Rainbow Coaches

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 166 (N.L.R.B. 1986)

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rainbow Tours , Inc., d/b/a Rainbow Coaches and
Hawaii Teamsters and Allied Workers, Local
966, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and Ronald Sai and Garrett Wong.
Cases 37-CA-1341, 37-CA-1342, and 37-CA-
1387
30 May 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 12 April 1984 Administrative Law Judge
Joan Wieder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs 1 and
has decided to affirm the judge's rulings, findings, 2
and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Rainbow
Tours, Inc., d/b/a Rainbow Coaches, Honolulu,
Hawaii, its officers , agents, successors, and assigns,
shall pay Simeon Agao Jr., Michael Akamine,
Miles Fonseca, Yukio Iho, Lane Kaaiai, Eric Kana,
Ralph Kaui, James Louis, Ronald Sai, and Henry
Sanford the sums set out in the recommended
Order.
1 We deny, as lacking in merit, the Respondent 's motion to strike the
General Counsel 's brief in response to the Respondent's exceptions, and
the General Counsel 's motion to strike the Respondent 's motion. We also
deny the Respondent's motion for reconsideration inasmuch as it does not
contain any newly discovered evidence or evidence not previously con-
sidered by the Board
Y The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Chairman Dotson agrees with the conclusions reached by the judge re-
garding the discriminatees ' duty to mitigate the Respondent's backpay li-
ability . In reaching these conclusions , however, the Chairman relies on
the analysis set forth in Brady v Thurston Motor Lines, No 83-1765 (4th
Cir. Feb 6, 1985)
Thomas W. Cestare, Esq., for the General Counsel.
Jared Jossem and John Knorek, Esgs. (Torkildson, Katz,
Jossem & Loden), of Honolulu, Hawaii, for the Re-
spondent.
John R. Desha, Esq., of Honolulu, Hawaii, for the Charg-
ing Party- Hawaii Teamsters.
Charlotte Duarte, Esq., of Honolulu, Hawaii, for the city
and county of Honolulu.
Wayne Matsuura, Esq., Deputy Attorney General, of
Honolulu, Hawaii, for the State Department of Labor.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This sup-
plemental proceeding was heard at Honolulu , Hawaii, on
various dates in May, June, July, and August 1983. A
backpay specification and notification was issued on Sep-
tember 30, 1982, predicated on a Decision and Order of
the Board dated March 29, 1979, 241 NLRB 589, which
found that Respondent discriminatorily discharged 12
employees and granted superseniority to nonstrikers in
violation of Section 8(a)(3) and (1) of the Act, and pro-
vided that they be reinstated and reimbursed for all
wages and other benefits lost between the date of the dis-
charge and their reinstatement, with interest to be com-
puted thereon in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977). See also Isis Plumbing Co., 138
NLRB 716 (1962). The United States Court of Appeals
for the Ninth Circuit entered its judgment enforcing in
full the Board's order. NLRB v. Rainbow Coaches, 628
F.2d 1357 (9th Cir. 1980).
The parties' disagreement over the backpay owed dis-
criminatees Simon (Jay) Agao, Michael Akamine, Miles
Fonseca, Yukio (Ross) Iho, G. Lane Kaaiai, Eric Kama,
Ralph Kaui, James Louis, Ronald Sai, and Henry San-
ford led to the issuance of the backpay specification. Re-
spondent's answer, filed October 14, 1982, generally
denies each allegation of the specification. The General
Counsel, on December 1, 1982, filed a Motion for Partial
Summary Judgment. On December 14, 1982, an order
was issued transferring the proceeding to the Board di-
recting the parties to show cause why the General Coun-
sel's motion should not be granted. Respondent replied
on January 10, 1983, and filed an amended answer. The
General Counsel filed a motion to strike Respondent's
first amended answer; moved to find the backpay specifi-
cation true; and, further, moved for partial summary
judgment. The Board found, in a Supplemental Decision
and Order, 266 NLRB 585, dated March 28, 1983, that
Respondent's amended answer failed to deny with the
requisite specificity the allegations with respect to discri-
minatees Akamine, Kaaiai, Kaui, and Sanford. Therefore,
gross backpay is an issue only concerning discriminatees
Agao, Fonseca, Iho, Kama, Louis, and Sai. Interim earn-
ings is in issue for all discriminatees.
On the entire record and from my observation of the
witnesses, I make the following
280 NLRB No. 17
RAINBOW COACHES 167
FINDINGS OF FACT
1. ISSUES
Respondent raised both procedural and substantive
issues . These issues include assertions that: the formula
utilized by the Regional Director to determine gross
backpay was the improper basis for such computation;
the interim earning calculations for the discriminatees
were erroneous ; discriminatees willfully failed to mitigate
damages ; discriminatees Fonseca and Louis were rein-
stated and then voluntarily quit; the failure to permit dis-
covery so denied Respondent the rights guaranteed it
under the fifth and sixth amendments of the United
States Constitution affording due process of law and jury
trial to preclude the presentation of a defense ; the Board
should find that certain claimants withheld relevant in-
formation from the Board prior to hearing , which should
relieve Respondent of all interest assessments regarding
those claimants; some discriminatees concealed interim
earnings and failed to respond in a timely manner to
Board requests for information; and the failure of certain
claimants to keep or furnish the Board with accurate
records of job search constitutes a bar to their claim for
backpay, for the failures were sufficiently flagrant as to
constitute willful concealment of interim earnings. Also,
certain issues arose at hearing regarding petitions to
revoke several of Respondent 's subpoenas.
II. FINDINGS OF THE CASE
A. Preliminary Matters
1. Motion to correct transcript
On October 5, 1983 , Respondent filed a motion to cor-
rect the transcript . In particular , it requests that a sub-
stantial number of exhibits be acknowledged. To appreci-
ate the need for the request , it must be noted that the re-
porting service failed to submit a complete , understand-
able record. It submitted an incomplete set of exhibits in
a form that ignored any sense of order . Repeated re-
quests to the reporting service failed to produce the miss-
ing exhibits and joint requests to the parties for copies
was the only method available to ensure completion of
the record . Also, in some instances the transcript was un-
clear about the disposition of several exhibits . In other
instances the record clearly reflects dispositions which
Respondent claims are inaccurate. This confusion may be
ascribed in part to the failure of the reporting service to
present a complete set of exhibits in usable form. This
failure occurred after repeated requests during the trial
to the reporting service to take measures ensuring reten-
tion of a complete set of exhibits in a rational order. To
accomplish this end, counsel for Respondent , Knorek, re-
mained every evening to review the exhibits with the re-
porter to ensure that the reporting service had complete
sets of exhibits in order . These efforts were expended to
no avail.
Also the reporting service, contrary to request, did not
maintain a rejected exhibit file. Therefore any use of ex-
hibits must be done with great care since there was no
way to ascertain from the files which exhibits were re-
jected and which were admitted . Resort must be made to
the transcript.
Counsel for the General Counsel opposes the motion
to correct the transcript regarding Exhibits C-26, C-27,
and C-28, which Respondent contends were moved and
received in evidence . The transcript reflects that at the
time the exhibits were initially moved they were not ad-
mitted for lack of authentication and, at the time authen-
tication was attempted , the exhibits were shown to be
either irrelevant or Respondent failed to provide the req-
uisite authentication . They were not admitted into evi-
dence . With respect to Respondent 's Exhibits E-19(1)
and E-19(2), these applications of Kaaiai were never
moved into evidence . The motion as to these exhibits is
denied . Respondent 's Exhibit E-23 has been admitted
and the mismarking noted in the motion is corrected.
The motion to correct the transcript , to reflect that Re-
spondent's Exhibits H-20, H-21, H-24 through H-33,
and H-37 have been admitted , is granted . The motion to
correct the transcript to reflect that Respondent 's Exhibit
1-5 is admitted, is granted. The motion to correct the
transcript to reflect that Respondent's Exhibit J-2 was
admitted is granted.
The motion to correct the transcript so it indicates
that Exhibits A-13, C-46, and C-47, E-20 through E-22,
and H-17 were identified is granted and the appropriate
indices should be so modified . Also omitted from the in-
dices are the proper notifications that Respondent's Ex-
hibits C-31, C-32, and C-48; E-26, E-30 , and E-32; G-
14; H-19, H- 19(l), H-38 , and H-45 ; 1-19; J- 18; M; and
R-2 were rejected . The indices should be amended to
properly indicate these dispositions.
The motion to correct the transcript to indicate that
Respondent 's Exhibits C-24, C-25, C-28, C-33, C-35,
and C-36; E-28; H-42; and J- 1 were withdrawn is grant-
ed.
2. Assertion that Board processes in backpay
proceedings, as applied in this case , denied
Respondent due process
a. Delay
Respondent claims that it has been denied due process
for several reasons . One reason is the amount of time it
took the Board agents to obtain information from the
claimants, delays which were unexplained . These delays,
it is argued , when cojoined with denial of discovery, and
my rulings on subpoenas, resulted in the creation of irre-
buttable presumptions which Respondent was denied the
opportunity to test. For example, it asserts lack of oppor-
tunity to determine whether claimants took reasonably
sufficient steps to mitigate backpay.
Respondent cites two cases to demonstrate that it has
been denied due process . The first is Rainbow Valley
Citrus Corp. v. Federal Crop Insurance Corp., 506 F.2d
467, 469 (9th Cir. 1974), which provides:
The due process clause, in its procedural as opposed
to its substantive aspects , guarantees plaintiffs that
their liberty and property interests will not be in-
vaded by the government except insofar as they are
given an opportunity to challenge the purported
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
justification (legal, factual , or both) of the invasion.
Thus, to make out a prima facie claim that they
have been denied due process, plaintiffs must estab-
lish two elements : (1) that their liberty or property
interests have been invaded by the government
without an opportunity to challenge that invasion,
and (2) that the purported justification for the inva-
sion is at least plausibly disputable (otherwise an op-
portunity to challenge that justification would be an
empty formality).
The record demonstrates that Respondent was afford-
ed every opportunity to challenge the claim of violation
made in the underlying unfair labor practice case, which
was tested in exceptions filed with the Board , and in its
resort to the Ninth Circuit Court of Appeals. Having
been adjudicated a violator of the Act responsible for re-
instatement of employees, Respondent waited several
years before engaging in any self-help remedies by
making a good-faith offer of reinstatement to most, if not
all, of the employees found to be discriminatees. This
delay occurred despite the fact that it was ordered to re-
instate these employees and failed to do so until around
the time of the Ninth Circuit's decision in this matter.
Respondent undisputedly had the right to assume this
risk of litigation , but has no right to be saved from its
consequences.
Respondent also failed to show that the asserted justifi-
cation for the "invasion is at least plausibly disputable."
Id. Respondent has the clear burden of proof, as the
wrongdoer, to show that the discriminatees improperly
failed to mitigate damages . It is undisputed that the
Board agents, well before trial, gave counsel for Re-
spondent complete access to all material in their posses-
sion relevant to interim earnings and computation of
backpay. The General Counsel made all discriminatees
available at trial for examination by Respondent. At Re-
spondent's behest, the entire General Counsel's file was
inspected in camera to ensure that all evidence that
could be construed as facts had been made available to
Respondent . That the General Counsel accumulates in-
formation does not indicate any assumption of an obliga-
tion to show whether the discriminatees took reasonable
and sufficient steps to mitigate backpay. The employer
has the burden of proving the affirmative defense of fail-
ure to mitigate . See NLRB v. Mooney Aircraft, 366 F.2d
809, 813 (5th Cir. 1966); Florence Printing Co. v. NLRB,
376 F.2d 216, 223 (4th Cir. 1967), cert. denied 389 U.S.
840 (1967); Alamo Express, 217 NLRB 402 at 403 (1975),
citing Brown & Root, 132 NLRB 486, 501, 540-543
(1961), enfd. 311 F.2d 447 (8th Cir. 1963); and I. Posner,
Inc., 154 NLRB 202, 204 (1965).
As Judge Learned Hand reasoned by analogy, "[i]t
rest[s] upon the tort-feasor to disentangle the conse-
quences for which it was chargeable from those from
which it was immune." NLRB v. Remington Rand, Inc.,
94 F.2d 862, 872 (2d Cir. 1938). "[T]he most elementary
conceptions of justice and public policy require that the
wrongdoer shall bear the risk of the uncertainty which
his own wrong has created ." Midwest Hanger Co., 221
NLRB 911, 917 (1975), enfd . in relevant part 550 F.2d
1101 (8th Cir. 1977), citing Bigelow v. RKO Radio Pic-
tures, 327 U.S. 251, 265 ( 1946). That Respondent chose
to risk the potential infusion of vagaries caused by the
passage of time occasioned by awaiting the results of its
appeals before offering the claimants reinstatement does
not alter its burden of proof or serve to shift the burden
to the General Counsel.
Respondent also asserts that the amount of time it took
from the original decision adjudicating the issue of dis-
crimination in March 1979 until the start of this hearing
in May 1983 was so great as to render the accumulation
of information sufficient to sustain the burden of proving
mitigation an impossibility . The Supreme Court, in
NLRB v. Rutter-Rex Mfg. Co., 395 U.S. 258, 264-265
(1969), placed the cost of any delay on the employer,
stating:
Wronged employees are at least as much injured by
the Board 's delay in collecting their backpay as the
wrongdoing employer . In view of the "economic
hardship caused by many years of undeservedly
substandard earnings ," lengthy delays "must render
the back pay award a wholly inadequate and unsat-
isfactory remedy" to the employees for the compa-
ny's refusal to reinstate them . NLRB v. Mastro Plas-
tics Corp., 354 F.2d 170, 180 (C.A. 2d 1965). This
Court has held before that the Board is not required
to place the consequences of its own delay , even if
inordinate, upon wronged employees to the benefit
of wrongdoing employers.
[T]he Board could properly conclude that back pay
is not only punishment for an unfair labor practice,
but is also a remedy designed to restore , so far as
possible, the status quo that would have obtained
but for the wrongful act. Cf. Phelps Dodge Corp. v.
N.L.R.B., 313 U.S. 177, 194 (1941).
As an aside, Respondent did not aver inability to pay
and therefore this issue is not under consideration. See
Schnadig Corp., 265 NLRB 147 (1982).
The National Labor Relations Act requires the wrong-
doer "to bear the risks of uncertainty, as to the extent of
the consequences ascribable to their own actions ." Elec-
trical Workers UE v. NLRB, 426 F.2d 1243, 1251-1252
(D.C. Cir. 1970), cert. denied 400 U.S. 950 (1970). As the
Court noted, in Bigelow v. RKO Radio Pictures, supra,
327 U.S. at 265, "The most elementary conceptions of
justice and public policy require the wrongdoer shall
bear the risk of the uncertainty which his own wrong
has created ." See further NLRB v. Katz, 369 U.S. 736 at
748 fn. 16 (1962), and citations contained therein.
Thus, although unconditional offers of reinstatement
went out to all employees on October 6, 1980, the undis-
puted failure of the Board to collect information regard-
ing the efforts of the discriminatees to mitigate backpay
until the spring of 1982 does not eliminate or otherwise
alter Respondent's burden of proof. This defense is found
to be without merit.
b. Lack of discovery
Respondent asserts that lack of pretrial discovery is a
denial of due process . It is well settled that the fifth
RAINBOW COACHES
amendment does not require that parties to Board pro-
ceedings be permitted prehearing discovery. NLRB v.
Valley Mold Co., 530 F.2d 693, 695 (6th Cir. 1976), cert.
denied 429 U.S. 824 (1976); NLRB v. Interboro Contrac.
tors, 432 F.2d 854, 857-858 (2d Cir. 1970), cert. denied
402 U.S. 915 (1971). It is further held that the National
Labor Relations Act does not require or even specifical-
ly authorize the Board to adopt discovery procedures.
Electromec Design & Development Co. v. NLRB, 402 F.2d
631, 635 (9th Cir. 1969); NLRB v. Leprino Cheese Co.,
424 F.2d 184, 187 (10th Cir. 1970), cert. denied 400 U.S.
915; NLRB v. Interboro Contractors, supra at 858. See fur-
ther Rutter-Rex Mfg. Co., 194 NLRB 19 (1971), 396 U.S.
258 (1969). See further Flite Chief Inc., 246 NLRB 407
(1979); Medicine Bow Coal Co., 217 NLRB 931 at 932-
937 (1975); and Magic Pan Inc., 242 NLRB 840 (1979).
This defense is found to be without merit.
c. Laches
Respondent, in its first amended answer and also as
part of its denial of due-process argument, raises laches
as a defense. This defense is related to its allegation that
it has been prejudiced by the system employed by the
Board to conduct backpay proceedings, particularly in
the allocation of burden of proof and development of
evidence. As noted by counsel for the General Counsel,
the doctrine of laches is not a defense applicable to back-
pay proceedings nor does it toll the backpay obligation.
Citing Southeastern Envelope Co., 246 NLRB 423, 427
(1979); NLRB v. Rutter-Rex Mfg. Co., supra, 296 U.S.
458; Iron Workers Local 378 (Judson Steel), 213 NLRB
457, 460 (1974); NLRB v. Ozark Hardware Co., 282 F.2d
1, 6 (8th Cir. 1960). This defense is found to be without
merit.
d. Modifications to the backpay specifications
The backpay specifications were modified at least four
times. The initial modification occurred the first day of
trial before testimony was taken. This amendment was
generated by the Board's compliance officer Pamela Tal-
kin's discovery of additional income immediately before
the commencement of the hearing during interviews
with the discriminatees. Another modification was occa-
sioned by the discovery of a minor computational error
by the compliance officer. Respondent contends that
these amendments created confusion and it did not have
an opportunity to verify the additional earnings. Re-
spondent did not describe with specificity any difficulty
occasioned by these amendments, and the almost 2-
month hiatus in the trial between June 3 and July 26 af-
forded more than ample opportunity to test the accuracy
of these amendments.
In analyzing this as well as Respondent 's other allega-
tions, consideration must be given to the standard that
where an employer has discharged an employee unlaw-
fully, backpay is "the normal remedy." Golden Day
Schools v. NLRB, 644 F.2d 834, 840 (9th Cir. 1981). The
fmding of discriminatory discharge "is presumptive proof
that some backpay is owed by the violating employer."
NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1316
(D.C. Cir. 1972). Accord: NLRB v. Mastro Plastics Corp.,
169
354 F.2d 170, 178 (2d Cir. 1965), cert. denied 384 U.S.
972 (1966). The purpose of backpay is "to vindicate the
public policy of the [Act] by making the employee
whole for losses suffered on account of an unfair labor
practice. NLRB v. Dodson's IGA Foodliner, 553 F.2d 617,
620 (9th Cir. 1977), quoting Nathanson v. NLRB, 344
U.S. 25, 27 (1952). The purpose of this proceeding is to
restore "the economic status quo that would have ob-
tained but for the company's wrongful refusal to rein-
state." Pepsi-Cola Bottling Co v. NLRB, 414 U.S. 168, 188
(1973), quoting NLRB v. Rutter-Rex Mfg. Co., supra, 296
U.S. at 263. Accord: Love's Barbeque Restaurant v.
NLRB, 640 F.2d 1094, 1103 (9th Cir. 1981).
The employer must bear the burden of uncertainty in
these situations. See American Ambulance, 255 NLRB
417 (1981). As noted in Marlene Industries Corp. v.
NLRB, 440 F.2d 673, 674 (6th Cir. 1971), the General
Counsel's burden in a backpay proceeding is limited to
showing the gross backpay-what the employees would
have earned if the employer had not contravened the
Act. The employer then bears the burden of establishing
deductions from the gross backpay; for example, interim
earnings from alternative employment or willful failure
to seek such employment. Id. See also NLRB v. Cambria
Clay Products, 215 F.2d 48, 56 (6th Cir. 1954). See fur-
ther S. E. Nichols of Ohio, 258 NLRB 1 (1981).
Pursuant to the Board's Rules and Regulations (259
CFR Sec. 10253), the General Counsel is required to
present only "gross amounts of backpay." The General
Counsel also includes in the backpay specification deduc-
tions for those amounts in mitigation which the General
Counsel discovers through personal interviews, social se-
curity records, etc. The General Counsel performs this
service in the public interest to provide full information
to the employer and to limit the backpay demands, only
where aware of sums in mitigation. As noted above, the
General Counsel does not thereby assume "the burden of
establishing the truth of all the information supplied or of
negativing matters of defense or mitigation." NLRB v.
Brown & Root, 311 F.2d 447, 454 (8th Cir. 1963).
The initial modifications of the specifications prior to
the commencement of hearing were merely the General
Counsel's revelations of additional discoveries of infor-
mation . As such, they cannot be held to have assumed
any role that is to be carried by counsel for Respondent
who has the burden of establishing mitigation. That some
of the information was voluntarily supplied, albeit at the
eleventh hour, does not preclude its use. See Flite Chief,
supra 246 NLRB at 407, enf. denied in part 640 F.2d 989
(9th Cir. 1981). The allegations involving individual dis-
criminatees, wherein Respondent contends they willfully
concealed interim employment with any fraudulent intent
to increase backpay specifications, will be discussed
below.
The claimants were discharged at the end of January
1977. The Board, contrary to recommended but not re-
quired practice, failed to solicit information from the dis-
criminatees until 1982. This delay understandably made it
difficult for the individual discriminatees to list with
specificity and accuracy the details of their job search
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and led to last-minute disclosures and recollections after
face-to-face interviews and discussions.
Although Respondent objected to each amendment on
the grounds it had no prior notice of such amendment,
many of the amendments were occasioned by testimony
and evidence adduced by Respondent and Respondent
clearly heard and had access to the same testimony as
the General Counsel who, as a courtesy to all, recalculat-
ed the specifications to ensure the clarity of the record.
This practice is found to have assisted all, including Re-
spondent.
Further, Respondent has failed to demonstrate specifi-
cally any injury from those modifications. It has merely
made a bare assertion of prejudice . Respondent failed to
state either at hearing or in its brief any instance where
the scheduling of this proceeding or the granting of an
amendment created a circumstance that would require
the granting of a continuance. There was not one specif-
ic allegation that a witness was unavailable, that time
was inadequate to investigate a particular fact, that fur-
ther delay would help clarify matters, or that any other
argument would support the claim of prejudice occa-
sioned by these amendments.
The assertion that the Office of the General Counsel
was attempting to take actions designed to confuse mat-
ters is without merit. At no time prior to the close of this
trial did Respondent develop any evidence that indicated
the issues were more complex or required greater prepa-
ration than was apparent from its inception, or when the
trial resumed at the end of July 1983. During the course
of the hearing, the presentation of evidence proceeded
without the slightest suggestion that the defense was in
any sense handicapped by a lack of preparation and,
indeed, no specific details to the contrary were set forth
by Respondent. A review of the record requires the con-
clusion that Respondent has still failed to show good
cause for denying any of the amendments.
In sum, it is found that the modification to the specifi-
cation either occurred prior to the commencement of
hearing or merely reflects evidence adduced by Re-
spondent. The modifications are consonant with estab-
lished law. They have not been shown to be a willful
concealment of interim employment from the Board's
compliance officer with a fraudulent intent to increase
the issuance of backpay specifications or a denial of due
process.
3. Jurisdiction
Respondent, in its October 14, 1982 answer to the
backpay specification, asserted as its second defense that
the Board lacks jurisdiction over Respondent. The rais-
ing of the issue at this juncture is clearly improper. As
noted by the judge in the underlying unfair labor prac-
tice proceeding, Respondent admitted, in its answer to
the complaint, that at all pertinent times the Company
was an employer engaged in commerce and in a business
affecting commerce. There is no indication that Re-
spondent raised the issue of jurisdiction when it filed ex-
ceptions to the judge's finding of jurisdiction nor is there
any indication that the issue was raised on appeal before
the Ninth Circuit . Respondent 's general denial of juris-
diction is found to be without merit and untimely. There
is no showing that this issue was raised based on newly
discovered evidence , previously unavailable evidence, or
special entitlement to relitigate the issue. Pittsburgh Glass
Co. v. NLRB, 313 U.S. 146, 162 (1941).
4. The issues involving subpoenas
a. State subpoenas
Respondent argues that it has been denied a reasonable
opportunity to meet its burden of proof because the State
of Hawaii 's petition to revoke a subpoena requesting the
custodian of the records of the Unemployment Insurance
Office, Unemployment Service Division, Department of
Labor and Industrial Relations to produce certain
records regarding the discriminatees was granted.
The State filed its petition to revoke at the commence-
ment of trial on the basis of a statutory privilege. I
The State argued that the legislative history from the
Standing Committee Report 206, Senate Committee on
Labor, Hawaii Senate Journal 1969, p. 962, Standing
Committee Report 159, House Committee on Labor and
Employment Problems, Hawaii House Journal 1969, page
668, and other records and archives clearly indicate that
the only matters encompassed under the Federal Civil
Rights Act of 1964 and state and local law encompassing
the same discrimination areas are exempted from this
privilege. Copies of the Senate Journals were provided
by the State's counsel. These reports make reference to
state employment security agencies cooperating and as-
sisting the fair employment practice agencies . Additional-
ly, a letter from the director of the Department of Labor
referencing this legislation specifically refers to the anti-
discrimination requirements of the Civil Rights Act of
1964.
Respondent has not adduced any evidence nor made
any argument indicating that the legislative history re-
Hawaii revised statute sec. 383-95 provides , in relevant part:
(a) Except as otherwise provided in this chapter , information ob-
tained from any employing unit or individual pursuant to the admin-
istration of this chapter and determinations concerning the benefit
rights of any individual shall be held confidential and shall not be
disclosed or be open to public inspection in any manner revealing
the individual 's or employing unit's identity . Any claimant (or his
legal representative) shall be supplied with information from the
records of the department to the extent necessary for the proper
presentation of his claim in any proceeding under this chapter. Sub-
ject to such restrictions as the director may by regulation prescribe,
the information and determinations may be made available to:
(1) any federal or state agency charged with the administration of
an unemployment compensation or the maintenance of a system of
publish [sic] employment offices,
(2) the bureau of internal revenue of the United States Department
of Treasury,
(3) any federal , state or municipal agency charged with the admin-
istration of a fair employment practice or antidiscrimination law,
and
(4) any other federal, state or municipal agency if the director
deems that the disclosure to the agency serves the public interest.
(b) Information obtained in connection with the administration of
the employment service may be made available to persons or agen-
cies for purposes appropriate to the operation pf a public employ-
ment service.
Sec 383-144 of the Hawaii revised statutes provides a penalty for unlaw-
ful disclosure of the subpoenaed material by imposing a fine of not less
than $20 or more than $200 or imprisonment for not more than 90 days,
or both.
RAINBOW COACHES
quires an interpretation different from that propounded
by the State in its petition to revoke. The State of
Hawaii has a policy of keeping the employment records
confidential to encourage truthful reporting. Respondent
asserts that the revocation of the subpoena deprived it of
relevant evidence, records that would be probative of
reasonable job search, and material useful for impeaching
credibility and refreshing recollection.
As stated in Canova Moving Storage Co. v. NLRB, 708
F.2d 1498, 1502 (9th Cir. 1983):
Canova sought to use the records as evidence of
lack of diligence in seeking interim employment. As
the Board determined,[2] however, those records
would only show what efforts the employees actu-
ally reported to the Employment Development De-
partment and not necessarily what was actually
done. This evidence would have had its most signif-
icant value in impeaching the testimony of the em-
ployees concerning their efforts in seeking employ-
ment. Canova had in its possession Board compli-
ance documents and statements made by the em-
ployees concerning the job searches that contained
evidence analogous to the Employment Develop-
ment Department reports. Given Canova's opportu-
nity to cross-examine [the discriminatees] . . . on
the basis of these materials, Canova was not preju-
diced by the revocation.
In this case, Respondent similarly sought the records
for impeachment purposes. All records of the Board
were turned over to the employer well before the com-
mencement of hearing and the Board made all discrimin-
atees available for examination by Respondent. Counsel
for Respondent was aware of the Canova decision since
it was cited to him the first day of trial. Counsel did not
ask all the individual discriminatees if they filed any re-
ports with the State which clearly and truly reflected
their efforts in procuring interim employment. Respond-
ent did not ask any of the discriminatees what they filed,
if they kept records or copies of these filings and, if not,
whether they would be willing to get copies from the
State. Respondent has failed to state with specificity any
reason that the State's claim of confidentiality and privi-
lege should not be honored under the circumstances of
this case. See NLRB v. Adrian Belt Co., 578 F.2d 1304,
1310 (9th Cir. 1978). See generally General Engineering v.
NLRB, 341 F.2d 367, 372-373 (9th Cir. 1965); Herman
Bros. Pet Supply v. NLRB, 360 F.2d 176 (6th Cir. 1966).
See further Marine Welding v. NLRB, 492 F.2d 526 (5th
Cir. 1974).
Respondent requests reopening of the record on the
basis of the revocation of this subpoena as well as the
revocation of subpoenas served on several banks. This
motion is denied. The subpoenas to the banks were con-
ditionally revoked. As discussed more fully below, the
subpoenas to the banks were not shown to be relevant.
Respondent filed a special appeal to the Board concern-
ing these rulings. The Board denied the appeal without
171
prejudice . Respondent's request to consider the constitu-
tionality of the state provision was also denied.
b. The subpoenas duces tecum issued to the city and
county of Honolulu
Respondent's brief did not specifically address the
issues it raised on the record regarding these subpoenas.
This failure cannot be construed as a waiver of its objec-
tions. The city and county of Honolulu sought revoca-
tion of the subpoenas duces tecum issued to the custodi-
an of records of the Department of Civil Service, De-
partment of Public Workers, Department of Finance, and
the Honolulu Fire Department. Unlike the state statute,
it was found that the applicable statutes did not afford
the city and county of Honolulu similar protection
against production.3
The petition to revoke was only granted in part. It
was granted on those portions of the subpoena referring
to individuals for which there are no records. The re-
maining records of the city were reviewed in camera to
determine if they should be released in toto since all
records were requested. That portion of the subpoena re-
garding the performance and evaluation reports of the
discriminatees who were part-time employees of Re-
spondent and full-time employees of the city and county
of Honolulu fire department was not shown to be rele-
vant. Respondent failed to show how the performance
evaluation reports of the fire department were relevant
to the issues of mitigation and gross backpay. The fire
department leave records were found to be pertinent for
they may indicate when employees may have been un-
available for work or free to search for a job. The peti-
tion to revoke was denied as to those items . The petition
was granted as to performance and evaluation reports of
the part-time employee of Respondent who was a full-
time employee of the city and county of Honolulu's
refuse department. Respondent failed to indicate that by
s As here pertinent , Chap 92E, Hawaii revised statutes, was enacted in
1980 to implement the following portion of an amendment to the Hawaii
state constitution
The right of the people to privacy is recognized and shall not be
infringed without a showing of a compelling state interest. The legis-
lature shall take affirmative steps to implement this right
"Personal record" means any item, collection, or grouping of in-
formation about an individual that is maintained by an agency. It in-
cludes, but is not limited to, the individual 's educational, financial,
medical, or employment history. . ["Personal record" includes a
"public record," as defined under sec . 92-501
HRS sec 92-50 defines "public record" and states-
As used in this part, "public record" means any written or printed
report , book or paper, map or plan of the State or of a county and
their respective subdivisions and boards , which is the property there-
of, and in or on which an entry has been made or is required to be
made by law, or which any public officer or employee has received
or is required to receive for filing , but shall not include records
which invade the right of privacy of an individual
Sec. 92E-13 provides that-
Nothing in this chapter .. shall be construed to permit or re-
quire an agency to withhold or deny access to a personal record, or
any information in a personal record:
(1) When the agency is ordered to produce, disclose, or allow
access to the record or information in the record, or when discovery
of such record or information is allowed by prevailing rules of dis-
covery or by subpoena in any judicial or administrative proceeding
2 261 NLRB 639 (1982)
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granting the petition to revoke in part , it was deprived of
documents which were relevant , material , or otherwise
properly sought. Respondent did not ask any of the dis-
cruninatees, who were the subject matter of the material
sought in the subpoenas that were revoked , if they had
copies of the material or any questions relating to that
material which might have demonstrated their relevance
and materiality.
c. Bank subpoenas
Respondent also subpoenaed several banks for their
records of accounts in the names of some or all of the
discriminatees . Some of the banks had representatives
present in the courtroom but they declined to produce
these documents for fear of violating state law. Some
banks apparently did produce records, although Re-
spondent did not state which banks complied . An exam-
ple of compliance is Respondent's Exhibit 1-19, contain-
ing Sai's mortgage payments , which was not admitted
into evidence for its relevance had not been established.
There were also indications that Respondent had re-
ceived other bank records . Also, Fonseca's credit union
statements were produced and were the subject of testi-
mony by an employee of the fire department's credit
union.
Counsel for Respondent represented that one of the
banks subpoenaed was willing to comply with the sub-
poena providing that a certificate of compliance , pursu-
ant to a Federal statute, 12 U.S.C. § 3308 , was provided.
The statute provides that a bank should not release the
material until the Government authority seeking such
records certifies in writing that it has complied with the
applicable provisions of the chapter . Compliance with
the statute requires that individuals, whose bank records
are subpoenaed , must be served with a copy of the sub-
poena which is served on the bank. Counsel for the Gen-
eral Counsel refused to sign the certificate of compli-
ance, as provided in the financial privacy section of
Chapter 12 and asserted that there was no reasonable
cause to believe the records were sought for law en-
forcement purposes or that the notice provision of the
statute had been satisfied . Counsel for Respondent admit-
ted that the discriminatees whose records were sought
were not served with copies of the subpoenas.
I find that these were private subpoenas ; thus , accord-
ing to the cited statute, it was not necessary to serve a
copy on the discriminatees.
The banks requested during the trial that the officer is-
suing the subpoenas sign a document . I explained that I
was not the issuing officer, but that I had no objection to
ordering compliance if the relevance and materiality of
the subpoenaed records were established . For example,
Respondent was requested to establish whether the bank
accounts were joint accounts or were in any way poten-
tially probative of the issues involved in this proceeding.
Respondent was permitted to repeatedly seek such infor-
mation from the discriminatees to demonstrate probable
relevance or materiality . Inexplicably , Respondent fre-
quently failed to determine the nature of the accounts,
such as whether they were mortgage accounts , car loans,
or accounts where the discriminatees were merely co-
signers . Respondent , near the close of hearing , sought
production of Kaaiai's bank records , yet admitted that
Kaaiai was not subpoenaed , they knew he was residing
on another island, the island of Hawaii . Thus even if the
request were granted, there was no mechanism by which
to test the relevance and materiality of the subpoenaed
documents in Kaaiai 's absence . Nothing occurred during
the closing stages of this proceeding which would have
accounted for Respondent 's failure to subpoena Kaaiai at
the time it moved for production of his bank records.
It is noted that the Fonseca credit union records,
which were subpoenaed and were the subject of exami-
nation, were not offered as evidence. Also, on the last
day of hearing , Respondent requested production of the
bank records of Fonseca . Fonseca had testified that day
and had been excused after giving rebuttal evidence.
This request was not shown to have been justified by the
finding of new material . Again, the untimely nature of
the request was not explained . Respondent never clearly
established that the banks which wished to have certifi-
cates of compliance were the same banks where Kaaiai,
Fonseca, or other specified claimants kept accounts.
The initial ruling refusing to order the banks to
comply with the subpoenas was made early in the pro-
ceeding and was made subject to renewal by Respond-
ents on a showing of relevance and materiality.4
As noted in General Engineering v. NLRB, 341 F.2d
367 at 372-373 (9th Cir. 1975); the NLRB's own regula-
tion authorizing revocation states that the administrative
law judge or the [Board ], as the case may be,
shall revoke the subpoena if, in its opinion , the evi-
dence whose production is required does not relate
to any matter under investigation or in question in
the proceedings or the subpoena does not describe
with sufficient particularity the evidence whose pro-
duction is required , or if for any other reason suffi-
cient in law the subpoena is otherwise invalid. [Em-
phasis in original .] [29 CFR Sec. 102 .31(b) (1979).]
Respondent , though repeatedly informed that it should
find out the nature of the accounts and other matters to
permit a determination of whether the evidence related
to the matters under consideration or in question in this
proceeding , failed to elicit this testimony. The basis for
such failure is unexplained , either on the record or on
brief. Without this requested information, it could not be
determined if the facts in dispute were more or less prob-
4 It is noted that Respondent 's argument regarding the relevance of
these matters contained on p. 87 of its brief does not give page citations
to the transcript. The brief does indicate at p 86 that Respondent under-
stood its obligation to establish the potential relevance of the subpoenaed
material . It does mention that they wished to review the records for signs
of regular patterns of sizeable deposits. However , when questioning the
witnesses, Respondent did not ascertain the nature of the accounts or the
claimants' sources of income. Since several of the employees were part-
time employees of Respondent with full-time employment elsewhere, Re-
spondent did not establish how such regular deposits would indicate in-
terim employment Although Respondent 's proposed or potential use of
the accounts was clear, there were consistent failures to demonstrate that
the subpoenaed documents were of such a nature as to be of potentially
probative value. Repeated requests for information to permit an informed
ruling were not met by Respondent , even though bank officials were
present on two or more occasions , and all discriminatees appeared and
testified.
RAINBOW COACHES
able than they would be without access to the evidence.
See Rule 401 of the Federal Rules of Evidence. For ex-
ample, if a bank account reflected mortgage payments on
a house owned by a spouse , where there is a separation
or divorce with a discriminatee who does not have any
obligation to make payments, it would not tend to render
a consequential fact more probable or less probable than
it would without such evidence. Yet counsel repeatedly
failed to ascertain the nature of the accounts subpoenaed
or to describe such accounts so that the assessment of
their relevance could be rationally made. Similarly, if
there is a joint account with a spouse and the spouse
makes all the deposits and withdrawals, or the account is
maintained merely as a part of an estate plan, this would
again be a situation where the existence of the account
would not make a fact more or less likely than if there
were no such evidence. No bank officials were called as
witnesses.
Respondent still seeks access to these accounts, even
though the record demonstrates that some banks had
complied with these subpoenas, as detailed further in dis-
cussing the individual claimants ' cases . Respondent has
not indicated which banks had supplied such records and
has not removed their names from the request. In sum,
Respondent failed to describe with specificity those ac-
counts in banks which failed to comply with the subpoe-
na in a manner which would permit a finding of poten-
tial relevance. Lack of relevance is a valid ground for
quashing subpoenas or granting petitions to revoke. See
Howard Johnson Co., 250 NLRB 1412 fn. 2 (1980), citing
Madeira Nursing Center v. NLRB, 615 F.2d 728 (6th Cir.
1980). It is concluded that Respondent has failed to dem-
onstrate the need to reopen the record to permit exami-
nation of the subpoenaed materials. Its brief fails to
reveal any new or otherwise unconsidered basis for alter-
ing the rulings in the case. The motion to reopen is
denied.
B. Gross Backpay and Conclusions
1. Background
In the underlying decision, supra 241 NLRB 589, the
Board found, inter alia, that Rainbow Tours, Inc., by
part-owner and principal operating officer Kolt, threat-
ened the Company's bus drivers if they sought union
representations with the loss "of [his] services, the ac-
counts [he] brought in, any possibility of additional new
accounts, profits, the new buses, any possibility of wage
increases and a question of whether the potential of loss
the Company and their jobs would continue," in viola-
tion of Section 8(a)(1) of the Act. It was also found that
Rainbow violated Section 8(a)(1) of the Act on January
31, 1977, by discharging employees Sanford, Kaui, Iho,
Akamine, Agao, Fonseca, Uwata, Kaaiai, Kama, Louis,
Sai, and Garrett Wong in retaliation for their support of
the Union. Several of these discriminatees were full-time
employees. Sanford, Kaui, Akamine, and Agao were
listed as holding seniority numbers between one through
five on the full-time seniority roster. The remaining dis-
criminatees were part-time employees, many of whom
had other full-time employment. These part-time employ-
ees also were senior employees. It was also found that:
173
Sanford, Kaui, Iho, Akamine, Agao, Fonseca,
Uwata, Kaaiai, Kama , Louis and Sai unconditional-
ly offered to return to work on February 2, 1977,
and G. Wong would have done so but for receiving
a report that Kolt had refused to reinstate any of
the 11 just named to their former positions and
status. Id.
The decision also noted that Kolt offered Sanford, Kaui,
Iho, Akamine , and Agao reinstatement as new hires, re-
sulting in a loss of seniority. These actions were not
deemed valid offers of reinstatement and Respondent
was ordered to reinstate the discriminatees "to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent jobs with full restoration of their seniori-
ty and other rights and privileges."
2. Position of the parties
Based on the Board 's Supplemental Decision and
Order issued herein on March 28, 1983 , gross backpay is
an issue only about the following discriminatees: Agao,
Fonseca, Iho, Kama , Louis, and Sai. Partial summary
judgment was granted as to the gross backpay computa-
tions for Akamine , Kaaiai, Kaui , and Sanford. No gross
backpay was computed for Paul Uwata, who returned to
work shortly after he was discriminatorily discharged.
However, as the records were not clear whether he was
entitled to a day or two of backpay , a compliance officer
gave the benefit of the doubt to Respondent. Uwata did
not appear and testify in the backpay proceeding. It is
found that Uwata is not entitled to any backpay based on
the lack of evidence of an entitlement.
The General Counsel 's office has the burden of estab-
lishing gross backpay by seeking to ascertain the proba-
ble earnings of a discriminatee during the backpay
period . These are earnings which would have been paid
had the employee not been unlawfully discharged. See
generally the National Labor Relations Board Casehan-
dling Manual, Part 3 , Section 10530 . 1(c). Four basic
gross backpay formulas have been utilized by the Board
and approved in the courts through the years . Casehan-
dling Manual, Part 3 . The compliance officer is charged
with selecting the most appropriate formula to apply in a
specific case . See Section 10536 of the Casehandling
Manual , Part 3 , Compliance Proceedings. This burden of
creating a method to determine what would have hap-
pened is recognized as frequently problematic and neces-
sarily inexact . Taking cognizance of these difficulties, the
Board "is only required to employ a formula reasonably
designed to produce approximate awards due ." NLRB v.
Pilot Freight Carriers, 604 F .2d 375, 378-379 (5th Cir.
1979), quoting Trinity Valley Iron Co. Y. NLRB, 410 F.2d
1161, 1177 fn. 28 (5th Cir. 1969). Accord: NLRB v.
Brown & Root, supra at 452.
In this proceeding, formula 2 was chosen , which is set
forth in Section 10540 of Part 3 of the Casehandling
Manual. Gross backpay was computed for the discrimin-
atees under this formula using the average number of
straight-time and overtime hours each discriminatee
worked per week during his last 12 full weeks of em-
ployment with Respondent , multiplied by the wage rate
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each individual would have received , taking into account
when current employees received raises , plus an average
amount of tips each received on a weekly basis prior to
unlawful discharge . This figure was then reduced by the
ascertained interim earnings to determine net backpay,
One week during this 12-week period was not used be-
cause Respondent 's yard was shut down , which was
deemed an unusual or uncharacteristic time period which
should not be included in the computations . See Isaac &
Vinson Security Services, 208 NLRB 47 (1973). Respond-
ent did not claim this week should be included in the
backpay calculations . Respondent does not take issue
with the General Counsel's including increases in the
gross backpay computations received by replacement
employees over the backpay period.
Formula 2 was chosen to measure the projected earn-
ings of the discriminatees as it was "most reasonably de-
signed to produce the approximate awards due [citations
omitted]." Trinity Valley Iron v. NLRB, supra at 1177.
The compliance officer relied on several factors in reach-
ing this decision : the length of the backpay period in-
volved , several years; the need to take into account wage
increases over such a long period , which the use of an
average of the earnings of comparable employees similar-
ly situated fails to do; the inability to find representative
replacement employees similarly or comparably situated
with the same skills or preferences , because Respondent
honors individual preference for particular tours , particu-
larly among the most senior employees , such as the dis-
criminatees.
The Company's records reflected that the wages and
hours worked by its employees fluctuated from week to
week and from employee to employee, making it ex-
tremely difficult , if not impossible, to determine which of
Respondent's current employees were representative of
particular discriminatees or all discriminatees . Also con-
sidered was the fact that the business operated 7 days a
week and each employee had unique working conditions
with regard to availability , seniority, skills , and personal
preferences. Thus, it was decided that the best measure
of future hours was their past hours.
Respondent takes issue with the General Counsel's
choice of formula 2 and the use of a 12-week period im-
mediately prior to their discharge as the basis for deter-
mining earnings . Respondent contends that the General
Counsel is seeking to accomplish a nonstatutory objec-
tive. Specifically, Respondent contends that the General
Counsel has chosen a time period and formula "to
achieve ends other than those which can fairly be said to
effectuate the policies of the Act." See further NLRB v.
Seven - Up Bottling Co. ofMiami, 344 U.S. 344, 347 (1953).
Respondent argues that the use of formula 2 fails to
account for the seasonality of the business and the use of
the 12-week period unfairly increases the amount of
backpay the employees would have earned if they had
not been discriminatorily discharged. It urges that two
different formulas be utilized , one for Agao and another
for the remaining discriminatees . Also, Respondent con-
tends that the 12-week period utilized by the General
Counsel was typical for it occurred when the business
was beginning to prosper , yet the Company had few
drivers which resulted in a unique increase in available
straight and overtime work. The Company also claims
this was a seasonally active period. The Casehandling
Manual, at Section 10540.2(c), states that the chosen for-
mula should be used when "the business of the ... em-
ployer is not seasonal."6
3. Representative employees
Respondent urges the use of formula 4 for computing
gross backpay for Agao. Formula 4 in the Board's Case-
handling Manual is found in Section 10544. Formula 4
uses the earnings of replacement employees or average
earnings of replacement employees per pay period. This
particular method of computation was urged because
Agao was the only full-time employee whose gross back-
pay was still in issue . Respondent would use the five
most senior full-time drivers' average quarterly earnings
throughout the backpay period to determine Agao's
gross backpay. For Fonseca and Sai, who were firemen
and part-time employees of the Company prior to their
discriminatory discharge, Respondent urges using formu-
la 3, which is explained in detail in Section 10542 of the
Casehandling Manual. This formula uses the average
earnings or hours of a representative employee or em-
ployees who worked in a job similar to the discrimina-
tees before the unfair labor practice and during the back-
pay period. The use of this formula requires the selection
of employees whose work, before the unfair labor prac-
tice and during the backpay period, is similar to that
work performed by the discriminatee. The use of these
formulas requires the ability to accurately identify repre-
sentative employees.
In support of its argument urging use of formula 4 for
Agao, Respondent, on page 20 of its brief, refers to Re-
spondent's Exhibit V-1 as demonstrating that full-time
drivers working for Rainbow during the backpay period
would not have worked the hours alleged in the backpay
specification nor earned the amount of gross backpay.
Respondent's Exhibit V-1 has not been shown to be reli-
able. Its computations are based on partial data. The
methodology utilized to prepare the exhibit was not
shown to be reliable or probative, was not shown to
have a reasonable standard error, and was calculated
from checkstubs, 50 percent of which were missing.
There is no basis on which to find these figures repre-
sentative. The exhibit was accepted to permit Respond-
ent to argue that the General Counsel was seeking to ac-
complish a nonstatutory objective with their calculations.
The Company was invited to demonstrate that its meth-
odology should be entitled to some weight but has failed
to do so. In fact, it appears some of the statistics on the
exhibit probably commingled figures for full-time and
part-time employees . It used material developed in an ex-
hibit marked for identification as Respondent's Exhibit
V-2, which was not admitted because it was shown to
5 That section provides-
The business of the company is not seasonal. In seasonal industries,
there are relatively wide fluctuations in employee earnings depend-
ing upon the season of the year Thus, if the unfair labor practice
occurred in a season of low business activity , the average of employ-
ee earnings during such period would be inordinately low and result
in failure to make the discrimmatee whole.
RAINBOW COACHES
be completely unreliable. The individual who prepared
the records for Respondent could not recall the methods
he used in its preparation, could not recall how he
reached the figures, and could not recall the meaning of
references in the exhibit. Because Respondent's Exhibit
V-1 uses some material from Respondent's Exhibit V-2,
which was not admitted, it is found to be entirely unreli-
able-6 The methods used to compile both Respondent's
Exhibits V-2 and V-3 did not permit the drawing of the
inferences or conclusions necessary to support the Com-
pany's assertions.
Respondent's Exhibit V-3 is the same as the average
pay exhibit, Respondent's Exhibit V-1, except that it
contains footnotes. The witness who prepared the exhibit
did not add the footnotes, he did not know who did and,
thus, the document was not admitted. It is concluded
that Respondent's exhibits and other evidence fail to
demonstrate any intent by the General Counsel to
achieve ends other than those which can fairly be said to
effectuate the policies of the Act. On the contrary, Kolt's
testimony and the Company's apparent inability to devel-
op a reliable statistical analysis indicating the existence of
comparable replacement employees confirms the suitabil-
ity of the formula selected by the General Counsel.
Respondent has failed to demonstrate that the formula
chosen by the compliance officer and the General Coun-
sel's office is particularly oppressive and is not calculated
to effectuate the policies of the Act. Although formula 2
is said to be appropriate when the backpay period is
short, it does not indicate any inappropriateness where
there is a long backpay period. No formula is perfect or
could unquestionably project actual earnings . Formula 3
was rejected as the fairest measure because replacement
employees were paid more than claimants and, as is the
case with both formula 3 and formula 4, Compliance Of-
ficer Talkin could not identify individuals who could
fairly be considered replacement employees. No individ-
uals were identified by any party as having worked com-
parable hours and demonstrated similar work prefer-
ences, such as choice of runs or buses. Further, these
two formulas fail to take into account the fact, as deter-
mined by the judge in the underlying unfair labor prac-
tice decision, that the discriminatees were the most
senior employees in both the full-time and part-time cate-
gories.
Respondent's own witnesses indicated that, although
the business was subject to wide fluctuations, they were
Some other deficiencies in R Exh V-2 are the calculations con-
tained therein faded to take into account vacations or illnesses , and, the
assumption of status as full -time or part-time employee was based on des-
ignations given on payroll , and do not reflect with requisite accuracy
when part -tine employees were elevated to full -time status. For example,
Uwata was shown only as a full-time employee , yet his testimony clearly
demonstrated that he was, for a portion of the time reflected on the ex-
hibit, a part-tune employee . The exhibit does not indicate if an employee
who left in the middle of the quarter or only worked a couple of days
would have his income averaged in with all the others. It does not show
how many hours and/or days each listed employee worked during the
quarter Accordingly , R. Exh V-2 provides no basis for making a ford-
ing of prospective earnings . Respondent 's reference to this exhibit is mis-
placed See , for example, Br. 23
175
weekly or daily, not seasonal.7 The reasons for these
fluctuations are not only attributable to the nature of the
business but include individual preferences. Respondent's
witness Kolt, the managing director of Rainbow, most
clearly presented the uniqueness of each driver's work
schedule. Admittedly, seniority affected the drivers'
scheduling and runs, which were dependent on individ-
ual preference. The Company used the seniority system
to give the individuals their choice which varied with
their different wants. These accommodations were
unique to each employee . Some individuals had Japanese
language skills and liked to take Japanese tours . Kolt tes-
tified as follows:
Seniority system in our company gives the indi-
vidual choice. Het [sic] gets choices of what he
wants. Depending on the individual, different guys
want different things.
Some guys want to take Haole tours , meaning
tours that are narrated in English. They like the
tips. They like the rapport with the people. They
fancy themselves as entertainers , which I personally
think they are. It's part of the job.
Some guys like-some guys prefer the foreign
site-seeing because they don't have to talk, or they
don't feel like talking and also, the tips were a
factor with the foreign tours. Tips were included.
With the English-speaking tours, you had to kind of
work for them.
Some guys preferred-they would want to stay
with a certain piece of equipment. Generally, the
better ones, depending on-you know, the senior
guys got their choice of equipment, okay, but the
equipment did not always go to the same place
every day. We had to spread it out to keep all the
customers happy.
These options remained the same after the strike.
Such individual selections can greatly impact on
income . Some tours are four or more times longer than
others. Some of the part-time employees would prefer to
work more days or more hours than others. As will be
noted in detail later, the firemen in particular worked
several 24-hour days and then had several days off. They
could individually elect how many days they wanted to
work for Respondent on their days off from the fire de-
partment. Because the choice of tours was based on se-
niority, considering the options available and the record
evidence, it is found that each employee's potential earn-
ings, as compared to employees with the same or similar
seniority, would not necessarily be representative or oth-
erwise analogous for computation of backpay. Respond-
ent has failed to indicate how the formulas it urges over-
come this difficulty or meet this exigency . The Company
failed to show any replacement employee or employees
were representative of a claimant. The Company also
failed to show that its records do not correctly reflect its
T See the testimony of Paul Uwata , Tr 2419, where he indicated the
number of hours he worked each week fluctuated weekly or at times
daily . This situation obtained both before and after the strike.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees' wages prior to their unlawful discharges. Pat
Izzi Trucking Co., 162 NLRB 242 (1966).
4. Seasonality
The testimony fails to demonstrate that the tourist in-
dustry is highly seasonal. The record clearly shows that
the business is highly sensitive to market changes. Re-
spondent's chief managing officer, Kolt, indicated that
business changes on a daily basis, affected by such fac-
tors as airline rates, holidays on the mainland, and
weather on the mainland . Business increases with the se-
verity of the winter on the mainland and decreases if the
winter weather is good on the mainland. There was also
testimony that the Christmas holiday season is a very
active tourist time; but this factor is counterbalanced by
the inclusion in the 12-week computation period of
Thanksgiving and the period shortly thereafter, which is
a very slow business period for the tour bus industry.
The fluctuations that occurred during the 12-week
period selected by counsel for the General Counsel were
not shown to be aberrational or otherwise unrepresenta-
tive of any other 12-week period.
In support of its position concerning seasonality, Re-
spondent produced a late-filed exhibit after the close of
hearing, Appendix A, based on the plethora of material,
particularly payroll records, introduced without objec-
tion into the record. Late-filed exhibits were permitted to
avoid surprise occasioned by recalculation or utilization
of portions of the voluminous payroll records in the si-
multaneously filed briefs. To afford comment on any
such calculations, both parties were given the opportuni-
ty to file exhibits which detailed the exact calculations
prior to the brief date. Respondent's Appendix A was
based on its voluminous payroll records.
Respondent merely stated that Appendix A was taken
from Respondent 's Exhibits V-6 and V-7, which are
1976, 1978, and 1979 payroll records. Why 1977 payroll
records were not used is unexplained. These computer
readouts total thousands of pages. Respondent failed to
state in its filing how the exhibits were compiled and its
method of extrapolation. It is therefore found that this
exhibit is unreliable and not probative.
However, even if Appendix A were found to be reli-
able, it demonstrates the lack of seasonality. As noted by
both the compliance offiber and Kolt, the amount of the
Company's business varies greatly from week to week
and from day to day. For example, in 1980, the amount
of business during the first and second weeks of the year
was quite low, and yet in the third and fourth weeks
there was an extremely high volume of business. Con-
versely, in 1978, it appears that business declined during
the second and third weeks of the year. Similarly, in
1980, there appears to be a decline in business around
Thanksgiving and yet, in 1978, there appears to be an in-
crease in business around that time . Therefore, it is found
that Respondent's own exhibit demonstrates that there is
no cyclical fluctuation in the business based on seasons
and, hence, there is no showing of seasonality. See Sec-
tion 10540.2(c) of the Casehandling Manual.
5. Utilization of a 12-week period
Respondent's attack on the use of a 12-week period is
not persuasive. The period was not shown to be insuffi-
cient in length to be truly reflective of actual earnings.
According to Respondent's own questionable exhibits,
there was no such thing as a representative week; each
week and day are different and subject to caprices that
are not seasonal, such as the booking of conventions and
the weather in other parts of the world. A 12-week
period was selected because some of the discriminatees
only worked for Respondent during that period of time.
As noted by Administrative Law Judge Charles W.
Schneider, in DeLorean Cadillac, 231 NLRB 329 at 332
(1977), "The actual earnings of employees in a represent-
ative period prior to their discharge is a foundational for-
mula traditionally used by the Board in determining the
amount of backpay due discriminatees." As Administra-
tive Law Judge Knapp said, in Chef Nathan Sez Eat
Here, Inc., 201 NLRB 343, 345 (1973), that the actual
earnings is "[t]he most fair, suitable and equitable formu-
la to employ, and should not be departed from in the ab-
sence of special circumstances." The formula proposed
by the General Counsel in Chef Nathan Sez substantially
fitted those requirements. It covered a period of employ-
ment broad enough to be representative, and recent
enough to be typical of relevant performance. That being
so, the burden was on the respondent to establish special
circumstances requiring deviation from it, and to propose
a more satisfactory formula. As was the case in DeLor-
ean Cadillac, id., the Respondent herein failed to meet
either of those burdens.
Respondent also failed to demonstrate that the 12-
week period used by the General Counsel was not repre-
sentative of average earnings. In Erlich's 814, Inc., 241
NLRB 1114 (1979), it was found that earnings during a
representative 10-week period preceding discharge, pro-
jected by calendar quarters over the backpay period, was
a satisfactory method of determining gross backpay and
was not arbitrary or unreasonable. In East Belden Corp.,
267 NLRB 262 (1982), the Board rejected Respondent's
contention that the 8-week period chosen by the General
Counsel was inappropriate when it did not provide a
more appropriate period. As noted in NLRB v. Pilot
Freight Carriers, 604 F.2d 375, 379 (5th Cir. 1979):
The use of Johnston's average weekly earnings for
the seven weeks preceding his discharge as the basis
for computing backpay was a reasonable formula.
Because the strike was caused by the Company's il-
legal action, any diminution in work opportunities
during the strike period is no reason for reducing
Johnston's award.
Respondent argues that its business increased since the
unlawful discharges; that it had just commenced a build-
ing period during that time; that it had difficulty with
equipment, which was subsequently replaced; that it has
added customers; and thus, the use of actual hours may
not reflect the time replacement employees, if such could
be found, would have worked because there appears to
be a greater subsequent demand on employees. Compli-
RAINBOW COACHES 177
ance Officer Talkin testified that the 12-week computa-
tion period was selected not only because it was consid-
ered representative , but because Administrative Law
Judge Christensen indicated in the underlying decision
that Respondent added several buses and new accounts
during this quarter . She thus determined that the period
prior to the discharges was more indicative of future
earnings . Respondent also avers that it has increased its
full-time staff, thereby eliminating the need for as many
hours from part-time employees . Such an argument is
mere surmise . It is unknown whether Respondent would
have increased its full-time staff in the same manner save
for the unlawful discharges , for there would not have
been a dearth of experienced drivers . There was no
showing such increases in full -time drivers would have
impacted on the income of the discriminatees , the most
senior employees . Such surmise is insufficient to warrant
a finding of the establishment of special circumstances
requiring deviation from the proposed formula.
Although an operational change more full-time em-
ployees might have resulted in a change in earnings for
the discriminatees , it is equally reasonable to assume that
if the discriminatees were not discharged and were af-
forded the opportunity to continue working under the
same system , which Respondent stated still obtains, their
wages would have been comparable to those of the back-
pay period selected by the General Counsel, heretofore
found appropriate . See East Texas Steel Castings Co., 116
NLRB 1336 , 1337 ( 1956), enfd . 255 F .2d 284 (5th Cir.
1958). Also , Respondent failed to reconcile this merely
speculative contention with its admission that business
has shown an overall increase which may have resulted
in increased work for part-time employees.
In sum, Respondent has failed to indicate why any em-
ployee or group of employees ' incomes were more repre-
sentative than the discriminatees ' earnings for the 12-
week period used by the General Counsel in computing
backpay . Respondent has not met its burden of showing
the basis for computing gross backpay is "a patent at-
tempt to achieve ends other than those which can fairly
be said to effectuate the policies of the Act." Virginia
Electric & Power Co. v. NLRB, 319 U . S. 533, 540 (1943).
It is clear that the General Counsel has met its require-
ment to select "a formula reasonably designed to
produce the approximate awards due ." Trinity Valley
Iron & Steel Co. v. NLRB, 410 F.2d 1115 , 1177 fn. 28
(1969). The utilization of a period immediately prior to
the unlawful discharges has been found to be appropriate
for use in formulating the earnings percentage or multi-
plier in the formulation of gross backpay. NLRB v. Pilot
Freight Carriers , supra, 604 F .2d at 375.
6. Conclusions
It is thus concluded that because Respondent has failed
to show that employees it selected during the backpay
period performed work during that period , which is rep-
resentative of the work done by the class of discrimina-
tees as a whole or for subgroups within that class, its al-
ternative proposals for computing gross backpay are re-
jected . Those groups of employees or employees selected
as representative were not shown to have the same skills,
work exigencies , or preferences . Respondent has singu-
larly failed to show that there was a readily determinable
individual or group of individuals who made the same
choices of routes , buses , days off, and other income-pro-
ducing factors as the discriminatees . Many of Respond-
ent's alternatives are based on data that are not clearly
defined or were derived in manners rendering them com-
pletely unreliable . The General Counsel affirmatively
showed that its measure was reasonable, and the timely
raised alternatives proposed by Respondent using re-
placement employees were not shown to have been rep-
resentative of the discriminatees . The General Counsel's
premises for the use of formula 3 for gross backpay are
found to be appropriate . As noted by the court in NLRB
v. Rice Lake Creamery Co., 365 F . 2d 888 at 891 (D.C.
Cir. 1966):
This formula may not reach the exactly correct
figure, but there is no suggestion of a formula that
could, since the discriminatees did not actually
work during the period . The formula used is a rea-
sonable and legal basis for computation of gross
amounts, and has had approval in court decisions.
[See Chef Nathan Sez Eat Here, Inc., supra 201
NLRB 343; NHE/Freeway, Inc., 218 NLRB 259
(1975); and DeLorean Cadillac , supra , 231 NLRB
329.]
Based on the exigencies present in this proceeding, and
considering the conflicting backpay formula arguments,
it is found that the formula propounded by the General
Counsel is the most accurate method of determining
gross backpay . J. S. Alberici Construction Co., 249 NLRB
751 (1980); American Mfg. Co. of Texas, 167 NLRB 520
(1967). When there are any uncertainties , such as the po-
tential impact of the fluctuations in business and respond-
ent's employment of a greater number of full-time driv-
ers after the strike and after the discharge of the dis-
criminatees, they will be assessed against the wrongdoer.
NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569
(5th Cir . 1966).
Respondent failed to set forth an alternative formula
or furnish appropriate supporting figures for computing
the amounts owed with sufficient particularity and reli-
ability as to permit the sought substitutions . The backpay
award is only an approximation and the Board has con-
siderable discretion in selecting a methodology which is
reasonably designed to approximate the amount of back-
pay a wrongfully discharged employee would have re-
ceived absent the employer 's wrongful conduct. Re-
spondent has failed to show a representative employee or
a backpay period that was demonstrated to be more rep-
resentative than that chosen by the General Counsel. Re-
spondent 's proposals are replete with numerous unsup-
ported speculations and assertions. It is concluded that
the General Counsel 's computations of gross backpay
more than meets the legal standards of permissible dis-
cretion in determining approximate gross backpay. See
NLRB v. Carpenters Local 180, 433 F.2d 934 (9th Cir.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1970); Iron Workers Local 378 (Judson Steel), 262 NLRB
421 (1982).8
C. Woolworth Formula
Respondent , based on its previously discussed claim of
seasonality, requests relief from application of the Wool-
worth formula . Citing NLRB v. Seven-Up Bottling Co. of
Miami, supra, 344 U.S. at 350. The court, id. at 345,
cited F. W. Woolworth Co., supra, 90 NLRB 289 at 292-
293 (1950) stating:
The public interest in discouraging obstacles to
industrial peace requires that we seek to bring
about, in unfair labor practice cases, "a restoration
of the situation, as nearly as possible, to that which
would have obtained but for the illegal discrimina-
tion." In order that this end may be effectively ac-
complished through the medium of reinstatement
coupled with back pay, we shall order, in the case
before us and in future cases, that the loss of pay be
computed on the basis of each separate calendar
quarter or portion thereof during the period from
the Respondent's discriminatory action to the date
of a proper offer of reinstatement. The quarterly pe-
riods, hereinafter called "quarters," shall begin with
the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from
a sum equal to that which [the employee] would
normally have earned for each such quarter or por-
tion thereof, [his] net earnings, if any, and any other
employment during that period. Earnings in one
particular quarter shall have no effect upon the
backpay liability for any other quarter.
The court further provides, id. at 349, as follows:
This is not to say that the Board may apply a
remedy it has worked out on the basis of its experi-
ence, without regard to circumstances which may
make its application to a particular situation oppres-
sive and, therefore, not calculated to effectuate a
policy of the Act. The Company in this case main-
tains that it operates a seasonal business, that em-
ployees may earn three times as much in the first
and fourth quarters of a year as in the second and
third, and that a quarterly calculation of backpay
would, in this context, be obviously unjust.
Respondent states that the use of the Woolworth formu-
la is oppressive in the instant proceeding because it oper-
ates a seasonal business. As noted above, there was no
showing of seasonality. Rather, there were great fluctua-
tions in the business and in income among the individual
drivers week to week, day to day, with no showing that
such fluctuations were attributable to seasonal factors.
Further, there was no showing that these fluctuations oc-
curred within the backpay period in such a pattern or
8 The Board "is only required to employ a formula reasonably de-
signed to produce approximate awards due " Trinity Valley Iron & Steel
Ca Y. NLRB, supra, 410 F.2d at 1177 fn 28; NLRB v. Charley Toppino &
Son.% Inc., 358 F.2d 94, 97 (5th Cit. 1966); NLRB v East Texas Steel
Casting Co., 255 F.2d 284 (5th Cir. 1958)
under any other special circumstance that would create
an injustice if the Woolworth formula were applied.
There was no showing that any employee sufficiently
representative of any of the discriminatees received less
money than a discriminatee would have received during
the same period; nor was there any showing that apply-
ing the Woolworth formula in the computation of interim
earnings would result in a windfall . As the Board noted
in Nelson Metal Fabricating, 259 NLRB 1023, 1024
(1982), Respondent 's contention that computation of
backpay on a quarterly basis was inequitable without
foundation in law or reason is unpersuasive, for while ap-
plication of Woolworth was never intended to be rigid or
inflexible, there was no showing that the application of
the formula produced a punitive remedy inasmuch as the
employer rightfully exercised its right to assume the risk
to resist reinstatement and backpay until after court en-
forcement of the Board's order, risking the potential that
the discriminatees would seek more gainful employment
for a greater part of the backpay period. It took the risk
and lost. This assumption of knowledgeable risk does not
constitute an inequity or special circumstance of the
genre discussed in NLRB v. Seven-Up Bottling, supra, 344
U.S. at 350, or warrant application of the pre-Woolworth
rule. The Woolworth formula will be used in the compu-
tation of interim earnings where such earnings are found
to properly obtain.
D. Other Affirmative Relief
1. Fraudulent concealment and poor recordkeeping
During the trial, Respondent was permitted to amend
its reply to include as an affirmative defense the assertion
that claimants who were found to have withheld rele-
vant information from the Board prior to the hearing be
found to have fraudulently concealed interim earnings.
The Company was also permitted to argue that any em-
ployee who failed to respond in a timely fashion to the
Board's request for information should not profit from
these acts by permitting Respondent to be relieved of all
interest payments . It also urges that all claims for back-
pay be barred when claimants failed to keep records or
refused to furnish the NLRB with reasonably accurate
records of their job search, because such failure consti-
tutes a willful nondisclosure of material evidence.
The Board, in American Navigation Co., 268 NLRB
426 (1983), recently found that entitlement to backpay is
dependent on the determination that such an award is
necessary to effectuate the policies of the Act, citing
Phelps-Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941),
which is quoted as follows:
[W]e must avoid the rigidities of an either-or rule.
The remedy of back pay, it must be remembered, is
entrusted to the Board 's discretion ; it is not me-
chanically compelled by the Act. And in applying
its authority over back pay orders, the Board has
not used stereotyped formulas but has availed itself
of the freedom given it by Congress to obtain just
results in diverse, complicated situations.
RAINBOW COACHES
In analyzing the situation when there was a willful
concealment of earnings, the Board determined that
backpay will be denied for the quarters involving such
concealment. The Board further found, however, with
regard to the backpay for other quarters:
On the other hand, to deny backpay in an
amount that exceeds that which is necessary to
deter deception is to provide a respondent with an
unjustified windfall and to permit it to avoid the
consequences of its unlawful conduct for no useful
purpose. We find that a remedy which denies back-
pay for the quarters in which concealed employ-
ment occurred will discourage claimants from abus-
ing the Board's processes for their personal gain and
also deter respondents from committing future
unfair labor practices. This remedy will be applied,
of course, only in cases where the claimant is found
to have willfully deceived the Board, and not
where the claimant, through inadvertence, fails to
report earnings. [American Navigation Co., 268
NLRB 426, 428 (1983).]
The testimony has been evaluated and the facts analyzed
to determine if there was a failure to report earnings and
if such failure resulted from a deceitful intent or honest
error. There was no showing of willful deceit. The fail-
ure of claimants to accurately recall facts over the long
period of time involved in this case is insufficient to deny
the claimants a make-whole remedy, including interest.
Respondent must show that the claimants' conduct was
sufficiently egregious to warrant forfeiture of a remedy
designed to effectuate the purposes of the Act. It has
failed to meet this burden of proof. See Iowa Beef Pack-
ers, 144 NLRB 615, 622 (1963); and D. V. Copying, 240
NLRB 1276 fn. 2 (1979).
The Board addressed the issue of poor recall and rec-
ordkeeping in Arduini Mfg. Corp., 162 NLRB 972, 975
(1967), holding that although claimants may have some
difficulty in recalling past events and were guilty of poor
recordkeeping, the fact that they testified openly and
fully to the best of their recollection and disclosed all in-
terim earnings, withholding nothing, does not present
facts barring recovery. The burden still remains on the
Respondent to show failure to mitigate or otherwise
reduce or eliminate entitlement to backpay.
Discriminatees were not sent backpay claim forms
until 1982. When asked, their testimony varied as to their
reasons for submitting incomplete forms. Claimants are
not disqualified from receiving backpay solely because of
poor recordkeeping or uncertain memories. See Izzi
Trucking Co., 162 NLRB 242, 245; Hickory's Best, Inc.,
267 NLRB 1274 (1983). All the claimants were made
available repeatedly for examination by Respondent.
There was no showing that any of the claimants engaged
in falsehoods, padding of expenses or claiming expenses
that were unreasonably large. Respondent was also af-
forded every opportunity to call and examine representa-
tives of all companies named by the claimants. That
these companies by and large failed to keep records
more than a year is not a circumstance that should re-
dound to the detriment of the claimants. The holding of
179
this backpay hearing, well after valid offers of reinstate-
ment were made to the claimants, was not by their
choice.
Under these circumstances, the claimants' poor record-
keeping and reporting practices are not sufficient to ab-
rogate their entitlement to backpay. Poor recordkeeping
may have relevance only as it may impugn the reliability
of the claimants ' testimony . In general , the claimants im-
pressed me as honest witnesses who received large pack-
ets of forms from the General Counsel's office long after
the events in question . Many claimants delegated the
completion of the forms to spouses or other relatives.
Poor recordkeeping was not shown to be intended to de-
ceive or mislead. The failure was more the failure of
Board personnel to follow usual practices of clearly in-
forming alleged discriminatees around the time a com-
plaint is issued of the necessity to maintain and retain
records of their job searches and interim earnings as well
as expenses incurred in such activities. This failure by the
Board should not and does not redound to the detriment
of the claimants . Respondent 's own election to defer its
offers of reinstatement until resolution of the underlying
unfair labor practice proceeding by the Ninth Circuit
Court of Appeals was also a cause of delay. This self-in-
flicted burden does not alter the outstanding case law re-
garding the claimants' obligation to maintain and retain
records. Accordingly, Respondent's assertions that this
failure denied the Company due process or abolishes its
backpay obligations are without merit.
E. Interim Earnings
1. In general
Respondent asserts that each claimant's net backpay
should be reduced because there was individually failure
to mitigate damages.
The underlying decision ordered that the employees be
made whole for the loss of pay suffered as a result of Re-
spondent's unfair labor practices . In computing the
remedy, deductions are made from gross pay "for actual
[interim] earnings of the worker , [and] also for losses
which he willfully incurred" by a "clearly unjustifiable
refusal to take desirable new employment." Phelps-Dodge
v. NLRB, supra, 313 U.S. at 197-200. These deductions
for interim earnings are permitted "not so much [for] the
minimization of damages as [for] the healthy policy of
promoting production and employment." Id. at 199-200.
Further, "[t]he cases are unanimous that the defense of
willful loss of earnings is an affirmative defense , and that
the burden is on the employer to prove the defense."
NLRB v. T Reynolds Box Co., 399 F.2d 688, 689 (6th
Cir. 1968); NLRB v. Mooney Aircraft, supra, 366 F.2d 809
at 813 (5th Cir. 1966).
It is the duty of the employer "to carry the burden of
proof and to point out what evidence in the record sus-
tains . . . [its] claim, as against the presumptive proof of
the Board 's findings that the employees did not sustain
willful losses." NLRB v. T. Reynolds Box Co., supra, 399
F.2d at 670. The proof of the claimant's search for inter-
im employment "is in no sense a part of the [General
Counsel's] case." NLRB v. J. G. Boswell Co., 136 F.2d
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
585, 597 (9th Cir . 1943). As noted above, in this particu-
lar case the General Counsel did comply with the
Board's nonbinding policy that , after issuance of the
backpay specification, it turned over to Respondent all
the factual information it obtained which was relevant to
the computation of net backpay, including search for em-
ployment or availability for employment . See NLRB
Casehandling Manual, Part 3, Compliance Proceedings,
Section 10663.1-.3.
The basis for the employer being given the burden of
demonstrating mitigation is because "it is not practical,
and it would significantly hamper the backpay remedy, if
each discriminatee were required to prove the propriety
of his efforts during the backpay period." NLRB v.
Miami Coca-Cola Bottling Co., supra, 360 F.2d 575. One
basis for mitigation is the demonstration that a discrimi-
natee "willfully incurred" loss by a "clearly unjustifiable
refusal to take a desirable new employment ." Phelps-
Dodge Corp. v. NLRB, supra, 313 U.S. at 199-200. The
burden is on the employer to prove the necessary facts
to establish such a willful loss of earnings . NLRB v.
Mooney Aircraft, 366 F.2d at 813. To meet this burden,
the employer must affirmatively demonstrate that the
employee "neglected to make reasonable efforts to fmd
interim work." Id. at 576. The employer fails to meet the
burden by merely presenting evidence of lack of employ-
ee success in obtaining interim employment or a demon-
stration of low interim earnings . In determining if a dis-
criminatee met his burden to mitigate, "he is held .. .
only to reasonable exertions in this regard, not the high-
est standard of diligence."9 NLRB v. Arduini Mfg. Co.,
9 The concepts of "willful loss of income" and "reasonable efforts to
mitigate" were explained in detail in Aircraft & Helicopter Leasing Co.,
227 NLRB 644 at 646 (1976), affd. in High View, Inc, 250 NLRB 549,
550-551 (1980), and Neely 's Car Clinic, 255 NLRB 1420 (1981), which
provides:
An employer may mitigate his backpay liability by showing that a
discriminatee "willfully incurred " loss by a "clearly unjustifiable re-
fusal to take desirable new employment" (Phelps Dodge Corporation v.
NLRB, 313 U S 177, 199-200 (1941).), but this is an affirmative
defense and the burden is upon the employer to prove the necessary
facts. N.L.R.B. v. Mooney Aircraft. Inc., 366 F.2d 809, 813 (C.A. 5,
Cir 1966). The employer does not meet that burden by presenting
evidence of lack of employee success in obtaining interim employ-
ment or of low interim earnings , rather, the employer must affirma-
tively demonstrate that the employee "neglected to make reasonable
efforts to find interim work ." N.L.R.B v Miami Coca-Cola Bottling
Company, 360 F . 2d 569, 575-576 (C A. 5, 1966). Moreover , although
a discriminatee must make "reasonable efforts to mitigate (his] loss of
income ... [he] is held ... only to reasonable assertions in this
regard , not the highest standard of diligence ." NLR.B. Y. Arduini
Manufacturing Company , 395 F .2d 420, 422-423 (C.A. 1, 1968) Suc-
cess is not the measure of the sufficiency of the discrimmatee's
search for interim employment ; the law "only requires an honest
good faith effort." N.L.R.B. v. Cashman Auto Company and Red Cab
Company, 223 F .2d 832 , 836 (C.A. 1). And in determining the rea-
sonableness of this effort , the employee's skill and qualifications, his
age, and the labor conditions in the area are factors to be considered.
Mastro Plastics Corp., 136 NLRB 1342, 1359 [1962].
In determining whether an individual claimant has made a reasonable
search for employment , the test is whether the record as a whole estab-
lishes the employee had diligently sought other employment during the
entire backpay period . Saginaw Aggregates, Inc., 198 NLRB 598 (1972);
Nickey Chevrolet Sales , 195 NLRB 395, 398 ( 1972).
It is well established that any uncertainty in the evidence is to be re-
solved against Respondent as the wrongdoer . NLRB v. Miami Coca-Cola
Bottling Co., 360 F . 2d 569 (5th Cir . 1966); Southern Household Products
Co., 203 NLRB 881 (1973).
supra, 395 F.2d at 422-423. The basis for this determina-
tion is that success is not a measure of sufficiency of
search for interim employment for the law "only re-
quires an honest good faith effort." NLRB v. Cashman
Auto Co., 223 F.2d 832, 836 (1st Cir. 1955). Also consid-
ered in determining the reasonableness of efforts are the
employee's skills and qualifications , his age, and the labor
conditions in the area . Mastro Plastics Corp., 136 NLRB
1342, 1359 (1962).
In determining diligence , activity during the entire
backpay period is considered as well as the entire record.
Saginaw Aggregates , supra; Nickey Chevrolet Sales, supra.
Any uncertainty in the evidence is to be resolved against
the company as the wrongdoer . NLRB v. Miami Coca-
Cola Bottling Co., supra; Southern Household Products
Co., supra. See generally Aircraft & Helicopter Leasing,
supra; Westin Hotels Corp., 267 NLRB 244 (1983).
As Judge William J . Pannier noted in Electrical Work-
ers IBEW Local 401 (Stone & Webster Engineering), 266
NLRB 870, 875 (1983):
[I]t is a fundamental proposition of backpay doc-
trine that "there is no requirement that an employee
wrongfully terminated must instantly seek new
work." Keller Aluminum Chairs Southern, supra, 171
NLRB 1252 at 1257 [(1968)]. Accord: Saginaw Ag-
gregates, 198 NLRB 598 (1972). For example, in
Keller an employee who did not seek work during
the 2-week period immediately following the dis-
crimination against him was held not to have failed
to exercise due diligence where thereafter he sought
the obligation imposed by the mitigation doctrine,
i.e., sought interim employment. Similarly, an em-
ployee who quit one interim job to take another at a
higher rate of pay was held not to have incurred a
willful loss of earnings, as a result of having quit the
first employer, when he was laid off by the second
employer, absent "evidence that the employment
with [the first interim employer] was `permanent'
while that with [the second interim employer] was
specified to be `temporary."' Laborers Local 1440
(Southern Wisconsin Contractors), 243 NLRB 1169,
1172 (1979).
These general principles will be considered in determin-
ing the backpay entitlements of the individual claimants.
2. Economic defenses
Respondent asserts that the economic situation was
such that the claimants should have found interim em-
ployment readily throughout the entire backpay period.
In support of this claim, Respondent introduced evidence
through H. Laurence Miller Jr., a professor of economics
at the University of Hawaii . Dr. Miller was found to be
an expert as defined in the Federal Rules of Practice. He
based his testimony on material provided to him almost,
if not entirely, by Respondent. Dr. Miller 's testimony is
found not to be probative of job availability inasmuch as
he admittedly could not attest to the truth and accuracy
of the materials he reviewed. These materials did not
adequately describe how they were compiled , the source
of their statistics , the methodology employed to arrive at
RAINBOW COACHES
those statistics, or the derivation of estimates for particu-
lar occupations or industries.
Certain of Dr. Miller's testimony was not placed into a
usable context. For example, be stated there was a gener-
al increase in tourism but there was no evidence whether
there was a concomitant increase in the tour bus business
derivative from that general increase in tourism. There is
evidence of record from other witnesses that the nature
of tourism had changed, and that many tourists are now
traveling independently and not using tour buses. Thus
there is no basis in the record to analogize an increase in
tourism with an increase in job availability as a tour bus
driver. Dr. Miller could not opine whether the individ-
uals involved in this particular proceeding, based on the
information he had, had made a good-faith job search
consonant with the term as used in the field of econom-
ics, particularly those used in Respondent's Exhibits S-2
and S-3, which are articles by two economists entitled
"The Economics of Job Search: A Survey," reprints
from a magazine entitled "Economic Inquiry," Volume
XIV, June 1976, which describe optimum job search uti-
lizing a compendium of sociological, psychological, and
economic factors. This definition of "job search" was not
shown to be analogous to the applicable legal definition.
Application of these studies, whose accuracy and
predicates he did not know and could not commend, led
him to the general conclusion that some claimants were
successful in fmding interim employment by chance, re-
gardless of the fact that they were full-time or part-time
workers. He suspected, without any factual basis, that in-
dividual need for income might have had an impact on
the intensity of job search, but he really did not know.
Individual idiosyncracies or unique attributes, such as the
ability to speak a foreign language, had some bearing on
success. The individual's personal attitudes, whether they
were depressed or had a positive perception of self-
worth, could affect intensity of job search. All these are
factors that could increase chances for success. Thus,
based on his testimony, mere chance could have been the
primary attribute that led to success or lack thereof in
finding interim employment. In sum, there was no eco-
nomic evidence given by Dr. Miller that would support
a fmding of failure to mitigate by any of the claimants.
3. Testimony of the bus companies
In further support of its position, Respondent elicited
testimony from approximately seven bus companies
about job availability. As noted in Respondent's brief,
the bus companies did not retain job applications for a
period of time sufficient to permit a determination that
any of the claimants, who were not hired by these com-
panies, did not apply for employment. These companies
only retained job applications of individuals they hired.
Where there was testimony that names of claimants were
unfamiliar or there was no recall of their applying for
jobs, there was no reliable context in which to evaluate
this information. For example, the mere passage of time
would impair memory; a claimant could have telephoned
and been told there were no jobs available, which could
be construed by the bus company representative as fail-
ure to apply for a job; and the individual testifying might
not have been the individual who was approached, either
181
telephonically or in person with an inquiry from a claim-
ant about a job.' °
These bus company witnesses testified about the
number of drivers they hired during the backpay period.
This testimony is not probative in determining job avail-
ability for in almost all instances there was no showing
of a direct correlation between the number of drivers
hired per year and the number of applicants. There was
no showing of the attributes the employer was seeking in
drivers, such as foreign language skills or any other spe-
cial factors. For example, Cheryl Kasamoto of Robert's
Hawaii, Inc. testified that in 1979 Robert's hired nine in-
dividuals who were both new employees and rehires.
She does not know how many of the nine were rehires;
they could have given preference to individuals who had
previously worked for them. It was not ascertained if re-
hires are given preference as an industry or company
practice. The figures proffered by the different bus com-
panies indicating the number of people hired were not
placed in a context which would indicate job availability
of a nature that is indicative of job availability or a will-
ful failure to mitigate by any claimant.
In the instant proceeding, not one employer testified
that any of the claimants refused an offer of employment
nor did they represent that if any particular claimant had
applied for work with them they would have been hired.
There was no explanation why some of the claimants,
who testified that they filed for employment with certain
companies, were not hired. As Administrative Law
Judge Schneider found in Firestone Synthetic Fibers Co.,
207 NLRB 810, 814 (1973):
In this context, their testimony to the effect that
they hired X number of employees during the back-
pay period is thus of no significance whatever with
respect to the issue of whether [claimants] would
have secured employment had [they] applied.
See further Midwest Hanger Co., supra, 221 NLRB 911
(1975).
4. Analyses of individual claims
a. Simeon Agao Jr.
The gross backpay listed in the backpay specification
for this employee totals $60,813.09, covering a period
from the day after his unlawful discharge on January 31,
1977, to October 21, 1980, which is approximately 2
weeks after a valid offer of reinstatement was sent to
him, albeit not to his current address. Respondent does
not question the use of October 21, 1980, as the date for
the cessation of Agao's backpay period. The backpay
specification indicates that this claimant had net interim
earnings including unquestioned expenses of $15 for mile-
10 For example, Charles G Moffat, of Robert's Hawaii Tours and
Transportation , stated specifically that he had personal knowledge that
Sanford did not apply However, it was further ascertained that Robert's
has more than one office , that Sanford could have inquired at another
office or from an individual at the office where Moffat worked but not
Moffat , been told that there were no openings and Moffat would have no
knowledge of such an inquiry Moffat did not know what the personnel
director actually told prospective employees
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
age and telephone calls, for a total net backpay of
$7321.18.
Respondent avers that Agao did not sufficiently miti-
gate because he accepted, on March 5, 1977, a lower-
paying position as a full-time driver with Robert's
Hawaii Tours. At one time, the job became part-time due
to renovations to Robert's facilities . Although he worked
8 hours a day as a part-time employee, he received sub-
stantially lower wages and benefits. Respondent asserts
that because the job at Robert's was a lower-paying posi-
tion, Agao did not make an adequate job search for an
equivalent position . Citing McCann Steel Co., 239 NLRB
1302 (1979), implementing the decision in McCann Steel
v. NLRB, 570 F.2d 652 (6th Cir. 1978); NLRB v. Madi-
son Courier, Inc., 505 F.2d 391 (D.C. Cir. 1974). In
McCann Steel Co., supra, 239 NLRB at 1302, it was
found:
In its decision [McCann Steel Co. v. NLRB], the
Court stated (570 F.2d at 655):
We believe that "substantially equivalent employ-
ment" refers to the hours worked at the interim
employer as well as the nature of the work there.
Thus, Hinsley refused to accept "substantially
equivalent employment" when he refused to
work the same numbers of hours at his interim
employer as he worked at McCann. This was a
willful loss of earnings . The NLRB should calcu-
late a constructive interim earnings figure based
upon the amount of pay Hinsley would have re-
ceived at his interim employer had he always
worked the same number of hours, including
overtime , he averaged at McCann to the extent
those hours were available at the interim employ-
er. The NLRB should then deduct the new con-
structive interim earnings figure from the amount
Hinsley would have earned at McCann in calcu-
lating the back pay award.
The instant case is clearly distinguishable. Agao testi-
fied credibly"' and without controversion that he
worked all the time available at Robert 's, seeking all pos-
sible overtime, but that overtime was not compensated in
the manner that it was at Rainbow . Respondent , appar-
ently cognizant of the veracity of this testimony, next
argues that Agao should have continued his job search
after accepting the position at Robert's since the terms
and conditions of his employment at Robert 's were not
as favorable as they were at Rainbow and, therefore, he
should have searched for more suitable work. Respond-
ent, however, failed to demonstrate that the position at
Robert's was significantly lower paying or was so dan-
gerous, distasteful, or essentially different from his em-
ployment at Rainbow as to incur an obligation to seek
other employment . Agao, a few days before accepting
the Robert's position, was working for VSP Tours and
the earnings he made at VSP Tours were deducted as in-
terim earnings . That VSP Tours was not listed on the
forms he submitted to the Board detailing the nature and
i i Agao testified with candor , a forthright demeanor and inherent con-
sistency.
extent of his job search does not discredit him. Agao did,
prior to commencement of this proceeding , report these
earnings.
Respondent also argues that Agao did not make a dili-
gent search between his discharge and his employment
with VSP Tours and Robert's. Agao testified that in
February 1977 he looked for work at the following bus
companies : Hawaiian Discovery, Hawaiian Scenic,
MTL-which is also called the Bus and is the public
transportation company for the area the Kauai Electric
Company and Barking Sands Missile Base.
Respondent asserts these claimed employment inquiries
are not truthful , arguing that Agao denied in his testimo-
ny making application to Barking Sands Missile Base. In
fact, Agao stated he did not make a written application
at Barking Sands Missile Base , not that he did not apply
in some other form such as by telephone or personal
visit. Respondent produced a witness, the former oper-
ations manager for Greyhound, who did not recall Agao
applying for employment. This is not probative of failure
to make a diligent job search . The hiatus in time alone
could cause the failure of memory by either the Grey-
hound witness or Agao. Also, the Greyhound employee
could have been on vacation or otherwise unavailable
during February 1977. As noted above, any uncertainty
is to be resolved against the Respondent as the wrongdo-
er; and because it has not been clearly shown that Agao
failed to make applications or inquire about job availabil-
ity at the places he stated , it is found that , considering
the record as a whole, he diligently sought other em-
ployment during the backpay period, being successful ap-
proximately 1 month after his discharge. Saginaw Aggre-
gates, supra at 598 ; Nickey Chevrolet Sales, supra at 398;
NLRB v. Miami Coca-Cola Bottling Co., supra at 569;
Southern Household Products Co., supra at 881.
Respondent notes that Agao, as well as most of the
other claimants, failed to complete their backpay forms
submitted to the Board in a manner consistent with their
testimony. Their testimony indicated their job searches
were more extensive than the forms indicated . As noted
previously, the forms were sent to the claimants general-
ly in April 1982. The extensive period of time between
the actual events and the request to record them under-
standably resulted in an inability to recall when and
where they made each job application.
Agao's failure to list initial VSP Tours on a form he
supplied to the Board does not render him not credibile
nor does it constitute a willful failure to provide informa-
tion. This information was provided by Agao fully and
freely from the inception of the trial. Poor recordkeep-
ing, as indicated above, is not a basis for denial of a
claim in a backpay proceeding. This does not disqualify
or toll the backpay obligation. Employees are not dis-
qualified from backpay merely because of poor record-
keeping or uncertainty of memory. See Izzi Trucking Co.,
supra at 245.
Although Agao 's interim earnings were less than he
would have earned if he had not been wrongfully dis-
charged, this is not probative of a failure to take suitable
interim employment. Agao was the third in seniority at
Respondent. He was unable for the period of time he
RAINBOW COACHES
worked for Robert's to attain comparable seniority.
There was no showing by Respondent that there were
job opportunities extant as a full-time bus driver or other
suitable interim employment where Agao could attain
sufficient seniority to fully mitigate Respondent's back-
pay liability. There is no showing in fact or in law that
requires a discriminatee to fully mitigate a backpay obli-
gation once a reasonably comparable job has been found.
There is no showing that a more comparable job was
available given all the circumstances, including seniority.
Further, there was no showing that the acceptance of a
job at Robert's was the acceptance of significantly
lower-paying work too soon after the discriminatory dis-
charge, warranting a reduction in backpay on the
grounds of a willfully incurred loss by accepting "an un-
suitably" lower-paying position. Agao accepted a full-
time position at Robert's approximately 1 month after
unsuccessfully searching for work, which became part-
time at one point during the backpay period with the
same number of hours assigned but at lower pay. The
Robert's position was a similarly skilled position that
compared favorably with Respondent's. It was not
shown that Respondent did not pay higher than the pre-
vailing wages and benefits. As noted in Aircraft & Heli-
copter Leasing, 227 NLRB 644 at 646 (1976):
The employer does not meet that burden by pre-
senting evidence of lack of employee success in ob-
taining interim employment or low interim earnings;
rather the employer must affirmatively demonstrate
that the employee "neglected to make reasonable ef-
forts to find interim work."
In the case of Agao, his interim earnings were not shown
to be significantly less than that which he earned at Re-
spondent nor that which he could have earned at any
other bus company considering the loss of seniority. Ac-
cordingly, this assertion by Respondent is found to be
without merit.
Respondent's argument would place the claimants in
the extremely difficult position of having to seek employ-
ment that is exactly equivalent, if not better in pay and
working conditions, than that which they lost without a
clear showing that there was an availability of such
working situations in the Honolulu area. This argument
overlooks the requirement that the claimant only seek
substantially equivalent positions. In fact, if one were to
adopt Respondent's position, the discriminatee would not
have to accept the Robert's job because it had more on-
erous terms and conditions of employment with less total
remuneration. See Waukegan-North Chicago Transit Co.,
235 NLRB 802 fn. 4 (1978), citing Richard W. Kaase Co.,
162 NLRB 1320 (1967). Such a construction would result
in much higher backpay awards and is contraindicated
by established case law.
Respondent also claims that the backpay computations
were in error because there was one notation on a social
security form indicating that Agao earned approximately
$28,823 in 1978 rather than the $14,411.63 indicated in
the specification. Respondent never raised this issue at
trial to clarify this conflict. Robert's records were avail-
able to Respondent and were not used to controvert the
183
accuracy of the specification. This failure to raise the
issue at a time when explanation or clarification was pos-
sible cannot now support an attack on the specification.
As previously stated , all doubts must be resolved against
Respondent.
Agao did lose 2 or 3 days' work during the backpay
period because of a skydiving injury. Also, after his first
year of employment Agao took vacations, and did not
look for additional employment during these vacations.
Because Agao was a full-time employee of Respondent,
he was entitled to vacation and health benefits. Respond-
ent did not allege in its answer or amended answer to
the specification that vacation pay was improperly added
nor did it seek to amend its answer or otherwise raise the
issue during the hearing. The same obtains for the 2 or 3
days when Agao was absent due to illness caused by the
skydiving accident. Respondent had full knowledge at
the hearing yet made no timely request to amend and
correct the specification. Additionally, there was no
showing that these benefits during the interim period
would not obtain if he had retained his employment with
Respondent. See Florida Steel Corp., 234 NLRB 1089
(1978).
The term "backpay" encompasses not only wages but
any accompanying pension, health, welfare, or other
fringe benefit payments or contributions which are inte-
gral parts of an employer's overall wage structure. See
NLRB v. Strong Roof Co., 393 U.S. 357, 358-360 fn. 4
(1969); NLRB v. Rice Lake Creamery Co., supra, 365
F.2d at 892; Inland Steel Co., 77 NLRB 1, 4-5 fn. 13
(1948), and cases cited therein, enfd. 170 F.2d 247 (7th
Cir. 1948), cert. denied 336 U.S. 960 (1948). Because the
backpay award is intended to make employees whole, it
properly includes any fringe benefit payments or contri-
butions that would normally be afforded the affected em-
ployees along with their wages, including health and
welfare payments and vacations. Under Respondent's
benefit plan, Agao would have been paid for the days he
was out ill or on vacation. It was not shown that Agao
took vacations or sick leave that exceeded the reimbursa-
ble benefits 12 he would have received from Respondent
save for his unlawful discharge. In fact, it is just such
losses of time without pay that would have been covered
save for the illegal discrimination that the Board pro-
vides for in its remedy. See, for example, NLRB v. Rice
Lake Creamery Co., supra, 365 F.2d at 888.
In sum, it is found that Agao made an honest and
good-faith successful effort to find substantially equiva-
lent employment. Accordingly, I conclude that Agao is
entitled to net backpay in the amount of $7321.18, exclu-
sive of interest.
b. Michael Akamine
The backpay period for this claimant extends from the
first quarter of 1977 through the third quarter of 1977
and the General Counsel claims total net backpay of
$1663.18. From the fourth quarter of 1977 through 1980,
12 The record does not clearly indicate how many sick and vacation
days full-time drivers received during the backpay period These benefits
vaned during the backpay period and Kolt could not specifically recall
that benefits were in effect at the various times here pertinent
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Akamine had greater interim earnings than gross back-
pay.
In the report forms Akamine filed with the Board, he
indicated that he applied for interim work at Hawaiian
Scenic, Grey Line-also known as Hawaii Transporta-
tion, Pan American Airlines, Continental Airlines, Poly-
nesian Hospitality, Charley's, and Robert's Tours.
During his testimony, Akamine confirmed these applica-
tions and further indicated that in February 1977 he ap-
plied to MTL. After approximately 5 weeks of searching
for a job, Akamine commenced working for Robert's
about March 2, 1977. Respondent, in its brief, admits that
Akamine diligently searched for work; and in fact claims
that he should be the standard against which all claim-
ants are measured. Considering the facts and Respond-
ent's admission , it is concluded that Akamine is entitled
to net backpay in the amount of $1663.18, exclusive of
interest.
c. Miles Fonseca
Fonseca was employed by Respondent as a part-time
driver. During this employment, as well as currently, he
worked full time as a fireman for the city and county of
Honolulu . Net backpay is claimed for him from Febru-
ary 1, 1977, to October 14, 1980, in the amount of
$18,421.76, which includes an additional $40 claimed for
union dues expended to retain an interim job.
Respondent asserts that Fonseca should not receive
any backpay and, if there is some entitlement , it should
total $414.33 due to willful loss of earnings occasioned
by his quitting after being rehired by Respondent in Feb-
ruary 1977. Respondent also claims that Fonseca failed
to search diligently for interim employment and willfully
concealed earnings from various construction jobs and
certain tips. Further, Respondent claims that there were
several periods of unavailability for work which are off-
sets.
It is undisputed that after his unlawful discharge, Fon-
seca returned to work, starting at the bottom of the part-
time seniority list for, as a prerequisite to such reinstate-
ment , he had to relinquish seniority. The question of
whether this was reinstatement to a substantially equiva-
lent job was not decided in the underlying unfair labor
practice proceeding. However, the underlying proceed-
ing did find Fonseca and the other discriminatees uncon-
ditionally offered to return to work February 2, 1977,
and would have returned if Kolt had not told them they
"would go to the bottom of the seniority roster, i.e., the
first full-time returnee would be No. 8 on the full-time
seniority roster and the first part-time returnee would
also be No. 8 on the part-time roster." Rainbow Coaches,
241 NLRB 589 at 594 (1979). The underlying decision
ordered Respondent to make all the employees whole
"for any loss of earnings they may have suffered as a
result of their discharges" and to offer them immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority and other rights and
privileges. Id. at 598. Respondent clearly failed to
comply with this order by rehiring Fonseca, and placing
him at the bottom of the seniority list. There was no
showing that during the term of Fonseca's reinstatement
this shortcoming had been rectified. As noted in Sumco
Mfg. Co., 267 NLRB 253, 258 (1983):
[A]n offer of reinstatement to a job which is not
substantially equivalent to that held prior to the dis-
crimination does not toll backpay even when, as
here, the employee accepts the offer, if that employ-
ee subsequently quits because of dissatisfaction with
the inadequate reinstatement . JIB Industries, 245
NLRB 538 (1979) (employee worked 2 months at a
nonequivalent job before quitting); Marlene Indus-
tries, 234 NLRB 285 (1978) (employee worked 2 or
3 weeks at the nonequivalent position); Glass Guard
Industries, 227 NLRB 1140 (1977). Moreover, as the
Board noted in Marlene Industries, supra at 291, the
reinstatement of an employee without according her
the seniority she had acquired prior to the discrimi-
natory discharge does not satisfy Respondent 's obli-
gation to reinstate an employee to a substantially
equivalent position.
There was no evidence that Respondent reinstated
Fonseca to a substantially equivalent position; on the
contrary, it admittedly required that he go to the bottom
of the seniority list which clearly had an adverse impact
on his choice of tour bus runs.
The above-quoted case does infer that the loss of se-
niority must have a causal nexus in the decision to quit.
Respondent argues that Fonseca quit for other reasons.
Fonseca applied for reemployment on February 2, 1977.
It is uncontroverted that prior to such reinstatement,
Fonseca was one of the five most senior part-time em-
ployees. Around early April 1977, he resigned from
Rainbow and started working for Charley's, another tour
bus company.
Respondent argues that Fonseca quit because he was
having problems with some drivers at Rainbow. The
basis of this contention is that Gaylord Kolt, the stepson
of Steve Kolt, chief operating officer of Respondent,
went to a bar with Fonseca after work on a few occa-
sions and, during one of these occasions, an individual
who did not participate in the strike made a remark
about Fonseca. Fonseca stated he wanted to kick the
person's posterior but that the individual was too short.
Respondent also notes that a comment made in 1982 on a
form provided by the Board, wherein Fonseca stated he
did not want to work for Rainbow anymore, because it
would create internal problems , indicates he quit because
of such internal problems. Another statement on the
form, that he was not interested in working for someone
who wrongly fired him, was not addressed by Respond-
ent. As further proof that Fonseca's reasons for quitting
were other than reduction in seniority, Respondent
argues that he never commented to Gaylord that he was
dissatisfied with the dispatches he was receiving even
though Gaylord was a dispatcher. Gaylord' s initial de-
scription of himself as a dispatcher was, on cross -exami-
nation, clarified as being a dispatcher trainee who did
not work those hours when the drivers were actually
dispatched. The dispatcher who actually handed out the
jobs was not called to testify. Therefore, the requested
inference has no basis.
RAINBOW COACHES
Fonseca's testimony that he received less hours of
work than other part-time drivers was based on his dis-
cussion with these other drivers, and the fact that the
nature of the runs he received was different from those
he received prior to his unlawful discharge. Prior to his
discharge, he had longer runs, mostly tours; after rein-
statement with the loss of seniority, he was not given
"money runs." He considered "money runs" and foreign
tourist pickups, which also have tours connected to
them, as "money runs." On his return, he would be
given 2-hour transfers of tourists and baggage, which are
not "money runs." Because he lived quite a distance
from work, he informed an unnamed individual at the
Company that if this was all that was available, it did not
pay for his commuting from the north shore.
Pamela Talkin, the compliance officer who reviewed
the figures, stated that although during 1 week after his
reinstatement Fonseca did earn a substantial amount of
money , in general he earned less after his reinstatement
than he had been earning prior to his unlawful discharge.
Talkin also noted, without refutation, that Fonseca had
an unusually low number of hours in December, before
his discharge, compared to the rest of his predischarge
work history. A review of the exhibits indicates that he
generally earned substantially less after his reinstatement
for those weeks reported although there were some fluc-
tuations. There was no explanation why he had only 1
week of substantial earnings or why it was different from
the other weeks. Respondent, who has the records, did
not present an analysis of Fonseca's working record for a
meaningful period prior to his discharge, and did not
refute Fonseca's testimony that he received mostly trans-
fers, or scrub runs, not regular money runs as he had in
the past. Respondent's failure to explain its failure to ex-
trapolate from its payroll records evidence substantiating
their contention supports drawing an adverse inference.
The Company did not refute Fonseca's claim that he
complained about his runs, just that he did not complain
to Gaylord or his stepfather. There was no evidence in-
dicating when the incident in the bar occurred in relation
to his decision to quit. There is no basis for drawing an
inference that this incident was the causal nexus for his
resignation. Fonseca explained that his statement on the
form was an analysis, reached in 1982 in response to the
Company's 1980 offer of reinstatement, indicating his
feeling of dissatisfaction over the Company's past treat-
ment of him. He denied that the reason he left was be-
cause there were hard feelings regarding other employ-
ees or internal problems. Fonseca's testimony is credited
based on demeanor, inherent probabilities, and his dem-
onstrated candor.
Respondent also argues that because Fonseca was si-
multaneously employed by Charley's Tours and Trans-
portation at the time he left Rainbow, he actually quit to
go to another job.13 Fonseca denies that was the reason
18 There is some confusion in the record regarding when Fonseca
started working at Charley's The representative of Charley's testified
that the records indicate Fonseca was first hired by that company April
12, 1977, after he quit his second employment with Respondent Howev-
er, R Exh P-9(a) indicates that he was paid for a period in March 1977.
Fonseca, in his testimony , candidly indicated that he was working for
Charley's prior to his quitting Respondent
185
for his leaving. Charley's did not offer him much work
at that time. In fact, when he was working at Charley's
in the second quarter of 1978, he was also working for
Greyhound. It is undisputed that the tour business at
Charley's was very slow. Respondent did not introduce
any evidence that indicated Fonseca was working so
many hours at Charley's Tours that it operated as an in-
ducement to him to leave Rainbow or precluded him
from working for both companies. Again Respondent has
failed to present, as is its burden herein, evidence to sup-
port its claim that Fonseca quit for reasons not connect-
ed with his discriminatory reinstatement . Respondent's
request that Fonseca's backpay specification be comput-
ed to reflect this quit and the amount he would have
earned had he not quit is found to be without merit.
As Respondent notes in its brief, quoting from NLRB
v. Vita Foods, 377 F.2d 81 at 87 (5th Cir. 1967):
Where a discriminatee takes an interim job with the
discriminator, his quitting for reasons unconnected
.with the discrimination tolls the discriminator's
backpay obligation to the extent of the interim
wage ; this is the same result as if the discriminatee
had unjustifiedly quit a similar job with a third
party. In neither case does the employee have the
unlimited option to leave an interim job without in-
curring a willful loss.
Assuming arguendo that this was comparable to any
other interim employment, a claimant does not willfully
incur a loss of earnings merely by voluntarily quitting in-
terim employment, unless he does so without good
reason. See NLRB v. Vita Foods, supra at 87; NLRB v.
Mastro Plastics Corp., 354 F.2d 170 at 174 fn. 3 (2d Cir.
1965); NLRB v. Madison Courier, 472 F.2d 1307 (D.C.
Cir. 1972). Respondent alleges that harassment by other
employees was the basis for his leaving Respondent after
his reinstatement. If this is true, the burden of proof is on
the employer. See Marlene Industries Corp. v. NLRB, 440
F.2d 673 at 674 (6th Cir. 1971). Respondent has failed in
this burden. A discriminatee need not seek, accept, or
retain interim employment which is essentially different
from his regular job, which is unsuitable to someone of
his background, skill, and experience or which involves
substantially more onerous conditions. Lozano Enter-
prises, 152 NLRB 258, 260 (1965), enfd. 356 F.2d 483
(9th Cir. 1966).
As noted in Richard W. Kaase Co., 162 NLRB 1320
(1967), a discriminatee does not have to accept a job
with more onerous terms and conditions of employment.
His obligation is to mitigate an employer's backpay liabil-
ity only to the extent that the claimant accepts substan-
tially equivalent employment.
Setting aside the loss of seniority, which in itself re-
moves the job as being substantially equivalent, the
claimant is not required to subject himself to threats and
more onerous working conditions occasioned by harass-
ment from coworkers. Respondent argues in its brief that
"Fonseca did, however, tell Kolt he was having prob-
lems with some of the drivers at Rainbow." There is no
indication that Respondent tried to alleviate these diffi-
culties or otherwise abate the known onerous nature of
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employment. See Midwest Hanger Co., 221 NLRB
911 at 920 (1975).
Respondent infers that Fonseca had formed the inten-
tion not to accept reinstatement if offered by Respondent
because of the difficulties he had with his coworkers
and, thus, Respondent's backpay liability should be
tolled. It is not unexpected or unusual that Fonseca
would have concern about untoward comments made to
him by coworkers after a strike or would have ambigu-
ous feelings toward an employer who unlawfully dis-
charged him and reinstated him with a loss of seniority
resulting in the lost facility to choose the runs he consid-
ered more desirable . Fonseca's equivocal remarks do not
demonstrate he irrevocably decided to decline a good-
faith offer of reinstatement. Respondent had within its
power the right to test the propriety of this remedy by
reinstating Fonseca with appropriate seniority . Respond-
ent's election not to do so until October 1980 will not
support a curtailment of Respondent's backpay liability
to Fonseca based solely on his ambiguous remarks. Ac-
cordingly, it is concluded that Fonseca's backpay contin-
ued to run after he left Respondent and that his quitting
did not toll such entitlement for he did not receive a
valid offer of reinstatement to substantially equivalent
employment. There was no showing that any claimant
exhibited unwillingness to return to work for Respondent
prior to receiving a valid, good-faith, unconditional offer
of reinstatement.
There is an absence of any evidence of a cavalier pro-
clivity by Fonseca while employed with Respondent or
elsewhere to change jobs or to engage in disputes with
coworkers or supervisors. If Respondent 's contentions
are true, then it requires a fording that Fonseca was
goaded into such conduct by the situation imposed on
his resumed employment and, thus, the backpay is not
tolled. See United Aircraft Corp., 204 NLRB 1068 at 1078
(1973). Again, Respondent has failed to show that Fon-
seca willfully incurred a loss of earnings by quitting his
employment with it in early April 1977 under the cir-
cumstances described in this proceeding and admitted by
Respondent.
Finally, as noted above , when, as here, there is a ques-
tion regarding the motive , all questions must be resolved
against the wrongdoer, Respondent. Consequently, even
if one rejects the above finding that Fonseca quit because
of a loss of seniority resulting in loss of earnings and less
remunerative assignment of runs , a finding which Re-
spondent's evidence failed to clearly refute, the fact that
Respondent knew that Fonseca was being harassed by
strike replacements or other coworkers who were given
greater seniority than he and did nothing to mitigate it is
a substantially more onerous working condition than that
existent in his previous position. He is not required to
work under those conditions. See NLRB v. Miami Coca-
Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966). See fur-
ther East Wind Enterprises, 268 NLRB 655 (1984).
Respondent also argues that Fonseca's backpay should
be tolled because he revealed interim earnings with
Greyhound and from construction jobs only the week
before the trial. Recognizing that Board law finds revela-
tion of information prior to commencement of trial not
an indication of willful concealment, albeit shortly before
such event, Respondent claims that because Fonseca was
under subpoena at the time, it was not voluntarily sub-
mitted information . The "perfidious" nature of such late
revelation , according to Respondent, is demonstrated by
the fact that Fonseca described the Greyhound earnings
as being off the books cash payments when in fact he re-
ceived paychecks and tips. It is undisputed that Fonseca
volunteered that he worked for Greyhound and Re-
spondent was able to find documents indicating actual
payments although there were no deductions from those
checks for pension, health and welfare payments, social
security, or otherwise.
Fonseca mischaracterized the nature of the payments
and had no recollection of receiving paychecks, constru-
ing payments without deductions, normally required by
law, to be off the books. This mischaracterization does
not warrant a finding that he intentionally concealed em-
ployment or income from the Board and Respondent.
There was no showing of perfidy or deception of a
nature to be deterred by the tolling of backpay during
those quarters in which such concealments occurred.
American Navigation Co., 268 NLRB 426 (1983). Re-
spondent had notice the week before commencement of
hearing that Fonseca had interim earnings from employ-
ment in casual construction and working for Greyhound.
After initially examining Fonseca about these, as well as
his other jobs and job-seeking efforts, Respondent had a
6-week hiatus in the trial to test the accuracy of these
revelations . The Board has consistently recognized that
individual claimants have difficulty in keeping accurate
accounts of interim employment which they often hold
for a short term, particularly when, as here, there was a
lengthy backpay period. Despite these factors, the claim-
ant did not fail to report the earnings. His estimates
were, in the case of Greyhound, inaccurate. The esti-
mates of his earnings from the construction jobs used in
the specification was higher by $500 than Fonseca's esti-
mate.
There is no showing that Fonseca's failure to put into
the documents filed with the Board all the information
he subsequently revealed to the Board agent at their first
meeting was an attempt at guile. Fonseca did reveal the
sources of income to the General Counsel and thence to
Respondent "before the weekend prior to the hearing, of
both the income and of the failure to report it for tax
and unemployment benefit purposes." There was no
showing of deliberate concealment of earnings or any
other improprieties that would hamper Respondent in
the presentation of its case . There was no motion for a
continuance beyond the 6-week recess in the trial. Thus,
there is no basis to disqualify Fonseca from recovering
backpay due to his failure to complete the forms sent to
him by the Board well after his unlawful discharge and
well after the adjudication that such discharge was dis-
criminatory. See Cumberland Farms Dairy of New York,
266 NLRB 855 (1983).
That Fonseca erred in his estimates how much he
earned at Greyhound does not support a contention that
there was a fraudulent withholding of information. It has
long been recognized that such statements of interim
earnings in circumstances such as these are only esti-
RAINBOW COACHES
mates and that errors in estimates may tilt in either direc-
tion. The amount of backpay awarded requires only that
it be based on reasonable conclusions . Again , Respondent
has failed to show that there was an intentional conceal-
ment or fraudulent concealment of employment. See
American Navigation Co., supra. This finding is buttressed
by the undisputed evidence that Fonseca believed there
were no records of these Greyhound earnings , and there
were no records of his income from casual construction
work and he could have concealed these earnings. Yet
such income was revealed before the trial. See West
Texas Utilities Co., 109 NLRB 936 (1954); Deena Artware,
112 NLRB 371, 375 (1955), enfd. 228 F.2d 871 (6th Cir.
1955).
Fonseca's admission that he did not report some of the
interim earnings he received on his tax returns is repre-
hensible; however, it is not the type of concealment that
would toll backpay. There was no claim or contention
by Respondent that Fonseca's failure to reveal income
from the construction job on his taxes was a factor that
would bar him from reinstatement. The candor in which
he revealed such actions cojoined with the observation
of his demeanor and all the other relevant testimony con-
vinces me that Fonseca was testifying truthfully to the
best of his ability to recall the circumstances of his job
search and the jobs he held during the backpay period.
Fonseca was cognizant of his family responsibilities and
anxious to find part-time employment to enable him to
meet those responsibilities which would also mitigate the
gross backpay due him. See NLRB v. Southern Silk Mills,
242 F.2d 697 (6th Cir. 1957), cert. denied 355 U.S. 821
(1957); United Aircraft Corp., supra, 204 NLRB at 1068.
As was noted in Inta-Roto, Inc., 267 NLRB 1027
(1983):
Improper as this man 's conduct may have been
with respect to his statutory duty to pay his taxes
like everybody else, I do not think his behavior in
this respect sufficient reason to deprive him now of
the make-whole remedy to which he is entitled
under the Board's order. . . . There was no real de-
ception against the Respondent, for the picture it
was faced with at the hearing was correct in all re-
spects. I do not mean to condone anybody's wrong-
doing where payment of taxes is concerned, or even
where honesty in their dealings with this Adminis-
trative Agency is concerned. But I think it is a rele-
vant factor, all things considered, that [he] did, of
his own volition, play it straight in the end.
Respondent argues that Fonseca failed to make "rea-
sonable efforts to mitigate . . . loss of income ." NLRB v.
Arduini Mfg. Corp., 394 F.2d 420 at 422 (1st Cir. 1968).
Again, this is an affirmative defense; the burden is on the
employer to prove the necessary facts. NLRB v. Mooney
Aircraft, 366 F.2d 809 at 813 (5th Cir. 1966); NLRB v.
Mercy Peninsula Ambulance Service, 589 F.2d 1014, 1017
(9th Cir. 1979); NLRB v. Reynolds Box Co., 399 F.2d 688
(6th Cir. 1968). In assessing the reasonableness of efforts
to mitigate loss of income , the entire circumstances sur-
rounding the effort are to be considered. Fonseca was
employed as a full-time firefighter. This full-time em-
187
ployment usually did not require him to work 8 hours a
day, 5 days a week. Rather, he worked 24-hour days, 3
days a week. This schedule permitted more free time to
seek and work at moonlighting jobs. However, the fact
that he was fully employed did not permit him to seek
full-time employment elsewhere or to spend full time
seeking interim employment.
On leaving Respondent's employ, Fonseca worked for
Charley's. Work for part-time employees at Charley's
was admittedly extremely slow. Charley's called him
only as needed and the need was infrequent.
In addition to working as a part-time employee of
Greyhound as a "VIP" tour driver in 1977 and 1978, he
sought employment at Hawaiian Scenic, Hawaiian Dis-
covery Tours, Polynesian Adventure, Mini-Bus Tours of
Hawaii, Moana Tours , Hawaii Transportation (also
known as Gray Line), Robert's Tours, and Akamai
Tours. Fonseca also sought employment in construction
during 1979 and 1980. He is a journeyman carpenter who
installed drywall prior to working for Rainbow. Akamai
could not recall his seeking employment at their compa-
ny and refuted his assertion they told him they did not
hire firemen. Because there was no showing that the in-
dividual who testified was the individual Fonseca asser-
tedly spoke to, nor was there evidence that absolutely no
one else interviewed employees or talked to employees,
this refutation is not considered probative. Akamai Tours
did not retain employment applications more than 1 year.
Akamai did not have a policy, according to the individ-
ual who testified, against hiring firemen; however,
Akamai Tours also was not shown to have had part-time
openings at the time Fonseca said he applied. There
could have been a lack of interest in hiring firemen be-
cause they could only work part time. Accordingly, it is
found that Respondent did not refute Fonseca's claim
that he spoke to the individual at Akamai Tours and was
informed they were not interested in hiring a fireman.
Fonseca admittedly applied to the bus companies once
only, based on his understanding that if they were inter-
ested they would call him. Whether this is a standard
practice was not shown on the record. Accordingly,
Fonseca's behavior in only applying once at these bus
companies is not shown to be an unreasonable failure to
mitigate. As the Board held in Cornwell Co., 171 NLRB
342 at 343 (1966):
A discriminatee who has otherwise made reasonable
efforts to seek out new employment is not required
in each specific quarter to repeat job applications
which from her past efforts she knows are fore-
doomed to futility in order to protect her claim of
backpay for that particular quarter. Rather, the
entire backpay period must be scrutinized to deter-
mine whether throughout that period there was, in
the light of all surrounding circumstances, a reason-
able continuing search such as to foreclose a fmding
of willful loss.
Fonseca also testified that he applied for part-time em-
ployment at Bums Security. Respondent notes that
Burns' representative indicated the company had no
record of such application and that such files go back to
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1974. What Respondent failed to note was that the indi-
vidual who testified for Burns, Mr. Smith, was not with
the company during the backpay period, and did not
know on which basis applications were kept on file. The
basis for his surmise that all files go back to 1974 was not
predicated on any personal firsthand knowledge or even
hearsay statements by any other employee. This baseless
surmise does not support a finding that Fonseca did not
apply to Burns . Currently Burns does not accept oral ap-
plications , but the witness could not testify from personal
knowledge what the practice was during the backpay
period. Accordingly, Fonseca's testimony that he applied
at Bums was not adequately refuted.
Respondent asserts that during this period of time
Fonseca was fired from Charley's, which should toll the
backpay period. Although there is a letter indicating that
he was discharged, pay statements reveal that he was
still employed after this ostensible discharge . It appears
that he was fighting a fire at a time when he should have
reported for work, which led to the issuance of a letter;
however, because he received pay for work after that
date, it also appears that some rapprochement was
reached and he was not terminated. However, even as-
suming he was terminated , discharge under these circum-
stances has not been shown as a basis for tolling back-
pay. There was no showing that the discharge was occa-
sioned by a willful loss of employment by Fonseca or in-
volved an offense that demonstrated moral turpitude.
Mastro Plastics Corp., 145 NLRB 1710 (1964); Barberton
Plastics Products, 146 NLRB 393 (1964); Kansas Refined
Helium Co., 252 NLRB 1156 (1980).
Fonseca had two periods of employment with Char-
ley's. The first started near the end of his reinstatement
term with Rainbow or immediately thereafter until he
commenced work about August 1977 with Greyhound
Royal Hawaiian Transportation as a VIP limousine
driver. That employment lasted until December 1978
when Greyhound ceased operations in Hawaii. He then
recommenced working for Charley's until the third quar-
ter of 1979 when they ceased to have any part-time work
for him. He then stopped working at Charley's and
began seeking construction work.
Because his employment at Charley's failed to produce
any income because he was rarely, if ever, called to
work, he was not obligated to retain such employment.
As noted in Waukegan-North Chicago Transit Co., 235
NLRB 802 at fn. 4 (1978):
A discriminatee does not have to accept a job with
more onerous terms and conditions of employment.
The obligation to mitigate an employer's backpay li-
ability requires only that the claimant accept sub-
stantially equivalent employment. The Lakeland
offer involved a wage rate less than one-half that
which Hook enjoyed with Respondent . Acceptance
of the Burns offer would have reduced his wages
by approximately one-third.
Fonseca worked as a carpenter and performed small
construction jobs privately for individuals. He also hung
gypsum board in two houses for a subcontractor in a
subdivision in Hawaii Kai, earning $460 per house. He
found the job through some cousins . He constructed a
patio for a friend of a friend in Kaneohe which took
about a week of his spare time . He could not recall
which quarter he engaged in that activity . The construc-
tion work was all in 1979 and 1980 . He built a patio in
Kailua . He helped build a house in Pupukea , but most of
this work occurred after 1980 . However, some of the
proceeds from this work were included in interim earn-
ings because he could not recall exactly when he helped
the individual build the house . Work proceeded on the
house as money was available and the house still is not
finished . The house is depicted in Respondent's Exhibit
C-29. He helped build the top floor. Fonseca estimated
his earnings from construction based on the needs he ex-
perienced in paying tuition bills for his children . Fonse-
ca's assertion that he was experiencing financial difficul-
ties is apparently substantiated by the testimony about his
accounts at the Honolulu Fire Department Credit Union.
These records were not moved into evidence . The testi-
mony indicated that he had experienced a decrease in his
cash balance and an increase in his loans.
Respondent argues that because Fonseca did not go
through the union hiring hall , he did not make reasona-
ble efforts in acquiring construction jobs . There was no
testimony regarding the availability of part-time work in
hanging drywall during the backpay period from any of-
ficial of the appropriate union . There was a dispute be-
tween the Carpenters and Latherers Unions regarding
who had authority to refer individuals to hang drywall.
Also, Fonseca was not a member of the Latherers or
Carpenters Unions at this time . There was no evidence
regarding membership requirements in these unions as a
prerequisite to referral . Accordingly , this argument is
found to be without substance . It is undisputed that the
construction industry was slow and there were not many
jobs available . Fonseca called his uncle, Richard Fon-
seca, several times seeking his assistance. His uncle was
formerly an official in the Latherers Union . Richard
Fonseca 's testimony regarding the advice he gave his
nephew differs from the claimant 's testimony . However,
the differences could have been occasioned by the juris-
dictional dispute between the unions, and Richard Fon-
seca had no knowledge about the Carpenters ' referral
system . He did acknowledge that Miles Fonseca called
him "a lot" looking for work . Both Richard and Miles
Fonseca agreed that in Honolulu hiring is done by per-
sonal contact and over the phone . He stated you get a
job if you know someone . Respondent failed to show
that in this slow construction period , Fonseca 's failure to
find more part-time employment in this field was indica-
tive of a failure to make a reasonably diligent job search.
Fonseca's self-employment in construction does not in-
dicate lack of reasonable diligence . As the court noted in
NLRB v. Armstrong Tire & Rubber Co., 263 F.2d 680,
683 (5th Cir . 1959):
Bona fide full self employment will be regarded as
complying with the obligation imposed upon a dis-
charged employee to use reasonable diligence to
keep himself in gainful employment ... .
RAINBOW COACHES
Respondent does not contend that Fonseca's self-em-
ployment in construction jobs was not bona fide employ-
ment. See further W C. Nabors Co., 134 NLRB 1078 at
1092 (1961). Fonseca applied for work with all his
former employers in this specialized field of hanging
drywall. He named several of the companies to which he
made application. No representatives from these compa-
nies were called by Respondent to refute Fonseca's as-
sertion. That these companies were subcontractors rather
than general contractors is not shown to warrant an in-
ference of lack of due diligence in job search for there is
no indication that seeking work with subcontractors
dealing with the special craft he was skilled in was not
the proper way of seeking employment. That these com-
panies were not listed on the forms submitted to the
NLRB did not hamper Respondent in presenting its case,
considering the length of this proceeding, including the
recess , affording Respondent ample time to call witnesses
who may potentially have shown mitigation or lack of
diligence. The use of a "grapevine" in industries where
the unrefuted evidence is that this is the usual method of
gaining employment is significant evidence of diligence.
Madison Courier, 202 NLRB 808, 813 (1973).
Fonseca did not register with the State Employment
Service for assistance in getting a part-time job. There
was no showing that the State does lend its assistance to
such registrants. Also, the failure to register with the
State Employment Service does not show lack of reason-
able efforts in seeking interim employment.
Fonseca did have interim earnings during each quarter
in the backpay period. There were poor business condi-
tions in the construction industry and an admitted
change in operations in the tour bus industry which in-
creased utilization of minibuses. This was not shown to
have increased job availability for part-time or full-time
tour bus drivers. Several bus companies testified that
they had openings during the backpay period but there
was no specific showing that these jobs were available to
Fonseca or that he failed to accept such employment.
See Florence Printing Co. v. NLRB, 376 F.2d 216, 221-
223 (1967), cert. denied 389 U.S. 840 (1967). There was
no evidence of willful idleness or any other matters that
overcome the presumption that Fonseca did not willfully
incur any loss of earnings. NLRB v. Reynolds Box Co.,
399 F.2d 668 (6th Cir. 1968), held that the employer has
the duty "to carry the burden of proof and to point out
what evidence in the record sustains . . . [its] claim, as
against the presumptive proof of the Board's fmdings
that the employees did not sustain willful losses." Id. at
670. I find that Respondent has failed to support its
burden of proving that Fonseca failed to make a reason-
ably diligent effort to seek interim employment.
Respondent next asserts that certain offsets should be
allowed to account for unavailability for work as indicat-
ed in the fire department's leave records. Such unavail-
ability is attributable either to illness or vacations. It is
undisputed that Respondent did not pay part-time drivers
any vacation or sick leave benefits. Under normal cir-
cumstances involving full-time employees when such
benefits were not paid, the backpay awards would
deduct from the total those days that an employee is un-
available for work due to illness or vacations. However,
189
in the case of Fonseca and the other part-time employ-
ees, a different question obtains . As the Court stated in
NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569,
573 (5th Cir. 1966):
If an unlawfully discharged employee finds inter-
im work, his earnings are deducted from gross
backpay due. But the rule requiring deduction of in-
terim earnings applies only to earnings during the
hours when the employee would have been em-
ployed by the employer in question. Phelps Dodge
Corp. v. N.L.R.B. [219 NLRB 41, 313 U.S. 177, 198
and fn. 7], citing Pusey Maynes & Breish Co., 1
NLRB 482, 486 (1936).14
In this proceeding, gross backpay was calculated using
actual earnings for the employees for a 12-week period
immediately preceding their unlawful discharges. Periods
that the part-time workers were unavailable for work at
Respondent due to illness or vacations could be included
in these calculations. Because the propriety of such off-
sets must be shown by Respondent as part of its burden,
Respondent must show that the vacation and sick leave
reflected in the Fire Department records were matters
not already reflected in gross backpay, and are proper
deductions as occurring during hours when the employee
would have worked for the Company. Respondent has
failed to make any reference to what was included in the
gross backpay of Fonseca and the other part-time claim-
ants. To grant its request to make these deductions could
result in the double counting of an offset. As noted pre-
viously, all unanswered questions must be resolved
against the wrongdoer. Respondent has failed to show
that these are proper offsets and were not already re-
flected in the specifications.
Respondent also failed to show that the sick leave
taken by Fonseca from the Fire Department was of such
a nature as would preclude him from working at interim
employment as a bus driver. The exigencies of the job as
a fireman were never explored nor were the require-
ments for sick leave sufficiently detailed to warrant the
requested analogy that illness sufficient to remove one
from work as a fireman were of such a duration or
nature to warrant the assumption that he would also be
unable to work as a tour bus driver. Similarly, the vaca-
tions that Fonseca took were not shown to have taken
him away from Oahu and he may have used those peri-
ods moonlighting, thereby increasing his interim earn-
ings . These aspects were never explored. Consequently,
it is concluded that under the facts of this case, even as-
14 Backpay awards are made by the NLRB pursuant to Sec . 10(c) of
the National Labor Relations Act As found in McCann Steel v. NLRB,
570 F 2d 652 at 655 (6th Cu. 1978):
[Backpay awards] are generally calculated by subtracting from
what an employee would have earned but for his wrongful discharge
the amount the employee actually earned in the interim between the
discharge and the offer of reinstatement . The award is also reduced
by any willful loss of earnings by the employee . . A willful loss
of earnings includes the refusal of the employee to "accept substan-
tially equivalent employment "
We believe that "substantially equivalent employment " refers to
the hours worked at the interim employer as well as the nature of
the work there
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suming that there is a potentially valid basis for deduct-
ing the days that he was ill or on vacation, such basis
was not sufficiently established on the record to warrant
the granting of the requested offsets.
In sum, considering all the circumstances, including
Fonseca's interim employment in every quarter of the
backpay period while working full time as a fireman, co-
joined with Respondent's failure to show accessibility of
interim employment during the backpay period in the
fields where he was skilled, and the failure to show that
Fonseca should have known that he should apply more
than once to each bus company he contacted or that
such renewed application would increase his chances of
employment leaves no basis to determine how much
Fonseca would have earned had he conducted himself
otherwise. Therefore there is no basis to reduce the
award to Fonseca. Accordingly, it is concluded that
Fonseca is entitled to $18,421.76 in net backpay, includ-
ing $40 for union dues, plus interest.
d. Yukio Iho
Iho was a full-time driver with Respondent until the
date of his unlawful discharge . Backpay is sought only
for the first and third quarters of 1977, with total net
backpay amounting to $1687 . 57. The interim earnings
calculations were based on W-2 forms which were cor-
related with social security statements . His interim em-
ployer, Robert's Tours, did not have complete records.
Respondent does not attack the accuracy of these docu-
ments . Respondent claims that because Iho did not
obtain any interim employment until March 1977, "there
is no corroborated evidence that he made any kind of
diligent search during the intervening month of Febru-
ary." This assertion is confusing inasmuch as Respondent
has the burden of showing willful loss of earnings by
failure to exercise reasonable efforts to secure interim
employment.
Additionally, this assertion overlooks Iho's undisputed
testimony that during February and March he sought
employment at Grey Line, Polynesian Hospitality, Char-
ley's Hawaiian Scenic, in fact practically all the tour bus
companies, the MTL, the city bus line, the gas company,
and Pan American Airlines. Iho also searched for jobs
using the classified sections in the newspaper, registered
with the unemployment office , and sought assistance
from the Teamsters Union. He received an offer of em-
ployment at Charley's and was in his second day of
training when he received the offer of employment from
Robert's. Inasmuch as Charley's did not guarantee 40
hours' work per week, and Robert's did, he left Char-
ley's and went to work for Robert's. Charley's did not
pay him while he was in training. He was hired by Rob-
ert's because he spoke Japanese. As noted in Keller Alu-
minum Chairs Southern, 171 NLRB 1252, 1257 (1968):
[T]here is no requirement that an employee wrong-
fully terminated must instantly seek new work; it is
only required that the record as a whole show that
he exercised due diligence to this end . See Monroe
Feed Store, 122 NLRB 1479, 1483.
Considering the number of places Iho applied for
work and the fact that he accepted the first offers of em-
ployment received, there is nothing in the record to
show that he did not use reasonable efforts to find inter-
im work. Accordingly, it is concluded that Iho is entitled
to total net backpay of $1687.57, exclusive of interest.
e. Lane Kaaiai
Kaaiai was employed by Respondent as a part-time
driver prior to his unlawful termination in January 1977.
He commenced his employment with Rainbow in 1973;
terminated his employment there voluntarily to start his
own plant nursery, which failed; and returned to work
for Rainbow until January 1977. The backpay period is
asserted to be from the date of discharge to October 21,
1980, with a total net backpay of $20,312.52.
In its brief, Respondent argues that Kaaiai did not
make a reasonably diligent search for suitable interim
employment; that he left the Island of Oahu to live on
the Island of Hawaii in June 1978; that Hawaii is a loca-
tion that has many fewer prospects for employment and,
thus, relocating was a willful failure to seek suitable in-
terim employment; and once having found such suitable
interim employment with Islander U-Drive, he quit that
job after 1 month, thus failing to prudently retain such
employment subjecting him to an offset by the amount
that he would have earned had he retained such job.
Kaaiai commenced his job search, for both full-time
and part-time employment in February 1977, first seeking
positions in the airline industry by applying at Hawaiian
Airlines, Aloha Airlines, and Western Airlines. He also
applied for work as a fireman with the city and county
of Honolulu. Respondent asserts, on page 44 of its brief,
that the Fire Department indicated it had no records of
employment applications for Kaaiai, which does not ac-
curately reflect record evidence. This statement fails to
recognize the unrefuted representation by the city and
county of Honolulu that it does not keep records for un-
successful candidates nor records of applications by
name.
Kaaiai testified that he also applied to the telephone
company, Gray Line, Hawaiian Scenic, Inter-Island, Ha-
waiian Transporation, Moana Tours, and Charley's.
Inter-Island Resorts, according to Respondent, had no
records of an employment application filed by Kaaiai.
Inter-Island is also known as Gray Line. Gray Line did
have operations on the Island of Hawaii. According to
the representative of Inter-Island, the secretary was sup-
posed to purge the files of all applications that were over
1 year old. The absence of any applications for unsuc-
cessful job applicants is probably the result of this regu-
lar purging operation . Kaaiai also sought employment at
the Hawaiian State Employment Office, many employ-
ment services , a tour escort service , Hawaiian Electric
Company, and Hawaiian Telephone Company. He was
qualified to seek employment as a heavy equipment oper-
ator, but did not seek employment in that field because
his brother and father, who worked for a construction
company as heavy equipment operators on the Island of
Oahu, told him that the job market in that industry was
very poor.
RAINBOW COACHES
Respondent argues that Kaaiai applied to approximate-
ly 27 companies during the 45-month backpay period.
This fact was not clearly established on the record.
Kaaiai indicated that he could not recall when he made
the applications to the different companies. The evidence
indicates that most of the applications occurred before he
secured employment at Islander U-Drive and started self-
employment as a lei stand operator. Eventually he se-
cured full-time employment, which he still holds, at a
restaurant . Therefore, it appears that most of the applica-
tions were made within an 18-month period. Also, the
places that were stated as potential employers were not
represented to be a complete list, but all that he remem-
bered years later. Further, the claimant sought employ-
ment by making telephone inquiries and answering ad-
vertisements in newspapers. Considering the hiatus in
time from the actual attempts to find employment, the
fact that the claimant also registered with several em-
ployment companies and the state, and that his efforts
started almost immediately on his unlawful discharge, it
is found he exercised due diligence.
Kaaiai moved to the island of Hawaii because his in-
laws had a house he and his wife could live in rent
free. i 5 Kaaiai was unsuccessful in finding interim em-
ployment until after his move to the " Big Island" when
he got a job with Inter-Island Hotel Operating Corpora-
tion, Islander U-Drive.
While on the island of Hawaii, Kaaiai lived at two or
three locations. He applied for work at Budget Rent A
Car; Tropical Car Rental; Hotel Kamehameha; Spin-
drifter Restaurant; Kona Surf, Lockheed in Hilo; Polyne-
sian Pacific Cargo , an airline; Hilo Lei Company; Oper-
ating Engineers Local 3; United States Postal Service;
Polynesian Pacifica; and possibly Robert's Tours. Kaaiai
stated those were all the places he could recall and it
was only after discussing his job search history with his
wife that he remembered these efforts. Kaaiai further tes-
tified credibly that he reviewed job opportunities in the
newspapers.
Kaaiai quit his job at Islander U-Drive after I month.
During that 1 month, he earned $758.60. There is no
showing whether this income included payments for
overtime. Kaaiai quit because he was initially hired to
work at the counter renting cars . The employer wanted
him to work in excess of the agreed-upon 40 hours per
week and required that he shuttle cars, wash the cars,
and in general perform duties other than those to which
he agreed when he accepted the employment.
Respondent asserts that Kaaiai's seeking employment
initially at airlines on Oahu indicated a willful loss of
income for he was not seeking suitable interim employ-
ment. Kaaiai was unable to remember the dates he ap-
plied at the various airline companies in relation to the
time he applied at the listed bus companies on Oahu or if
such attempts were in fact a premature lowering of
sights or an otherwise improper failure to seek suitable
interim employment with reasonable diligence. Respond-
15 Kaaiai was living on the island of Oahu rent free prior to his dis-
charge . Thus, this is not considered an offset against gross income As
noted by the General Counsel, housesitting does not constitute earnings
that are deductible from gross backpay. Citing Melrose Processing Co., 151
NLRB 1352 (1965); United Aircraft Corp, 204 NLRB 1068 at 1073 (1973).
191
ent failed to specify why initially looking for employ-
ment at airline companies was a failure to seek suitable
employment since a tour bus driver's knowledge of the
island , and other skills, may have been highly suitable for
such employment. There was no showing what the
wages would have been if such employment had been se-
cured. Accordingly, Respondent did not support its alle-
gation that Kaaiai failed to use reasonable efforts to
secure comparable employment. See NLRB v. Mercy Pe-
ninsula Ambulance Service, 589 F.2d 1014, 1017-1018 (9th
Cir. 1979).
Respondent also asserts that Kaaiai's move to the less
urbanized island of Hawaii constituted a willful loss of
earnings . As noted in Mandarin Y. NLRB, 621 F.2d 336
at 338 (9th Cir. 1980):
A discharged employee is not confined to the geo-
graphical area of former employment; he or she re-
mains in the labor market by seeking work in any
area with comparable employment opportunities.
Cf. NLRB v. Robert Haws Co., 403 F.2d 979, 981
(6th Cir. 1968).
Respondent failed to produce any evidence demonstrat-
ing that there were proportionately fewer opportunities
for Kaaiai on the island of Hawaii than on Oahu for an
individual of Kaaiai's skill, education, age, and experi-
ence Kaaiai was able to secure employment on the island
of Hawaii.
Respondent next contends that Kaaiai willfully in-
curred loss of income by quitting his job at Islander U-
Drive. The General Counsel argues, on the other hand,
that Respondent failed to show that his decision to quit
amounted to willful avoidance of interim earnings at a
job comparable to his employment at Respondent. No
representative of Islander U-Drive was called to appear
and testify. It is noted that the Inter Island Resorts em-
ployment occurred in the third quarter of 1979, which
was shortly after Kaaiai's arrival on the island of Hawaii.
As found in Florida Steel Corp., 234 NLRB 1089, 1092
(1978):
[H]aving obtained substantially equivalent suitable
interim employment, a discriminatee must prudently
retain such employment or run the risk of being
subjected to an exclusion from gross backpay the
amount that would have been earned had such job
been retained. Knickerbocker Plastic Co., Inc., 132
NLRB 1209, 1212-16 (1961); Gary Aircraft Corpora-
tion , 211 NLRB 554, 557 (1974).
The initial question is whether Kaaiai's employment
was suitable interim employment and, if so, was his
reason for quitting excusable. Kaaiai asserts that he was
being asked to work much longer periods of time than
he did for Respondent, and work more than 40 hours a
week under terms and conditions that were not disclosed
at the time he commenced such employment. However,
there was no showing how much greater his workweek
was than 40 hours or the amount of time he had to
devote to tasks other than working at the desk, his origi-
nal assignment . There was no evidence that this employ-
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment created unacceptable disruptions in his private life.
In fact, when he left this employment, he worked at a lei
stand and then started his own lei stand where he
worked for much less , yet devoted 10 to 12 hours a day,
7 days a week to this endeavor.
The Inter Island Resorts job paid substantially more
per month than Kaaiai earned while working for Re-
spondent and, as noted above, there was no evidence
whether he was paid for overtime, what his hourly rate
was, or any other indication that it was not equivalent
suitable interim employment. As noted by the Board in
Knickerbocker Plastic, supra at 1212, "Persons who incur
willful losses in interim earnings by quitting certain jobs
must do so with compelling or justifying means." That
the claimant may have worked for longer periods of time
than he did for Respondent, albeit, perhaps at a much
higher wage , and performed some duties the nature and
extent of which are unclear and were different from
what he originally assumed he would have to perform
do not appear to place a burden on the claimant unsuited
to a person of his skills and experience , or more onerous
than those he would have been required to perform for
Respondent . He was willing to work longer hours 7 days
a week in his own lei stand business. There is no show-
ing that this job was an unsuitable way of earning a
living that justified his quitting with no prospect for suit-
able substitute employment . The bare claim of stress
caused by working an unspecified number of hours in
excess of 40 hours per week, and performing some duties
other than standing behind a counter, without further ex-
planation, are insufficient to justify quitting. I find that
Kaaiai's voluntary cessation of gainful employment,
without other suitable employment in the offing, is a
willful loss of earnings for the period subsequent to his
quitting . See further Miami Coca-Cola Bottling Co., 151
NLRB 1701 (1965); Midwest Hanger Co., 221 NLRB 911
at 919 (1975), affd . in pertinent part 550 F.2d 1101 (8th
Cir. 1977), cert. denied 434 U.S. 830 (1977); Shell Oil
Co., 218 NLRB 87 (1975). As noted in Shell Oil Co., at
88-89, and the cases cited therein , the circumstances re-
lating to the quitting of a job because of distasteful job
conditions have to be shown to be more than personal
convenience, preference, or accommodation rather than
an inherent difficulty. Also, there was no showing that
the job was not suitable because it was unprestigious, an-
noying, or created unacceptable disruption to his private
life. See Lozano Enterprises, 152 NLRB 258 (1965), and
John S. Barnes Corp., 205 NLRB 585 (1973).
His interim earnings will be offset by deeming he
would have earned the amount he was earning at the
time he quit for the remainder of the backpay period. Be-
cause he was earning wages at a monthly rate greater
than he would have at Respondent during the backpay
period, it is concluded that he is entitled to no backpay
from the third quarter of 1979 to the end of the backpay
period. The adjusted total net backpay due Kaaiai is
$ 14,963.76, plus interest.
f. Eric Kama
The General Counsel asserts Kama's total net backpay
is $20,079.50, including $200 he paid in mandatory union
dues to retain interim employment . Kama worked full
time for the city and county of Honolulu as a fireman.
He was employed by Respondent as a part-time driver
until he was discriminatorily discharged on January 31,
1977. Kama had worked for Rainbow about 3 months
prior to his termination. Kama graduated from high
school. He had 4 years of military experience, reaching
the rank of sergeant. He retired from the Fire Depart-
ment in 1981.
Kama's first application for interim employment was
with Charley's in March 1977. He commenced employ-
ment at Charley 's in early April 1977 .16 Respondent as-
serts that this delay in applying for work, and the fact
that Charley's was the only job application he made, was
a willful loss of earnings. As noted above, a claimant
need not seek interim employment immediately after an
unlawful discharge. Keller Aluminum Chairs Southern,
171 NLRB 1252 at 1257 (1968). See Monroe Feed Store,
122 NLRB 1479, 1483 (1959).
There were no questions asked by any of the parties
regarding Kama's failure to secure employment or make
applications prior to March. As found in Cornwell Co.,
171 NLRB 352 at 353 (1968), if the theory asserted to
prove the necessity for dimunition of backpay was that
the claimant was chargeable with willful loss of earnings
through failure to look for suitable alternate employ-
ment, it was incumbent on respondent to demonstrate by
a fair preponderance of the evidence that the claimant
did not make any reasonable efforts, when considered in
light of all the surrounding circumstances, to seek out
work that might have been available to her.
To determine reasonableness, the entire backpay
period is to be considered and reasonableness is to be as-
sessed considering existing conditions affecting the
search for work such as age, area of residence, extent of
employment opportunities open to that individual with
his particular skill, and experience. Respondent's failure
to ascertain why Kama did not apply for any jobs prior
to March 1977, and only sought work at Charley' s, leads
to the conclusion that it failed to bear its burden of prov-
ing this a willful loss of earnings . Kama may have had a
reasonable expectation of reinstatement at Respondent.
The job at Charley's paid substantially less than Kama
earned at Rainbow. As found in NLRB v. Southern Silk
Mills, 242 F.2d 697 (6th Cir. 1957), "after a reasonable
period of time," claimants for backpay should be re-
quired to "lower their sights" and take whatever work
was available in order to reduce Respondent's potential
backpay liability. Kama's actions in this case, based on
the record, have not been shown to be of the genre of a
willful loss of earnings or an unreasonable lowering of
sights.
As noted previously in this decision, the business activ-
ity at Charley's diminished and, although Kama called in
daily, there were no interim earnings as there was no
work available during the third and fourth quarters of
1977 and the second and third quarters of 1978. Kama
admitted that he noticed the dimunition of work during
these periods. He acknowledged that Charley's did not
1° Kama also worked for dust 3 days for Kekona , a transportation serv-
ice for golf courses. This employment was outside the backpay period.
Respondent did not call any witnesses from Kekona
RAINBOW COACHES
have sufficient work to keep the full-time employees en-
gaged for 40 hours a week. During this time he admitted
failing to look for any interim employment in 1977
during these periods of layoff. He only filled out an ap-
plication and took an orientation tour at Polynesian Ad-
venture. On January 11, 1980, Kama applied for work
with Robert's Tours and was hired. For the remainder of
the backpay period, he was retained by Robert's as a
part-time employee on an on-call basis. Respondent
argues that Kama had a duty during these long layoffs to
seek additional work, and his failure to do so, having
sought employment at one other tour company in 1978,
constituted a willful loss of earnings.
By Kama's own admission, he saw that there was in-
sufficient business at Charley's to produce work for part-
time employees and he did not have a reasonable expec-
tation of earning any income. Yet he did not make any
effort to search for part-time work in 1977 and made
only one application in 1978 to another tour bus compa-
ny. Although Kama reached retirement age from the
Fire Department in 1981, it was not shown or asserted
that his age, area of residence, particular job skills, and
experience were such to render seeking employment at
only one other bus company during four quarters of un-
employment a reasonable effort to secure interim em-
ployment. Kama's admission that he foresaw the lack of
work obviates a finding that he reasonably anticipated
being recalled to work in the near future. Therefore, I
will disallow his claim for backpay for the third and
fourth quarters of 1977 in the amount of $1885.78 for
each quarter, and for the second and third quarters of
1978 in the amounts of $1933.42 and $1947.95, respec-
tively. As noted in Cornwell Co., 171 NLRB 342 at 343
(1968), backpay can be tolled for any part of the backpay
period when it is found that the claimant did not make a
reasonable effort to secure interim employment. Thus, al-
though the entire backpay period as a whole is utilized in
determining reasonableness of job search, when certain
periods of such backpay timespan demonstrate a willful
failure, backpay should only be tolled for those periods.
See Knickerbocker Plastic Co., 132 NLRB 1209 at 1217
(1961)
Respondent asserts that those days Kama was shown
to have been ill or on vacation on the Fire Department
records should be considered offsets. As noted above,
Respondent has the obligation of showing that Kama's
vacations or illnesses interfered with his search for work
or prevented him from accepting available employment.
See generally Laborers Local 1440 (Martindale Builders),
243 NLRB 1169 (1979). As Respondent notes, the
records indicate that Kama took vacations from June 2-
15, September 17-22, November 11-15, 1977, June 6-28,
October 12-14, 1978, February 24-26, 1979, August 24-
28, 1980. Kama, as a part-time employee of Rainbow,
was not entitled to vacation or sick leave. Kama testified
that he usually spends 1 week on vacation each year
with his parents, but further testified that he only went
to the "Big Island" where his parents reside two times
during the backpay period. This matter was never clari-
fied on the record. It was Respondent's obligation to
demonstrate willful absenteeism during the backpay
period and the failure to clarify the record does not war-
193
rant the assumption that Kama vacationed on the island
of Hawaii each year of the backpay period. Kama testi-
fied that he was only off the island of Oahu twice during
his vacations. He normally took his vacation during
those periods when there was the greatest activity in his
interim employment. The record shows that he spent 1
week during the backpay period in October 1977 on the
island of Hawaii. There was no showing that he looked
for interim part-time employment while on the island of
Hawaii. Accordingly, it is found that this 1-week period
in 1977 was a temporary removal from the labor market
during which he lost his eligibility to receive backpay.
See Gary Aircraft Corp., 210 NLRB 555 at 557 (1974).
Because this trip to Hawaii occurred during a period of
time when backpay was tolled, there shall be no addi-
tional offset.
Kama's testimony was unclear on when he took a
second vacation on the island of Hawaii. He could not
recall when he made the visits to Hawaii, but he did go
in 1979 for a weekend when his niece got married. This
trip to the island of Hawaii is found to be a temporary
removal from the labor market, for which he lost his eli-
gibility to receive backpay. One week will be offset
during the first quarter of 1979 because Kama testified he
usually went for a week and because the exact extent of
this sojourn is unknown, the usual 1-week vacation will
be assessed. Thus, Respondent's backpay liability should
be reduced by $43.22 in first quarter 1979.
As for those periods Kama was on sick leave from the
Fire Department, as noted above in the discussion relat-
ing to Fonseca, sick leave offsets for short periods of
time must be shown to be warranted. Respondent has
failed to meet this burden of proof. Recognizing that sick
leave ordinarily would raise the inference of temporary
unavailability for interim employment, in this particular
case where actual earnings were utilized in determining
gross backpay, there must be a showing that the request-
ed offsets would not result in double counting. Respond-
ent's failure to indicate that such illnesses indisposed the
individual from performing his interim job, or that this
factor was not already considered in the gross backpay
calculations because the 12-week period may have in-
cluded short periods of illness, requires a finding that
such deductions have not been shown to be warranted. 17
Respondent also raised as an affirmative defense in the
transcript its lack of access to subpoenaed bank records,
asserting this precluded presentation of its case. Kama
was shown a joint savings account signature card for
First Federal Savings and Loan. Respondent's possession
of such records to try to refresh Kama's recollection sub-
stantiates that it received some bank records, as found
above. Respondent did not detail, as noted above, which
bank records it had received. Respondent further asked
Kama questions about his mortgage payments and re-
ferred to material which appeared to be mortgage
records. These documents were not identified nor placed
in the record. It is undisputable, based on the record evi-
dence, at transcript 1491, that Respondent had bank
17 Kama was on sick leave May 6-8, 1977, August 17-21, 1978; Sep-
tember 24-26, 1978; and July 7-11, 1979
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records for some of the claimants that were voluntarily
provided by some banks. This defense has been found to
be without merit.
In sum , it is found Kama should be reimbursed net
backpay of $9166.14, plus interest, as shown in Appendix
F.
g. Ralph Kaui
Kaui was a full-time bus driver for Respondent and
the second most senior driver prior to his unlawful ter-
mination about January 31, 1977. Total net backpay is
claimed in the amount of $20,286.83. This claim includes
undisputed expenses for union dues and mileage.
Respondent asserts several affirmative defenses seeking
to reduce Kaui's total net backpay claim to the amount
of $3555.64. The first assertion in Respondent's brief is
that Kaui failed to make a reasonably adequate job
search for he only applied at MTL Bus Line, prior to
commencing work as a part-time employee for Hawaiian
Transportation, an affiliate of Inter Island Resorts. This
assertion overlooks the undisputed evidence that Kaui
worked as a limousine driver for VSP Tours after he ap-
plied for work as a bus driver with MTL and registered
with the State of Hawaii Unemployment Service. Be-
cause work at VSP did not produce adequate income, he
began work for Hawaiian Transportation in February
1977.
Respondent argues that Kaui's net backpay should be
reduced for he accepted a part-time job in February
without having made an adequate job search for full-time
employment. Citing McCann Steel Co. v. NLRB, 570
F.2d 652 (6th Cir. 1978), and NLRB v. Madison Courier,
505 F.2d 391 (D.C. Cir. 1974). The Board and courts are
cognizant that discriminatees may, and sometimes are, re-
quired to seek and accept "other suitable employment at
somewhat lower rates of pay." NLRB v. Southern Silk
Mills, 242 F.2d 697 (6th Cir. 1957). In determining suit-
ability, various factors must be considered. As noted by
the District of Columbia in NLRB v. Madison Courier,
supra at 405:
[Thhere is some danger in withholding back pay
from a claimant who accepts a lower paying job
without making a completely adequate search for
higher-paying work. If he accepts the lower-paying
job too soon, he may be held to have incurred a
willful loss of income by accepting an unsuitable
position. But if he turns down the lower-paying job,
he may be held to have incurred a willful loss of
earnings by failing to "lower his sights." Conse-
quently , doubts in this area should be resolved in
favor of the claimant.
See also NLRB v. Miami Coca-Cola Bottling Co., 360
F.2d 569 at 575 (5th Cir. 1966). Thus, the initial question
is whether other suitable employment was sought for a
reasonable period of time after the unlawful discharge.
As the court held in McCann Steel Co. v. NLRB, supra at
652, "suitable or substantially equivalent employment"
refers to the nature of the work as well as the number of
hours worked.
Initially, it is noted that Respondent did not show that
the job with Hawaiian Transportation was clearly unsuit-
able. The evidence clearly demonstrates that many of the
jobs in the tour bus industry on the island of Oahu are
filled by word of mouth recommendations. Thus, analo-
gizing Kaui's situation to those who were able to obtain
full-time jobs through word of mouth recommendations
does not establish the availability of such jobs for this
claimant. Akamine and Iho both found full-time jobs
through recommendations and both had Japanese lan-
guage skills which may have been the basis for their ob-
taining that employment almost immediately after their
unlawful discharges. Unrefuted is Kaui's testimony that it
is the usual practice in the tour bus industry to com-
mence employment at the bottom as a part-time driver,
and work up through the different categories which are:
part-time driver, junior driver and full-time driver. Also
unrefuted and unquestioned was Kaui's assertion that all
three driver categories are paid the same rate, and that it
is possible for a part-time driver to call in and work 6 or
7 days a week, earning as much or more than full-time
drivers.
Kaui was discharged by Rainbow while working as a
tour bus driver and found interim employment as a bus
driver, albeit, part time and lower in seniority. Under the
facts of this case, Respondent has failed to show clearly
that Kaui failed to accept a suitable position. There was
no demonstration that any other available job would
have been more appropriate for Kaui, given his particu-
lar job skills or lack of a particular language skill. There
was no evidence that he was offered a position with a
tour bus company as a full-time employee which he
failed to accept . Accordingly , this assertion is found to
be without merit.
Kaui had to be available for work at Hawaiian Trans-
portation 6 days a week and accepted all work offered.
The number of days he had to be available for work may
have limited his opportunities to seek other employment.
After Hawaiian Transportation temporarily laid him off,
he began looking for work elsewhere. Kaui eventually
found work at Hawaiian Scenic Tours in December 1977
and continued working for that company until it ceased
operations in December 1980. Kaui then went back to
work at Inter Island Resorts (a/k/a Hawaiian Transpor-
tation Company), which eventually was called Gray
Line Tours. In December 1980 he left Gray Line to take
a full-time position with the city and county of Honolulu
in the Parks and Recreation Department . During the
times when he was laid off by the bus companies, he reg-
istered for work at the State Employment Service, went
to the Teamsters Union and made applications at Pepsi-
Cola as a truckdriver, a trucking company called CPM
& F, the Waikiki Trade Center, Hawaiian Airlines, Ha-
waiian Telephone, Young Laundry as a truckdriver, and
Foremost Dairies. He often referred to the computer list-
ing of jobs at the State Employment Office because he
lived nearby, and telephoned in response to jobs adver-
tised in the want ad section of the newspaper.
These actions are found to constitute a reasonably dili-
gent search for interim employment . That the claimant
experienced several periods of layoff due to lack of busi-
RAINBOW COACHES
ness supports his claim that there was no more suitable
employment available. At one juncture, while working
for Hawaiian Scenic, he was elevated to the position of
full-time driver and then, due to lack of business, re-
duced to a junior position. These facts refute Respond-
ent's contention that Kaui could have found a full-time
position or that the failure to fmd such a job indicates
lack of diligence.
There was no evidence that Kaui willfully worked
fewer hours than offered during the backpay period. Re-
spondent argues that in a personnel action form, dated
April 25, 1980, Hawaiian Scenic Tours changed Kaui's
position from regular driver to junior driver effective
April 28, 1980, and surmised that this was probably done
because he failed to make himself available for work.
The basis for this surmise is unexplained in the brief.
However, it is noted that in the same exhibit, Respond-
ent's Exhibit G-16, there is an employment status report
which shows that Kaui last worked June 26 and was
temporarily laid off July 2, 1980, for lack of work. Thus,
Respondent's inference appears effectively refuted by its
own exhibit demonstrating that shortly after his change
in status, Kaui was laid off for lack of work. The person-
nel action form also indicated that there was a reduction
in the number of hours he worked since his change of
status, further supporting a conclusion that he was made
a junior driver due to lack of work and his seniority
ranking with the Company.
Apparently after the backpay period ended, Kaui did
not make himself available for work and was discharged
from the Hawaiian Scenic Bus Company on November
24, 1980. The dismissal notice stated the basis for the
action was that the employee "did not make self avail-
able for work." There was no testimony on what that
particular action meant or the circumstances surrounding
it. This evidence regarding events subsequent to the
backpay period was not shown to be reflective of any
actions during the backpay period which would warrant
the drawing any adverse inference. There is no conten-
tion that he quit.
Discharge from interim employment is not a willful
loss of earnings. Even assuming arguendo that Kaui was
shown to have been responsible for his discharge subse-
quent to the termination of the backpay period, this find-
ing did not demonstrate willful loss of earnings during
the backpay period. Respondent's exhibit demonstrates
that Kaui's hours were greatly reduced. This dimunition
in work rendered his employment not substantially
equivalent to his job at Rainbow, and Respondent did
not show that he had incurred an obligation to retain
such employment. The greatly reduced hours the record
shows Kaui worked could arguably demonstrate that the
job was unsuitable and thus he had no obligation to
retain it See Keller Aluminum Chairs Southern, 171
NLRB 1252 (1968); Waukegan-North Chicago Transit Co.,
235 NLRB 802 at fn. 4 (1978), which states:
A discriminatee does not have to accept a job
with more onerous terms and conditions of employ-
ment. The obligation to mitigate an employer's
backpay liability requires only that the claimant
accept such substantially equivalent employment.
195
The Lakeland offer involved a wage rate less than
one-half that which Hook enjoyed with Respond-
ent. Acceptance of the Bums offer would have re-
duced his wages by approximately one-third. In ad-
dition, with respect to the weekend work required
by Bums, the Board held that a discriminatee is not
required to accept employment on a different shift
from a job from which he is discharged. The Rich-
ard W. Kaase Company, 162 NLRB 1320 (1967).
The individual who had a regular schedule of work, as
Kaui did with Respondent, similarly would not have to
retain employment when he had to be available 6 days a
week and only received a few days' work per pay
period. A failure to retain such a job would not be con-
strued as a willful loss of income.
Respondent notes that several paystubs were missing
from Kaui's records. Kaui's wife kept most of his pays-
tubs and prepared their income tax forms. Kaui was as-
signed to work for two movie companies and his earn-
ings records differed from his recollection. This matter
was never clarified and there was no official from the
employer, Hawaiian Scenic, or its affiliates, either ARA
or Leeward Bus Company, that would indicate that his
poor recollection was otherwise indicative of an intent to
deceive or defraud. An equally reasonable explanation is
that one of the jobs was compensated in a regular pay-
check from his employee, Hawaiian Scenic, and the
other was just not properly recalled and did pay substan-
tially less than he remembered . Other missing paystubs
are considered to be subject to the same reasoning ap-
plied to the claimants' lack of accurate or complete rec-
ordkeeping , discussed above . These missing stubs, as well
as the failure to keep accurate or complete records, has
not been shown to be of such a nature as to abrogate or
reduce Respondent's obligations to this or any of the
other claimants.
Respondent asserts that various vacations and days off
for illness should be offsets, with the exception of a
period from May 15 to August 31, 1978. On May 15
Kaui broke his clavicle in a motorcycle accident and was
disabled until September 1, 1978. Respondent's Exhibit
G-11, page 24, shows that he received some reimburse-
ment in the amount of $1864.80 for the period May 22 to
September 1, 1978. The record copy of this document
does not note the issuer of this payment nor the purpose
of the payment. Respondent argues that it was a tempo-
rary disability payment and, as such, should be credited
as an interim earning . Respondent did ' not indicate who
was the issuer of the payment nor did it get an explana-
tion of the nature of this payment. This may have been
an insurance benefit which would have been encom-
passed in lost fringe benefits or collateral benefits not
properly offset. Medline Industries, 261 NLRB 1329
(1982).
Vacations and illnesses have not been shown to be
proper offsets. The term "backpay" is a term of art en-
compassing not only wages but also any accompanying
pension, health, welfare, or similar fringe benefit pay-
ments or contributions which have long been character-
ized as integral parts of the employer's overall wage
structure. See NLRB v. Strong Roofing Co., 393 U.S. 357,
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
358-360 fn. 4 (1969); NLRB v. Rice Lake Creamery Co.,
365 F.2d 888, 892 (D.C. Cir. 1966); Inland Steel Co., 77
NLRB 1 at 4-5 fn. 13 (1948), and cases cited, enfd. 170
F.2d 247 (7th Cir. 1948), cert. denied 336 U.S. 960
(1949). Inasmuch as backpay is intended to make em-
ployees whole, it is well established that it may properly
include any fringe benefit payments or contributions
which, but for the unfair labor practice found in the un-
derlying proceeding , would have been earned or gar-
nered by the affected employee along with their wages.
NLRB v. Strong, id. Respondent provided vacation and
sick leave benefits to full-time employees, including
Kaui. Respondent has failed to demonstrate that, except
for the disability period occasioned by the motorcycle
accident, the vacation and sick days this claimant took
during the backpay period would not have been included
in his benefits if he had remained an employee of Rain-
bow. Accordingly, Respondent's request that the days
Kaui was on vacation or sick leave, with the noted ex-
ception, be deducted from his net backpay has not been
shown to have merit and is denied.
As to the moneys received from the motorcycle acci-
dent, the Board noted in Canova Moving & Storage Co.,
261 NLRB 639, 640 (1982), affd. 708 F.2d 1498 (1983):
A controversy has arisen over how much, if any,
of this sum may be offset as interim earnings from
backpay otherwise due Phillips. As the Administra-
tive Law Judge correctly observed, the Board, in
American Manufacturing Company of Texas, [167
NLRB 520 (1967)] held that the workers' compen-
sation payments are deductible insofar as they con-
stitute a payment for wages lost by a discriminatee
during a backpay period; but, to the extent that
such payments constitute reparation for physical
damage suffered, they are, as a collateral benefit un-
related to wages, excluded from the computation of
interim earnings.
Respondent has failed to bear its burden of proof in
showing the nature of this payment. There was no evi-
dence the payment constituted a reparation for physical
damage suffered or was, as claimed, a temporary disabil-
ity payment. Further, Respondent failed to show how,
under the applicable law of the State of Hawaii such
payments are usually treated.
However, as found in the Canova case, id., absent un-
usual circumstances not here present, an employer is not
liable for backpay during periods that an improperly dis-
charged employee is unavailable for work due to a non-
work-related disability. See American Mfg. Co., id. at
522. There was no indication that the disability in this
case was other than temporary and since the doctor cer-
tified a return to work by September 1, 1978, the record
evidence indicates that Kaui was temporarily disabled
and unavailable for work from May 15 to September 1,
1978. Accordingly, backpay will not be awarded for this
period . Respondent argues that the number of days Kaui
was disabled should be multiplied by his daily wage to
determine the offset. However, to do so would permit an
offset greatly in excess of the gross backpay for the same
period. The amount of the offset for this period of dis-
ability will be computed on a proportional basis, or one-
half of the gross pay for the second quarter and one-
third the gross pay for the third quarter of 1978. The
total net pay is reduced to $17,251.24, as reflected in Ap-
pendix G, plus interest.
h. James Louis
The claimed backpay period for James Louis runs
from the time of his unlawful termination, February 1
until July 1, 1977. The total net backpay claimed is
$2952.17. The backpay period for Louis was cut off as of
July 1, 1977, because it became apparent to the General
Counsel that Louis was devoting so much of his time to
the pursuit of his own business that from July 1 forward
that he was unavailable for work as a part-time employ-
ee. Louis had worked for Respondent as a part-time em-
ployee while retaining full-time employment with the
city and county of Honolulu in its refuse department.
Like Fonseca, Louis returned to work at Rainbow Tours
after the strike ended.
Respondent has several affirmative defenses. Initially,
Respondent notes that Louis returned to Rainbow as a
part-time driver after his unlawful discharge, arguing
Louis' resignation on April 17, 1977, from Rainbow's
employ was essentially voluntary and was not followed
by a diligent job search or with the prospect of other
similar employment, constituting a willful loss of income.
It is uncontroverted that Respondent failed to reinstate
Louis under terms and conditions consonant with the
Board's order in the underlying proceeding. When Louis
returned to Rainbow's employ, he was admittedly in-
formed by Kolt that he was to be treated like a new
driver, start from the bottom of the seniority list, and be
subjected to an evaluation course to qualify as a tour bus
driver. As noted in discussing Fonseca's reinstatement
and subsequent resignation from employment at Rain-
bow, improper reinstatement does not toll the running of
the backpay period. See S. E. Nichols of Ohio, 258
NLRB 1 (1981), and cases cited therein. Also similar to
Fonseca, it is found that Louis was constructively dis-
charged. Contrary to Respondent's assertion that Board
Agent Talkin determined, after investigation, that Louis'
hours were no different after his reinstatement from
before, she testified that such similarity only existed con-
cerning 1 month, March 1977.18 As Respondent's Exhib-
it H-2 demonstrates, there was a general dimunition in
Louis' income after his reinstatement. Also uncontrovert-
ed is Louis' testimony that he left because there were
cliques,19 his hours of employment began diminishing,
his income dropped, and he was given less desirable as-
signments and less desireable equipment. Inasmuch as
these changes in income and job assignments are directly
attributable to his unlawful discharge, it is concluded
that his leaving Respondent's employ without having an-
other job was not a willful loss of earnings.
18 At Tr. 2082, Talkm stated that there were similarities in the hours
"only with regard to March "
19 There was no attempt to investigate whether this reference to
cliques indicated there was harassment by any supervisory personnel or
others who might be construed as agents of Respondent.
RAINBOW COACHES
It is noted that Louis had a class III state of Hawaii
drivers license which did not qualify him to drive tour
buses. It is unclear whether Rainbow knew that he did
not qualify as a tour bus driver under the licensing pro-
cedures of the State. In an application Louis filed with
Respondent, he stated he had a class IV license. There is
no indication whether Respondent required its drivers to
present the proper license on a periodic basis for its
review to ensure fitness to drive. Louis' class III license
only authorized him to drive 12-passenger vans. He
always had a class III license. There was no record evi-
dence whether the Company had knowledge of this
falsehood or lack of proper qualifications during the
backpay period. There is no basis to find those actions
bar recovery of backpay. Louis started his employment
with Rainbow in 1967 or 1968 and was one of the most
senior part-time drivers. This failure to have the proper
drivers license has not been shown to be relevant to any
of the issues in this proceeding, save credibility. It is in-
credible that an individual drove a bus for approximately
10 years without the proper license and it is equally in-
credible that a company employed such an individual
without knowing he did not have a proper license. Re-
spondent did not claim to have knowledge of this failure
during the backpay period or at any other time which
would warrant tolling backpay.
Respondent next asserts that after Louis left Rainbow's
employ, he failed to engage in a reasonably diligent job
search which would act as a bar to receipt of backpay.
Louis applied for work at two gas stations and Freeman
Security, as well as attempting to start his own business.
Louis was unclear when he applied for jobs with other
potential employers, including Hawaiian Holidays, Dia-
mond Parking, American Express, Liberty House, McIn-
erny, and B & C Trucking, while trying to start his own
businesses, including a nursery business which would
rent plants to various businesses, a lunch truck, and a
used-car selling service called "Sell It Yourself." Re-
spondent indicates that Louis had no experience in run-
ning a business and his inept efforts to become self-em-
ployed should not be construed as a diligent job search.
As found in Heinrich Motors, 166 NLRB 783 at 783
(1967), "That self-employment is an adequate and proper
way for the injured employee to attempt to mitigate loss
of wages hardly requires citation." Louis' inexperience in
running his own business does not alter established law
Louis testified that he had partners in these endeavors.
Respondent failed to ascertain who these partners were
or whether they had the requisite experience to increases
his chances of success Respondent thus has failed to
bear its burden of proof.
Respondent claims that Louis was placed on leave
without pay from his job at the refuse department be-
tween February and April 1977 because he was suffering
from psychological stress. This claim is not a clear re-
flection of the record. The records of the city and
county of Honolulu indicate that Louis was placed on
leave without pay because he failed to provide a chest
X-ray. See Respondent's Exhibit H-21. It is noted that
Louis continued working for Respondent during this
time . There was no indication that he was suffering from
psychological stress or other illness rendering him unfit
197
to drive a tour bus. The records of the city indicate that
his failure was solely based on his not meeting medical
requirements prescribed by the city. As deputy corpora-
tion counsel for the city and county of Honolulu Char-
lotte Duarte testified, at 659 of the transcript, the city
stopped Louis from driving but this would not preclude
him from driving on another job as long as the employer
was not the city. Although Louis mentioned that he suf-
fered from depression due to family problems and finan-
cial difficulties, there was no showing that such depres-
sion occurred during the two quarters of his backpay
period or was of such quality and nature to preclude him
from working for Respondent or any other employer.
Louis subsequently returned to driving for the city and
county of Honolulu. The record evidence does not show
that he was unable to work at interim employment
during the backpay period. Consequently, it is concluded
that Respondent has failed to bear its burden that his ad-
mitted psychological stress affected his availability for
work during the backpay period.
Respondent contends that backpay should not accrue
for those days that Louis took sick leave, funeral leave,
and vacation time. As to vacation time, there was no
showing that he was unavailable for work with Respond-
ent when he took vacation time from his full-time em-
ployment with the city and county of Honolulu. The
sick leave he took during February, March, and April,
while still employed with Respondent, was not shown by
Respondent to have impaired or prevented his working
for them. The only interim earnings recorded during the
backpay period were with Rainbow, and Rainbow would
have all leave records indicating whether he did or did
not work those days. During the backpay period when
he was no longer employed by Rainbow, Louis took sick
leave from the refuse department May 17-19 and on
June 21 for an industrial injury. As indicated above, Re-
spondent failed to show whether occasional sick days
were or were not already included in the gross backpay
calculations. Respondent has the obligation to prove
mitigation and must initially show whether such sick
leave is a proper offset under the circumstances of this
case and not a double counting. It has failed to do so.
Louis' forms were returned to the NLRB blank, failing
to mention some job applications he later testified about.
This action does not show a failure to conduct a reason-
ably diligent job search. Respondent had all the informa-
tion available to it prior to its examination of Louis and
there was no claim at the time of such examination that
further time was needed in order to prepare its case.
Louis exhibited confusion as a witness, admitting at the
time that the documents were submitted to him for com-
pletion that he suffered from a depression which impact-
ed adversely on his ability to complete them accurately,
and there were several patent errors in the portions he
did fill out, including the claim that he worked for Rain-
bow through September 1977. This confusion does not
constitute a basis for offsets. Louis applied to tour-related
companies such as American Express and Hawaiian Hos-
pitality. He also sought jobs in related fields such as driv-
ing trucks for two department stores. He also consulted
the want ads in the newspapers and checked job avail-
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ability at the State Employment Service . It was only
after July 1, 1977, that there was no showing of any ef-
forts to continue searching for part-time employment in
addition to his full-time job at the refuse department with
the city and county of Honolulu . There is no evidence
indicating that these representations are false or other-
wise unusable . It is found that Louis made reasonable ef-
forts to mitigate his loss of income during the backpay
period . Aircraft & Helicopter Leasing Co., 227 NLRB 644
and 646 (1976).
Accordingly , it is concluded that Louis is entitled to
total net backpay of $2952. 17, exclusive of interest.
i. Ronald Sai
Sai was a part-time employee of Respondent working
full time for the Fire Department. Net backpay is
claimed from February 12, 1977, to October 18, 1980, in
the amount of $15,995.25. Following his unlawful dis-
charge, Sai sought employment at several bus companies
including Polynesian Adventure and Polynesian Hospi-
tality. Eventually, in March 1977, he was hired as dis-
patch manager at Charley's. Sai resigned this position in
June 1977 and became an ordinary dispatcher. Shortly
thereafter he resigned employment at Charley's without
having another job available.
Respondent asserts that Sai's resignation as dispatch
manager and eventual departure from Charley's consti-
tutes a willful loss of earnings of a nature which would
terminate their backpay obligations. Respondent does not
dispute Sai's assertion that while working as dispatch
manager for Charley's he had to work more than 40
hours a week, greater than the 20 hours a week he usual-
ly had to work for Respondent. There is no basis to dis-
credit Sai's assertion that he had to work much longer
hours as dispatch manager than he did as a part-time
driver for Rainbow. Also uncontroverted is Sai's asser-
tion that dispatchers earn much less than bus drivers. As
noted in the discussion of claimant Kaaiai, quitting an in-
terim position does not necessarily constitute a willful
loss of earning.
The issue is whether Sai's actions were for justifiable
personal or other reasons. Shell Oil Co., 218 NLRB 87
(1975). When an employee has a "moonlighting" job, a
second job from which he is discriminatorily discharged,
it is found that having to work an additional 40 hours or
more a week at the interim job engendered too difficult a
pattern of life and was "unsuitable" interim employment.
See Lozano Enterprises, 152 NLRB 258 (1965); John S.
Barnes Corp., 205 NLRB 585 (1973); Winn-Dixie Stores,
170 NLRB 1734, 1744 (1968); Artim Transportation
System, 193 NLRB 179, 183 (1971). See also Phelps
Dodge Corp. v. NLRB, 313 U.S. 177, 197-200 (1941).
Once Sai became an ordinary dispatcher, the job had
such limited remuneration that he was justified in quit-
ting to seek employment other than as dispatch manager.
See Shell Oil Co., supra, 218 NLRB at 90. See further
NLRB v. Madison Courier, 505 F.2d 391 at 397-398
(D.C. Cir. 1974). Respondent has failed to show that the
dispatcher's job at Charley's was substantially equivalent
employment . See NLRB v. Mastro Plastics Corp., 354
F.2d 170 at 174 fn. 3 (2d Cir. 1965), and McCann Steel
Co. v. NLRB, 570 F.2d 652 (6th Cir. 1978).
After leaving Charley's in the second quarter of 1978,
Sai secured a job at a trucking firm, Ray's Express. He
worked there from June 14, 1978, to January 31, 1980.
This job ended because of lack of work. The record is
unclear whether he was laid off or was never recalled
due to lack of work. There was no showing that he quit
Ray's Express , only that business exigencies ended the
need for his services. Respondent argues that certain
comments made by Sai during its taking of his deposition
indicated that he did not want to work after February 1,
1980. To place the deposition statements in context, they
are quoted as follows:
Q. Do you know where [a picket] worked? Was
he a driver for Hawaiian Scenic?
A. No.
Q. Did you get the feeling he was a guy who
maybe did some movie jobs, or was a friend of Rut-
ledge's, was an old long -time member of the Union?
A. Yes. I think he was working for Hawaii Five-
0.
Q. Now, after you've worked for Charley's and
Ray's Express, what brought about the fact that
you stopped working, apparently stopped working,
parttime?
A. I'm rich. I don't need any more money. I just
got a big raise.20
Q. Is that the real reason, or you just got tired of
working two jobs?
A. Yes, I got tired of working two jobs.
See Respondent's Exhibit 1-17, pages 19-20.
The deposition was taken on August 7, 1979, a time
when Sai was working for Ray's Express, and he contin-
ued working for that employer part time until the end of
January 1980. This fact gives credence to his testimony
that his answer was an attempt at sarcasm. He admitted-
ly was tired of working two jobs, but needed the income
as demonstrated by continuing his "moonlighting" work.
His intent in making this comment was not explored in
the deposition. Considering his previous reference to
Hawaii Five-O and Respondent's knowledge that he was
working two jobs at the time the questions were asked, it
is concluded that Sai's characterization of the comment
as sarcasm is the most credible interpretation.
After Sai stopped working at Ray's in January 1980,
he did not work part time for any other employer until
the end of that year. He sought employment with Poly-
nesian Adventure Tours, Polynesian Hospitality, and
Citywide Transportation or Trucking, either after he left
Ray's or while he was working at Ray's. It is found that
seeking part-time employment at only two companies
during an 8- to 9-month period does not show reasonable
diligence; and therefore he should not be awarded any
backpay for the second, third, and fourth quarters of
1980.
Respondent next asserts that it should not have to pay
for those days when Sai was on vacation or sick leave or
was disabled . In 1977 Sai took sick leave on January 9,
20 There was no showing that he got a big raise or a raise of such a
nature and quality as to give credence to this particular statement
RAINBOW COACHES
February 14, March 31, August 13, October 17 and 19,
and December 17. In 1978 Sai took sick leave from his
fireman's job on February 4, March 21, April 8, May 3,
and October 30 and was disabled because of oral surgery
May 20-29. In 1979 he took sick leave from his fireman's
job on January 8 and 10, May 18, June 19, and July 16
and 29. He also hurt his back and was off from his Fire
Department job from March 3 to 29. Since it is found
that he was not entitled to backpay after he left Ray's
Express, his leave record for the rest of 1980 is not perti-
nent.
As found above, an occasional day of sick leave from
full-time employment has not been shown by Respondent
to warrant an offset since such occasional illnesses might
have been already factored into the calculation of gross
backpay. A different situation obtains regarding the back
injury. Unfortunately Respondent did not ask Sai any de-
tails about the nature and extent of the back injury nor
was any representative of the Fire Department or the
city and county of Honolulu asked any questions about
what the Fire Department's policy is regarding placing
individuals on leave for injuries so that one could equate
inability to perform duties as a fireman with an inability
to perform duties as a tour bus or truckdriver. This fail-
ure is Respondent's and all doubts must be resolved in
favor of the claimant.
Similarly, the oral surgery that warranted his taking
sick leave from his fire department job from May 20 to
29, 1978, was not shown to be equally disabling from en-
gaging in activities such as a tour bus or truck driver.
No questions were asked about the nature of the surgery
or what standards the fire department has for safe job
performance or any other points of comparison to permit
the inference Respondent now seeks to draw without
any record evidence.
Respondent failed to indicate whether these injuries
were unrelated to either his part-time or full-time em-
ployment. The record is devoid of any evidence regard-
ing how the back injury occurred or what led to the
needed dental work. Disabilities incurred during and in
the course of interim employment are not proper offsets.
Accordingly, it is found that such periods of disability
were not shown to be proper offsets against gross back-
pay.
The various vacation days from the fire department
when it was not shown that Sai was unavailable for in-
terim employment will not be offsets. Sai stated that be-
tween 1977 and 1980 he engaged in fishing trips every 2
months on a friend's boat. There was no indication that
this activity differed from when he was employed at Re-
spondent and therefore not already considered in the
computation of backpay. Those trips, however, when it
was clearly shown that Sai was off the island of Oahu
and not available for work, such as a trip that he took to
the island of Molokai from September 2 to 5 and to the
contiguous 48 States, thence to Canada, from September
5 to 15, returning to the State of Hawaii from September
18 to 29 to bury his father, are found to have been peri-
ods of time when he was not looking for work and as
unavailable for interim employment. These vacations are
offsets . Sai was not available for employment from Sep-
tember 2 to October 1977 which requires a one-third re-
199
duction in his gross backpay for that quarter, in the
amount of $569.63.
Respondent , while examining Sai, again raised the
issue of lack of pretrial discovery. Respondent also re-
newed its request for subpoena enforcement against the
State Employment Service to discern the basis for his de-
parture from Charley's. Respondent was informed that a
representative of Charley's was present at the trial as
well as the claimant. Charley's may have had firsthand
documentation and knowledge of the matter, and failure
to question them did not raise an issue sufficient to war-
rant a modification of the ruling regarding the enforce-
ment of the subpoena against the State. Respondent also
noted, in an offer of proof on page 918 of the transcript,
that it received copies of Sai's bank statements and
copies of his mortgage statements and checking account
from two different institutions as well as material from a
credit union. Again, it is difficult to discern what, if any,
information Respondent was unable to get from the
banks to warrant its request for reopening the proceed-
ing.
In sum, it is concluded that Sai is entitled to a total net
backpay of $11,182.34, plus interest , as set forth in Ap-
pendix I.
j. Henry Sanford
Sanford's backpay period runs from February 1, 1977,
to October 18, 1980. The commencement and termina-
tion dates of the backpay period are not in dispute. San-
ford was a full-time employee with Respondent. He was
Rainbow's most senior tour bus operator. Sanford ap-
plied for employment with Gray Line and was hired as a
part-time driver. Sanford also applied for work with Re-
spondent but was told he would only be hired on a part-
time basis.
Gray Line was also known as Hawaii Transportation.
Sanford applied at Gray Line because he was unem-
ployed, 54 years' old with a son in college, and was a
tour bus driver since 1967. Respondent contends that by
taking the first employment opportunity offered, a part-
time job, and not looking for a full-time position thereaf-
ter, Sanford willfully incurred a loss of income and failed
to make a diligent search for alternative employment.
Applying the standard announced in Aircraft & Helicopter
Leasing Co., 227 NLRB 644 at 646 (1976), it was shown
that Sanford sought work within a reasonable period of
time of his discriminatory discharge and accepted a part-
time job when no full-time position was offered by Re-
spondent or other potential employers. Respondent only
offered him part-time work. The claimant was not shown
to be trained to perform any other work but that of op-
erating a tour bus and was of an age and had family obli-
gations which necessitated the speedy procurement of
work. There was no showing that he refused to take any
other positions or that any other jobs were offered to
him that would have provided greater earnings. The
record in this case establishes that Gray Line made the
distinction between full-time and part -time drivers in cer-
tain nonsalaned benefits and gave full-time drivers a 40-
hour guarantee of work, but there was no showing that
by assuming this position Sanford knowingly or willfully
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed to mitigate loss of income. On the contrary, he
knew there was a potential to work his way up in senior-
ity and become a full-time employee , thus gaining secure
employment with sufficient remuneration to meet family
and other obligations.
The backpay specification, Appendix J, clearly indi-
cates that after 1977, Sanford's course of action did real-
ize interim earnings almost equal to the income he would
have received if he had not been unlawfully discharged
by Respondent . There was no indication that embarking
on a different course of action would have provided
greater mitigation . The record does not show willful in-
currence of loss of earnings , a clearly unjustifiable refusal
to take desirable new employment or other actions that
could be described as not constituting a reasonable effort
to mitigate loss of income.
Respondent next notes that Sanford had experienced
layoffs during his employment with Gray Line and that,
because he did not seek other employment during such
periods of layoff, it was a willful failure to mitigate. San-
ford testified that he did not seek other employment be-
cause he was still working for Gray Line. There was no
showing that during these periods of layoff there were
other jobs available or offered that he refused to accept.
There was no evidence adduced regarding the nature of
the layoff, what type of information he received, or
whether he had any knowledge that the layoff would be
other than of short duration. Respondent did call a rep-
resentative of Gray Line who appeared and testified, but
no evidence regarding what type of information, if any,
the claimant received about the layoffs was adduced.
One layoff lasted from July to September 22, 1977,
and then he was again laid off December 4 and may
have been recalled December 12, 1977. There was no
evidence that the economic downturn impacting Gray
Line was not also decreasing the need of other bus com-
panies for employees or that it would be fruitful or rea-
sonable for him to seek employment elsewhere. There is
no evidence he should have known the layoff would be
so long . Given the nature of the tour bus industry in
Hawaii as reflected in this record, it appears that there
were fairly regular periods of layoff of short duration.
The summer and fall of 1977 may have been such a
period. There was no indication Sanford could not rea-
sonably anticipate quick reinstatement nor of any other
factor that should have caused him to seek other em-
ployment. Whether Sanford would have lowered his in-
terim earnings by seeking employment elsewhere and
losing the seniority he had established at Gray Line was
not a matter placed in evidence . Accordingly, it cannot
be found that his failure to seek other employment, given
the nature of the tour bus industry, his age, and his lack
of job skills other than as a tour bus operator can be con-
strued as a willful loss of earnings or an unreasonable
failure to mitigate such loss. On the contrary , Sanford's
ability to earn almost the same income after the first year
by working for Gray Line that he would have earned
had he not been unlawfully discharged tends to support
his decisions regarding the most reasonable manner of
mitigation.
As noted above, claimants ' obligation to make a rea-
sonable search for similar employment cannot be applied
without consideration of the total circumstances involved
in each proceeding and the particular attributes of each
claimant . We consider a claimant's actions in seeking em-
ployment years after these decisions are made in an his-
torical context that can only be inferred from the record
evidence . In this case, those employees who readily
found full-time employment as tour bus drivers with
other companies had Japanese language skills . There was
no showing Sanford was similarly skilled . It is undis-
puted that the tour bus companies hired on the basis of
personal recommendation or word of mouth. There was
no showing that Sanford had sufficient contacts or rec-
ommendations to procure other employment . Also, there
was no sufficient description of the operations of Gray
Line compared to the other tour bus companies operat-
ing in Hawaii that indicated there was a reasonable po-
tential that further searches for employment would have
resulted in greater mitigation.
Once Sanford found a potentially long-term position
with opportunity to become a full-time driver, layoffs
prioi to attainment of senior full-time positions does not
require he leave that position and obtain a new job, pos-
sibly with lower seniority and lower pay. There was no
evidence about the working conditions at Gray Line
which could be considered relevant in determining the
reasonableness of his job search . His job search did result
in the expeditious acquisition of employment. See NLRB
v. Tama Meat Packing Corp., 634 F.2d 1071, 1073 (8th
Cir. 1980). The decision in Tama Meat Packing Corp.,
244 NLRB 1052 (1979), also refused to speculate about a
claimant 's particular actions . Respondent has the obliga-
tion to reduce, if not eliminate, the need for such specu-
lation and has failed to do so in this case. It is concluded
that Sanford made an honest and good-faith effort to
obtain suitable interim employment given his background
and experience.
Respondent further argues that Sanford's leave record
at Gray Line indicates that he was unavailable for work
on a number of days due to illness or vacations. Re-
spondent failed to show that these were proper offsets
against gross backpay since Sanford , as a full-time em-
ployee of Rainbow, was entitled to vacation leave as
well as sick pay. Sanford was compensated for a broken
wrist that temporarily disabled him. This was apparently
an industrial accident. There was no showing that Re-
spondent would not have similarly compensated him nor
that it should be considered a proper offset.
The only offset allowable for Workers' Compensation
payments is where temporary disability payments are
given as a substitute for lost wages under applicable state
law. There are differences among the States . Respondent
did not contend that under Hawaiian law compensation
was given as a substitute for lost wages. The record is
unclear in this proceeding on whether the benefits or
payments received by Sanford are deductible insofar as
they constitute payment for wages lost by a discrimina-
tee during a backpay period rather than a reparation for
physical damage suffered, thus a collateral benefit unre-
lated to wages and excluded from computation of interim
earnings. Respondent did not ask for any time to investi-
gate the matter even though the testimony about this
RAINBOW COACHES
injury was given prior to the 6-week recess in the pro-
ceeding.
Sanford was incapacitated from September 20 to Octo-
ber 2, 1980. There was no showing by Respondent that if
he remained in its employ he would not have been com-
pensated as a full-time employee for this period of inca-
pacitation. Since this could have been a benefit he would
have received from Respondent, it is not properly con-
sidered as an offset to gross backpay. See Canova Moving
& Storage Co., 261 NLRB 639 at 640 (1982). Because Re-
spondent failed to bear its burden of proving mitigation,
all doubts must be resolved in favor of the claimant;
these offsets will not be allowed.
It is concluded that Sanford should receive total net
backpay of $10,279.23, plus interest.
THE REMEDY
For the reasons described above, I find that Respond-
ent's obligations to the discriminatees herein will be dis-
charged by the payment to them of the respective
amounts set forth in the appendices annexed hereto. Such
amounts shall be payable, plus interest on those sums, in
the manner provided in F. W. Woolworth Co., 90 NLRB
201
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962).21
Respondent, Rainbow Coaches, Inc., Honolulu,
Hawaii, its officers, agents, successors, and assigns, shall
make the employees involved in this proceeding whole
by payment to them of the following amounts, together
with interest as set forth in the remedy section of this de-
cision, and continue until the amounts are paid in full,
but minus tax withholdings required by Federal and state
laws:
Simeon Agao, Jr. $7,321.18
Michael Akamine 1 , 663.18
Miles Fonseca 18,421.76
Yukio Iho 1 ,687.57
Lane Kaaiai 14,963.76
Eric Kama 9 ,166.14
Ralph Kaui 17,251.24
James Louis 2,952.17
Ronald Sai 11,182.34
Henry Sanford 10,279.23
Paul Uwata -0-
21 If no exceptions are filed as provided by Sec. 102 46 of the Board's Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the
Rules and Regulations , the findings , conclusions, and recommended Board and all objections to them shall be deemed waived for all pur-
poses
APPENDIX A
Claimant: Simeon Agao Jr.
Year
i
Qtr. GrossBackpay
Interim
Earnings
Deductible
Expenses
Net Interim
Earnings Net Backpay
1977 .............................................................................. I $2,491.52 1$822.37 2$15.00 $807.37 $1,684.15
II 3,810.56 33,492.58 0 3,492.58 317.98
III 3,810.56 33,094.02 0 3,094.02 716.54
IV 3,810.56 32,543.68 0 2,543 68 1,266.88
1978 ........................................................................... 1 3,810.56 33,949.05 0 3,949.05 0
II 3,897.08 33,112.96 0 3,112.96 784.12
III 3,933.33 33,276.55 0 3,276.55 656.78
IV 4,003.50 34,073.07 0 4,073.07 0
1979 ...................................................................... 1 4,061.46 34,024.48 0 4,024.48 36.98
II 4,097.51 34,554.95 0 4,554.95 0
III 4,155.19 34,975.34 0 4,975.34 0
IV 4,155.19 33,467.56 0 3,467.56 678.63
1980...... I 4,456.72 34,656.16 0 4,456.16 0
II 4,625.92 34,178.55 0 4,178.55 447.37
III 4,625.92 34,175.09 0 4,175.09 450.83
IV 1,067.52 3795.60 0 795.60 271.92
1 Robert's Hawaii Tours, Inc.; Royal VSP Services.
2 Mileage, telephone calls.
3 Robert's Hawaii Tours, Inc.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Claimant: Michael Akamine
APPENDIX B 6 Charley's Tours & Transportation, Inc., Casual construction
work.
7 Casual construction work.
APPENDIX D
Year Qtr. Gross Interim NetBackpay Earnings Backpay
Claimant : Yukio Iho
1977 .................. I $2,326.62 1$776.48 $1,550.14
II 3,558 .36 14,763.96 0 Year Qtr. Gross Interim NetBackpay Earnings BackpayIII 3 ,558.36 13,445.32 113.04
IV 3,558.36 14,192.62 0
1978 .................. I 3,558.36 14,779.60 0 1977 .................. I $2,465. 85 1$825 .48 $1,640.37
II 3,640.92 14,839.10 0 II 3,771.30 14,440.62 0
III 3,675.48 15,616.18 0 III 3,771.30 13,724.10 47.20
IV 3,785.76 15,454.17 0 IV 3,771.30 14,460.16 0
1979 .................. I 3,789.76 14,820.46 0 1978 .................. I 3,771.30 14,693.52 0
II 3,827.16 15,656.70 0 II 3,858.66 14,262.10 0
III 3,887.00 16, 111.56 0 III 3,895 .30 15,308.68 0
IV 3,887.00 15.397.78 0 IV 4,019.92 15,739.16 0
1980 .................. I 4,174.52 16,629.90 0 1979 .................. I 4,024.80 14, 846.96 0
II 4,335.76 15,833.70 0 II 4061.20 15,685.50 0III 4,335.76 16,214.40 0
III 4,119.44 169403.90 0IV 1,000.56 21,243.80 0
IV 4,119.44 15,480.70 0
Total Net Backpay ............................................ $1,663.18 1980................. I 4,424.10 16,538.14 0
II 4,595.11 15,898.70 0
1 Robert's Hawaii Tours, Inc. III 4,595.11 16,403.40 0
THIRD AMENDED APPENDIX C
IV 1.060.41 11,269.69 0
Claimant : Miles Fonseca
Year Qtr. Gross Interim NetBackpay Earnings Backpay
1977 .................. I $1,067.26 1$652.93 $414.33
II 1,632.38 2483.45 1,148.93
III 1,632.38 2298.00 1,334.38
IV 1,632. 38 2216.00 1,416.38
1978 .................. I 1,632.38 4577.15 1,055.23
II 1,670.92 2666.25 1,004.67
III 1 ,682.70 4795.20 887.50
IV 1,701.96 4513.13 1,188.83
1979 .................. 1 1,701.96 5360.86 1,341.10
II 1,701.96 547.90 1,654.06
III 1 ,701.96 6473.19 1,228.77
IV 1,701.96 7416.66 1,285.30
1980 .................. 1 1,771.28 7416.66 1,354.62
II 1,840.93 7416.66 1,424.27
III 1 ,840.93 7416.66 1,424.27
IV 283.22 764.10 21912
Subtotal ........................................................... $18,381.76
Union dues .................................................................. 40.00
TOTAL NET BACKPAY ............................. $18,421.76
1 Rainbow Coaches, Charley's Tours & Transportation.
2 Charley's Tours & Transportation, Inc.
2 Greyhound.
4 Greyhound, Charley's Tours & Transportation, Inc.
5 Charley's Tours & Transportation.
Total Net Backpay ............................................ $1,687.57
1 Robert's Hawaii Tours, Inc.
AMENDED APPENDIX E
Claimant : Lane Kaniai
Year Qtr. Gross Interim Net
Backpay Earnings Backpay
1977 ................. I $993.48 $0 $993.48
II 1,519 .44 0 1,519.44
III 1,519.44 0 1,519.44
IV 1,519.44 0 1,519.44
1978 .................. I 1,519.44 0 1,519.44
II 1,557.72 0 1,557.72
III 1,569.39 0 1,569.39
IV 1,588.47 0 1,588.47
1979 .................. I 1,588.47 0 1,588.47
II 1,588 .47 0 1,588.47
III 0 0 0
IV 0 0 0
1980 .................. I 0 0 0
II 0 0 0
III 0 0 0
IV 0 0 0
Total Net Backpay ............................................ $14,963.76
RAINBOW COACHES 203
SECOND AMENDED APPENDIX F SECOND AMENDED APPENDIX F-Continued
Claimant : Eric Kama Claimant : Eric Kama
Year Qtr. Gross Interim NetBackpay Earnings Backpay
1977 .................. I $1,233.01 $0 $1,233.01
II 1,885 .78 '474.40 1,411.38
III 1,885.78 0 0
IV 1,885.78 0 0
Gross Interim Net
Backpay Earnings Backpay
II 2,143.18 21,094.26
1,048.92
III 2, 143.18 21 ,273.23 869.95
IV 412.15 '119.53 292.62
1978 .................. I 1,885.78 '286.08 1,500.70 Subtotal .............................................................. $8,966.14
II 1,933.42 0 0
III 1,947.95 0 0 Union dues ..................................................................... 200.00
V 1,971.71 1564.21 1,407.50
Total Net Back1979 ............ 1,971.71 11,034. 51 883 .98 paY ............................................ $9,166.14
II 1,971.71 11,305.48 666.23
III 1,971.71 11,897.80 91.91
V 1,971.71 1229.28 1,672.43 ' Charley's Tours & Transportation, Inc.
1980 ............. I 2,057.28 21,061.47 995.81 2 Charley's Tours & Transportation, Inc.; Robert' s Hawaii
21,094.26
Tours, Inc.
1,048.92
21,273.23 869.95
AMENDED APPENDIX G
Claimant : Ralph Kaui
Year Qe>: GrossBackpay
Interim
Earnings
Decuctible
Expenses
Net Interim
Earnings Net Backpay
1977 ................................................................................. I $2,554.34 '$1,633.46 2$34.50 $ 1,598.96 $955.38
II 3,906.63 93,144.48 437.50 3,106.98 799.65
III 3 .906.63 91,431.13 437.50 1,393.63 2,513.00
IV 3,906.63 63,293.51 437.50 3,256.01 650.62
1978 ................................................................................ I 3,906.63 65,144.70 439.00 5,105.70 0
II 3,997.11 62,342.42 439.00 2,303.42 0
III 4,035.09 7787.96 439.00 748.96 1,941.23
IV 4,164.12 74,729.77 439.00 4,690.77 0
1979 ................................................................................. I 4,169.23 65,335.21 439.00 5,296.21 0
II 4,206.93 63,846.90 439.00 3,807.90 399.03
III 4,267,25 64,277.98 439.00 4,238.98 399.03
IV 4,267.25 84,891.87 439.00 4,825.87 0
1980 ................................................................................. 1 4,582.91 82,826.47 48.00 2,778.47 1,804.44
II 4,760.08 81,589.31 448.00 1 ,541.31 3,218.77
III 4,760.08 9542.32 448.00 494.32 4,265.76
IV 915.40 8255.31 4800 243.31 672.09
Total Net Backpay ................................................................................................................................................................ $17,251.24
' VSP Tours, Interisland Resorts.
2 Union dues, mileage.
' Interisland Resorts.
4 Union dues.
6 Interisland Resorts , ARA Services.
6 ARA Services.
7 ARA Services, Columbia Pictures.
8 ARA Services, Hawaiian Secic Tours.
Hawaiian Secic Tours.
Year Qtr.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED APPENDIX H
Claimant : James Louis
Year Qtr. Gross Interim NetBackpay Earnings Backpay
1977 .................. I $ 1,653 .76 '$1,137. 37 $516.39
II 2,529.28 193.50 2,435.78
Total Net Backpay .......................................... $2,952.17
' Rainbow Coaches.
SECOND AMENDED APPENDIX I
Claimant: Ronald Sai
Year Qtr. Gross Interim NetBackpay Earnings Backpay
1977 .................. I $1.116.22 '$331.76 $804.46
II 1,707.16 12,250.00 0
III 1,707. 16 1140 .25 997.34
4569.53
IV 1,707.16 1354.87 1,352.29
1978 .................. I 1 ,707.16 1371.95 1,335.21
II 1,750.24 2269 .30 1,480.94
III 1 ,763.35 9425.25 1, 338.10
IV 1,784.77 91,400.00 384.77
1979 .................. I 1 ,784.77 9777.00 1,007.77
II 1,784.77 91,565.38 219.39
III 1,784.77 91,585.50 199.27
IV 1,784.77 91,288.00 496.77
1980 .................. I 1,862.28 9306.25 1,556.03
II 0 0 0
III 0 0 0
IV 0 0 0
' Charley's Tours & Transportation, Inc.
9 Charley 's Tours & Transportation , Inc.; Ray's Express.
9 Ray 's Express.
4 Offset for unavailability.
AMENDED APPENDIX J
Claimant : Henry Sanford
Year Qtr. Gross Interim NetBackpay Earnings Backpay
1977 .................. I $2,622.34 '$1,230 .03 $1,392.31
II 4,010.63 12,703.09 1,307.54
III 4,010.63 1317.92 3,692.71
IV 4,010.63 12 ,669.61 3,692.71
1978 .................. I 4,010.63 13 , 964.81 45.82
II 4,101 .11 13,192.37 908.74
III 4,139.09 14, 570.98 0
IV 4,268.12 13,450.50 817.62
1979 ................. 1 4,273.23 13,875.78 397.45
II 4,310.93 14,413.87 0
III 4,371.25 16, 296.27 0
IV 4,371.25 15,236.39 0
1980 .................. I 4,686 .91 15,140.43 0
II 4,864 .08 15 ,535.84 0
III 4, 864.08 14, 918.52 0
IV 929.40 1553.38 376.02
Total Net Backpay ........................................... $10,279.23
' Grey Line.
Total Net Backpay ............................................ $11,182.34