Retail Delivery Systems, Inc

RETAIL DELIVERY SYSTEMS Retail Delivery Systems, Inc and Teamsters, Chauf feurs, Warehousemen, Industrial and Allied Workers of America, Local 166, AFL-CIO i Case 31-CA-15059 December 30, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 31, 1987, Administrative Law Judge Earldean V S Robbins issued the attached supple mental decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,2 findings,3 and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Retail De- livery Systems, Inc, San Bernardino, California, its i 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 judge advised the Respondents counsel that he could request a continuance in response to the Respondents objection to the extension of the backpay specification to include the disputed period in which the Re spondent alleged the employee was legitimately suspended The Respond ent s counsel did not make such a request and we adopt the judges ruling a The Respondent has excepted to some of the judge s credibility find rags 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 The Respondent s reliance on NLRB P Flite Chief Inc 640 F 2d 989 991 (9th Cir 1981 ) is misplaced In that case the court refused to enforce the Board s Order and found that the discriminatee had intentionally con cealed interim earnings However in that case the administrative law judge totally discredited the discnminatee s testimony and found that the discrimmatee s failure to report $8000 of interim earnings earned in four different jobs which involved steady work for periods ranging from I month to as long as 7 months amounted to a willful concealment of inter im earnings To the contrary in this case the judge credited Mayer s tes timony that it simply had not occurred to him to list on the compliance forms sporadic odd jobs he had held for short periods of time for which he had never even been on an employers payroll and for which his total earnings were $900 When it came to Mayer s attention that he should have listed this income he informed counsel for the General Counsel and the backpay specification was adjusted 121 officers, agents, successors, and assigns, shall take the action set forth in the Order 4 4 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 as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) Ann Reid Cronin Esq for the General Counsel John H Stephens Esq (Cox Castle & Nicholson), of Los Angeles California, for the Respondent SUPPLEMENTAL DECISION EARLDEAN V S ROBBINS, Administrative Law Judge On 6 May 1986 the National Labor Relations Board (the Board) issued its Order (unpublished) in this matter in which it directed Retail Delivery Systems, Inc (Re spondent) to offer to Tim Mayer immediate and full rein statement to Respondents casual list of employees and offer him jobs as a casual employee on a nondiscrimina tory basis and make him whole for any loss of earnings and other benefits as a result of the discrimination against him with interest on lost earnings On 29 July 1986 the Regional Director approved a stipulation entered into by the parties in which Respond ent waived its rights under Section 10(e) and (1) of the Act to contest either the propriety of the Board s Order issued 6 May 1986 or the findings of fact and conclu lions of law underlying that Order Respondent, having failed and refused to make whole Mayer, and a contro versy having arisen over the reinstatement of Mayer and the amount of backpay due under the terms of the Order the Regional Director for Region 31 of the Board issued a backpay specification and notice of hearing al leging the backpay due under the Board s Order for the period from 22 March 1985 through 30 June 1986 (re serving for further determination Respondents backpay obligation to the discriminatee for all periods after 30 June 1986) to which Respondent filed a timely answer The matter was heard before me in Los Angeles Califor nia on 7 8 and 9 October 1986 Posttrial briefs were filed by the General Counsel and the Respondent The principal issues are 1 Whether the backpay formula set forth in the back pay specification is the correct one i 2 Whether Respondent properly reinstated Mayer 3 Whether Mayer incurred a willful loss of interim earnings 4 Whether Mayer intentionally concealed interim em ployment thereby warranting denial, or reduction of backpay On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties, I make the following i The parties stipulated that if the formula set forth in the backpay specification is found to be appropriate the formula has been correctly applied in the computation of backpay set forth in the backpay specifics Lion 292 NLRB No 24 122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT A The Backpay Formula Issue In the operation of its delivery service out of its San Bernardino facility Respondent employs, in addition to its regular complement of employees, a number of casual drivers and helpers who work on an on call" basis 2 Mayer is a college student who, prior to his termination, was on Respondents list of casual employees During the school year, he worked almost every Saturday and on weekdays