay claimants for examination by Respondent's counsel. On this entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs of counsel, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW B. B. Allen Allen drove a truck for Respondent Employer. He is 47 years old, has an eighth-grade education and possesses no real skills or craft training. His backpay period began on July 22, 1977, and ended on May 25, 1978, when he obtained full-time employment with Leon Lowe & Sons. His rate of pay immediately prior to Respondent's unfair labor practices was $4 per hour. His gross backpay fig- ures for the four quarters involved here are $1953, $2438, $2711, and $1788. He had interim earnings, as the Gener- al Counsel admitted in the backpay specification, during each quarter of this backpay period, in the amounts of $790, $1300, $1300, and $1269, respecti-vely. His net quarterly backpay therefore equals $1163, $1138, $1411, and $519, or a total of $4231. See G.C. Exh. 1(d) and an- nexed schedules. The General Counsel produced Allen for examination by counsel for Respondent (Tr. 587-688). Allen, as the 5 The General Counsel explained (Tr 22), "everything we have has been made available and turned over " This was done some 3 months before these hearings opened backpay specification shows, initially obtained short-term jobs with local construction contractors . He recalled that he "applied for unemployment" about "a week or two" "after the strike"; that he "looked for work before apply- ing for unemployment"; that he " sometimes" "read the want ads" in the Slidell newspaper; and that he "was out hustling trying to find something to do." He added: "I was looking for work during the time I was unemployed. I couldn't find nothing." He averaged, however, $100 per week during the fourth quarter of 1977 and the first quarter of 1978 in interim earnings. This money was principally obtained from "digging the slabs" on home construction sites. He named, among others, Industrial Cement and Jake Dunham as employers from whom he sought work during the pertinent period. Also see testi- mony of contractor Leon Sylvester (Tr. 1844- 1848). Allen explained that "every morning through the fall of 1977 or spring of 1978," We would all meet up by that place uptown (the Blue Room) . . . and they would come by every morning . . . . Every morning we met at the Blue Room and he'd (a potential employer) pick out the men that he wanted to work if he had something to do-cement finisher guys, a guy that could finish cement. I can't, I ain't no cement finisher ... . The Blue Room, as Allen further explained, is [A] big bar, and it opens at 9 a. m., and we would all get there in the morning time, early, and make a fire and stand around waiting for somebody to come by in case they wanted you to deal with them, unload a front truck, go help this man for an hour or two or whatever we could catch. We had to do something. Allen was questioned at length about his efforts to find interim employment in 1977 and 1978. He testified, in part as follows: Q. When you would drive around Slidell and, I'm talking about 1977 and 1978-you told us you drove around most every day looking for work? A. Right, right. Q. Now, when you would drive around on those days how many jobs would you see going on? A. I would pass by and see somebody done a couple of jobs, but I don't know who done it. Q. All right, that couple is two? A. Right. Q. Would there only be two on a given day? A. I don't go-Most of the time it would be in the subdivisions. Q. All right now, I'm talking about just in the subdivisions. Were there only two jobs going on in a given day? A. It could have been more than that, but I didn't pay no attention to just what it was. Q. Was there any pattern to your looking for these jobs? I mean, how did you just go about trying to find a job when you didn't know where the job was? 612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. The cement finisher would call and tell you. They tell you where the job was and who to talk to. They would call you or meet you at the Blue Room and tell you who to go see and where the job was. Q. And you'd go see the man and ask him about digging the slabs for him? A. Right, but he'd probably have somebody to do it for him already. A lot of times that's what happened, they had somebody to dig the slabs al- ready. Q. Would you ever just stumble upon a job and go ask? A. No. Q. It was always somebody telling you there's a job at such and such a place and you go ask the man? A. I would stop-I would see a job going on and stop and ask somebody and they say, "I got some- body to do it already."e Counsel for Respondent contends, inter alia, that the Board should "deduct sums received" by claimants like Allen "in the form of unemployment compensation;" that Slidell "was a boom town" during the pertinent period; that Allen "sought regular employment only when his unemployment ran out;" and that Allen and his co-claim- ants failed to report their interim earnings for state and Federal tax purposes. It is settled law that the Board has "the power to enter an order . . . refusing to deduct the unemployment compensation benefits from backpay and that, in so doing, the Board [does] not abuse its discre- tion." Gullett Gin Co. v. NLRB, 340 U.S. 361 (1951). As the court of appeals noted in EEOC v. Enterprise Assn. Steamfitters, 542 F.2d 579, 591 (2d Cir. 1976), cited by Respondent, "It is evidently NLRB policy to disallow collateral benefits of this nature . . . ." The Board's "policy" is fully applicable here. Further, Respondent's claim that construction work was "booming" in Slidell and Allen as well as his co-claimants preferred to collect unemployment benefits instead of seeking interim em- ployment, is not supported by the credible evidence of record. As the administrative law judge pertinently noted in Laidlaw Corp., 207 NLRB 591, 594 (1973), enfd. 507 F.2d 1381 (7th Cir. 1974), cert. denied 422 U.S. 1042 (1975), Respondent apparently misconceives its burden herein to show, by a preponderance of the evi- dence, whatever mitigating circumstances exist. With the exception of a bundle of unassimilated newspaper advertisements and a letter from the state authorities concerning the relative level of un- employment in [the area], Respondent produced no evidence of any employment available to any discri- minatee, nor the willful failure of any to accept such employment ...." It is not enough that re- 6 Allen acknowledged that he did not report on his 1978 income tax form the $100 per week he averaged during the first quarter of 1978 for performing "concrete preparation work " Counsel for Respondent argued, inter alia, that he would also show that Allen failed to report such earnings to the state unemployment agency (See Tr 668-673 ) spondent thinks that the employees should have been able to secure jobs. Suspicion and surmise are no more valid bases for decision in a backpay hear- ing than in an unfair labor practice hearing .. . . Moreover, I note the testimony of Respondent's witness Julius Smith, who testified as an interim employer, ex- plaining that not every contractor in the Slidell area shared in this "booming" economy: "Well, different con- tractors . . . you work for . . . was building a whole lot of houses, and some of the people I worked wasn't build- ing too many houses. That's what is.... It's according to who you work for." Smith's explanation as to why the "booming" econo- my did not reach or extend to all persons in the area is, of course, better understood when assessed in the context of Allen's and his co-claimants' lack of any real skills or training. Counsel for Respondent, citing and relying on Alum- baugh Coal Corp. v. NLRB, 635 F.2d 1380 (8th Cir. 1980), argues that claimants like Allen should be barred from receiving backpay. In Alumbaugh, the court, in dis- agreement with the Board, held that the discriminatee "should be granted reinstatement with full backpay for only that period preceding his post discharge" miscon- duct. The court explained that "uncontroverted evidence in the record establishes that subsequent to his termina- tion [the discriminatee] willfully and unlawfully failed to report earnings" to the state unemployment agency "for the purpose of obtaining" benefits "to which he was not entitled." The court observed that the administrative law judge had found the discriminatee's conduct to be "rep- rehensible" and that he was an "evasive, shifty, and un- trustworthy witness." Alumbaugh is not controlling here. I am, of course, bound by the Board's established policy not to disallow or toll backpay under such circumstances. Cf. Liberty Scrap Materials, 152 NLRB 480, 485 (1965), enfd. 64 LRRM 2686 (6th Cir. 1967). In any event, counsel for Respondent has failed to show here that Allen in fact fraudulently obtained unemployment benefits; the dates when such alleged misconduct occurred for tolling pur- poses; and whether the failure to report specific amounts of interim earnings in Allen's case in fact would have precluded him from receiving any of the state benefits actually paid.7 Alfred Lauret, a representative from the state unemployment agency, explained that claimants like Allen may earn certain amounts before their unemployment benefits are reduced See Tr 2283-2284 Also, "self-em- ployment" earnings are not reported (Tr. 2249) Respondent asserts (Br 1I) The St Tammany Parish District Attorney's Office has determined to prosecute Irwin Edwards, Titus Owens, Edward Wise and Levy Crawford for fraud (R Exh 20) in connection with their unemploy- ment payments Although these four individuals are the most fla- grant cases, it is clear from R Exh 25 that many claimants withheld the fact that they were earning income so that unemployment pay- ments would not be reduced. The General Counsel moves to strike this and other portions of Respond- ent's brief, correctly noting that these and various related assertions are just not supported by evidence of record Thus, R Exh. 20, cited above, was rejected (See Tr 2067-2079) R Exh 25, also cited, contains errors, discussed below , including those referring to claimants' social security numbers, which are necessary to identify the claimants STANDARD MATERIALS 613 Likewise, Respondent's related contention pertaining to the failure of claimants like Allen to report interim earnings to Federal and state authorities must also be re- jected. Although the failure to report such earnings may bear on credibility, this failure does not, an this record, substantively establish interim earnings, willful loss, or related affirmative contentions. Cf. Sioux Falls Stock Yards, 236 NLRB 543, 566 fn. 139 (1978). Allen ac- knowledged his failure to report such income. And, in any event, this record does not establish fraudulent con- duct on Allen's part; the dates of such alleged miscon- duct; and whether Allen in fact benefited taxwise from any failure to disclose such intenm earnings.8 I credit the testimony of Allen as recited above. I am persuaded here that he in fact made a good-faith effort to find interim employment . It is true that he did not sys- tematically follow the newspaper advertisements on a daily basis. He nevertheless applied for unemployment, searched daily for work, and obtained work during all the quarters involved. Assessed in the context of his lim- ited education and lack of any real skills or training, his efforts do not fall short of those required by the Board and court cases as quoted supra. Respondent , in sum, has failed to show willful loss of earnings or additional inter- im earnings, as alleged. Ellis L. Beard Beard's backpay period runs from July 28, 1977, to May 24, 1978. He drove a truck for Respondent and his rate of pay immediately prior to the Employer's unfair labor practices was $4 per hour. He had, as the General Counsel acknowledged in the backpay specification, in- terim earnings during all the quarters of his backpay period. His quarterly gross backpay figures, as shown in the specification, are $1814, $2278, $2711, and $1756. His quarterly earnings, as shown in the specification, are $993, $1170, $1170, and $1164, respectively, or a net total of $4062. See G.C. Exh. 1(d) and appendices annexed. Beard was questioned at length by counsel (Tr. 1406- 1437). He possessed no special skills or training. He ap- plied to the State for unemployment. He recalled: "I asked the lady down here . . . when we signed up (whether they had any work), and she asked me what I did. I told her what I did and she said she would get in touch with me if they found anything for me to do." He sought employment at Southern Coating and "they just told me they wasn't hiring." He applied for work at Delta Roofing and "they said they'll call me when they get an opening." He examined "the Slidell newspaper." And, he went to J & M Trucking "to see if they were hiring." He also "went to talk to [his] brother-in-law" who was employed at the Slidell shipyard, and was told: "they wasn't hiring . .. when they did he would let me know." He admittedly averaged about $90 per week "digging slabs" during portions of the backpay period. 