City Disposal Systems, Inc.

CITY DISPOSAL SYSTEMS City Disposal Systems, Inc. and James Brown. Case 7-CA-16792 July 29, 1988 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND CRACRAFT On July 14, 1987, Administrative Law Judge Donald R. Holley issued the attached decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a supporting brief. Both the Charging Party and the Respondent filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions as modified and to adopt the recom- mended Order as modified.2 i Counsel for the Charging Party, who did not enter the case until after the hearing , has filed a motion to remand out of time to take evi- dence concerning Respondent 's alleged liability for pension contributions and health plan benefits. The Respondent opposes the motion The motion alleges that the General Counsel failed to include in the backpay specification any amounts for pension contributions and health plan bene- fits. The motion asserts that because Charging Party Brown entered no appearance and proceeded without counsel at the hearing , he was not in a position to raise these issues at that time . Our review of the record indi- cates, contrary to the Charging Party's assertion , that Brown entered a formal appearance on his own behalf He therefore had the opportunity to raise these issues at the hearing Furthermore, we find no evidence in the record that pension contributions or health plan benefits exist or should have been included in the backpay specification. Accordingly, the motion to remand is denied The General Counsel and the Respondent jointly move to correct a perceived clerical or technical error in the judge's decision relating to his determination that the earnings of Best Wrecking Company driver Steve Brousseau should be used as an offset from the gross backpay for claim- ant Brown because Brown had incurred a willful loss of earnings by re- jecting an offer of employment by Best Wrecking Company These par- ties allege that the judge's decision contained a chart setting forth the cal- culation of backpay due, which included information found in R Exh 25. This exhibit listed Brousseau 's earnings The judge's chart omitted the "ADP payroll earnings" listed in quarter 4 of 1980 for Brousseau The General Counsel and the Respondent contend that the judge should have included these earnings, which would have resulted in a zero net backpay figure for quarter 4 of 1980 The Charging Party originally declined to join in the motion and now opposes it. We believe that the General Counsel and the Respondent have failed to explain adequately the nature of the "ADP payroll earnings" or to establish that claimant Brown would have been eligible for or entitled to the "ADP payroll earnings " Therefore, the joint motion is denied. We correct the following inadvertent errors in the judge 's decision. 1. The heading of sec. B should read . "B Employment during period 14 May 1979 through I April 1980" 2. In the last sentence of the section entitled "The Failure to Accept or Retain Comparable Employment," par. 4, " 1972" should read "1982." 3. In par 5 of the same section , "28 December 1982" should read "28 December 1981 " and "28 December until 13 February 1983" should read "28 December 1981 until 13 February 1982." 2 We correct the following errors in the judge 's calculation of backpay due- 413 ORDER The National Labor Relations Board orders that the Respondent, City Disposal Systems, Inc., De- troit, Michigan, its officers, agents, successors, and assigns, shall make whole James Brown by paying him the sum of $7,505.38, plus interest computed in the manner prescribed in New Horizons for the Re- tarded.3 1. Quarters 3 and 4 of 1979 should be excluded from the calculation because the amended backpay specification excluded these quarters. 2. The record establishes that Brown was disabled and thus unable to work for 6 weeks during quarter I of 1982 For this reason the judge reduced the amount of gross pay due Brown for this quarter by $2707. This was the amount that the judge thought applied to the 6 weeks during which Brown received workmen 's compensation However, the judge erroneously reduced quarter I of 1983 by that amount rather than quarter I of 1982 The correct gross backpay amount for the 6 weeks of quarter I of 1982 in which Brown received workmen 's compensation is $2902 Further, the judge failed to reduce the interim earnings offset for those 6 weeks. Thus, the judge included $1899.81 as interim earnings based on the amount Brousseau earned during that period . Because the backpay has been reduced based on Brown's inability to work during the 6-week period, it appears that the projected interim earnings based on the job Brown turned down should also be reduced for the same period. Ac- cordingly, we have reduced the gross backpay for quarter I of 1982 by $2902 and we have reduced the amount of interim earnings for that period by $1889 81 This reduction results in net backpay of $388.07 for that quarter These changes do not affect the net backpay due for quarter I of 1983 (0). We find the judge's denial of backpay to Brown for the 6 weeks during which he was disabled to be proper under American Mfg. Ca, 167 NLRB 520, 522 (1967). The evidence shows that an excludable period of absence from work took place during the 6 weeks Brown was disabled . The Gen- eral Counsel has not established by showing that the nature of the interim employment that Brown was performing was so unusual or so dissimilar from work he performed for the Respondent that Brown's injury would not have occurred in the absence of the Respondent 's discrimination against him . Thus, in fact, the record reflects that, although Brown's injury occurred in the course of interim employment , that employment as an over-the-road truckdriver did not pose hazards that were different or greater than the hazards presented by Brown's job with the Respondent, in which he drove a tractor-trailer back and forth over a 37-mile route between Detoit and Belleville, Michigan 3. Regarding quarter 4 of 1982 , the interim offset amount was greater than the gross backpay ; therefore, the net backpay should be zero. In sum, the corrections we make to the judge's backpay calculations affect the quarterly net backpay amounts by reducing the net backpay to zero for quarter 4 of 1979 and quarter 4 of 1982 and reducing the net backpay to $388.07 for quarter I of 1982 This results in the total net backpay being reduced to $7,505.38 0 283 NLRB 1173 (1987). Interest on and after January 1, 1987, shall be computed at the "short -term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 29 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). Joseph Canfield, Esq., for the General Counsel. Theodore R. Opperwall, Esq. (Dickinson, Wright, Moon, Van Dusen & Freeman), for the Respondent. SUPPLEMENTAL DECISION DONALD R. HOLLEY, Administrative Law Judge. On 9 June 1981, the National Labor Relations Board issued its Decision and Order