Schnabel Associates, Inc

648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Schnabel Associates, Inc and United Brotherhood of Carpenters and Joiners of America, Tri State Council of Carpenters, Local 302, AFL-CIO Case 9-CA-17145 November 10 1988 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 27 1988 Administrative Law Judge Donald R Holley issued the attached supplemental decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the supplemental deci Sion and the record in light of the exceptions and brief and has decided to affirm the judge s rulings findings I and conclusions and to adopt the recom mended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Schnabel i In the absence of exceptions we adopt the judge s finding that discn minatee Ronnie Messer s entitlement to an award of backpay was extra guished The judge erroneously referred to the location of the Respond ent as West Hunnington and Hunnington The record reflects the correct location is Huntington West Virginia The judge also cited two cases in correctly The citation for Arlington Hotel Co at sec III of the decision should be 278 NLRB 26 (1986) and the citation for Saginaw Aggregates should be 198 NLRB 598 (1972) In addition the last word of the seventh paragraph of sec IV A should read employer and not employee We agree with the judge that the backpay of discnminatees John Price Terry Buxton and Mark Shaffer whom the Region was unable to locate should be placed in escrow and held for a period not exceeding I year See Starlte Cutting 280 NLRB 1071 (1986) (Starlite I) as amended by Starlite Cutting 284 NLRB 620 ( 1987) (Starlite II) We find no ment in the Respondents contention that the judge should have followed the earlier case of Laredo Packing Co 264 NLRB 245 249 ( 1982) and or dered only 20 percent of the claimants alleged backpay be deposited in escrow We note that Laredo Packing is factually distinguishable from the instant case in that there the claimant who was unavailable to testify at the backpay hearing had been located as of the time of the Board s deci sion See 264 NLRB 245 In 3 In any event to the extent that Laredo Packing can be read as holding that a respondent need only deposit in escrow a fraction of the backpay claimed in the backpay specification for an unavailable discnminatee we find that Laredo Packing was implicitly overruled by Starlite I and we expressly overrule Laredo Packing today Member Johansen joins his colleagues in explicitly overruling Laredo Packing supra in part However Member Johansen adheres to the limi tation of escrow to a period not exceeding 1 year from the date of the Supplemental Decision established in Starlite Cutting supra See the dis senting opinion in Starlite II supra Member Cracraft who did not participate in Starlite I agrees with former Member Dennis dissent that backpay for unavailable discnmina tees should not lapse after 1 year However so long as Starlite I remains Board law Member Cracraft will apply the remedy set forth in that deci sion Chairman Stephens who joined Member Dennis in that view also ap plies Starlite I as controlling law Associates Inc Huntington West Virginia its of ficers agents successors and assigns shall take the action set forth in the Order Debra Jacobson Esq for the General Counsel Robert N Godfrey Esq and R Steve Ensor Esq (Smith Currie & Hancock) of Atlanta Georgia for the Re spondent SUPPLEMENTAL DECISION DONALD R HOLLEY Administrative Law Judge On November 2 1984 the National Labor Relations Board issued its Decision and Order in this case (272 NLRB 1022) adopting the recommended Order of the adminis trative law judge which required inter alia that Schna bel Associates Inc (the Respondent) make whole 21 named employees for any loss of earnings they may have suffered as a result of their unlawful terminations on July 7 1981 On May 1 1986 the Court of Appeals for the Fourth Circuit entered its judgment enforcing the Board s Order including its backpay provisions On June 12 1987 the Regional Director for Region 9 issued a backpay specification alleging that stated amounts of net backpay were due to named discnmina tees i Thereafter Respondent filed an answer to the backpay specification that contained general denials of the allegations in the numbered paragraphs of the back pay specification without explaining the basis for its dis agreement with the Regional Directors figures and with out offering an alternative method of calculation On August 10 1987 the General Counsel filed a Motion for Partial Summary Judgment with the Board After issuing an Order to Show Cause and receiving Respondents re sponse the Board on September 30 1987 issued its Sup plemental Decision and Order remanding in which it granted the General Counsels motion concerning all al legations in the backpay specification except those relat ing to the amounts of interim earnings and the net back pay to be granted The Board further ordered that this proceeding be remanded to the Regional Director for Region 9 for the purpose of issuing a notice of hearing and scheduling a hearing before an administrative law judge which hearing shall be limited to taking evidence concerning the amounts of interim earnings and net backpay of the discriminatees involved herein A hearing was held in this case before me in Hunting ton West Virginia on January 19 1988 At the com mencement of the hearing the General Counsel amended the backpay specification in minor respects and indicated such amendments on a copy of the backpay specification received in the record as General Counsels Exhibit 2 Additionally the General Counsel indicated the Region had been unable to locate discnminatees John M Price Terry Buxton and Mark A Shaffer It was requested that the amounts of net backpay due the named employ ees be held in escrow for 12 months and that their inter i The backpay specification indicates that one Michael Herbert (Moore) was not discnmmatonly discharged and no backpay is