Florida Tile Co.

National Labor Relations Board - Board Decisions

Mar 5, 1993

310 N.L.R.B. 609 (N.L.R.B. 1993)

609
310 NLRB No. 96
FLORIDA TILE CO.
1 On December 8, 1992, Administrative Law Judge William N.
Cates issued the attached supplemental decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 We note that the judge misstated the date of Deleski’s refusal of
a route sales job with a cola company. The correct date is June 5,
1990. This factual error does not affect the judge’s ultimate findings
and conclusions. The Respondent failed to prove that the route sales
position was substantially equivalent to Deleski’s former job with
the Respondent.
1 The United States Court of Appeals for the Eleventh Circuit in
an unpublished per curiam opinion (No. 90–9147) issued on Sep-
tember 30, 1991, affirmed the Board’s Decision and Order.
2 The Regional Director issued a compliance specification and no-
tice of hearing on July 24, 1992, after the parties could not agree
on the amount the Company owed Deleski. Counsel for the General
Counsel amended the specification at trial and the amount claimed
has been adjusted to account for interim earnings.
Florida Tile Company and International Union of
Electronic, Electrical, Salaried, Machine and
Furniture Workers, AFL–CIO. Case 10–CA–
24224
March 5, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue in this case is whether the judge correctly
found that the Respondent has failed to prove any will-
ful loss of earnings by discriminatee Benjamin Deleski
in his search for interim employment during the back-
pay period.1 The Board has considered the decision
and the record in light of the exceptions and brief and
has decided to affirm the judge’s rulings, findings,2
and conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Supplemental Order of the administrative
law judge and orders that the Respondent, Florida Tile
Company, Rome, Georgia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
recommended Order.
Mary L. Bulls, Esq., for the General Counsel.
John M. Breckenridge Jr., Esq., of Tampa, Florida, for the
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This case
involves the amount of backpay owed by Florida Tile Com-
pany (Company or Respondent) to discriminatee Benjamin
Deleski (Deleski) pursuant to the National Labor Relations
Board’s (Board) Decision and Order (300 NLRB 739) of No-
vember 21, 1990.1 The Regional Director for Region 10 of
the Board (counsel for the General Counsel) contends the
Company owes Deleski $31,495.72.2 The Company does not
contest the methodology utilized by counsel for the General
Counsel in arriving at, or the amount of, gross pay owed
Deleski. However, the Company contends Deleski created a
willful loss of earnings by not making a good-faith effort to
seek and obtain interim employment that would have paid
him substantially more than the interim earnings he reported.
The case was tried before me in Rome, Georgia, on Sep-
tember 11, 1992. The Company called Deleski and nine addi-
tional witnesses. Counsel for the General Counsel presented
no witnesses. The trial testimony is not disputed.
I have studied the whole record, including the briefs filed
by counsel for the General Counsel and counsel for the Com-
pany and the authorities which they invoke, and I make the
following
FINDINGS OF FACT
I. LEGAL AUTHORITIES
It is beneficial to examine certain legal authorities before
outlining the undisputed facts herein. The legal principles are
well established. A finding by the Board that an unfair labor
practice was committed is presumptive proof that some back-
pay is owed. G. Zaffino & Sons, 289 NLRB 571 (1988);
NLRB v. Mastro Plastics Corp., 354 F.2d 107, 178 (2d Cir.
1965), cert. denied 384 U.S. 972 (1966). The burden to
prove the gross amount of backpay rests with counsel for the
General Counsel. NLRB v. Brown & Root, 311 F.2d 447, 454
(8th Cir. 1963). The burden is on the employer who com-
mitted the unfair labor practice to establish facts that would
reduce the gross amount of backpay owed. Chem Fab Corp.,
275 NLRB 21 (1985), Kawaski Motors Mfg. Corp. v. NLRB,
850 F.2d 524 (9th Cir. 1988). Facts the employer may at-
tempt to establish may relate to interim earnings or to a will-
ful loss of interim earnings. Although it is an employer’s
burden to establish a discriminatee’s interim earnings, if any,
it is counsel for the General Counsel’s voluntary policy to
assist in gathering such information and including such in the
Regional Director’s compliance specification. Chem Fab
Corp., supra. Although a discriminatee must attempt to miti-
gate his/her loss of income, the discriminatee is held only to
a reasonable assertion and not to the highest standard of dili-
gence. Arlington Hotel Co., 287 NLRB 851 (1987); NLRB v.
