John T. Jones Construction Co.

National Labor Relations Board - Board Decisions

Aug 19, 2008

352 N.L.R.B. 1063 (N.L.R.B. 2008)

JOHN T. JONES CONSTRUCTION CO.
352 NLRB No. 126
1063
John T. Jones Construction Co., Inc. and Carpenters’
District Council of Kansas City & Vicinity, af-
filiated with United Brotherhood of Carpenters
and Joiners of America, AFL–CIO. Cases 17–
CA–22607, 17–CA–22614, and 17–CA–22708
August 19, 2008
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On June 4, 2007, the National Labor Relations Board
issued a Supplemental Decision and Order1 in the above-
entitled proceeding, in which it affirmed Administrative
Law Judge Lana H. Parke’s findings2 and directed the
Respondent to make discriminatees Brian Estenson,
Ryan Reynolds, Sterling Jason Hammons, and Bob King
whole by paying specific amounts of backpay as set forth
in the compliance specification.
On November 29, 2007, the Board issued an unpub-
lished Order vacating the Supplemental Decision and
Order in order to reconsider the issues affected by its
decision in Oil Capitol Sheet Metal3 The Board invited
the parties to file supplemental briefs. The General
Counsel, the Respondent, and the Charging Party filed
supplemental briefs in response to the Board’s invitation.
The Board,4 having reconsidered the matter, has de-
cided for the reasons set forth below to affirm the judge's
rulings, findings,5 and conclusions and to adopt the rec-
ommended Order as modified.6 Specifically, we find

1 349 NLRB No. 119 (2007) (not reported in bound volume). Chair-
man Schaumber did not participate in that decision.
2 The judge’s decision is attached.
3 349 NLRB 1348 (2007) (Members Liebman and Walsh dissent-
ing).
4 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
5 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolution unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
In addition, the Respondent asserts that some of the judge’s rulings,
findings, and conclusions demonstrate bias. On careful examination of
the judge’s decision and the entire record, we are satisfied that the
Respondent’s contentions are without merit.
6 We shall modify the judge’s recommended Order to include the to-
tal amount of backpay due.
that the application of Oil Capitol does not warrant a
different result.
In Oil Capitol, the Board overruled the application of
the Dean General Contractors7 presumption that, in the
absence of discrimination, an employee who was a union
salt would have continued his employment indefinitely
from the date of discrimination until a valid offer of in-
statement was made. Oil Capitol requires the General
Counsel, as part of his existing burden of proving a rea-
sonable gross backpay amount due, to present affirmative
evidence that a discriminatee who was a union salt would
have worked for the employer for the entire backpay
period claimed in the General Counsel’s compliance
specification.8
In this case, where the hearing was held prior to the is-
suance of Oil Capitol, the Respondent contended that the
discriminatees were salts and, as such, would have
worked shorter backpay periods than those set forth in
the General Counsel’s backpay specification. The judge
rejected the Respondent’s contention, finding that the
Respondent presented no specific facts to show that any
discriminatee would have worked a shorter backpay pe-
riod than that alleged by the General Counsel. The judge
did not, however, specifically determine whether the
discriminatees were in fact salts.
We find that, even assuming that the discriminatees
were salts, the backpay calculations set out in the com-
pliance determination are appropriate. The compliance
specification does not reflect the presumption of indefi-
nite employment that was rejected by the Board in Oil
Capitol. Rather, the backpay periods for all of the dis-
criminatees were limited to a single project, the Respon-
dent’s Southwest Wastewater Treatment Project
(SWWTP) in Springfield, Missouri, where the discrimi-
natees were employed at the time of their unlawful ter-
minations. With respect to discriminatees Estenson and
Hammons, the backpay periods were tolled from the
dates that the representative hours of comparable em-
ployees on the project ended. The backpay periods for
discriminatees Reynolds and King were also tolled prior
to the completion of the project, specifically when Rey-
nolds began law school and when King was reinstated.
Further, the backpay periods were reasonable insofar
as they ended prior to the representation election. This is
consistent with Oil Capitol, where the Board found that
salts normally remain employed only until the union’s
objectives are achieved or abandoned.9

7 285 NLRB 573 (1987).
8 349 NLRB 1348 at 1353.
9 Id. at 1349.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1064
Thus, we find that even assuming the discriminatees
were salts, and thus Oil Capitol is applicable, the record
sufficiently establishes that they would have worked for
the Respondent for the backpay periods claimed by the
General Counsel. Accordingly, we affirm the judge’s
findings that the backpay periods and the amounts due
are appropriate.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, John T. Jones
Construction Co., Inc., Springfield, Missouri, its officers,
agents, successors, and assigns, shall make whole the
employees named below, by paying them the total back-
pay amounts set forth below, with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987), minus tax withholding required by Federal and
state laws.
Total Backpay Due
Brian Estenson $12,932.80
Ryan Reynolds 7,005.79
Sterling Jason Hammons 5,669.51
Bob King 11,555.26
Total: $37,163.36
Stanley D. Williams, Esq., for the General Counsel.
Donald W. Jones, Atty. (Hulston, Jones, & Marsh), of Spring-
field, Missouri, for the Respondent.
Michael Stapp, Atty. (Blake & Uhlig), of Kansas City, Kansas,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. The National
Labor Relations Board (the Board) issued an unpublished Order
in the above-captioned matter dated December 16, 2004, which
directed that John T. Jones Construction Co., Inc. (Respondent)
take certain affirmative action, including making Brian Esten-
son, Ryan Reynolds, Sterling Jason Hammons, and Bob King
(respectively, Estenson, Reynolds, Hammons, and King) whole
for any loss of earnings and other benefits suffered as a result
of unlawful discrimination against them.
A controversy having arisen over the amount of backpay and
benefit compensation due under the terms of the Board’s Order,
the Regional Director for Region 17 of the Board issued a com-