in this case directing, inter alia, that City Disposal Systems, Inc. (Respondent or City Dispos- al), offer James Brown immediate and full reinstatement to his former job or, if that job no longer exists, to a sub- 290 NLRB No. 52 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stantially equivalent position, without prejudice to his se- niority or other rights or privileges previously enjoyed, and to make Brown whole for any loss of earnings since his discharge on 14 May 1979, with interest . On 22 July 1982, Sixth Circuit issued its order in Case 87 -1406 deny- ing enforcement of the Order of the Board . Thereafter, on 21 March 1984, the U.S. Supreme Court reversed the judgment of the court of appeals, remanded the case to the Sixth Circuit, and on 9 July 1985, the Sixth Circuit enforced the Order of the Board. On 6 December 1985, the Regional Director for Region 7 issued a backpay specification and notice of hearing alleging that James Brown was due a certain sum as backpay. Thereafter, Respondent filed an answer to the backpay specification , and at the commencement of the hearing held on 9 and 10 June 1986 , the General Counsel amended the backpay specification by substitut- ing new schedules C and D for those attached to the backpay specification.' 1. FACTS The backpay period commences on 14 May 1979, the date Brown was discharged , and ends on 18 July 1985, the date he was offered reinstatement. A. The Best Wrecking Company Offer and Refusal The record reveals Brown was offered a truckdriver position by Best Wrecking Company, Inc. at some un- stated time in May 1979.2 Steve Mardigan, 50-percent owner of Best, testified Teamsters Local 247, the Union that also represents City Disposal's drivers, represents his drivers. In 1979, Best's drivers were paid approximately $12 an hour, a sum S. Mardigan estimated to be 30-per- cent higher than union scale , and $4 to $5 more an hour than garbage men were then receiving. Local 247's con- tract with Best provided for vacations and a few paid holidays. S. Mardigan testified Brown would have been immediately below Best driver Steve Brousseau if he had accepted Best's offer. Thereafter, he indicated Brousseau was paid the following amounts for driving in Detroit during the period 1 January 1979 through 30 May 1982: 1979-$23,522.25; 1980-$27,906.07; 1981-$29,556.62; and 1 January through 30 May 1982-$10,972.52. In early June 1982, Best's Detroit drivers were trans- ferred to demolition jobs located in Minneapolis and Austin, Minnesota. David Mardigan, also a 50-percent owner of Best, testified the drivers were paid the scale called for by Best's contract with Local 247 while work- ing in Minnesota, and he indicated the drivers sent to Minneapolis worked an average of 60 hours a week until early April 1983, while those transferred to Austin worked 40-45 hours per week through the month of September 1984.3 B. Employment During Period 14 May 1974 Through 1 April 1980 Brown testified he was unemployed from the time he was terminated by Respondent until he obtained a labor- er position at Plymouth Hills Mobile Home Park in early 1980. However, in a job application filed with Midwest- ern Distribution, Inc., dated 11 August 1980, he indicat- ed he had been employed by W. L. Moore Trucking during the period 27 May 1979 through 10 April 1980.4 Brown claimed during his testimony that he falsely indi- cated on the Midwestern application that he had worked for Moore Trucking during the period indicated, that he indicated the employment to show he had driving experi- ence. Regarding to his claimed employment by Plymouth Hill, Brown indicated he could not fix the time of the employment, but he recalled it occurred during a change of seasons as he shoveled snow and also performed tasks performed in warm weather such as mowing grass. Joe Ruggerello, the owner of Plymouth Hills, indicated he was not absolutely sure when he employed Brown, but he felt it must have been during June, July, or August 1979 or 1980 because he hired persons to perform labor type work such as street cleaning, sidewalk cleaning, or general cleanup only during summer months. He testified laborers were not used to remove snow during winter months because equipment operated by his park manager or a four-wheel drive vehicle operated by a resident of the park accomplished all snow removal. Brown testified he was paid $250 a week while work- ing at Plymouth Hill, and he estimated his interim earn- ings as a result of that employment to be $1948. The backpay specification attributes $1700 of these earnings to be the first quarter of 1980, and $248 to be the second quarter of 1980. The 1979 and 1980 Federal income tax returns filed by Brown fail to indicate he earned $1948 (or any other amount) while working for Plymouth Hill.5 ' See G.C. Exh. 2 2 Prior to the hearing, the Region informed Respondent , by letter dated 30 May 1986, that Brown had rejected an offer of interim employ- ment made by Best Wrecking Company "in around May, 1979" and that rendered Brown ineligible for backpay until in or about April 1980, when he secured employment at Plymouth Hill Mobile Home Court. Thereaf- ter, at the outset of the hearing, the backpay specification was amended to exclude any claim for backpay for Brown during the third and fourth quarters of 1979. Although Brown denied having received the offer under discussion and claimed during the hearing he was not qualified to drive Best's equipment, David Mardigan, part-owner of Best, testified he had observed Brown in City Disposal equipment which was similar to the equipment used by Best. As indicated, supra, Brown has little regard for the truth and sanctity of an oath . Noting Brown has been a truckdriv- er for almost 30 years, I credit Mardigan's described testimony . I do not credit Brown's claim that he was not offered the position , and I do not credit his claim that he was not qualified to operate Best's equipment C. Employment During the Period 21 April Through 2 July 1980 The record reveals that Brown was employed as a local truckdriver by Detroit City Dairy at a rate of $5 an hour on 21 April 1980. After working for that company for 4 weeks, his hourly rate was increased to $7.20 an hour. Brown testified, and the record reveals, that con- siderable overtime, which was paid at time-and-a-half the 3 Best's Detroit drivers were paid living expenses while working in Minnesota. 