Isaac and Vinson Security Services, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1973

208 N.L.R.B. 47 (N.L.R.B. 1973)

ISAAC'AND VINSON SECURITY SERVICES
Isaac and Vinson Security Services, Inc. and Interna-
tional Union, United Plant Guard Workers of
America, Ind. Case 15-CA-3996
December 28, 1973
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, KENNEDY AND PENELLO
On October 21, 1971, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding, finding, inter alga, that Respon-
dent had violated Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended, by
discriminatorily discharging guards Brister, Fair-
banks, Jordan, Rhoden, and Walker.' The Board
ordered that they be reinstated and made whole for
any loss of earnings suffered by reason of the
discrimination against them. On November 24, 1972,
the United States Court of, Appeals for the Fifth
Circuit issued as a mandate its judgment enforcing
the Board's Order in full.2
Thereafter, on June 1, 1973, the Regional Director
for Region 15 issued and served on the parties a
Backpay Specification and Notice of Hearing.
Respondent filed an answer on June 20, 1973. On
July 24 and 25, 1973, a hearing was held before
Administrative Law Judge David S. Davidson for the
purpose of determining the issues and the amounts of
money due under the Backpay Specification.
On September 28, 1973, Administrative Law Judge
Davidson issued the attached Supplemental Decision
in this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.3
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Isaac and Vinson
Security Services, Inc., New Orleans, Louisiana, its
officers, agents, successors, and assigns, shall take the
47
action set forth in the Administrative Law Judge's
recommended Order.
I Isaac and Vinson Security Services, Inc., 193 NLRB 847.
2 Judgment (entered October 13, 1972) unpublished . Opinion , issued
September 21, 1972, 467 F 2d 213 Petition for rehearing denied, November
16, 1972. The court's mandate was subsequently recalled and stayed, and
was reissued on April 3, 1973
3 As the record , exceptions , and briefs adequately present the issues and
positions of the parties , the Respondent's request for oral argument is
hereby denied
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: On
October 21, 1971, the Board issued its Decision and Order'
finding that Respondent had discriminatorily discharged
guards Earl T. Brister, John H. Fairbanks, Carroll Jordan,
Everett E. Rhoden, Sr., and Todd Walker in violation of
Section 8(a)(1) and (3) of the Act. The Board ordered that
they be reinstated and made whole for any loss of earnings
suffered by reason of the discrimination against them. The
Board's Order was subsequently enforced by the United
States Court of Appeals for the Fifth Circuit.2 Controversy
having arisen over the amounts of backpay due under the
terms of the Board's Order, on June 1, 1973, the Regional
Director for Region 15 issued a Backpay Specification and
Notice of Hearing. On June 20, 1973, Respondent filed its
answer.
A hearing was held before me at Monroe, Louisiana, on
July 24 and 25, 1973. At the conclusion of the hearing oral
argument was waived and the parties were given leave to
file briefs which have been received from the General
Counsel and Respondent.
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. ISSUES AFFECTING MORE THAN ONE CLAIMANT
A. The Application of the Backpay Formula
Although Respondent does not dispute generally the
method for computing gross backpay used in the backpay
specification, in its answer Respondent contends that the
formula was improperly applied in computing the backpay
for the first quarter of the backpay periods for each of the
discriminatees. As none of the discriminatees were dis-
charged at the beginning of a calendar quarter, for the
initial quarter of each backpay period the Regional
Director computed gross backpay on the basis of the
average hours worked by Respondent's guards for that part
of the quarter which followed the discriminatory discharge.
For example, in the case of Brister the Regional Director
determined that , Brister's backpay period began on
October 9, 1970, that 555 average hours were worked by
1 193 NLRB 847.
2 467 F 2d 213.
208 NLRB No. 33
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guards from October 9 through December 31, 1970, and
that Brister's gross backpay for that period was $971.3
Brister's backpay was then reduced by interim earnings for
work performed by him between October 9 and December
31.
Respondent contends that the Regional Director should
have computed gross backpay on the basis of all average
hours worked during the entire first quarter of each
claimant's backpay period and should then have deducted
all earnings received from Respondent during those
quarters as well as from other sources. Thus, in the case of
Brister, Respondent contends that Brister's gross backpay
should have been determined by computing his gross
earnings on the basis of 653 hours, the average hours
worked by all the guards during the entire last quarter in
1970, and that his gross backpay should have then been
reduced by earnings he received from Respondent during
that quarter before his discharge4 as well as by his earnings
from other sources. Respondent contends that this method
of computation is required by the Woolworth formula.5
However, the Woolworth case provides specifically for-the
method followed by the Regional Director in this case,6
and the application of the formula in the Specification is
consistent with long-established practice and the remedy
provided in the Board's initial Decision and Order in this
case. Accordingly, I reject this contention of Respondent
and its similar contention, first advanced in its brief, as to
the computation for the final quarter of each backpay
period.
B. The Availability of Work for Walker and Brister
During the Backpay Period
With respect to claimants Walker and Buster, Respon-
dent contends that their backpay should be tolled as of
November 13, 1970, because they would have been laid off
at that time if they had not previously been discharged.
