North Slope Mechanical Amd B.T. Mancini Co., Inc., A Joint Venture

NORTH SLOPE MECHANICAL North Slope Mechanical and B . T. Mancini Co., Inc., a Joint Venture and Thomas P. Haynes. Case 28-CA-7294 30 September 1987 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 30 June 1986 Administrative Law Judge Richard J. Boyce issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief, cross-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 supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, findings, and conclusions,' and to adopt the recom- mended Order.2 i Members Babson and Stephens find no merit in the General Coun- sel's exception to the judge's refusal to award backpay for an approxi- mately 6-week period commencing 2 February 1984, when the B T Mancini Co (Mancini) performed some minor construction jobs in Alaska that employed sheet metal workers The General Counsel does not contend that Mancini was a successor to the Joint Venture in which it had been a partner Rather, she contends that discriminatee Haynes is entitled to backpay for this period on a theory of partnership liability or alternatively on an alter ego basis They agree with the judge's rejection of the General Counsel's alter ego theory and, as explained below, they reject the exception that is based on a partnership liability theory They find the exception is without merit 'because the General Counsel has confused the question whether an entity is liable for earnings proved to have been lost as a result of discrimination with the question whether earnings have, in fact, been lost as a result of discrimination The Joint Venture's discriminatory discharge of Haynes occurred on 10 January 1983 It is undisputed that the Joint Venture had completed all its jobs by 1 November 1983 and had not employed any sheet metal workers on those projects after 30 August, when it laid off the last four such employ- ees Thus, even if Haynes had never been discriminatorily discharged in January, he would have been laid off by August with the other employ- ees In the absence of a showing that the Joint Venture's sheet metal workers had been promised subsequent employment with the Joint Ven- ture's partners, operating independently, or that Mancini engaged in a discriminatory refusal to hire Haynes when it commenced its own projects the following February, there is no basis for finding that Haynes was entitled to employment on those Mancini projects That Mancini happened to hire two sheet metal workers-Burnett and Herman-who had worked for the Joint Venture, provides nothing more than a basis for speculation that Haynes might have been hired had he not been discn- minatonly discharged by the Joint Venture This is not a sufficient basis for finding that Haynes' lack of earnings during this period was the prod- uct of the Joint Venture's original discrimination against him, which is what we are seeking to remedy here Member Johansen adopts the judge's decision 2 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 US C § 6621 Interest on amounts accrued prior to 1 January 1987 Ithe 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 633 The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, North Slope Mechanical and B. T. Mancini Co., Inc., a Joint Venture, Prudhoe Bay, Alaska, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Jane Goldman, Esq., for the General Counsel. Marcus M. Gunkel and Phillip M. Sims, Esqs. (Sims & Thomas), of San Jose, California, for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. By de- cision dated 4 April 1984,1 reported at 269 NLRB 869, the National Labor Relations Board (the Board) found that North Slope Mechanical and B. T. Mancini Co., Inc., a Joint Venture (Joint Venture) violated Section 8(a)(4) and (1) of the National Labor Relations Act (the Act) on 10 January 1983 when it discharged Thomas P. Haynes, a journeyman sheet metal worker employed by it on Alaska's North Slope. The Board accordingly or- dered the Joint Venture, among other things, to make Haynes whole, with appropriate interest, for monetary losses resulting from the discharge. The Board's decision was enforced by the Court of Appeals for the Ninth Cir- cuit in an unreported memorandum decision filed on 23 April 1985. On 26 September 1985 the Regional Director for Region 28 issued an amended backpay specification al- leging the amounts due under the Board's order.2 A hearing on the specification was held before me in Phoe- nix, Arizona, on 5 and 6 November 1985. 1. THE PLEADINGS A. Backpay Specification The backpay specification alleges that Haynes is enti- tled to back wages of $65,350.04, plus interest, and that these fringe benefit contributions are owing on his behalf: health and welfare, $2,235.38; local pension fund, $2,930.10; national pension fund, $1,953.40 In support of these figures, the specification alleges (a) That the backpay period runs from 10 January 1983, when the unlawful discharge occurred, to 30 August 1983, when the Joint Venture last employed sheet metal workers; and from 2 February 1984, when B. T. Mancini Co., Inc., (Mancini Co. or Mancini) one of the participants in the previously dissolved Joint Ven- ture, began using sheet metal workers on the North Slope, to 20 March 1984, when that use ceased. i This manner of setting forth dates comports with current Agency practice 2 An original backpay specification issued on 15 July 1985 It was su- perseded by that of 26 September. 286 NLRB No. 54 634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) That an "appropriate measure" of the gross back wages due Haynes is the wages earned by one Jerry A. Burnett, "the only journeyman sheet metal worker . . . regularly and substantially employed by" the Joint Ven- ture and then by the Mancini Co. during the backpay period, who realized wages from them totaling $77,561.04 during that period-$18,110.28, $26,579.91, and $18,853.66 from the Joint Venture in the first three quar- ters of 1983, respectively, and $14,017.19 from the Man- cini Co. in the first quarter of 1984. (c) That Haynes earned $10,911 in the third quarter of 1983 and $2112 in the first quarter of 1984, to be deduct- ed from his gross entitlements for those quarters; and that he incurred job-search expenses of $812 in the third quarter of 1983, to be deducted from his interim earnings for that quarter. (d) That an appropriate measure of the fringe benefit contributions owing on Haynes' behalf is the hours worked by Burnett during the backpay period, less hours worked by Haynes for contributing employers during that period, times the hourly contribution rates pre- scribed by a certain collective-bargaining agreement the Joint Venture and then the Mancini Co. had with Local Union 72, Sheet Metal Workers International Association (the Union); that the hours worked by Burnett for the Joint Venture and the Mancini Co., in excess of those worked by Haynes for contributing employers, were 560, 808, and 184.9, respectively, in the first three quarters of 1983, and 400.5 in the first quarter of 1984; that the labor agreement prescribed hourly health-and-welfare contri- butions of $1.13 in 1983 and $1.20 in 1984, and hourly pension contributions of $1.50 to a local fund and $1 to a national fund; and that contributions to be paid for the respective quarters thus are: health and welfare, $632.80, $913.04, $208.94, and $480.60; local pension fund, $840, $1212, $277.35, and $600.75; national pension fund, $560, $808, $184.90, and $400.50. B. The Answer3 (c) That, Burnett's lack of comparability aside, the specification overstates his earnings for the first two quarters of 1983 and the first quarter of 1984, which in- stead were $17,412.74, $25,421.14, and $11,475. 