10 We also affirm the judge’s findings in all other respects. In par-
ticular, we adopt, for the reasons set forth in her decision, the judge’s
finding that the fringe benefit contributions from the discriminatees’
interim employment are not an offset against the gross backpay claims.
pliance specification and notice of hearing on December 15,
2005.1
I heard this matter in Springfield, Missouri, on March 1 and
2, 2006. All parties submitted posthearing briefs.
Issues
1. Whether the backpay periods calculated by the General
Counsel for each discriminatee are appropriate.
2. Whether the General Counsel appropriately utilized a
comparable employee analysis in determining the number of
hours discriminatees would have worked during the backpay
period.
3. Whether the General Counsel’s backpay and benefit com-
putations are appropriate.
4. Whether Respondent sustained its burden of showing that
any discriminatee failed to mitigate backpay by making a rea-
sonable search for interim employment.
5. Whether Respondent sustained its burden of showing that
any discriminatee concealed interim earnings.
FINDINGS AND CONCLUSIONS
I. THE BOARD’S ORDER
The Board’s unpublished Order directed that Respondent ef-
fect the recommended Order of Administrative Law Judge (the
judge), Margaret G. Brakebusch, in her decision (JD(ATL)–50–
04) dated September 24, 2004, which states in pertinent part:
Take the following affirmative action necessary to effectuate
the policies of the Act:
(a) Within 14 days from the date of this Order, offer
Brian Estenson, Ryan Reynolds, Sterling Jason Hammons,
and Bob King full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights and privileges previously enjoyed.
(b) Make Brian Estenson, Ryan Reynolds, Sterling Ja-
son Hammons, and Bob King whole for any loss of earn-
ings and any other benefits suffered as a result of the dis-
crimination against her in the manner set forth in the rem-
edy section of the decision.
The Order further adopted the judge’s remedy that compensa-
tion to Estenson, Reynolds, Hammons, and King be computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest, as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
II. THE GENERAL COUNSEL’S BACKPAY CALCULATIONS
Based upon its review of Respondent’s payroll records fol-
lowing the Board’s Order, Region 17 determined that the wages

1 The General Counsel twice amended the specification at the hear-
ing, altering the alleged backpay figures for each discriminatee, the
accuracy of which Respondent denied. At the hearing, Respondent
moved to strike the pleadings, contending that Hammons, Estenson,
and King had forfeited their right to a make-whole remedy by giving
perjured testimony in April 2005 at a postelection hearing on objections
and challenges. I denied the motion.
JOHN T. JONES CONSTRUCTION CO. 1065
and hours of comparable employees best approximated the
compensation each discriminatee would have received had
Respondent not unlawfully fired him.2 In designating compa-
rable employees, the Region selected individuals less senior
than the respective discriminatee who performed the same work
during the relevant time period. The Region also queried the
discriminatees as to efforts to secure work following termina-
tion and work performed during the relevant backpay period
along with attendant expenses. Based on the discriminatees’
responses, the Region calculated net interim earnings (gross
interim earnings less expenses). Utilizing the pay rates and
hours worked of the comparable employees, less the net interim
earnings of the discriminatees, the Region calculated the com-
pensable amounts due each discriminatee as detailed below.
A. Brian Estenson
At the time of his termination, October 31, 2003, Respondent
employed Estenson as a carpenter on the Southwest Wastewa-
ter Treatment Project in Springfield, Missouri (SWWTP), a
prevailing wage job.3 Respondent paid Estenson $18.33/hour
plus, in compliance with the prevailing wage requirement,
$6.65/hour in lieu of fringe benefits. Respondent unlawfully
terminated Estenson on October 31, 2003. The General Coun-
sel fixes Estenson’s make-whole period from date of termina-
tion to June 5, 2004, when, by the Region’s analysis, represen-
tative hours for Estenson on SWWTP ended.
The General Counsel computed Estenson’s gross backpay
for the make-whole period based on the allegedly comparable

