Pacemaker Driver Service, Inc., Carrier Corp., Carrier Trucking Service

PACEMAKER DRIVER SERVICE Pacemaker Driver Service, Inc., Carrier Corpora- tion, Carrier Trucking Service and Robert C. Barnes, Teamsters Local Union No. 519, AFL- CIO.' Case 10-CA-16850 July 29, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On July 20, 1987, Administrative Law Judge J. Pargen Robertson issued the attached supplemental decision.2 The Respondent Carrier and the General Counsel filed exceptions and supporting briefs, and Carrier filed a reply brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,3 and conclusions as modified, and to adopt the Supplemental Order as modified. We agree with the judge, for the reasons set forth in his decision, that Carrier is not obligated to reopen its Knoxville domicile because it has shown that it would have closed the domicile for legiti- mate business reasons at a time subsequent to the unlawful closing on March 31, 1981 . Contrary to the judge, however, we find that Carrier is not ob- ligated to offer reinstatement to the four discrimin- atees and that Carrier's backpay liability to these individuals was tolled as of February 10, 1985.4 In finding that Carrier was under a continuing obligation to offer reinstatement to the four discri- minatees, the judge found that Carrier had failed to establish that it had a policy of terminating em- ployees when a truck domicile closed . Specifically, the judge found that Carrier failed to show that its current drivers had not been transferred from one of its closed domiciles. We find, contrary to the judge, that in the circumstances of this case Carrier has successfully met its burden of proof showing that the discriminatees would have been terminated for economic reasons. l On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 The original Decision and Order is reported at 269 NLRB 971 (1984). On July 30, 1985, the Sixth Circuit granted enforcement of the Board's Order, but limited backpay liability to Respondent Carrier Cor- poration , Carver Trucking Service. 768 F 2d 778. 3 The evidence shows that the Mansfield, Ohio domicile was closed on May 1, 1983, rather than May 1, 1985, as set forth in the judge's decision We correct this inadvertent error 4 Member Johansen would adopt the judge's rulings, findings, and con- clusions regarding the reinstatement , backpay, and benefits of employees Gates, Ridley, Bales, and Donaldson. 405 According to facts set forth - in the underlying Board decision, Carrier is operated as an in-house transportation service, leasing both the trucks and drivers. Although Carrier at one time utilized its own employee-drivers, in 1977 it contracted with Pacemaker Driver Service, Inc. (Pacemaker) to provide drivers for a number of its domiciles, in= cluding Knoxville. At the time of the events in question, the four Knoxville drivers were leased from Pacemaker. , Carrier's testimony at the backpay hearing, as set forth in the judge's decision, shows that Carrier did not normally relocate drivers when it eliminated or redomiciled equipment; rather, the driver-leasing company generally reassigned them to another ac- count.5 Carrier also presented evidence that since March 1981 it permanently has reduced the fleet of trucks necessary for its operations. We find that this testimony, when viewed in the context of Carrier's practice of using drivers who are leased from and employed by another compa- ny, demonstrates that Carrier has, in fact, no trans- fer policy.6 In the absence of evidence of a transfer policy and in light of Carrier's reduction in its fleet of trucks, we find that Carrier has established that it would have terminated the Knoxville drivers in conjunction with a legitimate closing of the Knox- ville domicile.? Accordingly, we find that Carrier is under no current obligation to offer reinstate- ment to the four discriminatees. Carrier further contends that the discriminatees' backpay should be tolled as of the date their jobs would have been eliminated by a legitimate closing of the Knoxville domicile. It also contends that the judge erred in failing to find that the Knoxville domicile would have closed by November 1982 at the latest, with the expiration of the lease of the last truck domiciled in Knoxville . We find no merit to Carrier's contention that the Knoxville domicile would have been closed as early as November We note, in this regard , that the testimony of Pacemaker's manager, Joe Weisenburger, set forth by the judge, substantially corroborates the testimony of Carrier's manager, Henninger. 