75, re- spectively. (d) That the specification likewise misstates Burnett's hours for purposes of calculating fringe benefit contribu- tions owing on Haynes' behalf. The Joint Venture entered into a stipulation during the hearing, however, that the fringe benefit figures and cal- culations in the specification are accurate , assuming but not conceding the specification to be correct on the issues of backpay period and Burnett's comparability. (e) That, in any event, Haynes is entitled to nothing because he declined job opportunities on 14 January and 13 July 1983, because he left Alaska for less promising job markets in January 1983, because he left his member- ship "book" with the Union in Fairbanks while ostensi- bly seeking referral from union hiring halls in Arizona and Minnesota, etc. U. BURDENS OF PROOF The burdens of proof in backpay proceedings are as follows: [W]hile the general burden of proof is upon the General Counsel to establish the damage which has resulted from Respondent's established discriminato- ry discharge, i.e., the gross backpay over the back- pay period, the burden of proof is upon the Re- spondent as to diminution of damages, whether from the willful loss of earnings by the failure to look for or keep a substantially equivalent job or from the unavailability of a job at Respondent's plant for some reason unconnected with the dis- crimination.5 III. THE GENERAL COUNSEL'S BURDEN: HAYNES' GROSS BACKPAY ENTITLEMENT The Joint Venture asserts in its answer (a) That the backpay period should not extend beyond 30 August 1983, the last date the Joint Venture used sheet metal workers before its dissolution; that inclusion of the postdissolution time when the Mancini Co. em- ployed sheet metal workers is improper. (b) That Burnett is not a comparable employee be- cause he was a shop steward while with the Joint Ven- ture, and thus entitled to favored treatment in case of layoff; and that Richard Herman, who realized wages from the Joint Venture of $3,646.92, $25,723.39, and $21,129.09, respectively, in the first three quarters of 1983, and from the Mancini Co. of $13,851.17 in the first quarter of 1984, is "a more representative employee" vis- a-vis Haynes.4 3 The Joint Venture's original answer to the amended backpay specifi- cation, dated 11 October 1985, was superseded by an amended answer filed early in the hearing and identified as R Exh. 2 The Joint Venture states in its brief that it "had no person it consid- ered comparable to Haynes", that it chose Herman "more by default . simply for lack of a better person with which to compare Haynes " A. The Backpay Period Positions summarized. As mentioned, the specification alleges that the backpay period runs from Haynes' 10 January 1983 discharge date to 30 August 1983, when the Joint Venture last employed sheet metal workers; and from 2 February 1984, when the Mancini Co. began using sheet metal workers on the North Slope, to 20 March 1984, when that use ceased. The Joint Venture contends, on the other hand, that the backpay period should not extend beyond 30 August 1983; that inclusion of the postdissolution time when the Mancini Co. employed sheet metal workers is improper.6 5 Mastro Plastics Corp, 136 NLRB 1342, 1346 (1962). 6 The Joint Venture also contends that, by declining a job opportunity on 14 January 1983, Haynes brought the backpay period to an end. Even if this were deemed a willful loss of earnings, however, it would not end the backpay period-"if a claimant does willfully incur losses by either unjustifiably quitting or refusing substantially equivalent employment, he is not deprived of his entire claim, but only so much of it as he would have earned had he retained or obtained the interim job " Mastro Plastics Corp , supra at 1350 fn 5 NORTH SLOPE MECHANICAL 635 Evidence. The Joint Venture derived from a partner- ship agreement entered into on 15 October 1982 between the Mancini Co. and North Slope Mechanical. The agreement provided, among other things, that the "prin- cipal office" of the Joint Venture be at Mancini's "busi- ness premises"; that Mancini maintain a "partnership bank account"; that a named official of Mancini be the treasurer of the Joint Venture and maintain a "separate set of full and current books of account"; that Mancini have a 51-percent interest, as against North Slope Me- chanical's 49, in rights, obligations, moneys, and liabil- ities accruing to the Joint Venture; and that each party designate a "principal representative" to serve on a "management committee" governing, the Joint Venture, with the Mancini representative having the decisive vote should the two representatives disagree. The agreement further provided that Mancini "hire and pay all craft labor, labor benefits, staff labor cost, and other expenses" of the Joint Venture, being reim- bursed for such costs "as money is received by the part- nership account"; that "all labor shall be employees of" Mancini unless otherwise agreed by the management committee; that Mancini "hire craft labor as needed from union halls"; that the Joint Venture have no, employees, with "all personnel rendering services to" the Joint Ven- ture "remain[ing] the employees of the respective par- ties" and "new personnel employed specifically for work on the projects . . . becom[ing] employees of one of the parties at the time of employment"; and that North Slope Mechanical furnish, cost-free to the Joint Venture, needed offices, employee living accommodations, and shop space. The agreement also provided for an initial term through 31 January 1983, and for automatic 6-month re- newals until one party should notify the other of an "intent to terminate at least 30 days prior to the next sixth [sic] month anniversary date." By letter dated 4 August 1983, the president of the Mancini Co., Brooks Mancini, informed North Slope Mechanical that, "pursuant to" the termination clause in the partnership agreement, his company "intend[ed] to terminate its participation in the Partnership." The letter added: Though the Partnership Agreement continues until the end of our calendar year, it is our intent that the Partnership will not accept any more jobs other than those currently on the books. When those jobs are complete, in late August or early September 1983, we