Westin Hotel, 758 F.2d 1126, 1130 (6th Cir. 1985). The bur-
den a discriminatee bears in this regard is not onerous and
does not mandate that the discriminatee be successful. NLRB
v. Westin Hotel, supra; Kawaski Motors Mfg. Corp. v. NLRB,
supra. In determining the reasonableness of a discriminatee’s
efforts at interim employment, the discriminatee’s skills,
qualifications, age, and labor conditions in the area are fac-
tors to be considered. Mastro Plastics Corp., supra. A
discriminatee that limits his/her work search for personal or
no valid reasons that excludes jobs for which the
discriminatee is otherwise qualified may create a willful loss
of earnings. EDP Medical Computer Systems, 302 NLRB 54
(1991). Because the ultimate test of a discriminatee’s efforts
is whether they are consistent with the inclination to work
and be self-supporting, the backpay period must be viewed
as a whole and not in isolated portions. Sioux Falls Stock-
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Prior to his employment at the Company, Deleski worked for
various employers. From September 1980 until September 1981 he
attended Floyd Junior College, Rome, Georgia, and at the same time
worked for Hess Oil Company as a cashier at $4 per hour. From
September 1981 to September 1982, he, at various times, worked for
Fox Pools as a laborer performing ‘‘all types’’ of pool construction
and repairs at $4.50 per hour. From September 1982 until he was
employed by the Company, Deleski worked for Wood Craft, a lum-
ber company, where he worked as a ‘‘package maker operator’’ as-
sembling ‘‘bundles of lumber’’ for truck shipment to customers.
4 Florida Tile Co., 300 NLRB 739 (1990). Administrative Manager
Frank Shropshire described a palletizer’s job as placing full cartons
of tile weighing 35 to 40 pounds on pallets holding 75 cartons.
Shropshire testified pallet jacks are then used to move the pallets
into a holding area for shipment.
5 It appears an assistant audit laboratory technician is another name
for a quality control inspector. Florida Tile Co., supra, at 740.
6 Deleski said he was earning $8.63 per hour at the time of his
discharge.
7 According to the 1992 Directory of Manufacturers, Rome (Floyd
County), Georgia, prepared by the Greater Rome Chamber of Com-
merce (R. Exh. 2), ICC manufactures corrugated containers and cur-
rently has approximately 891 employees.
8 General Electric, at its Rome facility, manufactures electrical
transformers and currently has approximately 975 employees. (R.
Exh. 2.)
9 Deleski said he utilized the yellow pages ‘‘dozens’’ of times
searching for employment.
10 Deleski said he did not keep complete records regarding all at-
tempts he made to be employed. He said he personally went to em-
ployer locations ‘‘dozens’’ of times telling the employers he would
‘‘like to have a job.’’
11 On October 2, Deleski followed up on his interview via tele-
phone and was told the Company was still interviewing applicants.
12 Deleski visited this company again on October 13, and again no
applications were being taken by the company.
13 This company is listed in the Directory of Manufacturers for
Rome as a printing business currently employing 16. (R. Exh. 2.)
14 Deleski was interviewed by the fire department on December 7
and 11.
yards Co., 236 NLRB 543, 551 (1978). If a discriminatee in-
curred any reasonable and necessary expenses in earning in-
terim income, it is counsel for the General Counsel’s burden
to establish the amounts of those expenses. Arlington Hotel
Co., supra. Any doubts, uncertainties, or ambiguities must be
resolved against the employer who is the wrongdoer in that
an employer should not be allowed to benefit from any un-
certainty caused by its discrimination. Chem Fab, supra;
Kawaski Motors Mfg. Corp., supra.
II. THE EVIDENCE
It is undisputed that the backpay period for Deleski began
on June 8, 1989, and continued through February 15, 1992.
Deleski was hired by the Company in January 19873 as a
‘‘palletizer’’4 and was promoted to assistant audit laboratory
technician5 1-1/2 years later. He was unlawfully discharged
on June 8, 1989.