2 Robert A. Fetsch, Region 17 compliance officer, testified at the
hearing regarding the calculations detailed herein.
3 A “prevailing wage” job is one funded by public moneys for which
the contracting governmental agency requires that employees working
on the project be paid the area standard or “prevailing” wages. The
parties stipulated that prevailing wages in Greene County, where
Springfield is situated, are the rate of the relevant union contract wage
and benefit package minus the industry advancement fund. Here, Re-
spondent treated the prevailing-wage moneys it paid employees as
taxable wages, and the Region included them in its gross wage compu-
tation for each discriminatee.
earnings of the following carpenters employed by Respondent
during the make-whole period as indicated by their respective
pay periods:
Ricky Johnston 11/08/03—02/14/04
Bruce Wales 02/21/04—03/13/044
Dallas Black 05/01/04—06/05/045
The General Counsel computed Estenson’s net backpay for
the make-whole period by subtracting his alleged calendar
quarter net interim earnings6 from his calendar quarter gross
backpay, arriving at the following figures:

4 Formerly employed by Respondent as a journeyman carpenter,
David Wales worked as a foreman carpenter at a wage rate of
$19.33/hr. during the relevant period. Based on its conclusion that
foreman carpenter was a standard progression for Respondent’s jour-
neyman carpenters, the Region utilized Wales’ $19.33/hr. wage rate as
Estenson’s backpay benchmark during the applicable period.
5 The Region did not credit Estenson with any backpay during the
gap reflected between the employment of David Wales and Dallas
Black, as no comparable employee existed during that period of time.
6 Net interim earnings are interim earnings less interim expenses.
Gross Prevailing Total Gross Interim Net Interim Net
Quarter Backpay Wages Backpay Earnings Expenses Earnings Backpay
IV/03 $4,339.65 $1,429.77 $5,905.75 $1,068.00 $14.60 $1,053.40 $4,852.325
I/04 6,786.49 2,367.45 9,153.94 6,468.00 60.00 6,408.00 2,745.94
II/04 3,918.05 1,416.46 5,334.51 0.00 35.00 0.00 5,334.51
TOTAL NET BACKPAY: $12,932.80
Following his discharge, Estenson placed his name on the
union employment call list, registered with the Missouri em-
ployment office, and visited various construction jobsites seek-
ing employment. His listed expenses reflect, for each respec-
tive quarter, his estimated job search transportation costs of 40
miles at $.365 per mile; and 160 and 360 miles at $.375 per
mile. Estenson secured the following employment for the fol-
lowing dates: December 15, 2003, to March 7, 2004, Good
Labor, Inc.
B. Ryan Reynolds
At the time of his termination, February 2, 2004, Respondent
employed Reynolds as a laborer on SWWTP. Respondent paid
Reynolds $14.53/hours plus, in compliance with the prevailing
wage requirement, $6.35/hours in lieu of fringe benefits. Re-
spondent unlawfully terminated Reynolds on February 2, 2004.
The General Counsel fixes Reynolds’ make-whole period from
date of termination to August 6, 2004, the approximate date he
started law school.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1066
The General Counsel computed Reynolds’ gross backpay for
the make-whole period based on the allegedly comparable earn-
ings of the following laborer employed by Respondent during
the make-whole period as indicated:
Daniel Shane Landers 02/07/04—08/14/04
Prior to his discharge, Reynolds worked fewer than 40 hours
in all weeks but two. Daniel Landers worked 19-percent more
hours during Reynolds’ make-whole period than Reynolds
worked during his pretermination work period. Guida testified
that Reynolds’ reduced work hours were due to his having
called in sick “quite a bit” and having taken discretionary time
off for school.
The General Counsel computed Reynolds’ net backpay for
the make-whole period by subtracting his alleged calendar
quarter net interim earnings from his calendar quarter gross
backpay, arriving at the following figures:
Gross Prevailing Total Gross Interim Net Interim Net
Quarter Backpay Wages Backpay Earnings Expenses Earnings Backpay
I/04 $4,207.37 $1,806.25 $6,013.62 $3,059.88 $0.00 $3,059.88 $2,953.74
II/04 7,703.82 3,215.68 10,919.50 9,064.96 845.00 8,219.96 2,699.54
III/047 4,718.91 1,807.55 6,526.46 6,251.58 1,077.63 5,173.95 1,352.51
TOTAL NET BACKPAY: $7,005.79

7 The date of this quarter reads as corrected at the hearing.
Following his discharge, Reynolds secured the following
employment for the approximate following dates:
02/20/04 to 03/27/04 Artisan Construction Springfield
04/18/04 to 06/04/04 HBC Springfield
06/09/04 to 06/30/04 Bender Construction St. Louis
Reynolds’ listed expenses reflect the following: travel costs
connected with his job search in St. Louis, relocation to St.
Louis upon obtaining work, uniform costs during employment
with Bender Construction, during the third quarter 2004, com-
muting costs from St. Louis to Reynolds’ job with Bender Con-
struction in O’Fallon, Missouri, beyond commuting costs en-
gendered during Reynolds’ employment with Respondent, and
costs of carpentry tools purchased during employment with
Bender Construction.8

