Fire Alert Co.

National Labor Relations Board - Board Decisions

Mar 19, 1976

223 N.L.R.B. 129 (N.L.R.B. 1976)

FIRE ALERT COMPANY 129
Fire Alert Company and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local Union 452 . Case 27-CA-
3606
March 19, 1976
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On December 13, 1973, the National Labor Rela-
tions Board issued a Decision and Order I in the
above-entitled case, finding and concluding that Re-
spondent had violated Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended, by fail-
ing and refusing to reinstate economic strikers Bar-
bara Woolfolk and Paula M. Taylor when work for
which they were qualified became available and after
they had unconditionally requested reinstatement.
Thereafter, Respondent offered reinstatement to
both employees, but disputed the amount of backpay
computed by the General Counsel.
On December 31, 1974, the Regional Director for
the National Labor Relations Board for Region 27
issued and duly served on the Respondent a backpay
specification and notice of hearing alleging the
amounts of backpay due the two discriminatees un-
der the Board's Order.
On January 16, 1975, Respondent filed directly
with the Board in Washington, D.C., a Motion for
Summary Judgment and/or Partial Judgment on the
Pleadings, submitting that, as the Board found that
the Respondent violated the Act by not offering job
reinstatement to the discriminatees before hiring
strangers off the street, the backpay hearing should
be limited to backpay questions only from the dates
when the first two strangers were hired, presumably
on and after March 30, 1973, rather than on dates
prior thereto as alleged in the backpay specification.
On January 27, 1975, counsel for General Counsel
filed a response to Respondent 's motions arguing
that the two discriminatees were entitled to backpay
beginning in mid-March 1972 when the Respondent
began to offer reinstatement to other exstrikers and
when Respondent first refused to consider Woolfolk
and Taylor for reinstatement along with other ex-
strikers. On March 13, 1975, the Board denied the
Respondent's Motion for Summary Judgment and/
or Partial Judgment on the Pleadings.
On April 8 and 9, 1975, a hearing was held before
Administrative Law Judge William J. Pannier III for
'207 NLRB 885.
the purpose of determining the amounts of backpay
due the claimants.
On June 24, 1975, the Administrative Law Judge
issued his Supplemental Decision, which is attached
hereto, in which he found that Respondent does not
owe any backpay to Paula M. Taylor, and that Re-
spondent owes Barbara Woolfolk $5,167.58 plus in-
terest. Thereafter, General Counsel filed exceptions
to the Administrative Law Judge's Supplemental De-
cision and a supporting brief, and Respondent filed
its reply to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Ad-
ministrative Law Judge's Supplemental Decision in
light of the exceptions and brief, and the
Respondent's reply to the General Counsel's excep-
tions, and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
We agree with the conclusion of the Administra-
tive Law Judge that the Respondent failed to satisfy
its burden of showing that discriminatee Woolfolk
did not make reasonable efforts to find substitute
employment during the backpay period and that she
was therefore entitled to be made whole for the entire
period since the date the discrimination against her
commenced. However, we find that the Administra-
tive Law Judge erred by finding that the backpay
period for discriminatees Taylor and Woolfolk did
not commence until March 30, 1973.
With respect to the latter finding, the Administra-
tive Law Judge reasoned that nothing in the Board's
underlying Decision and Order could be used to es-
tablish discrimination by Respondent prior to March
30, 1973? He further interpreted the Board' s subse-
quent order denying Respondent's motion for sum-
2 Later in his Decision the Administrative Law Judge actually interprets
the Board's underlying decision as supportive of a finding that Respondent
did not discriminate against Taylor and Woolfolk prior to March 30, 1973.
He reasoned that the Board's decision reversing the previous Administrative
Law Judge's finding of no discrimination in the underlying proceeding did
not disturb other findings made by the Administrative Law Judge , including
(1) that Respondent's criteria for determining reinstatement based on an
employee 's ability to transfer back to his original job was not improper, and
(2) that the record did not support a finding of subjective discriminatory
intent by Respondent in its failure to reinstate Taylor and Woolfolk. We
believe the Administrative Law Judge clearly erred.
Contrary to the Administrative Law Judge's reasoning , the Board's fail-
ure specifically to reverse certain findings in the underlying proceeding does
not mean that it affirmed them . The Board specifically noted at the outset
of its Decision and Order that it was affirming those findings "only to the
extent consistent herewith ." With respect to (1) above , the Board itself not-
ed in its order denying Respondent 's motion for summary judgment in the
backpay proceeding that it had not decided that issue in its underlying
decision . With respect to (2), the Board specifically found in its Decision
and Order that Respondent discriminated against Taylor and Woolfolk,
reversing the Administrative Law Judge 's contrary finding.
223 NLRB No. 28
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mary judgment in the backpay proceeding as, in ef-
fect , an invitation for General Counsel to present
further evidence as to when the discrimination actu-
ally occurred. Finding that General Counsel failed to
present any new evidence as to discrimination during
this backpay hearing, the Administrative Law Judge
concluded that General Counsel failed to satisfy his
burden . We disagree.
The issue in this case turns on the respective bur-
dens of proof in the backpay proceeding. Thus, it is
clear that the Board did not make any specific find-
ing in its underlying decision with respect to when
the discrimination commenced . For, as the Board
stated in its order denying Respondent's motion for
summary judgment in the backpay proceeding,
which raised this very issue:
The Board's reliance upon the hiring of strang-
ers to support a finding of discrimination by the
Respondent and its utilization of the March 30,
1973, date in the reinstatement provision was
not intended to establish or to foreclose estab-
lishing an earlier date when the discrimination,
in fact, occurred and when backpay should be-
gin to accrue.
In short, the Board was merely saying that
Respondent 's asserted defense that it had an eco-
nomic justification for not reinstating Taylor and
Woolfolk at any time prior to March 30, 1973, was
not specifically dealt with in its underlying decision
and was one which was appropriately left to the com-
pliance stage for determination . However , contrary
to the Administrative Law Judge 's interpretation,
that is not the same as inviting General Counsel to
establish additional proof of discrimination.