Deleski testified that after his discharge, he registered with
the Georgia Department of Labor (Ga. DOL) and sought jobs
that were ‘‘comparable’’ ‘‘on the same pay scale’’6 with the
one he had at the Company. Deleski said that as time went
on and he found no employment, he lowered his sights to
lesser paying jobs. Deleski said he applied for work at two
of the largest manufacturing employers in the Rome, Georgia
area, namely, Inland Container Corporation (ICC)7 and Gen-
eral Electric Company (GE).8 Deleski was interviewed but
not hired by ICC. Deleski said he learned from friends that
ICC might be hiring. Deleski said he made application with
GE through the Ga. DOL. Deleski testified he not only
looked for work based on referrals from friends, but utilized
yellow pages from the local telephone company9 and news-
paper advertisements.10
Deleski’s Ga. DOL ‘‘Claimant Job Search Plan’’ prepared
on or about October 5, 1989, reflects under the caption
‘‘what type work are you seeking’’ that he desired ‘‘service’’
and ‘‘sales’’ positions.
Deleski’s ‘‘Record of Work Search’’ submitted to the Ga.
DOL for the period September 9, 1989, through December
20, 1989, reflects he sought employment with approximately
19 employers. Deleski said he appeared in person at each of
the following employers on the dates indicated and sought
employment as follows:
Employer Date Type Work Sought Action Taken
Ivan Allen 09–25–89 delivery, sales made application & interviewed11
Lowe’s Building Supply 10–04–89 delivery, sales made application
Floyd Outlaw Appliances 10–11–89 delivery, sales made application
Kerns Bakery Shorter Industries 10–11–89 delivery no applications being taken12
Rocky Mountain Project 10–18–89 any no openings available
Jennings Funeral Home 10–19–89 any no openings available
Garden Lakes Supply 10–24–89 any no openings available
Rome Business Machines 10–30–89 service, delivery made application
Christie’s Office Supply13 11–03–89 any, delivery made application
Design Printing & Graphics 11–08–89 any no openings available
Kroger Grocery 11–11–89 any made application
Rome Fire Dept. 11–13–89 firefighter made application & went through screening process14
Allen Murphy Appliance 11–17–89 delivery made application
Atlanta Gas Co. 11–21–89 service technician made application
Babcock Furniture 11–24–89 delivery no openings available
Jackson Business Machine 11–30–89 delivery no openings available
Fast Printing & Copies 12–01–89 any made application
611FLORIDA TILE CO.
15 Deleski explained the ‘‘any’’ meant he would take any reason-
able job offers. The employment service referred Deleski to a tem-
porary delivery job at Rome Tool & Dye Company, Inc., a dies and
brake shoes manufacturer employing approximately 100. (R. Exh. 2)
Deleski said that when he arrived at the jobsite, he was told he
would be a janitor cleaning bathrooms and machines at $5 an hour.
Deleski worked an hour and quite because he did not consider the
position to be a ‘‘reasonable’’ job. Rome Employment Service,
Inc.’s office manager Margie Turner testified upon examining
Deleski’s records that he refused on May 21, 1990, a temporary (2–
3-day position) handing out sample products in a supermarket. She
said the records also reflect he rejected a route salesman job with
a cola company on June 5, 1991.
16 Form NLRB-5224 (R. Exh. 7).
17 Deleski was sure he visited other employers during this same
time but said he could not recall any specifics about these other at-
tempts.
18 In his trial testimony, Deleski corrected the date on Respond-
ent’s 7 from May 30 to March 30.
19 As noted elsewhere in this decision, this Company is listed in
the 1992 Directory of Manufacturers as being in the printing indus-
try currently employing 16 employees. (R. Exh. 2.)
20 This company manufactures slit soil steel and currently employs
approximately 27 employees. (R. Exh. 2.)
21 O’Neil Manufacturing is an architectural mill work lumber and
building supply company currently employing 34. (R. Exh. 2.)
22 Deleski learned of the job from a friend.
23 Deleski was referred to the job by a friend.
24 Deleski said he did not look for better paying employment while
working at Wal-Mart because Wal-Mart had excellent benefits and
he knew it would be just a matter of time until the Company rein-
stated him.
25 Smith said manufacturing included any enterprise that produced
a product. He gave as an example the local newspaper which pro-
duces daily newspapers.
26 One employer declined, absent a specific request, to provide the
Chamber with the number of employees it employed.