8 According to Reynolds, he expended $300 for a plumb laser, a
shark saw, a screw gun, and miscellaneous hand tools, which enabled
him to be a competitive worker and which he has thereafter utilized in
his own construction company. I accept Reynolds’ testimony regarding
the extent and use of his equipment purchases.
C. Sterling Jason Hammons
At the time of his termination, February 13, 2004, Respon-
dent employed Hammons as a carpenter on SWWTP. Respon-
dent paid Hammons $18.33/hours plus, in compliance with the
prevailing wage requirement, $6.65/hours in lieu of fringe
benefits. Respondent unlawfully terminated Hammons on Feb-
ruary 13, 2004. The General Counsel fixes Hammons’ make-
whole period from date of termination to about August 21,
2004, when, by the Region’s analysis, representative hours for
Hammons on SWWTP ended.
The General Counsel computed Hammons’ gross backpay
for the make-whole period based on the allegedly comparable
earnings of the following carpenters employed by Respondent
during the make-whole period as indicated:
Jim Michels 02/21/04—05/29/04
David Mobley 06/05/04—08/21/04
The General Counsel computed Hammons’ net backpay for
the make-whole period by subtracting his alleged calendar
quarter net interim earnings from his calendar quarter gross
backpay, arriving at the following figures:
Gross Prevailing Total Gross Interim Net Interim Net
Quarter Backpay Wages Backpay Earnings Expenses Earnings Backpay
I/04 $2,217.21 $ 788.06 $3,005.27 $ 0.00 $ 0.00 $0.00 $3,005.27
II/04 7,689.49 2,773.10 10,462.59 7,798.35 0.00 7,798.35 2,664.24
III/04 4,303.20 1,596.23 5,899.43 6,876.34 0.00 6,876.34 0.00
TOTAL NET BACKPAY: $5,669.51
Following his discharge, Hammons registered for work on
the Union’s employment call list and visited various jobsites
two–three times a week seeking work. On May 11, 2004, he
obtained employment with Benchmark Construction, a union
contractor that made benefit payments into the appropriate
union trust funds.
D. Bob King
King began working for Respondent on December 16, 2002.
Respondent laid King off on February 13, 2003, and rehired
him on March 23, 2003. On July 31, 2003, Respondent listed
King as a voluntary quit upon his incarceration. Thereafter,
Respondent rehired King on September 11, 2003, and he con-
tinued working for Respondent until his unlawful termination
on March 30, 2004. At the time of his termination, Respondent
employed King as a carpenter on SWWTP. Respondent paid
King $18.33/hours plus, in compliance with the prevailing
wage requirement, $6.65/hours in lieu of fringe benefits. Re-
spondent unlawfully terminated King on March 30, 2004. The
General Counsel fixes King’s make-whole period from date of
JOHN T. JONES CONSTRUCTION CO. 1067
termination to January 18, 2005, when King returned to work
for Respondent. Thereafter, King voluntarily terminated him
employment with Respondent on February 11, 2005.
The General Counsel computed King’s gross backpay for the
make-whole period based on the allegedly comparable earnings
of the following carpenters employed by Respondent during the
make-whole period as indicated:
James Moody 04/03/04—08/21/04
David Mobley 08/28/04—01/15/05
The General Counsel computed King’s net backpay for the
make-whole period by subtracting his alleged calendar quarter
net interim earnings from his calendar quarter gross backpay,
arriving at the following figures:
Gross Prevailing Total Gross Interim Net Interim Net
Quarter Backpay Wages Backpay Earnings Expenses Earnings Backpay
II/04 $9,641.74 $3,202.00 $12,843.74 $ 6,721.80 $7.50 $6,714.30 $6,129.44
III/04 8,569.67 2,978.75 11,548.42 9,843.25 0.00 9,843.25 1,705.17
IV/04 8,030.20 2,917.94 10,948.14 9,116.40 67.50 9,048.90 1,899.24
I/05 1,535.17 548.64 2,083.81 262.40 0.00 262.40 1,821.41
TOTAL NET BACKPAY: $11,555.26
Following his discharge, King secured the following em-
ployment for the approximate following dates:
04/14/04 to 04/30/04 Travis Meyers
05/10/04 to 10/30/04 J.C. Industries Springfield
11/12/04 to 12/23/04 Donco
King’s listed expenses reflect personal vehicle costs incurred
while seeking interim employment.
III. DISCUSSION
A. Legal Principles
The general principles in determining backpay are well
established: the General Counsel’s must show the gross
backpay due each claimant, i.e., the amount the employees
would have received but for the employer’s illegal conduct.
Any backpay computation formula that closely approxi-
mates the amount due, if it is not unreasonable or arbitrary
in the circumstances, is acceptable. Midwestern Personnel
Services, 346 NLRB 624 (2006); Performance Friction Corp.,
335 NLRB 1117 (2001); Reliable Electric Co., 330 NLRB
714, 723 (2000) (citations omitted.) The comparable or
representative approach to determining backpay is an ac-
cepted methodology. Performance Friction Corp., supra at
1117.
The burden is on Respondent to establish any affirmative
defenses that would mitigate its liability, including the
amount of interim earnings to be deducted from the backpay
amount due, and any claim of willful loss of earnings. Mid-
western Personnel Services, supra at 625.
Further, the Board has stated,
[R]emedial questions implicate two statutory principles
that must be applied. The first principle is that the remedy
should restore the status that would have obtained if Re-
spondent had committed no unfair labor practice. The sec-
ond principle is that any uncertainty and ambiguity regard-
ing the status that would have obtained without the unlaw-
ful conduct must be resolved against the Respondent, the
wrongdoer who is responsible for the existence of the un-
certainty and ambiguity [citations omitted]. Campbell
Electric Co., Inc., 340 NLRB 825, 826 (2003).
B. Respondent’s Affirmative Defenses
Respondent raises a number of affirmative defenses to the
General Counsel’s backpay calculations. Respondent asserts
that the prevailing wage rate for employees on the SWWTP job
was calculated so as to bringing nonunion employees’ compen-
sation into sync with wage and benefit rates paid for union
covered employment. That being the case, Respondent argues,
if interim earnings resulted from employment under a union
contract that provided for fringe benefits, the comparable
monetary worth of such benefits must be added to the interim
earnings. To do otherwise, Respondent contends, would result
in a windfall to the discriminatee. Counsel for the General
Counsel asserts that the Board will recognize the offset of in-
terim benefits only against equivalent benefits provided by
Respondent, which benefits do not exist here.9 Counsel for the
General Counsel’s argument is supported by Tualatin Electric,
331 NLRB 36 (1997). In pertinent part of that case, as in the
present, certain of the employer’s wages reflected rates required
on prevailing wage jobs and representing compensation in lieu
of benefits. The Board affirmed without comment the adminis-
trative law judge’s conclusion that interim employer fringe
benefit payments are not an appropriate offset to gross wages.
Accordingly, I reject Respondent’s argument.
Respondent also contends that all interim earnings in a given
quarter must be deducted from backpay owed in that quarter
even if the earnings occurred after the backpay obligation
ended. Specifically, Respondent argues that although the
make-whole period for Estenson ended on June 5, 2004, the
wages he received from June 2004 employment after that date
must be deducted from net backpay for the second quarter of
2004. Respondent similarly argues that although the make-
whole period for Hammons ended on August 21, 2004, his