will lay off all employees, divide all the physical assets owned by the Partnership, and when all receivables are collected, suppliers paid and all debts resolved, we will divide the remainder per the Partnership Agreement. The Joint Venture was engaged in four projects at this time. Three were completed shortly; the last, around 1 November 1983. Its complement of sheet metal workers, as of their last use on 30 August, was four. It had had as many as 20 on the payroll at a given time On comple- tion of the final project, the parties divided jointly owned assets, mainly small tools; reclaimed equipment leased by own or the other to the Joint Venture; and laid off all personnel with the possible exception of Flo Lan- caster, the office manager. The Mancini Co. began to operate on the North Slope as an entity apart from the Joint Venture-conducting a market survey and perhaps bidding jobs-before the Joint Venture's last project was done. At the outset of that undertaking-in October, according to Brooks Man- cini-it procured Lancaster to be office manager, Barry Perkins to be division manager, and Danny Strickland to be estimator. Lancaster, as noted, had been and probably still was office manager for the Joint Venture.7 Perkins had worked for the Joint Venture for 2 weeks or so in July 1983; and Strickland, described by Brooks Mancini as "an all around man" for the Mancini Co., had been a foreman and then a general foreman for the Joint Ven- ture until late August 1983. The Mancini Co. performed about seven jobs, all minor, before abandoning its North Slope activities around the end of March 1984. They were of the same general nature as those performed by the Joint Venture, although smaller. It employed three sheet metal workers from early February to late March, two of whom-Jerry Burnett and Richard Herman-had worked in kindred capacities for the Joint Venture. The North Slope offices of both the Joint Venture and the Mancini Co. were at Dead Horse, Prudhoe Bay, al- though apparently in different quarters. The Mancini Co. did not inherit the books, stationery, office equipment, or telephone number of the Joint Venture. Payroll for both was handled by Mancini headquarters in California. Checks issued for the Joint Venture had borne a "JV" designation, however, to distinguish them from other checks issued by Mancini. Brooks Mancini testified, consistently with the partner- ship agreement, that the Mancini Co. was "the labor source" for the Joint Venture, only to aver later that North Slope Mechanical "provided the bodies." He elaborated, in support of the latter assertion: "They knew who was good and who wasn't. Coming in as an outsid- er, I just didn't have that information." Conclusions. The General Counsel urges, in support of her contention that the backpay period include the time the Mancini Co. used sheet metal workers in February and March 1984, that Mancini was "a continuation, with- out any discernible break, of [Joint Venture]." She elabo- rates, without case citation: It is analogous to a business in which there are three or four departments and due to business con- ditions or the death of a partner, for example, one or two of the departments are discontinued, while the others continue to operate. If a discriminatee 7 Lancaster testified that she remained with the Joint Venture into De- cember, paying bills and closing out the books; and that she then went home to Montana, returning to the North Slope at Mancini 's behest in January Brooks Mancini testified , on the other hand, that "no more in- voices, labor bills, or anything [were paid] with regard to the Joint Ven- •ture" after completion of its last project, indeed, that Lancaster last worked for the Joint Venture in mid-September, and that , after about a month in Montana , she returned in the North Slope in mid-October to be Mancini's office manager 636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had worked in one of the continuing departments, his backpay would certainly continue notwithstand- ing the closure of other departments. The issue, more precisely, is whether Mancini in Alaska was an alter ego of the Joint Venture. If so, it inherited the Joint Venture's obligation to reinstate Haynes, and the backpay period ran accordingly. Las Villas Produce, 279 NLRB 883 (1986). The Board, dealing with the alter ego question, stated in Advance Electric, 268 NLRB 1001, 1002 (1984) Although each case turns on its own facts, we gen- erally have found alter ego status where the two en- terprises have "substantially identical" management, business purpose, operation, equipment, customers, and supervision, as well as ownership. . . . Other factors which must be considered . . . include "whether the purpose behind the creation of the al- leged alter ego was legitimate or whether, instead, its purpose was to evade responsibilities under the Act."8 The present record contains no evidence that Man- cini's emergence in Alaska, more or less coincident with the dissolution of the Joint Venture, was designed to evade responsibilities under the Act. Although neither that factor, nor any of the others alone, is "the sine qua no of alter ego status,"9 recent Board decisions indicate that its absence requires the presence of the others in large degree. See, for example, P. J. Hamil Transfer Co., 277 NLRB 462 (1985); Eagle Express Co., 273 NLRB 501 (1984); Chippewa Motor Freight, 261 NLRB 455 (1982). On the cases just cited, the General Counsel has failed to make the requisite showing. Although Mancini and the Joint Venture had a common business purpose, and the partnership agreement gave Mancini distinct domi- nance in the management of the Joint Venture, and Man- cini relied largely on personnel formerly with the Joint Venture, and Mancini doubtless sought to serve the Joint Venture's erstwhile customers, doing much the same kind of work, etc., important dissimilarities obtained. With North Slope Mechanical out of the picture, own- ership was not "substantially identical." Nor was man- agement substantially identical, for, despite Mancini's ex- pansive authority under the partnership agreement, it no longer had to deal with a representative of North Slope Mechanical to run the enterprise. Operational differences existed as well, Mancini obviously being much smaller in scope and revenues, and officing at a different location with a new telephone number. Equipment did not carry over, either, the parties having divided the tools and re- claimed their separately owned equipment on dissolution of the Joint Venture. Mancini acquired new office equip- ment and supplies, as well. As for customers and supervi- sion, the record suggests some carryover, but it is under- developed. 