Walker was discharged on October 5, 1970, and Brister
was discharged on October 9. Although Respondent
contended that both were discharged for cause, the Board
found in the initial decision that they were discharged
because they had signed a letter complaining about their
wages and working conditions and because it was
suspected that they either had or were about to join a
union. The Board further found that before Walker's
discharge from August 23 through September 19 Walker
had been discriminatorily assigned to a post which
required extensive walking despite Respondent's knowl-
edge that Walker had a bad leg, that Walker performed
this job until September 19 when he was no longer able to
do so, and that his job and pay were effectively terminated
on September 19 when he could no longer perform the task
discriminatorily assigned to him.
On November 14, 1970, Rhoden and Jordan were
terminated allegedly because of a reduction-in-force. In the
3 Multiplying 555 by $1 75, Brister's rate
4 Although Respondent's answer set forth amounts which it claims
should be deducted From the first quarter gross backpay of each of the
claimants as earnings received from Respondent during those quarters, no
evidence was presented to establish those amounts
5 F W Woolworth Company, 90 NLRB 289
6 90 NLRB at 292-293
original proceeding there was evidence that on November
11, 1970, Olinkraft, for whom Respondent provided guard
services, instructed Respondent to reduce the number of
guard hours in its plant by 126 per week and that thereafter
until the time of the initial hearing guard hours were in fact
drastically reduced. However, the Board found merit in the
allegation of the complaint that Rhoden and Jordan were
discriminatorily selected for layoff and were not chosen for
the reasons stated by Respondent's supervisor captain,
Faulk, in his testimony at the initial hearing.
Respondent now contends that if Walker and Brister had
not been previously discharged, they would have been laid
off on November 13 in the reduction- in-force because they
would have been the two least senior guards in the unit and
their layoff would have been justified by their lack of
seniority, inexperience, and evidence that they were the
least qualified guards and committed violations of compa-
ny policy more than other guards. Respondent introduced
no evidence in support of this contention at the backpay
hearing but relies on the evidence adduced at the initial
hearing.
Respondent took the position at the initial hearing that it
never observed any rule or principle of seniority to
determine retention rights during a layoff, and in fact the
evidence established that two guards with less seniority
than Walker or Brister were retained at the time of the
layoff and another junior guard was transferred into the
Olinkraft guard group after the layoff. With respect to
Walker the only deficiency to which Respondent points in
his record is his absence from work after September 19,
1970, which the Board found was caused by his discrimina-
tory assignment to a post he was physically incapable of
performing. In these circumstances this absence cannot be
considered as an nondiscriminatory factor which would
have justified his layoff if he had not been previously
discharged. In the case of Brister the Board in its original
decision rejected testimony then offered to support his
discharge but which is now relied on to support the
contention that he would have been laid off.7 There is no
evidence as to the experience or qualifications of Walker
and Brister relative to other guards who were not laid offs
I find that Respondent has failed to establish its defense
that Walker and Brister would have been laid off on
November 14, 1970, if they had not been previously
discharged.
C. Unemployment Compensation
Respondent contends that the backpay of Fairbanks and
Rhoden should be diminished by amounts they received in
unemployment compensation payments during 1970 and
1971 because they allegedly fraudulently concealed earn-
ings while they were collecting unemployment compensa-
tion. Respondent concedes that unemployment compensa-
tion is not ordinarily set off against backpay but contends
7 The initial decision indicates that alleged falsification of a report with
which Respondent in its brief now charges Brister was in fact attributed to
Fairbanks in the testimony
8 An exhibit introduced at the initial hearing indicates that after the
layoff there were 15 or 16 guards employed by Respondent at the Ohnkraft
plant
ISAAC AND VINSON SECURITY SERVICES
that credit should be allowed where such payments have
been received as a result of fraud because Respondent's
unemployment insurance rates are adversely affected as a
result of the fraud. At the hearing I refused to permit
litigation of this issue. I adhere to that ruling and find that
the question of the alleged fraud by Fairbanks and Rhoden
is better left for forums more appropriate for that purpose.9
II. THE INDIVIDUAL CLAIMS
A. Earl T. Brister
1. The date of tolling of Brister's backpay
The specification alleges that Brister's backpay period
ended on December 18, 1971, the day before he was
reinstated . Respondent in its answer contends that Brister's
backpay period ended on December 1, 1971, when it
offered him reinstatement.
On December 1, 1971, Respondent's attorney mailed
Brister a letter stating that his position was being held for
him and that he was being offered unconditional reinstate-
ment to his former position. The letter concluded:
Please let me know within five (5) days of your receipt
of this letter whether you desire to come back to work
and if so when you will be available. If I do not hear
from you within the five (5) days mentioned above or if
you are not available within a reasonable time I shall
assume that you are not interested in returning and will
proceed to fill the position.
On December 7 Brister replied by letter that he accepted
the offer of reinstatement and would be available for work
on December 10. Brister received no reply to this letter. On
December 19 on his own initiative he reported for work
and was permitted to work thereafter.
In American Manufacturing Company of Texas,10 the
Board held, "It is settled that the backpay period is tolled
on the date of actual reinstatement, on the date of rejection
of the offer, or in the case of discriminatees who did not
reply on the date of the last opportunity to accept the offer
of reinstatement."