4 See R. Exh. 12 a See R. Exh. 15. CITY DISPOSAL SYSTEMS normal hourly rate was available on that job. 6 Brown quit his job at Detroit City Dairy on 2 July 1980. He tes- tified he quit because they would not give him a raise.? Richard Brower, Detroit City Dairy's controller during the entire backpay period, testified his company employed 15-16 drivers in 1980, and the number had climbed to 24-25 by 1985. Its drivers were represented by Teamster Local 337, and their hourly contract rate was increased by 50 cents to $7.70 in 1981, $7.80 in 1982, $7.90 in 1983, and $8 in 1984. In 1985, the hourly rate remained the same when the contract was renegotiated, but drivers employed a full year were to receive a $750 bonus, which translated to an additional 25 cents an hour. He indicated the drivers worked 60-65 hours a week during the backpay period. Brower testified De- troit City Dairy advertised for drivers in The Detroit News or The Free Press, local newspapers, approximately once every other week during the 1980-1985 time period.s On 18 August 1980, Brower, acting for Detroit City Dairy, responded to Midwestern Distribution, Inc.'s in- quiry about Brown's work history by indicating, inter alia, the company would reemploy Brown. Brown testi- fied that at some unstated time during 1982 or 1983 he telephoned Detroit City Dairy to seek employment and he was told there were no openings. Noting the compa- ny was advertising for drivers during 1982 and 1983, and it considered Brown reemployable , I do not credit Brown's vague unsupported claim that he sought work at Detroit City Dairy during 1982 or 1983. D. Employment with Midwestern Distribution, Inc. Brown was unemployed from 3 July until 14 August 1980. He testified that, while he was still employed by Detroit City Dairy, he visited the Michigan Employment Security Commission to seek other work and was ad- vised that, if he was willing to work out-of-town, Mid- western Distribution, Inc., located in Fort Scott , Kansas, was seeking over-the-road drivers.9 At some unstated time, Brown contacted Midwestern by phone and he was apparently advised to report to Fort Scott on or about 11 August 1980. He filed an application with Midwestern on 11 August, and started driving for an unnamed owner-operator utilized by Midwestern on 14 August (Tractor 8518 , Inc.). Thereafter, during the fourth quar- ter of 1980, Brown obtained his own tractor and was em- ployed by Midwestern as an owner-driver until he was terminated on 14 February 1982 , allegedly because he had experienced a preventable accident that damaged Midwestern equipment or property. 1 ° Thereafter, when 6 See R. Exh. 13, which reveals that Brown regularly worked between 13-20 hours of overtime a week. r Drivers at City Disposal were making $6.50 an hour at the time s His claim is substantiated in part, by R. Exh. 20, which reveals, inter alia, that Detroit City Dairy placed ads for drivers in The Detroit News on 7 March, 16 May, and 27 June 1982. 9 R. Exh. 21, MESA forms that reveal the dates Brown visited that agency, do not reveal any 1980 visits. I do not credit Brown's claim that he visited the employment agency while still employed by Detroit City Dairy 10 See R. Exh. 14. 415 Brown filed an unemployment compensation claim with the Kansas Department of Human Resources, Division of Employment, that agency initially denied him benefits for the period 14 February through 3 April 1982. Brown appealed and the agency sustained the appeal and found the accident was unavoidable on 22 April 1982.' 1 During his employment at Midwestern , Brown earned, after expenses, approximately the same weekly amount he had earned while working as a laborer for Plymouth Hill Mobile Home Park-$250 a week and/or $1000 a month. E. The Period 28 December 1981 Through 13 February 1982 Brown was injured in the accident that occurred on 28 December 1981. He performed no work during the period extending from 28 December to 13 February 1982. On 9 February 1982 the doctor who treated him indicated he would be released to return to work on 13 February 1982.12 Brown indicated during his testimony that he received workmen's compensation benefits in an undisclosed amount for his period of incapacity. F. Calendar Years 1982 and 1983 In a backpay questionnaire submitted to the Regional Office on 5 April 1984, Brown indicated he was unem- ployed and had no interim earnings during the period January 1982 to January 1984.13 His Federal income tax returns for years 1982 and 1983, which were placed in the record as Respondent's Exhibit 15, reveal he claimed income in 1982 in the amount of $303 from Tractor 8566, Inc.14 and that he claimed he had no income from any source during calendar year 1983. The record reveals Brown was employed by Reitzloff Disposal Company when he completed the above-men- tioned questionnaire, but his then current employment was not noted on the document submitted . The record further reveals that in 1982 Brown commenced to use the alias James Hunter, and, regarding the use of this name, he utilized his deceased mother's social security number-419-14-5639. When Brown obtained employ- ment at Reitzloff, he used the name James Hunter, and he initially used his mother's social security number. 15 On 25 July 1985 the compliance officer for Region 7 mailed Brown a second backpay questionnaire. Brown apparently informed the compliance officer at that time that he was employed by Reitzloff and he would furnish the Region with his earnings while so employed . There- after, the record reveals he obtained a "To Whom It May Concern" document placed in the record as Re- " See R Exh. 14 and G C Exh 7 '2 See R Exh 14. 13 See R Exh. 3. 14 The amount was apparently earned in 1981, but actually paid in 1982. is Brown claimed he decided to use an alias and a different social secu- rity number because unidentified persons were asking his neighbors where he worked , when he got home, what kind of car he drove, and details concerning his children . In agreement with Respondent's counsel, I conclude his use of the alias and his mother's social security number concerning his employment at Reitzloff and his failure to inform the Region of his actions indicate he had an ulterior motive also 416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent Exhibit 4 from Reitzloff and caused it to be de- livered to the Region . The document sets forth Brown's earnings at Reitzloff during the four quarters of 1984 and quarters first and second of 1985. Kevin Reitzloff, gener- al manager of Reitzloff, testified he learned James Hunter was actually James Brown around the time Brown asked that his 1984 and 1985 earnings be fur- nished to the Region, and he indicated Brown requested that the name Brown be used when supplying the infor- mation.16 Significantly, Brown did not tell Regional personnel prior to the issuance of the original backpay specification that he worked for Reitzloff under the alias James Hunter. In February 1986, counsel for Respondent served Reitzloff with a subpoena duces tecum. In response to that subpoena, Reitzloff supplied Respondent's counsel and the Regional Office with payroll records that re- vealed Brown had been carried on Reitzloffs payroll since 7 September 1983 under the alias James Hunter. The records revealed he earned the amounts set forth in General Counsel's Exhibit 2 while employed during quarters third and fourth of 1983.17 Additionally, Reitz- loff relinquished the contents of Brown/Hunter's person- nel file at that time to both Respondent's counsel and to the