293 N.L.R.B. 736 (N.L.R.B. 1989)

Delta Data Systems Corp

National Labor Relations Board - Board DecisionsApr 20, 1989

293 N.L.R.B. 736 (N.L.R.B. 1989)

736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Delta Data Systems Corp and Food Drivers, Help- ers and Warehousemen Employees , Philadelphia and Vicinity and Camden , New Jersey and Vi- cinity, Local 500 a/w International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , AFL-CIO Case 4-CA- 13401 April 20, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND DEVANEY On December 7, 1988, Administrative Law Judge Joel A Harmatz issued the attached supple mental decision The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply 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,' and conclusions Margaret Peak 59,889 52 Barbara C Joseph Esq, for the General Counsel Laurance E Baccint Esq, and Julia McLaughlin Esq (Schnader Harrison Segal & Lewis) of Philadelphia Pennsylvania, for the Respondent SUPPLEMENTAL DECISION JOEL A HARMATZ, Administrative Law Judge On May 30, 1986 the National Labor Relations Board issued its Decision and Order in 279 NLRB 1284, directing the Respondent to make whole Virginia Brandwood, Rose mary James, Florence Martindell, and Margaret Peak, for any loss of pay they may have suffered by reason of their unlawful terminations On June 15 1987 the United States Court of Appeals for the Third Circuit enforced the aforesaid order (See G C Exh 1(C)) Thereafter, the parties ' were unable to agree on the amount of backpay due and, consequently, on February 23, 1988, a backpay specification and notice of hearing was issued setting forth the General Counsel s claim on behalf of each dis criminatee On March 15, 1988 the Respondent filed its initial answer to the backpay specification Pursuant thereto, a hearing was conducted before me in Philadel phia, Pennsylvania, on June 7 and 8, 1988 Thereafter briefs were filed on behalf of the General Counsel and the Respondent 2 I THE ISSUES ORDER The National Labor Relations Board orders the Respondent, Delta Data Systems Corp, Trevose, Pennsylvania, its officers , agents , successors, and assigns, to make whole the employees named below by paying them the amount of backpay set forth opposite their names , plus interest in the manner prescribed in New Horizons for the Retard- ed,2 less tax withholdings required by Federal and state laws Rosemary James 3$13,64987 Virginia Brandwood 79,064 50 Florence Martindell 62,784 04 1 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings Sec B 2 d par 2 of the judge s supplemental decision is corrected to reflect that in September 1984 Martindell was informed that she had to repay some social security benefits This correction does not affect our decision 2 283 NLRB 1173 (1987) Interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US C Â§ 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C Â§ 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 3 The Respondent did not except to the judge s backpay findings re garding employees Rosemary James and Virginia Brandwood There is no dispute concerning the gross backpay due However, the Respondent contests the net amount due the four discriminatees on grounds that each failed to make a reasonable effort to find or retain interim em ployment during all or a portion of the backpay period The Respondent concedes that any diminution of liability depends upon its ability to prove both that suitable em ployment existed and that the claimant deliberately failed to pursue such opportunities (See R Br 14 ) II ALLEGED GROUNDS FOR REDUCING BACKPAY A Job Availability 1 Economic data and expert testimony To establish the existence of suitable alternative em ployment the Respondent places heavy reliance on sta tistical data and generalized opinion testimony As shall i On November 1 1987 the Teamsters International Union was read mitted to the AFL-CIO Accordingly the Unions name has been amended to reflect that change 2 Pursuant to agreement of the parties after close of the hearing the General Counsel moved to reopen the record to enter a stipulation to gether with certain schedules and correspondence from the Pennsylvania Department of Public Welfare itemizing medical expenses sustained by Virginia Brandwood The parties agree that these charges are compensa ble under the terms of the Board s Order The record is reopened for the limited purpose of receiving these documents as follows I Stipulation-Jt Exh 1 2 Amended Appendix to Backpay Specification-G C Exh 10) 3 Virginia Brandwood Appendix 5-G C Exh 1(k) 4 Second Amended Appendix E-G C Exh 1(1) 5 Letter with attached itemized medical charges from Department of Public Welfare to NLRB dated June 21 1988-G C Exh 1(m) 293 NLRB No 91 DELTA DATA SYSTEMS CORP be seen this evidence lacks the specificity necessary to assure that any reduction of backpay be grounded on facts which reflect the conditions facing the discrimina tees during the backpay period The Respondents prof fer and the arguments based thereon have been evaluated in light of the Board's recent pronouncement in Lundy Packing Co, 286 NLRB 141, 142 (1986), as follows It is well settled that the reasonableness of a dis cnminatee s efforts to find a job and thereby miti gate loss of income resulting from an unlawful dis