8 Moreover, although Respondent generally asserts that it was improp- erly denied an opportunity to obtain and offer proofs relevant to the above and similar contentions (i.e, income tax forms), the full record in this case makes it clear that counsel for Respondent was in fact afforded ample opportunity to make timely requests and adduce relevant , compe- tent, and material proofs during the some 16 months this record was open He testified : "Q. The average that you told [the compli- ance officer] was $90 a week for those jobs in July? A. Yeah. That was about the average . It probably wasn't that much."9 Beard recalled that shortly after the termination of the strike about July 26, 1977, he obtained interim employ- ment with Metro Meat Co . His job for Metro Meat in- volved "making deliveries" and "killing cows." He claimed: "I was just doing that part-time when they needed somebody to haul it or help them kill some cows. . .. It wasn't a regular job . . . . He assertedly "left" Metro because "they just wasn't doing anything ... . Jessie Carlin, owner of Metro Meats, testified that Beard was hired at $3 per hour , and he "was a truck- driver. That was his primary job. He was supposed to take the truck out three times a week. And then he could work around the plant if he wanted to do that (on the slaughter floor)." Carlin recalled that Beard "left" this job within 4 to 5 weeks." o Respondent argues (Br. 56) that Beard "willfully left permanent full time work." However, Beard "was not obligated to continue work" with Metro Meat "in order to mitigate Respondent's backpay liability, for (Metro) was not substantially equivalent employment to that per- formed for the Respondent." See American Mfg. Co. of Texas, 167 NLRB 520, 526, 527 (1967). Driving a truck two or three times a week and working in the slaughter house for $3 per hour were not "substantially equiva- lent" to Beard's employment with Respondent . Beard, as noted above, continued his search for interim employ- ment during the entire backpay period . He had interim earnings in all quarters. He finally obtained full-time work at Bernard Lumber, after the "secretary for Ber- nard Lumber" "told me to come by and get my papers to go to work." I credit the testimony of Beard as recited supra. I find here that he in good faith attempted to find interim em- ployment throughout the backpay period. I find that Beard, like Allen, made a diligent and reasonable effort in this respect. Respondent has failed to establish-other than with respect to the modifications noted supra in in- terim earnings-any willful loss or additional interim earnings . i i Respondent's general assertion that jobs were 8 He did not apply for work in New Orleans because he "didn't have a car at the time " 10 Beard, when asked if he had reported the "$90 a week while self- employed . on his 1977 and 1978 income tax " acknowledged "I don't think I did " Further, as the General Counsel admits, Beard in fact earned $773 from Metro Meats during the third quarter of 1977 instead of $157 as shown initially in the backpay specification (see G C Br 8; R Br 56, cf R Exh 25) Therefore, Beard's interim earnings during the third quarter of 1977 should be increased by $616 to $1509, resulting in a quarterly net backpay of $205 In addition, Beard and the General Counsel acknowledge that Beard earned an extra $20 during or about the first quarter of 1978 Beard explained that it "could have been before or it could have been after" Christmas 1977 This amount, as counsel agree, will be added to his quarterly interim earnings His first quarter net backpay wll be reduced from $1541 to $1521 11 In crediting Beard, I have taken into account, inter alia , his failure to report income to state or Federal agencies However, as in the case of Allen, no fraudulent conduct has been shown here and these contentions are rejected for the reasons recited supra. I also note that Beard 's testi- mony concerning his work at Metro and reason for leaving vary from Continued 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD available in the area, including work at the shipyard, does not sufficiently show willfull loss here. Beard's net total backpay is reduced from $4062 to $3426.12 Theodore Charles Charles' backpay claim runs from September 29 to De- cember 27, 1977. His net backpay claim is admittedly for $11. (See generally, Tr. 1630-1633, G.C. Exh. 1(d) and appendices, and Tr. 1618-1622 .) Respondent asserts (Br. 59): Charles did not testify at this hearing, nor was there any explanation ever given of why he was unable to attend, except through personal choice. As an unco- operative witness, he should be excluded from back- pay even though it is only the $11 that is at issue during the third quarter of 1977. There is no contention made here that Charles has re- fused to testify in compliance with a subpoena. Assessed in the context of his limited claim, the data made avail- able and obtained pertaining to his claim, and the oppor- tunity of counsel to subpoena him, I do not regard Charles' failure to appear as a waiver or abandonment of his claim. Respondent has had ample opportunity to show, in Charles' case, willful loss or additional interim earnings. Charles' net claim of $11 is allowed. Charles Cousin tractors where he "specified trailer truck driving and that's what I got." Cousin testified, however, that he believed that he had no interim earnings during the fourth quarter of 1977; that he was not "self-employed" during the remaining two quarters; and that, instead, he was employed by con- tractors Marvin Olivo and Titus Owens, performing "cement work" during the two quarters of 1978. As a consequence of Cousin's testimony, the General Counsel moved to amend his backpay specification to delete any interim earnings for the last quarter of 1977 and to reflect Cousin's employment status instead of being "self-employed" in 1978. Respondent objects. The motion was taken under advisement. The motion is granted Cousin credibly testified about his prior employ- ment. He credibly explained that he did not believe that he had earned $682 during the fourth quarter of 1977. He credibly named his employers during the remaining two quarters. Respondent had ample opportunity to contro- vert this testimony. The specification will therefore be amended to reflect no interim earnings during the first quarter and the names of the interim employers for the remaining quarters. I therefore find that Cousin used due diligence in seek- ing interim emloyment during the three quarters in- volved here. I find that Respondent, although afforded sufficient opportunity (Tr. 974-1010), has failed to show willful loss or additional interim earnings . Cousin's total net backpay will therefore be increased from $2830 to $3512. Cousin's backpay period runs from October 6, 1977 to May 18, 1978. His rate of pay prior to the unfair labor practices involved here was also $4 per hour. The Gen- eral Counsel, in his backpay specification, shows Cous- in's quarterly gross backpay as $2178, $2711, and $1726. The General Counsel also admitted in his specification that Cousin was "self-employed" during each quarter with quarterly interim earnings of $682, $2047, and $1056, respectively, or a net total backpay of $2830. (See G.C. Exh. 1(d) and appendices.) Cousin was examined by counsel at the supplemental hearing (Tr. 974-1010). Cousin testified that he applied "twice" for work at Air Products; that he also sought work at Folger's Coffee and Martin Marietta; that he "sometimes" read the advertisements in the Slidell news- paper;' 8 that he would look for work at the Blue Room "where they [a prospective employer] would pick us up"; and that his "profession" is that of truckdriver. He further testified that he applied for work at Nolan Con- the testimony of Carlin I credit Carlin's recollection as more accurate In any event, a reading of Beard's testimony shows that his characterization of the Metro job as "part-time" and his claim that "they dust wasn 't doing anything," were not untrue when assessed in the context of an employer who only used his "primary" truckdnvmg capability for a limited portion of the week 12 Respondent (Br 57) asserts "Ellis Beard had a further reason not to work which was his garnishment which had begun in August 1976." This was long before the backpay period Counsel refers apparently to rejected R Exh 23 See Tr 2082-2084 At the hearing, counsel admitted that he has "no way of knowing whether they were operative during the backpay period " Ibid 18 Cousin acknowledged, however, that "I wasn't too much on reading the newspaper" Levy Crawford Crawford's backpay period begins on August 1, 1977, and ends on May 12, 1978. His hourly rate of pay as a truckdriver, prior to Respondent's unfair labor practices, was $4. He had interim earnings, as the General Counsel acknowledges in his backpay specification , during all quarters of the backpay period. His quarterly gross back- pay figures are $1701, $2438, and $1359.14 His quarterly interim earnings during these quarters are $236, $2000, and $1353, respectively. Therefore, his net quarterly backpay figures are, as shown in the specification, $1465, $438, and $6, or a net total of $1909. (See, generally, G.C. Exh. 1(d) and appendices.) Crawford testified (Tr. 940-974) that he sought interim employment at, inter alia, Bernard Lumber and Southern Coating; that he read Slidell newspaper job advertise- ments; that he also sought work at W.R.S. Enterprise but was told there by the superintendent that Respondent Employer had "said [Crawford] wasn't dependable"; that he worked for Metro Meat for about 2 weeks during the third quarter of 1977 with co-claimants Ellis Beard and James Square; that Metro Meat paid him about $3.50 per hour; and that "we was killing cows, and if you kill so many cows we could knock off." Crawford, unlike Beard, did not drive a truck at Metro. Crawford claimed that Metro "went out of busi- ness" and "everybody was laid off." He further claimed 14 There is no claim made here for the first quarter of 1978 . See G.C. Exh 1(d) and appendices, and Tr 1637-1638 STANDARD MATERIALS 615 that, although he had applied for unemployment, he re- ceived none during the pertinent period. And he recalled being referred by the state unemp] oyment office on one occasion to a "job in New Orleans, but you needed your own transportation," and his vehicle could not make such a trip. Jessie Carlin, whose testimony is referred to supra under Beard's claim, owned the former Metro Meats. 15 Carlin recalled that Crawford "just quit." Carlin recalled that Crawford's only job was "working on the killing floor, on the slaughter floor." However, Carlin also testi- fied: Q. Do you recall that Mr. Crawford . . . was ever laid off for lack of work. at any time while he was employed there? A. I don't recall sir. If a load of cattle was sup- posed to come in and a load didn't come in, wheth- er we had slaughtered that day. But I don't recall if that instance happened or not. I have, as noted above, credited Carlin's recollection of the events attending the interim employment of Beard, as well as Crawford. I am persuaded, on this record, that Crawford, like Beard and Allen, exercised due dili gence in seeking inter- im work during the backpay period. Crawford had inter- im earnings during every quarter. He made repeated ef- forts to find interim work. I have, as stated, credited Carlin's testimony that Crawford in effect "quit" after a few weeks work in his slaughterhouse. Crawford is ap- parently mistaken in his recollection of when Metro Meat ceased operations. Nevertheless, I note that the record also suggests that there may have been periods during Crawford's few weeks of work at Metro when he was not totally busy. In any event, Crawford, like Beard, is not barred from backpay because he left this interim employer. As discussed supra, Crawford's job at Metro was not "substantially equivalent" to the work or hourly rate of his former job duties. And, as he credibly testi- fied, diligently sought other interim work: after leaving Metro, and with some success. He earned[ $2000 during the following quarter of his backpay period and, later, reduced his net backpay claim in the second quarter of 1978 to $6. Respondent argues (Br. 36) that "Crawford was sub- ject to a garnishment by attorney Ronald Gurth in 1977 and 1978 causing him to avoid legitimate jobs." The record does not support this assertion and establish will- ful loss. In like vein, V. J. Scogin's testimony (Tr. 1960) concerning his tape recordings of conversations with Crawford (Tr. 1960-1984) does not support Respondent's assertion (Br. 37) that "Crawford indicated that he would go back to work but only for cash."16 16 This employer is referred to as Metro Meat, Metro Meats, and Metro Meat Market is The tapes, as the record shows, are in part incomplete and unclear Scogin's testimony is also vague and incomplete in this respect Further, I find Scogin to be, on this entire record , an unreliable and incredible wit- ness His testimony was, at times , vague, evasive, incomplete, and argu- mentative Respondent also asserts (Br 36-37) that "Mr V J Scogin did not appear on April 14, 1982, when Carlin testified Scogin had some testimo- I therefore find and conclude that Crawford, as he credibly testified, sought interim work in good faith throughout the backpay period and that Respondent has failed to show willful loss or, except as noted below,17 additional interim earnings. Irwin Edwards Irwin Edwards' backpay period runs from July 25, 1977 to May 12, 1978. Edwards was employed by Re- spondent as a truckdnver earning $4 per hour prior to the unfair labor practices against him. The General Counsel, in his initial specification dated May 22, 1980 (G.C. Exh. 1(d) and appendices), alleged Edwards' quar- terly gross backpay figures, starting with the third quar- ter in 1977 and ending with the second quarter of 1978, to be $1896, $2278, $2871, and $1359. The General Counsel, on information that he had, admitted interim earnings during the above four quarters as follows: $437, none, $692, and $938, respectively. During the third quarter of 1977, the General Counsel showed Pratt Farnsworth as an interim employer; there was no interim employer for the fourth quarter of 1977; and Virgil Shoemaker was shown as an interim employer for the first and second quarter of 1978. Thereafter, on October 28, 1980, before this hearing opened, the General Coun- sel, on information available to him, amended his specifi- cation to admit that Edwards also had interim earnings from Virgil Shoemaker in the