9 As counsel for the General Counsel points out, fundamental differ-
ences exist between payment of wages, which are immediately and
unrestrictedly available to an employee, and payments into benefit
programs, the proceeds of which depend on the potentially uncertain
fulfillment of specific, prerequisite conditions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1068
wages from employers other than Respondent earned through
September 2004 should offset backpay during that quarter.
Under established Board procedure, discriminatees are entitled
to backpay for the period between unlawful discrimination and
a valid offer of reinstatement. See NLRB Casehandling Manual
(Part 3) Compliance Proceedings, Sec. 10530.2 (defining back-
pay period as “beginning when the unlawful action took place
and ending when a valid offer of reinstatement is made”) and
Sec. 10542.2 (“Earnings During Periods Excepted from Gross
Backpay Not Deductible”). Respondent has offered no author-
ity to support its argument that an interim earnings offset must
continue beyond the end of the backpay period, and it may be
inferred from Painters Local 419 (Spoon Tile Co.), 117 NLRB
1596 (1957),10 that the Board would not endorse such a posi-
tion. In Spoon Tile Co., the Board stated that its “practice is
that during a period when no gross earnings are attributable to a
discriminate . . . no deductions are made either for interim earn-
ings or willful loss during this same time.” Id at 1598. Accord-
ingly, I reject Respondent’s argument.
To be entitled to backpay, a discriminatee must make rea-
sonable efforts to secure interim employment. Midwestern Per-
sonnel Services, supra at 625. It is the respondent’s burden to
demonstrate affirmatively that the discriminatee failed to exer-
cise reasonable diligence in searching for work. Id. Respondent
maintains that the discriminatees did not make a genuine effort
to find interim employment following their discharges. In sup-
port of this position, Respondent presented testimony from
Roger Guida (Guida), Respondent’s project manager at
SWWTP, who opined that during the relevant make-whole
period herein, a good qualified carpenter in the Springfield area
should be able to find employment in no more than 2 or 3
weeks. As to laborers, in Guida’s opinion, anybody that
wanted to find work could do so. Guida’s testimony was based
solely on his general observations of company hiring efforts
and applicant responses at SWWTP. In spite of his assertion
that employment for qualified carpenters abounded in the area,
Guida agreed that Respondent was able to amass a pool of ap-
plications from which it could select hirees and that it was
never strapped for labor, which suggests that the supply of con-
struction workers well exceeded the demand. As Guida’s opin-
ion is based on imprecise and even vague factors and as Re-
spondent’s admitted surplus of applicants tends to contradict
his opinion, it has little probative value. See Midwestern Per-
sonnel Services, supra at 626.
Respondent contends that monies the discriminatees received
from the Union should be counted as interim earnings and de-
ducted from gross backpay. The Board has held that money
received from a union should be deducted where the amounts
received constitute wages or earnings resulting from interim
employment, but unearned income and collateral benefits are
not interim earnings. United Enviro Systems, 314 NLRB 1130,
1131 (1994). The burden of proving that monetary amounts are
wages rather than collateral benefits is on Respondent,11 which
burden Respondent has not met herein.