charge need not comport with the highest standard of diligence, i e, he or she need not exhaust all pos sible job leads Rather it is sufficient that the discri minatee make a good faith effort The existence of job opportunities by no means compels an infer ence that the discnminatees would have been hired if they had applied The respondents obligation to satisfy its affirmative defense is to show a clearly unjustifiable refusal to take desirable new employ ment Uncertainty in such evidence is resolved against the respondent, as the wrongdoer The Respondent leads off with statistical evidence complied by the Commonwealth of Pennsylvania and the U S Department of Labor All four discriminatees, prior to their unlawful terminations, were generally engaged in the assembly of computer components The data in ques tion here was offered by the Respondent to demonstrate that jobs within the `electronic and electronic equip ment' category steadily increased between 1982 and 1985, only to fall off dramatically in 1986 and 1987 See R Exh 7 This study reflects aggregate figures compiled from five counties in eastern Pennsylvania and three counties in western New Jersey The data fails to distin guish between clerical managerial research, distribution and production jobs Wage scale and specific locations and the time of year when vacancies emerged are left to the imagination These vagaries obviously are too pro found to support any reasonably founded notion regard ing the extent if any, to which the discriminatees had access to substantially equivalent, or for that matter, suit able employment during the backpay period My evaluation of testimony by Edward Murray, a labor market analyst with the Pennsylvania Employment Service, is virtually the same This witness, utilizing job placement statistics compiled since 1984 relates that job orders submitted by employers and filled by the state employment service in the electronic assembler category reflected the following experience Openings Received Openings Filled 1987 471 408 1986 351 283 1985 168 92 1984 92 65 This data was gleaned from a five county area, and hence also lacks geographic specificity It does not in any sense imply that jobs were available for which the 737 discrminatees would qualify or at wage rate levels ap proximating their earnings when unlawfully terminated Arlington Hotel Co 287 NLRB 851, 853 (1987) To further the claim of job abundance, the Respondent also culled advertisements which appeared in the Phila delphia Inquirer during the backpay period Of the 98 placed in evidence (R Exh 15), the Respondent now argues that a diligent claimant would have responded to ads placed by only 13 employers (R Br 11-12 )3 Con sidering the paucity of advertisements tending to resem ble the experience and employment histories of the dis criminatees the newspaper publications fail to imply either that comparable work was plentiful, or that the absence of any response to any particular and was indic ative of a lack of reasonable diligence on their part Ar lington Hotel Co, supra at 853-854 and cases cited at fn 22 The Respondent also presented testimony from Murray Miles, the general manager of Zober Industries, Inc The latter is a manufacturer and vendor of computer parts Other electronics producers, including the Re spondent are among its clients Miles was hired in August 1987, and hence had slight personal knowledge of Zober s hiring experience Thus, testifying essentially from documentation, he related that hiring levels at Zober had increased during the past 6 years (See R Exh 11) More specifically, the payroll data showed only a slight increase in hiring between 1982 and 1985, ranging from 10 to 27 annually In 1986 this figure in creased to 41 and, in 1987, the year in which all discri minatees were finally offered reinstatement by the Re spondent to 124 The underlying documentation is an in exact indicia of job expansion because, being limited to hiring, it does not account for turnover Moreover the wage levels and classifications involved also are unidenti fable Additionally at times material Zobers entry level rate was only $3 50 per hour The utility of this evidence is also weakened by discriminatee Martindell's employ ment at that firm, Brandwood s several contacts with Zober, James interim employment elsewhere, and the fact that Peak also applied at Zober In sum , the generalized evidence offered by the Re spondent is too speculative and imprecise to warrant a departure from the formula set forth in the specification for redressing the unlawful discrimination in this case Suspicion and surmise are no more valid bases [sic] for 9 The evidence does not disclose that the disenmmatees were expen enced with multi layered boards (Flexible Circuits Inc) or that they were classifiable as electronic technicians (E C & P Mosler) that they ever worked with analogue or digital equipment (Community Interactions of Bucks County) that they were familiar with hybrid cir cuits (Brickman Industries) or that they were under a duty to seek any of the jobs listed by C A Spalding Co or Insinger none of which appear to be in the electronics industry The four discnminatees arguably had qualifying experience for jobs listed by Microcom (8/5/84) Tele Dynam ics (8/5/84) Bio Med Tech (12/2/82) and Aydin