Employer Date Type Work Sought Action Taken
City of Rome Water Treatment 12–04–89 technician made application
Farmer Furniture 12–20–89 any, delivery made application
In early 1990 (January 15), Deleski registered with a pri-
vate employment agency—Rome Employment Service,
Inc.—seeking employment in ‘‘delivery (any).’’15 Deleski
said he continued seeking employment during the first two
quarters of 1990. At or near the end of June 1990, Deleski
filed a ‘‘Claimant Expense and Search for Work Report’’16
with the Board. In the report, Deleski listed 11 employers17
at which he sought employment between March 30 and June
22, 1990. Deleski’s efforts at these 11 employers follows:
Employer Date Type Work Sought Action Taken
Martha Berry Museum 1803–30–90 groundskeeper application made, opening pending interviews
Dennis Hodges Office Supply 04–19–90 delivery, sales representative application made, no openings available
Christie’s Office Supply19 04–23–90 delivery, sales representative application made, interview given
Lowes of Rome, Inc. 05–08–90 n/a application made
Kmart 05–19–90 sales associate application made
Babcock Home Furnishings 05–25–90 delivery no openings available
Poor Man’s Palace Furniture 06–01–90 delivery application made, interview given, no openings available
Dayton Steel20 06–12–90 n/a application made, job pending interview
Colortyme TV Rental 06–13–90 set up & collection application made
O’Neil Mfg. Co.21 06–18–90 n/a application made, interview given
West Rome Animal Clinic 06–22–90 veterinarian assistant job had been filled
On July 1, 1990, Deleski obtained employment22 as a con-
struction worker for Terafern, a company specializing in con-
crete foundations for buildings. The project at which Deleski
worked was at the GE facility in Rome. The project lasted
until mid-November 1990 at which time Deleski was laid
off.
Approximately 2 weeks after his concrete construction job
ended, Deleski obtained employment with Wal-Mart23 as a
sales associate. Deleski worked December 1990 but was laid
off the month of January 1991; however, he was recalled in
February 1991 and worked for Wal-Mart continuously until
the Company reinstated him in mid-February 1992. Deleski’s
starting pay at Wal-Mart was $5 an hour and he advanced
to $6 plus per hour by the time he was reinstated by the
Company.24
Howard Smith Jr., executive vice president of the Greater
Rome, Georgia Chamber of Commerce, testified there were
110 to 120 manufacturing businesses25 in Rome, Georgia, in
1989. As of 1992, the Chamber of Commerce lists 100 man-
ufacturing employers as members of its organization and
those 100 employers employ approximately 11,491 employ-
ees.26
Joyce Eastridge, a litigation consultant on matters related
to calculating economic damages and providing expert opin-
ions, compiled from data supplied by the Ga. DOL a profile
of labor force data for Floyd County (including the city of
Rome), Georgia, for pertinent times herein. Eastridge’s com-
pilations, which are self-explanatory, follow:
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 According to Forbes, a doffer removes full bobbins from a spin-
ning frame and replaces them with empty ones. Forbes said prior
textile experience was not necessary, that the company had a 14-
week training program for its doffer positions.
28 Forbes could not explain the reasons for that level of turnover.
29 According to McCain, Lindale is approximately 5 miles south
of Rome, Georgia.
30 Montgomery said certain entries or omissions on an application
can eliminate an applicant without an interview.
31 Montgomery said a twister/singles winder operator operated
three machines, a twister, a winder, and a rewinding machine.
Period
Year/Qtr
Size of
Labor
Force
Total
Number
of New
Hires
Total
New
Hires in
Manufac-
turing
Percent
Turnover
in Labor
Force
Unem-
ployment
Rate
1989/2 40,103 n/a n/a n/a 6.67%
1989/3 40,173 n/a n/a n/a 6.47%
1989/4 40,660 6,229 967 15.32 5.97%
1990/1 40,292 5,382 941 13.36 6.63%
1990/2 40,549 7,065 1,159 17.42 6.87%
1990/3 41,564 7,030 1,162 16.91 7.93%
1990/4 41,466 5,329 n/a 12.85 6.60%
1991/1 40,854 4,295 505 10.51 6.53%
1991/2 40,452 5,171 900 12.78 5.73%
The Company presented four witnesses who gave testi-
mony regarding the hiring needs at their companies during
the last half of 1989. From this evidence, the Company con-
tends Deleski would have been hired by any of the four had
he made application with them.