Regional Office. The file, which was placed in the record as General Counsel's Exhibit 11 , reveals, inter alia, that Brown executed W-4 forms on 7 September 1983, using the alias James Hunter and the social security number 419-14-5639 (his mother's number); that a re- quest for verification of employment document sent Reitzloff by Allied Mortgage Association, Inc. signed by Betty Donovan, Reitzloff's office manager, on 10 Octo- ber 1984, indicates James Hunter's date of employment as 7 September 1983; and that a request for verification of employment by Allied Mortgage Association, Inc. signed by Donald Reitzloff, supervisor, on 21 January 1985, indicates James Hunter's date of employment as 12 April 1982, and gives his 1983 earnings as $31,270.18 In an attempt to show that James Brown, a/k/a James Hunter, was actually employed by Reitzloff prior to 7 September 1983, Respondent's counsel placed the follow- ing documents in evidence: Respondent's Exhibit 7-an NBD Mortgage Company loan application signed by Brown as James Hunter on 3 June 1985, which indicates he had been employed by Reitzloff for 3 years; Respond- ent's Exhibit 8-the above-described Allied Mortgage document signed by Donald Reitzloff and James Hunter, indicating Hunter's date of hire to be 12 April 1982, and his 1983 earnings to be $31 ,270; Respondent's Exhibit 10-an automobile loan application signed by James Hunter on 25 April 1985 which, inter alia, indicates he had been employed by Reitzloff for 3 years; Respond- ent's Exhibit 11-an automobile loan application dated 23 May 1984 and signed by James Hunter , which indicates he had been employed by Reitzloff for 2 years and 6 months; and Respondent's Exhibit 12-a copy of the ap- plication Brown filed with Midwestern Distribution on August 11 1980, which reveals, inter alia, he was em- ployed by W. L. Moore Trucking from May 27 1979 to 10 April 1980.111 Noting the 5 April 1984 backpay questionaire indicat- ed Brown applied for employment at only five firms during 1982 and 1983, Respondent's counsel sought to show the discriminatee had failed to look for a job during those calendar years . To accomplish that objec- tive, he produced Respondent's Exhibit 20, photocopies of ads for truckdrivers appearing in the Sunday editions of The Detroit News and The Free Press during calendar years 1982 and 1983, and asked Brown if he had seen and responded to five specific ads. Brown indicated he either had not seen or had not responded to three of the ads, and that he had seen and responded to two of the ads, but had not been hired . Additionally, Brown indicat- ed he had sought employment at 50- 100 firms that he had not listed in the 5 April 1984 questionnaire because of the limited space provided. Finally, he indicated he had repeatedly visited the Michigan Employment Securi- ty Commission during 1982 and 1983 to seek work.80 G. Employment by Enviroquip Kevin Reitzloff was called by the General Counsel as a rebuttal witness. During cross-examination, Reitzloff indicated that, starting in what he recalled to be late 1984 or early 1985, Brown periodically drove new gar- bage trucks to Knoxville , Tennessee, for Enviroquip, a corporation owned by his father (K. Reitzloffs). Reitz- loff indicated one Paul Ewart, a salesman, is the sole em- ployee of Enviroquip. K. Reitzloff indicated Enviroquip sells sanitation vehicles and Ewart normally obtained Brown's services by asking him if Reitzloff Disposal could spare him for the time required to transport a vehi- cle to or from Knoxville. Brown was paid $200 for each delivery by check from a separately maintained Enviro- quip account. K. Reitzloff testified he and Ewart had au- thority to sign Enviroquip checks and he signed at least one of that corporation's checks made out to Brown and/or Hunter. On occasion, K. Reitzloff physically handed Enviroquip checks to Brown. Brown testified on rebuttal that he did not report his Enviroquip earnings to the Regional Office because he was under the impression that his work for that corpora- tion was essentially work performed for Reitzloff Dis- posal. He claimed he thought Reitzloff Disposal had in- cluded his Enviroquip earnings when furnishing counsel for Respondent and the Regional Office his Reitzloff Disposal earnings. 1s Kevin Reitzloff testified he ejected a reporter from the company's premises around the time the information was requested , and during that incident he learned Brown was using the alias Hunter 17 3d quarter-5624 38 and 4th quarter-54,099.42 19 Kevin Reitzloff testified Donald Reltzloff, his cousin, is employed as a dispatcher at Reltzloff, but the signature on the 21 January 1985 docu- ment is not Donald Reitzloffs signature. 19 Brown sought to disclaim responsibility for the content of the mort- gage and loan application documents by claiming they were blank when he signed them. It is clear he either supplied the information set forth in R. Exhs. 10 and II or personally placed Reltzloff hire date information on such documents Similarly, he either furnished or placed the W. L. Moore Trucking information on R. Exh. 12 20 Interestingly, the MESA cards, which appear in the record as R. Exh. 21, reveal Brown uniformly visited MESA at 8:15 am. CITY DISPOSAL SYSTEMS H. The Subpoenaed Documents Prior to the hearing, counsel for Respondent served Brown with a subpoena duces tecum, which required that he produce, inter alia, his banking records, his Fed- eral and other tax returns, and any documents revealing his attempts to obtain interim employment . In response, with exception of a few bank statements covering limited periods, Brown indicated he had no records other than those that had been delivered to the Regional Office. In- terestingly, when producing bank statements, he inad- vertently included a statement that indicated one Albert Mensah, whose address was indicated to be 20190 Rio- pelle, Detroit, Michigan 48234 (Brown's address), had maintained an account at the First of America Bank in Detroit.21 Brown denied knowledge of the Mensah ac- count and claimed the statement was among his personal papers because the bank had incorrectly mailed it to his address. Regarding its production, he stated , inter alia: "If I would have thought it was offensive to myself, I would not have brought it in and given it to you." Although Brown was requested to produce a copy of his 1985 Federal income tax return at the outset of the hearing, he failed to contact the tax service he had uti- lized to obtain a copy of the return before the hearing was recessed. A copy of the return obtained by counsel for Respondent after the hearing was recessed was re- ceived in the record as Respondent 's Exhibit 27. Brown did not report earnings received from Enviroquip in the 1985 return. I. Contentions of the Parties Respondent first contends that the record reveals Brown has "clearly engaged in a scheme to defraud City Disposal and to misuse the Board's processes" and he should therefore be denied