fourth quarter of 1977 in the amount of $1040; and that Edwards' interim earnings from Virgil Shoemaker during the first, quarter of 1978 should be increased to $2080. (See G.C. Exh. 1(p) and appendices.) Thereafter, on January 19, 1981, about a week before this hearing opened, the General Counsel, on information available to him, amended his specifica- tion to further admit that in the third quarter of 1977, Edwards made interim earnings in the amount of $210 from Eli Worley; and that in the fourth quarter of 1977 he also made an additional $210 from Eli Worley. (See G.C. Exh. 1(v) and appendices.) In addition, as noted above, the General Counsel's compliance officer made available to counsel for Respondent such information as he had on Edwards' interim earnings, including what purported to be a copy of Edwards' 1978 Federal tax return (Tr. 921). Edwards testified twice at the supplemental hearings (Tr. 42-46, 904-939). Edwards initially testified that he is presently employed by the City of Slidell; that after the strike he worked for Pratt Farnsworth in New Orleans; that he worked there about 13 days; that he traveled 64 ny that would have supported Mr Carlin He was not notified of the hearing by the ALJ " The resumption on April 14, as the record shows (Tr 2206-2212), was on notice to all counsel, including Scogin's attorney No application was made to adjourn or carry the hearing over because Scogin was not then present 17 General Counsel acknowleges (Br 10) that Crawford earned $40 from Julius Smith during the fourth quarter of 1977 (cf. Tr 955) Craw- ford's net backpay is therefore reduced from $ 1909 to $1869 The Gener- al Counsel, citing R Exh 25, also argues that his specification incorrect- ly shows Metro Meat interim earnings as $236 instead of $136 Else- where, the General Counsel has argued that R Exh 25 is not totally reli- able and, under all the circumstances, I am not sufficiently persuaded that the specification should now be reduced on this showing See discussions infra, items 7 and 14 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD miles roundtrip to and from this job in his car; and that the distance from his home to Respondent Employer was only about 2-1/2 miles. He explained that he was a labor- er for Pratt Farnsworth. The General Counsel claimed $77 for this transportation expense. (See specification, G.C. Exh. 1(d), and appendices.) Edwards later testified at length about his interim em- ployers. He was extensively questioned by counsel. He admittedly kept no records and he was vague and un- clear about dates as well as amounts. He recalled search- ing for work after the strike; asking for work at Folger's Coffee and Bulk Transportation; looking for work in the Slidell newspaper; and then getting the job at Pratt Farnsworth in New Orleans. He admittedly left Pratt Farnsworth because his car "couldn't hold up" on the 64-mile trip daily-"I didn't have no way to get over there." He continued his search for interim employment asking friends if they knew of job opportunities. In addi- tion, his uncle Eli Worley provided him with some work, which involved "painting, yard work and stuff like that." Later, he claimed that he got interim employ- ment from Virgil Shoemaker. He started with Shoemak- er about November 1977 and admittedly "stopped some- time in December because my wife came down with a heart attack." He stayed home, taking care of her and the children until about March 1978. Then, he resumed "full time" work with Shoemaker. Walt Schellhase is associated with a number of em- ployers, including Slibco. He testified that Edwards re- ceived the following paychecks from Slibco with dates as shown: Nov. 11, 1977 Nov. 17 Nov. 22 Dec. 2 Dec. 9 Dec. 15 Dec. 21 Jan. 5, 1978 Jan. 13 Apr. 7 Apr. 14 Apr. 21 Apr. 28 May 5 May 12 May 19 May 26 June 2 $56.00 112.00 112.00 3.50 84.00 126.00 56.00 56.00 56.00 160.00 92.00 164.00 172.00 128.00 96.00 148.00 148.00 128.00 Schellhase recalled that Edwards got this job by apply- ing to superintendent Randy Shoemaker, Virgil Shoe- maker's son; and "Virgil Shoemaker is a framing con- tractor that did work for (Schellhase) from time to time on an hourly basis the same as Edwards did." Schellhase acknowledged that Edwards could not have been "working for Virgil Shoemaker and working for him at the same time." Schellhase also acknowledged that Edwards did not get a W-2 statement because "We hired them as independent laborers which you are al- lowed to do by, having them sign an affidavit waiving the tax benefit, making them assume the responsibility for the taxes themselves." Schellhase further acknowl- edged that "it's a good possibility that they did work on the same job." The General Counsel contends, and I agree, that Virgil Shoemaker was not in fact the interim employer as named in the specification. Slibco's name and the amounts shown above correctly reflect the interim em- ployment mistakenly shown under Virgil Shoemaker. This record does not show that Edwards also received additional interim earnings from Virgil Shoemaker. Further, although Edwards insisted that he worked for Pratt Farnsworth, a representative of that employer, H. Pratt Farnsworth Jr., explained that Edwards was not in fact employed by his Company, although it is "possible . .. it would be another company" "doing some work for Pratt Farnsworth." I am persuaded here that Edwards truthfully testified at these supplemental hearings. I attribute his failure to name, identify, and date interim employers in a more timely and accurate manner to his lack of bookkeeping or recordkeeping abilities. Nevertheless, he credibly identified those persons who he believed were his interim employers. He mistakenly believed that Shoemaker and Farnsworth were his employers. They were not. He has credibly testified about his expenses and efforts to find interim work. I am persuaded here that he sought inter- im work with due diligence and incurred no willful loss. The specification, however, will be amended to correctly show the interim earnings proven before me. Thus, for the third quarter of 1977, Edwards' gross backpay was $1896; he had intenm earnings of $437 ($514 minus $77 in expenses) from Farnsworth (or a sub- contractor), and $210 from his uncle Worley; and his net backpay for the quarter is $1249. For the fourth quarter, his gross backpay was $2278; he had interim earnings from his uncle Worley of $210 plus $606 from Slibco; and, therefore, a net backpay for this quarter of $1462. Further, the General Counsel concedes that Edwards was unavailable for work from about the first week in January (January 6) through the end of this first quarter in 1978, with a gross quarterly backpay of $205; net in- terim earnings from Slibco in the amount of $56; and, therefore, a net backpay for this quarter of $149. As for the second quarter of 1978, gross backpay is $1359 and Slibco's interim earnings are approximately $901 (note the exempted period on App. H-4 and Tr. 1749), with a net backpay in this quarter of $458. The total net back- pay for Edwards is $3318.18 18 The General Counsel prepared in his brief a revised schedule re- flecting the above. It is attached hereto as "App A " It reasonably re- flects the pertinent interim earnings Respondent argues that Edwards, like other claimants, engaged in "un- employment fraud " The credible evidence of record does not support this assertion (Cf R Br 11, Tr 2067-2079, and rejected R Exh 20 ) Moreover, although I have considered such claims of failure to report in- tenm earnings to state and Federal authorities for credibility purposes, the failure to make the required disclosures , as discussed supra, does not show here willful loss or additional interim earnings Respondent cites (Br 34) the testimony of V. J Scogin that Edwards "did not have a driver's license through 1978 " Respondent relies on rejected R Exh 9 (Cf Tr 1584-1592) Further, I do not credit Scogin's assertion in this and related respects As stated, his testimony was incomplete , vague, and ar- gumentative I have found him to be an unreliable and untrustworthy witness STANDARD MATERIALS 617 Appendix A Irwin Edwards 1977-Quarter III, excepted period 7/1-7/24. Quarterly total gross backpay (Appendix H-1) ....................................................... $1,896 Net Interim Earnings (a) Pratt Farnsworth ..................................... $437 (b) E. L. Worley ..................................... 210 647 Net backpay for quarter .................................. $1,249 1977-Quarter IV Quarterly total gross backpay (H-2) ............... 2,278 Net interim earnings (a) E. L. Worley ...................................... 210 (b) Slibco ....................................................... 606 Net backpay for quarter 1978-Quarter I, excepted period 1/6-3/31. Quarterly total gross backpay (1,481.76/ 9) X I ................. ............................................. Net interim earnings (a) Slibco ........................................................ 56 Net backpay for quarter ................................... 1978-Quarter II, excepted period 5/12-6/30 $1,462 205 $149 Quarterly gross total backpay (H-4) .............. 1,359 Net interim earnings (a) Slibco ....................................................... 901 Net backpay for quarter.................................... $458 Clyde Farve Farve's19 backpay period started on August 1, 1977, and ends on February 3 , 1978. He was employed by Re- spondent as a truckdriver earning $4 per hour prior to the unfair labor practices. His gross backpay figures for the three quarters are $ 1701, $2278, and $1124. He had only one interim employment during the third quarter of 1977 for Andre Reviere in the amount of $75 . His total net backpay is $5028. Farve testified that he sought work from Reviere during the backpay period . He also sought employment from, inter alia, A & P, Winn-Dixie, Kasier Aluminum, Halter Marine , and Folger's Coffee. He ap- plied for and received unemployment during this period. He recalled seeking work from local carpenters without success. When asked if he "could do full fledged carpen- try?," he acknowledged: "Well, I would nail [a] little bit." (Tr. 1093-1126.) I find on this record that Farve sought employment with due diligence during the backpay period. Respond- ent has not demonstrated that Farve sustained any willful loss in interim earnings, earned more than admitted above, or refused any interim employment opportunities. Farve's total net backpay is $5028. Respondent claims that Respondent 's Exhibit 25 "showed that Mr. Farve had received income from St. 19 Farve's name is also spelled in the specification as Favre. See Tr 1094 Claude Furniture Company in New Orleans in the amount of $3325 for the third quarter of 1977 ; $3562 for the fourth quarter of 1977; and $2880 for the first quarter of 1978 . This was more than was allegedly owed him for any quarter. (Br. 40.) However, as the General Counsel notes (Br. 5, R. Exh. 25), records of the State of Louisi- ana, contains numerous errors. The parties stipulated that, for example, the social security numbers forwarded to the State for claimants Edwards and Hinton were er- roneous (Tr. 2238-2239) and the records in fact show no interim earnings for Edwards and Hinton under the social security numbers contained in the specification. Likewise, Respondent's Exhibit 25 shows a social securi- ty number for claimant Allen different than that con- tained in the specification . More pertinent here is the fact that Farve's social security number as contained in the specification differs from the number used in one section of Respondent's Exhibit 25. Farve was not questioned about these substantial alleged interim earnings and, on this record, I find that Respondent has failed to suffi- ciently prove these earnings as contained in Respondent Exhibits 25. I credit, instead, the testimony of Farve.20 Harold Hart Hart's backpay period runs from July 22 , 1977, to May 18, 1978 . Hart was a truckdriver for Respondent earning $4 per hour prior to the above unfair labor practices. As the General Counsel acknowledges in his specification, Hart had interim earnings during each of the four quar- ters involved. Hart's gross backpay figures for the four quarters are $ 1953, $2438, $2711, and $1556 . His interim earnings during these quarters, as the General Counsel initially admitted in the specification , are $232, $420, $583, and $1105 , respectively, with a total net backpay of $6318. (See G .C. Exh. 1(d) and appendices.) Hart testified twice in these supplemental hearings (Tr. 47-54, 828-882). He testified that he currently works for Folger Coffee in New Orleans ; that he started there on March 6, 1978 ; that his roundtrip car ride to and from this job was some 45 to 50 miles each day; that he drove his car; that he worked 5 days a week and 6 days when he had overtime on Saturday; that Respondent Employ- er, at the pertinent time , was located about 2- 1/2 miles from his home; and that he moved about 8 months ago. The General Counsel initially claimed $112 and $ 151 for transportation expenses , as reflected in the specification. He amended the specification to seek expenses of $90 in- stead of $112 during the first quarter of 1978, reducing total net backpay to $6296. (See G.C. Exh . 