American Pacific Concrete Pipe Co., Inc.

AMERICAN PACIFIC PIPE CO. American Pacific Concrete Pipe Company, Inc. and General Truck Drivers, Warehousemen and Helpers Union 467, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Case 31-CA- 10098 July 29, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, BABSON, AND CRACRAFT On February 22, 1985, Administrative Law Judge Clifford H. Anderson issued the attached supplemental decision. The Respondent and the General Counsel filed exceptions and supporting briefs, and both parties filed answering briefs.2 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,3 and conclusions,4 to modify the remedy,5 and to adopt the recommended Order as modified. 1 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 Respondent has requested oral argument The request is denied as the record, exceptions , and brief adequately present the issues and the positions of the parties. 9 The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings 4 We agree with the judge that it is impossible to reconstruct Robert Craig's interim earnings because of his testimonial inconsistencies, the commingling of his personal and business affairs, and the lack of suffi- cient credible evidence to establish or even reasonably approximate income received during the interim periods . The judge concluded that Craig received substantial income that the record does not address. In ad- dition, the record shows that Craig received interim income in the form of cash payments, the amount of which we are unable to determine with certainty We agree with the judge's treatment of Boothby's supplementary income, including the vacations Boothby took that the judge failed to mention in his decision . We find NLRB v. Mercy Peninsula Ambulance Service, 589 F.2d 1014 (9th Cir. 1979), on which the Respondent relies, distinguishable. Boothby's backpay period extended almost 39 months. He was employed in various jobs for 20 months during the period In addition to Boothby's 59 specific attempts to find work , the judge cred- ited Boothby's statement that the compliance forms did not reflect all the employers he contacted . We agree with the judge's finding that Boothby's search easily meets the Board's due-diligence standards and that the Respondent did not establish that he failed to mitigate his losses. Moreover, in Mercy, the court relied on several factors to deny en- forcement of the Board's backpay order , including the claimant's state- ment that he could have obtained employment after his discharge but chose not to do so. The court was unimpressed with "the quantity and the quality of (the claimant's) efforts and the fact that they were executed with such disinterest." Mercy, supra at 1019 In. 6 Unlike the Mercy claim- ant, who had no interim employment , Boothby was employed for over half his backpay period , and there is no evidence that his attempts to find work were disinterested or insincere. 5 In accordance with our decision in New Horizons for the Retarded, 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 623 The judge found that although the Respondent paid Donald Roland $20,000 to settle his backpay claim, Roland is entitled to additional backpay be- cause the General Counsel did not approve the set- tlement agreement. The Respondent argues that the settlement was an accord and satisfaction barring litigation on Roland's backpay issue. We agree with the Respondent. On November 23, 1983, a month before the present backpay specification proceedings began, Roland, the Respondent, and the Union signed an agreement waiving Roland's backpay claim against the Respondent in return for $20,000 from the Re- spondent. The judge expressly found in footnote 14 of his decision that the circumstances surrounding the backpay waiver were not coercive and Roland freely entered into the settlement. The General Counsel, who was apparently unaware that Roland had relinquished his backpay claim, subsequently refused to approve the settlement agreement. In rejecting the Respondent's accord-and-satis- faction defense, the judge relied on Michael M. Schaefer, 261 NLRB 272 (1982), enfd. 697 F.2d 558 (3d Cir. 1983), which held that backpay is a public, not a private right, which only the Board or the Regional Director may settles In Independent Stave Co., 287 NLRB 740 (1987), however, we re- cently held that in evaluating non-Board settle- ments the Board would examine all the surround- ing circumstances including whether the charging party, the respondent, and the discriminatee had agreed to be bound, and the General Counsel's po- sition regarding the settlement ; whether the settle- ment was reasonable in light of the alleged viola- tion, the risks of litigating the issue, and the stage of litigation; whether fraud, coercion, or duress were present; and whether the respondent has a history of violations or has breached previous set- tlement agreements. At the outset, we recognize that the Independent Stave settlement occurred shortly after the com- plaint issued and before adjudication of the issues, and that the present case arose after Roland's dis- as set out in the 1986 amendment to 26 U.S.C. § 667. 1. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.SC § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 6 In enforcing the Board's Order in Schaefer, the court held only that, under the facts of that case , the Board did not abuse its discretion in re- fusing to defer to two private settlement agreements. The court acknowl- edged that the Board and court authority exists approving "private settle- ment agreements negotiated in good faith involving mutual concessions and benefits." 697 F.2d at 561. The judge observed that in Stevens Ford, 271 NLRB 628, 632 (1984), an administrative law judge , with Board approval , cited Schaefer. The fac- tors in Stevens Ford, however, reveal that no private settlement agree- ment was ever negotiated. 271 NLRB at 630, 632. Therefore, reliance on the Schaefer doctrine was unnecessary to support the result the Board reached 290 NLRB No. 77 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charge had been fully adjudicated and found to be an unfair labor practice. Although liability is estab- lished and the only issue now before us is the back- pay amount due Roland, backpay litigation also en- tails risks and uncertainties that must be considered in evaluating the appropriateness of accepting a set-. tlement agreement in lieu of pursuing further litiga- tion. For example, a backpay claim cannot be per- fected if it is shown that the discriminatee failed to mitigate losses, or the discriminatee's testimony about his interim employment is discredited. Fur- ther, issues regarding the validity of reinstatement offers or the discriminatee's fitness for re-employ- ment can be and often are resolved against discri- minatees in backpay litigation. Even if the discri- minatee prevails at every step of the process, and in every particular of his backpay claim, he often must wait years to receive any backpay. If, in the interim, the employer's business has declined, the discriminatee may receive less than he won through litigation. These hazards are present to varying extents in all backpay litigation. Here, the General Counsel contended that the Respondent owed Roland $41,502, but the Re- spondent countered that it owed him nothing be- cause he allegedly failed to diligently seek interim employment and misrepresented his interim earn- ings. The record does not disclose precisely why Roland agreed to settle for $20,000, but the cred- ited testimony of Union Business Agent Norman Holman establishes that in the settlement discus- sions, inter alia, the Respondent asserted that the interim employment list Roland submitted to the unemployment office was inconsistent with the list Roland submitted to the General Counsel; Roland ascertained that the judge's decision was subject to appeal by the Respondent; and Holman asserted, in response to a question from Roland, that the Re- pondent had lost money in 1983. Consequently, when Roland agreed to accept about half the back- pay the Respondent owed him in theory, he was aware that the Respondent was prepared to chal- lenge his evidence, the outcome before the judge was not necessarily final, and the Respondent's fi- nancial condition could make a future award prob- lematic. Thus, Roland was informed of the full range of possibilities that could result from further litigation of his backpay claim. On the one hand, he knew that the General Counsel claimed that he was owed $41,602 and, on the other hand, he knew of the potential risks posed by the Respondent to actually obtaining a full backpay award. We conclude that the settlement agreement meets the standard set forth in Independent Stave. First, the Charging Party, the Respondent, and the discriminatee have agreed to be bound. Further, the parties most directly interested in assuring that Roland's rights be vindicated-Roland and his Union-voluntarily agreed to release Roland's backpay claim in exchange for $20,000.7 Second, the parties executed the settlement agreement about a month before the backpay hearing began, and the settlement was reasonable considering the uncer- tainties inherent in litigation . Third, the judge ex- pressly found that there was no coercion exerted in obtaining Roland's backpay waiver. Finally, there are no additional circumstances that might lead us to question the settlement , such as alleged history of violations or breaching of prior settlement agreements. Under all the circumstances , we con- clude that honoring the parties ' agreement ad- vances the Act's purpose of encouraging dispute resolution and that, conversely, no overriding public-policy interest would be served by address- ing the backpay issue's. merits. We overrule such cases as Michael M. Schaefer, supra, and Stevens Ford, supra, to the extent they are inconsistent with this ruling. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, American Pacific Concrete Pipe Compa- ny, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete the following from the second para- graph. "Donald Roland $20,375.97" 2. Substitute the following for the third para- graph. "IT IS FURTHER ORDERED that the backpay spec- ification as to Robert Craig and Donald Roland is dismissed." CHAIRMAN STEPHENS, concurring. I concur in the result. ' The General Counsel's position is that because the settlement amount was less than the backpay specification, the Board must refuse to honor the parties' settlement agreement in order to fulfill the Board's public ob- ligation. The amount of recovery, however, is only one of many factors to be considered in determining whether to honor the parties' private agreement. Rachel D. Young, Esq., for the General Counsel. Carlos Bea and Robert W. Richardson, Esqs., of San Fran- cisco, California, for the Respondent. AMERICAN PACIFIC PIPE CO. 625 SUPPLEMENTAL DECISION ties, I make the following findings regarding amounts of money due the listed individuals, without interest: STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. On July 23, 1982, the Board issued its Decision and Order in the above-captioned case.' The Board's Deci- sion and Order was enforced by the United States Court of Appeals for the Ninth Circuit on April 28 , 1983.2 The Decision and Order provided , inter alia: 3. All employees who may have suffered any loss of pay and benefits beginning on April 1 , 1980, shall receive backpay, with interest and benefits, in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). [Footnote omitted.] Because the record is not clear with respect to the particular employees who were recalled or rehired , or when they were recalled or rehired , we will defer such a determination to the compliance stage of the pro- ceeding. 4. All employees who may have been required to pay dues, fees, and moneys pursuant to the collec- tive-bargaining agreement with United Brick and Clay Workers, Local No. 820, shall be reimbursed, with interest, by Respondent. A dispute having arisen , inter alia, over the amount of backpay due certain individuals under the Order 's provi- sion "number 3," supra, and the amount of money due certain individuals in recompense for dues paid under the Order's provision "number 4," supra, on September 23, 1983, the Regional Director for Region 31 of the Nation- al Labor Relations Board issued a backpay specification and notice of hearing, which was subsequently amended both at the hearing and after its close .3 Respondent filed a timely answer, which answer was also amended at the hearing. The matter was heard by me in Los Angeles, California, on various dates in December 1983 and Janu- ary, February, June, and October 1984.4 On the entire record, including posthearing briefs sub- mitted by the General Counsel and Respondent, and from my observation of the witnesses and their demean- or, I make the following FINDINGS AND CONCLUSIONS 1. DUES REIMBURSEMENT The amounts of dues reimbursement alleged in the backpay specification as amended are essentially admit- ted by Respondent. Based on the stipulations of the par- ' Reported at 262 NLRB 1223 (1982). 2 709 F.2d 1514 (mem.). s Portions of the backpay sepcification withdrawn by the Regional Di- rector at the hearing were the subject of litigation under the Equal Access to Justice Act. See American Pacific Pipe Co., 271 NLRB 1171 (1984), reversed 788 F.2d 586 (9th Cir. 1986). 4 Unfortunately the trial was posponed on several occasions because of the unavailability of relevant documentary evidence and the emergency unavailability of necessary witnesses. William Martin5 $368.38 Robert Bornemann 428.26 Bobby Record 368.38 Ezell Record 378.28 Selvie Cole 15.00 Dennis Lilly 90.00 Robert Delgado 130.00 Jess Fernandez 80.00 If. BACKPAY A. Gross Backpay Determination There were three backpay claimants at issue : Charles Boothby Jr., Robert E. Craig, and Donald E. Roland. There was no dispute that their backpay period com- menced on April 1, 1980, and extended through June 18, 1983. The General Counsel established, and Respondent does not dispute, the propriety of the backpay specifica- tion's backpay formula and the application of that formu- la to the three individuals involved here to produce gross backpay calculated on a quarterly basis . Accord- ingly, the gross backpay calculations as alleged in the backpay specification, as amended, are found to be cor- rect. B. Deductions from Gross Backpay The parties closely litigated a variety of issues con- cerning each of the backpay claimants.6 The complexity of the legal and factual arguments as well as the differing situations and circumstances of the claimants make it ap- propriate to discuss the contentions regarding each claimant separately. 1. Charles Boothby Jr. a. Argument and evidence Respondent challenges the General Counsel's backpay claim for Charles Boothby on several grounds . Initially Respondent asserts Boothby failed to mitigate his dam- ages by actively seeking employment . Respondent fur- ther contends that Boothby's income during the backpay period as a housekeeper and as a beekeeper and as a member of the United States Air Force Reserve should be offset against any backpay due. Respondent argues that the failure to report such income in the proper manner requires that Boothby be penalized by denying him additional moneys otherwise due. Finally, Respond- s The parties stipulated the amount due and owing William Martin, with the following disagreement. The General Counsel contended that the noted sum alleged in the backpay specification is correct . Respondent argued that the General Counsel's amount was $10 too high because of an arithmetic error. There is no evident arithmetic error in the backpay specification regarding Martin. Inasmuch as Bobby Record's period of employment was identical to Martin, who was stipulated to be entitled to $368.38, 1 conclude that the larger amount is correct. " In addition to the disputed amounts discussed, infra , the parties did not dispute the existence of certain interim earnings and expenses. Where not separately discussed, the earnings and expenses used here were admit- ted, stipulated, or supported by unchallenged, credible evidence. 