Charles Forbes, corporate manager of employee relations
for Galey & Lord, a textile manufacturing firm located at
Rome, Georgia, testified his company hired 15 employees
during the month of June 1989 and a total of 168 during the
second quarter 1989 and 118 during the third quarter of that
same year. Forbes said his company ‘‘predominantly’’ hired
at entry level positions. Forbes said his company required an
application which he said was reviewed for background and
past work history along with the educational level of the ap-
plicant. Forbes said his company was ‘‘generally’’ looking
for someone with a ‘‘stable work record’’ and a secondary
level of education although the latter was not absolutely es-
sential. After reviewing Deleski’s job application at the com-
pany herein and noting his postapplication work history,
Forbes testified Deleski would have been qualified for em-
ployment with his company and that he ‘‘probably’’ would
have been considered for a ‘‘doffer’s’’ job.27 Forbes said his
company does not advertise its job vacancies but rather inter-
views ‘‘walk-ins.’’ Forbes acknowledged it was possible an
applicant could come to the plant on a day they were not hir-
ing and in that case the individual’s application would be
kept on file for 60 days—and longer if updated. Forbes said
his company hired an average of 15 employees per week
during the 1989 timeframe in question and he explained the
turnover rate at his plant was 30 percent.28 Forbes said that
if an applicant indicated he/she had been fired from a pre-
vious employer, his company would attempt to ascertain
from the prior company the reason(s) for the applicant’s ter-
mination. Forbes said his company had hired employees fired
from other companies and he specifically recalled one such
employee that had been fired from the company herein and
that employee currently has the highest paying job classifica-
tion in his company’s work force.
Sandra McCain, personnel director for Lindale Manufac-
turing, a textile company manufacturing denim and chambray
fabrics located at Lindale, Georgia,29 testified her company
was hiring in the last half of 1989 in entry level positions.
After reviewing Deleski’s unemployment application at the
Company herein and also considering his postapplication
work history, McCain said ‘‘Mr. Deleski would have quali-
fied . . . to have learned to perform that [a cloth doffer loom
servicer] job.’’ McCain testified her company hired five or
six cloth doffer loom servicers during the last half of 1989.
McCain testified her company hired 100 to 150 entry level
employees in the last half of 1989. McCain said her com-
pany takes applications at its facility during office hours
Monday through Friday but does not advertise for employ-
ees. McCain said her Company keeps applications on file for
60 days unless otherwise updated. McCain said that although
her company attempts to get an opinion from a previous em-
ployer about an applicant, the fact an applicant had been
fired at a previous employer would not disqualify the appli-
cant for consideration at her company.
Patrick Montgomery, director of personnel for Pharr Yarns
of Georgia, Incorporated, a textile manufacturer located at
Rome, Georgia, testified his company hired entry level em-
ployees during the last half of 1989. Montgomery estimated
his company hired 18 to 20 such employees. Montgomery
said his company uses applications primarily to get an appli-
cant’s employment history.30 Montgomery said his company
checks references and tries to contact all previous employers.
Montgomery said the fact an applicant had been fired from
a previous employer would not necessarily eliminate the ap-
plicant from consideration at his company. After examining
Deleski’s employment application with the company herein
and noting his postapplication work history, Montgomery tes-
tified Deleski would have been qualified for the position of
twister/singles winder operator at his Company.31 Mont-
gomery said no prior textile experience was needed to qual-
ify for this position but that it took from 3 to 8 weeks to
‘‘master’’ the job. Montgomery’s company does not adver-
tise for jobs but rather interviews walk-in applicants.
Ted Bridges, personnel director for World Carpets, a tex-
tile manufacturing company located in Rome, Georgia, testi-
fied his company ‘‘probably’’ hired ‘‘50 or so’’ employees
during the last half of 1989. After reviewing Deleski’s em-
ployment application for the Company herein and after con-
sidering his post application work history, Bridges testified
he was not familiar with a ‘‘palletizer’’ job classification but
he was sure Deleski would ‘‘fit entry level’’ positions with
his company. Bridges saw nothing on Deleski’s application
with the company herein which would have disqualified him
from consideration with his company. Bridges said his com-
pany attempts to speak with an applicant’s last employer but
the fact an applicant had been fired from his/her last em-
ployer would not disqualify the applicant from consideration
at his company. Bridges said his company had ‘‘consider-
ably’’ more applicants for positions in the last half of 1989
than it was able to hire.