1(v).) Hart testified that, following the strike, he worked for a number of local building contractors . He also sought employment at, inter alia, Bernard Lumber , Quality Transport, Hill-Beham, Standard Brands, and Boh Bros. 20 Respondent cites the testimony of V J Scogin that Farve stated to him "approximately six weeks after the stoke he was going to use up his benefits first" as a reason "he did not or could not come back to work " Cf. R Br 43, and Tr 2003, and Tr 2124-2125 I am persuaded here that Farve reasonably and diligently sought interim work dung the pertinent period . I do not find, as noted above, Scogin to be a reliable witness here. Moreover, Farve's desire not to return to Respondent Em- ployer is irrelevant here . Cf Heinrich Motors, 166 NLRB 783, 785 (1967), enfd 403 F.2d 145 (2d Or. 1968) 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD He "tried asking [his] uncle if he was doing any work and he wasn't doing anything." He identified his uncle as James Washington of L & L Roofing in Slidell. He final- ly, with the help of "friends," obtained regular employ- ment at Folger, as discussed above, in March 1978. He also applied, during the pertinent period, for unemploy- ment but was not referred "to any jobs." He explained: "I went to places to try to get work . . . . At that time, I was married with three kids in school and a pregnant wife, and I was trying to find work."21 Respondent argues that "common sense dictates there is no reason to get a job if you are almost making the same [amount] drawing unemployment" and, therefore, "it is clear that Mr. Hart did not want to get a job in 1977" (Br. 31). This and related contentions pertaining to unemployment benefits, as discussed supra, are rejected. The record does not support this assertion. On the con- trary, Hart credibly testified that he sought interim em- ployment in good faith and with due diligence. The record does not show willful loss or interim earnings other than as admitted in the specification, as amended and modified below.22 The total net backpay is $6035. Tally Hinton Hinton was employed by Respondent as a front-end loader and earned $4 per hour prior to the unfair labor practices. His backpay period begins on September 22, 1977, and ends on January 28, 1978. His gross backpay figures for the three quarters involved are $252, $2278, and $820. He admittedly had interim earnings during each quarter as an employee of James Oliver, in the amounts of $129, $1300, and $400, respectively. His total net backpay is therefore $1521. (See G.C. Exh. 1(d) and appendices.) Hinton was produced for examination at the hearing (Tr. 1066-1093). He testified that James Oliver was in the pulpwood business; that he worked for Oliver and was paid "by [the] load"; that he was paid by Oliver in "cash" and he has no records; and that "I [Hinton] was in the woods mostly. He [Oliver] was driving the truck, carrying it in, he's the one that pays me. Sometimes I make $20 a day, sometimes I make less." Hinton looked for work from the inception of the backpay period. He explained: "I did, that's how I found [Oliver]. . . . I had met him on the road and asked him then . . . about working somewhere." Hinton denied refusing any work from Oliver-"he [Oliver] would come and pick me up by my house." Fur- ther, Hinton also sought work at, inter alia, Nolan Con- struction and Delta Roofing.23 21 Insofar as V. J Scogin's testimony (Tr 1999-2002) conflicts with that of Hart, I credit the latter as more complete , reliable, and trustwor- thy. 22 It was stipulated (Tr 1850) that from April 1, 1978 through May 17, 1978, of the second quarter 1978, Hart 's gross earnings from Folger were in fact $1517 34 instead of $1256, as initially shown Therefore , the net backpay for this quarter , and the total net backpay, has been reduced by $261 23 Hinton admitted that he "went back to Hattiesburg after Christmas He [Oliver] didn't have nothing to do, you know, it was so wet All the time it was raining so, you can't hardly work when it's bad outside " Hinton was uncertain exactly "when [this] was " See Tr 1092-1093 Hinton applied for and drew unemployment. Hinton was asked by counsel for Respondent: Q. Mr. Hinton, was there any reason that the only jobs you had for this period . . . were all in cash? Was there any reason you wanted to get cash rather than a check? A. Oh, no. . . . As long as I could find a job, that's all I wanted. It didn't matter if it was cash or a check. Q. During the time you worked for James Oliver, which was in October, 1977, were there any out- standing garnishments against you during that time? A. None that I know of.24 James Oliver testified that he is in the business of cut- ting pulpwood trees; that Hinton "sometimes" worked for him "maybe one day a week or two days or some- thing like that"; that Hinton "worked like one day and you wouldn't see him no more for a couple of weeks"; that Hinton would "go to Mississippi or be fooling around or something"; and that he, Oliver, "paid cash if (he) had it" or gave him "a check." Oliver testified: "Q. Was there days that you would have worked Mr. Hinton if he had been there? A. If he'd been there, I could have worked him some more days." Elsewhere, however, Oliver testified that a person working for him could "make anywhere from $25 to $30" per day "if [he] cut all day"; and that, during late 1977, he "probably worked three or four days some- times, but he wouldn't be there all the time." Oliver ex- plained: "If it wasn't too bad, wet. Sometimes for weeks I wouldn't do nothing on [account] of the condition of the weather."25 I credit the testimony of Hinton as recited supra. I am persuaded here that Hinton made a good-faith effort to find interim work throughout the backpay period. Oli- ver's testimony is too vague and uncertain, and therefore does not sufficiently show willful loss or additional inter- im earnings other than those admitted by the General Counsel in the specification. Further, Hinton's employ- ment with Oliver was not substantially equivalent to his employment with Respondent, and this record does not show, as noted, that Hinton did not seek throughout the backpay period other interim work or that he rejected substantially equivalent employment. Hinton's net back- pay is $1521.26 24 Respondent's assertion (Br 57) that Hinton's wages were in "cash undoubtedly because Hinton had an outstanding garnishment . and was also being sought for child support," is not supported by this record See Tr 1085-1089 25 Oliver, in his testimony, generally asserted that he saw Hinton "helping" a person named Albert House Oliver, however, had "no idea" how much House "paid" Hinton Oliver also acknowledged that he "just didn't know" when this took place 11 Respondent argues, that Oliver testified that Hinton was observed working for Albert House. However, the credible evidence of record does not, as explained above, sufficiently demonstrate that Hinton worked for House and was paid during the pertinent period Respondent states that Hinton "failed to disclose an additional employ- er " Counsel now moves to receive this alleged evidence. (Br 58). This motion is denied The proofs offered are not competent and reliable Re- Continued STANDARD MATERIALS 619 Claude Jenkins Claude Jenkins' backpay period begins on August 9, 1977, and ends on February 10, 1978. His rate of pay with Respondent prior to the unfair labor practices was $4 per hour as a truckdriver. His gross backpay figures for the three quarters involved are $1478, $2278, and $1168. No interim earnings are admitted for the initial quarter; interim earnings with Arrow Cab Co. are admit- ted in the amount of $854 for the next quarter; and inter- im earnings in the amount of $430 are admitted for the last claimed quarter. His total net backpay is therefore $3640. (See G.C. Exh. 1(d) and appendices annexed.) Claude Jenkins testified (Tr. 1010-1066) that he ap- plied for work at Air Products, Quality Cement, Folger's Coffee, Martin Marietta, various local building contrac- tors and cement finishers, Canada Cab, and Arrow Cab. He obtained part-time work at Arrow Cab about No- vember 1977. He continued to seek employment every- day during the last quarter of 1977. He also applied for and drew unemployment. Jenkins acknowledged that he earned $20 from the local police chief by carrying some building materials upstairs and another $20 by helping unload a furniture van (Tr. 1037-1039, 1040).27 I credit the testimony of Claude: Jenkins. I find that he sought interim work with due diligence throughout the backpay period. Respondent has failed to show willful loss or additional interim earnings, except as modified below.28 James Jenkins James Jenkins' backpay period began on August 17, 1977, and ended on February 6, 1978. He was a truck- driver for Respondent at $4 per hour prior to the unfair labor practices. The General Counsel, in his specifica- tion, shows quarterly gross backpay figures of $1256, $2278, and $1183. The General Counsel shows no inter- im earnings in the initial quarter; he admits interim earn- ings of $1500 from Arrow Cab and Earl Javery, a con- tractor, in the next quarter; and he admits interim earn- ings of $816 from Arrow Cab and "self-employed" in the last quarter. The total net backpay is $2401. (See G.C. Exh. 1(d) and appendices.) James Jenkins was examined at length during this hearing (Tr. 766-804, 883-887). Jenkins testified that he performed some "slab digging" work for Javery and part-time work for Arrow Cab.1Z9 He would also seek spondent has failed to sufficiently demonstrate why competent, reliable, and relevant evidence was not adduced during the some 16 months this record was open 27 He recalled, in part, "it [was] between the strike and going to work for Arrow Cab " (Also see Tr 1052-1053 ) as Jenkins, as noted supra, admitted two $20 fees for "odd jobs " Al- though the dates of such payments are not entirely <.lear, it appears that these payments were received during the pertinent period of the third quarter of 1977. The specification will be amended to show a total net backpay of $3600 I have taken into account Jenkins' claimed failure to report income for credibility purposes However, For the reasons dis- cussed supra, no competent evidence of additional interim earnings or willful loss has been adduced As for Jenkins' unemployment checks, as discussed above , they are not interim earnings 29 Jenkins apparently was confused as i o exactly when he worked for Javery Cf Tr 768-771 Jenkins did not understand the term "third quar- ter" (Tr 771) work "practically every day" "early in the morning" at the Blue Room. He reviewed local newspaper advertise- ments; and he applied at J & M Trucking, Dixie Plastic, Industrial Concrete, Brown Man Trucking, and Yellow Trucking. He applied for and drew unemployment. He applied for and obtained regular full-time work as a truckdriver from Delta Roofing. Jenkins was questioned by Respondent as to whether or not he "could have driven" additional days each week for Arrow Cab (Tr. 782-783). He acknowledged that he "could have." He explained: Arrow Cab was part-time because it wasn't my line of work. My line of work was truckdriving, and I've been driving a truck . . . for more than 17 years . . . and that's the only thing . . . I know what I'm doing . . . that's been my life time work. He also explained, as noted above, that he repeatedly sought such regular full-time work during the backpay period until ultimately he was hired as a driver by Delta Roofing. Respondent asserts (Br. 28) that Jenkins acknowledged earning approximately $348 during the third quarter of 1977 from Javery. I am persuaded, instead, that this total amount includes earnings outside the backpay period. (See Tr. 800-803.) In sum, I credit Jenkins. I find that he reasonably and with due diligence sought interim work throughout the backpay period. Respondent has not demonstrated willful loss or additional interim earn- ings.30 John Leonard Leonard's backpay period begins on August 29, 1977, and ends on June 30, 1978. He was employed by Re- spondent as a truckdriver earning $3.90 per hour prior to the unfair labor practices. His gross backpay figures for the four quarters claimed are $897, $2221, $2801, and $2945. The General Counsel, in his specification, initially acknowledged only interim earnings of $304 for the first quarter as an employee of Industrial Concrete. Thus, Leonard's total net backpay, as alleged in the specifica- tion, is assertedly $8560. (See G.C. Exh. 1(d) and appen- dices.) 30 Norvelle Kelly, a cement finishing contractor, testified that "some- times" he "worked with" Earl Javery- "we used to work partnership." He generally recalled "James Jenkins, Earl [Javery] got him out there; he helped us to pour out a couple of times; that's about all he could do " Kelly was uncertain of dates See Tr 1839-1844 Further, Marjorie Ponson, owner of Arrow Cab, testified that James Jenkins had worked for her; her records were incomplete, and, as she ex- plained, drivers, like Jenkins, "picked up the poor" and their tips "was not good " The General Counsel acknowledges (Br. 16) that R Exh 25 "shows that during the third quarter of 1977 Jenkins was reported as having earnings from Leon Lowe . " The General Counsel notes that the record does not show whether this money was earned during the perti- nent backpay period Respondent (Br 28-29) does not specifically cite or argue from this data Insofar as V. J Scogin's testimony (Tr 2061-2062) conflicts with the testimony of Jenkins and admissions in the specification, I do not credit Scogin His testimony is unreliable , vague, argumentative, and does not sufficiently show additional interim earnings or willful loss. 