any backpay under the ration- ale expressed in Ad Art, Inc., 280 NLRB 985 (1986), and American Navigation Co., 268 NLRB 426 (1983). Second, it contends Brown "had a legal duty to accept the Best Wrecking job" and he should receive no backpay while that job lasted, or at minimum until such time as other comparable or better employment arose. Third, it con- tends Brown's job at Detroit City Dairy was comparable to his job at City Disposal and he should be denied back- pay from 3 July 1980 until 7 September 1983 because he quit the Detroit City Dairy job for invalid reasons and did not obtain comparable employment until he was hired by Reitzloff Disposal. Finally, it contends Brown should not be awarded backpay for quarters 3 and 4 of 1983, or for quarters 1 and 2 of 1985 because he inten- tionally failed to report interim earnings during those quarters. Regarding computation of any backpay, Re- spondent contends the formula used by the Regional Office is inappropriate; that the correct formula would entail use of the gross earnings of all seven drivers em- ployed by City Disposal during the backpay period. The General Counsel contends the formula used to compute backpay due is appropriate . As reflected by the backpay specification, as amended, he contends Brown should be denied backpay as a result of refusing the Best 21 See R. Exh. 18. 417 Wrecking employment from only 1 June 1979 until he obtained employment at Plymouth Hill during quarter 1 of 1980. He contends that from quarter 1 of 1980 until the end of the backpay period, Brown should be award- ed the amounts indicated as due and owing in the back- pay specification. Analysis and Conclusions In Great Plains Beef Co., 255 NLRB 1410 (1981), and M. J. McCarthy Motor Sales Co., 147 NLRB 1605 (1964), the Board denied all backpay to discriminatees who had persisted in the concealment of earnings when the Board also found their deception constituted an abuse of the Board's processes and rendered the ascertainment of in- terim earnings impossible. Subsequently, in American Navigation Co., 268 NLRB 426 (1983), the Board stated at 428 We think that in fashioning a remedy in cases where a discriminatee has intentionally concealed employment from the Board, two matters must be considered : (1) the Respondent's liability for the consequences of its unlawful conduct , and (2) the Board's administration of its compliance proceed- ings consistent with the public interest. In American Navigation , the Board indicated (fn. 6 at 428) that it would continue to deny all backpay to claim- ants whose intentionally concealed employment cannot be attributed to a specific quarter or quarters because of the claimant's deception . It found, however, that the fol- lowing principles are appropriate when the concealed employment can be attributed to specific quarters (at 428) We find that a remedy which denies backpay for the quarters in which concealed employment oc- curred will discourage claimants from abusing the Board's processes for their personal gain and will also deter respondents from committing future unfair labor practices. This remedy will be applied, of course, only in cases where the claimant is found to have willfully deceived the Board, and not where the claimant, through inadvertence, fails to report earnings. In Ad Art, Inc., supra, the Board affirmed Judge Ta- plitz' decision and order which denied a discriminatee any backpay when the judge found that "Wydner abused the Board's processes by withholding relevant evidence, by testifying falsely, by destroying records to cover up his misstatements, and by attempting to prevent a witness from testifying truthfully." In affirming the judge's find- ing, however, the Board again indicated that, as a gener- al rule, the Board should deny backpay for only those quarters in which a discriminatee intentionally concealed interim earnings from the Board. In the instant case, the quarters during which Brown may have concealed interim earnings are readily ascer- tainable. Thus, the record reveals Brown asserted in the application he filed with Midwestern Distribution on 11 August 1980 that he was employed by W. L. Moore 418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Trucking from 27 May 1979 to 10 April 1980; it reveals through residential loan applications, requests for verifi- cation of employment forms, and applications for auto- mobile loans that Brown may have been employed by Reitzloff Disposal as early as quarter 1 or 2 of 1982; it reveals that although working under the alias James Hunter, Brown failed on 5 April 1984 to report interim employment at Reitzloff Disposal to the Regional Office, and he thereafter failed to report interim earnings at Reitzloff applicable to quarters 3 and 4 of 1983, when he provided interim earning information for calendar years 1984 and 1985 and; it reveals he failed to report Enviro- quip earnings received at undisclosed times during late 1984 and the first three quarters of 1985. During his testimony, Brown explained the W. L. Moore Trucking entry on his Midwestern application by claiming he indicated he was employed by Moore from late May 1979 until 10 April 1980 simply to establish the fact that he had truckdriving experience . He denied he actually worked for W . L. Moore during the period in- dicated, and Respondent offered no evidence to disprove his claim. Although I found much of Brown's testimony to be suspect, and I am reluctant to credit his uncorro- borated testimony, I am unwilling to find the record re- veals Brown was employed by W. L. Moore during the above-described period and that he earned moneys that he intentionally concealed . In short, I credit his assertion that he did not actually work for W . L. Moore during the period described. Similarly, I find unconvincing the indications in Re- spondent's Exhibits 7 through 11 that Brown may have been employed by Reitzloff as early as the first or second quarter of 1982. Kevin Reitzloff credibly testified Brown was not employed by Reitzloff until 7 September 1983. Although it appears Brown and/or Young supplied prospective lenders with false information to induce them to lend him money when completing the loan ap- plications placed in the record , I am unwilling to find he was actually employed by Reitzloff or was paid moneys by that firm prior to 7 September 1983. Although Brown denies he sought to conceal the fact that he was employed by Reitzloff during quarters 3 and 4 of 1983, the record convinces me the discriminatee in- tentionally sought to conceal his interim earnings during those quarters. As indicated , supra, Brown obtained em- ployment at Reitzloff using the alias James Hunter and he failed completely when completing a backpay ques- tionnaire on 5 April 1984 to indicate he was then em- ployed by Reitzloff. The record establishes to my satis- faction that he thereafter directed Kevin Reitzloff to supply the Regional Office with his 1984 and 1985 earn- ings only, and informed