Controls (1/6/85) Sev eral testified that they actually applied at Aydin Moreover one Marga ret Peak having had 13 years employment with Jerrold Electronics ar guably should have responded to an ad placed by Times Mirror Cable However one could not fairly charge her with knowledge of that listing and in any event there is no basis for concluding that if she had arrived in time to apply she would have been selected for a position See Highv,ew Inc 250 NLRB 549 552 (1980) 738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD decision in a backpay hearing than in an unfair labor practice hearing See Laidlaw Corp 207 NLRB 591 594, enfd 507 F 2d 1381 (7th Cir 1974), Standard Mate pals, 286 NLRB 609, 612 (1987) 2 The duty to lower sights Having rejected the generalized evidence that compa rable employment was available, it is necessary to con sider the Respondents accurate observation that the duty to mitigate has been construed to require discriminatees to lower their sights and accept lesser, but suitable, em ployment The relevance of that doctrine as a means for reducing the offending party's backpay bill was outlined in NLRB v Madison Courier, 505 F 2d 391, 395 (D C Cir 1974), as follows The employee need not search for or accept em ployment which is dangerous, distasteful or essen tially different from his regular job" or which is un reasonably distant from his home [A] possible corollary to the mitigation rule [is] the so called lower sights doctrine Under this doctrine, after being unable over a reasonable time to locate the kind of employment to which he is ac customed, an employee whose family is suffering the strain of unemployment should lower his sights and consider accepting other and suitable employment even at a lower rate of pay than his reg ular job [citations omitted] We pointed out, howev er, that even under the lower sights' doctrine, the employee need not accept employment which is not consonant with his particular skill, background and experience, or which involves conditions that are substantially more onerous than his previous post tion Before evaluating the record in this case it is neces sary to observe that this policy should be cautiously lim iced to clear cases of abuse in order to avoid the possibil ity that wrongdoers be unduly rewarded Thus as a means of reducing net backpay due, the duty to lower sights is fundamentally at war with the accepted pnnci ple that an employee has a duty to mitigate by making reasonable efforts to find new employment which is substantially equivalent to the position from which he was discharged See Iron Workers Local 433 (RPM Erectors), 275 NLRB 1539, 1540 (1985) Moreover, in application, it is a doctrine which does not necessarily take account of realities facing discriminatees, and the nature of choices available to them during the backpay period First, the lowering of sights contemplates judicial pen alty, enforced by hindsight, to question a dischargee s failure to adjust the very nature of a job search The Re spondent states correctly that this adjustment must be made when after a reasonable period of time the claimant is unable to obtain comparable employment See e g , Arlington Hotel Co supra at 854 Yet, the precedent provides little guidance as to what this means One example was discussed in Madison Courier supra as follows [T]he claimants were entitled to confine their search to the industry in which they were pr-manly skilled and would have preferred to work Howev er, when it became apparent that printing jobs were not available in the area the claimants should have broadened the scope of their search and sought suitable employment [elsewhere] 505 F 2d at 402 The unfairness inherent in so vague a standard is corn pounded by the fact that lowering sights forces the victim of illegal discrimination to accept a lower stand and of living See, e g, Richard W Kasse Co 162 NLRB 1320, 1332 (1967) This step might cut off a job opportu nity which lies around the corner, offering greater utili zation of experience, together with compensation at a level which recognizes established skills In fact employ ers have tried to turn this very possibility to their own advantage Thus, in an ironic twist, wrongdoers have been inspired to seek reduction in monetary liability on grounds that a discriminatee's acceptance of a lower paying job occurred too soon See, e g, Rainbow Coach es, 280 NLRB 166, 182 (1986), Lundy Packing v NLRB, 856 F 2d 627 (4th Cir 1988) This dilemma whereby dis criminatees are damned if they do, damned if they don t was addresssed in Madison Courier, supra, 505 F 2d at 405, as follows 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 Consequently, doubts in this area should be resolved in favor of the claimant Until the vagaries are removed this doctrine will con tribute to an anomalous condition which allows lawyers jurists and scholars to debate their understandings of what constitutes a `reasonable period of time " while the victims of unlawful conduct risk penalty if they guess wrong However, even if the test were clearly defined serious questions of fairness would remain For the doc trine contemplates a reduction in backpay triggered by the discriminatee s continuing unemployment This penal ty ensures even though the victim is never solely respon sible