as his school schedule permitted and as Re spondent s needs required During the summer months he worked 3 or 4 days a week as needed by Respond ent 3 He worked primarily as a helper and sometimes as a driver Because he only drove bobtail trucks, he did not have a class 1 driver s license The formula for computing Mayer s gross backpay is alleged in the backpay specification as follows 2 An appropriate measure of the amount the discri minatee would have earned during each calendar quarter of the backpay period is the percentage of available casual hours worked, in the job classifica tions of helper and driver, by the discriminatee in each calendar quarter from April 1 1984, to March 22 1985 which is the period immediately preceding the backpay period times the discriminatee s rates of pay for each of those job classifications in effect on the date of his termination, times the hours worked in each corresponding calendar quarter during the backpay period by casual employees in those two job classifications on days on which the discrimmatee was available for work during the backpay period Respondent contends that the appropriate measure of the amount Mayer would have earned during the back pay period is his earnings during the year and one quar ter immediately preceding his reinstatement since (1) in 1985 Respondent began a practice of requiring all casu als to have a class 1 drivers license which Mayer did not have and therefore he would either not have been employed by Respondent or would only have been em ployed as a helper and (2) Mayer was unavailable for work at numerous times during the backpay period The evidence on which Respondent relies in support of its unavailability argument shows merely that Mayer was incapacitated or out of town on several 1 or 2 day occasions Although in the proper circumstances this may be sufficient to support a reduction in the gross backpay for the particular day it is not sufficient to refute an otherwise appropriate formula Regarding Mayer s lack of a class 1 driver s license, he was not told until 22 August that a class 1 license was needed If he had been there is no reason to assume that he could not have obtained one Any uncertainty in this regard must be resolved against the wrongdoer-Respondent Fur ther throughout the backpay period Respondent contin 8 In August 1986 Respondent employed 10 to 15 casuals 9 See Judge Holmes original decision in this matter ued to use bobtail trucks and there is no evidence that all casual drivers during this period had class 1 licenses I find Respondents arguments unpersuasive Field Ex ammer James Middleton testified, without contradiction, that an examination of the timecards of all Respondent s casual employees during the backpay period and during the period preceding Mayer s termination which is pro posed by Respondent shows an increase in the number of hours worked by casuals during the backpay period over the period proposed by Respondent I, therefore, find that the formula set forth in the backpay specifica tion, which reflects the increased amount of work by casuals, is a more accurate approximation of what Mayer s earnings would have been had he not been un lawfully terminated Accordingly I further find that Re spondent has failed to establish that the formula set forth in the backpay specification is inappropriate B The Reinstatement Issue Prior to his termination on 22 March 1985 Mayer worked most Saturdays and some weekdays4 during the school year and 3 or 4 days a week during the summer In early March 19865 after the issuance of Judge Holmes original decision Arnold Oatsval, office super visor and dispatcher in Respondents San Bernardino fa cility telephoned Mayer and asked if Mayer wanted his job back Mayer said he did and further stated that he was available on Tuesdays, Thursdays and Saturdays Mayer was called to work the following Saturday, 8 March He worked only on Saturdays from then until mid June according to the allegations of the backpay specification which Respondent stipulated was correct in this regard Middleton testified, without contradiction that his examination of the timecards up to 13 June re vealed that Mayer worked only 1 weekday Commencing 13 June, Mayer was available to work full time and so informed Oatsval Nevertheless accord ing to Mayer he continued to be called to work primari ly on Saturdays until sometime in July when Respondent ceased calling him to work According to Mayer on one occasion when he asked Oatsval if he was to work the next day Oatsval said there was no work Thereafter on a Friday about 1 August Mayer telephoned Oatsval and asked why he had not been called to work Oatsval said he was not suppose to call Mayer Mayer inquired why and Oatsval said he did not know When Mayer asked who did, Oatsval replied that Respondents vice presi dent, Greg Keyes knew Mayer requested Keyes' tele phone number and asked Oatsval to try to find out why he was not being called On the following Monday, Oatsval informed Mayer that Keyes wanted to meet with him Mayer did meet with Keyes Oatsval and Bob Hagbom 6 Mayer testified the meeting was on Tuesday and