Deleski, when asked why he did not make application for
employment at Galey & Lord responded he ‘‘knew nothing
of the rug industry, the yarn industry.’’ Deleski said he was
aware that Lindale Manufacturing and Pharr Yarns existed
613FLORIDA TILE CO.
32 Deleski was not asked why he did not apply for work at World
Carpets.
33 The Company also notes that the unemployment rate for that
quarter for the entire area was 5.97 percent.
34 The exact number of employees at each of these employers in
1989 is not available in this record.
35 Deleski registered with the Ga. DOL, searched newspapers, and
utilized telephone yellow pages and a private employment agency in
his search for employment.
36 Deleski’s employment efforts are distinguishable from those of
discriminatee David Burgos in EDP Medical Computer Systems, 302
NLRB 54 (1991), a case the Company contends is on point with the
instant case. In EDP Medical Computer Systems, supra, Burgos had
been employed for approximately 1 year as a collections agent for
the New York City Environmental Control Board at the time of his
wrongful discharge. After his wrongful discharge, Burgos did not
look for work as a collections agent or for any related office clerical
work. Burgos’ reason for not doing so was that he didn’t have
enough experience in that field. However, his testimony at the un-
Continued
but he offered no explanation for not making application
with either of those employers.32
III. DISCUSSION, ANALYSIS, AND CONCLUSIONS
In attempting to meet its burden of establishing that
Deleski failed to make a reasonable effort to find interim
work resulting in a willful loss of interim earnings, the Com-
pany makes two primary arguments. First, the Company con-
tends that in light of Deleski’s 7 years of experience in man-
ufacturing, he created a willful loss of earnings when, for un-
explained reasons, he limited his work search to service,
sales, and delivery jobs notwithstanding the fact there were
over 100 manufacturing companies in the Rome, Georgia
area which had a total of approximately 967 new hires in
manufacturing during the fourth quarter of 1989.33 Second,
the Company contends Deleski created a willful loss of in-
terim earnings when, solely for personal or no reason and
without legal justification, he refused to explore the possi-
bility of getting a job at Galey & Lord, Pharr Yarns, and
Lindale Manufacturing particularly in light of the fact all
three companies were hiring for entry level positions and that
Deleski was qualified for such entry level jobs.
Neither of the Company’s contentions withstands scrutiny.
First, the Company failed to establish that Deleski unrea-
sonably limited his search for interim employment. Deleski
testified he first searched for ‘‘something comparable to what
I was doing, on the same pay scale’’ but added ‘‘[t]hat slow-
ly got knocked down the ladder’’ as time went by.
Contrary to the Company’s contention, Deleski sought
manufacturing, as well as other, type jobs. Deleski named
five manufacturing companies that he sought employment
with—namely—GE (approximately 975 current employees),
Inland Container Corporation (approximately 891 current em-
ployees), Dayton Steel Service, Inc. (approximately 27 cur-
rent employees), O’Neil Manufacturing Company (approxi-
mately 34 current employees), and Christie’s Office Supply
(approximately 16 current employees).34
During Deleski’s 7-year work history, he worked as an oil
company cashier (1980–1981), as a laborer constructing and
repairing swimming pools (1981–1982), as an assembler of
lumber bundles for truck shipment to customers (1982–Janu-
ary 1987), and as a stacker of tile on pallets at the Company
herein (January 1987–June 1989). With that employment his-
tory, Deleski sought, after being wrongfully discharged from
the Company herein, employment at ‘‘dozens’’ of employ-
ers35 including but not limited to positions in service, deliv-
ery, and sales. Deleski, for example, sought employment as
a veterinarian assistant at an animal hospital, a fire fighter
for the city, a groundskeeper for a museum, any job at a fu-
neral home, any job at a grocery store, a technician at the
city water treatment facility, and as a sales associate at a de-
partment store. Deleski obtained employment (July 1990–No-
vember 1990) as a laborer with a concrete construction com-
pany (Terafern) and as a sales associate (December 1990–
January 1991 excluded—February 1992) at a department
store (Wal-Mart).
In light of all the above, including the 6.60 average unem-
ployment rate for the entire time in question, I find the Com-
pany failed to establish that Deleski did not make an honest,
good-faith, reasonable effort to obtain interim employment
that would have produced interim earnings to offset the
Company’s liabilities herein.