for this condition There would be in unsuccessful job search were it not for the lingering lawlessness evi dent in the employers resistance to reinstatement Yet, the wrongdoer's contribution is not only ignored by the lowering of sights doctrine, it is rewarded Because of these infirmities, a duty to lower sights should be acknowledged on only the clearest evidence of abuse No such finding is permissible on this record The Respondent does not spell out just when, how, or why this doctrine matured in any particular case 4 Unlike 4 The Respondent specifically raises the issue only in connection with the claims of Margaret Peak and Rosemary James It concedes that Vir ginia Brandwood lowered her sights and does not mention that any such a duty is relevant in the case of Florence Martmdell As to James the Respondent without explication states that after six months James Continued DELTA DATA SYSTEMS CORP Madison Courier, supra, there was no attempt to show that comparable employment in the electronics industry was unavailable during the backpay period in any of the claimants home areas In fact, the Respondent attempted to prove the opposite Moreover, the Respondent's evi dence fails to identify job vacancies outside the electron ics industry which would constitute satisfactory alterna tive employment under this standard Newspaper adver tisements and employment data which may or may not be geographically relevant, fail to create a likelihood that the claimants might have been hired to fill one or more of these jobs if they had elected actively to seek work outside [their] trade As stated in Kawasaki Motors v NLRB, 850 F 2d 524, 528 (9th Cir 1988) [Respondent s] reliance upon newspaper advertise ments and hiring records is not adequately convinc ing [Respondent] failed to produce evidence of em ployment specifically available or employment offers [the discriminatee] refused to accept In these circumstances, it would be grossly unfair to assume that any existing opportunities would not entail a radical reduction from previously enjoyed wages hours and other conditions of employment, or that any such vacancies would preserve at reasonable levels the degree of physical effort, personal satisfaction and status in the community enjoyed by the discnmmatees prior to their illegal terminations In sum, the contention that any claim involved here ought be reduced by reason of a fail ure to lower sights and seek out less desirable employ ment is unsubstantiated factually and hence is rejected B The Individual Cases 1 Virginia Brandwood The backpay period in Brandwood s case ran from May 17 1982, when Respondent unlawfully terminated her, to July 17, 1987, when she was reinstated The Re spondent contends that Brandwood was guilty of a will ful loss of earnings throughout the entire backpay period, a failure demonstrated by her unwillingness to search diligently for work for which she was qualified despite the availability of such jobs Brandwood, at the time of her termination earned $5 79 per hour She did not possess a high school diplo ma or equivalent She weighed in excess of 300 pounds She credibly testified that when she applied for unem ployment, a representative of the state job service stated that her prospects for employment were not very good (See G C Exh 12) See, e g , Arlington Hotel Co 287 NLRB 851 (1987) Her unsuccessful search for work continued until she was no longer eligible for unemployment compensation She then went on welfare for about a month, until August 29 1983, when she secured a job with Milton Ross, a plastics company In that job, Brandwood ran a mold machine, earning $4 18 per hour had a duty to expand the geographic region of her search of the type of job for which she applied As indicated the precedent does not specify a timeframe in which discnmmatee^ must depart from the search for equivalent work 739 After about a month, she left Milton Ross for medical reasons , having developed a malignancy, which required a hysterectomy Following radiation therapy and a recu perative period of some 6 months, she was able to resume her employment search in June 1984 However she did not obtain employment until June 1987, when she was hired by Aydin Vectors A month later, Brandwood was offered reinstatement by the Respondent The Respondent observes that, while the General Counsel claims $79,064 49 on behalf of Brandwood, her interim earnings were limited to $82049 The Respond ent points to three uncontroverted failures" on Brand wood's part which assertedly substantiate a breach of her duty to make a reasonable effort to obtain interim em ployment First, the Respondent expresses dissatisfaction with Brandwood s efforts to secure work at Zober In dustries The Respondent observes that discnminatee Martindell had obtained a job at Zober, and at several intervals during the backpay period worked there From this, together with the fact that Martindell had main tamed a relationship with Brandwood the Respondent argues that the latter had an obligation to inquire into the availability of work at Zober " It is noted in this con nection that Martindell terminated her employment vol untarily at Zober in 1984, and was not again reemployed until September 1985 Martindell testified that she did inform Brandwood that she had obtained a job