Here Respondent 's letter set no reporting date. Brister
promptly replied and indicated almost immediate availa-
bility for employment. He heard nothing further until he
reported for work. In these circumstances , I find that the
date of actual reinstatement which was used in the backpay
specification was the appropriate date for tolling Brister's
backpay.
2. Brister's efforts to obtain interim employment
Respondent contends that Brister did not make a
diligent search for interim employment throughout the
period between his discharge and his reinstatement and
that he should therefore not be granted any backpay. The
only evidence as to this issue was the testimony of Brister
on cross-examination by Respondent. That testimony
shows that Brister registered with the Louisiana State
Employment Service on October 14, 1970, and thereafter
9 See Liberty Scrap Materials Inc, etc, 152 NLRB 480, 485 , enfd. 64
LRRM 2686 (C.A. 6, 1967), Gullett Gin Company, Inc v N L RB, 340 U.S.
361.
49
visited the employment office each week seeking employ-
ment . He also registered with the Veterans Administration
Employment Office. During the week after his discharge
Bnster visited Friday's Used Car lot in Monroe and sought
employment as a salesman from Friday who was a lifelong
friend . Brister visited Friday seeking employment a
number of times during the backpay period , but Friday
never offered him a job. In December 1970, Buster visited
another used car lot two or three times unsuccessfully
seeking employment there . Brister also kept in contact with
the other employees who had been discharged by Respon-
dent concerning job opportunities and in December,
through claimant Todd Walker , was referred to a tempo-
rary 2-day job at Bayou Knits which he took.
In January 1971, Brister was referred by the Louisiana
State Employment Service to a job at Union Compress but
when Brister applied he was told the job was filled . He left
his name, address, and telephone number in the event that
another opening arose . Also in ' January 1971, Brister
sought employment in the maintenance parks department
for the city of West Monroe . He was told there were no
openings for jobs which he could do. In mid -February
1971, Brister again sought employment with the city of
West Monroe and received similar response . About that
time he visited K-Mart but was told that they were not
taking applications . In mid-March he again sought
employment with the city of West Monroe. In June or July
he inquired about a job with Pinkerton Guard Service but
was told that the job was filled . In August or September he
sought a job as a guard with Vanguard Paper Company in
West Monroe and was told that that job was filled. In
September and November 1971, he sought employment
with General Motors Acceptance Corporation repossessing
cars on a contract basis. He was advised that there were no
openings . During the period between October 9, 1970, and
December 19, 1971, Brister worked only 2 days as a
temporary employee for Bayou Knits.
Brister was 58 years old and suffered from some physical
disabilities of which officials of the Louisiana State
Employment Service and the Veterans Employment
Service were aware . He was a plumber by trade and
worked for the Umted States Government for 17 years. He
retired from the government in February 1969, as a result
of an on-the-job back injury.
Respondent contends that Brister did not make a
diligent search because he visited only a small number of
potential employers over the period he was unemployed,
because he worked only 2 days during that period, in
contrast with the other claimants who found more
substantial employment, and because wherever he went he
announced himself as disabled and thereby extinguished
any possible interest in him as a potential employee.
In a backpay proceeding the burden is on the General
Counsel to show the gross amount of backpay due. When
that has been done, the burden is on the Respondent to
10 167 NLRB 520, 521
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
show willful loss of earnings or other facts to diminish the
Respondent's liability.ll Uncertainty must be resolved
against Respondent who made the uncertainty possible,
and the backpay claimant must receive the benefit of any
doubt.12
Here there is no evidence to show that during the
backpay period there were any sources of actual or
potential employment for Brister which he failed to
explore, and there is no evidence that he rejected any offers
of employment. The fact that other claimants may have
been more successful than Brister in finding other
employment is not evidence of lack of diligence on
Brister's part.13 While Respondent points to the fact that
Brister told employment service officials and others of his
physical limitation as evidence that he was not diligent in
seeking employment, there is nothing in Brister's testimony
to indicate that he did so in order to assure that he would
not get a job. Brister had disclosed his condition to
Respondent when he applied for employment there and
clearly he was not expected to conceal his condition in
order to obtain employment. Absent any evidence from
those to whom Brister spoke about employment that he did
so in a fashion calculated to discourage any consideration
of him as an applicant, I cannot conclude that Brister's
efforts to obtain employment were a sham. I find that
Respondent has not established that Brister failed to make
a diligent effort to obtain interim employment and
conclude that Brister is entitled to backpay in the amount
set forth in the specification. 14
B. John H. Fairbanks
The principal challenges to the backpay specification
with respect to Fairbanks go to the method of computation
of his first quarter earnings and his alleged fraudulent
unemployment compensation claim, both of which have
been rejected above. The backpay specification includes a
deduction from interim earnings for expenses incurred
seeking employment during the 9-week period between
Fairbanks' discharge on October 8 and the time he started
working as an independent contractor in December 1970.