In reviewing the second of the Company’s primary conten-
tions, the question arises as to whether Deleski’s failure to
make application for employment at four specific employers
that were hiring in the second half of 1989 establishes he
failed to make a good faith and reasonable effort to find in-
terim employment. I conclude it does not. First, none of the
four companies (Galey & Lord, Lindale Manufacturing,
Pharr Yarns, and World Carpets advertised for employees but
rather filled positions from walk-in applicants. Second, there
were more applicants for positions than positions filled. In
that regard, Personnel Director Bridges of World Carpets tes-
tified there were ‘‘considerably’’ more applications for posi-
tions with his Company in the last half of 1989 than his
company was able to fill. The uncertainty regarding whether
Deleski would have been employed by this or any of the
other three employers must be resolved against the wrong-
doer, the Company herein. Although Corporate Manager of
Employee Relations Forbes of Galey & Lord said Deleski
was qualified for employment with his company and would
have been considered ‘‘probably’’ for a doffer’s position, he
stated his company reviewed the overall work history of an
applicant and ‘‘generally’’ looked for someone with ‘‘a sta-
ble work record.’’ Nothing was presented to show that appli-
cants that were hired by Galey & Lord had an overall work
history and work stability similar to that of Deleski. There
is no showing Deleski would have been selected over other
applicants at Galey & Lord. The fact Deleski asserted at trial
in response to a question by company counsel that he did not
have any work experience in the yarn or rug industry as a
reason for not going to Galey & Lord does not establish a
rejection by Deleski of the textile industry for personal rea-
sons. There is no showing on this record that Deleski had
any reason to believe or suspect that Galey & Lord was hir-
ing. There are perhaps other industries in the area that
Deleski did not make application at and for which he might
not have an explanation for not doing so. That, however, is
not the measure of whether he made a reasonable good-faith
effort to obtain substantially equivalent interim employment.
Deleski’s employment efforts, as outlined earlier in this De-
cision, indicate he had an inclination to work and to be self-
supporting and demonstrates he made a good-faith effort to
secure interim employment.36
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
derlying unfair labor practice trial indicated he had sufficient experi-
ence, and the Board held that contrary to Burgos’ self-evaluation, he
possessed the skills to have sought a job as a collections agent and
by confining his employment search to postage machine operator po-
sitions only he failed to make an adequate search for employment.
In the instant case, Deleski did not reject an entire industry (textile),
he simply stated he did not go to Galey & Lord because he knew
nothing about the rug or carpet industry. Deleski did, however, apply
for employment in other manufacturing industries whereas the
discriminatee in EDP Medical Computer Services, supra, not only
rejected a complete field of work, i.e., collections agent positions,
he also rejected any ‘‘related office clerical work.’’
37 The Company also failed to demonstrate that Deleski refused
any substantially equivalent positions of employment.
38 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
39 Under New Horizons, interest is computed at the ‘‘short term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
Lindale Manufacturing Personnel Director McCain testi-
fied, after reviewing Deleski’s work history, that Deleski
would have been qualified to have learned to perform as a
cloth doffer loom servicer, however, there is no showing
Deleski knew of any opening(s) at that company nor is there
any showing anyone referred him to that Company. There is
no showing Deleski would have been selected to fill one of
the five or six vacancies in that classification at Lindale
Manufacturing during the last half of 1989.
Director of Personnel of Pharr Yarns testified, after re-
viewing Deleski’s work history, that he would have been
qualified for employment with his company as a
twister/singles winder operator but acknowledged his com-
pany did not advertise its job openings. Again, there is no
showing that Deleski knew of, or was referred to, any open-
ings at Pharr Yarns.
In light of all the above, I conclude Deleski’s activities
during the backpay period were not inconsistent with his
duty to seek interim employment resulting in interim earn-
ings to offset the Company’s liabilities. Stated differently,
the Company failed to prove that Deleski did not make a rea-
sonable good-faith effort to obtain interim employment at
any time during the backpay period.37
CONCLUSIONS OF LAW
1. Florida Tile Company has failed to establish that Ben-
jamin Deleski incurred, in any manner, a willful loss of earn-
ings during the backpay period June 8, 1989, to February 15,
1992.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended38
ORDER
The Respondent, Florida Tile Company, its officers,
agents, successors, and assigns, shall pay to Benjamin
Deleski $31,495.72, with interest, as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).39