at Zober, and that Brandwood came in and took a test, but was not hired Brandwood testified that she applied at Zober and she thought that she had done so in company with Martindell She adds that subsequently she twice was contacted by Zober, but once was already working at Milton Ross and on the second occasion was about to enter the hospital She relates that after her recovery in early 1985 she called Zober, but was told that no work was available In this light, the evidence does not furnish a fair basis for concluding that Brandwood might be charged with any reasonable expectancy that she would have landed a job had she persisted in further applica tions with that firm Second Respondent points to the fact that Brandwood failed to return to her job at Milton Ross following her recovery from the 1983 operation Brandwood explained that she refused to consider that firm because of noxious materials in the air which according to a group leader was asbetos She relates that having just recovered from cancer she feared such exposure Although she did not verify the problem with management she indicates that it was the subject of general discussion among workers who were contemplating the possibility of contacting a Federal agency In this respect the Respondent must prove that Brandwood s concerns were lacking in foun dation Neither the possibility that this might have been so, nor speculation as to the existence of a job vacancy offers cause for reduction of backpay liability For these reasons, Brandwood s failure to reapply at Milton Ross neither tolled, nor otherwise lessened her eligibility for further backpay The third ground on which Respondent challenges Brandwood s entitlement derives entirely from the fact that her interim earnings during the 5 year backpay 740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD penod were nominal amounting to no more than $820,49 Contrary to the Respondent this alone would not itself give rise to a presumption or otherwise estab lish that Brandwood failed to make a reasonable effort to mitigate See, e g Teamsters Local 164, 274 NLRB 909 913 (1985) On the other hand, Brandwood testified that after ter mination by the Respondent, she sought alternate em ployment Records she maintained during the backpay penod support her claim that work was sought with nu merous employers within and outside the electronics in dustry (See R. Exh 9) Moreover, Brandwood testified that these records are not exhaustive as she did not docu ment every contact 5 She relates that while on unemployment and welfare, she participated in training programs designed to develop skills for perfecting job applications, and also that she successfully completed a high school equivalency pro gram She visited the unemployment office on numer ous occasions within each year of the backpay period While obtaining unemployment benefits, she apparently complied with the requirement that she provide the names of four employers with whom she had sought em ployment each week During these periods she was in the unemployment office at least twice monthly to regis ter for job service (See G C Exh 13) On those occa sions, she consulted the bulletin board for leads In sum , on consideration of all the evidence, Respond ent has failed to provide a reasonable basis for conclud ing that Brandwood failed to conduct a reasonable search for work or that under any governing standard, she might be considered as having sustained a willful loss of earnings Accordingly the General Counsels claim on her behalf shall not be disturbed 6 2 Margaret Peak As in the case of Brandwood, the Respondent con tends that Peak failed to make a reasonable effort to obtain comparable full time employment Peak was hired by the Respondent in March 1979 She was discharged in May 1982 Her interim earnings 5 The entitlement to relief from the effects of unlawful discrimination does not depend on keenness of recollection or meticulous recordkeeping The law will not come to the aid of those who incur liability under the Act and seek to diminish it through dissatisfaction with the victim s im precise testimony This is especially so where the passage of time and its dimming effects stem directly from the wrongful refusal to offer timely reinstatement See e g Terpening Trucking Co 283 NLRB 444 446 (1987) 6 Respondents presentation included testimony from Robert Wolfe a vocational specialist who also operates a vocational rehabilitation facility in Southern New Jersey Wolfe s testimony is rejected His opinion as to when Brandwood should have obtained reemployment through a diligent search involved estimates not shown to have been supported by any type of scientific analysis or formulation Moreover Wolfe s qualifica tions fail to suggest that he was in a position to offer a reliable estimate in that regard Finally his deduction was based on a frame reference that did not account for a number of potentially significant variables pertinent to Brandwood s claim including geographics her physical limitations and the relationship between employment that might have been available in the eight county area and that which Brandwood enjoyed while em ployed by the Respondent Wolfe s overall presentation struck as tele scoped to meet the issue at hand rather than an objective deduction ema