Reitzloff to indicate his name as James Brown rather than James Hunter when supplying the information. Significantly, the record reveals Brown failed to report his 1983 earnings while employed by Reitzloff Disposal in his 1983 Federal income tax return. Moreover, the record reveals he failed to indicate to Regional Office personnel that he had used the alias James Hunter in concerning his employment until some undetermined time in 1985 or 1986. Additionally, I note Brown failed to indicate, when he was asked to complete a second backpay questionnaire on or about 25 July 1985, that he had earnings while employed by Reitzloff in 1983 that he had not revealed to the Regional Office . Finally, I note Brown's 1983 earnings while employed by Reitzloff did not become known until Respondent 's counsel obtained information from Reitzloff pursuant to subpoena in early February 1986. In the circumstances described, I find Brown intentionally sought to conceal his earnings while employed by Reitzloff Disposal during quarters 3 and 4 of 1983. In accordance with the rule set forth in Ameri- can Navigation Co., supra, I find the discriminatee is enti- tled to no backpay for quarters 3 and 4 of 1983. Turning to earnings received by Brown from Enviro- quip Corporation, the record reveals the discriminatee received $200 on an unstated number of occasions com- mencing in late 1984 or early 1985 for driving equipment to or from Knoxville, Tennessee. The earnings were not reported to the Regional Office, and they were not in- cluded in the Federal income tax returns filed by Brown for years 1984 or 1985. Although Brown testified he as- sumed his Enviroquip earnings were included in W-2 statements supplied him by Reitzloff Disposal , he indicat- ed during his testimony he was aware that the checks given him by Enviroquip were drawn on that corpora- tion's bank account . Moreover, although he claimed he could not recall how many trips he made or when they were made, he admitted one trip must have been made during a holiday period, possibly in July 1985. In my view , Brown was legally obligated to ascertain and report the extent of his earnings when performing work for Enviroquip. That information was available to the discriminatee at the time of the hearing, but he made no attempt to produce it to enable the Regional Office and/or undersigned to compute the backpay due him during quarter 4 of 1984 and quarters 1, 2, and 3 of 1985. I conclude the earnings were intentionally concealed, and find no backpay should be awarded to Brown for the quarters indicated. A. The Failure to Accept or Retain Comparable Employment In Mastro Plastics Corp., 136 NLRB 1342 (1962), the Board discussed the result that obtains when a discrimin- atee refuses an offer of comparable employment, stating at 1350 Finally, 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. Earlier, in Knickerbocker Plastics Co., 132 NLRB 1209 (1961), the Board indicated how the backpay of a claim- ant who incurred willful loss of earnings would be af- fected, stating at 1215 We further find that , as a result of such quitting, each of these claimants shall be deemed to have earned for the remainder of the period for which each is awarded backpay the hourly wage being CITY DISPOSAL SYSTEMS earned at the time such quitting occurred. There- fore, an offset computed on the appropriate rate per hour will be deducted as interim earnings from the gross backpay of each of these claimants. This offset shall be made applicable from the date of the unjustified quitting throughout the remainder of the backpay period for each particular claimant. In this connection, where the claimant has secured other employment during the time that the offset is appli- cable, and if, on a quarterly basis, she earned a greater amount than the offset, the offset will not be applied, but the actual interim earnings will be de- ducted from gross backpay. If she earned less than the offset at employment secured subsequent to the quitting, also on a quarterly basis, the amount of the offset will be applied. Recently in KSLM-AM & KSD-FM, 275 NLRB 1342, 1343 (1985), the Board reaffirmed the continuing offset against gross backpay rule citing Knickerbocker Plastics Co., supra. The facts in the instant case cause me to conclude that Brown incurred willful loss of earnings on two occasions during the backpay period. He first incurred what I deem to be willful loss of earnings when he refused the driving job offered him by Best Wrecking.22 As indicat- ed, supra, Brown was employed by Detroit City Dairy in April 1980, and he quit that job on 2 July 1980, alleg- edly because that company refused to give him a raise. Noting that Brown had completed his probationary period at Detroit City Dairy and that he was making $7.20 an hour when he quit,23 I find his quitting of the Detroit City Dairy job was unjustified, and that by quit- ting he thereby incurred willful loss of earnings. Having reached the conclusions stated above, I must next decide how to apply the principles set forth in Knickerbocker Plastics and American Navigation to the in- stant facts. Obviously, the earnings Brown could have expected to receive if employed by Best Wrecking cannot be offset against his actual earnings during the entire backpay period because the record reveals Best Wrecking had no jobs for truckdrivers in Detroit after the second quarter of 1982, and its Minnesota work was completed by the fall of 1984. In my view, the willful loss of earnings attributable to the discriminatee's refusal of the Best Wrecking offer ended when Best Wrecking's Detroit drivers were transferred to Minnesota. No one knows whether Brown would have accepted employ- ment out of his normal job market area , and I am dis- posed to resolve that issue in the discriminatee's favor and find that work for him with Best Wrecking was not available after the end of the second quarter of 1982. Noting that S. Mardigan testified Brown would have been second in seniority had he accepted the May 1979 job offer, and further noting that he indicated Brown's earnings through the second quarter of 1982 would have 22 The General Counsel clearly concluded that Brown refused an offer of a comparable job by Best Wrecking in May 1979. As indicated, supra, I do not credit Brown's claim that he was not qualified to operate Best's equipment. 