10 Enfd. 242 F.2d 477 (10th Cir. 1957).
11 Rice Lake Creamery Co., 151 NLRB 1113, 1131 (1965), enfd. as
modified 365 F.2d 888 (D.C. Cir. 1966).
Respondent objects to the General Counsel’s use of more
than one representative employee in calculating backpay for
Estenson, Hammons, and King. Respondent argues that the
General Counsel is restricted to using one single employee per
discriminatee as a comparable employee. In selecting compa-
rable employees for backpay analysis purposes, compliance
officer Fetsch considered that, but for Respondent’s discrimina-
tion, Estenson, Hammons, and King would have been available
to perform hours worked by any less senior carpenters, even
though the less senior carpenters may have varied. The General
Counsel’s approach was reasonable, particularly in the context
of the construction industry, where one single comparator
would be unlikely to cover the entire backpay period.12
Citing Aneco, Inc. v. NLRB, 285 F.3d 326 (4th Cir. 2002),
Respondent further argues that the General Counsel abuses his
discretion by presuming that Estenson, Reynolds, and
Hammons, who were union organizer applicants (salts) would
have worked more than a short period of time had they been
offered reinstatement earlier than they were. The Fourth Cir-
cuit set no such axiom. Rather the court found the employer in
Aneco presented specific evidence to rebut any presumption
that the discriminatee therein would have completed an uninter-
rupted five-year employment period but for the employer’s
discrimination, an evidentiary burden that the Board clearly
requires. See Diamond Walnut, supra at 1132–1133, wherein
the Board noted its decision in Aneco, Inc., 333 NLRB 691
(2001) requiring the respondent to “present ‘specific evidence’
of factors that would have led to the discriminatee’s departure
from work.” Id at 1132–1133. Here, Respondent presented no
specific factors to show that any discriminatee would not have
continued his employment with Respondent during the assigned
backpay period, had he not been unlawfully terminated. Ac-
cordingly, I reject this argument.
Respondent also argues that in calculating backpay the Gen-
eral Counsel did not follow the Board’s Casehandling Manual
(Compliance) in a number of instances. While compliance with
Casehandling Manual provisions is the better practice, strict
adherence is not a legal mandate. Moreover, Respondent has
not shown that the General Counsel failed substantially to fol-
low the compliance manual’s guidelines. Accordingly, I reject
Respondent’s arguments in this regard.
Respondent requests that the General Counsel be ordered to
give Respondent a full explanation of any interest computations
with full documentation of computerized or other calculations.
Respondent has neither made cogent argument nor pointed out
miscalculation that permits identification of specific issues
related to interest calculations. Therefore, I decline to order the
General Counsel to provide documentation of interest calcula-
tions beyond its customary and discretional practices.