nating from a body of accepted principles His testimony is given no weight during the entire backpay period totaled $9 447 16 When terminated , Peak earned approximately $5 31 hourly She was 48 years old and did not have a high school diplo ma or its equivalent She was employed by the Respond ent as an assembler , primarily producing cables With respect to her interim job search Peak testified that she could not remember all the places that she sought employment, but did name some She did prepare a partial list of job contacts for the NLRB, probably sometime in 1985 (see R Exh 4) She testified that she went to a lot of places' In February 1983, she regis tered with the unemployment office After an operation and a period of hospitalization, Peak found part time work at Bassetts , a license tag and registration form serv ice apparently operated by relatives She claims that while employed by Bassetts she continued to check her local neighborhood newspaper, the Northeast Times, as well as the Sunday edition of the Philadelphia Inquirer However, in responding to the ads, she found that the available vacancies were too far from her home, particu larly since she did not have a reliable automobile She could not recall a single company that she visited in re sponse to an ad appearing in the Phildelphia Inquirer She asserts that, before her husband passed away in March 1985, but in 1984 while he was sick and out of work she tried to find full time work Peak was able to identify several firms that she contacted or filed applica tions with in 1985 (See R Exh 5 ) At Bassetts Peak worked as a messenger , picking up and delivering titles, auto tags, and application forms from dealerships and other firms involved in automobile title work At the time of the hearing , she was earning $70 for a 3 day week, in which she worked only 3 to 3 1/2 hours daily She claims that she continued to search for work on her days off having applied at more than five locations, she could not recall how many places she actually visited while employed at Bassetts After her husband died Peak also registered at the un employment office but was unable to find work In 1986 and 1987, she obtained partial welfare which required her to maintain her job search through the state employ ment security office Her continuing eligibility for wel fare depended on visits for interviewing at that office every 4 months She complied but never was referred to a job During this period she applied for work at Getter al Machine Co and Zober where other discriminatees had obtained jobs At Zober s, Peak filed an application, was tested, but was never called to work 7 Peak related that her job search was not limited to the electronics industry Ultimately, she left the welfare rolls in anticipation of obtaining full time work with Bassetts a possibility that never materialized The Respondents challenge to Peak s claim strikes as an attack upon the credibility of her job search as she describes it The question is not free from doubt One might easily view Peak s testimony as suggesting that after her husband died she was content with part time 7 Contrary to the Respondent the fact that job vacancies may have been available at Zober is of no significance in her case Having applied at that facility then tested and never called to work Peak could right fully assume that further applications would prove futile DELTA DATA SYSTEMS CORP 741 employment and did not seriously pursue full time work Her decription of her efforts during the ensuing years was vague to the point of suggesting more than faulty recollection However, these misgivings concerning her testimony do not rise above a mere suspicion Certainty is not present to the point to assuring that a reduction of backpay in her case will not create an injustice Consid enng her age, education, experience, and the absence of evidence that full time work for which she qualified was available at rates comparable to what she has earned prior to her unlawful termination, an ambiguity exists, which if resolved against Peak, could produce that very result 8 Accordingly, there being no affirmative showing that Peak failed to meet Board mitigation standards, it is concluded that Respondent has not demonstrated with sufficient specificity that she failed to conduct a reasona ble search for work, and hence she is entitled to the full amount set forth in the backpay specification 3 Rosemary James Respondent contends that the backpay entitlement of James should be reduced by a willful loss limited to the period between November 1982 and February 1984 In November 1982, James was laid off by her interim em ployer, General Machine Co The Respondent contends that James s failure to make a reasonable effort, thereaf ter, to attain interim employment is evident from the fact that she earned a mere $26 80 in 1983 According to the Respondent, this, together with her failure to enter a job training program, her failure to prepare and distribute re sumes, her failure to enlist the Union s aid to secure job opportunities,9 combined with statistical evidence that in 1983 about 300 new manufacturing assembling positions were created in the five county area of Eastern Pennsyl vania, all serve to demonstrate that after her unemploy ment benefits expired, James abandoned her