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent raises a variety of additional defenses as will be dis- cussed infra. Concerning Respondent's claim that Boothby failed to mitigate his damages, Respondent argues that Boothby did not actively seek employment during the period. Boothby testified that he sought work from various em- ployers during the backpay period, which efforts were at least in part reflected on the Regional Office compliance forms he prepared pursuant to the instructions of the Re- gional compliance officer. Respondent adduced evidence from certain agents of the employers that Boothby testi- fied he contracted his employment search. In some cases, Respondent established that particular employers main- tained a policy requiring all job seekers to file written applications but that no Boothby application could be found in the files. Concerning the Riverside Transit Agency, an employer Boothby asserted he contacted re- garding employment, Respondent adduced evidence that at the relevant time Riverside Transit had a position available and that its practice was to list all job appli- cants on a log, which log contained no entry of Boothby's having ever applied for the position. Respond- ent further adduced evidence that with respect to at least one job application submitted by Boothby to Riverside Community Hospital, Boothby indicated he would not accept night or weekend work. In rebuttal, Boothby testified that in his employment search he did not in each case submit an application or physically visit the employer's premises. Thus, for exam- ple, with respect to Riverside Transit, Boothby testified he had a telephone conversation with an employer's agent in which he identified himself as a job seeker with truckdriving experience and was told that he need not apply for the available position because busdriving was required. Boothby received income through the backpay period associated with his activities as a beekeeper from the sale of beekeeping equipment, honey, the lease of bees, and receipt of pollination fees. The General Counsel con- tends that these revenues were supplementary income re- sulting from a longstanding hobby that had been main- tained before the commencement of the backpay period, including the period of Boothby's employment with Re- spondent. Thus, the General Counsel alleges the income should not be considered as an offset to Respondent's backpay liability. Respondent contends first that the income should be deducted from any backpay obligation and, second, that Boothby's failure to disclose this income should be a factor in evaluating his credibility and should result in a penality being assessed for the wrongful withholding of such information. The General Counsel rejoins that the beekeeper income was not con- cealed but rather was not deemed by the General Coun- sel to be an offset to backpay. Respondent argues that Boothby's annual 2-week active tour-of-duty with the United States Air Force Re- serve constitutes a withdrawal from the job market for the period served. Respondent makes a similar argument with respect to a 2-week vacation undertaken by Boothby in August 1980. The General Counsel contends that service with the United States Air Force Reserve, even if not mandatory in the sense that application could be made for alternative means of serving, was undertak- en during Boothby's employment with Respondent and hence could properly be continued during the backpay period without penalty to backpay recovery. Further Respondent contends that the fact that Boothby sought medical care during what would have been working days if he was employed by Respondent removed him from being available to work on those days, thus justifying a proportional reduction in backpay. So too, Respondent contends that the backpay specifica- tion wrongfully includes health maintenance organization medical insurance premiums for the first two quarters of 1983 because Boothby's interim employers during that time maintained their own medical plans. b. Analysis and conclusions (1) Boothby's search for employment It has long been clear that an employer may mitigate its backpay liability by establishing that the backpay claimant "will fully incurred" losses by a "clearly un- justifiable refusal to take desirable new employment." Phelps Dodge v. NLRB, 313 U.S. 177, 199-200 (1941). To establish such mitigation the employer's burden is to show that the individual "neglected to make reasonable efforts to find interim work." NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 575-576 (5th Cir. 1966). Suc- cess is not the measure of sufficiency of the discrimina- tee's search for interim employment; the law "only re- quires honest good faith effort." NLRB v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955). "While the evi- dence may leave a question whether [the backpay claim- ant] could have been more diligent in seeking other em- ployment, the highest standard of diligence is not re- quired and doubts must be resolved against Respondent." Otis Hospital, 240 NLRB 173, 174 (1979). In determining if the backpay claimant made a reason- able search for employment, the entire record must be considered in the context of the claimant's search over the entire backpay period. Highview, Inc., 250 NLRB 549 (1980); Saginaw Aggregates, 198 NLRB 598 (1972); Nickey Chevrolet Sales, 195 NLRB 395, 398 (1972). Uncertainty in the evidence is to be resolved against the wrongdoer. NLRB v. Miami Coca-Cola Bottling Co., supra. Boothby's testimony with respect to his job search was credible and not effectively challenged by Respondent's evidence. Respondent contended that Boothby's outside income and his domestic circumstances should justify an inference of lack of motivation and diligence in seeking work. The Board has explicitly rejected such an argu- ment in Fibreboard Paper Products Corp., 180 NLRB 142, 148 (1969). Respondent further argues that its unchal- lenged evidence that in some cases Boothby did not ac- tually receive or submit completed job applications to employers and, on at least one occasion, limited his job search to positions requiring work only during normal business hours and weekdays, impugns his credibility, and reveals a less-than-efficient job search. I find Boothby's testimony consistent with Respond- ent's evidence for Boothby did not testify that he in each case left an employment application. Rather he testified AMERICAN PACIFIC PIPE CO. that he inquired of employers regarding availability of work and, when satisfied that no reasonable employment opportunity existed, he pursued the matter no further. Respondent's attempt to impeach Boothby here accord- ingly fails. (See, e.g., Inland Empire Meat Co., 255 NLRB 1306 (1981); Neely's Car Clinic, 255 NLRB 1420 (1981).) With repect to Boothby's job application on which he limited his employment availability to business hours and days, the record does not reflect that Boothby placed such a limitation on any other job application nor does it suggest that work would have been available had he not done so. Further even had Boothby placed such a limita- tion on each job application, it was not unreasonable for Boothby to try to obtain employment on the same basis he had experienced with Respondent. Respondent, who bears the burden in this area, has failed to establish that Boothby behaved unreasonably or with sufficient lack of diligence so as to toll backpay. Considering the entire backpay period as a whole, in- cluding the periods in which interim employment was obtained at a wage rate in excess of that received from Respondent, and further noting that Boothby could not recall all the individual employers whom he contacted, but rather limited his itemization to the employers re- ported to the Board on its compliance forms, I find that Boothby's search for employment during the period easily meets the Board's standards for due diligence and that Respondent's efforts to prove failure of mitigation have failed.7 (2) The issues of supplementary income The beekeeper income Boothby received presents issues of fact rather then law. The parties do not disagree with respect to to the law regarding additional income. Supplementary income received while employed by Re- spondent and continued during the backpay period is not treated as interim earnings deductible from backpay. Cumberland Farms Dairy, 266 NLRB 855 (1983); Kansas Refined Helium Co., 252 NLRB 1156 (1980). Earnings from self-employment are however deductible from gross backpay. The issue then is whether the beekeeping reve- nues received by Boothby during the backpay period constituted a continuation of the supplementary income he had previously enjoyed or was rather and expansion of former supplementary income into part-time work of a type different from that undertaken during his employ- ment with Respondent. Considering the record testimony concerning the origin and amounts of the beekeeper moneys received by Boothby during the backpay period, I conclude that his beekeeping revenues did not constitute income of a kind different from that received during the period previous to the backpay period. Hence, I do not find that the rev- enues constitute an offset or diminution of Respondent's backpay obligation.8 The revenues Boothby received de- r In reaching this decision , I have considered the additional arguments Respondent makes as discussed further, infra. e With respect to