Those expenses are supported by Fairbanks' testimony and
will be allowed as a deduction from interim earnings. I find
that Fairbanks is entitled to backpay in the amount set
forth in the specification as amended at the hearing.15
C. Carroll Jordan
The issue as to Jordan is whether the backpay specifica-
11 Mastro Plastics Corporation, etc, 136 NLRB 1342, 1346-47, enfd as
modified 354 F.2d 170 (C.A 2, 1965), cert. denied 384 U S 972 (1966)
12 Southern Household Products Company, Inc., 203 NLRB No. 138
13 International Trailer Company, Inc., etc, 150 NLRB 1205, 1218. In fact
only two of the five claimants found substantial employment as guards
during the backpay period. One other claimant worked at tasks for which
there is no showing that Brister was qualified
14 There is no evidence to support the allegation in Respondent's answer
that Brister was fired for cause by Bayou Knits in December 1970
15 The specification was amended to reflect increased interim earnings
by Fairbanks during the first quarter of 1971 As a consequence thereof,
Fairbanks' net backpay for that quarter was reduced by $56 and the total
net backpay claim was changed to $1,794
16 Jordan 's testimony was the only evidence offered as to the dates of his
tion fails to deduct all interim earnings from his gross
backpay.
About 6 weeks before Respondent terminated Jordan, he
started to work at Buddy's Discount Grocery on a part-
time basis while he continued to work full-time for
Respondent. He worked at Buddy's 3 to 4 hours a day,
usually between the hours of 5 and 9 p.m. His average
weekly earnings from this job during that period were
approximately $37 a week.
After his discharge Jordan continued to work part-time
at Buddy's until around December 1, 1970. At that time he
transferred to another store known as Hogan 's Supermar-
ket under the same ownership as Buddy's. At Hogan's
Jordan worked full time 5 days a week. His hours were
Monday from 5 a.m. to 4 p.m., Wednesday from 7 a.m. to
4 p.m., Thursday from 10 a.m. to 9 p.m., Friday from 7
a.m. to 7 p.m., and Saturday from 10 a.m. to 9 p.m.
In July 1971, Jordan left Hogan's to go to work for
Brookshire Grocery Company at a higher rate of pay. He
remained there until around November 1, 1971, when he
was laid off in a reduction-in-force.16
After leaving Brookshire Jordan looked for work for
about a week and a half and then went to work for Rose
Oil Company where he remained until November 30.
Thereafter he worked for Wackenhut Corporation during
the first or second week in December and during the
second week in December he went back to work for
Hogan's Supermarket.
In the backpay specification for the period that Jordan
initially worked at Buddy's and Hogan's Supermarket the
Regional Director showed as Jordan 's interim earnings the
difference between his gross earnings at those stores and
the amount of $37 a week he had earned when he worked
part-time at Buddy's prior to his discharge. In the
specification as issued , no credit was given Respondent for
any interim earnings by Jordan in the last quarter of 1971
attributable to employment at Rose Oil, Wackenhut, or
Hogan's Supermarket. However, after Jordan testified, the
specification was amended to reflect interim earnings of
$171 at Rose Oil from November 10 to November 27, 1971,
the date backpay was tolled.
Respondent contends that all of the earnings received by
Jordan from Buddy's and Hogan's should be deducted
from his gross backpay in the appropriate quarters up to
the time that Jordan left Hogan's in July 1971. Respondent
further contends that all of Jordan 's earnings from Rose
Oil, Wackenhut, and Hogan's should be deducted from his
gross backpay for the fourth quarter in 1971.
Second job earnings normally are not considered as
interim employment and showed considerable confusion. He initially
testified he was laid off "around September , October or September , the last
of October or the first of September" He further testified that he did not
work at Brookshire in October However he was subsequently recalled and
testified that he had discovered a paycheck stub from October which
refreshed his recollection and that he worked through the week ending
October 30, 1971 The check stub was available at the hearing for
inspection it is apparent that Jordan in his initial testimony was
substantially confused as to the dates of his employment in late 1971 In
light of Jordan 's testimony as to how he refreshed his recollection and in the
absence of any evidence from any other source , I find that his testimony
after recall is entitled to greater reliance than his initial testimony in this
regard.
ISAAC AND VINSON SECURITY SERVICES
interim earnings to be deducted from gross backpay
particularly where as here the claimant held a second job
prior to his discharge . Where a part-time job has been
developed to a full -time job after discharge the Board has
also excluded from interim earnings that portion which
reflects what the claimant would have continued to earn
from his part-time second job if he had not been
discharged from his full -time job . 17 Here Jordan continued
to work part time for about 2 weeks after his discharge and
then transferred to another store under the same ownership
to work full time. It is apparent from his hours at the
second store that the transfer made it impossible for him to
continue at his part-time job at the first store. There is no
evidence to indicate that Jordan 's part-time job at Buddy's
would not have continued indefinitely if he had not been
discharged by Respondent . Accordingly I conclude that
the exclusion from interim earnings of $37 a week for the
period that Jordan worked at Buddy's and Hogan's from
the time of his discharge until July, 1971, was proper.
With respect to Jordan's earnings during the fourth
quarter of 1971, Respondent contends that because Jordan
at one point testified that he was employed by Hogan's at
the time he was offered reinstatement and was previously
employed by Rose Oil and Wackenhut all his earnings
from those employers should be deducted as interim
earnings.