23 Brown 's hourly rate when he was terminated by City Disposal was $6.50 419 been approximately the same as the earnings experienced by driver Brousseau, I find the moneys earned by Brous- seau in each quarter during the period extending from 1 June 1979 through 30 June 1972 should be used as an offset to be deducted as interim earnings from gross backpay.24 Having concluded the willful loss of earnings resulting from the refusal of the Best Wrecking offer should not extend beyond 30 June 1982, I turn to the willful loss in- curred by Brown as a result of his unjustifiably quitting the Detroit City Dairy job. As indicated , supra, after leaving Detroit City Dairy, Brown drove for Midwest- ern Distribution until 28 December 1982. He was dis- abled and unavailable for work while receiving work- men's compensation from 28 December 1982 until 13 February 1983. Thereafter, he claims he was unemployed until he was hired as a driver by Reitzloff Disposal on 7 September 1983. Finally, he remained employed by Reitzloff Disposal from 7 September 1983 through the end of the backpay period-18 July 1985. Although the General Counsel claims Brown is enti- tled to the difference between his actual earnings and the estimated earnings he would have received had he re- mained employed by City Disposal (plus expenses) during calendar years 1982, 1983, 1984, and through 18 July 1985, I find the earnings he could have expected to receive had he not quit the Detroit City Dairy job should be offset against his actual interim earnings from 1 July 1982 forward . In this connection, in addition to the fact that I have concluded Brown incurred willful loss of earnings by quitting the Detroit City Dairy job, I note the record clearly reveals Detroit City Dairy needed and advertised for drivers throughout the period 1 July 1982 to 18 July 1985.25 Moreover, Brower, that company's controller, testified Brown was considered reemployable by his firm even though he had quit July 1980. In the situation described , I find it reasonable to assume that Brown would have been rehired by Detroit City Dairy if he had sought reemployment with that company. Even in the absence of that record evidence which reveals Brown unjustifiably quit his Detroit City Dairy job, I would find he incurred willful loss of earn- ings by failing to seek reemployment with that company after he lost his Midwestern Distribution job. In sum, for the reasons stated , I find Brown incurred willful loss of earnings during the entire period extending from 1 June 1979 through 18 July 1985 . I conclude the estimated earnings he would have received had he ac- cepted the Best Wrecking job should be used as an offset from 1 June 1979 through 30 June 1982, and that the es- timated earnings he would have received had he re- mained employed by Detroit City Dairy should be used as an offset from 1 July 1982 through 18 July 1985. B. The Formula The formula used by the General Counsel to deter- mine gross backpay was based on the weekly gross earn- 24 Appropriate calculations are set forth, infra 2' See R Exh. 20, which reveals Detroit City Dairy advertised for drivers, inter aha, on 7 March 1982, 16 May 1982, and 27 June 1982 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ings of what the Region deemed to be a representative group of four respondent drivers. Vacation moneys re- ceived by the drivers were included, but no allowance was made for time drivers spent away from work on va- cation because Respondent's records do not reveal when vacations were actually taken by drivers. 26 When a driver failed to work at least 24 of 40 hours in a work- week, or earned less than 60 percent of the average weekly gross salary of drivers in the representative group, no gross earnings for that driver were included in the computation of average gross earnings for that week. Respondent contends the formula used was inappropri- ate because vacation moneys were included in the com- putation, and the representative group was inappropriate. It contends the appropriate formula should be based on the gross earnings of all seven drivers employed by Re- spondent during the backpay period. In the alternative, it contends the Region erred by using an inappropriate rep- resentative group; that the appropriate group would be composed of the two drivers more senior than Brown and the two drivers who were immediately less senior. In either computation , it would exclude vacation pay as it contends inclusion of such payments artificially inflates the resulting weekly gross earnings of employees. Its pre- ferred formula would ignore the so-called 60-percent rule and divide the weekly gross salaries of all drivers by seven to obtain the average weekly gross salary figure. Its alternative formula would follow the same procedure, but it would have me use seniority as described rather than the four drivers used by the Region. It notes that the four drivers used by the Region in its representative group (Collins, Hamilton, Davis, and Scott) earned more than its remaining three drivers, and each of the employ- ees included in the Region's representative group were junior to Brown in seniority. Field Examiner Marion Muma, the individual who was primarily responsible for preparing the backpay specifi- cation, testified the Region decided to use the above- named drivers as its representative group because she was under the impression Collins and Hamilton were more senior than Brown, while Davis and Scott were less senior. She explained she based her supposition on a list of drivers that Respondent supplied that had the names of Collins and Hamilton immediately above Brown's name, and the names of Davis and Scott imme- diately below the discriminatee's name. Although Muma testified the list she used had been supplied by Respond- ent, Respondent's counsel established that Respondent's payroll records that were supplied to the Region and were placed in the record as Respondent's Exhibit 1 con- tain the dates of hire of the drivers and reveal that each driver in the representative group used by the Region is junior to Brown.27 Additionally, the records reveal the gross wages received by Collins, Hamilton, and Davis during the backpay period were higher than those re- ceived by Travis, Hill, and Johnson.28 The General Counsel defended the Region's decision to include vacation pay in its computations without at- tributing such payments to weeks drivers were actually absent from work for vacation by observing it was unable to determine when , if ever, employee absences were attributable to vacation . It is undisputed that such information cannot be gleaned from inspection of Re- spondent's records. Although Respondent is factually correct when it contends that inclusion of vacation pay- ments with the gross weekly salary of a driver during a given workweek inflates the average weekly gross back- pay figure used by the Region in weeks when vacation payments were made, inclusion of such payments would appear to distort the amount of backpay due Brown very little if the matter is viewed on an annual basis . This is true because Brown was also entitled to vacation pay and the amount he would have been entitled to receive would have been an amount very close to the sum total of the vacation moneys that are included in the Region's calculations. Although Muma admitted during her testimony that the Region was of the view, when preparing the backpay specification, that the two drivers more senior than Brown, and the two drivers just below him in seniority would be a representative group, the General Counsel made no attempt