C-F Air Freight, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 481 (N.L.R.B. 1985)

C-F 'AIR FREIGHT
C-F Air Freight; Inc. and Local • Union 851 ; Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America.. Case
29-CA-586024 September. 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN'DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 29 June 1984 Administrative Law Judge
Arthur A. Herman issued the attached supplemen-
tal decision. The Respondent filed exceptions. and a
supporting brief,' and the General Counsel filed an
answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings,2 and' conclusions3 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , C-F Air
Freight, Inc., Queens, New , York, its officers,
agents, successors , and assigns, shall take the action
set forth in the. Order.
1 The Respondent has requested oral argument . The request is demed
as the record,. exceptions, and briefs adequately present the issues and the
positions of the parties
2 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 reversmg
the findings.
8 We agree with the judge that no deductions should be made from
Michael Lynch's backpay for the I 1 July through 1 August 1977 3-week
period immediately after his discharge during which he did not seek em-
ployment , but we agree only for the following reasons . It is well settled
that a discriminatee need not seek work instantly. The test is whether on
the record as a whole the employee has diligently sought employment
during the entire backpay period. LT.O Corp. of Baltimore, 265 NLRB
1322 (1982), A S. Abell Co., 257 NLRB 1012, 1015 (1981 ), Saginaw Aggre-
gates, 198 NLRB 598 (1972). We find Lynch has met this test In addi-
tion, we note that during the 3-week period in question Lynch spoke to
Sal DeLuca, a friend in the air freight industry, about possible employ-
ment
Patricia McM. Bartels, Esq., for the General Counsel. ,
Herbert Burstein, Esq., and Randy L. Levine, Esq. (Zelby
& Burstein), for the Respondent.
SUPPLEMENTAL DECISION
481
STATEMENT OF THE CASE
ARTHUR A. HERMAN,'Administrative Law Judge. On
January 18, 1980, the National Labor Relations Board
issued its Decision and Order' in the -above-entitled pro-
ceeding in which-it directed, inter alia , that Respondent,
C-F -Air Freight, Inc., its officers, agents, successors, and
assigns, reinstate and make whole certain employees for
losses resulting from Respondent's unfair labor practices,
violations of Section 8(a)(1) and (3) of the National
Labor Relations Act. On September 17, 1980, the United
States Court of Appeals for the Second, Circuit entered
its judgment2 enforcing in pertinent part the Board's
Order, i.e., its backpay provisions. On October 7, 1980,
the United States Court of Appeals for the Second Cir=
cuit denied Respondent's petition for a rehearing. And,
on March 30, 1981, the Supreme Court of the United
States denied Respondent's petition for a writ of certiora-
n.
A controversy having arisen over the amounts of
backpay due under the terns of the Order, the Regional
Director for Region 29, on June 30, 1982, issued and
duly served upon Respondent a backpay specification
and notice of hearing alleging the amounts of backpay
due under the Board's Order, and notifying Respondent
that it should file a timely answer complying with the
Board's Rules and Regulations. Respondent duly filed its
answer and ' an amended answer and, on the issues thus
joined, the matter was heard by me at Brooklyn, New
York, on May 31, June 1, and September 21, 1983.3 At
the hearing, the parties were represented by counsel and
were given full opportunity to examine and cross-exam-
ine witnesses, to present evidence, and to file briefs.
On my observation of the witnesses, and on due con-
sideration given to the contentions and arguments con-
tained in the briefs filed by the General Counsel and Re-
spondent's counsel, and on the entire record in the case,
I make the following
FINDINGS OF FACT
I. THE ISSUES
1. The date the backpay period ended.
2. Are the discriminatees entitled to backpay for the
amount of overtime hours as alleged in the backpay
specification?
3. Are the discriminatees entitled to backpay based on
possible wage increases they would have received had
they continued working as alleged in the backpay specifi-
cation?