6 Although Carrier and Pacemaker have been found to be joint em- ployers of the discnminatees , we do not find that this relationship, by itself, necessarily establishes that Carrier is responsible for transferring leased Pacemaker drivers once Carrier has made a decision-in which Pacemaker played no part-to eliminate a certain domicile. Rather, we find that the evidence demonstrates that Carrier has no transfer policy and that it was Pacemaker's responsibility and practice to reassign its drivers located at a particular Carrier domicile in the event Carrier cloud that domicile 7 Regarding the burden of proof on this issue , we find that it was ini- tially incumbent on Carrier to produce evidence regarding its termination policy with respect to the leased Pacemaker drivers Here Carver pre- sented evidence that it did not transfer the drivers in the event of a clos- ing of a domicile. With the presentation of this evidence, the burden then shifted to the General Counsel to show that a transfer policy existed. We find that the General Counsel has not made this showing Compare Boland Marine, 280 NLRB 454 (1986). 290 NLRB No. 51 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1982. We agree, however, that Carrier's backpay li- ability should be tolled as of the date the domicile would have closed for legitimate reasons, which we find is February 10, 1985. The record fails to establish that the expiration of truck leases automatically resulted in Carrier's decision to close a domicile. Rather, and as argued by Carrier in its brief to the judge, the selection of the current domiciles was based on several factors, including the locale's capability of servicing Carri- er's assembly and distribution program as well as the amount of less-than-truckload freight generated in a particular area. Although the judge found that these factors did not establish a certain date for the closing of the Knoxville domicile , he nevertheless found that they established that the Knoxville domicile would have been closed on or before Feb- ruary 10, 1985-the date on which Carrier closed its Springfield, Massachusetts domicile, the last of the domiciles which were adapted to Carrier's re- organized assembly and distribution programs.8 In view of the uncertainty regarding the date of a le- gitimate closing of the Knoxville domicile, and be- cause it is the Board's policy to construe any un- certainty against the wrongdoer, we find that the Knoxville domicile would have closed as of the latest of the possible dates, i.e., February 10, 1985. Accordingly, we shall toll the discriminatees' back- pay as of that date.9 ORDER The National Labor Relations Board orders that the Respondent, Carrier Corporation, Carrier Trucking Service, Knoxville, Tennessee, its offi- cers, agents, successors, and assigns, shall 8 The record shows that Carrier had operated 12 domiciles , not count- ing Knoxville, in March 1981 . It opened an additional domicile in Spring- field, Massachusetts, in November 1982. The judge found that the six do- miciles still operating as of the date of the hearing (Indianapolis, Nash- ville, Memphis, Syracuse, Cleveland, and Atlanta) were selected to remain open because of "their unique ability" to handle the LTL ship- ments generated through Carrier's assembly and distribution programs. Between 1981 and 1985, Carrier had closed its domiciles in Fort Wayne, Indiana, Tyler, Texas; Cincinnati; Morrison, Tennessee, Detroit; and Mansfield, Ohio. As noted, the Springfield, Massachusetts domicile was opened in 1982 and closed on February 10, 1985 9 The judge recommended that the discnminatees be made whole in the amounts set forth in the attachment to his decision marked "Appen- dix," which represents backpay owed through December 1985. In light of our decision to toll backpay as of February 10, 1985 , we shall direct Carrier to make the discriminatees whole in the amounts set forth in the "Appendix" through December 1984, and leave to further compliance proceedings the computation of any amounts due to the discriminatees for the period January 1 through February 10, 1985. We also make the following corrections to the backpay amounts owed through December 1984 For Jonah C . Gates, net backpay for the second quarter of 1981 is $8778, rather than $8497. For David Donaldson , the amount of interim earnings for the third and fourth quarters of 1982 in both instances is 52981 , rather than $2891 ; the amount of net interim earnings for the fourth quarter of 1984 is $4187 , rather than $3340; and net backpay for the fourth quarter of 1984 is $3340. Make whole each of the employees named below by payment to them of backpay in the amounts set forth opposite their names , plus interest computed in the manner described in New Horizons for the Retarded,' ° and accrued to that date of payment, minus tax withholdings required by Federal and state laws: Jonah C. Gates $ 70,983 Hickman S. Ridley Jr. 59,012 Donnie Bales 26,710 David Donaldson 64,910 10 283 NLRB 1173 (1987). Interest on and after January I, 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 January 1, 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) Richard P. Prowell, for the General Counsel. James W. Malarney, of Indianapolis, Indiana, for the Re- spondent. Beatrice Chan Hubbard (Ogletree, Deakins, Nash, Smoak & Stewart), of