At the backpay hearing, the General Counsel ad-
duced some of the same evidence that he had previ-
ously submitted during the unfair labor practice
proceeding with respect to relative seniority,
qualifications , and experience of Taylor and Wool-
folk vis-a-vis the other economic strikers . This was
enough to establish a prima facie case that , had Tay-
lor and Woolfolk been considered by Respondent on
the same terms as other economic strikers, they
would have been reinstated at the dates alleged in the
specification which were predicated on their relative
seniority among the economic strikers. It is, of
course , well established that seniority is a proper ba-
sis for determining reinstatement rights for backpay
purposes, absent a showing that Respondent used
some other economically justified basis .3 It is equally
well settled that in backpay proceedings the burden
is on the Respondent to establish any economic de-
fenses it may have to the backpay formula used by
the General Counsel in the specification .4 By failing
to adduce any evidence on the issue at the backpay
hearing in this case, we find that Respondent failed
to satisfy its burden.'
For the above reasons, we compute the backpay
for Woolfolk from March 15, 1972, and for Taylor
from April 17, 1972, which are the dates the General
Counsel alleged in the backpay specification, as the
dates that these employees by their seniority and
qualification for available jobs would have otherwise
been considered by Respondent for those positions
but for Respondent's discriminatory refusal to con-
sider them. We shall therefore order Respondent to
make these employees whole for the amounts set
forth in the backpay specification.
We find that Barbara Woolfolk is due backpay in
the amount of $11,336.67, and Paula M. Taylor is
due backpay in the amount of $1,816.63. Such back-
pay shall include interest at the rate of 6 percent a
year computed in the manner set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), until the
date of payment.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Fire Alert Company, Denver, Colorado, its officers,
agents, successors , and assigns, shall pay to the em-
ployees involved in this proceeding as net backpay
the amounts set forth above, together with interest at
the rate of 6 percent per annum until the indebted-
ness has been discharged 6
7 See , e.g., Jack C. Robinson, d/b/a Robinson Freight Lines, 129 NLRB
1040, 1042 ( 1960).
Mastro Plastics Corporation and French-American Reeds Manufacturing
Co., Inc., 136 NLRB 1342, 1346 ( 1962), enfd . 354 F.2d 170 (C.A. 2, 1965),
cert . denied 384 U.S. 972 (1966).
3In reaching his contrary conclusion, the Administrative Law Judge re-
lied on testimony adduced at the underlying unfair labor practice proceed-
ing that Respondent selected employees for reinstatement based on their
ability to return to their original jobs. However, this evidence was not prop-
erly before the Administrative Law Judge ; Respondent did not raise this as
a defense at the backpay hearing; and General Counsel was not put on
notice that it would have to rebut evidence relevant to that defense and had
no opportunity to examine or cross-examine witnesses at the point where
such evidence becomes relevant-i.e., the backpay hearing to determine
when each individual would have returned to work absent the discrimina-
tion against her.
b Local 138, International Union of Operating Engineers, AFL-CIO (Nas-
sau and Suffolk Contractors Association), 151 NLRB 972, 974 (1965).
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge: This
matter was heard by me at Denver, Colorado, on April 8
FIRE ALERT COMPANY
and 9, 1975, based on a Backpay Specification and Notice
of Hearing issued on December 31, 1974, by the Regional
Director for Region 27 of the National Labor Relations
Board. On December 13, 1973, the National Labor Rela-
tions Board , herein called the Board , issued a Decision and
Order I finding and concluding that Respondent had vio-
lated Section 8(a)(3) and (1) of the National Labor Rela-
tions Act, as amended, 29 U.S.C. Sec. 151, et seq., herein
called the Act, by failing and refusing to reinstate econom-
ic strikers Barbara Woolfolk and Paula M. Taylor when
work for which they were qualified became available and
after they had unconditionally requested reinstatement.
Thereafter, Respondent offered reinstatement to both em-
ployees, but disputed the amount of the backpay computed
by the General Counsel. Accordingly, the backpay spec-
ification underlying this proceeding was issued.
All parties have been afforded full opportunity to ap-
pear, to introduce evidence , to examine and cross-examine
witnesses , and to file briefs . Based on the entire record,
upon the brief submitted on behalf of Respondent and
upon my observation of the demeanor of the witnesses, I
make the following findings of fact and conclusions of law.
1. ISSUES
A. When should the period for computing the backpay
commence?
B. Should any backpay owing be reduced because of
unavailability for employment or because of failure to ex-
ercise diligence in seeking similar and substantially equiva-
lent employment?
11. WHEN SHOULD THE PERIOD FOR COMPUTING BACKPAY
COMMENCE?
A. Facts
In its Decision and Order, the Board directed Fire Alert
Company, herein called Respondent, to offer Woolfolk
and Taylor reinstatement , "dismissing anyone hired on or
after March 30, 1973, if necessary, to make room for
them." Additionally, Respondent was ordered "to make
Woolfolk and Taylor whole for any loss of earnings they
suffered. . . ." However, unlike the reinstatement remedy,
no date was provided for commencement of the backpay
remedy and, based on that omission, the General Counsel
asserts that the backpay period for Woolfolk should com-
mence on March 15, 1972, and that of Taylor should com-
mence on April 17, 1972. Respondent contends that the
backpay periods for both employees should commence no
earlier than March 30, 1973, the date on which the five
nonstrikers were hired.
On January 14, 1972, the economic strike commenced by
Respondent's employees in October of the previous year
ended with unconditional offers to return to work being
made on behalf of employees, including Taylor and Wool-
folk. Respondent commenced reinstating strikers in March
1972, ultimately reinstating all but Taylor and Woolfolk.
' 207 NLRB 885.
131
Thus, on January 8, 1973, a complaint issued alleging, inter
alia, that Respondent had violated the Act by failing and
refusing to reinstate Taylor and Woolfolk since January
14, 1972. The Administrative Law Judge who heard the
matter found that the work which Woolfolk and Taylor
had performed prior to the strike had been contracted out
during the course of the strike with the result that the jobs
of these two employees "in a sense were eliminated"; that
Respondent had not left jobs unfilled or filled by tempo-
rary replacements to avoid reinstating any of the alleged
discriminatees; that, due to the presence of permanent re-
placements, not all strikers were recalled to their former
jobs and, as testified by Manufacturing Manager Desour-
dy, strikers were recalled to substantially equivalent posi-
tions in the manner that they were "because it assured a
qualified fill-in for the old job at such time as the replace-
ment might leave"; and, that the issue posed by the hiring
of five nonstrikers shortly before the hearing had com-
menced had not been sufficiently litigated to permit find-
ing a violation.