sought for him 291 NLRB No 106 SCHNABEL ASSOCIATES 649 im earnings be determined at a subsequent time if they became available On the entire record my observation of the witnesses and consideration of Respondents postheanng brief I outline the following I SETTING OF THE CASE The Respondent is a general contractor engaged in the building and construction industry The dispute litigated in the underlying unfair labor practice case occurred at Respondent s Huntington West Virginia jobsite It arose when United Brotherhood of Carpenters and Joiners of America Tn State Council of Carpenters Local 302 AFL-CIO-CLC (the Union) sought during June 1981 to organize employees working at the site On Monday June 29 1981 the Union commenced a strike at the job site and on July 7 1981 Respondent unlawfully dis charged the discriminatees The record in the instant proceeding reveals the discri minatees involved worked or were scheduled to report for work before the strike began as carpenters and la borers Although the job was nonunion a number of dis criminatees who were members of the Union and nor mally obtained work through the Union s hiring hall were employed at the jobsite II THE ISSUES The General Counsel issued subpoenas to all discnmin atees other than the three the Region could not locate and all but discriminatee Ronnie Messer appeared at the hearing Respondent conducted its case by cross examin ing the discriminatees who appeared It offered no of firmative evidence through its own witnesses Thus the main issues to be resolved are2 (a) Whether discriminatees Floyd Bartram Mark Dickerson Jay Enochs Charles Farris Gregory Wal lace Gerald Meeker Donald Hatten Elmer Kirk Barry Lucas Woodie Rice Carmal Saunders Michael White and Steven White failed to exercise reasonable diligence in their search for interim employment (b) Whether discriminatee Michael Preston failed to exercise reasonable diligence in his search for interim employment during July and August 1981 and whether his full time enrollment as a college student on Septem ber 3 1981 tolled Respondents backpay obligation as to the named discriminatee (c) Whether John Price Terry Buxton Ronnie Messer and Mark Shaffer forfeited their right to back pay by failing to appear at the backpay hearing III APPLICABLE LEGAL PRINCIPLES In the instant case Respondent sought in main by cross examining alleged discriminatees who appeared at the hearing pursuant to subpoenas issued by the General Counsel to show that the individual discriminatees did not exercise reasonable diligence in their search for inter im employment during their respective backpay periods The applicable standard is one of reasonable diligence not the highest diligence Arlington Hotel Co 278 NLRB 26 (1986) The burden on the discharged employee is not onerous and does not mandate that the discnminatee be successful in mitigating damages NLRB v Master Slack 773 F 2d 77 84 (6th Cir 1985) In determining the rea sonableness of the effort the discriminatee s skills expe Hence qualifications age and labor conditions in the area are factors to be considered Chem Fab Corp 275 NLRB 21 (1985) Laredo Packing Co 271 NLRB 553 (1984) In determining whether an individual claimant made a reasonable search the test is whether the record as a whole establishes that the employee had efficacious ly sought other employment during the entire backpay period Saginaw Aggregates 298 NLRB 598 (1972) Nickey Chevrolet Sales 195 NLRB 395 398-399 (1972) Finally it is well established that any uncertainty in the evidence is to be resolved against a respondent as wrong doer Miami Coca Cola Bottling Co 360 F 2d 569 576 (5th Cir 1966) Southern Household Products 203 NLRB 881 (1973) Although Respondent indicates in its brief that it rec ognizes the above described principles should be ob served when resolving the issues presented in the instant case it urges me to attach little weight to testimony and/or evidence which reveals that discriminatees sought work through a union or through registration with a state employment agency In support of the contention it cites NLRB v Madison Courier 505 F 2d 391 (D C Cir 1974) In the cited case the court concluded in effect that discriminatees knowingly engaged in an exercise in futility when they supposedly sought work by registering with a state agency and by relying on the union grape vine By contrast the discriminatees in the instant case are construction workers who traditionally seek and obtain work through their unions Moreover the record in the case sub judice fails to reveal that discrimmatees who registered with the West Virginia Employment Agency limited their availability to jobs which they knew the agency would be unable to refer them to as was the case in NLRB v Madison Courier supra In short Respondents reliance on Madison Courier is mis placed Similarly Respondent contends that the courts have indicated that as a matter of law a discriminatee does not exercise reasonable diligence in seeking interim employment if he or she seeks employment at only three or less companies per month In support of that conten tion Respondent cites NLRB v Mercy Peninsula Ambu lance Service 589 F 2d 1014 (9th Cir 1979) and NLRB v Arduini Mfg Corp 394 F 2d 420 (1st Cir 1968) In both of the cited cases the court carefully reviewed all ac tions taken by the discriminatees during their backpay periods and thereafter concluded the facts failed to reveal a diligent search for employment The number of contacts made was simply a factor considered in resolv ing the issues presented 3 Although the number of efforts 3 For instance in NLRB v Mercy Peninsula Ambulance Service supra employee Castle waited 3 months after being invited to place applications 8 Respondent does not contest in its beef the net backpay alleged to be at two firms to file applications with them and his search efforts during due discriminatees Garry Berry and Paul Williamson I find they are due I month took only about 1 