12 As Senator Humphrey, reporting from the Committee on Labor
and Public Welfare (S. Rep. No. 1509, 82d Cong. 2d Sess. (1952),
pointed out, the building and construction industry is characterized by
casual, intermittent, and often seasonal employer/employee relation-
ships on separate projects. The Board also recognized that the con-
struction industry is one “where workers change employers from day to
day or week to week.” James Luterbach Construction Co., 315 NLRB
976, 983 (1994).
JOHN T. JONES CONSTRUCTION CO. 1069
C. Brian Estenson
As to Estenson’s calculated backpay, Respondent argues that
the General Counsel inappropriately utilized Bruce Wales as a
comparable employee for the period of February 21 to March
13, 2004, during which period Wales worked as a carpenter
foreman at a rate $1 higher than carpenter journeyman wages.
Respondent did not refute the General Counsel’s conclusion
that the position of foreman carpenter was a standard progres-
sion for Respondent’s journeyman carpenters but asserted that
Estenson would likely have declined any nonunit position such
as carpenter foreman where he would “have no vote or voice in
a union election case.” So speculative an objection does not
justify eliminating Wales as a comparable employee, and the
calculation stands.
Respondent argues that the approximately 6-week gap be-
tween the employment of comparators Bruce Wales and Dallas
Black demonstrates the unreliability and inappropriateness of
their use as comparators. It is true that during that period of
time, no carpenter less senior to Estenson was on Respondent’s
payroll. Resuming backpay liability for Estenson when Dallas
Black was hired requires an hypothesis that Estenson could
have been recalled to employment at SWWTP at that time.
While such a premise may be refutable, it is not unreasonable,
and as the courts and the Board have generally indicated, the
backpay claimant receives the benefit of any doubt. See Mid-
western Personnel Services, supra; United Aircraft Corp., 204
NLRB 1068 (1973). Respondent further argues that any in-
terim earnings that accrue during such hiatus periods must be
applied against backpay assessed during that same quarter.
Respondent has not provided authority for its position, and, as
stated earlier, the Board’s practice is that “during a period when
no gross earnings are attributable to a discriminate . . . no de-
ductions are made either for interim earnings or willful loss
during this same time.” Spoon Tile Co, supra at 1598. Accord-
ingly, I reject Respondent’s argument.
Respondent also argues that Estenson concealed earnings
during the fourth quarter of 2004 from the Carpenters Union
and SDS. No evidence supports Respondent’s assertion, and I
disregard it.
D. Ryan Reynolds
Prior to his discharge, Reynolds worked fewer than 40 hours
in all weeks but two. Daniel Landers, whom the General Coun-
sel designated as a comparable employee, worked 19 percent
more hours during Reynolds’ make-whole period than Rey-
nolds worked during his pretermination work period. Respon-
dent contends that Reynolds’ work record demonstrates he
would have worked only 81 percent of the work hours available
during the make-whole period and that, therefore, his gross
back pay figure should be decreased by 19 percent. Guida
testified that Reynold’s reduced work hours were due to his
having called in sick “quite a bit” and having taken discretion-
ary time off for school.
Counsel for the General Counsel does not dispute that Rey-
nolds logged comparatively fewer work hours than Daniel
Landers. Counsel argues, however, that the record does not
contain sufficient evidence to show whether Reynolds’ 19-
percent work attenuation was based on discretional work ethic
or persistent personal circumstances rather than on ad hoc fac-
tors, including work availability. If Reynolds’ lower work
hours were the result of his work ethic or persistent personal
circumstances, it is reasonable to infer that those circumstances
would continue throughout the backpay period with a conse-
quent work pattern of fewer hours than the norm. In that case,
it would be fair to reduce his backpay by 19 percent. If, on the
other hand, Reynolds’ lower work hours resulted from tran-
sient, situational factors or even jobsite work unavailability, it
is reasonable to assume that he would have worked hours simi-
lar to those worked by a comparably situated employee. On the
instant record, the evidence isn’t clear one way or the other.
Guida’s testimony, unsupported by documentary evidence, was
not persuasive, and, in any event, does not answer the question
of whether the alleged factors (illness and school attendance)
would have persisted through the backpay period. The Board
applies a general rule that Respondent, as the wrongdoer, must
establish any facts to negate or mitigate its backpay liability,13
and, as stated above, uncertainties in evidence are to be re-
solved against the wrongdoer. Accordingly, I resolve this par-
ticular uncertainty against Respondent and find Daniel Landers
to be an appropriate comparable employee for backpay calcula-
tion purposes.
Respondent argues, essentially, that Reynolds willfully failed
to look for interim employment because he did not seek work
as a laborer, the job he had with Respondent. Willful loss of
earnings is one of the affirmative defenses Respondent must
prove to mitigate its liability. Discriminatees are not limited to
seeking employment in their prior employment sphere in order
to demonstrate good-faith efforts to mitigate damages. The
Board has found a discriminatee who started his own business,
albeit unsuccessfully, and learned a new skilled trade, albeit
without finding work in it, nonetheless demonstrated a good-
faith effort. Weldun International, 340 NLRB 666 (2003).
Respondent has not, therefore, met its burden of showing that
Reynolds failed to make reasonable efforts to find interim em-
ployment. Respondent further objects to the expenses claimed
by Reynolds as excessive but again has failed to show, other
than by simple assertion, that the expenses were excessive or
unnecessary to Reynolds’ mitigation of damages. Respondent
also contends that Reynolds claim for expenses should be re-
jected as it is uncorroborated by documentary evidence and as
the equipment that forms a portion of the expenses remain in
Reynolds’ possession as undepreciated assets. The Board nei-
ther requires corroboration for expenses nor considers whether
equipment purchased as attendant aids to interim employment
may have outlived the interim employment. See Coronet
Foods, Inc., 322 NLRB 837 and fn. 4 (1997), enfd. in part 158
F.3d 782 (4th Cir. 1998). Therefore, I reject Respondent’s de-
fenses in these regards.14