beekeeper revenues received by Boothby, I accept the General Counsel's argument that Boothby's failure in some cases to report the bee income was not the result of a wrongful intention to with- hold information that might reduce any ultimate backpay award, but was 627 rived from sales of honey, sales of equipment,9 and the letting of bees for rent and other services. The supplying of these services did not occupy Boothby on a full-time basis nor would it have prevented him from accepting any employment offered. Disregarding the sales of equip- ment, which were in the nature of a divesture, the reve- nues received from Bootheby's beekeeping business during the backpay period, in the context of the record as a whole, convinces me that his beekeeper business re- mained supplementary and did not rise to the level of self-employment as argued by Respondent. I also conclude that Boothby's active duty service in the United States Air Force Reserve during the backpay period does not rise to the level of a dereliction of his duty to search for employment or a withdrawal from the job market sufficient to reduce Respondent's liability. Nor would I find that the moneys received therefrom re- duces Respondent's obligations. It is clear Boothby served his country during his employment with Re- spondent and that he continued to do so on an apparent- ly unchanged basis during the backpay period. The fact that by request his duty time could have been avoided10 is immaterial . Had Boothby continued in Respondent's employ he would not have varied his service pattern. Respondent's wrongful action in terminating him should not, under threat of diminution of backpay recovery, re- quire him to abandon his regular course of conduct with respect to military service. Accordingly, I find Boothby's military service during the backpay period does not reduce Respondent's backpay claim in any way. I reach the same conclusion, given the paucity of evidence on the issue and the burden Respondent bears, on the issue of Boothby's August 1980 2-week vacation. (3) Medical issues With respect to the various days Boothby received medical treatment during the backpay period, I reject Respondent's argument that the mere fact that Boothby obtained such treatments during normal working hours would have precluded him from accepting work during those days, and thus should reduce backpay. The Gener- al Counsel argues, and I agree, that there is no record evidence that Boothby either would have been unable to work on particular days because of his ailments or that, had he been employed, he could not have obtained treat- ment during off-hours or in any other manner not incon- sistent with continued employment. Accordingly, I shall not reduce Boothby's backpay claim as a result of his seeking medical treatments on various days during the backpay period. rather based on a conviction, shared by the General Counsel, that bee- keeper revenues had been supplementary to his income during his em- ployment with Respondent , remained supplementary during the backpay period, and hence did not affect Respondent 's backpay obligation Thus, I do not find the argued failure to report the income to be an adverse factor in evaluating Boothby's credibility or to justify any penalty of Boothby for withholding information relevant to the backpay specifica- tion. a Boothby credibly testified that his need for revenue caused him to sell some of his beekeeping equipment. 10 Apparently through the undertaking of correspondence studies or some other substitute for active service. 628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD At relevant times Respondent maintained a health plan that provided, given certain deductibles, payment for covered medical services. Boothby during the backpay period maintained his own medical insurance through a health maintenance organization. Respondent does not contest recovery of policy premiums for the period when Boothby was not covered by an interim employer's health plan but argues that, because Boothby's employer in the first and second quarters of 1983 had a medical plan, Boothby need not have carried his own plan, thus obtaining double coverage, and hence Respondent should not be obligated for the premiums during that period. I reject Respondent's claim here. Continuity of health care coverage is a matter of concern to all. A backpay claimant need not self-insure or purchase indi- vidual health insurance coverage only for the period(s) of time during which he or she is unemployed and then be forced to drop such coverage during interim employ- ments. Rather, a backpay claimant may, in my view, maintain equivalent health care coverage to that which the discharging employer provided and maintain that coverage through various interim employments even if interim employers offer health care packages of similar coverage. Not to allow such continuous coverage would be to require backpay claimants to change insurance cov- erage numerous times during the course of each year with the concommitant risk of supervening uninsurability through changes in health status. Assigning such an obli- gation and risk to a backpay claimant, given the loss of original health care coverage, which resulted from the discriminating employer's original termination, is unjust and unreasonable. (4) Boothby's financial transactions and credibility Considering the testimony of the backpay claimant in light of the arguments of Respondent, and relying on de- meanor as well as the substantial and unchallenged testi- mony of Boothby as to the bulk of his activity, I find Boothby to be a credible witness who was not effective- ly impeached by Respondent's effort to show a failure of memory or suspicious circumstances regarding his bank accounts and other financial transactions during the backpay period. Having considered the record evidence of these varied transactions and Boothby's admitted con- fusion, mistakes, and omissions, I am convinced that such fallibilities were the product of a mind not attuned to fi- nancial detail as well as the result of the simple passage of time. On this record I reject Respondent's contention that Boothby was: (1) engaging in off-record transac- tions, or (2) attempting to withhold or conceal imterim earnings, or (3) transmitting interim earnings into other forms of revenues. Thus, in those situations where Boothby answered that he simply could not explain cer- tain deposits to his bank account, I find no hidden agenda and insufficient evidence to find misconduct. During pretrial preparation by the General Counsel, Boothby recalled additional income that was included in the backpay specification on the opening day of trial. I find these events to have been caused by simple error or failure or recollection rather than willful withholding by Boothby. I reject Respondent's argument that the back- pay claimant should be penalized in any way for that ini- tial failure to disclose or for other inconsistencies in the record. In making this credibility resolution and associat- ed findings of fact, I have considered that Boothby, in preparing loan applications, engaged in puffery in over- stating his income from beekeeping. Given the record as a whole, and my evaluation of the demeanor of the wit- ness, I do not find those statements undermine the credi- bility of Boothby's testimony at the hearing. See Pat Izzi Trucking Co., 162 NLRB 242 (1966). (5) Summary Having found Boothby to be a credible witness, and having rejected Respondent's arguments that the back- pay specification as to Boothby should be reduced as dis- cussed, supra, I sustain the General Counsel's amended backpay specification and shall recommend that Boothby be recompensed consistent therewith. 2. Donald E. Roland a. Respondent's defense of accord and satisfaction The General Counsel's amended backpay specification seeks $41,602.52 plus interest on behalf of Roland." On November 23. 1983, approximately 1 month before the commencement of the hearing in this matter, Roland and Respondent, with the presence and participation of the Charging Party, General Truck Drivers, Warehouse and Helpers Union Local 467, although without the partici- pation or apparent knowledge of counsel for the General Counsel, entered into an agreement by which Roland waived all of his claims against Respondent in this matter in exchange for a payment of $20,000. The written agree- ment was entered into and the moneys paid on that date. Roland has not attempted to return the money or rescind the settlement transaction. Respondent claims this settle- ment is an accord and satisfaction barring further pro- ceeding on the Roland claim.' 