4. Did the -discriminatees. incur a willful loss of earn-
ings so as not to entitle them to the backpay amounts as
stated in the specification?
5. Is Michael Lynch entitled to the travel expenses as
alleged in the backpay specification?
1 247 NLRB 403 (1980).
2 Docket No 80-4050
3 Respondent's counsel became seriously ill during the lunch recess on
June 1, and the hearing could not continue until September 21.
276 NLRB No. 62
482- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE TOLLING OF THE BACKPAY PERIOD
Although the parties agree that the backpay period
began on July 11, 1977, they differ as to the termination
date. The backpay specification alleges that the backpay
period ended on October 31, 1980. Respondent disputes
this allegation and states that the backpay period termi-
nated on October 24, 1980. It is undisputed that the four
discriminatees Michael Lynch, Gene Reichardt, Mildred
Sipolino, and Marguerite Sommese, were sent uncondi-
tional offers to reinstatement on October 24, 1980, allow-
ing them 10 days from the date of the offer to report for
work, and requesting that they'telephone Respondent as
to their availability. The General Counsel contends that
the backpay period does not end on the day the offer is
made but that the discriminatees are allowed a reasona-
ble time to consider whether to return to Respondent's
employ. Respondent contends that its backpay liability is
tolled from-the day of the offer.
- I find merit in the General Counsel's. contention. The
law is clear that a discriminatee is entitled to a reasona-
ble period of time in which to consider a reinstatement
offer.4 It is equally well settled that the backpay period
is tolled either on the date of actual reinstatement,5 or on
the date of rejection of the offer,6 or-in the case of dis-
criminatees who did not reply, on the date of the last op-
portunity to accept the offer of reinstatement.7 Thus, in
the. instant" case, since the backpay claimants were given
10 days from the date of the offer to report for work,
and the' General Counsel's backpay specification con-
tends that' the backpay period ended only 7 days after
the date of the offer of reinstatement, I reject Respond-
ent's contention, and I conclude that the backpay period
was tolled on October 31, 1980.8
III. THE OVERTIME HOURS
Although Respondent does not dispute the backpay
specification when it alleges that each of the discrimina-
tees worked a regular 40-hour week, it does dispute the
weekly overtime hours of three of the four discrimina-
tees that are-alleged, (par. II(c) of the specification v. par.
4 of the amended answer).9
The General Counsel, through the compliance officer,
established that the overtime hours stated in the specifi-
cation 'were based on each discirminatee 's work record
for the 6 months immediately preceding the unlawful dis-
' Freehold AMC-Jeep 'Corp, 230 NLRB 903 (1977); Lane Aviation'
Corp, 226 NLRB 575 (1975) -
7; S,Laabs Inc, 128 NLRB 374 (1960)
° American Mfg Co. of Texas, 167 NLRB 520 ( 1966).
7 Eastern Die Co , 142 NLRB 601 (1963), enfd 340 F 2d 607 (1st Cir
1965)
8 See Southern Household Products, 203 NLRB 881 (1973)
The following chart is a comparison of the two contentions regard-
ing the overtime hours per week for each of the claimants-
charge which were culled from Respondent 's computer
printouts (G.C. Exh 2). Respondent , although admitting
in its amended answer that an appropriate measure of the
discriminatees ' overtime hours is the average of-each
claimant 's overtime hours worked during the 6 months
prior to July 11, 1977, offers no evidence to refute the
General Counsel 's figures other than to state that its data
establishes the figures as shown above . Inasmuch as my,
calculations coincide with those of the General Coun-
sel's, I find that the overtime -hours per week listed; in the
backpay specification are correct , and shall be used along
with the regular hours per week as the basis for comput-
ing backpay - due the discriminatees.