As set forth above , the burden is on Respondent to show
diminution of gross backpay as a result of interim earnings.
Thus, it was Respondent 's burden to show that Jordan's
earnings from those sources were attributable to the
backpay period . While Jordan 's initial testimony was
inconsistent with his testimony when recalled, it was clear
that Jordan's initial recollection of the dates of his
employment was confused and that his testimony when
recalled after refreshing his recollection was entitled to
reliance. Respondent introduced no evidence from any
independent source to contradict Jordan 's testimony on
recall and did not seek any opportunity to conduct a
further investigation after hearing Jordan's testimony. I
find that Respondent has not proved that Jordan's interim
earnings attributable to the fourth quarter of 1971
exceeded the amounts set forth in the specification as
amended at the hearing.
The backpay specification shows a credit for transporta-
tion expenses attributable to Jordan 's employment at
Brookshire for 8 weeks during the fourth quarter of 1971.
On the basis of Jordan's testimony as to the date he left
Brookshire the General Counsel concedes in his brief that
the allowance for expenses should be limited to the first 4
weeks of that quarter. Jordan's testimony otherwise
supports the mileage claimed in the specification based on
the increased distance he traveled each week to work at
Brookshire . Accordingly the deduction for expenses during
the fourth quarter of 1971 is reduced to $7 and the amount
of Jordan 's net backpay for that quarter is changed to $207
reflecting that change and the amendment to the specifica-
tion at the hearing.
On the basis of the above findings I conclude that
51
Jordan is entitled to net backpay in the amount of $1,054
plus interest accrued to the date of payment.
D. Everett E. Rhoden, Sr.
1. Rhoden's efforts to obtain interim 'employment
Rhoden was 57 years old at the time of the hearing. At
one time he had worked as an automobile mechanic before
he was employed by Respondent but he had been forced to
give up that kind of work because of arthritis and bursitis.
The kinds of work which he could perform were limited by
his physical condition and education.
After Rhoden was laid off by Respondent he went to the
Louisiana Employment Service and was told that there was
nothing then available for which he could qualify . Rhoden
continued to visit the employment service office thereafter
once or more a week and also periodically contacted it by
telephone to inquire about the availability of jobs. Rhoden
also kept in touch with the other backpay claimants in this
case and with friends to learn whether they knew of any
job openings . He also read the newspapers daily.
Rhoden testified that during December 1970 he applied
for employment at several places but could not remember
their names . He was able to name some places that he
visited at other times during the period of his employment.
During the summer of 1971 he heard that International
Paper was looking for guards at a plant in Bastrop,
Louisiana, about 20 miles from Monroe . He went there but
was told that the opening was filled and that they were not
taking applications . Rhoden answered a newspaper ad for
a guard job at Capital Warehouse but that job was also
filled before he applied . He visited K-Mart and Barker's
Stores in Monroe looking for security guard work but was
told that they had no openings and were not taking
application . Rhoden also looked for work as a filling
station attendant in two stations in Monroe and sought
light delivery work at several employers in the area whom
he named, as well as at places the names of which he could
not remember . Ultimately , in November 1971, he was
referred to a G .C. Murphy warehouse by the Louisiana
Employment Service and accepted the job there as a
security guard shortly before Respondent offered him
reinstatement . Rhoden was not offered any other job
during the backpay period and was never referred to any
place where he refused a job . During the period he was
unemployed only G.C. Murphy and one other employer
accepted written applications from him.
For some years prior to his layoff by Respondent
Rhoden had sold insurance in his spare time while holding
other full-time jobs including his job with Respondent.
During the backpay period Rhoden continued to sell
insurance. His gross receipts from those sales during the
calendar year 1971 were approximately double his average
gross receipts from that source for the 3 previous years.
Rhoden testified that during the backpay period whenever
he had leads for prospective purchasers he pursued them.
He usually visited prospects once or twice a week and at
most three or four times a week . He sold insurance mostly
in farming areas within a radius of about 100 miles around
17 Lee Cyclinder Division of Golay & Co, Inc, 184 NLRB 241, enfd 447
F 2d 290 (C.A 7, 1971).
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monroe. Very few of his contacts were in Monroe or west
of Monroe.
Respondent contends that the testimony of Rhoden
shows that his efforts to obtain employment were few and
far between and that he devoted his time instead to selling
insurance. The only evidence offered to meet Respondent's
burden to show that Rhoden did not diligently seek work
was that adduced on cross-examination of Rhoden. There
was no evidence offered to show that there were any jobs
available for which Rhoden failed to apply and for which
he reasonably should have made application. Rhoden's
age, education, and physical limitation necessarily limited
the kind of jobs which he could perform. His uncontradict-
ed testimony shows that he kept in regular communication
with the employment service and that when he learned of
possible openings he explored them. There is no inconsis-
tency between making an effort to secure full-time
employment and continuation of Rhoden's insurance
selling activity even on an expanded basis during the
backpay penod.is The small number of employers that
Rhoden could recall making application with and the
failure to recall the names of some employers is not
sufficient to carry Respondent's burden in the absence of
evidence that he failed to pursue reasonable possibilities
and in the light of the evidence that he regularly visited the
employment service, that he declined no jobs, and that he
pursued job leads he obtained. I find that Respondent
failed to establish that Rhoden did not make a diligent
search for employment during the backpay period.