2 The General Counsel argues that becuase the General Counsel did not enter into or approve of his private settlement, it is without force to limit the General Counsel's claims here other than as an offset against moneys ultimately received by Roland. The General Counsel cites the recent Board decision of Michael M. Schaefer, 261 NLRB 272 (1982), in which the Board approved the following statement of the ad- ministrative law judge at 273: It is well settled that an individual may not waive, bargain away, or compromise any backpay which might be due him (or her) since it is not a private " Interest charges, calculated pursuant to formulas referred to in the cited cases in the original decision in this matter, are not liquidated in a backpay proceeding. It may fairly be anticipated , however , that inclusion of interest in the claim as of 1985 would substantially increase the dollar amount sought. 12 Independent of this matter and of no relevance save as background, Respondent brought suit against Roland based on the agreement and that litigation in turn became the subject of a Board unfair labor practice. Ad- minstrative Law Judge Richard J . Boyce issued a decision in the matter on Jan . 31, 1985, which as of the issuance of this decision was susceptible to appeal . [See American Pacific Concrete Pipe, 292 NLRB No. 133 (Feb. 21, 1989).] AMERICAN PACIFIC PIPE CO. right which attaches to the discriminatee, but is, indeed a public right which only the Board or the Regional Director may settle. This Board decision was enforced by the United States Court of Appeals for the Third Circuit, 697 F.2d 558 (1983). The Board's decision in Schaefer has been cited by an administrative law judge with Board approval as recently as July 31, 1984, in Stevens Ford, 271 NLRB 628. Respondent citing Roadway Express v. NLRB, 647 F.2d 415 (4th Cir. 1981), argues that it is elementary law that a release and settlement, if otherwise valid, bars a backpay claim. Respondent acknowledged the holding of the Schaefer case in colloquy during the hearing and did not address its holding on brief. Rather, Respondent em- phasizes the Board's recent evolution of the deferral doc- trine case, i.e., Olin Corp., 268 NLRB 573 (1984), and its progeny, for the proposition that the agreement of the parties here should be deferred to and hence Roland's claim not further pursued. Respondent's argument is weakened by the language of the Third Circuit's decision enforcing Schaefer in which the court points out that, unlike deferral to an arbitratorial forum, Schaefer in- volved a simple settlement in liquidation of a disputed sum. Further, Respondent's arguments are weakened by the fact that both Schaefer and Stevens Ford, surpa, are as recent or more recent than the Board's reinstitution of the deferral doctrine.13 I conclude it is not necessarily certain that the Board would extend its deferral doctrine to private settlements in liquidation of disputed monetary amounts during backpay proceedings. More importantly, however, no Board case since Schaefer purports to spe- cifically overrule Schaefer's holding or to modify its terms. Accordingly, and irrespective of any opinions I may or may not have regarding what the Board may do in futuro to the Schaefer doctrine, I am bound to follow Schaefer unless and until it is overruled by the Board or the United States Supreme Court. Iowa Beef Packers, 144 NLRB 615, 616 (1963). Accordingly, I decline to accept the agreement between Roland and Respondent as a limi- tation on the General Counsel's backpay specification re- garding Roland save as an offset regarding moneys re- ceived by Roland. 114 isA very recent case Texaco, Inc., 273 NLRB 1335 (1985), seems to lend support to Respondent's arguments regarding the evolution of the Board's deferral doctrine. In that case, the Board, reversing an adminis- trative law fudge, held that a strike settlement agreement , which con- tained provisions that the union withdraw an underlying unfair labor practice charge, should be accepted despite the contrary view of the Re- gional Director acting on behalf of the General Counsel in his interpreta- tion of his public rights. See also Alpha Beta Co, 273 NLRB 1546 (1985). 14 To avoid a remand , should reviewing authority differ with respect to this holding, I make the following alternative credibility resolutions with respect to the meeting between Roland, Respondent's agent, and the Charging Party's agent . I credit the testimony of Norman Holman, presi- dent business agent, and chief executive of the Charging Party, where his testimony differs from Roland and Robert Musser, Respondent's agent. Further, I find that the circumstances of the meeting were noncoercive and that, were the Schaefer doctrine not a bar, I would find the settle- ment agreement entered into by the parties was a freely entered into set- tlement that would prevent any further proceedings against Respondent concerning Roland's backpay. 629 b. Roland's search for employment The backpay specification alleges that Roland found various jobs at least partially mitigating Respondent's backpay obligation through the'third quarter of 1981 but that from the fourth quarter of 1981 through the second quarter of 1983's Roland was unable to find employ- ment. Respondent attacks Roland's assertions that he made good-faith efforts to seek employment during the backpay period. Respondent's argument is based at least in part on a comparison of Roland's reports of his em- ployment search to the State of California with his re- ports of employment search to the NLRB for the last quarter of 1982 and the first two quarters of 1983. The Rolands testified that at the end of every 2-week period, Roland, with the assistance of Mrs. Roland, would fill out the State of California forms, which pro- vided space for listing employers who were contacted during efforts to find employment.'6 The Rolands did not retain copies of the reports submitted to the State. The NLRB compliance form prepared by the Rolands as filled out much later. For example, the NLRB report on the last quarter of 1982 was completed by the Rolands in May 1983, as was the report for the first quarter of 1983; the report for the second quarter of 1983 was completed in July 1983.17 Respondent notes correctly that a comparison of the entries between the two forms on a day-by-day basis pro- duces essentially complete disparity between the listings of employers contacted on given dates.18 Further, each form identifies job searches as occurring on Saturdays or Sundays. Yet Roland testified at the hearing that he did not seek work on Saturdays or Sundays-most truck- driver employers being closed. Thus, these entries were clearly in error. Further Respondent submitted affidavits from certain of the companies that Roland reported con- tacting in his employment search in 1983,19 which affida- vits said variously that no job applications had been re- ceived from Roland in calendar 1983. The General Counsel adduced testimony from at least two trucking concerns that Roland had in fact submitted applications to them consistent with his representations on his employment search reporting forms. Further, Roland testified credibly and in significant detail con- cerning the physical description of the employers' prem- ises where he sought employment and described in detail 1s With the exception noted and discussed infra 16 The documents in evidence make it clear that the information to be reported on the forms changed at least twice in the last quarter of 1982 and the first two quarters of 1983 . Thus, certain forms provided the ap- plicant an opportunity to indicate whether he left a job application, other forms did not provide space for making such entries; some forms asked the employment applicant to put down the names of specific individuals contacted during the job search, others did not 17 Respondent argues , relying in part on portions of Roland's testimo- ny, that the NLRB compliance forms were filled out on a day-to-day basis. A close examination of the testimony of the Rolands convinces me this is incorrect To the extent Roland testified in that manner, he was simply confused. 