Keyes testified it was on Friday 15 August Oatsval and Hagbom did not testi fy According to Mayer Keyes gave three reasons why 4 From September 1984 Mayer was available to work on Wednesdays and did so whenever Respondent dispatched five trucks S All dates will be in 1986 unless otherwise indicated 6 Hagbom is employed in a customer service capacity to work as a liar son with Sears Respondents principal customer RETAIL DELIVERY SYSTEMS Respondent had ceased employing him-(1) an incident involving a broken handtruck (dolly) (2) an occasion when Mayer could not come to work, and without in forming Respondent, sent another employee to work in his place and (3) his failure at times to have tools or a map book when he worked as a driver Mayer testified that Keyes asked for his side of the dolly incident Mayer explained that he was working as a helper when the truck got stuck in the mountains The driver, Fred Grossenbach told him to use the dolly to try to free the truck He did so, but the dolly was dam aged when it accidentally became caught under the wheel of the truck Keyes then said something came across his desk regarding Mayer having sent another em ployee to work in his place Mayer said he was ill and concerned that he would fail to wake up in time to call in the following morning, so he arranged for another em ployee to substitute for him Mayer further testified that Keyes also said he had heard that Mayer sometimes reported for work without tools or a map book Mayer admitted this occurred at times He said sometimes he would be called to work as a helper, but when he reported for work he would be as signed to drive and would not have his channel locks (adjustable pliers) On these occasions, he would borrow them from other employees or from Oatsval On other occasions when his map book did not have a page he needed, he has borrowed a map book from Oatsval Keyes then said according to Mayer, that Mayer must have noticed that Respondent was changing over to an all tractor/trailer fleet which would require Mayer to have a class 1 license ' if he intended to continue work ing for Respondent Mayer asked if he would be permit ted to practice on Respondents tractor/trailers Keyes said he would Keyes then said, now that he had gotten everything straightened out Respondent would resume calling Mayer to work Keyes said Respondent had a new telephone number-an 800 number and reminded Mayer that there was another 800 number to call for Sears if there was any trouble Oatsval then gave Mayer both 800 numbers At this point Hagbom briefly went over some customer relations points with Mayer As Mayer and Oatsval were walking out of the office, Oats val said I thought Fred was your friend, he told me the dolly was your fault Keyes version of Mayer s explanation about the hand truck and substitute incidents was not substantially differ ent from Mayers However he also testified that after Mayer related what had occurred with the handtruck he instructed Mayer that in the future if a driver or anyone told him to do anything that would damage company equipment, he should refuse and call the dispatcher Re garding the substitute incident Keyes said that sending in a substitute was absolutely not company procedure and if Mayer could not come to work he was to call the office According to Keyes he then asked Oatsval if he had anything to add Oatsval said he had a complaint that sometimes Mayer reported for work without tools 7 A class I driver s license is required to drive a tractor /trailer Only a regular drivers license is required to drive a bobtail or to work as a helper 123 or a map book He said he had spoken to Mayer regard ing this several times but Mayer said he did not recall any such conversations Keyes said Mayer needed to have proper tools to work Keyes testified that he then concluded the meeting by saying, We are going to a tractor/trailer operation as you can see Were having less and less of a need for bobtails and I need you to get your class I license To be more available-to be more of a need for me Mayer asked if he could use Respondents equipment to prac tice Keyes said yes but he should call first to be sure a piece of equipment was available Keyes then said, Here is an 800 number I want you to call for work Keyes asked about Mayer s availability for work Mayer said he was available every day Later that day, by telephone, Oatsval offered Mayer work for the following day However, Mayer had lost a contact lens and expected to go to the doctor on that next day so he was not available On 22 August Re spondent attempted to offer Mayer work for the follow ing day Joan Smith Respondents office manager in the Vernon office, testified that she called Mayer s home at 4 or 4 30 p in and spoke to a man who identified himself as Mayers father Smith said she was calling to see if Mayer could work the next day The man said, I thought you had fired him Smith said he had not been fired and left a message for Mayer to call About 5 30 that same day according to Smith, when she telephoned again just before she left work the man told her Mayer was not in but should be there around 6 30 p in