during or after the hearing to recalcu- late gross backpay by using the earnings of Travis, Hill, Johnson, and Collins, rather than Collins, Hamilton, Davis, and Scott. Instead , in his brief, the General Coun- sel contends that, during his period of employment prior to his discharge, Brown was the second highest earner employed by Respondent and the Region could have jus- tifiably utilized only Davis' earnings to determine gross backpay due during the backpay period as he was the second highest paid employee during the period. That being the case, he argues Respondent should not be per- mitted to complain because the use of weekly earnings of the four employees in the representative group used pro- duces figures that are more favorable to Respondent than those that would have resulted had Davis' wages only been utilized. Inspection of Respondent 's pay records re- veals Brown was Respondent's highest paid driver in 1977 and he was its second highest paid driver in 1978.29 After careful review of the record, I conclude the for- mula used by the Region to estimate weekly gross back- pay is an appropriate formula . Noting the record reveals Respondent utilizes an incentive system to compensate its drivers, it is clear it would be impossible to predict the precise monetary gross weekly earnings Brown would have earned during each week of the backpay period be- cause his earnings would have been determined by the 26 Drivers are entitled to take their vacation pay without taking days off as vacation time, and the record reveals many driven exercise that right 2' The record reveals the dates of hire for the seven drivers and Brown are Travis, 3 March 1972, Hill, 9 October 1973; Brown, I No- vember 1976; Johnson, 27 December 1976, Collins, 3 January 1977, Ham- ilton, 7 November 1977; Davis, 10 April 1978, and, Scott, I I November 1978 26 See R Exh 3. which shows the gross wages during the entire period to be: Travis, $151,691; Hill, $151,783, Johnson, $152,738; Collins, $157,856. Hamilton, $189,171; Davis, $171,949, and, Scott, $146,627 29 See R. Exh I. The figures for 1977, rounded off to whole dollar amounts, are: Travis-$15,063, Hill-$16,140; Brown-$23,263. Johnson- $19,420, Collins-$16,936; and Hamilton-$11,297 The figures for 1978 are: Travis-$16,956; Brown-S22,409, Johnson-$17,335; Collins-$18,629; Hill- $19,173; Hamilton-S26,750, Davis-$12,750; and, Scott-$1162 CITY DISPOSAL SYSTEMS number of loads he hauled . The record reveals, however, that he was a hustler while employed by Respondent, as evidenced by the fact that he was the highest paid driver in 1977 and was the second highest paid driver in 1978. That being the case , I find the representative group used by the Region was an appropriate representative group. Similarly, my review of the record causes me to con- clude that the Region was justified in using its 24-hour and/or 60-percent rule in making its calculations . In this respect, the record reveals that some of the drivers em- ployed during the backpay period experienced lengthy absences from work . 3O On the other hand, it •reveals that Brown missed no time whatsoever during calendar year 1978, and he missed no work in 1979 through the date of his discharge . Patently, it would be unfair to include lengthy absences of drivers employed during the back- pay period when computing the weekly gross backpay Brown would have probably earned . Finally, as noted, inclusion of vacation moneys in the Region's formula did not materially distort the estimated weekly gross back- pay that would have been earned by Brown as he, too, was entitled to vacation pay in the approximate amount that was entered into the calculations. For the reasons stated, I find the formula utilized by the Region to compute estimated weekly gross backpay was appropriate. C. Calculation of Backpay Due In accordance with the above stated findings and con- clusions, the backpay due James Brown is computed in the manner set forth. Since the record merely reveals Brown was offered a job by Best Wrecking in May, and the specific date the offer was made was not established, I resolve the result- ing ambiguity in favor of the discriminatee and treat the offer as having been made on 31 May 1979. If the offer had been made at that time, Brown would have normally commenced work with Best Wrecking on 1 June 1979. In the situation described, the discriminatee would be en- titled to the net backpay for quarter 2, 1979, set forth in the backpay specification , as amended. Regarding to quarters 3 and 4, 1979, all quarters in 1980 and 1981 , and quarters 1 and 2, 1982, the actual quarterly earnings of Best Wrecking employee Steve Brousseau will be used as an offset that is deducted as 30 See schedule A of the backpay specification, which reveals, inter alia, the following employee absences. 1979-Scott-16 weeks, Collins- 8 weeks, 1980-Scott-7 weeks, 1981-Collins-11 weeks, Scott-4 weeks, 1982-Davis-3 weeks; 1984-Hamilton-15 weeks; 1985- Davis-4 weeks. 421 interim earnings from the gross backpay amount set forth in the backpay specification, as amended, with the fol- lowing exception. As the record reveals, Brown was in- capacitated during the period extending from 29 Decem- ber 1981 through 12 February 1982, and received work- ers compensation for that period ; no backpay is awarded for the six week period described. Regarding to quarters 3 and 4, 1982, and all quarters in 1983, 1984, and 1985, with the exception of those quar- ters during which I have concluded no backpay is due because Brown intentionally concealed earnings, the record reveals Detroit City drivers worked •60=65 hours a week and earned the following hourly 'rates: 1982- $7.80; 1983-$7.90; 1984-$8; and 1985-$8.25. Accord- ingly, I compute the offset for the applicable periods by using the following formula: hourly rate x 40 + 1 hourly rate x 20 x 13 = quarterly interim earnings/offset. For the reasons stated, I compute the net backpay due James Brown, excluding interest, is as follows Period Gross Backpay Interim Earnings/Offset Net Backpay 1979/2 $1,124.45 0 $1,124.45 1979/3 5,839.92 $7,324.25 0 1979/4 6,253.50 5,716.50 564.21 1980/1 5, 108.45 6,347.77 0 1980/2 5,802 .67 7,665.00 0 1980/3 6,012.35 6,573.00 0 1980/4 6,253.50 4,093.96 2,159.54 1981/1 5,935.64 6,648.19 0 1981/2 7,036.79 7,058.75 0 1981/3 7,096.83 8,278.64 0 1981/4 7,409.86 7,571.04 0 1982/1 6,162.34 4,762.08 1,400.26 1982/2 7,625.38 6,210.44 1,414.94 1982/3 7,799.53 7,098.00 701.53 1982/4 7,043.29 7,098.00 34.42 1983/1 313,162.00 7,189.00 0 1983/2 7,247.17 7,189.00 58.17 1984/1 7,148. 10 7,280.00 0 1984/2 8,407.09 7,280.00 1,127.09 1984/3 7,811.59 7,280.00 531.59 Total $9,416.20 Accordingly,S1 I find the total backpay due Brown by Respondent is $9416 .20, exclusive of interest. [Recommended Order omitted from publication.] 3, Gross backpay figure set forth in G.C. Exh. 2 reduced by $2707 which represents 6 weeks during which discriminatee was incapacitated and received workers compensation.