1/2 hours of his time Similarly in NLRB v the net backpay amounts set forth in the backpay specification Continued 650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD any given discriminatee made to obtain interim employ ment is certainly a factor to be considered I view the actions of the discriminatees throughout their respective backpay periods to determine whether Respondent has established any given contention that the discnminatee did not conduct a reasonably diligent search for employ ment IV FACTS AND CONCLUSIONS A Floyd Bartram Respondent contends Floyd Bartram failed to make a good faith effort to find interim employment during his backpay period Bartram s backpay period extends from July 7 to No vember 7 1981 The net backpay alleged to be due to the discnminatee is $3958 78 He had no interim earn rags Bartram testified he is a painter by trade and maintains membership in the Painters Local Union headquartered in Huntington West Virginia Prior to being hired at Re spondent s Huntington construction site Bartram was employed by Denny Ottgood a painting contractor While with Ottgood he earned considerably higher wages than those paid by Respondent When Respondent terminated Bartram on July 7 1981 he continued to participate in picketing of Respondent 2 or 3 days a week On such occasions his shift on the picket line was 3 hours He testified when he was not picketing he either looked for work or went home After his termination Bartram registered for work with the West Virginia Employment Agency and with his local union He explained that to receive unemploy ment benefits from the state agency he was required to search for work and submit to the agency periodically a card which revealed where he applied for work whom he talked to and the result When he was asked to name the places he had designated as places he had sought work on the cards he submitted to the state agency Bar tram replied he was at Service Machine A C F and quite a few other places he could not recall but that they were the largest places around there Regarding his effort to obtain work through his union Bartram testified the business agent told him he could refer him to a shipyard job in Connecticut which paid $16 per hour and afforded overtime opportunities Bar tram indicated he refused the job because he did not have the money to go to Connecticut and in any event he did not want to leave his family The discriminatee further indicated the business agent sought to place him on a job in Proctorville Ohio which is near Huntington West Virgina but was unable to do so because the Iron ton Ohio local rather than Bartram s local union had ju risdiction over the job In adddition to seeking work through the state em ployment agency and his union Bartram testified he un successfully sought reemployment with Denny Ottgood after he was terminated by Respondent and he sought Arduini Mfg Corp the record revealed there was a shortage of men with the discriminatee s skill in the city where he had worked for 12 years but he did not apply there employment with Ensign Electric another previous em ployee Respondent claims Bartram should not be permitted to rely on his registration with the state employment agency or his union to demonstrate he diligently sought interim employment because neither the state agency nor his union were able to refer him to employment In sup port of the contention it cites NLRB v Madison Courier supra Additionally it claims the record reveals Bartram sought work at only four companies during his backpay period and that such efforts were insufficient to consti tute an adequate effort to find interim employment Re garding the number of jobs sought it cites NLRB v Mercy Peninsula Ambulance Service supra and NLRB v Arduini Mfg Corp supra I find the contentions to be without merit Respondents reliance on Madison Courier is misplaced because the instant record reveals a number of the discn minatees involved registered out of work with their union and they were thereafter referred to employment Accordingly I attach significant weight to the fact that Bartram sought work through his union Similarly Re spondent failed to establish that Bartram indicated when registering with the state employment agency that he would accept referral to only limited types of work as was the case of the discnminatees who registered with the state agency in Madison Courier Regarding the claim that the record reveals Bartram sought work at only four companies during his backpay period I note that Bartram indicated he had sought work at places other than those he named and that he had supplied informs tion concerning other contacts to the state agency by placing them on a card he was required to submit Sig nificantly Respondents counsel made only a cursory effort to ascertain what was on the card Bartram submit ted to the state employment agency In sum the record in the instant proceeding reveals Bartram sought interim employment in the manner union construction employees normally seek work-through registration with his union Moreover the record reveals he was available for work at all times and he sought any type of available work by seeking work at plants and through the state employment agency In the circum stances described and in the absence of evidence that would show that work which Bartram was qualified to perform was available in the Huntington area during Bartram s backpay period I find Respondent s conten tion that the discrimmatee failed to exercise reasonable diligence in seeking interim employment during his back pay period to be without merit Accordingly I find Bar tram is due the amount of net backpay set forth in the backpay specification B Mark Dickerson Respondent contends that by picketing 8 hours a day 3 days a week Mark Dickerson failed to allow sufficient time for a reasonable good faith job search during his backpay period Dickerson s backpay period extends from July 7 1981 to May 8 1982 The net