Smith related this information to the new dispatcher Jerry Norman Thompson 8 Thompson said he would call Mayer According to Smith, she has never called Mayer again Thompson testified that he called around 5 30 p in and spoke to Mayer s father He called again at 6 30 p in and spoke he believes to Mayer s mother who said Mayer was out He told her he needed Mayer to work the fol ]owing day and left his home number However, he re ceived no return call that evening, so the following morning he called another employee Thompson further testified that he believes he also called Mayer the follow ing Friday and was told he was at the beach or the mountains or something He never called Mayer for work again Mayer s father Howard Mayer testified that about 4 30 or 5 p in , just as he and his wife returned home, he answered a telephone call from a man who identified himself as being from Retail Delivery and asked if Tim was there When he said no, the man said they wanted Mayer to work and he would call again A man called again just before 6 p in and asked if Tim had gotten in Howard Mayer said no The caller asked if he knew where Tim was Howard Mayer said no, and asked how Tim could get in touch with him The caller said he was leaving Respondents facility and gave his home tele phone number Later that evening, Howard Mayer s wife told him Tim was at the beach The following morning at 7 or 8 am, a man called, said `this is Retail Delivery, 8 Oatsval transferred to the shuttle on about 15 August 124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is Tim there9 Howard Mayer replied, No he s at the beach Howard Mayer denies that he ever told the person when Tim was expected He also denies saying he thought Tim had been fired or that he had any other conversation with anyone from Retail Delivery The General Counsel argues that Mayer was not prop erly reinstated because he was given only Saturday work whereas, prior to his termination he also worked on cer tarn weekdays Further in July, Respondent ceased call ing him at all Respondent contends that he was properly reinstated on 8 March In support thereof, Respondent argues that Mayer did not have a class 1 drivers license and, therefore could not drive tractor/trailer equipment Keyes testified that at the time of the hearing, Respond ent had three bobtail trucks which are used once a week on Saturday and very rarely during the week He further testified that, from 1 July to the date of the hearing, no casual employee drove a bobtail truck during the week because it would not be needed However he admits that during this period he only visited the San Bernar dino facility five or six times for periods of half a day or two thirds of a day No further evidence was adduced by Respondent on this issue Thompson was not ques tioned in this regard and Oatsval did not testify, even though they were the dispatchers during this period and presumably more knowledgeable concerning what equip ment and employees were dispatched No evidence was adduced to establish that Keyes in the normal course of his duties, would have such direct knowledge of what equipment and employees were dispatched on a daily basis He admits that he does not know what casual em ployees if any possess class 1 licenses Further Mayer was not told prior to 22 August that such a license was required Nor were any logs or other records introduced to corroborate Keyes assertion Also no evidence was adduced whether casuals worked as helpers on week days In the circumstances I find that Keyes is not a reli able witness in this regard Further no evidence was ad duced as to the practice in March through June Accord ingly I find that Respondent has failed to establish that no weekday or driver work was available for Mayer at the time he returned to work or thereafter Regarding Mayer s removal from the casual list in July Respondent argues that this action was justified by the dolly and substitute incidents and by Mayer s failure to come to work prepared with tools or a map book I find no merit in this contention Mayer testified credibly that it was common for employees to borrow map books among themselves and from Respondent and that he never heard any Respondent representative tell employ ees they should not borrow pliers or map books Fur ther, from Keyes account of the 22 August discussion it is apparent that the tools and map books were not a con sideration in the decision to stop calling Mayer for work Mayer also testified without contradiction that prior to 22 August he was never questioned or counseled re garding the dolly incident nor told why he was not being called Further on the day of the incident, when Mayer and Grossenbach returned to Respondents facili ty Oatsval noticed the dolly was bent and told Grossen bach, Fred you ruined another dolly This is your second in two weeks Grossenbach said yes he got stuck and had to use the dolly to get unstuck Thus it is apparent that at least initially Oatsval considered the driver to be responsible for the incident Yet Grossen bach was returned to the casual list before Mayer was Further, according to Mayer s undenied testimony he