18 There is much greater overlap when week -by-week comparisons are made and increasing correspondence the greater the time period com- pared 19 The General Counsel stipulated these affidavits would be receivable as substantive evidence 630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the persons with whom he spoke and the conversations engaged in. I have carefully considered the arguments of Respond- ent with respect to Roland's job search. Initially, I do not find the variation, which is often substantial, but in many cases is simply a matter of a day or two difference in the reported visiting dates of particular employers be- tween the state and Board forms, to be of conclusive sig- nificance in evaluating the credibility of Roland. Roland testified that he did not in every case list the employers that he visited on each form and, further, that the Board forms were prepared from memory and at a time signifi- cantly after the state reporting forms. Regarding the evidence from employers that Roland claimed he had contacted, (1) that the employers gener- ally had the practice of accepting written job applica- tions even if no employment was then available and (2) that Roland had not submitted an application in calendar 1983, this apparent contradiction is largely explained on examination of the record as a whole. Roland testified, for example, in the case of Kelly Moore Paints, that he had in calendar 1982 submitted an application to the em- ployer and on subsequent visits did not submit an addi- tional application but merely made sure the original was on file. Kelly Moore's agent's affidavit indicates that Roland did not physically submit an application in 1983. This is not inconsistent with Roland's testimony and Ro- land's testimony is corroborated by his job search report to the state on which he indicates he physically left an application with Kelly Moore on October 4, 1982. The Board and the state reports do not indicate if ap- plications were left at employers before September 1983. Thus, there is no way to ascertain whether Roland sub- mitted job applications to other employers before that time and, like Kelly Moore, subsequently failed to submit a new application because of the existence of the prior application. The job reports indicated that Roland visited Sunshine Foods in November 1982, Ryder Rentals in September and October 1982, Dupont in December 1982, and Brockway Glass in December 1982. Regarding each of these employers, the affifavits submitted by Respond- ent merely assert that no application was physically sub- mitted in 1983. This is not in contradiction with Roland's testimony or Roland's reports to the state. Further Roland testified, and his reports to the State in some cases confirm this fact, although the state reports are not sufficiently complete as to be conclusive in other cases, that in his job search he would often contact the receptionist or other employees on the premises of an employer and, on learning that jobs were not currently available or foreseeable, would not submit a written ap- plication. Roland's reports to the state indicate that in the great majority of job search visits he did not submit written applications. Mrs. Roland corroborated the testi- mony of her husband with respect to his job search. Given all the above, and considering the record as a whole, I conclude that Roland's job searches were as re- ported and Respondent's effort to impeach or discredit Roland with respect to his efforts to find employment did not succeed. c. Roland's credibility and unreported income Respondent argues strenuously that the Rolands are in essence engaging in a scheme to defraud the Board and Respondent by falsifying their evidence in an effort to improperly increase any recovery in this matter. Re- spondent points to evidence that the Rolands have a habit of avoiding obligations, i.e., Roland's suggestion during settlement negotiations to Respondent that the $20,000 settlement check should be broken into smaller units to avoid certain banking law reporting require- ments, and Mrs. Roland 's admission that on one occasion she arranged for her employer to issue checks to her husband for her wages to conceal income properly paid to her that might be inconsistent with an insurance dis- ability claim. Further, Respondent attacks the late admis- sion of Roland that he had additional previously unre- ported income in the second quarter of 1983. Respondent also placed in evidence two checks to Roland from a West Valley Trucking Company dated May 1980 for $277.09 and $39.46, respectively, which were not ex- plained by Roland. Further, Respondent points out that in completing certain forms such as an account card with the Chino Bank and in a job application to Guily Trans- portation, Roland asserted that he was working for an employer during periods of time for which Roland at the hearing claimed no employment. I have considered these admitted misstatements by Roland and the remaining arguments with respect to the Rolands in evaluating their credibility. I have also con- sidered the documentary evidence submitted by Re- spondent. I have determined the West Valley Trucking checks were not sufficiently explained by the General Counsel and therefore should be regarded as interim earnings and an offset to gross backpay in the appropri- ate quarter. Further I find that the unreported earnings estimated by Roland in the second quarter of 1980 to be "around $4,000.00" should also be an offset to gross backpay for the appropriate quarter. Based on my eval- uation of the witnesses' demeanor and the record as a whole, I do not find that the West Valley Trucking income should be regarded as income that was concealed or intentionally withheld to penalize Roland beyond its deductions from gross backpay. 20 Because Roland's income in the second quarter of 1983 now exceeds gross backpay, it is unnecessary to determine if a penalty should be assessed against him in that quarter . I conclude that no greater penalty could be assessed this record. I further find that no other interim. employment or earn- ings have been established by Respondent and the back- pay specification sums, as modified, are sustained. d. Summary In summary I have found that over the entire backpay period, during which Roland found a variety of employ- ment, Roland made a good-faith effort to seek employ- ment. In reaching this conclusion I found the evidence adduced by Respondent was largely explained by Roland 201 am simply convinced that the West Valley Trucking income was simply forgotten by Roland . There is insufficient evidence in the record concerning these two checks to conclude otherwise. AMERICAN PACIFIC PIPE CO. or is otherwise not inconsistent with his testimony. Fur- ther, as noted previously, the Board regards testimony of the type submitted by Respondent here to be of relative- ly little value in challenging otherwise credible testimony regarding employment search. Neely's Car Clinic, 255 NLRB 1420 (1981 ). Accordingly, with the adjustments to backpay noted above, I sustain the General Counsel's backpay specification with respect to good -faith search for interim employment. I also rejected Respondent's ar- gument that the Rolands generally concealed earnings and should be penalized as a consequence. I found, how- ever, that additional earnings, as noted above, should be counted against gross backpay. 3. Robert Craig a. Argument and evidence At all relevant times Robert Craig was self-employed, initially working as an employee of a wholly owned cor- poration, Gunite Development, from November 1979 to May 31 , 1983, from June 1-18, 1983 , for R. Craig Truck- ing, a sole proprietorship . Craig reported on his Board disclosure forms and testified at the hearing to certain amounts he received as "wages" during the period. The General Counsel argues that amounts constitute interim earnings that should be deducted from gross backpay due to Craig but that no other sums should be so deduct- ed. Respondent argues initially that because Craig sought no work other than self-employment during the period, he should be barred from receiving any backpay at all. Second, Respondent argues that the sums identified by Craig as interim earnings are not accurate and, rather, Craig manipulated his business enterprises in such a way as to conceal earnings, prevent investigation and determi- nation of actual amounts earned, and mislabeled expendi- tures as business expenses and other costs when they were in fact properly attributed to Craig as interim earn- ings. Substantial and detailed evidence was adduced by Re- spondent by examination of Craig regarding many of his business transactions during the period . This evidence showed that Craig maintained less than rigorous or com- plete business records . Further, Respondent's examina- tion revealed (1) that there was a substantial and ongoing commingling of corporate and other business transactions with the Craigs' personal finances, (2) that income state- ments and profit-and-loss statements were submitted to lending institutions that were at great variance from his oral testimony regarding his and his business entities' fi- nancial status during the backpay period, (3) that records offered into evidence did not allow clear identification of the nature and extent of certain transactions, and (4) that it was impossible to recreate the financial status of either Craig or his enterprises from the record evidence. Craig testified that his business efforts were financially unsuc- cessful and that he filed for personal bankruptcy under Chapter 11 of the Bankruptcy Act in mid-1983, but that the bankruptcy action was later voluntarily dismissed on his own motion. 