backpay alleged to be due him is $5023 57 He had interim earnings during quarter 3 SCHNABEL ASSOCIATES 1981 in the amount of $290 70 during quarter 4 1981 in the amount of $87 21 and during quarter 2 1982 in the amount of $188 09 The record reveals Dickerson was employed by Re spondent as a laborer He engaged in picketing 8 hours a day 3 days a week until approximately the end of July 1981 Dickerson testified he quit high school just prior to obtaining employment with Respondent He indicated he had no intention of attending college The discnminatee testified he went home after participating in picketing on days that he engaged in this activity but spent the days he wa. not picketing looking for work He testified he went to Charleston West Virginia to seek work and ap plied at F M C DuPont Action Chemical Huntington Steel and West Virginia Steel Thereafter he claims he revisited those companies four or five times He further indicated he sought work in the Huntington West Vir ginia area by going through the yellow pages and calling various companies in the area to inquire whether they were taking applications for employment Regarding his search in his local area he indicated he filed an applica tion with Harts Department Store and visited Heiner s Bakery and Calgon seeking work Dickerson testified he resorted to raking leaves and mowing lawns for his neighbors to make a buck The discnminatee testified that he returned to Respondents Huntington job in No vember 1981 to beg for work and he was told by Re spondent s superintendent Wayne Woodman that he could not use him on the Huntington project Woodman did place the discriminatee on a Respondent job in Welch West Virginia where he worked for approxi mately 3 weeks before he was laid off' Dickerson did not register out of work with the state employment agency because he was not eligible for unemployment benefits Respondent contends Dickerson is not entitled to backpay for any part of his backpay period because his picketing activities prevented him from adequately searching for interim employment I find the contention to be without merit In the first place the discriminatee did not engage in picketing 3 days a week throughout his backpay period he engaged in this activity only until about the end of July Moreover the record clearly re veals the discnminatee continuously sought employment throughout his backpay period and that his effort was partially successful as he even obtained limited employ ment with Respondent In sum the record reveals Dickerson was available for work during his entire backpay period and his testimony causes me to conclude he continuously sought work throughout his periods of unemployment In the absence of evidence that would reveal work was available in the Huntington area which Dickerson was qualified to per form during his backpay period I find Respondent s contention that he failed to exercise reasonable diligence in seeking interim employment to be without merit Ac cordingly I find Dickerson is entitled to the amount of net backpay set forth in the backpay specification * The backpay specification claims no moneys for Dickerson during the period in question as his seniority would not have entitled him to backpay for the period 651 C Jay Enochs Respondent contends Jay Enochs spent so much time picketing and caring for his wife whose sister had died that he failed to conduct a reasonably diligent search for work during his backpay period Jay Enochs backpay period extends from July 7 1981 to May 8 1982 The net backpay alleged to be due him is $7060 26 Enochs had no interim earnings Enochs testified he engaged in picketing 3 to 6 hours a day off and on during the strike He indicated that during periods when he was not picketing he and other discriminatees went out looking for work In his search for work he filed applications at Dow Union Carbide and different chemical companies located in the Charles ton West Virginia area He registered at the state em ployment office and also sought work by contacting the Carpenters Union and the United Mine Workers Union which he described as his main union at the time Enochs testified he spent some time caring for his wife during his backpay period but the length of time was not established In sum the record reveals Enochs was available for work and continuously sought work through two unions the state employment agency and through inquiry at chemical companies located outside the immediate Hun tington West Virginia area during his backpay period The record fails to reveal his picketing activities inter fered with his search for employment and it also fails to reveal that any attention he devoted to his ailing wife caused him to remove himself from the job market In the circumstances described absent evidence that would reveal work which Enochs was capable of performing was available in the Huntington area during the discri minatee s backpay period I find Respondent has failed to establish that Enochs did not conduct a reasonably dill gent search for interim employment during his backpay period D Charles Farris Respondent contends Charles Farris participation in picketing 2 or 3 days during the first week of the strike caused him to breach his duty to mitigate damages The discriminatee s backpay period extends from July 7 to October 10 1981 Net backpay alleged to be due Farris is $3406 12 He experienced interim earnings of $216 during quarter 4 1981 Farris testified he participated in picketing at Respond ent s Huntington jobsite for 2 days during the first week of picketing As picketing commenced on June 29 1981 it is apparent his picketing activity all occurred prior to the time he was unlawfully discharged on July 7 1981 Farris is a carpenter who lives in Louisa Kentucky which is located about 45-50 miles from Huntington West Virginia The discriminatee testified that during his backpay period he sought work at a mill that was going out of business in Louisa Kentucky and