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Leonard, at the time of this hearing, was residing in Pennsylvania. He was transported to Slidell by the Gen- eral Counsel. He was examined at length (see Tr. 260- 367, 400 W). Leonard testified that shortly after "leaving Standard Materials," Respondent Employer, he "went to work for Industrial Concrete" in Pearl River, Louisiana, "driving a cement truck." He acknowledged that this was the "same job [he] had at Standard Materials." His hourly rate of pay was $3.80.31 However, he only worked for Industrial Concrete for "two weeks ." He was asked, "why did you leave?" He responded : "Because there wasn't enough work . I was only working part-time and the equipment wasn 't no good." He then claimed that in fact he had worked for Industrial Concrete "for about four days out of that two weeks."32 Leonard recalled that he went to Pennsylvania about late August 1977. He testified: I didn't actually say (to Industrial Concrete) I was quitting. I had a death in the family up in Pennsyl- vania, and I told them I was going to Pennsylvania, and I was told to pick up my pay check in the office. And I took it for granted that I was fired. The "death in the family in Pennsylvania" was assertedly Leonard's "uncle John" Leonard, in Trafford, Pennsyl- vania. Leonard, however, did not return to Slidell fol- lowing the funeral because , as he testified, "I started looking for work in Pennsylvania . . . because I was only working part-time for . . . Industrial Concrete." Further, Leonard asserted that he went to Pennsylva- nia "both" because his uncle had died and because he was "looking for a job." He explained "that's where I was born and raised." Leonard then listed some 50 or more employers in Pennsylvania where he unsuccessfully sought work . During the entire period of his stay there, he assertedly was only offered a few days of work each week in a diner, which he declined . He applied for un- employment. Ultimately, he returned to Slidell, "was working down here, and then went back to Pennsylva- nia." He placed this about August 1978 . He was appar- ently "hired back" by Respondent about this time. Leonard was questioned about his search for work in Pennsylvania. He testified, in part, as follows: Q. Mr. Leonard, up in (the) Pittsburgh area, did you apply at any ready-mix companies? A. No. Q. Why was that? A. Because there was only one up there that I know of. Q. One in all of Pittsburgh? A. Well, there is some big companies up there, but I wasn't around the Pittsburgh area applying for jobs, I was in Irwin and there is only one small one there. 31 Leonard's hourly rate, as alleged in the specification for this period, was $3 90 32 At this point, the General Counsel proposed an amendment to his specification for the third quarter of 1977 to show interim earnings of only $94 24 instead of $304 (see Tr 277-280) Thus, Leonard 's interim earnings for the four quarters involved are assertedly only $94 Q. And, you did not apply there? A. No. Q. Why was that? A. Well, for one reason, I forgot about it being there. Leonard's "last two jobs," as noted, were "ready-mix jobs." Elsewhere, Leonard claimed that he "remem- bered" the ready-mix employer in Irwin, "but there was only one truck there" and he "didn't think it would do any good." Leonard also did not seek ready-mix work in other nearby areas in Pennsylvania. Respondent asserts that Leonard's claim of a death in his family as a reason for leaving Slidell is untrue (Br. 15). Apparently, a search of the area death certificates shows no John Leonard having died from July through September 1977, although a person by that name died years earlier. (See R. Exhs. 16(a), (b), and (c).) The Gen- eral Counsel (Br. 16) states: "while one of the reasons he left was because of a death in his family, records intro- duced by Respondent indicate that Leonard may have been confused on this point .. . . Rocky Lumpkin, formerly associated with Industrial Concrete as general manager, generally claimed that during the period of September 1977 through July 1978, Industrial Concrete was "hiring" "all the drivers I could get." He noted that "we started truck drivers off at $4 an hour . . . ." And, James Gipson, plant manager for In- dustrial, testified that Leonard was hired as a full-time employee and quit because of a "family problem." George Taylor, Leonard's father-in-law, testified that Leonard was married to his daughter during July 1977; that he "went back" to Pennsylvania after "the strike"; and that "He went back to Pennsylvania because he was fired and he apparently was trying to find a job driving a truck . . . his occupation . . . since he couldn't get one here." Leonard assertedly told this to Taylor "after he had been dismissed" from Standard Materials. Taylor ac- knowledged that Leonard had worked for Industrial Concrete for "a short period of time" and "his reason for leaving . . . I certainly wouldn't have any knowledge of that." I do not credit the testimony of Leonard. His testimo- ny contained untrue statements and was otherwise vague and evasive. He claimed that he left Industrial Concrete because that job was part time. The credible testimony of Lumpkin and Gipson shows that Industrial Concrete had work for him at the time. He claimed that he went to Pennsylvania because of his uncle's death. This is untrue. He claimed that he went to Pennsylvania to find a truckdriving job. However, I do not believe his asser- tions that he, during the quarters involved, sought in good faith or with due diligence interim work in Penn- sylvania. His testimony concerning his alleged search is vague and evasive. Leonard, for reasons never credibly related here, quit a truckdriving job at Industrial Con- crete that paid about the same hourly amount as he had earned with Respondent. There was work available with Industrial. He went to another State, applied for unem- ployment, and did not, on this record, make a reasonable effort to find interim work. STANDARD MATERIALS 621 The General Counsel argues that "a discriminatee is not limited to the local labor market" and that Industrial Concrete did not provide, in effect, anything more than part-time work (Br. 16-17). It is true, Leonard could dili- gently search elsewhere for work, and a part-time sea- sonal job is not substantially equivalent to his prior em- ployment with Respondent. However, I find here that he quit a full-time job, at the outset of the backpay period, with Industrial for personal reasons, left the area, and did not sufficiently pursue his search. He withdrew himself from the labor market during the pertinent period. His claim is therefore denied. Robert Orange Orange's backpay period begins on July 22, 1977, and ends on May 26, 1978. He was employed by Respondent as a batcher prior to the unfair labor practices in this case at a rate of $4 per hour. His gross backpay figures for the four quarters involved are $1953, $2278, $2711, and $1823. The specification initially admitted only inter- im employment with one Julius Smith in the initial quar- ter claimed in the amount of $192. The total net backpay claimed was $8573. (See G.C. Exh. 1(d) and appendices.) The General Counsel, on October 28, 1980, amended his specification to admit additional interim earnings during the first quarter of 1978 with one Titus Owens in the amount of $540 and during the second quarter of 1978 with Owens in the amount of $1609. The total net back- pay claimed was thus reduced to $6424. (See G.C. Exh. 1(p) and appendices.) Orange testified (Tr. 1181-1210, 2108) that following the strike, he read local newspaper advertisements and showed up daily at the Blue Room looking for work.33 He recalled that commencing about October 1977, he ob- tained work with Julius Smith "laying the slabs" at the construction sites. He assertedly averaged about $35 per day, 7 days of work per month, during the first some 20 days of work for Smith. He explained that Smith "laid me off' "around the middle of January" because "things were slow."34 He was unemployed until the second week of March 1978, when he "started to work for Titus Owens." Owens paid him "the first two weeks" at $40 per day and "then they raised me to $50 in April." He added: "It was a regular job . . . if the weather permit- ted."35 The General Counsel argues (Br. 18) that, based on Orange's testimony that he worked for Smith some 20 days at $35 per day (see Tr. 1192), he earned approxi- mately $490 (14 days x $35) in the fourth quarter of 1977, and $160 (4 days x $40) in the first quarter of 1978. He also earned $84 from Javery in the first quarter of 1978. The General Counsel would admit these interim earnings in addition to those previously acknowledged in the specification, as amended . Thus, the fourth quarter of 88 He acknowledged that he had no driver's license He had lost it in 1970 His job with Respondent, as a batcher, did not require a license 94 He noted that he "kept up with the six or seven times a month [work] up until the middle of January 1978 " sa Orange, when shown receipts or invoices at construction sites, agreed that he must have been working for Smith as early as September 1, 1977. He also acknowledged earning $84 from George Javery during early 1978 1977 should show interim earnings of $490 and the first quarter of 1978 should show interim earnings of $784.58 I agree, on this record, with the General Counsel's cal- culations. Orange credibly testified with respect to his in- terim earnings . He credibly related his efforts, with some success, to find interim work. I am persuaded here that he sought interim work with due diligence and in good faith. Respondent has shown no willful loss or additional interim earnings, except as acknowledged above. Or- ange's total net backpay is therefore reduced from $6424 to $5690.37 Alt Owens Alt Owens' backpay period began on July 22, 1977, and ended on May 19, 1978. He was earning $4 per hour from Respondent as a truckdriver before the unfair labor practices. His gross quarterly backpay figures are $1953, $2438, $2711, and $1691. The General Counsel admitted in his specification interim earnings in the fourth quarter of 1977 with Leon Lowe in the amount of $800 and in the first quarter of 1978 with Titus Owens in the amount of $150. His total net backpay, as alleged initially, is $7843. (See G.C. Exh. 1(d) and appendices.) Thereafter, on October 28, 1980, the General Counsel amended his specification to eliminate any $800 interim earnings for Leon Lowe, thereby increasing the total net backpay to $8643. (See G.C. Exh. 1(p) and appendix.) Alt Owens was examined at length by counsel (Tr. 1129-1181, 1245-1246). He testified that he sought inter- im employment at, inter alia, J & M Trucking, John Smith Cement Company, Bernard Lumber, Dixie Plas- tics, the Union 76 Truck Stop, and with local construc- tion contractors, including his brother Titus Owens. He applied for and received unemployment. His search for interim work started immediately "after the strike." He was asked if he got "any referrals from the unemploy- ment office?" He explained: "I went there looking for a job, they didn't have nothing but for a welder . . . at the shipyard . .. ." He "couldn't weld." As for his interim work with his brother Titus, Alt Owens explained: "He 36 The General Counsel asserts that, although Orange agreed he per- formed work for Smith as early as September 1, 1977, in the first quarter of 1977, Respondent has failed to establish that Orange in fact earned more in that quarter than is admitted in the specification Julius Smith's testimony, in this respect, also does not sufficiently show additional inter- im earnings See Tr 1666-1676 37 The total net backpay for the third quarter 1977 is $1761, fourth quarter 1977 is $1788 , first quarter 1978 is $1927, and second quarter 1978 is $214 Respondent generally argues (Br 44) that Orange's unemploy- ment payments should be considered interim earnings and that Orange as- sertedly never reported interim earnings to state and Federal authorities These and related contentions, previously discussed with respect to other claimants, have been considered for credibility purposes, but do not show here willful loss or additional interim earnings Finally, Respondent argues that V J Scogin testified (Br. 44 ) that he "saw Orange working three to four times a week with Julius Smith" commencing "a week after the strike", that he "continued to see Orange working this time for Titus Owens 3 to 5 days a week during the first quarter of 1978", and that "Orange said to Scogin that he did not want to come back to work in early 1978 " As for V J Scogin's testimony (see Tr 1602-1612), insofar as such testimony conflicts with that of Orange, I credit Orange as a more reliable and credible witness Scogin's testimony was, as noted, vague, incomplete , and argumentative He did not impress me as a credible or trustworthy witness His testimony , on this record, does not show willful loss or additional interim earnings 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was pouring that cement and I used to go over and just help out and help him pour . . . . I never could do no finishing."38 General Counsel states (Br. 19): State records show additional interim earnings for Owens for the third quarter of 1977 with Action Building Services, Inc. (R. Exh. 25). While Alfred Lauret noted the substantial possibility of error in the compilating of these records (Tr. 2284-2285), assuming that this record is correct, it is respectfully urged that Respondent has failed to establish that Owens willfully failed to reveal interim earnings Respondent, citing Respondent's Exhibit 25 (Br. 42), claims interim earnings with Action Building for $566. Annex 2 of Respondent's Exhibit 25 shows under what purports to be Alt Owens' social security number $566 earnings from Action Building. At the end of Annex 2, written in cursive, is: Please note, wage verification was made on social security number only, not by name of individuals. It is possible that some of the wages reported were not earned by the individual discriminatee, but could have been actually earned by another individ- ual for whom wages were reported in error under discriminatee's social security number. Respondent argues (Br. 42-43) that the $566 from Action Building should be deducted and unemployment benefits should be deducted. As for unemployment bene- fits, this contention has been discussed and rejected supra. As for Respondent's Exhibit 25, I will allow the deduction, although not without some difficulty. I note that Annex 2 of Respondent's Exhibit 25 shows earnings with Respondent Employer under the social security number cited. There was then some basis for the General Counsel to argue in his brief specific error. I am persuad- ed that this additional interim earning has been sufficient- ly proven. The third quarter of 1977 will show this inter- im earning. However, on this record, I am not persuaded that Alt Owens willfully concealed interim earnings. He kept no records; his education and skills are limited; and I am persuaded that he credibly related what he could recall during the pertinent period. In sum, I find Alt Owens exercised due diligence in the search for interim work; Respondent has failed to show any interim earnings other than as noted above; and Respondent has failed to show willful loss as claimed.39 The net total backpay is reduced to $8077. 