had secured a substitute on at least one occasion before the incident involved but was never criticized or repri manded for doing so nor was he counseled or repri manded prior to 22 August for the incident involved In these circumstances, I conclude that the reasons as serted by Respondent for removing Mayer from the casual list in July were pretextual and further evidence of Respondents refusal to assign Mayer work on the same basis as it has prior to his termination 9 Based on the foregoing I find that Mayer was not properly rein stated prior to 15 August However it is undisputed that during his 15 August meeting with Mayer, Keyes informed Mayer that Re spondent would resume calling him for work and gave him an 800 telephone number to call about his availabil ity It is also undisputed that later that same day Mayer was offered work for the following day which he re fused because he planned to go to the doctor the next day Thompson tried to contact Mayer for work again the following week but Mayer was not at home Ac cording to Mayer s father, Respondent made two calls to Mayer s home one day and, despite the fact that Mayer was not at home and failed to return the call, a third at tempt was made to contact him the following morning Again he was not at home Thereafter Respondent made no further attempt to call Mayer to work On the other hand despite having been unavailable two consec utive weeks on a day when he was always supposed to be available, Mayer never called Respondent regarding his availability Thompson testified that when Mayer did not return his call and never called in later he assumed Mayer was not interested in working In the absence of evidence of disparate treatment I find this was not an unreasonable assumption The record is clear that Re spondent had a practice, predating Mayer s termination whereby sometimes employees called in for work and sometimes Respondent called the employees i 0 Here, Respondent made what appeared to be a valid offer of reinstatement and actually called Mayer for work on two consecutive Saturdays In the absence of evidence of disparate treatment or availability of week day work during that intervening week and in the cir cumstance when after 2 consecutive weeks of being un available on a day when he normally should have been available, Mayer never called to reaffirm his availability, I find that Mayer was properly reinstated on 15 August Accordingly, I find that the backpay period ended on 15 August 1986 9 This conclusion is not changed by Oatsval s indication on 15 August that Grossenbach claimed the damage was Mayer s fault inasmuch as Re spondent made no effort prior to 15 August to ascertain Mayer s version of what occurred 10 The record does not support Respondents position that this obliga tion fell solely on the employees RETAIL DELIVERY SYSTEMS C The Mitigation of Damages Issue It is well established that an employer may mitigate his backpay liability by establishing that a discriminatee willfully incurred loss by a clearly unjustifiable refus al to take desirable new employment Phelps Dodge Corp v NLRB 313 U S 177, 199-200 (1941) However this is an affirmative defense and the employer has the burden of proving facts that would mitigate its liability NLRB v Mooney Aircraft 366 F 2d 809, 813 (5th Cir 1966), NLRB v Miami Coca Cola Bottling Co 360 F 2d 569 575 (5th Cir 1966) NLRB v Brown & Root Inc, 311 F 2d 447 (8th Cir 1968) That burden is not met by evidence of lack of employees success in obtaining inter im employment or of low interim earnings Rather, the Respondent must affirmatively establish that the employ ee neglected to make reasonable efforts to find interim work NLRB v Miami Coca Cola Bottling Co, supra at 575-576 Further, a discriminatee is held only to reason able exertions in this regard not the highest standard of diligence NLRB v Arduini Mfg Co, 394 F 2d 420 422-423 (1st Cir 1968) Also a discriminatee s obligation to mitigate damages does not require success in a search for interim employment it only requires an honest, good faith effort NLRB v Cashman Auto Co, 223 F 2d 832,E 836 (1st Cir 1955) The employees skills and qualifica ^ tions age and the labor conditions in the area are factors to be considered in determining the reasonableness of this effort Mastro Plastics Corp, 136 NLRB 1342, 1359 (1962) Respondent makes two principal arguments in support of its position that Mayer did not engage in a minimum, good faith and diligent search for interim employment (1) he eschewed nearly all normal job seeking methods in favor of securing job leads through his father, rela tives and friends and (2) he did not file an application form with any employer However the record evidence is insufficient to meet Respondents burden of proof in this regard Although Mayer admits he did not seek em ployment through the college student placement service the State of California Employment Development De partment or private employment agencies he credibly testified that he had never heard of the casual labor office of the California Employment Development De partment or the student placement offices The evidence obtained