he sought work at a nearby powerplant When he was unable to find local employment he sought work in the Ashland Ken tucky area at Armco Steel Ashland Oil Meads Con struction Ross Brothers and Burton and Davis Finally 652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he journeyed to Huntington where he sought work at Hughes Construction The record reveals the discriminatee was available for work throughout his backpay period and it reveals he continuously sought work The contention that his picket line activities interfered with his search for work is obvi ously without merit Absent evidence that work was available which Farris was capable of performing during the discriminatee s backpay period I find Re spondent has failed to prove Farris did not exercise rea sonable diligence in seeking interim employment during his backpay period Accordingly I find Farris is entitled to the amount of net backpay set forth in the backpay specification E Gregory Wallace Respondent contends that by picketing 2-3 days during the first week of the strike and by seeking em ployment in only one industry Gregory Wallace failed to conduct a reasonable search for work Wallace s backpay period extends from July 7 to Octo ber 10 1981 Net backpay in the amount of $3662 12 is claimed for the discriminatee who had no interim earn mgs during the backpay period The discrimmatee testified his participation in picket ing at Respondents Huntington construction site was limited to the first 2-3 days of the strike 5 Wallace who lives in Clifford Kentucky (near Louisa) testified he sought work during his backpay period by applying for employment at the coal mines in Martin County includ mg Marticky Ponticky Martin Coal and places like that Additionally he indicated the Carpenters Union told him they would help him find a job Eventually in December 1981 Wallace was hired as a truckdriver by one Rocky Pauley Noting that the record reveals Wallace did not partici pate in picketing subsequent to the time he was dis charged on July 7 1981 Respondents contention that the discriminatee s picketing activities interfered with his effort to seek interim employment is clearly without merit In the absence of evidence which would show that work in industries other than the coal mine industry was available but not pursued by Wallace during his backpay period I find that Respondents contention that the employee should be denied backpay because he sought employment at only coal mines to be without merit I find Respondent has failed to establish that Wal lace did not exercise reasonable diligence in seeking in terim employment during his backpay period Accord ingly I find Wallace is entitled to the amount of net backpay set forth in the backpay specification F Gerald Meeker Respondent contends Gerald Meeker failed to make a reasonable effort to mitigate damages from the time of his discharge on July 7 to the end of July 1981 when he obtained employment with Kerr Glass Meeker s backpay period extends from July 7 to No vember 7 1981 The net backpay claimed for the discri 5 The stnke began on June 29 1981 minatee is $2518 07 He had interim earnings of $866 36 in quarter 3 and $295 35 in quarter 4 1981 The record reveals Meeker was employed by Re spondent as a carpenter The discriminatee testified he had meatcutter experience and sought employment after his discharge at supermarkets in Huntington specifically Big Bear and Tradewell He was given a test by Big Bear but he failed it At an unspecified time in late July 1981 he applied for employment at Kerr Glass and was hired immediately He continued to work at Kerr Glass throughout the remainder of his backpay period Relying on Mercy Peninsula Ambulance and Arduini Mfg Respondent contends that by applying for employ ment at only three companies during a 3 week period Meeker failed to conduct a reasonably diligent search for employment In the cited cases the discnminatees back pay periods extended over a number of months rather than several weeks Here Meeker s search was during a 3 week period and it ended with his acquisition of em ployment The cited cases are clearly distinguishable Moreover the Board has held that a discriminatorily dis charged employee need not instantly see new work rather the test is whether on the record as a whole the employee has diligently sought other employment during the entire backpay period Saginaw Aggregates 198 NLRB 598 (1972) In the absence of evidence which would establish that work which Meeker was capable of performing was available in the Huntington area during the last 3 weeks of July 1981 and evidence that would reveal Meeker failed to apply for such work I find Respondent has failed to establish its contention that Meeker failed to conduct a reasonably diligent search for work during the last 3 weeks of July 1981 Accordingly I find the net backpay alleged to be due the discriminatee in the back pay specification is due him H Donald Hatten Respondent contends Donald Hatten did not conduct a reasonably diligent search for work during his backpay period Net backpay in the amount of $10 831 75 is claimed for Hatten He had no interim earnings during his backpay period which extended form July 7 1981 to May 8 1982 Hatten testified he participated in strike activity by picketing only 1 day He testified that during his backpay period he sought work during the last half of 1981 and the first half of 1982 by applying at 40-50 companies for truckdriving security guard or laborer positions Addi tionally the discrimmatee who is a trained mechanic sought work as a mechanic at Messer Pontiac and Gal lager Ford but was denied employment because he did not have 5 to 10 years experience The record reveals Hatten continuously sought interim employment during his backpay period Absent evidence that work was available that he was qualified to perform but failed to seek I find Respondent has failed to estab lish that the discriminatee failed to conduct a reasonably