631 b. Analysis and conclusions As the General Counsel argues on brief, the Board and the courts have accepted self-employment as a proper way for a backpay claimant to attempt to mitigate his wage loss. These cases hold that self-employment should be treated like any other interim employment in evaluat- ing backpay issues . Kansas Refined Helium Co., 252 NLRB 1156 (1980); Heinrich Motors v. NLRB, 403 F.2d 145 (2d Cir. 1968). Accordingly, I reject Respondent's initial argument that simply because Craig did not seek other than self-employment he should be denied back- pay. Rather, I shall consider Craig's self-employment and his employment by his wholly owned corporation to de- termine the amount and extent of interim earnings under normal Board standards. The issue of interim earnings concerning Craig evolved into an issue of accounting and recordkeeping. The General Counsel characterizes the evidence with re- spect to Craig's maintenance of business records on brief as follows: The record indicates some expenses, other than strictly business expenses, were paid out of the income of Gunite Development of R. Craig Truck- ing. Craig testified that he had obtained several loans, at times using his home as collateral to fi- nance Gunite or used his personal funds to keep Gunite operating, so he treated payment of nonbusi- ness expenses by Gunite as a way of recouping the funds that he had put into Gunite. Gunite paid the expense on vehicles and credit cards of Robert Craig's son Rick (who also drove for Gunite) in lieu of wages, because Gunite could not afford to pay Rick wages due. Craig was admittedly unsophisti- cated and a novice at operating a business and therefore some errors in bookkeeping may have been made. But it is not clear that payment of such expenses was in exchange for services Craig per- formed for the business, in fact some of them were substitutes of wages going to someone else. The determination of the amount of interim earning by a backpay claimant is relatively simple when the backpay claimant and the backpay period employer(s) involved are separate entities who maintain normal records of wages and salaries paid . When the backpay claimant and the employer are the same entity, as in the case of R. Craig Enterprises, or backpay claimant is an employee and sole owner of a closely held corporation , as in the case of Gunite, sometimes difficult questions of book- keeping, tax, and accounting rules must be analyzed to determine the correct amounts to apply to interim earn- ings as opposed to other nonearning categories such as business expenses . So too, difficulties may be caused when recordkeeping is informal and tax and other regu- latory reporting forms are not prepared and submitted. An example of the close item-by-item scrutiny of transac- tions as part of the calculation of interim earnings is found in Kansas Refined Helium Co., 252 NLRB 1156 (1980). In that case , specific expenses, indeed often indi- vidual receipts or disbursements on a check-by-check 632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD basis were examined, applicable Internal Revenue Serv- ice decisional law considered, and testimony of an ac- countant received. Ultimately a detailed decision issued deciding a myriad of self-employment interim earning issues. In the instant case the General Counsel did not contest the bulk of the lengthy and detailed examination by Re- spondent of Craig's irregularities in accounting and in re- cording the various transactions of the corporation, the sole proprietorship, and his personal affairs. So too on brief, the General Counsel makes no attempt, as Re- spondent did in detail, to address the specifics of particu- lar business transactions and their accounting effects on profit and loss. Rather, the General Counsel made a gen- eral broad-brush equitable argument on Craig's behalf. The argument is essentially that while uncertainty exists whether Craig had certain interim earnings that should be deducted from his backpay claim, all uncertainties should be resolved against Respondent, the original wrongdoer in this case. Further, while the General Counsel expressly avoided condoning the irregularites of Craig, she argued his conduct should not be condemned and that Respondent should not be allowed to escape its backpay liability because of Craig's conduct for that would in her judgment be a penalty not consistent with the Board's policy of remedial as opposed to punitive action. She argues: To find that Craig is not entitled to backpay would provide Respondent with a windfall which it does not deserve, as it is at least partially responsible for the predicament Craig found himself in and for his response to that predicament and it would not serve to deter future violations of the Act by this and other Respondents. For these reasons Craig should not be denied backpay based on the evidence elicit- ed by Respondent. It is clear that regarding interim earnings "the burden is upon the employer to furnish facts which would . . . mitigate the liability." NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). It is also true that the find- ing of an unfair labor practice is presumptive proof that some backpay is owed a backpay claimant. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966). Craig testified concerning the receipt of limited inter- im earnings. Respondent through a lengthy examination of Craig and by the submission of a variety of documents from Craig's businesses, established that Craig's unsub- stantiated testimony regarding his interim earnings during the period could not be relied on standing alone. The record is clear and I find that the lengthy and de- tailed record of the accounting irregularities, reporting inconsistencies, and profit-and-loss statements prepared by Craig's accountant at Craig's direction, which indi- cates substantial earnings of the corporation, amply meets Respondent's burden of proof in refuting Craig's testimony concerning his interim earnings. Respondent, having successfully impeached Craig through his business records, I find the burden of going forward shifted to the General Counsel to adduce other record evidence that could sustain the General Counsel's position that Craig's earnings were less than the amount of gross backpay. Such a burden is not impossible to meet. What was re- quired was to put into evidence records of the profit and loss of the commercial entities involved beyond the simple, discredited, oral testimony of Craig or to make efforts to rehabilitate Roland by making the transactions understandable and susceptible to supporting specific findings regarding earnings . In Kansas City Refined Helium Co., 252 NLRB 1156 (1980), the administrative law judge, with Board approval, stated at 1159: I have considered Respondent's argument that [the backpay claimant] should be denied all back- pay, and reject it. The Board has long recognized the value of utilizing social security records and income tax records in determining interim income, and has found that "poor recordkeeping, uncertain- ty as to memory, and perhaps exaggeration" do not automatically disqualify an employee from receiving backpay. Patrick F. Izzi, d/b/a Pat Izzi Trucking Company, 162 NLRB 242, 245 (1966), enfd. F.2d 241 (1st Cir. 1968). Through the use of the social se- curity records, the [backpay claimant's] income tax returns, and additional evidence adduced at the hearing, it is possible to arrive at a "reasonable ap- proximation" of interim earnings, which is all that the Board and the Courts require. Because the dispositive aspect of the litigation of the Craig portion of the backpay specification is that the General