38 Owens acknowledged that there was an Internal Revenue Service lien levied against him during 1977 in the amount of $666 61 36 Respondent states (Br 43)• "The reason for Alt Owens reluctance to work for other than cash became obvious when he admitted there was an Internal Revenue Service tax levy outstanding " The credible evi- dence of record does not support this assertion Further, I note that V J Scogin generally claimed here, as with respect to other claimants dis- cussed and noted supra, that Alt Owens "said that he'd come back to work but he wanted to work part-time for cash off the books" and that "after the strike" he saw Owens working concrete jobs "anywhere from one to three days a week" and working as "a taxi dnver" (Tr 2035- 2038). 1 do not credit Scogin As stated, I find him to be an incredible Oliver Owens Oliver Owens' backpay period starts on July 22, 1977, and ends on November 30, 1979. He was employed by Respondent as a mechanic prior to the unfair labor prac- tices earning $4.85 per hour. The General Counsel only claims backpay for him during the third quarter of 1977, showing $2368 in gross backpay, and admitting interim earnings with one Jesse Ray of $56 and with Air Prod- ucts of $212.40 The net backpay claimed is $2119. (See G.C. Exh. 1(d) and appendix.) Oliver Owens appeared and testified on three separate days during this supplemental proceeding (Tr. 38-42, 805-828, 903-904). He is currently employed by Air Products. He started with them on September 27, 1977. He explained that it is a 50-mile roundtrip to and from work by auto each day. His home was only about 1-1/2 miles from Respondent's facility. As noted, the General Counsel seeks $19 in expenses for the transportation to this interim employer. Owens further testified that "after the strike," he read "want-ads here in Slidell"; sought work at J & M, Ber- nard Lumber, and Delta Roofing; and signed up for un- employment. He performed carpentry work for Jessie Ray earning $56. Later, as noted, he earned $212 with Air Products during the quarter involved. He was exam- ined by counsel for Respondent, as follows: Q. Did you make any application at any other company in New Orleans East? A. No. I did not. Q. What about concrete companies in New Orle- ans East? A. No. I did not. Q. Was there any reason for that? A. No reason. Q. There is no reason? A. At the time, I didn't have no reason to look. Q. I'm talking about in late July and August and early September. Was there any reason you did not apply? A. No. At the time, my trailer burnt and every- thing I had was in the trailer, and I was working on my trailer to get it fixed. Q. How long did you have to work on your trail- er? A. I had to clear all the inside of it, repaint it. Q. Was that a full-time job, working on your trailer? A. Yes, it was. I got the kids and- Q. What did that take? Several weeks? A. It took about three weeks. Q. When did your trailer burn? and unreliable witness here Scogin 's testimony was vague, incomplete, and argumentative I also do not credit the related testimony of Robert Carbo (Tr. 2006-2020) His testimony was similarly vague, incomplete, argumentative , and unreliable. In addition , Respondent has not sufficient- ly demonstrated here that Owens was unavailable for work during the pertinent period because of medical disability (See Tr 1143-1149, 1955- 1959, R Br 43). 40 There were also $19 in transportation expenses claimed STANDARD MATERIALS 623 A. In the period of about the last of August or early September. However, Owens elsewhere explained that the "first time" he "went down" to Air Products was "about two weeks before September 27," when he was hired. Respondent argues (Br. 30): "Jesse Ray Smith actually paid Oliver Owens $700 rather than $56. See Motion to Introduce New Evidence." As noted supra under Hinton, item 9, I have rejected this motion. Respondent has failed to show here why rel- evant and competent evidence could not have been of- fered or adduced during the period this record remained open. As stated, Owens made himself available on three separate occasions for examination. Respondent argues that Owens' "search for work is inadequate" (Br. 30). I credit instead the testimony of Owens and find, on this record, that he diligently sought work throughout the quarter involved here. Further, Respondent argues (Br. 30) that Owens "took himself out of the job market for at least a three week period in late August or early Sep- tember when his trailer burned." A full reading of his testimony, quoted above, shows that he apparently ap- plied, with success, at Air Products about this same time. Respondent has failed to show sufficiently any willful loss or additional interim earnings or actual removal from the job market except as modified below.4 i Titus Owens Titus Owens' backpay period begins on July 22, 1977, and ends on March 8, 1978. He was employed by Re- spondent as a truckdriver earning $4 per hour prior to the unfair labor practices. His gross backpay figures during the three quarters involved are $2028, $2353, and $1917. The General Counsel, in his specification, ac- knowledges interim earnings with one Marvin Olivo during each of the three quarters, in the amounts of $460, $747, and $498, respectively. In the last quarter, the General Counsel also acknowledges interim earnings of $212 as "self-employed." His total net backpay is $4381. (See G.C. Exh. 1(d) and appendices.) Titus Owens testified on two separate occasions during these proceedings (Tr. 1210-1245, 1265-1266, 1774- 1799). He testified that "after the strike," he found work with one Marvin Olivo, "pouring slabs" on construction sites. He recalled that Olivo "just give me so much to come out there and help him do so much work. . . . I don't ever remember working a full day." He was paid by check. He did not "turn down work for Mr. Olivo." He also applied for unemployment and sought work at the Blue Room and Harbor Cafe, where day workers were picked up. He also named other em- ployers from whom he sought interim work. He contin- ued working jobs for Olivo and, during March 1978, he became "self-employed" as a "cement contractor." Com- mencing in March 1978, he hired workers on his jobs. (I note that his backpay period ends on March 8, 1978.)42 Titus Owens was questioned at length about the nature of his work with Olivo. He explained: Well, you see what would happen, I might go out there. They may have a slab, they might need five people to pour it out, and it might not take but two to finish. And, it might take two hours to pour it out, maybe an hour, sometimes three hours. Owens added: "he kind of averaged out $5 or $6 an hour, maybe more than that. [Olivo] wasn't paying by the hour or not by the day . . . ." This was, in Owens' view, an "average." Owens, however, did not "know how" Olivo "figured . .. how much" he was "owed." He "accepted what" Olivo "gave" him. Titus Owens was shown various canceled checks from Olivo. Owens explained that, in some cases, "it could have been two of us working together" in which event Titus "would pay" the other person or persons "by cash" after cashing Olivo's check. It was not seriously disputed that the checks from Olivo to Owens, during his backpay period (see R. Exhs. 13(a)-(z)), do not exceed the amounts admitted in the specification as inter- im earnings from Olivo. Apparently, "the amount admit- ted exceeds the checks." (See Tr. 1787-1797.) Owens ad- mittedly kept no records showing how much he earned in order to file tax returns. He admittedly did not report these interim earnings on his tax forms. Marvin Olivo, a cement finishing contractor, testified that "I've only got checks on Titus Owens, I subbed the work to him." These are the checks referred to above as Respondent's Exhibits 13(a)-(z). It was stipulated that all the checks that Olivo could find pertaining to Titus Owens were "turned over." Olivo recalled that Titus Owens "worked pretty regularly"; however, Olivo added: "Well, you know, ain't no finisher likes to pour concrete when it looks like rain . . . we wouldn't ... . Olivo admittedly had no "other records" "except the checks." Olivo did not know how much from each spe- cific check was money kept by Titus Owens, or paid to a laborer or laborers working with Titus Owens. Rocky Lumpkin, associated with Industrial Concrete and Supply, testified that he had the following conversa- tion with Titus Owens while "we were pouring a slab and he was doing the concrete work on the slab": It occurred around the last part of September (1977), probably the last week. I'd been working about three weeks and I offered him a job. Well, he confronted me wanting to know if I had any open- ings for a truckdnver, . . . I needed good truck- drivers. He had a lot of experience working for Standard Materials and I told him "yes," and the highest paid man on the payroll was $5.50, and he told me it'd take $8.50 to get him, and I just told 41 Caroline Rodriguez of Air Products testified that she would calcu- late Owens' wages for the days involved to be about $260 instead of $212 as admitted in the specification. Therefore, Owens' net backpay is re- duced by $48 to $2071. 42 Owens acknowledged that the state unemployment agency "recom- mended me a job at one time," and "I didn't accept it-it seems like they told me the scales were lower than what I was making " 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD him . . . I couldn't be that unfair to the rest of my men. Lumpkin acknowledged that a "finisher" would "prob- ably" make more than $5.50 per hour. Lumpkin admit- tedly did not discuss "what the job would entail" or what "the hours . . . would be."43 I credit the testimony of Titus Owens summarized above with respect to his efforts to find interim work and the nature of the jobs that he obtained. His testimo- ny, in this respect, is corroborated in significant part by checks, testimony of Olivo, and testimony of Lumpkin. I am persuaded on this record that Titus Owens, through- out the backpay period, diligently and in good faith, sought interim work and incurred no willful loss. How- ever, insofar as Owens' testimony conflicts with that of Lumpkin, as noted supra, I credit Lumpkin's specific recollection of his September conversation. Owens was unsure and uncertain with respect to this conversation. In any event, on this record, Lumpkin's testimony does not sufficiently establish any willful loss as claimed. Owens, at the time, was diligently seeking cement finish- ing jobs; Lumpkin acknowledged that a "cement finish- er" would "probably" make more than the $5.50 an hour, which was what he paid his "highest paid man." And, although it is true that Owens in fact apparently wound up with less than $5.50 per hour during the perti- nent period, he was trying to improve his economic situ- ation. In sum, he was trying in good faith to mitigate his losses and, if possible, to improve his lot. As noted above, success is not the test of a good-faith effort to find interim work. Respondent has not established any willful loss or interim earnings other than those acknowl- edged in the specification. 44 Alexander Paige Paige's backpay period begins on July 22, 1977, and ends on May 18, 1978. He was employed by Respondent as a truckdriver prior to the unfair labor practices in- volved here, earning $4 per hour. His gross backpay fig- ures for the four quarters involved are $1953, $2278, as Owens acknowledged that "I probably asked him [Lumpkin] about it . I know we used to talk all the time." Owens did not "recall" any conversation where he "quoted [Lumpkin] a wage rate [he] would accept as a truckdnver." He denied telling Lumpkin he would work for $8.50 an hour or that a job was in fact offered. 