IV. THE , INCLUSION OF POSSIBLE WAGE INCREASES IN
THE BACKPAY CALCULATIONS
Generally speaking, there are two elements to be con-,
sidered in order to arrive at the appropriate formula to
figure gross backpay. The first element relates to the
number of hours the claimant would have worked. The
second element relates to the claimant's rates of pay
during the backpay period. Inasmuch-as I have already
disposed of the first element in section C, supra, I shall
confine my discussion to the second element.'
The General Counsel contends that because there was
no pattern.of wage increases granted to clerical employ-
ees based on either a collective-bargaining agreement or
a past practice of Respondent, the claimant's rate of pay
should be- measured- against the wage experiences of
other clerical employees similarly situated. And so, the
General Counsel alleges in the backpay specification that
as of January 1, 1978, Lynch's hourly rate of pay would
have been $5.25, and Sipolino's and Sommese's would
have been $5;10 that as of January 1, 1979, Lynch would
have been paid at the rate of $5:875 an hour, and Sipo-
lino's rate of pay would have been $5.625;11 and, that as
of January 1, 1980, Lynch's rate of pay would have been
$8.75, and Sipolino's would have been $8.50. The Re-
spondent contends that since no general wage increases
had been granted during the backpay period, and that all
increases given were based strictly on ment, citing its
own "C-F Air Freight Guide" manual [R . Exh. 11, p.
113-"Merit Increases"], there is no way of knowing
whether any of the claimants would have received. in-
creases during the-backpay period, and therefore, they
should be denied the increased rates of pay assigned to'
them in the backpay-specification.12
In furtherance of her contention the General Counsel
requested and was-'given information from' Respondent
concerning wage increases given to comparable employ
ees during the backpay period.13 According to these
Backpay Specification Respondent's Answer
Lynch 10 - 10
Reichardt 11 10
Sipolino 3.5 3
Sommese 11 10
10 No backpay is claimed for Reichardt after the third quarter of 1977
i i No backpay is claimed for Sommese after the first quarter of 1978
12 Respondent 's amended answer does admit, however, that the hourly
rates pay in effect on July 1, 1977 (the approximate date of Respondent's
refusal to reinstate the claimants), was as follows Lynch-$4 25, Rei-
chardt-$5625, Sipolino-$4, and'Sommese- $4 (See par II(d) of the
complaint and par 5 of Respondent's answer )
13 See G C Exhs 4 and 13-16
C F AIR FREIGHT
records Respondent in 1977 employed in addition to
four claimants four other employees on a regular basis
and three on a part time basis Of these 11 employees
only I (Mercun) received a raise in 1977 from $4 per
hour to $5 per hour and that occurred in the 44th week
of the year The records for 1978 indicate that only 2 of
the 11 employees continued to work for Respondent 14
in addition to 2 new employees Dann and Pohlig Hand
ville continued to receive the same salary he was given
in 1977 ($4 per hour) until the 21st week when his rate
of pay was raised to $5 this continued until the 47th
week when his pay went to $5 625 an hour Mercun s
pay remained the same $5 per hour Dann started at
$5 625 an hour but received a raise in the 36th week to
$6 25 Pohlig s records show that he started working for
Respondent in the 32d week of 1978 and was paid $5 75
an hour for the entire year The 1979 records show that
Mercun was dropped from the payroll and two employ
ees were added-Sincoff on a regular basis and Dalessio
as a part time employee Smcoff started in the 12th
week and was paid $5 per hour until the 49th week
when his rate of pay was raised to $7 50 Dalessio re
ceived $4 per hour and worked from the 42d week to
the end of the year Dann s salary and Handville s salary
remained the same throughout 1979 Of the employees
who worked in 1978 only Pohlig s salary changed in the
6th week of 1979 when his rate of pay went to $6 20
and in the 49th week it went to $8 75 At the beginning
of 1980 Handville s rate of pay jumped to $8 50 Dann s
to $8 15 for the first 2 weeks and then to $8 63 in the 3d
week Pohlig s and Sincoff's salaries remained the same
as they were at the end of 1979 In addition four new
employees were hired in 1980 on a regular basis and
their rates of pay are as follows