Nashville, Tennessee, for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This is a proceeding for determination of backpay liabil- ity. On 30 March 1981 , Respondent (CTS) and Pacemak- er Driver Service, Inc. illegally discharged four employ- ees at CTS' truck domicile in Knoxville, Tennessee. That action was found to violate Section 8(a)(1) and (3) in an administrative law judge's decision that issued 12 Octo- ber 1982, and by the National Labor Relations Board in a 13 April 1984 decision (269 NLRB 971). On 30 July 1985 the Sixth United States Court of Ap- peals granted enforcement and directed CTS only (not Pacemaker) to comply with the Board Order. Carrier Corp. v. NLRB, 768 F.2d 778 (6th Cir. 1985). As noted in the underlying decision , Carrier Corpora- tion operates CTS as part of its corporate operations. Carrier Corporation is primarily engaged in the manufac- ture and sale of heating and air-conditioning units. CTS handles a portion of the total freight transportation needs of Carrier and Carrier's affiliated companies. CTS is headquarters in Knoxville, Tennessee. On 30 March 1981 , CTS operated 22 trucks from 12 cities. Two of those trucks, each with a crew of two drivers, operated out of Knoxville. On that date CTS il- legally terminated four Knoxville drivers and removed the domicile of the two trucks from Knoxville to Cincin- nati. Before that date Cincinnati was not the domicile of any of Respondent's 22 trucks. CTS did not own any of its trucks, all were leased. Through the above-mentioned Board and court orders, CTS was directed to reinstate the four Knoxville drivers (Jonah C. Gates, Hickman S. Ridley Jr., Donnie Bales, PACEMAKER DRIVER SERVICE and David Donaldson) with backpay and to reopen its Knoxville truck domicile. CTS has not complied with the Board and court orders. Instead it disputes whether it is now obligated to reopen its Knoxville truck domicile or to reinstate the four discriminatees. Before 30 March 1982 CTS operated what is known as a "truckload" private carrier operation . The term truck- load indicates that there is one consignee and one con- signor, and a truckload of goods is taken from a shipper to a designated location . A private carrier is an in-house carrier. One that works exclusively or almost exclusive- ly, for a parent corporation that is generally engaged in an enterprise other than trucking. Carrier operates CTS in order to move goods at a cost below the available cost of for-hire trucks. Until after March 1981 , CTS found that it could operate most effi- ciently as "truckload" as opposed to "less than truck- load" (LTL). LTL operations involve several consignees and/or consignors with several loads per truck. Truck- load operations do not require extensive terminal facili- ties whereas LTL operations necessitate terminals with distribution facilities . CTS contends that because of a re- quired change from being a TL (truckload) operation to becoming an LTL operation, it would have closed its Knoxville trucking operation after 30 March 1981 for reasons not protected by the NLRA. Additionally, CTS alleges that because it was not its practice to transfer drivers on closing its facilities, it would have legally ter- minated the four discriminatees when it legally closed its Knoxville facility. For that reason, Respondent argues, it no longer has a reinstatement obligation and its backpay obligation terminated on the date it would have legally removed the respective Knoxville trucks from Knoxville. The court granted full enforcement to the Board Order, which included, inter alia, a requirement that CTS: Offer immediate and full reinstatement to its em- ployees, Jonah C. Gates, Donnie Bales, David Don- aldson, and Hickman S. Ridley, Jr., to their former positions of employment or, if those positions no longer are available, to substantially equivalent posi- tions . . . . The enforced Order requires that Respondent offer re- instatement to Gates, Bales, Donaldson, and Ridley absent a showing that neither their former positions nor any substantially equivalent positions exist. The record shows that Respondent has not offered Gates, Bales, Ridley, or Donaldson reinstatement to their former positions or to substantially equivalent positions.' I Respondent argues that the discriminatees were offered employment by Pacemaker Area Manager Joe Weisenburger . All the discnminatces denied that Weisenburger offered employment at any time after they were discharged. Weisenburger testified. I talked to each of them shortly after I 'd sent them a letter and I'd called them or left word for them to call me to tell them that it was being closed and that we didn't have anything in the immediate area. If they wanted to work on the casual board or a possible reassign- ment whould probably require a relocation at that particular time and they probably should touch base with either my office or out of 407 Respondent, in a backpay proceeding, has the