2. Rhoden's earnings from his insurance business
The question remains whether Rhoden's gross backpay
should be reduced because of earnings attributable to his
part-time insurance business. As set forth above, when
work at a second job is expanded during the backpay
period the Board normally deducts as interim earnings the
increase in earnings above the amount previously attribut-
able to the part-time job. However, on the basis of
Rhoden's income tax returns which showed a loss from the
sale of insurance during the backpay period the Regional
Director deducted nothing from Rhoden's gross backpay
as interim earnings from that source during the entire
backpay period. Respondent contends that Rhoden could
not properly claim a loss from his insurance business and
that it is entitled to a substantial credit against Rhoden's
gross backpay.
The basis for the claim that Rhoden lost money from his
insurance business is a deduction shown on his tax return
for 1971 for 35,000 miles traveled in connection with his
insurance business.
18 Mel Croan Motors, Inc, 174 NLRB 1189,1191-92
19 During the year 1971 Rhoden had two cars and deducted the mileage
of both of them. He testified that his daughter also had a car which she and
his wife used for their personal needs.
20 It is unnecessary to consider in this proceeding whether the deduction
claimed on his return was proper for income tax purposes
21 I reject Respondent's contention that Rhoden's testimony indicates
that he adjusted his mileage figure to offset his gross receipts The testimony
on which Respondent relies merely indicates that Rhoden did not keep
track of actual expenses and claimed a mileage deduction to save the
paperwork of keeping track of actual car expenses
22 In computing this average I have excluded an income item in 1970
shown both on Rhoden's tax return and a supporting information return as
Rhoden testified that he kept no record of the trips he
made to sell insurance other than reports he sent to
insurance companies when he was successful in making
sales. He estimated that he sold insurance to about 25
percent of the prospects he visited. His method of
determining his mileage was to record his odometer
reading at the beginning of each calendar year. He gave
those figures to his accountant who usually deducted
Rhoden's entire mileage for the year as a deductible
expense. i9
Rhoden's testimony thus indicates that he claimed all his
mileage as an expense attributable to his insurance
business. His testimony otherwise, however, warrants the
inference that for purpose of determining his interim
earnings in this proceeding not all of his mileage should be
considered as attributable to this business.20 Thus Rho-
den's estimate of the number of visits he made to prospects
each week and the places named by him or his records as
places he visited make the average of 675 miles a week
claimed on the tax return unduly high.
The absence of complete records or a reliable recollec-
tion of Rhoden's trips makes the task difficult but not
impossible. As Rhoden's tax returns for the 3 years prior to
his discharge are in evidence it is possible to determine
both his average gross receipts and his average mileage
claimed in prior years. Since both Rhoden's gross receipts
and his mileage increased substantially in 1971, it is
reasonable to infer that the increase in mileage was
attributable to the increase in Rhoden's efforts to sell
insurance?i A reasonable measure of the increment of
Rhoden's net earnings from insurance sales is the differ-
ence between the increase in his gross receipts and the cost
attributable to his increased mileage, the only expense of
doing business claimed by Rhoden. Rhoden's tax returns
for 1968, 1969, and 1970 show that Rhoden's average
receipts for these years were $1,736.22 Those returns also
show average mileage of 23,500 miles.23 Rhoden's return
for 1971 shows gross receipts of $3,496 and mileage of
35,000 miles. Thus, I find that $1,760 represents the
increase in Rhoden's gross income from insurance sales
attributable to the increase in his efforts to sell insurance
during the calendar year 1971 and that $1,150 represents
the increase in his travel expenses attributable to those
sales.24 From these figures I conclude that the net
deductible interim earnings attributable to the increase of
Rhoden's insurance sales for 1971 was $610. As the parties
stipulated that such earnings should be divided evenly over
the calendar year, I find that Rhoden had net interim
earnings of $152 per each calendar quarter of 1971. As the
last 5 weeks of the last quarter of 1971 are excluded from
dividends Although Respondent contends that this item constituted
additional income from sales , there is no evidence to support that
contention As Rhoden's income from insurance sales in 1970 was below the
average for the 3 years, I find that no portion of it should be deemed interim
earnings for the period he was unemployed in 1970.
23 In 1970, unlike other years, the return showed both a total mileage
figure and a lesser amount claimed as deductible In the light of Rhoden's
testimony I have interpreted the figures shown in 1968, 1969, and 1971 as
total mileage and used the higher figure shown for 1970 in determining the
average
24 Mileage expense is computed at the rate of 10 cents a mile, the figure
used elsewhere in the Specification.
ISAAC AND VINSON SECURITY SERVICES
the backpay period, on the basis of the stipulation the
amount of deductible interim earnings for that quarter
must be reduced to $94.
Accordingly I find that Rhoden's net backpay should be
reduced from that set forth in the backpay specification by
$152 for each of the first three quarters of 1971 and by $94
for the last quarter of 1971, reducing Rhoden's net
backpay for the entire period to $3,939 plus interest
accrued to the date of payment.
E. Todd Walker
1. The effect of Walker's termination from an
interim job
After Walker's discharge by Respondent he first found
interim employment as a security guard with Ouachita
Industries during December 1970.25 Walker remained on
that job until May 26, 1971, when he was mailed a
termination slip notifying that he was terminated because
he had been absent from work for 3 or 4 days.
Although Walker conceded that he received a termina-
tion slip, he denied that he was discharged and testified
that he had quit in order to go into the moving business
with a brother-in-law and had so informed a foreman or
someone else in authority at Ouachita. Despite my
impression that Walker testified with commendable frank-
ness and candor with respect to other aspects of his
testimony, I find it difficult to credit his testimony that he
gave notice that he was leaving. Walker concededly did not
give any notice to Calvin Pipes, his supervisor at Ouachita.
He explained this omission on the ground that he never
went to Pipes for anything but dealt with a member of the
family which owned Ouachita. Yet he also conceded that
he did not recall notifying any of the owners that he was
leaving. Even accepting Walker's testimony that there was
confusion and turmoil at Ouachita at the time he left, I
find it impossible to believe that Walker, who was
considered as head guard at Ouachita, would have given
notice to persons he could not identify rather than to those
with whom he normally dealt.
The moving business never materialized, according to
Walker, because the financial end didn't work out. Walker
testified that he learned definitely that the financing had
fallen through on June 1 and that he had an inkling that it
would not work out before that. After learning that the
business venture had fallen through Walker again sought
employment, and in mid-June started to work for Dumas
Air & Heating. As a result of Walker's combined interim
earnings from Ouachita and Dumas from April through
June 30, 1971, no net backpay is claimed for Walker for
this quarter.
Respondent contends that Walker's gross backpay
2s Walker did not receive his first paycheck until after January 1, 1971,
and his earnings from this employment have been considered to have
commenced in the first quarter of 1971
26 See Mastro Plastics Corporation, supra
27 Harvest Queen Mill & Elevator Company, 90 NLRB 320, 327 See also
American Manufacturing Company of Texas, 167 NLRB 520, 527; McCann
Steel Company, 203 NLRB No 115
28 See Mastro Plastics Corporation, 145 NLRB 1710, 1713, enfd as
modified 354 F 2d 170 (CA 2, 1965), cert denied 384 US. 1342 (1966).
29 Walker had recently been laid off from other interim employment and
53
should be reduced by the earnings he would have received
if he remained employed at Ouachita. However, assuming
that Walker might have handled his departure from
Ouachita in a more business-like fashion, Respondent has
not established that Walker willfully lost interim earnings
by leaving his job with Ouachita. 26 There is no evidence to
controvert Walker's testimony' that he left the job with
Ouachita in order to go in business with his brother-in-law
and that the venture failed because the financing did not
work out. Absent special circumstances, it is to be
presumed that one who leaves a job for self-employment
expects thereby to improve his financial position.2r
Moreover, when the financing for his business fell through
Walker promptly sought and found new employment and
his net interim earnings for this calendar quarter exceeded
his gross backpay. In these circumstances , I find no merit
in Respondent's contention that Walker's backpay should
be reduced because of the circumstances under which he
left his job at Ouachita.28
2. The offer of reinstatement to Walker in
January 1972
By letter dated January 13, 1972, Walker received the
following letter from Respondent 's attorney.29
In connection with our telephone conversation of
this week, please report to Dr. S.I. Courtman, 417
Wood Street, Monroe, Louisiana for a physical on
Monday, January 17th at 10:00 A.M. to see if you are
eligible to return to work as a guard for Isaac & Vinson
Security Services, Inc. at the Olinkraft Plant in West
Monroe, Louisiana.
If you pass the physical, then your job will be
reinstated.
After we have received a report from Dr. Courtman
we will be in touch with you concerning your return to
work.
On January 18, 1972, Dr. Courtman examined Walker
and told him that he was physically fit to return to work as
a security guard for Respondent. He also asked Walker to
sign a release before he left.
When Walker read the release which has been dictated
by the doctor and typed by his secretary, Walker told the
secretary he would not sign it, and wrote a more limited
release which he told the secretary he would be willing to
sign. She told him to call later to see if it was typed and
ready for him to sign. Walker spoke to her once thereafter
when she said it was not ready, tried to reach her once
more without success, and made no further effort to sign
the release 30
had spoken to Respondent 's officials on January 7, apparently for the
purpose of seeking employment.
so Walker so testified , and I have credited him Dr Courtman testified
that the release which he dictated was identical in scope and substantially
identical in form to the release which Walker said he wrote to replace a
broader release which he testified had been prepared for him to sign
Although there is no reason to question Dr. Courtman 's veracity , there is
reason to conclude that his memory a year and a half after the fact was
based largely on what he found in Walker's file at the time of the hearing.
The presence of the release in Walker's file is explained by Walker's
(Continued)
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 22, 1972, Walker wrote Respondent's
attorney as follows:
As directed by you I reported to Dr. S.I. Courtman
and taken [sic] a physical examination to determine my
physical fitness to return to work as a guard for Isaac
and Vinson Security Services, Inc., at Olinkraft Plant in
West Monroe, Louisiana.
Upon completion of this very limited physical Dr.
Courtman informed me that I was physically fit,
however, arthritis did show up in the X-Ray.
I am now awaiting word from you to resume work as
a guard pursuant to the decision handed down by the
National Labor Relations Board.
Please be informed that I did not authorize release of
any information medical or otherwise to anyone in
writing or verbally. This includes the findings of the
physical taken by me on January 18, 1972, other than
verbally to Dr. S.I. Courtman the fact that I was found
physically fit.
On March 24, Dr. Courtman sent Respondent's attorney
a memo stating that he had been unable to comply with
requests from Respondent for a copy of Walker's examina-
tion because Walker refused to sign an authorization for its
release.
Walker received no response to his letter from Respon-
dent's attorney and heard nothing further from Respon-
dent until by letter dated December 4, 1972, he was offered
unconditional reinstatement without the requirement of a
physical examination.
The other claimants in this case were offered reinstate-
ment on various dates without any requirement of physical
examination 31 New employees, including the claimants,
were required to take physical examinations at the time of
their initial hire but were not required to sign any releases.
Dr. Courtman testified that he asked for a release in
Walker's case because the request for the examination had
come from an attorney and he gathered that litigation was
involved.
I find that the offer of reinstatement made in the, January
13, 1972, letter was conditional and reject Respondent's
contention that Walker's backpay should be tolled as of
that date. Respondent advanced no reason for singling
Walker out for this treatment,32 and in the absence of any
other,proferred reason, the inference is strong that Walker
was required to take a physical examination because just
prior to his original discharge, Walker had reported that he
was sick after being assigned to a job which Respondent
knew he was physically unable to perform. The Board
found both the assignment and Walker's subsequent
discharge discriminatory. Respondent can no more rely on
testimony that he left it with the secretary to be typed In the absence of
testimony from the secretary, I have credited Walker.
31 Brister, Jordan, and Rhoden were offered reinstatement in 1971,
before the first letter sent to Walker
32 Although Respondent sought to examine Walker at the hearing as to
his physical condition before the offer of reinstatement was made, it
introduced no evidence to show that it had any knowledge at the time the
letter was sent beyond what it possessed at the time of his discharge to
explain its requirement that Walker be examined.
33 General Electric Company, 150 NLRB 192, 255-256, 284, enfd. 418
F.2d 736 (C.A. 2, 1969), cert denied 397 U S. 964 In N L RB v. Industrial
Walker's predischarge physical condition as a reason for
requiring that he take and pass a physical examination
prior to reinstatement than it could in support of his
original discharge. I find that Respondent's offer of
reinstatement conditioned on Walker's taking and passing
a physical treated Walker as a new employee, was not a
valid offer of reinstatement, and did not toll Respondent's
backpay obligation to Walker.33 The fact that Walker took
the examination and apparently passed it, but then failed
to sign a required release does not alter this conclusion.
Respondent did not initially require the release , but the
requirement was acquiesced in by its attorney, who never
responded to Walker's January 22 letter or sought to
inquire as to what Walker meant by its enigmatic last line.
3. Walker's availability for, employment in 1972
Respondent contends that Walker was out of the market
during the first and second quarters of 1972. During those
quarters Walker had no interim earnings, and the backpay
specification shows no excepted periods from the backpay
period. However, the specification shows that the periods
of October 12 through November 9, 1970, and September 1
through October 17, 1971, were excepted from the backpay
period. Walker testified that during both these periods he
was hospitalized for alcholism. Walker also testified that
before his second hospitalization he was jailed overnight
on one occasion. Although Respondent contends that he
must have been unavailable for employment at other times
because he was drinking, there is no evidence to support
this contention. Walker's testimony, which indicated frank
acceptance of his condition, distinguished between suffer-
ing from alcoholism, drinking, and being constantly
intoxicated. While Walker conceded the first he did not
concede the last, and absent any other evidence I do not
infer that he was incapacitated and out of the market for
the period alleged in the answer. Accordingly, I find that
Walker is entitled to the backpay alleged in the backpay
specification.
RECOMMENDED ORDER34
Upon the basis of the foregoing findings and conclusions
it is ordered that Respondent Isaac and Vinson Security
Services, Inc., its officers, agents, successors, and assigns,
shall pay to the employees involved in this proceeding as
net backpay the amount set, forth opposite their names.
Earl T. Brister - $5,321
John H. Fairbanks - $1,794
Carroll Jordan - $1,054
Everett E. Rhoden, Sr. - $3,939
Todd Walker - $5,148
Cotton Mills, 208 F.2d 87 (C A. 4), on which Respondent relies, the Court
found that the respondent company had valid reason for requiring a
physical examination of a returning striker wholly unrelated to any past
discrimination against him and arising from a condition which made it
impossible for him to perform his full duties before the strike.
&i In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
ISAAC AND VINSON SECURITY SERVICES 55
Each of the foregoing sums shall accrue interest at the amounts social security taxes, income tax withholding and
rate of 6 percent per annum , computed in the manner set such other deductions as may be required by the laws of
forth in Isis Plumbing & Heating Co., 138 NLRB 716. the United States or the State of Louisiana.
There shall be deducted from each of the foregoing