Bradfield $8 15
DeMartini 7 50
Franco 7 50
Holick 7 50
Three others were hired on a part time basis Melillo and
Tucci were paid $5 per hour and Weinberg received
$7501b
My analysis of these records reveals the fact that in
each instance in which a full time employee had re
mained in the employ of the Respondent for more than 1
year that employee received an increase in his or her
rate of pay Specifically stated Handville started in 1977
and received $4 per hour by 1980 Handville was receiv
ing $8 50 per hour Mercun worked only in 1977 and
1978 but his rate of pay went from $4 to $5 Darn start
ed in 1978 at $5 625 an hour and by 1980, he was getting
$8 63 Pohlig also started in 1978 at $5 75 an hour and
in 1980 was getting $8 75 In addition it should be noted
that new full time employees hired in 1980 received a
starting rate of pay $7 50 an hour or better Moreover
the evidence is unrefuted that each of the claimants per
formed his or her services for Respondent in an exempla
483
ry manner and was never disciplined or found to per
form his or her tasks below standard This would appear
to satisfy therefore the standards required by Respond
ent in its manual (cited supra) in order to grant ment in
creases to the employees inasmuch as the manual pro
vides for increases even to those who only perform their
jobs in a satisfactory manner Actually in Sipolino s
case she received an evaluation in May 1977 having
been employed by Respondent since March 1976 and
was recommended for a raise 16 Of the 10 factors consid
ered in her evaluation Sipolino received five excellent
ratings three above average and two average Rei
chardt stated that he started with Respondent in Decem
ber 1975 and had received two increases in his rate of
pay while working here 17
Board precedent tells us that discnminatees are enti
tled to receive in backpay what they would have earned
had they remained in the employers employ less their in
team earnings The instant record is clear that but for
the unfair labor practices of Respondent the discrimina
tees would still be working for Respondent and would
be receiving the comparable increases in wages that
other clerical employees similarly situated were getting
Therefore I reject Respondents assertion that there was
no guarantee that the claimants would have received in
creases While the Respondents records appear to reflect
a diversified pattern of wage increases rather than a gen
eral across the board type of increase they do establish
the fact that all employees retained on Respondents pay
roll in excess of a year received increases in their rate of
pay Although there is no formula that could fix the
rates of pay the claimants should receive during the
years 1978-1980 I do find that the rates of pay suggest
ed by the General Counsel in the backay specification
are reasonable As was stated in International Trailer Co
150 NLRB 1205 1207 (1964) If uncertainty exists as it
frequently does it results from the employer s illegal
conduct and should be resolved against the company
rather than against the victims of the discrimination
And as the U S Court of Appeals for the Eighth Circuit
stated in NLRB v Brown & Root 311 F 2d 447 452 (8th
Cir 1963) In solving the problems which arise in back
pay cases the Board is vested with a wide discretion in
devising procedures and methods which will effectuate
the purpose of the Act Furthermore Respondent has
produced no evidence whatsoever to challenge the
amounts alleged by the General Counsel in the backpay
specification Under the circumstances I conclude that
the rates of pay offered in the specification are fair and
reasonable and I shall use those rates of pay as part of
the formula in determining what amount of backpay if
any is due the discrimmatees after I have examined the
facts and arguments infra, regarding their interim earn
ings
I
'* Handville and Mercun
16 Beginning with the 43d week of 1980 Weinberg worked on a full 15 See G C Exh 6
time basis for the rest of the year but did not receive an increase in his 17 Neither Lynch nor Sommese worked long enough for Respondent
rate of pay to be evaluated
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V DID THE DISCRIMINATEES INCUR WILLFUL LOSSES
OF EARNINGS DURING THE BACKPAY PERIOD
Initially it should be stated that the finding of any
unfair labor practice and discriminatory discharge is pre