burden of demonstrating that unlawfully discharged employees would have been terminated for economic reasons. Mid- west Hanger, 221 NLRB 911, 917 (1975). In support of its position Respondent contends that it did not transfer drivers to another city when it closed a domicile. Respondent's evidence is found in the follow- ing testimony: Pacemaker's Manager Weisenburger testified: Q. What happened to the drivers at the location where the truck was eliminated? A. They usually were laid off. And we recruit- ed-put new drivers on the new location . Normally Q. To your recollection, was there an instance where Carrier transported employees from one lo- cation to another as a result of redomiciling of trucks? A. I don't believe so. Respondent's manager Henninger testified: Q. In the process of trimming the fleet , what hap- pened to the drivers whose trucks were eliminated from the system in the process? A. Their respected employer or driver leasing company would generally assign them to another account. I find that the above testimony does not establish a policy of Respondent terminating drivers when a tractor was redomiciled . That testimony shows only that drivers were usually reassigned by the truck lessor. As held by the Board in Boland Marine, 280 NLRB 454 (1986), in which evidence of Respondent's practice is "peculiarily in the possesssion of and available to Re- spondent," the burden falls to Respondent to prove by convincing evidence that the discriminatees would have been terminated at a subsequent date for legitimate busi- ness reasons. Respondent currently employs about 25 to 26 drivers using 13 tractors . The record does not show that those drivers were transferred to their current domi- cile from one of Respondent 's closed domiciles. It is not the General Counsel's burden to show that he discrimin- atees would have been permitted to transfer to one of the six current domiciles when Knoxville closed . Respondent failed to show that any of its current drivers have not previously transferred from another domicile. other office in Greenville since it was closer, actually , to this loca- tion. Weisenburger also testified that he believed J. C. Gates told him in a telepone conversation that Gates could not work for Pacemakers- Because it would jepordize the case or something to that effect. I credit the testimony of the discriminatees , including Gates, who all denied that they were offered employment by Weisenburger . Their testi- mony in that regard was positive On the other hand Weisenburger ad- mitted that his recollection was not good. Moreover, even if I should credit Weisenburger's testimony, it is clear from the above quoted testimony that Weisenburger did not extend an offer of employment. Weisenburger simply held out the hope of casual or permanent employment 408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent presently operates 13 tractors at 6 loca- tions; Indianapolis, Indiana (3 tractors); Nashville, Ten- nessee (2); Memphis, Tennessee (2); Syracuse, New York (2); Cleveland, Ohio (3); and Atlanta, Georgia (1). As was the case during 1981, teams of drivers are employed to operate Respondent's 13 tractors. Regarding the question of Respondent's obligation to reinstate the discriminatees in locations other than Knox- ville, the Board has traditionally ordered that type rein- statement in cases where it finds that an employer need not return its business to the former location. See for ex- ample Garwin Corp., 153 NLRB 664 (1955), enfd. in part 374 F.2d 295 (D.C. Cir. 1967); Burroughs Corp., 214 NLRB 571 (1974). As shown below, I find that Respondent would have closed its Knoxville domiciles at some time after 30 March 1981 for legitimate business reasons. Nevertheless, that finding is speculative . It cannot be established with certainty that Knoxville would have closed if in fact the Knoxville domiciles had existed when Respondent switched from TL to LTL operations. Correspondingly, it cannot be established with certainty that the discrimi- natees would not have been terminated when the Knox- ville domiciles closed for legitimate business reasons. In situations of this nature it is the normal practice to decide in favor of the innocent party and against the wrongdoer. Here the discriminatees continue to suffer substantial harm because of Respondent's unlawful action. I find that the record does not show that the discrim- inatees would have been terminated for economic rea- sons. Therefore, Respondent's mandate to reinstate all al- leged discriminatees continues regardless of Respondent's obligation to reopen its Knoxville truck domicile. Is Respondent Obligated to Reopen its Knoxville Truck Domicile? In response to the above query, the Sixth Circuit agreed that Respondent has a right "to move the domi- cile for legitimate business reason ...." (Carrier Corp. v. NLRB, 768 F.2d 778, 784 fn. 5 (1985)). Therefore, I shall apply the test inherent in the court's