8 The concluding inside quotation is from Fugazy Continental Corp, 265 NLRB 1301, 1302 (1982) 8 Fugazy Continental Corp, supra at 1301 In. 8 See also Woodline Motor Freight, 278 NLRB 1141 (1986) The inclusion in the backpay period of time after 30 August 1983 is thus in error. That portion of Haynes' gross entitlement attributed to the first quarter of 1984, $14,017.19, therefore is stricken from the specification, reducing the alleged gross figure to $63,543.85. The fringe benefit amounts attributed to that quarter-$480.60 for health and welfare, $600.75 to the local pension fund, and $400.50 to the national pension fund-likewise are struck, leaving alleged sums of $1,754.78, $2,329. 35, and $1,552.90, respectively. B. The Comparable-Employee Issue Positions summarized. As noted, the specification al- leges that the wages earned by Jerry Burnett during the backpay period are an appropriate measure of the gross back wages due Haynes; and that an appropriate measure of the fringe benefit contributions owing on Haynes' behalf stems from the hours worked by Burnett. The Joint Venture disputes Burnett's comparability, as- serting in its answer that Richard Herman is "a more representative employee" vis-a-vis Haynes and arguing in its brief that it "had no person it considered comparable to Haynes." Evidence. Haynes has been a journeyman sheet metal worker since 1972. He began working for the Joint Ven- ture about 4 October 1982, having been dispatched by the Union. George Wilson, Mancini's general manager in Alaska and its representative on the management com- mittee of the Joint Venture, testified in the earlier hear- ing that Haynes was "a good hand for us" and did "a fine job." Similarly, Gary Fenton, the president of North Slope Mechanical and Wilson's opposite number on the management committee, testified in that hearing that Haynes "worked very good," prompting his being made foreman. Haynes twice served as foreman for the Joint Venture, receiving $1.75 per hour above the base wage at that time. His pay stubs indicate that he acted in that capacity 7 of the 10 weeks he was on the payroll. Burnett, also a journeyman sheet metal worker, began working for the Joint Venture some 9 days after Haynes-about 13 October 1982. He worked steadily for the Joint Venture through the fall and early winter, as did Haynes, and was part of the Joint Venture's regular crew following the holiday break in early 1983, as Haynes would have been had he not been discriminated against. He was among the Joint Venture's last four sheet metal workers, being laid off on 30 August, and was the union-designated steward during the 1983 por- tion of his time with the Joint Venture. The Union's business agent, Don Frederick, testified that Burnett's being steward entitled him, under the ap- plicable project labor agreement,1° to be the last person laid off in the event of a reduction in force, provided he was qualified to do the work. Brooks Mancini testified to like effect, although admitting he had never read the agreement. The agreement is not in evidence, and the record contains no evidence that Burnett's payroll time in fact was prolonged because of such a provision. Nor 10 Identified as the Sohio Prudhoe Bay oil pool agreement, not to be confused with the Union 's standard area agreement. NORTH SLOPE MECHANICAL 637 does the record contain any convincing evidence that Burnett's skills exceeded those of Haynes.' i Herman, another journeyman sheet metal worker, first worked for the Joint Venture for 10 days starting about 17 January 1983. He was rehired on 11 April, remaining on the payroll until the 30 August layoff of the last four sheet metal workers. Despite the avowal in the Joint Venture's answer that Herman is more comparable to Haynes than in Burnett, Brooks Mancini would have it that Herman is not comparable either, testifying, "I know Mr. Herman was able to do detailing, and I don't believe Mr. Haynes is able to do that." The Region 28 official who prepared the backpay specification, Charlotte Malone, testified that she deemed Burnett comparable to Haynes for purposes of the speci- fication because both were hired by the Joint Venture at about the same time, were nonsupervisory journeymen, and were part of the regular crew, beyond which Bur- nett was the only sheet metal worker employed by the Joint Venture and then the Mancini Co. throughout the alleged backpay period. Conclusions. The Joint Venture, in its answer not con- testing the specification's use of the comparable-employ- ee concept, and in fact embracing that concept by pro- posing Herman as more representative than Burnett, is precluded from challenging that approach.12 The question, then, is whether the General Counsel has met her burden of proving that Burnett is sufficiently comparable to Haynes to provide a valid premise for cal- culation of Haynes' entitlement. Both were journeyman sheet metal workers, both joined the Joint Venture's pay- roll in early October 1982, remaining through the fall and early winter; both would have been part of the regu- lar crew on the postholiday resumption of activity in early 1983, but for the discrimination against Haynes; and the record provides no basis for inferring that Haynes would have been laid off before Burnette in the absence of discrimination. 13 Haynes, a foreman much of the time, did receive a higher wage than Burnett on those occasions, but the Joint Venture hardly can protest Burnett's comparability on that account." 11 Frederick testified that he has no particular insight into the skills of either Haynes or Burnett. 18 As it seems to be doing in its brief by stating that it considers no one comparable to Haynes Sec 102 54 of the NLRB Rules and Regula- tions (1982), states in relevant part "(b) [I]f the respondent disputes either the accuracy of the figures in the specification or the premises on which they are based, he shall specifically state the basis for his disagree- ment, setting forth in detail his position as to the applicable premises and furnishing the appropriate supporting figures (c) If the respondent files an answer to the specification but fails to deny any allegation of the specification in the manner required by subsection (b) of this section, and the failure so to deny is not adequately explained, such allegation shall be deemed to be admitted to be true . " i3 As noted, the record contains no evidence that Burnett enjoyed fa- vored layoff treatment by being a steward Nor does the record contain any convincing evidence, aside from imps oper considerations , that Bur- nett was a more desirable employee than Haynes Therefore, the "inno- cent discrimmatee . should receive the benefit of any doubt rather than . the wrongdoer responsible for the existence of any uncertain- ty" United Aircraft Corp, 204 NLRB 1068 (1973) 14 Alaska Chapter (AGC), 119 NLRB 663, 667 fn 8 (1957) Given these points of similarity, and since "the Board has wide discretion in selecting criteria for reconstruct- ing what would have happened . . . but for the discrimi- nation,"15 since the formula used need not achieve abso- lute certainty, but need only be "reasonable and fair" in the circumstances, 16 since "rarely if ever do two em- ployees have exactly the same ability, skill, dilligence [sic] and other qualities,"17 and since the Joint Venture has failed to demonstrate by any objective standard that Herman would be more suitable, the selection of Burnett is acceptable. C. The Gross Backpay and Expenses Figures in the Specification Positions summarized. Recapitulating, the specification alleges that Haynes' gross back wages entitlement, based on Burnett's earnings from the Joint Venture in the first three quarters of 1983, is $63,543.85. The specification also alleges that Haynes incurred job search expenses of $812 in the third quarter of 1983, to be deducted from his interim earnings for that quarter. The specification further alleges that fringe benefit contributions owing on Haynes' behalf, based on the hours worked by Burnett in those three quarters, are: health and welfare, $1,754.78; local pension fund, $2,329.35; and national pension fund, $1,552.90. The Joint Venture alleges in its answer that Burnett's earnings in the first two quarters of 1983 were less than alleged in the specification, and denies for want of knowledge that Haynes incurred the expenses alleged in the specification. Regarding fringe benefits, the Joint Venture stipulated that the figures and calculations in the specification are correct, disputing only Burnett's compa- rability and the scope of the backpay period. Evidence. General Counsel's Exhibit 6 is a seven page "Summary of Payroll Records" concerning Burnett. The aforementioned Charlotte Malone testified that it was prepared by her, extracting from "the original payroll records" of the Joint Venture. It was received in evi- dence without objection. Page 1 of Exhibit 6 summarizes the hours worked and the wages earned by Burnett in each month and each quarter during the backpay period. Pages 3-7, more spe- cifically, set forth the hours worked and the wages earned by Burnett, day by day, during the same period. Page 2 deals with fringe benefit figures and calculations, over which, as noted, dispute is nonexistent The figures appearing on pages 1 and 3-7 of Exhibit 6 at once are internally consistent and correspond with those in the specification concerning Burnett's 1983 wages from the Joint Venture. The Joint Venture, more- over, offered no evidence to support its assertion that Burnett's earnings were other than as alleged in the spec- ification, nor does it raise the issue in its brief. With regard to the expenses of $812 allegedly incurred by Haynes in the third quarter of 1983, he testified with- is Golden State Bottling Co v. NLRB, 467 F 2d 164, 166 (9th Cir 1972), NLRB v. Superior Roofing Co, 460 F 2d 1240, 1241 (9th Cir 1972) is Brown & Root, Inc, 132 NLRB 486, 490-491 (1961) See also Rikal West, Inc, 274 NLRB 1136 (1985) 17 International Trailer Co, 150 NLRB 1205, 1209 (1965) 638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD out refutation and credibly that he flew from Minneapo- lis to Fairbanks in search of work on 6 July 1983, paid a fare of $587; that he obtained work after about 5 days; that his food expenses for those 5 days were $150; and that his interim lodging expenses were $75.18 Conclusions. As mentioned, the Joint Venture agrees with the fringe benefit figures and calculations contained in the specification. Additionally, General Counsel's Ex- hibit 6 is uncontroverted and convincing that Burnett's 1983 earnings, and thus Haynes' gross back wages enti- tlement, were as stated in the specification; and Haynes, testifying about his job search expenses in the third quar- ter of 1983, persuasively validated the specification in that respect. The General Counsel thus has met her burden of prov- ing those allegations of the specification. Accordingly, Haynes' gross back wages entitlement, exclusive of inter- est, is $63,543.85; the fringe benefit contributions owing on his behalf are $1,754.78 for health and welfare, $2,329.35 to the local pension fund, and $1,552.90 to the national pension fund; and he is entitled to an $812 ex- penses deduction from interim earnings for the third quarter of 1983.19 IV. THE JOINT VENTURE'S BURDEN: INTERIM EARNINGS, WILLFUL LOSS OF EARNINGS Positions summarized. The Joint Venture contends that Haynes is entitled to nothing because he declined job op- portunities on 14 January and 13 July 1983, because he left Alaska for less promising job markets in January 1983, because he left his membership book with the Union in Fairbanks while ostensibly seeking referral from union hiring halls in Arizona and Minnesota. The specification concedes that Haynes' entitlement should be reduced by $10,099, that being his interim earnings, less job search expenses, for the third quarter of 1983. Evidence. On 10 January 1983, following his discharge, Haynes had a telephone conversation in Fairbanks, with the Union's business manager, Don Frederick, who said he would seek Haynes' reinstatement. The next day, 11 January, Haynes flew to Fairbanks from the North Slope; and on 12 January, he discussed his situation with Frederick at the union hall. Frederick said he would call George Wilson, Mancini's representative on the manage- ment committee of the Joint Venture, in hopes of resolv- ing the matter, and instructed Haynes to "hold tight" in the interim. Also on 12 January, Haynes signed the Union's out-of-work list. During work-call at the union hall the morning of Jan- uary 14, a Friday, Haynes' name was called for a job with a firm known as Holiday Parks. He responded that 18 Explaining the low lodging expenses , Haynes testified that he stayed with friends in quarters they were renting 19 "Expenses, such as for transportation , room, and board incurred in connection with working elsewhere than for Respondent, which would not have been incurred but for the discrimination against him and the consequent necessity of his securing interim employment, are properly deducted from interim earnings." Aircraft & Helicopter Leasing, 227 NLRB 644, 649 (1976). Not deductible, however, are job search expenses incurred in quarters devoid of interim earnings Mastro Plastics Corp, supra, 136 NLRB 1348 fn. 5, NLRB Casehandling Manual (Part 3) Com- pliance Proceedings, Sec 10610 (Aug 1977) he was "not available," his professed understanding being that he could not accept referral until he had re- ceived a termination slip and thus was officially separat- ed from his previous employer. The Joint Venture as yet had not given him such a slip. Frederick testified, on the other hand, that, while the Union must "ascertain if a person is legitimately laid off" before referring that person to a new job, and that this normally presupposes a termination slip, he had obtained verification of Haynes' termination from Wilson, obviating that need. Otherwise, Frederick added, he "would not have al- lowed Mr. Haynes to sign the list." Haynes' Joint Venture job, being remote from habita- tion, included room and board. It also provided an abun- dance of compensable hours, many at a premium rate. Thus, Haynes worked at least 70 hours in each of his last 5 weekly pay periods with the Joint Venture, generally being paid at a "regular" rate for the first 40, at an "overtime" rate of time and one-half for the next 20, and at a "doubletime" rate for the remainder. Burnett's expe- rience with the Joint Venture, during the backpay period, was similar. By contrast, the Holiday Parks position proffered on 14 January was "in-town," meaning that room and board were not provided, and entailed a 40-hour workweek, meaning no overtime pay.20 But, being a second-shift sit- uation, it did pay a 15-percent shift differential. For all its shortcomings, Haynes testified that he would have taken this job but for the "strict requirement" that he have a termination slip from his former employer. He later cast doubt on the economic feasibility of his doing so, however, not to mention the trustworthiness of that assertion, testifying Well, a man that's travelling 4,000 miles to work on a 40-hour job, and has to pay his own rent, food, and lodging, and has a family to support, it's virtu- ally impossible for him to support his family and himself in two different locations. Union records disclose that four registrants refused re- ferral to Holiday Parks on 4 January and again on 10 January, and that five besides Haynes refused on 14 Jan- uary. The opening of 14 January finally was filled by Frederick's calling one Jerry Trainor in Oregon after that day's work-call. Trainor accepted by telephone, then flew to Fairbanks over the weekend. The record does not reliably disclose the duration of that job.21 20 Testifying for the Joint Venture, Marty Fitchette, formerly the Union 's office manager, averred that she could not "recall any instance" when Holiday Parks "did not call for in-town, five 8-hour days" "Gen- erally speaking," she added, "five 8's [i.e, a 40-hour week] was an in- town job " Even so, she continued, Holiday Parks commonly "put men out in the field, out-of-town kind of work," such as "six 9's in Barrow, sometimes seven 10's " People also were dispatched to work "in the shop" for Holiday Parks, she went on, and they always worked a 40-hour week, in town The record leaves to speculation whether the job in ques- tion carried out-of-town possibilities 21 Fitchette testified that she telephoned the Union's office while the present hearing was in progress , being told that the job lasted "into March " This was hearsay of a most unreliable sort, and is disregarded NORTH SLOPE MECHANICAL 639 Haynes received his termination slip from Frederick on 14 January following the work-call. The Joint Ven- ture had sent it to the Union. Frederick told him at the time that the Joint Venture would not reinstate him; and suggested that he go home to Phoenix and file an unfair labor practice charge against it. Haynes stayed in Fairbanks through Tuesday, 18 Janu- ary, seeking work through the Union. Nothing material- izing, he flew to Phoenix on 19 January and on 20 Janu- ary he filed the charge with the Phoenix Regional Office of the NLRB. Haynes remained in Phoenix until late March. While there, so he testified, he undertook a multifaceted but un- successful effort to find work:22 promptly registering at the state unemployment office, and visiting it every 2 weeks to check job listings and submit a form detailing his job search since the previous visit;23 appearing at the hiring hall of the local sheet metal workers union "every morning for roll call"; 24 examining the help-wanted ad- vertisements in the Phoenix paper "on a daily basis," and either telephoning or personally visiting those whose ads seemed promising; talking to friends in the trade who might have leads; and recurrently calling on firms in the area that perhaps could use his skills-welding compa- nies, body shops, equipment repair firms, air-conditioning companies, sheet metal business, etc.25 He called ac- quaintances and local unions in other parts of the coun- try, including the Union in Fairbanks, as well.26 In late March, failing to generate a single offer in the Phoenix area and having "dropped a couple months behind" in his house payment, Haynes sold his home; and, with his family, moved to the area of Princeton, Minnesota, where he owned a house and had lived before. Princeton is about 65 miles from Minneapohs-St. Paul, according to Haynes. The move to Minnesota took 6 days. En route, Haynes testified, he spoke by telephone with officials of sheet metal workers local unions in several States-New Mexico, Texas, Iowa, Illinois-looking for work. He was told in each instance that nothing was available. Once in Princeton, Haynes related, he followed much the same procedure he had observed in Arizona: register- ing with the state unemployment agency, and mailing it a form every 2 weeks describing his job search since the previous submission; telephoning the sheet metal workers local union in St. Paul "on the average of once or twice a month" to ask about work; perusing the help wanted advertisements in the Sunday Minneapolis paper, and either telephoning or personally visiting those whose ads were encouraging; repeatedly visiting or telephoning 22 Haynes' account of his job search, in Phoenix and later, was uncon- tradicted and convincingly rendered , and is credited 23 Continued qualification for unemployment benefits required biweek- ly submission of a job search declaration. 24 Haynes testified that some 300 to 400 registrants were on the out-of- work list of the Phoenix local at the time 2e Haynes testified that he checked with from three to five firms on an average day He identified-by name, locai.ion, or other specific feature- some 12 that he regularly called on 26 Haynes conceded that his calls to remote locals were of dubious value-"they just won't tell you [that jobs exist], because they would just as soon not have a flood of guys coming in and setting around on the bench " heating, air-conditioning, sheet metal, and kindred firms both in the Twin Cities and in Princeton and the nearby communities of Cambridge, Mora, and Zimmerman;27 and continuing to telephone friends and local unions else- where in the country. Haynes' job search in Minnesota was no more success- ful than it had been in Arizona. On 6 July 1983 having been told by a friend that pros- pects were favorable in Alaska, Haynes flew to Fair- banks. He signed the Union's out-of-work list on 7 July. On 13 July he declined referral to Holiday Parks. On 18 July, he was referred to a firm on the North Slope, Fluor, Alaska, working there until about 5 August. Then, after a brief period of unemployment, he accepted refer- ral to a job on the North Slope with H. P. Foley Co., where he remained beyond the 30 August end of the backpay period as reduced. Haynes earned $10,911 in the third quarter of 1983, according to the specification- presumably a reference to his earnings from these refer- rals. Explaining why he refused the Holiday Parks referral this time, Haynes testified I knew I was going out on another job for H. P. Foley.. . . I