sumptive proof that some backpay is owed by the em
ployer 18 and that in a backpay proceeding the sole
burden on the General Counsel is to show the gross
amounts of backpay due-the amount the employees
would have received but for the employers illegal con
duct 19 Once that has been established the burden is
upon the employer to establish facts which would nega
tive the existence of liability to a given employee or
which would mitigate that liability 20 It is not suffi
cient however that the employer simply aver that there
was much work available during the backpay period
Such a claim must be supported by evidence 21 And the
employer must show that if the discrimmatees had ap
plied for work they would have been hired 22 Also a
discriminatee is not required to apply for each and
every possible job that might have existed in the Indus
try 23 Moreover as the Board stated in United Aircraft
Corp 204 NLRB 1068 (1973) the backpay claimant
should receive the benefit of any doubt rather than the
Respondent the wrongdoer responsible for the existence
of any uncertainty must be resolved In addition it
should be noted that while it is the Board s stated pnnci
pie that a discriminatee who accepts appropriate employ
ment at lower pay should not be penalized and required
to seek employment at a higher wage 24 the discnmma
tee is equally not required to accept employment which
is not at least the same or better than the work from
which he had been discnminatonly discharged
Having enunciated the legal principles I shall now uti
lize those principles in my examination of the evidence
regarding each of the discriminatees
Michael Lynch Lynch was hired by Respondent in
September 1976 as a domestic night rating agent He
had no prior experience for this work It was his job to
check a tariff book to figure out what to charge Re
spondent s customers based on the shipment s weight and
destination In addition Lynch dispatched drivers to van
ous airlines to pick up freight Previously while at col
lege Lynch worked part time for the telephone compa
ny as a clerk and prior to working for Respondent he
was an educational assistant with the New York City
Board of Education As stated above the backpay period
began on July 11 1977 In accordance with prior plans
Lynch was married on July 23 1977 and went on a 1
week honeymoon until the end of July Admittedly he
did not look for a job between July 11 and August 1
1977 On returning from his honeymoon he sought and
received a job with the telephone company in early Sep
tember 1977 While at the telephone company he re
18 NLRB Y Mastro Plastics Corp 354 F 2d 170 178 (2d Cir 1965)
cert denied 384 U S 972 (1966)
18 Mastro Plastics Corp 136 NLRB 1342 1346 (1961)
10 NLRB Y Brown & Root 311 F 2d 447 454 (8th Cir 1973) See
P h e l p s D o d g e C o r p Y NLRB 313 U S 177 198-200 (1941)
21 McLoughlin Mfg Corp 219 NLRB 920 922 (1975)
22 Champa Linen Service Co 222 NLRB 940 942 (1975)
23 Madison Courser 202 NLRB 808 814 (1973)
24 Sioux Falls Stock Yards 236 NLRB 542 570 (1978)
ceived an offer to be a busdnver for the N Y C Transit
Authority 25 and so he left the telephone company vol
untanly in October to accept employment as a busdriver
At the same time he supplemented his income by being a
substitute teacher in the Island Park School District and
he registered there for permanent work Lynch worked
as a busdnver for about 2 months and then voluntarily
left to take full time employment as a teacher in Island
Park in December 1977 In September 1978 at the start
of a new school year Lynch was told that because of a
reduced enrollment of students he would only teach part
time To supplement his income he taught homebound
students At the same time he applied once again for a
job with the telephone company and he sought employ
ment as a teacher in several school distracts and with
teacher employment agencies Finally in May 1979
Lynch got a job teaching special education at Flushing
High School in New York City where he is presently
employed
Respondent argues (1) that Lynch did not seek em
ployment between July 11 his date of discharge and
August when he returned from his honeymoon (2) that
Lynch did not contact other air freight companies for a
job and (3) that he voluntarily left two jobs without
cause and moved from job to job of short duration there