13 Velocity Express, Inc., 342 NLRB 888, 890 (2004); Aneco, Inc.,
333 NLRB 691 (2001), enf. denied 285 F.3d 326 (4th Cir. 2002).
14 As to Respondent’s contention that Reynolds committed perjury in
an unrelated matter, which precludes backpay, I denied Respondent’s
motion to introduce allegedly supportive evidence. The proffered evi-
dence was too tangential and too unlikely to demonstrate perjury to be
probative to the instant issues.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1070
E. Sterling Jason Hammons
As to Hammons’ backpay, Respondent again argues that the
General Counsel is restricted to using one single employee as a
comparable employee. For the reasons set forth above regard-
ing computations for Estenson, I reject this argument. Relying
on Guida’s testimony of the relevant labor market, Respondent
also argues that Hammons “has not shown sufficient evidence
that he has diligently sought work as a carpenter and has not
met his duty to mitigate his backpay. . . .” Respondent mis-
states the burden of proof as to mitigation of backpay, which
burden falls on Respondent. See Midwestern Personnel Ser-
vices, and cases cited therein, supra at 625 (“It is the respon-
dent’s burden to demonstrate affirmatively that the discrimina-
tee failed to exercise reasonable diligence in searching for
work.”). Moreover, as stated above, I have discounted Guida’s
opinion of the area labor market during the backpay periods
relevant to the discriminatees. Accordingly, I reject this argu-
ment, as well.
Respondent also argues that Hammons failed to make suffi-
cient effort to mitigate his backpay claim, as his only reported
effort to obtain other work was to register at the union referral
hall. Respondent’s assertion in this regard apparently over-
looks Hammons’ hearing testimony. Although Hammons
agreed that he noted only “registered for work at union hall” in
the job search information portion of the backpay questionnaire
he completed for the Regional Office, he testified that he also
submitted applications to all the large union contractors in the
area and investigated work opportunities at various jobsites.15
As tribute to his efforts, the evidence shows Hammons had
significant interim earnings in two of the three quarters com-
prising his backpay period. In these circumstances, Respondent
has failed to show that Hammons did not search for work with
reasonable diligence.
F. Bob King
Respondent essentially argues that King’s spotty work his-
tory and his postreinstatement voluntary quit demonstrate a
disinterest in the job that either significantly reduces Respon-
dent’s backpay liability or curtails it altogether.16 King began
working for Respondent on December 16, 2002. During King’s
2003 employment, he experienced two gaps in employment: an
involuntary layoff from February 13 to March 23, and an ab-
sence from July 31 to September 11, consequent on his incar-
ceration. King worked for Respondent without further hiatus
from September 11, 2003, until his unlawful termination on
March 30, 2004. After Respondent reinstated King on January
18, 2005, he worked until February 11, 2005, whereupon he
voluntarily terminated his employment.

15 Even assuming Hammons’ primary effort to obtain interim em-
ployment was limited to registration at the union hall, such does not
show lack of diligence. See Midwestern Personnel Services, supra at
627, citing Tualatin Electric, Inc., supra (obligation to mitigate met
when discriminatees follow normal pattern of seeking employment
through union hiring hall).
16 Citing Tr. 354–358, Respondent’s posthearing brief asserts that
Guida testified King worked less than 40-hour weeks for Respondent
because of illness or other unavailability. Tr. 354–358, however, re-
flect Guida’s testimony regarding Reynolds, not King.
Respondent unlawfully discharged King, which entitled him
to reinstatement and backpay; Respondent’s valid offer of rein-
statement to King tolled the backpay. Those legal realities are
in no way impacted by King’s pretermination work history with
Respondent or his postreinstatement voluntary termination. The
question of whether King may have had gaps in interim em-
ployment during which Respondent should not be responsible
for backpay may be ascertained without reference to King’s
work record with Respondent. In fact, King secured interim
employment within 2 weeks of his unlawful termination and
seriatim employment thereafter with only such brief intervals as
might reasonably be expected to accompany job searches.
Respondent has presented no evidence that King did not put
forth an honest, good-faith effort to find or to retain interim
work. Diamond Walnut Growers, Inc., 340 NLRB 1129
(2003), relied on by Respondent, is inapposite. In Diamond,
evidence showed that whenever the employer would have of-
fered a particular job to the discriminatee, he would have re-
signed after 6 weeks. In the instant matter, Respondent has
presented no evidence to justify an inference that King would
have resigned employment within 4 weeks of any offer of rein-
statement. The mere fact of King’s having quit 4 weeks after
his 2005 reinstatement does not provide the necessary evidence.
Conclusion
The General Counsel has met his burden of proving gross
backpay as to each of the discriminatees, herein, and Re-
spondent has not met its burden of proving any affirmative
defenses. I find the General Counsel’s calculations to be fair,
reasonable, and accurate approximations of the earnings the
discriminatees would have enjoyed had they not been unlaw-
fully terminated. See Weldun International, Inc., 340 NLRB
666 (2003).
I recommend that Respondent, John T. Jones Construction
Co., Inc., be ordered to pay the following amounts to the em-
ployees listed below plus interest17 accrued to the date of pay-
ment:
Brian Estenson $12,932.80
Ryan Reynolds 7,005.79
Sterling Jason Hammons 5,669.51
Bob King 11,555.26
SUPPLEMENTAL ORDER
On the basis of the foregoing, and pursuant to Section 10(c)
of the Act, I recommend that the Board issue the following
supplemental Order. 18
IT IS HEREBY ORDERED that Respondent, John T. Jones Con-
struction Co., Inc., its officers, agents, successors, and assigns,
shall forthwith make whole the following individuals by paying
each of them, respectively, the sum set forth, plus interest and

17 See New Horizons for the Retarded, 283 NLRB 1173 (1987).
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended supplemental 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 purposes.
JOHN T. JONES CONSTRUCTION CO. 1071
minus tax withholdings, if any, required by Federal and State
laws:
Brian Estenson $12,932.80
Ryan Reynolds 7,005.79
Sterling Jason Hammons 5,669.51
Bob King 11,555.26