Based on these findings, the Administrative Law Judge
concluded that "the general right to reinstatement does not
obtain where the employer has no work for the ex-striker to
do"; that "Respondent simply did not have enough work
for both permanent replacements and all of those seeking
reinstatement during the time of the alleged discrimina-
tion"; that there was "nothing improper in Respondent's
giving them [Woolfolk and Taylor] a reduced recall priori-
ty, vis-a-vis other strikers, because it no longer makes the
items they previously worked on"; and, that the evidence
did not support "a finding of subjective discriminatory in-
tent" by Respondent against these two employees. Accord-
ingly, he recommended that the complaint be dismissed,
adding in a footnote:
Respondent's counsel argues in his brief that Taylor
and Woolfolk had no right to reinstatement because
their jobs were eliminated. Although I have indicated
my likely disagreement with that view, I do not think
it necessary to the disposition of this case finally to
resolve that issue. The evidence, as opposed to
counsel's argument, does not indicate that Respon-
dent recalled other strikers ahead of Taylor and Wool-
folk because they no longer had recall rights, but rath-
er for the valid-seeming reason testified to by
Manufacturing Manager Desourdy. . . . Were the is-
sue being litigated of Respondent's hire of nonstrikers
ahead of Taylor and Woolfolk-not to be confused
with that of the legitimacy of its criteria for recalling
some strikers ahead of others-the job-elimination
question perhaps would require explicit resolution.
[Footnotes -omitted.]
The Board issued its Decision and Order affirming the
Administrative Law Judge's "rulings, findings, and conclu-
sions," but "only to the extent consistent herewith." After
reviewing the strike history and the experience of the two
alleged discriminatees, the Board stated:
The Respondent contends that it has not reinstated
Taylor and Woolfolk because their prestrike jobs, un-
like those of the employees reinstated, were eliminated
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.... The Administrative Law Judge found that both
Taylor and Woolfolk could have competently per-
formed many of the jobs to which other employees
were reinstated.
There is evidence in the record that the Respondent
hired five nonstrikers within days of the trial of this
case . General Counsel contends that Taylor and
Woolfolk should have been reinstated ahead of these
five employees . The Administrative Law Judge found
that this issue was not sufficiently litigated to support
a finding of a violation . We disagree.
To support its disagreement , the Board then recites a por-
tion of Desourdy's testimony concerning the qualifications
sought of applicants for the five positions , concludes that
Taylor and Woolfolk possessed those qualifications and
then, after renewing its conclusion that the matter was suf-
ficiently litigated, states , "The discrimination against Tay-
lor and Woolfolk is proven by this conduct for Respondent
bypassed its own qualified employees who remained un-
reinstated in favor of new hires off the street . Likewise, the
hiring of new employees is further evidence of
Respondent's refusal to even consider Woolfolk and Tay-
lor for reinstatement."
Then the Board meets the issue which the Administra-
tive Law Judge had found unnecessary to resolve in the
above-quoted footnote by first setting forth precedent sup-
porting the conclusion that economic strikers who have ap-
plied for reinstatement are entitled to be reinstated in sub-
stantially equivalent positions , notwithstanding the fact
that their former positions have been eliminated, and by
then making the following statements:
Thus, it is obvious that the Respondent 's reinstate-
ment obligation here is not limited to the strikers' old
positions, but rather includes reinstatement to sub-
stantially equivalent positions which the strikers are
qualified to fill . The Respondent 's argument that the
particular jobs of Woolfolk and Taylor were terminat-
ed, and that it thus had a legitimate business reason
for not reinstating these employees, will not withstand
scrutiny . The Respondent did not reinstate the striking
employees to their particular former positions but re-
instated them to whatever job happened to be avail-
able at the time. The Respondent stated that it re-
called employees based upon its need . A senior
employee , Woolfolk , testified that the only jobs she
did not do while working in the Respondent 's plant
were bum box and etching . She had worked both as a
leadgirl and as a supervisor and had taught other em-
ployees various jobs in the Respondent 's plant. She
was well qualified for virtually any job which the Em-
ployer might have had available . While it might be
true that a less senior employee might be equally qua-
lified for a particular job, Woolfolk is plainly qualified
for almost any job in which the Respondent had an
opening.
It is true that employee Taylor did not have the
seniority and experience of Woolfolk , but she had
worked for the Respondent for a period of about 2
years . Taylor had a right to be considered for rein-
statement to a position substantially equivalent to the
position which she previously held in the plant. The
failure of the Respondent so to consider her along
with the other employees , and especially its failure to
consider her in preference to new employees with no
experience in the plant, as shown by the recent hiring
of new employees other than strikers, is contrary to
the principle established in Great Dane, Laidlaw and
Brooks, supra. Accordingly, we conclude that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
refusing to offer to Woolfolk and Taylor reinstate-
ment to positions substantially equivalent to those
which they held prior to the strike.
In the belief that this language demonstrated the Board's
finding that the discrimination had occurred since Respon-
dent initially commenced recalling strikers, the specifica-
tion issued alleging the above-recited dates as the appropri-
ate ones for commencing the backpay periods of Taylor
and Woolfolk . In footnotes, the specification states that
Woolfolk should have been recalled on March 15, 1972,
rather than Teresa DePriest , based on experience and se-
niority and that Taylor should have been recalled, based
on her experience and seniority, on April 17, 1972, rather
than Margaret Carbone. Respondent immediately chal-
lenged the use of these dates prior to March 30, 1973, by
filing a Motion for Summary Judgment and/or Partial
Judgment on the Pleadings with the Board and, in re-
sponse , counsel for the General Counsel filed a response
seeking to have the Board deny Respondent 's motion and
affirmatively find that Woolfolk and Taylor were entitled
to backpay beginning in mid-March 1972 when "Respon-
dent first refused to consider Woolfolk and Taylor for rein-
statement along with the other ex-strikers to positions sub-
stantially equivalent to those which they had held prior to
the strike ." Although, in its Order Denying Motion for
Summary Judgment and/or Partial Summary Judgment on
the Pleadings of March 13, 1975, the Board did agree to the
General Counsel's motion to deny Respondent's motion, it
did not grant the affirmative motion of the General Coun-
sel, stating instead:
The Board having duly considered the matter, is of
the opinion that the Respondent 's Motion should be
denied because the Order required the Respondent to
make the discriminatees whole for any loss of earnings
resulting from the Respondent 's discrimination
against them whenever it occurred. The Board' s reli-
ance upon the hiring of strangers to support a finding
of discrimination by the Respondent and its utiliza-
tion of the March 30, 1973, date in the reinstatement
provision was not intended to establish or to foreclose
establishing an earlier date when the discrimination, in
fact, occurred and when backpay should begin to ac-
crue.
However , no new evidence was presented at the hearing in
the instant matter that would establish that discrimination
had occurred on an earlier date.
B. Analysis
The General Counsel contends that the Board 's Decision
and Order of December 13, 1973, establishes that the dis-
FIRE ALERT COMPANY
crimination occurred in mid-March 1972 and that the
backpay should commence running as of that time. I do
not agree that the Board so held. First, and most apparent,
this contention was advanced to the Board by means of an
affirmative motion to establish that the backpay periods
should commence in March 1972 made as part of the re-
sponse to Respondent's Motion for Summary Judgment
and/or Judgment on the Pleadings. The Board, however,
did not grant this motion by the General Counsel, although
it clearly took it into consideration as illustrated by the
above-quoted section of its Order of March 13, 1975. In-
stead, the Board, in effect, invited the General Counsel to
present further evidence on the question of "when the dis-
crimination, in fact occurred and when backpay should
begin to accrue." Clearly, had the Board felt that its Deci-
sion and Order resolved the matter by establishing that the
discrimination had occurred earlier than March 30, 1973, it
would simply have said so and granted the General
Counsel's affirmative motion. That it did not take the latter
course indicates that it was not satisfied that its Decision
and Order did establish that the discrimination had oc-
curred on an earlier date. The reason for the Board's lack
of satisfaction is shown by an analysis of the Decision and
Order-which forms my second and third reasons for con-
cluding that the Board did not hold that there had been a
violation prior to March 30, 1973.
Close inspection of the Decision and Order reversing the
Administrative Law Judge discloses that the Board, in ef-
fect, devoted its attention to but two points-the question
of whether the hiring of five nonstrikers rather than Taylor
or Woolfolk had been litigated and the question of the
right of the two discriminatees to reinstatement in view of
the elimination of their jobs. With regard to the former, the
Administrative Law Judge had found that the issue of hir-
ing nonstrikers on March 30, 1973, had not been sufficient-
ly litigated and the initial portions of the Board's Decision
are addressed to that point by reviewing the history of the
strike, the work experience of the two discriminatees, and
the testimony of Desourdy concerning the qualifications
sought when the nonstrikers were hired. Based on these
findings, the Board concluded both that the issue had been
litigated and that Taylor and Woolfolk possessed the quali-
fications to perform these jobs. Thus, "The discrimination
against Taylor and Woolfolk is proven by this conduct for
Respondent bypassed its own qualified employees who re-
mained unreinstated in favor of new hires off the street."
An overview of the Decision to this point clearly supports
only a conclusion that discrimination had occurred on
March 30, 1973-not at any earlier date.
This, however, did not end the matter for Respondent
had contended, both before the Administrative Law Judge
and the Board, that it had no obligation to either woman
inasmuch as their jobs were no longer in existence. As
shown by the above-quoted footnote, the Administrative
Law Judge had not resolved this issue, but it was necessary
for the Board to do so , since absent the existence of an
obligation to reinstate the discriminatees, notwithstanding
the elimination of their jobs, there could have been no vio-
lation at all. That the obligation did, in fact, exist was ex-
plained by the Board when it first reviewed precedent con-
cerning economic strikers applying for reinstatement when
133
their former positions were not available and when it then
addressed the contention that the elimination of the jobs of
the two discriminatees provided "a legitimate business rea-
son for not reinstating these employees." In the latter re-
gard, the Board pointed out that other strikers had been
reinstated to positions other than those which they had
occupied prior to the strike and that both Taylor and
Woolfolk, particularly the latter, possessed experience of
sufficient breadth to qualify them for positions other than
the ones which they had occupied prior to the strike. In
making these observations, however, the Board was not
holding, as the General Counsel contends, that Taylor and
Woolfolk were entitled to positions to which other strikers
had been reinstated-it was merely meeting the argument
that the elimination of their jobs afforded "a legitimate
business reason for not reinstating these employees" by
showing that the reinstatement of other strikers to positions
not occupied by them prior to the strike disclosed that rein-
statement to other positions did not affect Respondent's
operations adversely and by showing that Taylor and
Woolfolk were qualified to occupy positions other than
those which they had occupied immediately prior to the
strike. What the General Counsel has done is to transpose
this reasoning-directed exclusively to a defense-to the
earlier portion of the Decision and Order dealing with the
existence of a violation. In so doing, the General Counsel
then argues that the violation is broader in scope than
found by the Board. Quite clearly, this may not be done.
The third factor showing that the Decision and Order
does not establish a finding of a violation prior to March
30, 1973, is comparison of the Administrative Law Judge's
Decision with that of the Board. Most of the former was
affirmed by the latter. Thus, the Board did not disturb the
Administrative Law Judge's conclusions that there is no
right to reinstatement where there is no work for an ex-
striker to perform, that Respondent did not have enough
work for both its permanent replacements and those seek-
ing reinstatement, that there was no impropriety in
Respondent's criterion for reinstating employees on the ba-
sis of their ability to transfer back to their former positions
should their replacement depart (which, of course, would
not be possible with Taylor and Woolfolk, whose former
positions no longer existed), and, most significantly, that
the evidence did not support "a finding of subjective dis-
criminatory intent" against the two discriminatees on the
part of Respondent. Certainly, the Board would not have
been reluctant to take issue with these conclusions if it
disagreed with them. That is clearly shown by its disposi-
tion of the issue of whether the hiring of the nonstrikers
had been litigated. Thus, it can only be assumed that, as
stated in the beginning of its Decision and Order, the
Board affirmed these conclusions. Thus, to argue, as the
General Counsel appears to do, that Taylor and Woolfolk
were entitled to reinstatement in lieu of Carbone and De-
Priest, respectively, is to argue at odds with conclusions
affirmed by the Board. There is no authority to support a
proposition that seniority must govern in selecting former
strikers for reinstatement to substantially equivalent posi-
tions. Respondent's criterion for selection was the ability of
the strikers to return to their former positions should their
replacements leave-a criterion obviously precluding
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woolfolk and Taylor from consideration without regard to
Respondent's mistaken position that it had no further obli-
gation to them at all. Finally , notwithstanding the some-
what vague comment to Woolfolk 5 months before Re-
spondent began reinstating strikers , there was no evidence
of "subjective discriminatory intent. " With the matter in
this posture, it can hardly be maintained with any degree
of persuasion that Taylor and Woolfolk were the victims of
discrimination for which they are entitled to backpay prior
to March 30, 1973.
Finally , the remedies for an act of discrimination result-
ing in loss of employment are reinstatement and backpay.
Like twins , these two remedies become viable at the same
time . If, as the General Counsel contends , the Board's De-
cision and Order supported a finding that backpay should
have commenced at a point earlier in time than March 30,
1973, because Respondent 's discrimination occurred prior
to that date , then surely the Board would have preserved
Taylor's and Woolfolk's right to replace employees hired in
their stead earlier than that date , such as Carbone and De-
Priest, by specifying an earlier date with regard to the rein-
statement portion of the remedy. The Board did not do so
and, while it subsequently permitted the opportunity to
correct any error which might have occurred by permitting
litigation of whether there had been earlier discrimination
warranting imposition of additional backpay, no such evi-
dence was produced.
Therefore, I find that the backpay period does not com-
mence until March 30, 1973, and I shall grant
Respondent's motion to dismiss those portions of the back-
pay specification providing for backpay on earlier dates.
III. SHOULD ANY BACKPAY OWING BE REDUCED BECAUSE OF
UNAVAILABILITY FOR EMPLOYMENT OR BECAUSE OF FAILURE TO
EXERCISE DILIGENCE IN SEEKING SIMILAR AND SUBSTANTIALLY
EQUIVALENT EMPLOYMENT?
A. Facts
Respondent does not take issue with the formula for
computing the backpay as set forth in the specification.
Moreover, the specification lists Paula M. Taylor's back-
pay period as being April 17 to July 30, 1972. As I have
found above that the backpay period in this matter does
not commence prior to March 30, 1973, I find that Taylor
is not entitled to any backpay.
With regard to Woolfolk , consistent with my finding in
section II , above , I find that her backpay period commenc-
es on March 30, 1973,2 and, as set forth in the backpay
specification, ends on December 30, 1973. Thus, at most
she is entitled to backpay for the 6 working days remaining
in the first quarter of 1973 and for backpay for the second,
2 In its answer to Backpay Specification, Respondent asserted,
"Woolfolk's backpay computation should commence on April 3, 1973,
when employee Lisa Effinger was hired by Fire Alert Company." However,
Respondent presented no evidence to support this contention and, more-
over, in its Decision and Order , the Board utilizes the March 30 , 1973, date
for reinstatement . In these circumstances , and particularly noting the ab-
sence of evidence to support the assertion in the answer , I find that March
30, 1973, is the appropriate date for commencement of Woolfolk's backpay
period.
third, and fourth quarters of 1973. Using the formula in the
specification, Woolfolk would be entitled to a total of
$5,000.77 for the final three quarters of 1973, plus $167.09
for the final 6 working days during the first quarter of
1973 3 Respondent, however, asserts that it "believes Wool-
folk obtained permanent and substantially similar employ-
ment at some time during the asserted backpay period,"
"removed herself from the employment market and was
unavailable for employment during certain of the periods
alleged," and "did not, with reasonable deligence [sic], seek
similar and substantially equivalent employment during
the periods alleged." To properly evaluate Respondent's
contentions in this regard , it is necessary to review
Woolfolk's conduct from the time that she went on strike.
At the time of the events at issue in this matter, Woolfolk
needed a source of income to assist in supporting her men-
tally retarded daughter who was in a state hospital stricken
with cerebral palsy. Thus, when the strike first commenced,
she began seeking employment. Three of the other strikers
had gone to work for Western Electric and one of them
advised Woolfolk of this fact, cautioning her, however, that
she should not mention that she had worked for Respon-
dent, since it appeared that Western Electric had hired all
strikers from Respondent that it intended to hire. This led
Woolfolk to omit mention of her employment with Re-
spondent from her application form which she filed with
Western Electric. While she was hired by that firm, ulti-
mately her prior employment with Respondent came to
light and, accordingly, on December 30, 1971, after having
been employed for 30 days, she was discharged for having
falsified her application. On January 14, 1972, the Union
notified Respondent that it was terminating the strike and
made an offer on behalf of the employees to return to
work. Three days later, Woolfolk was among a group of 23
employees who journeyed to Respondent's plant and filled
out forms, provided by Respondent, offering to return to
work. As noted above, Respondent did not commence hir-
ing until mid-March. Consequently, on February 15, 1972,
Woolfolk began employment on a 30- to 90-day temporary
job with Storage Tech. However, as she needed an opera-
tion, she left Storage Tech on March 15, 1972, and did not
again return to the labor market until April 20, 1972.4 She
first sought reemployment with Storage Tech, but was told
that at the time there were no openings , although openings
for temporary positions were anticipated in the near future.
J This figure was computed , using the formula in the specification, by
taking the average hours per bi-weekly period for the period ending April 8,
1973, and dividing that figure by 10-the number of workdays which the
bi-weekly period covered . Since Woolfolk would have worked March 30
and April 2 through 6 had she been reinstated properly, she would have
worked a total of 49.68 hours . However, while she would have received
$26.33 for 8 .28 hours on March 30 when her hourly rate of pay was $3.18, it
is conceded that her hourly rate would have increased to $3.40 effective
March 31 , 1973. Accordingly, for the following week, Woolfolk would have
worked 41 .4 hours at the rate of $3.40 per hour for a total of $140.76.
4 At the hearing, no medical release was produced which bore a date even
close to April 20 , 1972. However, two releases, one dated September 1, 1972,
and the other dated September 27, 1974, were produced , both of which were
signed by Stanley N. Goodman, M.D. The first one, testified Woolfolk, was
obtained because there was a possibility of her obtaining work again with
Storage Tech . It reads that Woolfolk "may return to her normal occupation-
al duties as of 9-1-72." The second one was obtained by Woolfolk for the
compliance investigation in this matter and states that Woolfolk was "re-
leased for full activities as of 4 -18-72."
FIRE ALERT COMPANY 135
This then led Woolfolk on a prolonged, mostly fruitless,
search for work.
In the spring of 1972, Woolfolk began to make weekly
trips to the Colorado Department of Labor and Employ-
ment, Secure Job Division, which dispatched her to jobs at
Honeywell on May 15, 1972, and at Metron on the follow-
ing day. While both firms were involved in essentially the
same industry as Respondent, when Woolfolk reported to
the Honeywell officials that she was involved in a "labor
dispute" with Respondent, she was told that there was no
position for her, although she was free to return once the
matter was resolved. Through apparent miscommunication
between Metron and the Secure Job Division, Woolfolk
did not receive a position with Metron when she went there
on the following day.
Woolfolk did not confine her activities solely to waiting
for state dispatch to jobs with electronic assembly firms,
for in May 1972 she applied for employment with Martin
Marietta, for whom she had worked from 1960 to 1966,
and in October 1973 she applied for employment with
Power Regulators. However, as had been the fact with
Honeywell, when she reported to these firms that she was
involved in a "labor dispute" with Respondent, she was
told that she would not be considered until the dispute was
resolved, although Martin Marietta's officials did say that
they would be "more than glad" to consider her at such
time. Two other electronics assembly firms with whom
Woolfolk filed applications were Hathaway's and, in Sep-
tember or October 1973, Kieuriff Company. She did not
obtain employment with either firm, however, and, in the
case of Kieuriff, when she returned to the office after filing
her application, she discovered that the application had
been discarded in the waste basket.
Nor did Woolfolk confine her search for employment to
the industry in which she had been employed, for in the fall
of 1972 and a year later in 1973, she filed applications for
employment with Safeway Stores during the course of
strikes by the latter's employees. Although she checked
back with Safeway at 2-month intervals following the filing
of the first application, no positions were offered to her.
After filing the second application in 1973 and being ac-
cepted for employment, the strike settled on the night be-
fore Woolfolk was to report for training with the result that
she was placed below the returning strikers on Safeway's
employment list and never was employed by Safeway. At
the same time that she first filed for employment with Safe-
way, Woolfolk also sought employment with Del Farms
and with King Soopers markets, but though she checked
back periodically with each of them (at 2-month intervals
in the case of the former and at 3-month intervals in the
case of King Soopers), no offers of employment were forth-
coming.
During the first 3 months of 1973, Woolfolk canvassed
department stores seeking employment, although she had
no experience in this industry. Three of the firms with
which she filed applications-Woolworth's, Woolco, and
K-Mart-never contacted her with an offer despite the fact
that she continued checking back with them at approxi-
mately 3-month intervals. She testified that when she in-
quired of a K-Mart official regarding the absence of an
offer, she was told that K-Mart needed experienced per-
sonnel . Montgomery Ward did offer Woolfolk employ-
ment, but the offer was only for part-time employment for
2 or 3 hours a day and then only at the rate of $ 1.85 an
hour.
As she had previously been an LPN, Woolfolk began
seeking work with hospitals in the late spring and early
summer of 1973. Since her license had expired, she sought
employment as a nurses aide in central supply at Saint
Luke's and Denver General Hospitals and for positions at
General Rose and East Side Health Center, as well. How-
ever, her efforts generated no employment offers and, in
the case of Saint Luke's, she was told that only experienced
help was sought. She did take the city examination for a
position at East Side Health Center, but was reinstated by
Respondent before the process of obtaining employment
there could be completed. Moreover, she inquired regard-
ing reinstating her LPN license, but was told that she
would have to complete the entire course of instruction
and undergo the state examination again before she could
once more be licensed as an LPN. Similarly, in the summer
of 1973, when Woolfolk applied for a position in parks and
recreation with the Denver Public School System, hoping
that she could ultimately obtain employment as a teacher's
aide or monitor during the upcoming school year, she was
not offered employment and was told that the school sys-
tem preferred to hire college students who could be paid at
a lesser rate.
In October or November 1973, Woolfolk was offered
employment by Valley Hi Nursing Home, but the offer was
of part-time employment for 3 days a week on the 3 to
11:30 p.m. shift at an hourly rate of $1.90. This would have
necessitated retaining a babysitter for her 5- and 7-year old
youngsters and Woolfolk testified that she could not have
afforded to pay the sitter if she were making but $1.90 an
hour.
In the fall or winter of 1972, before commencement of
the backpay period, Woolfolk was twice dispatched by
Manpower-once to a construction company where she
worked for half a day picking up debris in newly construct-
ed apartments and removing it by wheelbarrow and then to
High Chapparrel where she built mobiles. However, both
jobs paid her only $1.60 an hour and she ceased seeking
dispatches by Manpower because "You carried hod and
you laid bricks and I am a woman and I don't do either."
For approximately 3 weeks commencing in May 1973,
Woolfolk worked for Vari-L performing work similar to
that which she had performed for Respondent. When
hired, she was told that this was to be temporary employ-
ment and would last for but 30 to 90 days .5 However, she
quit this job; testifying on direct examination that she had
begun to experience headaches due to the fact that there
were no microscopes and the parts were small , thus making
the work hard on her eyes. During cross-examination,
Woolfolk was shown an application for employment which
S Apparently in the labor market in which Woolfolk was seeking employ-
ment employers can avoid paying certain benefits to temporary employees
which must normally be paid to permanent workers.
6 That there had been some deterioration in Woolfolk 's eyesight since she
was last employed by Respondent was both testified to by Woolfolk and
was also observed by Respondent's counsel when he compared her appear-
ance at the initial hearing with that at the hearing in the instant matter.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she had completed for Samsonite on October 9, 1973, and
while she had listed her employment with Vari-L on the
form, she had also listed as her "Reason for Leaving" only
"Wages." Woolfolk testified that she was paid $2.20 an
hour by Vari-L, but denied that this was the reason that
she had quit : "No, it's because it was a temporary job in
the first place ." Subsequently, she testified that her reason
for leaving had been "Better job" and when it was pointed
out that this was not what she had printed on the Samson-
ite form, she replied : "Wages means better job to me." Her
testimony on cross-examination concerning the matter
concluded with Woolfolk testifying that she had left Vari-L
"because the parts were very small, they were too hard on
my vision and I had headaches," and "Both migraine head-
aches and then Samsonite paid about eighty cents an hour
more than Vari-L."
While Storage Tech did offer Woolfolk employment in
August 1973 , the job offered was on the p.m. shift at Louis-
ville and , in view of the need to care for her children, she
rejected the offer : "Well, I couldn't work p.m., not in
Louisville so I didn 't take it." This problem was not posed
if she were to accept employment at Samsonite on the sec-
ond shift, for her daughter worked there on the day shift
and, thus, each could baby-sit the other's children when
not on shift and the children could be exchanged by them
when the day shift and night shift exchanged jobs . Howev-
er, when Woolfolk applied at Samsonite in 1972, apparent-
ly shortly after the strike commenced, although she placed
it in September, she listed "labor dispute" as her reason for
ceasing work for Respondent . Asked if she intended to re-
turn when the dispute was over , Woolfolk said that she did.
She was then told to apply at Samsonite only when the
dispute was over . Thus, when she filed the October 1973
application, she listed "Moving to Broomfield" as her
"Reason for Leaving" Respondent . However, her 1972 ap-
plication was still in Samsonite's files and she was again
not offered employment.
Aside from the foregoing employers , Woolfolk also ap-
plied for work at firms in various other industries . Thus, in
the fall of 1972 or the spring of 1973, she applied at Red
Seal Potato Chip and at Keebler Company, but was reject-
ed by both firms for inability to satisfy the height require-
ments . In September or October 1973, she was turned
down by Texas Instruments when it was discovered that
she was involved in a "labor dispute ." In April 1973, she
was rejected by Redfield Gun because she did not have 20-
20 vision without her glasses . In September 1973 she was
hired by a poodle-grooming shop, but was forced to quit
because the animals frightened her. Immediately after
Thanksgiving 1973, she applied at Colorado Carnation
Company, but as she was being shown the facilities, she
began to sneeze ; thereby demonstrating an allergy to the
flowers.
B. Analysis
Respondent contends that Woolfolk's conduct during
the backpay period was such that it precludes her from
receiving any backpay . To support this contention, Re-
spondent advances several arguments : that Woolfolk
should not be credited , that Woolfolk quit adequate inter-
im employment under suspicious circumstances, that
Woolfolk did not advance sufficient effort in seeking em-
ployment , that Woolfolk's own statements to interim em-
ployers concerning the existence of a "labor dispute" mis-
led them and had the effect of barring her from interim
employment, that her termination by Westinghouse for fal-
sifying her application should bar her from further consid-
eration for backpay , and Woolfolk improperly rejected of-
fers of adequate interim employment.
It is quite clear that a discriminatee , such as Woolfolk,
bears the obligation of seeking employment following the
act of discrimination for the object of "not so much the
minimization of damages as the healthy policy of promot-
ing production and employment ." Phelps Dodge Corp. v.
N.LR.B., 313 U.S. 177, 200 (1941). Thus, "a discriminatee
is not entitled to back pay to the extent that he fails to
remain in the labor market, refuses to accept substantially
equivalent employment, fails diligently to search for alter-
native work , or voluntarily quits altenative employment
without good reason ." N.L.R.B. v. Mastro Plastics Corpora-
tion and French American Reeds Manufacturing Company,
354 F.2d 170, 174, fn. 3 (C.A. 2, 1965), cert . denied 384
U.S. 972 ( 1966). However, "no discriminatee is required to
ever accept anything but `suitable ' interim employment.
Therefore , it is obvious that there is no requirement that
such a person seek employment which is not consonant
with his particular skills , background, and experience."
N.L.R.B. v. Louisville Typographical Union No. 10, Interna-
tional Typographical Union, AFL-CIO [Madison Courier,
Inc.], 472 F.2d 1307, 1320-21 (C.A.D.C., 1972). In apprais-
ing the discriminatee 's conduct in this regard, any doubt
"is to be resolved to the discriminatee 's, not the
wrongdoer's, benefit." NHE/Freeway, Inc., et al., 218
NLRB 259 (1975).
Contrary to Respondent's contention , I feel that Barbara
Woolfolk was a credible witness . She appeared to be at-
tempting to testify honestly and to the best of her abilities.
True, she was not an overly educated person and, seeming-
ly, her inability to fully articulate concepts appeared to me
to be the reason for her apparent confusion regarding such
matters as the reasons for leaving Vari-L. Yet, it was clear,
as observed by Respondent's counsel and as verified by her
experience at Redfield Gun, that her eyesight was not the
best. Moreover, it is not patently incredible that employers
in her labor market extend temporary employment for but
30 to 90 days ; particularly if it is true that this avoids hav-
ing to extend benefits which must be accorded to perma-
nent employees . Finally , the wages which she was receiving
at Vari-L were substantially less than those which she
would have been receiving had she been properly reinstat-
ed by Respondent . In fact , the $2 .20 hourly rate at Vari-L
is but 30 cents an hour more than the hourly rate of $1.90
which she was offered by Valley Hi Nursing Center and
which she was forced to reject because it would not have
enabled her to afford to pay a sitter for her two youngsters.
Consequently, it hardly seems unreasonable for her to have
left such temporary employment which was causing her
physical problems in an effort to seek a better job. After
all, a discriminatee is not required to accept interim em-
ployment involving conditions "substantially more onerous
than his previous position ." N.L.R.B. v. Madison Courier,
FIRE ALERT COMPANY 137
Inc., supra, 1321. The fact that Woolfolk did not list every
reason for leaving Vari-L on the Samsonite application
hardly impugns her credibility.
Respondent further assails Woolfolk's credibility on the
basis that it is unbelievable that large employers such as
Martin Marietta, Power Regulators, Samsonite , and Texas
Instruments would reject an applicant who was a striker,
thereby, contends Respondent, violating the Act. The short
answer to this, of course, is that violations of the Act by
large employers are not uncommon. Beyond this, however,
it does not appear that this was the point that was being
made by these employers. Rather, as best illustrated by
what took place when Woolfolk applied for employment at
Samsonite in 1972, it appears that the concern of these
employers was that they would be hiring someone who
would promptly leave them when the labor dispute with
her own employer culminated. In other words, they did not
want to retain a short-term employee. That this was, in
fact, their objection is illustrated by the number of these
employers who invited Woolfolk to apply for employment
with them when her dispute with Respondent ended-ob-
viously, if she applied for employment at that point in time,
it would be clear that she was seeking permanent employ-
ment and not merely a job to fill in the interval created by
the dispute.
Yet another ground advanced by Respondent to support
its argument that Woolfolk should not be credited is that
she rejected work on the p.m. shift at Storage Tech because
of the problem of acquiring a babysitter for her children
and then approximately 1 month later sought such employ-
ment with Samsonite . But, this was not the point. As shown
by the emphasis in her testimony, Woolfolk rejected the
employment with Storage Tech on the p.m. shift because
the offer was also for a job in Louisville. Conversely, the job
on the second shift at Samsonite would not present a simi-
lar problem because her daughter was working at the same
facility but on the day shift. Thus, they were able to ex-
change children, with each sitting the other's children while
the other was working her shift at the same plant where
both would have been employed. In this regard, it is wor-
thy of note that the Board does not require an employee to
seek work on a shift different from that on which she or he
was employed by the employer who violated the Act. The
Richard W. Kaase Company, 162 NLRB 1320, 1332 (1967);
See also John S. Barnes Corporation, 205 NLRB 585, 588
(1973). Yet, here is an example of Woolfolk making pre-
cisely such an effort, albeit unsuccessfully. This hardly aids
Respondent's overall position that Woolfolk was deliber-
ately witholding her services and attempting to avoid ob-
taining employment with the object of increasing
Respondent's backpay liability.
Nor is Respondent's attack on Woolfolk's credibility
aided by her misrepresentations on the Westinghouse and
second Samsonite applications. It is clear that she took the
action which she did at Westinghouse because she believed
that to do otherwise would impair her from obtaining em-
ployment. Similarly, the Samsonite application was com-
pleted as it was only after Woolfolk had been told 1 year
earlier that she would not be accepted so long as she was
involved in a labor dispute-an admonition followed by a
number of other employers, as demonstrated by
Woolfolk's own experience. Thus, while a misrepresenta-
tion, Woolfolk's conduct was designed to garner-not
avoid-employment and as such can hardly be held
against her.
Therefore, I find that Barbara Woolfolk was a credible
witness and I credit her testimony concerning her search
for interim employment.
Beyond the matter of credibility, there are several addi-
tional matters raised by Respondent. First, it is asserted
that Woolfolk's conduct in making false representations on
the Westinghouse application constituted misconduct and,
without regard to her motives, should bar her from further
backpay since it caused her to lose a job. Initially, however,
it is worthy of note that Woolfolk obtained this employ-
ment during the strike-in other words, at a time when
Respondent had no backpay obligation to her and when
she had no obligation to obtain employment in the interest
of minimizing her unemployment. Thus, what Respondent
is seeking to do is to preclude Woolfolk from further back-
pay because of conduct occurring before she was even
obliged to seek such employment. Beyond this, the incident
happened more - than a year before the backpay period
commenced and, as I am finding that Woolfolk did make
an adequate search for interim employment during the
backpay period, the Westinghouse incident is too remote to
influence the events occurring after March 30, 1973. Final-
ly, Woolfolk did obtain subsequent employment with Stor-
age Tech and, under any theory, was employed following
the Westinghouse discharge. Thus, any infirmity created
by the latter was clearly cured by the former. It was not the
Westinghouse discharge that became the proximate cause
of Woolfolk's problems-it was the surgery that required
her to leave Storage Tech and after recovery from which
she began to experience difficulty locating employment.
Consequently, I find that the Westinghouse termination
has no effect on Woolfolk's right to backpay.
Similarly, I find no merit to Respondent's argument that
Woolfolk could have advanced greater efforts to locate em-
ployment during the backpay period. It is true, as Respon-
dent points out, that Taylor went to more firms in the in-
dustry than did Woolfolk. However, it is equally true that
Taylor's search was unsuccessful. There is no evidence that
Woolfolk would have been any more successful and, ac-
cordingly, it is a somewhat moot point to argue that Wool-
folk should have gone to the same firms as did Taylor. In
fact, it is abundantly clear that Woolfolk would not have
been employed by many of these firms, as demonstrated,
for example, by her experience at Honeywell. The fact is
that Woolfolk did make efforts to obtain employment and,
further, these efforts extended beyond what could reason-
ably have been expected of her under Board principles,
given her skill and experience. Thus, she could hardly have
been obliged to seek employment grooming poodles. Yet,
she did so. Similarly, she could hardly have been expected
to accept employment cleaning up trash and carrying it out
in a wheelbarrow at the hourly pay rate of but $1.60. Yet,
she did this also. In fact, the record is quite clear that she
exhausted all resources available to her in an effort to ob-
tain interim employment and her need to do so was amply
demonstrated by her explanation of her duty to support a
child not only mentally retarded, but also confined to a
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
state hospital with cerebral palsy. Surely in these circum-
stances it is most unlikely that she would have attempted to
avoid employment from which she could have derived in-
come to satisfy her obligations.
In asserting that Woolfolk precluded herself from ob-
taining interim employment by telling potential employers
that she was involved in a "labor dispute," Respondent
comes full circle from another argument which it advances.
When she avoids telling this to Westinghouse and Samson-
ite, Respondent would have her backpay tolled for misrep-
resentations . But when she does tell employers about her
status and when this leads them to refuse to employ her,
then Respondent would also toll her backpay. Obviously,
there was nothing Woolfolk could have done to satisfy the
standard that Respondent would impose . Yet, clearly
Woolfolk was involved in a labor dispute . While true that it
was not a strike, as most employers would probably infer
from her comment, it was nonetheless a dispute with her
employer over a matter affecting her terms and conditions
of employment . More important, it had one most striking
similarity to a strike-Woolfolk clearly intended to return
to Respondent 's employment following termination of the
dispute . It was this factor, not the nature of the dispute,
that led other employers to withhold offers of employment
from her . In these circumstances , I see no significance to
be attached to the fact that Woolfolk failed to explain in
detail to potential employers the nature of the dispute in
which she was involved.
Finally, there are the rejections of offers which were
made to her , such as the offer to work 2 or 3 hours a day at
$1.85 an hour for Montgomery Ward and to work part-
time on the 3 to 11:30 p.m. shift at the rate of $1.90 an hour
for Valley Hi Nursing Home, as well as the offer of p.m:
shift work for Storage Tech. I have already set forth above
the precedent for the proposition that an employee is not
required to seek work on a shift different from that on
which she or he worked for the employer who committed
the discrimination. Beyond these cases , Woolfolk had two
children to care for and the rates offered her were not suffi-
cient for her to afford a babysitter. Surely the "policy of
promoting production and employment" would not be ad-
vanced by forcing her to abandon these two children at
nights without adequate care . Moreover , a full-time em-
ployee possessing Woolfolk's skill and making , at the time
of the strike, $3.18 an hour can hardly be obliged to accept
only part-time work in a department store, for which she
has had no experience, at a rate well below that which
Respondent had been paying her. Consequently, I find that
Woolfolk's backpay did not toll by virtue of these rejec-
tions of employment by her.
IV. CONCLUSIONS
For the reasons set forth above, I find that the backpay
period does not commence until March 30, 1973, that Re-
spondent does not owe any backpay to Paula M. Taylor,
and that Respondent has failed to meet its burden of show-
ing that the conduct or events it has asserted as grounds for
mitigation of its backpay liability warrant any diminution
of the amount of backpay owing to Barbara Woolfolk,
which I find to be $5,167.86, plus interest at the rate of 6
percent per annum to accrue commencing with the last day
of each calendar quarter of the backpay period on the
amount due and owing for each quarterly period as set
forth in "Appendix A" of the backpay specification to the
extent consistent with this Supplemental Decision, and
continuing until the date this Decision is complied with,
minus any tax withholding required by Federal and State
laws. See F. W. Woolworth Company, 90 NLRB 289
(1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
enforcement denied on other grounds 322 F.2d 913 (C.A.
9, 1963).
[Recommended Order omitted from publication.]