Counsel made no effort to provide evidence that, as in the above-quoted case, could be examined by the judge to determine the interim earnings of Craig with even a "reasonable approximation," it is immaterial whether the General Counsel simply abandoned Craig and chose not to put on tax returns or other credible evi- dence that would buttress the General Counsel's claim regarding Craig, or whether not the evidence simply did not exist.21 The record evidence as it stands sustains Re- spondent's argument that it is impossible to determine what earnings of the business entities should be attributed to Craig as interim earnings during the backpay period. Indeed, it is impossible to ascertain from the record what the profit and loss of either entity was during relevant periods. Thus it is not simply a matter of resolving un- certainty, as the General Counsel would frame the argu- ment, with such uncertainties being resolved against Re- spondent in favor of the backpay claimant . The records introduced into evidence make it clear that the testimony of Craig regarding interim earnings , unbuttressed by any documentation whatsoever, cannot be sustained. Examin- ing the documentary evidence taken from Craig's records, as submitted by Respondent, it is clear that it is absolutely impossible, even giving Craig's testimony re- garding those records, that benefits of the doubt in all situations, to establish the profitability of the corporation 21 An adverse inference is permissible under the circumstances that, since the General Counsel did not offer business records that would sus- tain Craig's position, such records would not have in fact supported him. 633 under any accounting system or what revenues should be counted as interim earnings in offset to the gross backpay found, supra. It is clear, however, and I find, that sub- stantial income was received by Craig that was not ad- dressed in any fashion by the General Counsel and that the confusion regarding specific amounts arises because of Craig and the General Counsel's failure to go foward after the initial impeachment of Craig by Respondent. This being so Craig must be assumed to have had interim earnings at least equal to gross backpay and hence no net recovery. In summary I fmd that even though the burden of proof is explicitly on Respondent to all aspects of interim earnings of the backpay claimant, as Respondent had successfully proved that the uncorroborated testimony of Craig regarding interim earnings during the period may not be relied on. I further find that the General Counsel failed to adduce any evidence by which such interim earnings could be ultimately ascertained . That being so, I find that the record concerning Craig will not sustain a fording that his interim earnings can be ascertained with any certainty. This being so, and despite the burden on Respondent and the presumptions cited above, I con- clude albeit with some reluctance,xx that on the present record Craig is not eligible for any backpay whatsoever during the period. III. SUMMARY The above findings are reflected in the following com- putations regarding Boothby and Roland, respectively. A. Boothby Calendar Quarter Gross Backpay Interim Earnings Expenses Net Interim Earnings Medical Expenses Net Backpay 1980/2 ............................................................................... $1,581.38 $1,077.00 0 $1,077.00 $209.58 $713.96 1980/3 ............................................................................... 5,713.43 28.50 0 28.50 229.44 5,914.37 1980/4 ............................................................................... 3,586.48 0 0 0 8.77 3,595.25 1981/1 ............................................................................... 4,701.90 1,764.75 0 1,764.75 135.78 3,072.93 1981/2 ............................................................................... 5,213.41 0 0 0 135.78 5,349.19 1981/3 ............................................................................... 5,027.98 0 0 135.78 5,343.76 1981/4 ............................................................................... 5,546.32 0 0 0 142.00 5,688.32 1982/1 ............................................................................... 1,248.18 261.15 $68.00 193. 15 103. 14 1,158.17 1982/2 ............................................................................... 4,735.00 1,018.07 72.00 946.07 206.28 3,995.21 1982/3 ............................................................................... 5,474.04 1,423.93 96.00 1,327.93 154.71 4,300.82 1982/4 ............................................................................... 3,979.05 3,697.63 0 3,697.63 162.79 444.21 1993/1 ............................................................................... 2,459.38 • 0 0 296.25 296.25 1983/2 ............................................................................... 3,344.14 • 0 0 473.20 473.20 Total Net Backpay ................................... $40,345.64 * Exceed backpay. B. Roland Calendar Quarter Gross Backpay Interim Earnings Expenses Net Interim Earnings Medical Expenses Net Backpay 1980/2 ............................................................................... $3,148.71 28$316.55 0 0 0 $2,832.16 1980/3 ............................................................................... 5,732.03 1,975.64 $150 $1,825.64 0 3,906.39 1980/4 ............................................................................... 5,079.48 2,853.50 660 2,197.50 0 2,881.98 1981/1 ............................................................................... 5,387.01 3,365.00 900 2,465.00 0 2,922.01 1981/2 ............................................................................... 5,424.11 6,316.48 900 5,416.48 0 7.63 1981/3 ............................................................................... 5,468.79 3,628.93 490 3, 183.93 0 2,329.86 1991/4 ............................................................................... 5,847.25 0 0 0 0 5,847.25 1982/1 ............................................................................... 1,427.43 0 0 0 0 1,427.43 1982/2 ............................................................................... 4,334.30 0 0 0 0 4,334.30 1982/3 ............................................................................... 6,436.14 0 0 0 0 6,436.14 1982/4 ............................................................................... 4,806.88 0 0 0 0 4,806.88 1983/1 ............................................................................... 2,781.65 0 0 0 0 2,781.65 as Craig's testimony that the business entities were financial failures ss Checks from West Valley Trucking, see analysis. s' Backpay claimant's estimated quarterly earnings, see analysis supra and that he was forced into bankruptcy raises questions , but does not meet the burden of the General Counsel given the explicit and extensive as Roland's total backpay is reduced by the $20.000 received from Re• impeaching evidence offered by Respondent. spondent, discussed supra. 634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Calendar Quarter Interim Earnings Net Expenses Interim Earnings Medical Net Expenses Backpay Gross Backpay 244,000.00 0 0 0 0 25W,375.97 William Martin $368.38 Robert Bornemann 428.26 Bobby Record 368.38 Ezell Record 378.38 Selvie Cole 15.00 Dennis Lilly 90.00 Robert Delgado 130.00 Jess Fernandez 80.00 Charles Boothby 40,345.64 Donald Roland 20,375.97 1983/2 ............................................................................... 3,862.29 Total Net Backpay ................................... On the basis of the foregoing, and pursuant to Section 10(c) of the Act, I issue the following recommended26 ORDER IT IS ORDERED that Respondent American Pacific Concrete Pipe Company, Inc., Los Angeles, California, its officers, successors, agents, and assigns shall forthwith pay to the following individuals the amounts listed after each name, plus interest to be computed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977), and Olympic Medical Corp., 250 NLRB 146 (1980), 27 less tax withholding required by Federal and state laws. 26 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 27 See generally Isis Plumbing Co., 138 NLRB 716 (1962). The specifi- cation of earnings by calendar quarter as set forth, supra, shall be used IT IS FURTHER RECOMMENDED that backpay specifica- tion concerning Robert Craig be dismissed. for, purposes of interest calculated . Interest calculations for Roland shall take account of the date on which he received the offsetting $20,000 dis- cussed supra.