44 Respondent asserts (Br 46) "Unfortunately for Mr Owens, the Louisiana Office Of Employment Security by letter dated November 26, 1980, charged him with fraud " Elsewhere, it refers to Owens as "the self-proclaimed leader of the former strikers " Respondent 's reference to an alleged "fraud" charge is apparently predicated on rejected R Exh 20. See also Tr. pp. 2067-2079. The credible evidence of record does not support this and related assertions Moreover, although I have taken into account alleged failures to report intenm earnings to state and Federal agencies for credibility purposes, Respondent, by such contentions, has not shown additional interim earnings or willful loss or fraud. As dis- cussed supra, the actual tax consequences of Owens', or his co-claimants', failure to report intenm earnings, and whether, and to what extent, un- employment benefits would be reduced by these amounts , are not suffi- ciently shown here. Moreover, Owens' alleged desire not to return to work for Respondent (R. Br 46) also does not establish here additional interim earnings or willful loss. See Heinrich Motors, 166 NLRB 783 Fur- ther, Respondent's assertion (Br 47) that "throughout the backpay period he [Owens] was unable to look for work, or even to obtain work [per- haps only as a contractor] because of a back problem that prevented him from lifting" is also not supported by this record . Cf Tr 1219-1220 $2711, and $1556. The specification admits interim earn- ings in the third quarter of 1977 for $320; interim earn- ings in the next quarter for $530; interim earnings in the next quarter for $550; and interim earnings in the last quarter for $281. The total net backpay is therefore $6817. (See G.C. Exh. 1(d) and appendices.) Paige testified at length (Tr. 692-766). He explained that he went to the Blue Room seeking work during the backpay period. He testified: "Q. Is it your testimony that most every morning you were there at the Blue Room? A. Yes sir.... I was looking for something to do. I had a family to take care of." He also applied for work at, inter alia, Quality Trans- port, Bulk Transport, J & M, Dixie Plastic, Bernard Lumber, Delta Roofing, and Stone Container.45 The specification acknowledges interim earnings from various contractors and as "self-employed." The "self-employed" included "digging a house slab." (See also testimony of contractor Leon Sylvester, Tr. 1845-1848.) Respondent argues (Br. 26) that "Leroy Broom testi- fied that Alex Paige was paid $600 on October 7, 1977 (Tr. 2142). This should be added to the net backpay due for the interim earnings for the fourth quarter of 1977." Broom, however, acknowledged (Tr. 2146) that "this check to Mr. Paige for that amount would generally in- dicate he was paying other people to work for him," and there were "two or three." And, Paige explained (Tr. 715): Q. Mr. Paige, the next reference is to Leroy Broom, $180. Is that figure correct? A. Might be. Or it might be more. I got a check for more than that, but I didn't collect no more. Q. You mean you shared it with some other workers? A. Oh, yeah. He added: "we all work together and we all split it I only got $180 out of that job." Respondent also argues (Br. 27) that "Mr. L. H. Dunham Jr. was able to find a check dated April 24, 1978 in the amount of $588 (R-15). Therefore, the $588 would constitute additional interim earnings that should be deducted from the net backpay for the second quarter of 1978 (Tr. 1942)." Dunham, however, testified: "Q. Do you have any way of knowing how much Mr. Paige made out of this job or how much he might have paid out to somebody else? A. No. I wouldn't know." And, Paige recalled that he did work for Dunham (Sli- dell Marble), pouring cement. He explained: "There were more people working besides me on that job." I credit Paige's testimony. I am persuaded here that he made a good-faith effort throughout the backpay period to find work. Respondent has not established any willful loss or additional interim earnings here. 45 He admittedly turned down Stone Container because, he recalled, they had offered $3 "and something" per hour, about $ 1 less per hour than he was earning from Respondent The unemployment agency had referred him to this job STANDARD MATERIALS 625 Albert Panks Sr. Panks' Sr. backpay period begins on September 22, 1977, and ends on January 31, 1978. He was employed by Respondent as a welder. The General Counsel only seeks backpay for Panks Sr. during the fourth quarter of 1977. Gross backpay is $2563 and admitted interim earn- ings with Robintech, Inc. are $2126, or a net of $437. (See G.C. Exh. 1(d) and appendix.) Panks Sr. was produced by the General Counsel and questioned by Respondent's counsel (Tr. 1247-1258). Panks Sr. explained credibly that he wcrked for Robin- tech and sought other interim work during the pertinent period. I find here that he sought work during this period with due diligence. Respondent has shown no willful loss or additional interim earnings.46 Albert Panks Jr. The General Counsel, in his specification, initially al- leged Panks' Jr. gross backpay for the three quarters to be a total of $3104. The specification did not show any interim earnings. See G.C. Exh. 1(d) and appendices. At the hearing, on February 13, 1981 (Tr. 1308-1309), the General Counsel moved to amend his specification to withdraw any claim for the first quarter of 1978, and to admit interim earnings of $920 during the fourth quarter of 1977, thereby alleging a total net backpay of $1341 in- stead of $3104. Respondent had no objection. Then, before Panks Jr. was called to testify on Febru- ary 13, the General Counsel asserted (Tr. 1309-1317): Yesterday, a question was asked of one of the wit- nesses as to whether he had been arrested for a cer- tain crime. I believe that the prejudicial impact of questions like that can't be cured by objections, and I would request that the Court direct (counsel for Respond- ent) not to ask questions regarding arrests unless there is a conviction. In response, I explained to both counsel: I have read the Federal rule to (counsel for Re- spondent) and explained this to him. He principally was relying upon a newspaper report of an arrest. If he comes up with a document indicating a convic- tion of the type of a crime . . . referred to in the Federal rule, then he can put that in evidence. 46 Herbert Wallace, associated with Rolbmtech, Inc. verified the inter- im earnings of Panks However, Wallace's testimony shows (Tr. 1805- 1813) that Panks Sr. apparently used Panks' Jr. social security number. Wallace also noted that "Panks' applhcalion . didn't use the name Junior . . nor senior," and "lists his date of birth as 1932 " Respondent asserts (Br 48) that this is "deliberate fraud " However, on the entire record before me, Respondent has not established any additional interim earnings or willful loss Moreover, this record does not show "deliberate fraud," as claimed. There was also testimony by Roland Scogin, brother of V J Scogin, pertaining to work that he generally had available for Panks Sr in an- other quarter not claimed here Insofar as Roland Scogin's testimony conflicts with the testimony of Panks Sr., I credit the latter as more reli- able. Roland Scogin's testimony was general, vague, and incomplete with respect to a quarter not specifically in issue Despite this explanation, the General Counsel insisted that, "absent such an instruction, I [General Counsel] could not voluntarily produce Mr. Albert Panks Jr." Panks Jr., although apparently standing "outside," left the area. The General Counsel, although agreeing in effect that with respect to the prior witness or witnesses the Federal rules were properly applied, persisted in re- fusing to produce Panks Jr. The General Counsel was af- forded time to confer with his superiors and Panks Jr. I asked the General Counsel: "do you think you're reason- ably responding by withholding a witness who otherwise would be made available in a backpay proceeding?" He responded: "I am ...." And, I stated then, ". . . what you (the General Counsel) are doing is ... taking it upon yourself to determine what admonitions I should give in advance to counsel for Respondent, and I think that is improper .. .."41 On the next day of hearings, some 10 days later, Feb- ruary 23, 1981 (Tr. 1384-1388), the General Counsel was apprised that Panks Jr., under the circumstances, may in effect be waiving his claim by not testifying. The Gener- al Counsel then explained: I'd like to make clear that , as I stated to the Court when this situation first arose, that Mr. Panks' posi- tion, as it was directed to me, was that he would not voluntarily take the stand. . . . I brought him here.... In short, as the General Counsel acknowledged, "he [Panks Jr.] determined unless (the administrative law judge) would give an advance ruling, he would not come in" (Tr. 1386). We do not deal here with the abstract legal question, must the General Counsel produce or subpoena a back- pay claimant. The General Counsel did produce Panks Jr. as he had done with all but one of the other 23 claim- ants. We have involved here a claimant who has de- clined to take the stand unless given an advance ruling. There was no reason to anticipate, in his case, that the Federal Rules of Evidence would not be applied. Fur- ther, I note that Panks Jr.'s social security number had been used by his father during the backpay period, and significant amendments to the specification had been made at the hearing on the day of Panks Jr.'s anticipated testimony. Under all these circumstances, I am persuaded that Panks Jr. has abandoned, by such conduct, his claim. He was brought to the hearing and he determined to testify only under his rules. This system cannot rea- sonably function under such conditions. If Panks Jr. seeks the assistance of the Board, he must reasonably co- operate with it. He has not done so here. His claim is denied. Cf. Woonsocket Health Centre, 263 NLRB 1367 (1982). 44 The General Counsel assertedly turned over to counsel for Re- spondent the address of Panks Jr Counsel for Respondent claimed that he had subpoenaed Panks Jr "at this location " and "had not gotten a return " Counsel for Respondent did not request an additional subpoena 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Edgar Peters Peters' backpay period started on August 4, 1977, and ended on May 25, 1978. He was employed by Respond- ent as a truckdriver at $4 per hour prior to the unfair labor practices. His gross backpay figures for the four quarters involved are $1619, $2438, $2711, and $1788. The General Counsel acknowledges interim earnings during these quarters, respectively, in the amounts of $1170, $750, $1690, and $1282, or a total net backpay claim of $3664. (See G.C. Exh. 1(d) and appendices.) Peters testified (Tr. 1267-1296) that he sought interim work at, inter alia, Thompson Meat Store, Delta Roof- ing, Folgers Coffee, and Bernard Lumber. He explained: "I was looking all the time . . . I was looking for work all the time, something steady that I could handle. . . . I went to Bernard (Lumber), that's where I stayed at." He applied for and drew unem- ployment. He sought day work at the Blue Room.48 I credit the testimony of Peters. I am persuaded here that he reasonably and diligently sought interim work throughout the backpay period. Respondent has not shown willful loss or additional interim earnings.49 Ervin Pope Pope's backpay period runs from July 25, 1977, and is continuing. The General Counsel explains in his specifi- cation (G.C. Exh. 1(d) and appendices) that Pope's wage loss is continuing until Respondent applies the proper rate to his job and reimburses Pope for the losses occa- sioned by Respondent's failure to pay the proper rate commencing at the time of Pope's reinstatement. (As noted supra, the issues before me have been limited by the Board to, in effect, willful loss and interim earnings. See 252 NLRB 679, quoted supra.)50 Pope testified (Tr. 1338-1372) that he is 51 years old, went to the second or third grade in school, and "the only thing I knew how to do is dig slabs and drive trucks, because my education wasn't qualified for" jobs like, inter alia, "cement finisher." He recalled that "after the strike . . . I was digging slabs . . . ." He later ob- 49 Respondent asserts (Br 50), inter alia, that Peters "has received un- employment under fraudulent circumstances " This record does not support this assertion Respondent further asserts (Br. 50) "Some of Mr Peters' income from Bernard was undoubtedly never reported to the government since he was arrested for theft from Bernard Lumber in 1980 and discharged (Tr. 1292) " A reading of this record, Tr 1290-1293, 1387-1388, makes it clear that the above assertion is also unsupported by the record 49 Peters acknowledged that, in addition to the interim employers shown in the specification, he made $80 "at the Marble Place " That was "right after the strike"-"unloading a truck " However, July 1 through August 3, 1977, are "excepted periods " See App V-1 to G C Exh 1(d) Insofar as the testimony of V J Scogin conflicts with the testimony of Peters and the admissions in the specification (Tr 1911-1917), I do not credit Scogin's testimony As stated, I find Scogin to be an argumenta- tive, vague, and unreliable witness 50 The General Counsel's appendices to his specification for Pope (App W-1 through 9 of G C Exh 1(d)) show quarterly gross backpay amounts of $1896, $2438, $2711, $3016, $2722, $2743, $2993, $3373, and $2832 There are no interim earnings during the initial quarter Thereaf- ter, admitted interim earnings are, respectively , $250, $850, $1709, $1907, $2257, $2055, $2061, and $1812 The net backpay shown is $11,823 tained regular employment as a truckdriver with Bernard Lumber. He applied for and received unemployment. He continued to look "for a better job" and ultimately re- turned to Respondent Employer about September 1979. Pope acknowledged that he has arthritis; that he used crutches for a short period; and that "it never did last over about a day or two days-then it would be all over with." He explained that he never missed any time from work with Bernard Lumber because of this arthritis. Pope was asked: Q. Mr. Pope there's a note from (compliance offi- cer) Baird dated May 11, 1978, that says stove up with arthritis, works two-thirds of the time. Did you ever tell Mr. Baird that? A. I don't remember. Q. Is that true? A. I really don't remember. Pope then explained that he had arthritis when "I was working for Mr. Scogin during the f i r s t time .. . . Ellis Scogin, Respondent's dispatcher and a cousin of V. J. Scogin, testified, inter alia, "I don't remember the exact dates. Mr. Pope came in and asked for his job. He was told that his job was available . . . . Mr. Pope was suffering from arthritis which he readily admitted to me. . . . Oh, I don't know the date . . . . He said he would come back to work even with arthritis . . . . He couldn't hardly walk. . . . He didn't have crutches . ." This was apparently in late 1977 or early 1978. Ellis Scogin further claimed that in 1979 Pope returned to Respondent and "missed work frequently because of his illness." Ellis