diligent search for employment Accordingly I find the SCHNABEL ASSOCIATES 653 net backpay claimed for Hatten in the backpay specifica tion is due him I Elmer Kirk r Respondent contends Elmer Kirk failed to conduct a reasonably diligent search for employment during his backpay period because he confined his search to the Huntington West Virginia area Kirk s backpay period extends from July 7 to Novem ber 7 1981 Net backpay in the amount of $3958 78 is claimed for Kirk He had no interim earnings during his backpay period He was retired at the time of the hear ing The discnminatee testified he was employed as a car penter by Respondent and had followed that trade for approximately 8 years In the past he had worked in a battery factory for 18 years and had worked in coal mines about 5 years Kirk testified he was hampered in his search for work during his backpay period because he had no job and gasoline was $1 35 per gallon He in dicated he sought work at Huntington Steel B & C Ma chine Shop McCorkle Machine Shop Bolt Pipe Okay Trucking Cook Motor Freight Huntington Pipe and other places he could not recall 6 years later Additional ly the discriminatee indicated he sought driving work with Carmady Frozen Foods a former employer In the absence of evidence that would reveal work that Kirk was capable of performing was available out side of the Huntington area I find Respondent has failed to establish the discnminatee failed to conduct a reason ably diligent search for work during his backpay period Accordingly I find he is entitled to the net backpay al leged to be due him in the backpay specification J Barry Lucas Barry Lucas was employed by Lucas Construction Company which is owned by his father on or around August 15 1981 Respondent contends he failed to satis fy his obligation to mitigate his damages because his father would have hired him earlier if he had not en gaged in picketing The discnminatee s backpay period extends from July 7 1981 to February 27 1982 Net backpay claimed for Lucas is $102 89 the entire sum being attributable to quarter 3 1981 He experienced interim earnings of $3236 86 during quarter 3 1981 and his interim earnings exceeded gross backpay during quarter 4 1981 and quar ter 1 1982 Lucas testified he walked the picket line at Respond ent s Huntington site a couple days a week mostly at night He testified he was not hired by his father until mid August 1981 because Lucas Construction Company had no job for him until that time In the absence of evidence that would reveal a job opening which Lucas was qualified to fill existed at Lucas Construction Company pnor to mid August 1981 I find Respondent has failed to show that Barry Lucas failed to fulfill his obligation to mitigate the damage caused him by Respondents discrimination against him K Michael Preston Respondent contends Michael Preston s participation in picketing prevented him from conducting a reasonably diligent search for employment during the months of July and August 1981 and that his enrollment as a full time college student in early September 1981 disqualifies him from being awarded backpay subsequent to his en rollment Preston s backpay period extends from July 7 1981 to May 1 1982 Net backpay in the amount of $5046 91 is claimed fo the discriminatee He experienced no interim earnings during the backpay period Preston testified his picketing activities were limited to the first week of the strike which commenced on June 29 1981 After that time he testified he started looking for another job He indicated he sought work at Armco Ashland Oil Ayres Tech Chem Calgon Corporation several coal tipples a coal dredging facility and Ken tucky Power Additionally he testified he visited Hun tington Job Services several times The discriminatee tes tified his search for work continued until he enrolled at Marshall College on September 3 1981 and that he may have refrained from enrolling as a full time student if he had found employment in the construction industry pnor to enrolling Noting Preston s testimony reveals he participated in picketing for only a short time most if not all being prior to the time of his termination and noting the exten sive search he made for employment during the months of July and August 1981 I find Respondent has failed to establish that the employee failed to conduct a reason ably diligent search for interim employment during the months indicated In agreement with Respondent I find the discnmmatee is not entitled to backpay for the period extending from September 3 1981 to May 1 1982 be cause he removed himself from the job market by re maining enrolled as a full time college student during that period The record reveals Preston was employed by Re spondent as a laborer and his net backpay was computed by application of the data set forth in that portion of ap pendix A to the specification labeled Laborers (pp 1- 8) The appendix reveals net backpay of $2268 73 repre senting compensation for 11 8 weeks and/or 458 33 hours at $4 95 is claimed for quarter 3 1981 I find the discri minatee s entitlement to backpay ceased on September 3 1981 Accordingly I find he is entitled to backpay for 8 3 weeks (July 7-September 3 1981) and/or 318 41 hours times $4 95 which amounts to $1576 13 L Woodie Rice Respondent contends Woodie Rice sought employ ment at only two places during the period extending from September 22 1981 to March 12 1982 and he thereby failed to mitigate his obligation to mitigate dam ages during a portion of his backpay period Rice s backpay period extends from July 7 1981 to May 8 1982 Net backpay claimed for the discriminatee is $2722 52 He experienced interim earnings of $4295 98 in quarter 3 1981 0 in quarter 4 1981 $264 64 in quarter 654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 1982 and his interim earnings exceeded gross backpay that would have been due him in quarter 2 1982 The discriminatee testified with exception of 10 years during his early life he