search for employment and waited for recall by General Machine Co James testified that the Respondents facility is only a 10 minute drive from her home She was hired by the latter in 1981 At the time of her termination in May 1982 she was a mechanical assembler She registered for unemployment, and was hired by General Machine in August 1982 as an assembler The period between the layoff at General Machine and recall by that firm in February 1984, represented the sole interval during the entire backpay period in which James did not have interim earnings which exceeded gross s The Repsondent asserts that in 1983 after her unemployment benefits ran out Peak testified that she did not continue to visit places with the same frequency as she had before her employment benefits ran out Though quoted this is not a fair replication of Peak s testimony As I understand her words she did not continue thereafter to make applica tion at all the places previously visited In any event the Respondents burden is not fulfilled through the various interpretations that might be accorded to ambiguous testimony 9 The Respondent questioned the discnminatees whether they had sought work through the Union However I am unaware that labor or ganizations generally hold themselves out as employment agencies Nor is there reason to believe on this record that the Union offered such serv ices or had resources that might have been useful in the respective searches for employment In sum the existence of a grapevine is purely speculative backpay due During that timeframe, she registered at the unemployment service complied with the four con tacts per week requirement, kept tabs on jobs available on the employment board, directed continuing inquiries to General Machine concerning recall, and customarily checked the want ads in the local newspaper Her search for interim employment was not limited to electrical equipment assemblers In my opinion, her testimony, though limited by an imperfect recollection, showed a reasonable job search during the period of her 1983 and 1984 layoff The fact that Zober hired nine employees, including discriminatee Martindell, during that year does not detract from that finding First, although Martindell was hired in 1983, the evidence does not establish when, during her employment, Zober continued to fill vacan cies Moreover, there is no evidence that Martindell and James were in communication prior to her recall by General Machine, when Zober might have had jobs available 10 Aside from timing, the nature of the jobs available at Zober during the critical timeframe was left undefined Finally, the generalized testimony concerning job openings in the five county area does not warrant an inference of ineffective job search, or that substantially equivalent employment was available at locations reason ably proximate to the James residence Accordingly the Respondent has failed to demonstrate that James in curred a willful loss of interim earnings, or that her job search was less than reasonable Accordingly she is enti tled to the full amount of backpay claimed on her behalf 4 Florence Martindell The Respondent contends that Martindell s backpay period should be tolled as of September 19, 1984, when she quit her full time employment with Zober Industries reverting to part time status There is no dispute that this step was taken to avoid earning constraints imposed pur suant to social security retirement laws Her entitlement prior to that date is not challenged Martindell when ter urinated by the Respondent was almost 62 years old At the time, she was a group leader earning $7 11 hourly Her employment had dated back to 1974 She had not graduated from high school or obtained equivalency status According to Martindell, the discharge and the resultant depletion of and inability to augment, savings disrupted her earlier intention to retire from full time work at age 65 Martindell s interim employment began on September 26, 1983, when she was hired by Zober Industries Her starting rate was a mere $4 per hour Before obtaining this job Martindell had applied for and received security benefits She continued as a social security annuitant while working full time for Zober In November 1984, Martindell was informed by the Government that she had to return half of the money she earned in excess of $5160 (See G C Exh 12) In consequence, Martindell quit her job with Zober on September 19 1984 She ex plained that she could not afford to give up her social security benefit and work full time at the meager hourly 10 Martindell testified that she talked to James about Zober but at the time James declined to apply because she already had a better job 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rate she was paid at Zober Nonetheless she continued to search for full time employment at wage levels equita ble to what she had earned at Delta, a wage rate she considered as adequate to provide a reasonable standard of living She found however, that employers in the area were hiring only at the minimum rate Later on March 18, 1985, Martindell obtained part time employment with Brandt Systems Inc She was paid $4 25 an hour but also received partial vacation and holiday She left Brandt and returned to Zober in Sep tember 1985 when offered $4 50 an hour with a