from the center and introduced into evidence indicates that only a very small percentage of the student body utilizes the service of the center 11 Mayers previ ous job search was made through family contacts Thus he obtained his job with Respondent through his godfa ther and never filled out an application form prior to his employment 13 Respondent adduced evidence of available jobs at Polytechnic where Mayer was enrolled during the 1985-1986 school year which is alleged as typical of the type of jobs available from the center However most of the more than 400 jobs listed required specific skills and/or expe pence Roughly 3 percent were for driver and/or helper type jobs Of these more than one half required working hours that Mayer could not meet Most paid less than $5 an hour and about one half required employ ees to use their own cars At Chaffey College monthly student traffic ranged from less than 2 percent to slightly more than 8 percent of the full time enrollment The percentage would be substantially less if one considers the part time enrollment 125 Following this same pattern, he sought interim em ployment through contacts made or suggested, by his father, other relatives and friends The parties stipulated that he called approximately 24 prospective employers as a result of such contacts, telephoned about 4 other em ployers selected at random from the telephone directory or from general reputation in the community and actual ly visited 10 prospective employers I credit his testimo ny that he made limited personal visits to prospective employers because of his school schedule and assign ments It is not unusual for individuals to rely on assist ance from family, friends, and acquaintances in seeking employment Sioux Falls Stock Yards Co, 236 NLRB 543, 556 (1978), Vanguard Oil & Service, 246 NLRB 130, 133 (1979), December 12 Inc, 282 NLRB 475 (1986) Further, Respondent produced no evidence to show that Mayer would have been permitted to file any application forms or would have received employment if he had done so Nor did Respondent produce evidence that he rejected any job offers or that there were jobs available which would have been offered to him This is insufficient to meet Respondents burden of proof that Mayer did not diligently seek work during the backpay period An employee who has been discrimina torily discharged need not instantly seek new employ ment Saginaw Aggregates, 198 NLRB 598 (1972) Nor will a backpay claimant be found to have incurred a willful loss of earnings merely because the search for in terim employment was not made in each and every quar ter of the backpay period Rather as the Board stated in Cornwell Co, 171 NLRB 342 343 (1968) The entire backpay period must be scrutinized to determine whether throughout that period there was in the light of all sur rounding circumstances, a reasonably continuing search such as to foreclose a finding of willful loss See also Firestone Synthetic Fibers Co 207 NLRB 810 812 (1973) Southern Household Products Co, 203 NLRB 881 (1973) Employees are not automatically disqualified from back pay because of their poor recordkeeping uncertainty as to memory or even exaggeration Pat Izzi Trucking Co 162 NLRB 242 245 (1966) Kansas Helium Co 252 NLRB 1156 (1980) Further a good faith search for em ployment does not necessitate that the employee spend all of everyday searching for employment Laidlaw Corp, 207 NLRB 591, 603 (1973), enfd 507 F 2d 1381 (7th Cir 1974), cert denied 422 US 1042 American Medical Insurance 235 NLRB 1417 1419-1422 (1978) I therefore find that Respondent has failed to establish that Mayer did not make a diligent search for employment during the backpay period D The Alleged Fraudulent Concealment of Interim Earnings It is undisputed that Mayer failed to include on the compliance forms submitted to the Board's Region 31 his earnings from casual labor he performed for three em ployers on several occasions (1) Second quarter 1985-$250 from Rancho Pacific Electric for painting the office exterior over a 2 day period 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (2) Third quarter 1985-$50 from Rancho Pacific Electric (Mayer s brother in law is president) for 1 day s work moving material in a warehouse and doing yard work (3) First quarter 1986-$40 from Rancho Pacific Elec tric for a day or a portion of a day making deliveries (4) Third quarter 1986-$480 from Rancho Pacific Electric for painting the interior of the office intermit tently over a 2 week period (5) Third quarter 1986-$100 from Lyman Scheel Pools (a neighbor) for painting a wall on 1 day 12 (6) Third quarter 1986-$65 from Eddie Haber for 1 day's work as a helper on a truck Essentially Respondent contends that fraudulent con cealment of interim earnings can be inferred from the total amount involved, the fact that the compliance forms were generally filled out by Mayer only 5 to 8 weeks after the employment and the fact that the em ployment was not on a regular payroll but rather was in the underground economy The Board s general rule as to the effect of fraudulent concealment on a backpay remedy is set forth in American