Scogin finally claimed: I don't have the dates. I would have to go to the office and check my time cards and see the exact date Mr. Pope told me that he could no longer per- form his duties . . . would have to leave . . . . The arthritis had him.51 Robert Carbo, associated with Respondent for some 18 years and married to the niece of V. J. Scogin, claimed that Pope said to him that he, Pope, "didn't feel like he would come back to work . . . he was crippled." Carbo added: "As a matter of fact, there was a pair of crutches in the car . . . ." Carbo placed this in late October or early November 1977. Elsewhere, Carbo admitted testi- fying in the unfair labor practice proceeding that Pope was not on crutches during a meeting with him. And, V. J. Scogin claimed that he told Pope, who "came to the plant" 3 or 4 months after the strike "on crutches," that "I'd have to send him to a doctor and get an okay." (See Tr. 2029-2030.) I credit the testimony of Pope. I am persuaded here that he sought interim work throughout the backpay period with due diligence. Pope, as noted, lacked a formal education and did not possess any real skills. He admittedly had arthritis, even when he worked for Re- spondent before the unfair labor practices. In view of the admitted interim earnings during the pertinent quarters, 51 The General Counsel is admittedly not seeking backpay after Pope left Standard "sometime in 1980" (see Tr 1953, 1339, and 1341 ) STANDARD MATERIALS 627 it is clear, as Pope credibly explained, his arthritis would only last for 1 or 2 days. In short, this arthritic condition was apparently in a state of remission for substantial peri- ods during the backpay quarters. Further, I find the testi- mony of Ellis Scogin, Carbo and V. J. Scogin to be vague, contradictory, incomplete, and unreliable throughout this record. In any event, Respondent, on this record, has not sufficiently demonstrated when and for what periods, during the backpay quarters, Pope's ar- thritis flared up and thereby removed him from the labor market. Therefore, I find that Respondent has not estab- lished here that Pope had additional interim earnings or incurred willful loss or was otherwise unavailable for employment during the specific periods involved. See, generally, Dayton Tire & Rubber Co., 227 NLRB 873, 876 (1977), enfd. as modified 591 F.2d 566 (10th Cir. 1979); Vanguard Oil, 246 NLRB 130, 133 (1979); and cases cited. His claim is allowed in full.52 James Square The General Counsel claims net backpay for Square in the amount of $276 during portions of the fourth quarter of 1977. Square was working during this quarter with the City of Slidell. (See G.C. Exh. 1(d) and appendix.) Square testified at this proceeding (Tr. 1395-1405). Respondent (Br. 55) states: Square's backpay penod runs from October 7 through December 3, 1977. During this time, Square was employed by the City of Slidell and his earnings for the quarter were only $276.00 short of what he would have earned at Standard. It is, how- ever, necessary to go back to August, 1977, when Square was employed at Metro Meats along with Levy Crawford and Ellis Beard. (Tr. 1401) As can be seen by the testimony of Jesse Carlin, these indi- viduals walked away from full time permanent em- ployment, and therefore Square has wilfully [sic] re- fused suitable employment that would have paid ap- proximately $4.00 an hour, or a total of $1,280.00 of the eight week period of the backpay. This is $9.00 more than the quarterly total gross backpay for the period. As discussed under Levy Crawford, supra, Square's job at Metro Meats "killing cows" was not substantially equivalent to his work as "yard man" for Respondent 52 Respondent (Br 54) cites the note of compliance officer Baird that Pope was "stove up" with arthritis and "could only work two-thirds of the time " This note is assertedly dated May 11, 1978 Pope, both before and after this date, was apparently working for Bernard Lumber See G C. Exh 1 (d), appendices W-4 and W-5. Although I have accepted Baird's note as substantive evidence here (see Tr 1301- 1304, 1380-1384, 1772-1773, 1852-1859), Respondent has not sufficiently demonstrated that Pope's arthritis rendered him unavailable for work during the backpay period Respondent also argues (Br. 53) that Pope had interim earnings during the third quarter of 1977 of $1080 Pope, as noted, lacked any real formal education and cannot read The pertinent portions of his testimony (Tr 1345-1348, 1367-1368, 1370-1371), compared with the admissions in the specification, persuade me, on the entire record , that Pope became con- fused about dates and extent of his interim day jobs Respondent has not sufficiently shown these additional interim earnings Employer.63 Moreover, this record makes clear that Square continued his search, with success, during the backpay period seeking substantially equivalent work. Respondent has not shown additional interim earnings or willful loss, as claimed .54 Edward Wise Edward Wise's backpay period starts on July 22 and ends on September 20, 1977. His gross backpay for the one quarter involved is $1646. Interim earnings with one Edward Ducre and one Marvin Olivo in the total amount of $150 are admitted. The net backpay claim is $1496. (See G.C. Exh. 1(d) and appendix.) Wise testified (Tr. 1318-1334) that he made the above interim earnings performing "slab work" or "finishing driveways" or roadways. Wise related where he sought work "after the strike." He named, inter alia, Louisiana Cement. Wise admittedly had high blood pressure. He denied that this physical condition, during the backpay period, prevented him from working. Counsel for Respondent asserts (Br. 52): "Wise has been charged with fraud by the Louisiana Dept. of Em- ployment Security." Apparently, counsel is again relying on rejected Respondent Exhibit 20. (Also see Tr. 2067- 2079). The record does not support these and related as- sertions. Respondent next argues (Br. 53) that "Louisiana Cement rejected [Wise] for high blood pressure" and "during the remainder of August through September, Wise's blood pressure was still high." Wise testified, in pertinent part as follows: Q. When the picket signs went down on July 22nd, where did you look for work first? A. I went to New Orleans. Let me see, Louisiana Cement place over there. Q. You went to New Orleans East? A. Yes. Q. How long after the strike was that? A. I can't remember good then. Maybe about three weeks or something like that. I can't remem- ber some. Q. Did you go by yourself? A. I went my myself. Q. Did you drive your own car? A. Yes. Q. Did you fill out an application? A. Yes. Q. What happened? A. I passed it. The work, the man said I could work, you know. I went to the doctor, you know, and he jumped down my blood pressure was high that's all. That's why I didn't get it. 53 I note that Carlin generally testified "I think we'd start em off at $3 an hour . " at Metro 54 The General Counsel argues (Br 23) that R. Exh 25 shows that Square earned $824 rather than the $995 previously admitted and , there- fore, the specification should be amended As noted supra , the General Counsel has questioned the reliability of R Exh 25 and , consequently, at this posture in this proceeding , I find the admission in the specification to be more reliable than the cited portion of R Exh 25 628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. The Louisiana Cement doctor said your blood pressure was too high? A. Yes, I passed, yes. Q. Was that to drive a truck for Louisiana Cement? A. If that's the work they-anything they got open. I was looking for a truck driver, but anything they got open, you know. Q. You were applying for any job they had? A. Yes, any job they had. Q. Did you look some place after Louisiana Cement? A. Yes. I asked Marvin Olivo. Marvin-I mean Marvin. That's where I did a days' work for him. Q. Mr. Wise, did your blood pressure ever go down after your test with Louisiana Cement? A. Well, I ain't never-I went to the doctor to check it one time. It was still up. The doctor gone to check it one time. It was still up. Q. Mr. Wise, during the period from July 22nd, '77 through September 20th, '77, was there anything in terms of your physical condition that prevented you from working? A. No. Respondent's claim that "such disability took (Wise) out of the job market" is not demonstrated on this record, and is therefore rejected. Further, Respondent asserts (Br. 53) that "Wise had every reason to want to work for cash only since his wages were being garnished during the third quarter of 1977." Wise admitted the garnishment. I credit Wise. I find that he sought interim work with due diligence during the pertinent period. Respondent has shown no additional interim earnings, willful loss, or that he was "out of the job market," as asserted. Roosevelt Wise Roosevelt Wise's backpay period runs from July 23 to October 7, 1977. His gross backpay was $1953 and inter- im earnings are admitted in the amount of $1066, or a net backpay of $887.511 Listed as interim employers are Boyette Junior High School and Louisiana Cement. (See G.C. Exh. 1(d) and appendix.) (See also Tr. 1633.) Respondent claims (Br. 49) that "none of these amounts were reported to the State of Louisiana." Wise testified (Tr. 1259-1265), in part as follows: Q. Mr. Wise, did you apply for unemployment? A. Yes. Q. Did you obtain unemployment? A. No. Q. Was that application right after the strike, within a week after the strike? A. About a week. Q. When did you go to work for Boyette? 66 The General Counsel waived a claim for $10 in transportation ex- penses (Tr 56) A. About two weeks after the strike, maybe two, two and a half. Q. Was that the first place you looked for work? A. Yes. Q. And, what were you hired as? A. Janitor. Q. And, what were you paid for hourly rate? A. Oh, I can't remember, but I was in salary every two weeks. Q. All right, and you worked 40 hours a week? A. Yes. Q. How long did you hold that job? A. I would say close to two months, maybe longer. Q. Would that put down for the latter part of October of 1977? A. I think it was a little longer. Q. Now, you went to work for Louisiana Cement after Boyette Junior High School, didn't you? A. That's right. Q. Did you go to work immediately after? Did you go to work for Louisiana Cement immediately after? I mean, a day or two after leaving Boyette Junior High? A. That's correct. Q. Did you quit Boyette Junior High? A. Yeah. Q. Would it be for a better job or- A. Yeah. Q. Did you quit like on a Friday and start on a Monday at Louisiana Cement? A. Well, something like that, yeah. Q. There's also a notation here that you returned, you returned to Standard Materials October 7, 1977, is that correct? A. I can't really pinpoint the date. I can't say you're correct on the date, but I think it was in Oc- tober. I credit Wise. Respondent has not shown any willful loss or additional interim earnings.be ae As noted above, the General Counsel has moved to strike portions of Respondent's brief (see, e.g. pp 1-14 and 65-66, rejected R Exh 9, and Tr 1584-1592). I have not relied on rejected exhibits, unsupported colloquy, or similar unsupported assertions. It is therefore unnecessary to formally strike the cited portions of Respondent's brief Respondent, in its brief, argues generally that economic conditions were "booming" in Slidell during the pertinent period and various claim- ants failed to submit applications to various cited employers. As stated above, these general claims of a "booming" economy must be assessed in the context of the limited skills and education of the 24 claimants. Fur- ther, general testimony from representatives of the various employers that they could not find or recall specific applications from claimants has been shown here to be by-and-large of little value because of loss of ap- plications and records and lack of identification of the specific representa- tive of an employer turning away an applicant See, e g ., the testimony of H Pratt Farnsworth Jr He explained that business was "very good"; that none of the claimants worked for his Company, and that it was "pos- sible" a claimant worked for a subcontractor of his Company. Also see the related testimony of Caroline Rodriguez of Air Products; Sheilla de Villeneuve of Bernard Lumber; Celistino Villar of Villar Disposal, Malcom Gomez, Jackie Pendry of Southern Coating; Wallace of Robin- tech, Inc.; Warren Allen of Southern Shipbuilding, Pernll Park of Continued STANDARD MATERIALS ORDER Respondent Standard Materials, Inc., its officers, agents, successors, and assigns, are hereby ordered57 to pay to each of the persons listed below the amounts set forth opposite their respective names , together with in- terest, computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See, generally, Isis Plumbing Co., 138 NLRB 716 (1962): B. B. Allen $4231 Ellis L. Beard 3426 Folgers Coffee, Ronald Wascom of the School Board, Everett Wilson of Magnolia Construction ; Ronald Heanngton of Southern Pipe, and Ray- mond Tapp of Bulk Transport. And, although James Gipson of Industrial Concrete, like his associate Rocky Lumpkin, generally claimed, "we were hiring most anybody we could find," he also acknowledged that "of course we didn't have openings all of the time" and was unclear about who specifically filed applications during the pertinent period . Also see Lumpkin's testimony in this respect. 64 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 629 Theodore Charles 11 Charles Cousin, Jr. 3512 Levy Crawford 1869 Irvin J. Edwards 3318 Clyde Farve 5028 Harold Hart 6035 Tally Hinton 1521 Claude Ray Jenkins 3600 James Jenkins 2401 John Leonard -0- Robert Orange 5690 Alt Owens 8077 Oliver Lee Owens 2071 Titus Owens 4381 Alexander Paige 6817 Albert Panks Sr. 437 Albert Panks Jr. -0- Edgar Peters 3664 Ervin Pope 11,823 James W. Square 276 Edward Wise 1496 Roosevelt Wise 887