promise of a raise to $5 She continued to work for Zober until reinstated by Delta on July 10, 1987, at a full time post tion carrying an hourly rate of $8 10 Martindell consciously limited her employment to part time to protect her social security entitlement, loss of which, in the context of low wages, would reduce her standard of living Based on her credible testimony that, while working part time, she continued the search for full time work, there is no room for assuming Martindell was averse to full time work Instead, it is concluded that she could not afford to do so unless paid at the earn ings level enjoyed in 1982 when she was unlawfully dis charged In computing the net backpay due Martindell, the General Counsel used a constructive interim earnings concept reducing her entitlement by $2340 per quarter during the entire period in which she only worked part time The Respondent argues that this was an appropri ate solution in that the partial retirement of Martindell from full time employment should have completely ter minated her right to backpay The Respondent in this regard seeks to equate Martindell's situation with cases in which the Board has found that a discriminatee removed himself from the labor market by joining the armed serv ices, 111 by returning to school on a full time basis,12 or by moving to a small town with few job opportunities 13 Consistent with the General Counsels position the crediting of constructive interim earnings fairly accom modates Martindell s predicament and is supported by precedent Thus in McCann Steel Co, 224 NLRB 607, 610-611 (1976) constructive interim earnings were for mulated to reduce gross backpay where a discriminatee s self employment venture produced less income than he would have earned from the interim employer for which he worked before becoming self employed This approach was endorsed in Flue Chief Inc, 258 NLRB 1124, 1129 (1981), in which the alleged discriminatee worked less than a 40 hour week because her interim employer precluded her from doing so unless she agreed to work on both Saturday and Sunday She could not do so because as a single parent with a young daughter she felt it imperative that she be off either Saturday or Sunday Ultimately, she was given Sunday off but her i i Kawasaki Motors 282 NLRB 159 (1986) enfd 850 F 2d 524 (9th Cir 1988) 12 Master Slack 269 NLRB 106 (1984) 11 Knickerbocker Plastic Co 132 NLRB 1209 (1961) employer refused to substitute a weekday, hence forcing to be a voluntarily reduction in interim employment which reduced the net backpay due, but did not toll con tinuing entitlement to backpay That result is equally applicable here During the 5 year period created by unlawful conduct, Martindell was forced into a labor market in which it would be difficult if not impossible, to maintain the level of earnings achieved during her 8 years of employment with the Re spondent Her illegal termination, aggravated by the Re spondent s continuing refusal to reinstate, was the central cause of the dilemma whereby Martindell s full time earnings were so low that they, together with her re duced social security benefit produced a drastic reduc tion in real income There is no suggestion, whatever, that Martindell declined full time employment for any other reason, nor does it appear that she would have re jected a full time job carrying a rate approximating that which she had earned at Delta Certainly, there is no basis for inferring on this record that any employer was willing to offer one in her mid sixties an hourly rate any where close to the $7 10 per hour she earned in 1982 The forces bearing on Martindell s decision to reduce her interim earnings were casually related to the unlaw ful conduct and certainly were as formidable as those confronting the discriminatee in McCann Steel, supra Her action was not tantamount to a withdrawal from the labor market In sum , the Respondent is rightfully entitled to the credit provided but to cut off backpay on that basis would fail to recognize the Respondents own contribu tion to the Hobson s choice whereby Martindell could either reduce already less than equivalent income or for feit social security benefits The evidence does not dis close that Martindell engaged in a willful loss of earn ings, and she is entitled to the sums claimed on her behalf by the amended backpay specification 14 ORDER The Respondent Delta Data Systems Corp, Trevose, Pennsylvania its officers agents successors and assigns shall make whole the employees named below by paying to them the sums indicated, together with interest com puted in accordance with New Horizons for the Retarded 283 NLRB 1173 (1987) Rosemary James $13, 649 87 Virginia Brandwood 79,064 50 Florence Martindell 62 784 04 Margaret Peak 59,889 52 i4 It is noted that termination of the backpay period is a harsh accom modation which has been avoided in circumstances far more than the conduct attributed to Martindell Thus in Mastro Plastics Corp 136 NLRB 1342 1350 (1962) the Board stated [I]f a claimant does willfully incur losses by unjustifiably quitting or refusing substantially equivalent employment he is not deprived of his entire claim but only so much of it as he would have earned had he obtained the interim job See also KSLM AM & KSD FM 275 NLRB 1342 1343 (1985)