comment, i.e., does the record prove that Respondent would have re- moved its Knoxville domicile at some point after March 1981, for legitimate business reasons. Respondent argues that because of business factors it changed from a TL (truckload) operation to an LTL (less than truckload) operation. The record shows that the Motor Carrier Act of 1980 had a deregulation effect on the trucking industry. Because of that law more enti- ties were able to qualify as interstate motor carriers. The evidence illustrates that from 1980, the number of TL carriers significantly increased . TL carriers frequent- ly operate with little more capital investment than their trucks because it is not necessary to have extensive ter- minal or distribution facilities . Because of added competi- tion as a result of more carriers, the TL rates have de- creased since 1980. The record shows that truckload rates available to Carrier Corporation decreased from $1.37 per mile in 1981, to $ 1.30 in 1982, to $1.28 in 1983 , to $1.14 in 1984, up to $1 . 19 in 1985, and to $1 .08 in 1986. However, the 1980 Motor Carrier Act did not have a similar effect on LTL operations, LTL revenues have varied from $2.97 per mile in 1981, to $2.57 in 1982, to $3.27 in 1983, to $2.48 in 1984, to $2.23 in 1985, and to $2.66 in 1986. During the same period Respondent 's operating costs have increased from a $1 . 15 per mile in 1981, to $1.21 in 1982, to a $1.33 in 1983 , to $1.37 in 1984, down to a $ 1.34 in 1985, and to $1 .36 in 1986. Respondent argues, and the above figures support, that from 1983 the available rates for which it could use for- hire TL truckers, were less than its costs. Therefore, from that point in time, Respondent was unable to justify continuation of its TL operations . It simply costs more to run its own trucks than it would cost to pay outside TL operators. In interoffice communications as early as 6 July 1981, Respondent recognized that CTS could not continue as a viable truckload operation . During July 1981 it was an- nounced that CTS would increase its LTL operations by 65 percent . Although LTL rates were also falling in July 1981, there remained a wide range of profit opportunity in LTL operations (i.e., verses the cost of $ 1.15 per mile at that time, LTL rates were running about $2.97 per mile. In 1981 Respondent decided that its increased LTL operations2 could be handled with 13 trucks. Respondent established through record evidence that it followed the most economical procedure to reduce its fleet from 22 to 13 tractors by simply returning the 9 excess tractors as their leases expired . Therefore, on 2 August 1981, 3 trucks were turned in as their leases expired and Re- spondent's fleet was reduced to 19 tractors ; on 24 August 1982 the leases expired on 3 additional tractors and the fleet was reduced to 16; and on 20 November 1982 Re- spondent's fleet was finally reduced to 13 when the leases of 3 tractors expired. As it reduced its tractor fleet Respondent closed its trucking domiciles in several cities. Manager Clyde Henniger testified that the six current domiciles of CTS were selected due to their unique abili- ty to provide service to LTL assembly and distribution programs. In selecting the six domiciles Henninger testi- fied that he also considered the volume of LTL traffic generated in various cities including Knoxville and other former domiciles. The evidence shows that Carrier's distribution ware- houses are located in Syracuse, 444,000 sq. ft.; Nashville, 1049,000 sq. ft.; Memphis, 666,000 sq. ft.; Indianapolis, Z4,000 sq. ft.; Tyler, 303,000 sq. ft.; City of Industry, 303,000 sq. ft.; Little Rock, 101,000 sq. ft.; and Knox- ville, 75,000 sq. ft. In 1981 Respondent had distribution center warehouses located in Syracuse, 707,000 sq. ft.; Nashville, 1,074,000 sq . ft.; Memphis, 666,000 sq . ft.; In- dianapolis, 281,000 sq. ft.; City of Industry, 333,000 sq. ft.; and Tyler, Texas, 214,000 sq. ft. Distribution pro- grams have been established by Respondent in Syracuse, 2 Respondent's current operations function as LTL operations even though a portion of its business remains "truckload " The truckload oper- ations are primarily backhauls, used to provide some offset to the cost of returning the trucks to their originating terminal PACEMAKER DRIVER SERVICE Cleveland, Indianapolis, Memphis, and Atlanta plus two on the west coast, Los Angeles and Oakland. Carrier's assembly programs are located in Memphis, Nashville, Indianapolis, Cleveland, and Syracuse. As shown above the current domiciles of Respondent are located in Indi- anapolis (three trucks); Nashville (two); Memphis (two); Syracuse (two); Cleveland (three); and Atlanta (one). Additionally, the record shows that during 1981 and 1982 when the decisions were being made to close the former domiciles, Knoxville generated a low volume of LTL shipments. In a selected 3-month period in 1981 Knoxville generated significantly fewer LTL shipments than