has worked as a carpenter He indicated he registered with the Carpenters Union short ly after the strike at Respondents Huntington jobsite began and he was referred to work with E E Moore at the Huntington Mall on or about July 13 1981 Rice tes tified he was laid off by Moore after about 6 weeks and he returned to the union hall to sign up for work again In a week or two he was referred to work with A C Schwartzer The record fails to reveal when Rice s job at Schwartzer ended but it reveals he next worked for McMurray During the period extending from September 22 1981 to March 12 1982 the discnminatee was unem ployed He testified he sought work during that period by signing in at the Carpenters Union an average of two times a week and hanging around mornings in an attempt to obtain work Additionally he indicated he registered with the state employment agency and was permitted to draw unemployment on satisfying their requirement that he look for work The discnminatee tendered the card he had furnished the employment agency to Respond ent s counsel during the hearing but no information that appeared on the card was elicited Although the discri minatee received no referrals from the state agency he indicated he also sought work during the period under discussion from Childers Construction Company and Elko Construction Company He indicated neither com pany was hiring or accepting applications Rice was em ployed by Le Febare Corp on March 12 1982 and thereafter worked for Harbert International Inc until the end of his backpay period In sum the record reveals Rice is a carpenter who normally obtains work in the construction industry through use of his union s hiring hall When his union was unable to find him work during the winter months of 1981-1982 he spent several mornings a week at the hall in an attempt to gain referral to any work that became available and he registered with the state em ployment agency To obtain unemployment benefits he was required to furnish the state agency with the names of companies at which he had sought employment and the results of such contacts Although the discnminatee proffered the card he had documented the above de scribed information on to Respondents counsel when he was being cross examined counsel chose not to elicit in formation that was on the card When asked to state his recollection of places he sought employment during the period September 22 1981 to March 12 1982 the discri minatee named two companies Consideration of the above described facts together with those facts which reveal that Rice remained con stantly employed during periods when the weather per mitted the performance of construction work causes me to conclude that Rice exercised reasonable diligence in seeking interim employment throughout his backpay period Accordingly I find Respondent has failed to es tablish that the employee did not fulfill his obligation to mitigate damages during his backpay period According ly I find the discriminatee is entitled to net backpay in the amount indicated in the backpay specification M Carmal Saunders Respondent contends Carmal Saunders failed to exer cise reasonable diligence in seeking work during the first 2 weeks of January 1982 Saunders backpay period extends from July 7 1981 to January 16 1982 Net backpay in the amount of $122 64 is claimed for the discriminatee The discrimma tee s earnings during quarters 3 and 4 1981 exceeded gross backpay The discriminatee is a carpenter After he was dis charged by Respondent he registered out of work with the Carpenters Union and he was referred to work on or about July 14 1981 at E E Moore Company When he was laid off by E E Moore Company he again regis tered out of work with his union and was referred to work at Jack W Davis When he was laid off by that company he registered out of work with his union and was referred to work at National Engineering & Con structing Co Saunders earnings while working for the above named companies during quarters 3 and 4 1981 exceeded the gross backpay otherwise due him for the period Thus he mitigated damages during the period described in the amount of $4966 32 Saunders was un employed during the first 2 weeks of 1982 His testimony reveals he registered out of work with the state employ ment agency and his union In sum the record reveals Saunders obtained work through his union during approximately 22 of the 25 weeks of his backpay period His 2 week period of un employment which is at issue occurred during mid winter Nevertheless the discnminatee sought work during the 2 week period under discussion by registering out of work with the state employment agency and his union In the circumstances described I find Respondent has failed to show that Saunders failed to mitigate dam ages during his backpay period by failing to exercise rea sonable diligence in his search for work during the first 2 weeks of January 1982 Accordingly I find he is entitled to the sum of $122 64 N Michael White Respondent contends that by engaging in picketing 2 or 3 days a week through August 1981 Michael White failed to conduct a reasonably diligent search for work and should receive no backpay White was employed by Respondent as a carpenter Net backpay in the amount of $3958 78 is claimed for the discnminatee His backpay period extends from July 7 to November 7 1981 He had no interim earnings White testified that he participated in picketing at Re spondent s Huntington jobsite until some unstated time after August 1981 White indicated he picketed when he was scheduled to picket but he could not recall the hours or number of days he engaged in such activity He testified he did not picket each week during the period under discussion White testified he sought work during the last half of 1981 at American Power Electric Company Central Plant Maintenance Division in Winville Southern States Warehouse in Huntington and Enz}ne Electric in Hun tington Additionally he testified he sought work