by failing to mitigate his loss of earnings I disagree
Lynch s planned marriage and honeymoon were of great
importance to him and were it not for Respondents ille
gal act on July 11 of discharging him his plans would
have proceeded smoothly To cause him to change these
plans and seek employment during the 3 week period in
question July 11-August 1 would be unconsionable and
is my opinion against public policy The sacred act of
matrimony should not be required to be cast aside for
the sake of mitigating Respondents responsibility for it
is well settled that the wrongdoer should not benefit
from his unlawful conduct at the expense of the
wronged
Second it is not sufficient for Respondent to complain
that Lynch did not seek a job from other air freight
companies As stated above Respondent must show that
if the discnminatee had applied for work he would have
been hired However Respondent presented no proba
tive evidence that there were jobs available or that
Lynch rejected suitable employment Resondent did
present one witness Richard Buchanan who in Re
spondent s opinion is an expert on labor market analysis
and who was called for the purpose of showing the
availability of job opportunities open to the discrimina
tees Although several charts were introduced by Re
spondent through Buchanan (R Exh 13) which provid
ed census data for 1970 and 1980 regarding civilian labor
force and selected occupational categories in the metro
politan area the New York Counties alone and those
proportioned by Respondents empirically derived labor
market I fail to see how any of the figures present aided
Repsondent s position in this case To the contrary it ap
25 It seems that Lynch had taken a Transit Authonty civil service ex
ammation before he went to work for Respondent and that while he was
m Respondents employ he received notification of his ehgibihty but no
job offer
C-F AIR FREIGHT
pears to me that there was a declining labor market
during the 10-year period thereby. making it harder for
the discriminatees to get jobs. Moreover, the fact that
Lynch sought and obtained-work in other fields does not
constitute an unreasonable removal of himself from the
appropriate job. market Lynch had prior experience in
all the three fields that he sought work in, and he pur-
sued those fields because it was his.desire to go-to work
as soon as possible after his honeymoon -
Third, I do not find that Lynch's voluntary leaving of
two jobs constituted a willful loss of-earnings. In the first
instance, Lynch left his telephone company job to work
for the New York City Transit Authority in order to
earn more money. If anything, that reduced the Re-
spondent's responsibility to Lynch.- As for Lynch's leav-
ing the busdriver's job, Lynch testified that he quit be-
cause his schedule, routes, and hours were constantly
changing, and he was immediately going to work as a
full-time teacher; a job for which he had gone to college,
and certainly a step upward in his lifelong career. As Re-
spondent has failed to, show that Lynch neglected,, to
make a good-faith search for employment after. his un-
lawful discharge, or that he willfully incurred losses of
earnings , I find that Michael Lynch is entitled to the
entire amount stated in the •backpay specification,
namely, $28,247.26 ,
Gene Reichardt: Respondent's backpay claim is limited
to the period from July 11; to September 30, 1977. Prior
to coming to work for Respondent as a billing clerk, in
December 1975, Reichardt was a New York City police
officer who was laid off during the city's fiscal crisis in
1975. Shortly after Respondent discharged him, Rei-
chardt received an offer of a position with the New
York City Department of Corrections, and advising him
to report for work on 'August 8, 1977. Reichardt took
the job and has been with the Department of Corrections
ever since. Respondent contends that Reichardt. made no
effort to secure employment between July 11 and August
8, 1977, and thereby incurred a willful loss of earnings.
Inasmuch as the evidence established that Reichardt re-
ceived an offer of employment approximately I week.
after he was unlawfully discharged and began work on
August 8, I find that he was under no obligation to seek
employment between that date-and August 8, merely to
benefit the wrongdoer. Accordingly, I find that Rei- -
chardt is entitled to the backpay amount as specified,
$2376.