Tyler, Cincinnati, or Fort Wayne (267,529 as op- posed to 592,329, 1,766,772, and 4,895,027, respectively). During 3 months in 1983 Knoxville generated 300,512 LTL shipments ; Tyler, 447,110; Cincinnati, 1,481,098; Memphis, 2,631,346; Indianapolis, 4,697,788; and Syra- cuse, 5,518,312. It is noteworthy that Respondent no longer has domiciles in Tyler, Cincinnati, or Fort Wayne. On 10 February 1985, Respondent closed the last of its former domiciles, one in Springfield, Massachusetts. Before that it closed Mansfield, Ohio, on 1 May 1985; Cincinnati, Detriot, and Morrison, Tennessee, on 20 No- vember 1982; Tyler, Texas, on 1 May 1982; and Fort Wayne, Indiana, on 2 August 1981. Although Respondent moved its Knoxville domicile to Cincinnati illegally on 30 March 1981 , I am convinced from the record, that factors that led to the close of the Cincinnati domicile do not accurately indicate that the Knoxville domicile would have closed when Cincinnati actually closed. Cincinnati closed when anticipated local business failed to materialize. That factor was unique to Cincinnati and would not have been present in Knox- ville. However, in view of the evidence showing the LTL shipments that were generated in Knoxville and elsewhere, and in particular in view of the evidence re- garding assembly and distribution programs , I find that the Knoxville domicile would have been closed for le- gitimate business reasons at some point on or before the date Respondent closed its Springfield domicile, 10 Feb- ruary 1985. In view of that finding I recommend that Respondent should not be required to reopen its Knox- ville domicile. Backpay The pleadings developed several issues relating to the amount of backpay. (a) Pension credits. The General Counsel amended paragraph 8(a) of the backpay specification to allege: In addition to the amounts computed pursuant to paragraph 6 above, Respondent would have contin- ued payments to its pension plan on behalf of the discriminatees, and Respondent is obligated to re- store the credits they would have earned toward their pensions absent the illegal discrimination against them. Respondent answered: 409 Respondent Carrier admits that it made regular pen- sion contributions on behalf of its employees with over one year service. Respondent Carrier denies the remaining allegations contained in Paragraph 8(a). Respondent Carrier denies any backpay liabil- ity as the discharged employees failed to mitigate damages by making reasonable and diligent searches for interim employment. I find below that the record evidence did not show that the discriminatees "failed to mitigate the damages by making reasonable and diligent searches for interim em- ployment." In view of Respondent's answer and the record evi- dence, I find Respondent must make payments necessary to restore all pension funds and credits lost by each of the four discriminatees during the period 30 March 1981 through 31 December 1985, to the extent each discrimi- natee would have been entitled to pension contributions if he had continued working for Respondent after 30 March 1981 ; and to continue those payments until Re- spondent's backpay obligation is terminated. (b) Vacation pay. Respondent contends that the Gener- al Counsel seeks vacation pay for days when the dis- criminatees would have worked and received regular pay. However, the General Counsel has shown that the backpay computations contained in its backpay specifica- tions include weekly averages based on total quarterly earnings and do not purport to include vacation pay for weeks the employees would have actually worked. I find that the General Counsel's inclusion of vacation pay in its backpay computation is appropriate. Central Freight Lines, 266 NLRB 182 (1983). (c) Interim earnings. Although Respondent contended in its answer that the four discriminatees failed to make reasonable and diligent search for interim employment, the record failed to support Respondent 's position. The entire backpay period should be examined in con- sideration of "reasonable search." C-F Freight, 276 NLRB 481 fn. 3 (1985). The General Counsel admitted in the backpay specifi- cation, that each of the four discriminatees accumulated substantial interim earnings . Moreover, all four discrimi- natees were presented at the hearing here. When ques- tioned about search for work, J. C. Gates adequately ex- plained extensive efforts to find work while traveling 2500 miles. Respondent has the burden of showing that the dis- criminatees failed to seek work, Highview, Inc., 250 NLRB 549 (1980); Sioux Falls Stock Yards Co., 236 NLRB 543 (1978). Here the record does not show that any of the dis- criminatees failed to diligently seek work. (d) Interim earnings not reported. Respondent answered about all four discriminatees to the effect that the specifi- cation contained only a portion of each discriminatee's gross interim earnings . Respondent's claim that the dis- criminatees had unreported earnings is rejected in view of the absence of any supporting evidence . Respondent failed to produce any evidence of interim earnings by any of the discriminatees other than those shown in the specifications. Sioux Falls Stock Yards, supra. 410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (e) Change in method of computing mileage . Respondent contends drivers' mileage computations changed in 1985. The record shows only the following: Q. Mr. Weisenburger, there was a wage increase for the Carrier employees sometime in 1985 , is that correct? A. Yes. Took a while. Q. Alright. Do you remember if the computation for the mileage run, is the same after the increase in 1985? MR. PROWELL : Objection, Your Honor, leading. JUDGE ROBERTSON: I'll permit it. You may answer. A. I'm sorry, I didn't understand the question. Q. Do you recall if that increase , wage increase, also resulted in a different computation , or a differ- ent measure of mileage run by the employees? run on a different d i ff e r e n t. . A. If the pay miles were computed differently? Q. Yes A. Okay, if I'm correct, it was '85 that we changed the mileage computation from a hub to household movers guide. Q. Okay, will you please explain for the Judge what is a household mover's guide and what is a hubometer mile? A. Well, a hubometer is the mileage tracking in- strument on a truck that keeps an accurate track of miles and the household movers guide is a published book that says the miles from point A to point B are X amount miles. There's usually a variance be- cause-the household movers guide is based on straight lines and it 's usually lesser than hub miles. Respondent offered no evidence that the household movers guide resulted in actual changes in pay. Because the record failed to show that Respondent 's 1985 change in mileage computation "from a hub to household movers guide" specifically changed the backpay specifi- cations, I have no basis to recompute gross backpay. (f) Mileage allowance for J. C. Gates. J. C. Gates testi- fied that he drove 2500 miles in search of work. On cross-examination Gates supported his mileage estimate by citing various cities and employers he visited in search of work . No evidence was offered that would rebut Gates' testimony. I find that Gates' testimony was credible , and his esti- mate reasonable. I shall award the claimed mileage at the rate of 22.5 cents per mile . See Evans Plumbing Co., 278 NLRB 67 (1986). (g) Did the discriminatees refuse employment with Pace- maker. As shown above Respondent alleged that Pace- maker Manager Joe Weisenburger made offers of em- ployment to the discriminatees after 30 March 1981. I credit the denial of each of the discriminatees that Wei- senburger made such an offer. Moreover , even Weisen- burger's testimony fails to illustrate that he actually of- fered employment to any of the discriminatees. (See above.) Weisenburger, at best, simply held out the hope that casual or permanent work may be available. I find that the record shows that none of the discriminatees refused an offer of employment from Pacemaker. (h) Gates medical and dental records. If the discrimina- tees had continued their employment they would have been covered by Pacemaker's medical and dental insur- ance plans. J. C. Gates documented that he incurred the following medical and dental expenses for which he was not compensated by insurance or other means: 1981-$204 ($68 per quarter-three quarters) 1982-$1280 ($302 per quarter) 1983-$1736 ($434 per quarter) 1984-$1024 ($256 per quarter) 1985-$836 ($209 per quarter) I find that Respondent is obligated to reimburse Gates for those expenses. Plasterers Local 90 (Southern Illinois Builders), 252 NLRB 750 (1980). (i) Health insurance premiums. Discriminatee Donnie Bales documented health premiums he paid while work- ing with an interim employer. Had Bales continued working for the Respondent after 30 March 1981 those premiums would have been paid by the Employer. Therefore, Bales should be reimbursed from the premi- ums paid by him Sioux Falls Stock Yards, supra. (j) Donnie Bales sick pay. In support of this contention General Counsel's Exhibit 2(g), page 6 , shows that Bales was paid $150 in sick pay during the billing week ending 8 November 1980. In view of Bales receipt of sick pay while employed by Respondent, it is proper to award sick leave pay.3 (k) Holiday pay. The General Counsel's Exhibit 2(j) and (n) show that each discriminatee received holiday pay of $150.60 and $211 .20 during the representative pe- riods.4 It is proper to award prorated holiday pay on the basis of established practice. Conclusions To the extent shown above, I conclude that the formu- las used in the amended backpay specifications were rea- sonable and appropriate and that the mathematical calcu- lations based on the formulas are accurate. As to the discriminatees Jonah C. Gates, Hickman S. Ridley Jr., Donnie Bales, and David Donaldson, Re- spondent's backpay/reinstatement obligations were shown to be continuing and, to the extent backpay enti- tlement for Gates, Ridley, Bales, and Donaldson may be specified for periods after 1985, I recommended that I shall retain jurisdiction of this matter to properly consid- 9 The General Counsel 's computations set out in its brief indicate that the weekly figure of $11 11 may be incorrect It appears that the sick pay figure of $150 divided by 27 weeks (representative period) should be $5 55 rather than $ 11.11. If incorrect , the General Counsel's figures should be corrected, as well as the resulting backpay entitlement figures. 4 The General Counsel's computations set out in its brief indicate that the weekly figures of $ 13 69 for Bales, Gates, and Ridley and $ 15.38 for Donaldson , may be incorrect. The brief shows that Bales , Gates, and Ridley should receive a prorated share computed by dividing $316.80 by 27 weeks, which would equal $11 .73; and that Donaldson 's weekly enti- tlement should be arrived at by dividing $ 1680 by 24 weeks, for a total of $13.20 If incorrect the General Counsel's figures should be corrected as well as the resulting backpay entitlement. 411 er appropriate specifications which the General Counsel [Recommended Order omitted from publication.] may submit in the future.5 5 As shown above, the backpay entitlement for the period before and after 31 December 1985 includes payment of appropriate amounts into the pension funds for Gates, Ridley, Bales, and Donaldson APPENDIX 1 2 3 4 5 6 Yr./Qtr. Gross Backpay Net Backpay 7 HICKMAN ,S RIDLEY JR. 1981/2 $8,380 0 0 0 0 0 $8,380 1981/3 8,491 0 0 0 $1,515 $1,515 6,976 1981/4 8,757 0 0 0 4,056 4,056 4,701 1982/1 8,757 0 $337 0 2,417 2,080 6,677 1982/2 8,757 0 337 0 6,002 5,665 3,092 1982/3 8,757 0 337 0 6,002 5,665 3,092 1982/4 8,757 0 337 0 6,002 5,665 3,092 1983/1 8,757 0 337 0 2,862 2,525 6,232 1983/2 8,757 0 337 0 7,132 6,795 1,962 1983/3 8,757 0 337 0 7,132 6,795 1,962 1983/4 8,757 0 337 0 7,132 6,795 1,962 1984/1 8,757 0 337 0 6,373 6,036 2,721 1984/2 8,757 0 337 0 6,373 6,036 2,721 1984/3 8,757 0 337 0 6,373 6,036 2,721 1984/4 8,757 0 337 0 6,373 6,036 2,721 1985/1 8,757 0 337 0 6,309 5,972 2,785 1985/2 8,757 0 337 0 6,309 5,972 2,785 1985/3 8,757 $91 337 0 6,309 5,972 2,876 1985/4 9,285 91 357 0 6,309 5,952 3,434 Total $70,892 1981/2 $8,429 $68 0 JONAH C. GATES $281 0 0 $8,497 1981/3 8,541 68 0 281 $ 512 $231 8,378 1981/4 8,809 68 0 0 2,548 2,548 6,329 1982/1 8,809 302 $339 0 5,196 4,857 4,254 1982/2 8,809 302 339 0 5,196 4,857 4,254 1982/3 8,809 302 339 0 5,196 4,857 4,254 1982/4 8,809 302 339 0 5,196 4,857 4,254 1983/ 1 8,809 434 339 0 5,914 5,575 3,668 1983/2 8,809 434 339 0 5,740 5,401 3,842 1983/3 8,809 434 339 0 5,740 5,401 3,842 1983/4 8,809 434 339 0 5,740 5,401 3,842 1984/1 8,809 256 339 0 5,582 5,243 3,822 1984/2 8,809 256 339 0 5,582 5,243 3,822 1984/3 8,809 256 339 0 5,582 5,243 3,822 1984/4 8,809 256 339 0 5,582 5,243 3,822 1985/1 8,809 209 339 0 5,652 5,313 3,705 1985/2 8,809 209 339 0 5,652 5,313 3,705 1985/3 8,809 209 339 0 5,652 5,313 3,705 1985/4 9,347 209 360 0 5,652 5,292 4,264 Total $86,081 Health Insurance Claims or Premiums Vacation Pay Expenses Interim Earnings Net Interim Earnings 412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 2 3 4 Yr.1Qtr. Gross Backpay Health Insurance Claims or Premiums 5 Vacation Pay Expenses Interim Earnings 6 7 Net Interim Earnings Net Backpay DONNIE BALES 1981/2 $6,777 0 0 0 $1,921 $1,921 $4,856 1981/3 6,867 0 0 0 1,921 1,921 4,946 1981/4 7,081 $156 0 0 1,921 1,921 5,316 1982/1 7,081 156 $272 0 6,027 5,755 1,482 1982/2 7,081 156 272 0 6,027 5,755 1,482 1982/3 7,081 156 272 0 6,027 5,755 1,482 1982/4 7,081 156 272 0 6,027 5,755 1,482 1983/1 7,081 156 272 0 6,519 6,247 990 1983/2 7,081 156 272 0 6,519 6,247 990 1983/3 7,081 156 272 0 6,519 6,247 990 1983/4 7,081 156 272 0 6,519 6,247 990 1984/ 1 7,081 156 272 0 7,083 6,811 426 1984/2 7,081 156 272 0 7,083 6,811 426 1984/3 7,081 156 272 0 7,083 6,811 426 1984/4 7,081 156 272 0 7,083 6,811 426 1985/1 7,081 168 272 0 6,816 6,544 705 1985/2 7,081 168 272 0 6,816 6,544 705 1985/3 7,081 168 272 0 6,816 6,544 705 1985/4 7,481 228 272 0 6,816 6,528 1,181 Total $30,006 1981/2 $7,196 0 0 DAVID DONALDSON 0 $1,969 $1,969 $5,227 1981/3 7,293 0 0 0 4,125 4,125 3,168 1981/4 7,527 0 0 0 3,516 3,516 4,011 1982/1 7,527 0 $289 0 0 0 7,527 1982/2 7,527 0 289 0 0 0 7,527 1982/3 7,527 0 289 0 2,891 2,692 4,835 1982/4 7,527 0 289 0 2,891 2,692 4,835 1983/ 1 7,527 0 289 0 4,211 3,922 3,605 1983/2 7,527 0 289 0 4,211 3,922 3,605 1983/3 7,527 0 289 0 4,211 3,922 3,605 1983/4 7,527 0 289 0 4,211 3,922 3,605 1984/1 7,527 0 289 0 4,476 4,187 3,340 1984/2 7,527 0 289 0 4,476 4,187 3,340 1984/3 7,527 0 289 0 4,476 4,187 3,340 1984/4 7,527 0 289 0 4,476 4,187 3,340 1985/1 7,527 0 289 0 4,840 4,551 2,976 1985/2 7,527 0 289 0 4,840 4,551 2,976 1985/3 7,527 0 289 0 4,840 4,551 2,976 1985/4 7,943 0 306 0 4,840 4,534 3,409 Total $77,247