SCHNABEL ASSOCIATES 655 through the Carpenters Union The discriminatee tests fled he sought work during the period he engaged in picketing and left the Picket line on one occasion to par ticipate in a job interview at American Power Electric Company Noting the record reveals that White searched for work during periods when he participated in picketing activity I find Respondent has failed to establish that the discriminatee s participation in picketing activity caused him to fail to conduct a reasonably diligent search for employment Accordingly I find he is entitled to receive the net backpay alleged to be due him in the backpay specification 0 Steven White Respondent contends Steven White did not exercise reasonable diligence in seeking interim employment during his backpay period White was employed by Respondent as a carpenter s helper His backpay period extends from July 7 to No vember 7 1981 Net backpay in the amount of $3632 31 is claimed for the dtscrtmtnatee He had no interim earn ings during the backpay period White testified he lived right across from Respondent s Huntington jobsite and he engaged in picketing for 2 or 3 months Although the discriminatee testified he did not engage in picketing everyday he indicated he remained in the vicinity all day on occasion as he lived right there The dtscrtmtnatee testified he sought employment all over Huntington even door to door after being terms nated by Respondent He sought work through the Car penters Union and ran ads in the paper in an attempt to obtain painting work as he had previously had a painting business Additionally White indicated he registered with the state employment agency That agency referred him to Heiner s Bakery but he was not hired Addition ally the discriminatee testified he sought work at every seafood shop around (Huntington) every supermarket around and applied at Lowe s Hardware and Lumber yard White indicated that much of his time during Septem ber 1981 was consumed in driving his sister to a local hospital where his brother in law was recovering from surgery He indicated he went to the hospital almost ev eryday and spent the night there every 2 or 3 days Considering that evidence summarized above which reveals White conducted an extensive search for employ ment during his backpay period I find Respondent had failed to establish that the discrimmatee s participation in picketing or hospital activities interfered with his effort to search for interim employment during his backpay period Accordingly I find he is entitled to the net back pay alleged to be due him in the backpay specification ployees forfeited their right to backpay by failing to appear at the hearing I find the contention to be without merit Thus in Starlite Cutting Inc 284 NLRB 620 (1987) the Board sets forth the procedure to be followed indicating the backpay due such employees is to be placed in escrow with the appropriate Regional Director and is to be held for a period not exceeding 1 year 6 Regarding Ronnie Messer I note that the Region ap patently discussed interim earnings with the discrimina tee Thus the backpay specification alleges his backpay period extends from July 7 1981 to January 16 1982 that net backpay due is $3397 55 and that he experienced interim earnings of $47101 in quarter 3 1981 $619 75 in quarter 4 1981 and that his interim earnings exceeded gross backpay in quarter 1 1982 At the commencement of the backpay hearing counsel for the General Counsel represented that all discrimina tees except those the Region was unable to locate had been subpoenaed to attend the backpay hearing Messer did not appear and the record fails to reveal the reason for his failure to respond to subpoena In the circum stances described I find that Ronnie Messer s entitlement to an award of backpay was extinguished by his failure to cooperate with the Board during the compliance stage of the instant case On the basis of the foregoing and on the entire record in this proceeding I issue the following recommended' ORDER The Respondent Schnabel Associates Inc Hunting ton West Virginia its officers agents successors and as signs shall make whole the following claimants by paying them the following amounts with interest Floyd Bartram $3 958 78 Garry Berry 707 38 Mark Dickerson 5 023 57 Jay Enochs 7 060 26 Charles Farris 3 406 12 Donald Hatten 10 831 75 Elmer Kirk 3 958 78 Barry Lucas 102 89 Gerald Meeker 2 518 07 Michael Preston 1 576 13 Woodie Rice 2 722 52 Carmal Saunders 122 64 Gregory Wallace 3 662 12 Michael White 3 958 78 Steven White 3 632 31 Paul Williamson 2 794 30 IT IS FURTHER ORDERED that Respondent place in escrow for the period of 1 year under the terms indicat P John Price Terry Buxton Ronnie Messer and Mark Shaffer The record reveals the Region was unable to locate discriminatees John Price Terry Buxton and Mark Shaffer and it was thus unable to question them about their interim earnings if any during their respective backpay periods Respondent contends the named em 9 The 1 year period begins with the Respondent s compliance by pay ment of the backpay for deposit into escrow or the date the Board s Sup plemental Decision and Order becomes final including enforcement whichever is later Starlite Cutting Inc supra 7 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 put poses 656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed supra the following sums for the discriminatees indi The above indicated sums shall be payable with inter cated est to be computed in the manner prescribed in New Ho- rizons for the Retarded 8 Terry Buxton $ 707 38 John Price 3 549 20 Mark Shaffer 212 06 8 In accordance with the decision in New Horizons for the Retarded 238 NLRB 1173 (1987) interest on and after January 1 1987 shall be com puted at the short term Federal rate for the underpayment of taxes as set out in the 1987 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amend ment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977)