Mildred Sipolino: According to General Counsel Ex-
hibit 6, Sipolino began working for Respondent on
March 15, 1976,-at $4 per hour.27 Her initial position
was that of administrative secretary. However, about a
month and a-half before. her unlawful discharge, Sipolino
became a customer service clerk and,-as a stated above,
was recommended for a raise to $4.63 per hour. Sipblino
credibly testified that between July 1977 and April 1978,
she sought employment at various companies located in
and around Kennedy Airport by contacting friends, em-
26 This figure is inclusive of the travel expenses awarded Lynch See
infra, sec F.
, 27 Her extrapolated average weekly earnings in 1977, with overtime,
exceeded $175 per week
• 485
ployees, newspapers, and made telephone calls..In addi-
tion, she contacted Local, 851, the Charging Party
herein; she registered for unemployment and was sent ,to
the state job, service but was never referred to a job; and
she contacted various employment agencies to assist her
in getting a ,lob.28, Finally, Sipolino was hired as a book-
keeper by Ark Plumbing in April 1978; she worked for
Ark for 6 months, at which time she was laid off for lack
of work. 'She then resumed her efforts to obtain employ-
ment and was rewarded 2 months later by getting a job
as a trainee 'import freight clerk by Empire Shipping.
This job lasted'about a year when once again Sipolino
was laid off because of economic conditions. However, 3.
weeks later she got a job with MacGregor Squire and
worked there for 6 months until she was laid off. Again,
she sought employment and was hired by RPM Air
Services 3- months later; that job continued throughout
the remainder of the backpay period.
On cross-examination , Respondent elicited the fact that
Sipolino had declined to accept certain jobs because the
salary was too low, referring to wages of between $125
and $170 per week. Respondent contends, therefore, that
this constituted a willful loss of earnings for which Sipo-
lino should be penalized. I disagree. Discriminatees are
not required to lower their sights and accept employ-
ment which is not • substantially equivalent to the work
they were doing.29 And, in Sipolino' s case , I find that
she exerted every effor to find substantially equivalent
-employment. Moreover, Respondent which has the
burden of 'proving that jobs were available to Sipolino
failed to carry its burden to show that she would have
been hired even in those instances where Sipolino felt
the wages were too low. ' Under all circumstances, I find
that Sipolino was diligent in her attempts to find work,
and that Respondent failed to carry its burden of proof
and failed to produce any evidence. to show that Sipolino
was'not diligent. Accordingly, I shall award Sipolino the
full amount ' of the amended backpay -claim , namely,
$25,464.30
Marguerite Sommese: Sommese worked for Respondent
for about a year as an outbound domestic clerk She did
not handle International outbound work for Respondent,
which she described as much more involved and diffi-
cult. Sommese'worked at night by choice,,from 6 p.m. to
2 a.m., plus some overtime hours, because she had to
take care of her brain-damaged child during the day
while her husband' worked. When Sommese_ sought em-
ployment after she was discriminated, against by Re-
spondent, she limited her search to night jobs. Sommese
28 Documentation - of her efforts was received into evidence as G C
Exhs 7, 8, 9, and 10 '
29 Southeastern Envelope Co, 246 NLRB 423, 430 (1979)
30 After the close of hearing, the General Counsel moved to amend
the backpay specification to reflect a change in the amount due Sipolino
This modification was a result of the introduction into evidence by Re-
spondent of its payroll records which established the wage rate increases
referred to, supra, in sec. D Inasmuch as Respondent had ample oppor-
tunity to refute the General Counsel's contention regarding wage in-
creases, and did, in fact , put forth a defense to said contention , I find that
Respondent is not prejudiced by this motition to amend , and I grant the
General Counsel's motion Accordingly, par VI and app C of the back-
pay specification are amended to reflect the correct total due Sipohno,
namely $25,464
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that during her period of unemployment she con
tacted the union hall made phone calls checked the
newspapers kept in touch with people to get leads for
interviews and job openings and visited various employ
ees in the airfreight service business Sommese credibly
testified that despite the fact that she needed a job de
sparately and she sought work constantly and she never