had talked to a guy that told me that work was coming in and I was positioned on the [out-of-work] list to where I would have got the job, and I knew that. Other than as conceded in the specification, the record contains no evidence that Haynes had- interim earnings during the backpay period. The Union's Frederick testified that a "considerable amount of work" was available through the Union from January through August 1983; and that, in his "opinion," everyone available for and not refusing work "did go to work." Similarly, Marty Fitchette, the Union's office manager at the time, testified that "a lot of employment" existed during that time; that the opportunities "grew as the time period became later, but we were lucky to have had good employment early in that time period, too." Haynes left his membership book or card with the Union in Fairbanks throughout the backpay period, testi- fying that he always "intended on going back to Alaska .. . as soon as some work started up there." Frederick testified that, although a member of an outside local can obtain referral without transferring his book, . . . most people do want to transfer in because of our hiring-hall list, the A, B, C-list system. They would not be able to elevate themselves any higher than the C list if they were not a member. So it was to their benefit to transfer in.28 27 Haynes estimated that he made 20 to 25 trips to the Twin Cities looking for work in April, May, and June He named five firms there that he contacted, adding that he called on others whose names escaped him His entitlement is not prejudiced by his inability to remember all Ameri- can Medical Insurance Co., 235 NLRB 1417, 1421 (1978), Pat Izzi Truck- ing Co, 162 NLRB 242, 245 (1966) 28 Frederick amplified "The A list is . all members who are con- tinuously covered by the agreement for a period of three years and are bona fide residents of the State of Alaska The B list, same criteria as Continued 640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Haynes testified that, when he was seeking work in Phoenix, "you definitely had to transfer your card in be- cause of the amount of men that was unemployed in the area." He also testified that, calling the local in St. Paul sometime after the backpay period, he was told his job chances would be good if he transferred his card in "So," he went on, "[he] transferred [his] card in and got a job." Conclusions. The Joint Venture has failed its burden of proving that Haynes willfully incurred lost earnings during the backpay period, or that his interim earnings exceeded the $10,911 admitted in the specification. More- over, the weight of evidence-specifically, Haynes' con- vincing account of his job search in Arizona, Minnesota, and Alaska-affirmatively demonstrates that he sought to mitigate the Joint Venture's liability in good faith and with reasonable diligence. The Joint Venture's chief contention, that Haynes willfully incurred loss by declining referral to Holiday Parks on 14 January, is rejected for each of these rea- sons:29 (a) Extracting from Waukegan-North Chicago Transit Co., 235 NLRB 802, 802 fn. 4 (1978): "The obligation to mitigate an employer's backpay liability requires only that the claimant accept substantially equivalent employ- ment." On the job from which he was discharged, Haynes re- ceived room and board and an abundance of overtime pay. The Holiday Parks job, on the other hand, assured none of that, and so was not "substantially equivalent."30 Indeed, had Haynes accepted the markedly less reward- ing Holiday Parks job so soon after his discharge, he ar- guably would have "willfully incurred a loss by accept- ing an `unsuitably' low-paying position."31 (b) The Joint Venture has failed to show in any proba- tive way how long Haynes' employment by Holiday Parks would have lasted. To paraphrase Alaska Chapter, AGC, supra at 671 fn. 14 Lacking proof that by refusing the dispatch to [Hol- iday Parks] [Haynes] thereby forfeited employment for an ascertainable period, we find that his refusal of the dispatch does not warrant a reduction or toll- ing of the backpay owed ....32 above, but have been continuously covered by the agreement for a period of one year Then, C list says all others " 29 The following discussion assumes for argument that the lack of a termination slip from the Joint Venture was not in fact an impediment to Haynes' referral so Cf ITO. Corp., 265 NLRB 1322, (1982), Waukegan-North Chicago Transit Co, supra, Southern Silk Mills, 116 NLRB 769, 772-773 (1956) The Joint Venture argues that the issue of equivalency is "moot" in light of Haynes' testimony that, had he had a termination slip from the Joint Venture, he would have taken the Holiday Parks job As earlier indicat- ed, this testimony was less than convincing, particularly given Haynes' later comments about the economic infeasibility of his having in-town work. But, whether or not his reasons for declining the job square with some legal justification, his duty to mitigate the Joint Venture's liability did not require him to do otherwise Cf I. TO Corp., supra, 265 NLRB at 1330 fn 30 91 Aircraft & Helicopter Leasing, supra, 227 NLRB at 647 fn 10, NLRB Y. Madison Courier, 472 F 2d 1307, 1321 (D C Cir 1972) 32 See also Great Plains Beef Co, 255 NLRB 1410, 1411 (1981), Champa Linen Service Co, 222 NLRB 940, 942 (1976); Lloyd's Ornamen- tal & Steel Fabricators, 211 NLRB 217, 218 (1974) (c) As stated in Keller Aluminum Chairs Southern, 171 NLRB 1252, 1257 (1968) [T]here is no requirement that an employee wrong- fully terminated must instantly seek new work; it is only required that the record as a whole show that he exercised due diligence to this end. Thus, in L T.O. Corp., supra, the Board concluded, look- ing at the backpay period "as a whole," that it need not "consider what [the claimant] did during the initial four weeks." And in Alaska Chapter, AGC, supra at 670, the Board determined that a single nonacceptance of a job referral ... is insufficient to rebut the evidence . . . which . .. establishes that [the claimant] was diligent in his search for employment . . . .33 (d) Haynes reasonably could decline referral, at least for a time, pending the outcome of Frederick's attempt to obtain his reinstatement by the Joint Venture. Grey- hound Taxi Co., 274 NLRB 459 (1985).34 He did not learn until after the work-call in question that Frederick had notsucceeded.3a The Joint Venture's contention that Haynes willfully incurred loss by leaving Alaska likewise is rejected. Quoting from Champa Linen Service Co., supra: "[A] claimant may seek a job beyond the vicinity of the labor market and still be entitled to backpay" so long as the reason for leaving . . . was to seek a job and would not have obtained but for the unlawful discrimination. 3 6 Haynes plainly would not have left but for the unlaw- ful discharge, and the ongoing diligence of his subse- quent job search leaves no doubt that his reason for doing so, apart from reuniting with his family, was to seek employment minimizing the damage to his econom- ic situation. He was persuasive that the Holiday Parks job, promising neither subsistence nor overtime, was of doubtful adequacy to that end; and Frederick's recom- mendation that he return to Phoenix on failure of the re- instatement effort indicates that nothing much better was in the offing. True, Frederick and Fitchette testified in 92 See also A. S. Abell Co, 257 NLRB 1012, 1015 (1981); Saginaw Ag- gregates, 198 NLRB 598, (1972) sa The passage alluded to in Greyhound Taxi Co appears in the under- lying decision of Administrative Law Judge William L. Schmidt. The Board, for other reasons and without addressing that passage, overruled Judge Schmidt in substantial part The Court of Appeals for the Ninth Circuit in turn reversed the Board, endorsing Judge Schmidt's decision in full Wakefield v. NLRB, 779 F 2d 1437 (9th Cir. 1986) The Board then issued a decision on remand in line with that of the Ninth Circuit Grey- hound Taxi Co, 279 NLRB 1080 (1986). 96 Respondent argues that Haynes should have requested the Holiday Parks job on learning that reinstatement was out Frederick apparently did not raise this as a possibility, however, instead advising Haynes to return to Phoenix This suggests that Frederick did not deem the job suit- able for Haynes, or that it by then had been claimed by Trainor, in Oregon 36 The inside quotation is from Mastro Plastics Corp, supra, 136 NLRB 1350 fn 5 See also Big Three Industrial Gas Co, 263 NLRB 1189, 1202 (1982), Mandarin, 238 NLRB 1575 (1978) NORTH SLOPE MECHANICAL 641 the abstract that jobs were available during the several months of Haynes' absence from Alaska, but these gener- alizations hardly satisfy the Joint Venture's burden of showing if, by whom, and when he would have been employed had he stayed.37 Also rejected is the Joint Venture's contention that Haynes willfully incurred loss by leaving his membership book with the Union in Fairbanks, rather than transfer- ring it to the local unions serving; the areas of his job search in Arizona and Minnesota. This contention relies principally on Haynes' testimony, referring to job pros- pects through the sheet metal workers hiring hall in Phoenix, that one "definitely had to transfer [his] card in because of the amount of men that was unemployed in the area." Even accepting Haynes' questionable implication that the Phoenix local based referral priority in part on local- union membership, which probably would violate the Act,38 the failure to transfer his book does not override the manifest sincerity and energy with which he pursued work generally. As the Board has said, "the sufficiency of a discriminatee's efforts to mitigate backpay will be determined with respect to the backpay period as a whole";39 a claimant is not held to "the highest standard of diligence" in the search for interim employment,40 and need not apply for "each and every possible job that might have existed" in the industry;41 and "labor condi- tions in the area" are among the "factors to be consid- ered" when assessing the reasonableness of a claimant's effort.4 2 Finally, the Joint Venture's contention that Haynes willfully incurred loss by declining referral to Holiday Parks following his return to Alaska on 13 July is reject- ed. The earlier discussion of nonequivalency concerning the Holiday Parks job refused in January applies no less to this instance. That Haynes' refusal was not frivolous is indicated, moreover, by his explanation that he under- stood referral to the North Slope to be imminent, and by his then being referred, to Fluor Alaska on the North Slope, on 18 July. 34 See fn 32, supra, and accompanying text The record does not sup- port the Joint Venture's assertion that Haynes knowingly moved into less job opportunity by leaving Alaska, thereby willfully incurring loss Knickerbocker Plastic Co, 132 NLRB 1209 (1961), cited by the Joint Ven- ture, therefore does not apply "Success," one might note, "is not the measure of the sufficiency of the discnmmatee's search for interim em- ployment " Aircraft & Helicopter Leasing, supra, 227 NLRB at 646 fn 19 38 ES , Plumbers Local 198 (Jacobs/Wiese), 268 NLRB 1312, 1319 (1984), Q. V L Construction, 260 NLRB 1096 (1982) 38 I T.O. Corp, supra, 265 NLRB at 1330 In 30 40 Aircraft & Helicopter Leasing, supra, 227 NLRB at 647 fn 19 41 Champa Linen Service Co, supra, 227 NLRB 942 42 Aircraft & Helicopter Leasing, supra; Mastro Plastics Corp, supra, 136 NLRB 1359 fn 5 Even so, the Joint Venture argues that Haynes willful- ly incurred loss because the North Slope jobs to which he was referred were of limited duration (short-call) and because H. P. Foley Co. paid only about $18 an hour, as opposed to $25-$30 paid by Holiday Parks. This, howev- er, overlooks the value of the room and board provided by the North Slope employers and the fact that Haynes' living expenses would be deductible from his interim earnings-and thus payable in a sense by the Joint Ven- ture-had he taken an in-town job. Additionally, it second-guesses Haynes' demonstrably genuine effort to obtain the best job extant, thereby flouting the previous- ly quoted adjuration that the "innocent discriminatee . . . should receive the benefit of any doubt rather than .. . the wrongdoer."43 Regarding Haynes' interim earnings, the Joint Venture offered no evidence that they exceeded the amount ad- mitted in the specification-$10,911. Therefore, the Joint Venture, having failed to prove willful loss of earnings, Haynes' interim earnings being $10,911, and his deductible job-search expenses being $812, his net interim earnings were $10,099. Subtracting that from his gross back-wages entitlement of $63,543.85, his net entitlement, exclusive of interest, is $53,444.85. In addition, fringe benefit contributions owing on his behalf are $1,754.78 for health and welfare, $2,329.35 to the local pension fund, and $1,552.90 to the national pension fund. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed44 ORDER North Slope Mechanical and B. T. Mancini Co., a Joint Venture, Prudhow Bay, Alaska, its officers, agents, successors, and assigns, shall pay to Thomas P. Haynes the sum of $53,444.85 plus interest thereon until paid as prescribed in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 615 (1977), making appropriate deductions for taxes; and shall make fringe benefit contributions on his behalf of $1,754.78 for health and welfare, $2,329.35 to the local pension fund, and $1,552.90 to the national pension fund.45 43 United Aircraft Corp , supra at fn 12 44 All outstanding motions inconsistent with this recommended Order are denied If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recom- mended 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 purposes 45 The parties to the Joint Venture, North Slope Mechanical, and B T Mancini Co , are jointly and severally responsible for satisfying this obligation Great Lakes Dredge & Dock Co, 240 NLRB 197 (1979).