Navigation Co, 268 NLRB 426 (1983) In that case, the Board held that it will deny backpay only for those calendar quarters in which a discriminatee intentionally concealed interim employment from the Board, reasoning that such a remedy will discourage claimants from abusing the Board's processes for their personal gain and also deter respondents from engaging in future unfair labor prac tices However, the Board noted that this remedy is ap plied only when the discriminatee has willfully deceived the Board, and not when the failure to report earnings is inadvertent Here, the earnings in question were from odd jobs, and Mayer was never on the payroll of these employers Ini tially when he was questioned on cross examination, why he had not included specific earnings on his compli ance report he testified that he had not recalled doing the work On further questioning regarding other earn ings, he clarified that it was not that he had forgotten, it was just that he had never even thought about it I credit Mayer that it never occurred to him that he should list these odd jobs The compliance form instructs the claimant to list the name and address of your employers during this period It is inaccurate but not particularly unusual for individuals to equate the term employer only with one on whose payroll the individual appears and not to con sider the giver of odd jobs' as one s employer Further he reported these earnings prior to the hearing and did not lie under oath Thus, once he was informed by his brother in law and by Scheel that they had been subpoe naed by Respondent he verified with them the amount of his earnings and immediately informed counsel for the General Counsel After giving further thought as to any other earnings of that type he may have had, he recalled the Haber employment and also reported that to counsel for the General Counsel Moreover, the bulk of these earnings were in July and August, months during which Mayer was in Respondents employ for at least a portion of the time Respondent adduced no evidence to show that the employment occurred during the time that Mayer was excluded from the casual list or that the work was not supplemental work performed during times when, on a nondiscriminatory basis Respondent had no work available for him Accordingly in the circumstances I find that Mayer did not attempt to fraudulently conceal interim earnings Based on the foregoing, and the entire record it is found (a) Mayer s backpay period commenced on 22 March 1985 and ended 15 August 1986, the date Respondent for the second time reinstated Mayer to the casual list (b) During the backpay period, until 13 June 1986, Mayer had interim earnings as set forth in the backpay specification, as amended during the hearing (c) Mayer is entitled to backpay in the amounts set forth below for that portion of the backpay period up to and including the first quarter of 1986 plus an amount to be determined for the second and third quarters of 1986 plus interest 13 Calendar Qtr Net Backpay 1st 1985 $18249 2d 1985 1 648 06 3d 1985 4,510 09 4th 1985 2 210 46 1st 1986 1,112 60 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed14 ORDER The Respondent Retail Delivery Systems, Inc San Bernadino, California its officers agents, successors, and assigns shall jointly and severally make Tim Mayer whole by payment to him of the amounts set forth above and in the appendix, and the amount, to be determined by the Regional Director, for the second and third quar ters of 1986 plus interest accrued to the date of payment pursuant to Florida Steel Corp 231 NLRB 651 (1977) 12 Scheel paid $200 for the job Mayer paid $100 of that to Scheel s son who helped him 13 Because the record does not contain information sufficient to deter mine the amount of Respondents backpay liability from 14 June to 15 August 1986 inclusive the amount of backpay due Mayer for the second and third quarters of 1986 is left for determination by the Regional Di rector Backpay is computed as alleged in the backpay specification as amended with modifications for the second and third quarters of 1986 to reflect my finding that the backpay period ended on 15 August 1986 Backpay computations through the 1st quarter of 1986 are set forth in the appendix 14 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 RETAIL DELIVERY SYSTEMS 127 APPENDIX Yr /Qtr Total Hrs Job Class & % of Hrs Per Job Class Hrs Per Job Class Hourly Pay Rate Per Job Class Gross Backpay Per Job Class Gross Backpay Interim Earnings & Employer Net Backpay' 1985/1 $ 1900 Helper-66 $1254 $ 9 095 $ 114 05 $ 182 49 0 $ 182 49 Dnver-34 6 46 10 595 68 44 1985/2 216 50 Helper-100 216 50 9 095 1 969 06 1 969 09 2250 1 648 06 Dnver-0 0 10 595 0 371 1985/3 493 25 Helper-90 443 93 9095 4 037 54 4 560 09 250 4 510 09 Dnver-10 49 32 10 595 522 55 1985/4 22800 Helper-60 136 80 9 095 1 244 20 221046 221046 Driver-40 91 20 10 595 966 26 1986/1 12000 Helper-66 7920 9 095 720 32 1 15260 240 1 112 60 Dnver-34 40 80 10 595 432 28 1986/2 ' 1 1 1 1 1 1986/3 Total Net Backpay' 1 1 1 1 1 1 1 To be determined by the Regional Director 2 Rancho Pacific Electric 3 Brunner s Rents