turned down a job she was unable to obtain a job until
April 1978 when she went to work for Profit By Air
and has been there ever since 31
Respondent disputes Sommese s testimony regarding
her efforts at seeking employment because when ques
tioned by Respondent she could not recall the names of
the places she visited As stated above Respondent has
the burden of proving that its liability has been removed
or reduced by establishing facts to show that the discn
minatee has failed to act diligently in seeking employ
ment This the Respondent has not done In its absence
any doubts concerning Sommese s efforts to obtain work
must be resolved against the wrongdoer and in favor of
backpay specification namely $9097
VI MICHAEL LYNCH S TRAVEL EXPENSES
Paragraph IV of the backpay specification alleges and
Appendix A explains that Lynch incurred additional
travel expenses during his interim employment for which
he should be recompensed Paragraph 8 of Respondents
amended answer denies that the expenses were required
asserting that other job opportunities were available to
Lynch and in the alternative that public transportation
was readily available
During a portion of the backpay period Lynch was
employed by the Island Park Union Free School District
in Nassau County and drove his private car to and from
work When Lynch was employed by Respondent he
lived in his parents home in Glendale Queens and also
drove to work a distance of 7 2 miles one way After his
marriage Lynch and his wife lived in Maspeth Queens
a distance of 25 miles one way to Island Park Lynch
credibly testified that traveling by car was more conven
tent and more reliable than public transportation The
latter required Lynch to take a bus to the Long Island
Railroad a daily event in which timing became a factor
The General Counsel therefore introduced evidence to
show that Lynch incurred an additional 30 miles of
travel per day to his interim employment that he would
not have had if he had continued to work for Respond
ent The General Counsel then applied the Internal Rev
enue Service rates per mile for the years 1978 and 1979
to arrive at the exact travel expenses incurred by Lynch
As stated above in section E Respondent did not meet
its burden of establishing that other jobs were available
31 It is interesting to note that Respondents backpay obligation ceased
with Sommese s obtaining this job
to Lynch It is not sufficient for Respondent to merely
state that work was available such a claim must be sup-
ported by evidence and Respondent offered none In ad
dition Respondents claim that Lynch should have used
public transportation has no precedent in our law A dis
criminatee owes no obligation to the perpetrator of the
unfair labor practice to inconvenience himself in his
mode of transportation to interim employment providing
it is not excessive It is sufficient that he obtains comps
rable employment thereby mitigating Respondents obli
gation Travel expenses required for interim employment
which exceed travel expenses to and from Respondent s
place of business are proper items to be set off from in
team earnings 32 Inasmuch as I have reviewed and ac
cepted the travel expense figures presented by the Gen
eral Counsel in the backpay specification I shall award
them as a deduction from interim earnings
VII THE REMEDY
For the reasons set forth above I find that the Re
spondent s obligations to the discrimmatees herein will
be discharged by the payment to them of the respective
amounts found due in the backpay specification as
amended and as set forth below The backpay provided
herein with interest thereon is to be computed in the
manner prescribed in F W Woolworth Co 90 NLRB
289 (1950) and Florida Steel Corp 231 NLRB 651
(1977) 93 minus any tax withholding required by Federal
and state law The names of the employees to whom
payment shall be made and the amounts to be paid plus
interest are as follows
Michael Lynch $28 247
Gene Reichardt 2 376
Mildred Sipolmo 25,464
Margeruite Sommese 9097
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed34
ORDER
The Respondent C F Air Freight Inc Queens New
York, its officers, agents successors and assigns shall
satisfy its obligation to make whole the discriminatees
here involved by payment to them of the amount listed
above and in the manner set forth in the remedy section
of this decision
31 See Richard W Kaase Co 162 NLRB 1320 1326 (1966)
as See generally Isis Plumbing Co 138 NLRB 716 (1962)
34 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations , the findings , conclusions, and recommended
Order shall as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses