International Brotherhood of Teamsters, Local 25 (No Employer)

National Labor Relations Board - Board Decisions

Jun 1, 2018

366 NLRB No. 99 (N.L.R.B. 2018)

366 NLRB No. 99
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
International Brotherhood of Teamsters Local 25 and
Denise Avallon. Case 01–CB–010882
June 1, 2018
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On February 20, 2014, Administrative Law Judge Mi-
chael A. Rosas issued the attached supplemental deci-
sion. The General Counsel filed exceptions and a sup-
porting brief, the Respondent filed an answering brief,
and the General Counsel filed a reply brief. The Re-
spondent filed cross-exceptions and a supporting brief,
the General Counsel filed an answering brief, and the
Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Supplemental Decision
and Order.2
I. BACKGROUND
In the underlying unfair labor practice proceeding,3 the
Board found that the Respondent, a union that operates
an exclusive hiring hall, violated Section 8(b)(1)(A) and
(2) by refusing to refer Charging Party Denise Avallon
from its casual referral list for work with employers con-
tracting with the Respondent for drivers. The Board or-
dered the Respondent to, among other things, “[m]ake
Denise Avallon whole for any loss of earnings and other
benefits suffered as a result of its unlawful failure and
refusal to refer her for employment.” Id. at 54. On June
27, 2013, the Regional Director for Region 1 issued an
amended compliance specification setting forth the
amount of backpay assertedly owed to Avallon. The
backpay period ran from March 8, 2008, to August 24,
2011.
After a backpay hearing, the judge found that Avallon
was entitled to backpay for 2008, based on her demon-

1 Chairman Ring is recused and took no part in the consideration of
this case.
2 In ordering that the Respondent make whole the New England
Teamsters & Trucking Industry Pension Fund, the judge inadvertently
omitted interest on those contributions. Thus the Respondent must
make whole the pension fund by contributing the $11,010.86 in pension
fund contributions, as detailed in the compliance specification, but also
any additional amounts due the fund in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
3 358 NLRB 54 (2012).
strated efforts during that time to obtain interim em-
ployment, and 2011, based on the Respondent’s failure to
establish the existence of substantially equivalent em-
ployment opportunities in 2011. The judge found, how-
ever, that Avallon was not entitled to backpay for 2009
or 2010 because he found that the Respondent estab-
lished the existence of substantially equivalent employ-
ment and that Avallon had not engaged in a reasonable
search for work in those years.
The General Counsel excepts to the judge’s determina-
tion that the Respondent established the existence of sub-
stantially equivalent employment during any portion of
the backpay period and argues that Avallon is entitled to
the full amount of backpay set forth in the compliance
specification. The Respondent cross-excepts to the
judge’s determination that Avallon is entitled to backpay
for 2008 and 2011, arguing that Avallon is not entitled to
any backpay.
As discussed below, we find merit in the General
Counsel’s contention that the Respondent failed to estab-
lish the existence of substantially equivalent employment
during 2008–2010. Further, we adopt the judge’s finding
that the Respondent failed to establish the existence of
substantially equivalent employment during 2011. Hav-
ing found that the Respondent failed to meet its burden
of establishing the existence of substantially equivalent
employment during any portion of the backpay period,
we find that the discriminatee, Denise Avallon, is entitled
to backpay as set forth in the amended compliance speci-
fication.
II. DISCUSSION
An unfair labor practice finding by the Board that an
employee was unlawfully terminated “is presumptive
proof that some backpay is owed.” St. George Ware-
house, 351 NLRB 961, 963 (2007) (citing Arlington Ho-
tel Co., 287 NLRB 851, 855 (1987), enfd. in relevant
part 876 F.2d 678 (8th Cir. 1989)). The General Counsel
bears the burden of establishing the gross backpay due to
a discriminatee. Once the General Counsel has met this
burden, the Respondent may establish an affirmative
defense that would reduce its liability, including, for ex-
ample, willful loss of earnings. See Millennium Mainte-
nance & Electrical Contracting, 344 NLRB 516, 517
(2005); Chem Fab Corp., 275 NLRB 21, 21 (1985), enfd.
mem. 774 F.2d 1169 (8th Cir. 1985). The Board may
toll backpay during any portion of the backpay period in
which a discriminatee failed to mitigate her losses.
In this case, the General Counsel introduced the
amended compliance specification detailing the gross
backpay owed Avallon. The Respondent stipulated to
the accuracy of the gross backpay calculation, and that
amount is not in dispute. Having found that the General
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Counsel met his initial burden of establishing gross
backpay, we turn to the Respondent’s affirmative de-
fense.
The Respondent argues its backpay liability should be
reduced because Avallon failed to mitigate her losses. In
addressing such an argument, the Board is guided by
well-established principles. A respondent’s contention
that a discriminatee has failed to make a reasonable
search for work generally has two elements—one, that
there were substantially equivalent jobs within the rele-
vant geographic area and, two, that the discriminatee
unreasonably failed to apply for these jobs. St. George
Warehouse, above at 961.4 Although a backpay claimant
has a duty to mitigate her loss of income, she is held only
to a good-faith effort, not the highest standard for dili-
gence. Lundy Packing Co., 286 NLRB 141, 142 (1987),
enfd. 856 F.2d 627 (4th Cir. 1988). For a respondent to
prove its affirmative defense, it must show, on the part of
the backpay claimant, a “clearly unjustifiable refusal to
take desirable new employment.” Id. (quoting Phelps
Dodge Corp. v. NLRB, 313 U.S. 177, 199–200 (1941)).
Any doubts or uncertainties are resolved in favor of the
discriminatee, not the respondent. United Aircraft Corp.,
204 NLRB 1068, 1068 (1973); see also Midwestern Per-
sonnel Services, 346 NLRB 624, 625 (2006), enfd. 508
F.3d 418 (7th Cir. 2007).
In support of its argument that Avallon’s backpay
should be reduced, the Respondent commissioned Rhon-
da Jellenik, a certified rehabilitation counselor, to pro-
duce a report determining whether there were substantial-
ly equivalent jobs in the relevant labor market during the
backpay period. Jellenik’s report consists of three main
data sets: (1) job vacancy data during various quarters of
the backpay period; (2) wage data for individuals actual-
ly employed during the backpay period; and (3) tables of
individual job vacancies.5 Contrary to the judge, we find

4 Although traditionally the respondent has borne the burden of pro-
ducing evidence as to both elements of its affirmative defense, the
Board in St. George Warehouse modified the burden of production with
respect to the second element. Thus, if the respondent shows that there
were substantially equivalent jobs in the relevant geographic area, the
General Counsel bears the burden of producing evidence concerning
the reasonableness of the discriminatee’s job search. The General
Counsel can meet this burden, however, solely through the discrimi-
natee’s testimony, and the respondent bears the ultimate burden of
persuasion on its contention that a discriminatee failed to make a rea-
sonable search for work. St. George Warehouse, above at 963–965.
Members Pearce and McFerran note that no party has asked the
Board to overrule the burden-shifting framework established in St.
George Warehouse.
5 In addition to collecting information regarding driving jobs during
the backpay period, Jellenik performed a “transferrable skills analysis”
to identify non-driving jobs for which Avallon was qualified. The
Respondent’s burden, however, is not to establish the existence of any
jobs, but rather to establish the existence of substantially equivalent
the information presented in the report and about which
Jellenik testified is not sufficient to meet the Respond-
ent’s burden. Even assuming, arguendo, that this evi-
dence establishes the existence of some jobs, it does not
establish the existence of substantially equivalent jobs
within the relevant geographic area.6
In evaluating whether a position is “substantially
equivalent,” the Board compares various criteria, such as
pay,7 working conditions, job duties,8 commutes, and

jobs. St. George Warehouse, above at 964 (“When a respondent raises
a job search defense to its backpay liability and produces evidence that
there were substantially equivalent jobs in the relevant geographic area
available for the discriminatee during the backpay period, we will place
on the General Counsel the burden of producing evidence concerning
the discriminatee’s job search.”). The portions of Jellenik’s testimony
and report pertaining to jobs in food preparation and service, sales, and
office and administrative support are not probative of that issue. Addi-
tionally, discriminatees are not required to accept interim employment
with lower wages and less desirable working conditions. Pennsylvania
State Corrections Officers Assn., 364 NLRB No. 108, slip op. at 5
(2016) (citing Lundy Packing Co., above at 144). Moreover, the Board
has tolled backpay for discriminatees who did not look for work in their
field and instead sought lower-paying jobs in a different profession.
See, e.g., Aero Ambulance Service, 349 NLRB 1314, 1316 (2007)
(discriminatee’s failure “to pursue EMT work or work in related fields
‘was in essence a willful loss of earnings standing between [him] and
[his] right to backpay’” (quoting NHE/Freeway, 218 NLRB 259, 260
(1975), enfd. 545 F.2d 592 (7th Cir. 1976))).
6 The General Counsel excepted to the judge’s consideration of the
greater Boston area as part of the relevant geographic area. Because we
find that the Respondent’s evidence is not sufficient to establish the
existence of any substantially equivalent jobs, it is unnecessary to pass
on whether the judge erred in including the greater Boston area in his
analysis.
7 Board law “does not require that the wages of interim employment
be identical, but rather substantially equivalent.” First Transit, Inc.,
350 NLRB 825, 826 (2007). Thus, the Board has found that a job
driving a car for $8 per hour was substantially equivalent to the dis-
criminatee’s prior job driving a truck for $8.75 per hour. Id. at 826.
Two grocery store jobs were not substantially equivalent, however,
where one position paid $5.50 an hour which, on a weekly basis,
“amounts to just 68 percent of what de la Cruz earned per week at Met
Food, and demonstrates—along with the $1 per hour disparity in his
hourly wages at Met Food compared to Key Food—that his job at Key
Food was not substantially equivalent to his job at Met Food.” Met
Food, 337 NLRB 109, 109 (2001); see also Arlington Hotel Co., 287
NLRB at 854 (finding that a $3.35 per hour entry-level, minimum wage
job as a cook was not substantially equivalent to a $4.50 per hour job as
a more experienced cook); Lundy Packing Co., above at 145 (Edward
Stevens, above); id. (Aliene Raynor) (finding a position that provided
pay that was “substantially below the rate [discriminatee] would have
received if she had not been unlawfully discharged” was not substan-
tially equivalent employment); id. at 146 (Jesse Barksdale, above).
8 The Board has found that a position as corrections officer, which
involved care, custody, and control of prison inmates, was not substan-
tially equivalent to a position as union business agent, an office job
involving enforcement of a collective-bargaining agreement. Pennsyl-
vania State Corrections Officers Assn., above, slip op. at 5. Likewise,
the Board has found that work as a bartender and a film extra is not
substantially equivalent to work as an EMT. Aero Ambulance Service,
above at 1315–1316; see also Lord Jim’s, 277 NLRB 1514, 1516
(1986) (finding that busboy/bathroom cleaner job was not substantially
INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 25 3
work locations. Pennsylvania State Corrections Officers
Assn., above, slip op. at 5. The Board has also consid-
ered hours, shift scheduling, and benefits. See, e.g., Lun-
dy Packing Co., above at 145 (Edward Stevens) (finding
that a position that provided “low wages, heavy work,
long hours, and [the] absence of benefits” was not sub-
stantially equivalent to the position from which discrimi-
natee was discharged); id. at 146 (Jesse Barksdale) (cit-
ing lower wages, night shift, and lengthy commute in
finding interim employment not substantially equiva-
lent).
Jellenik’s report includes a job vacancy table that pulls
data from Massachusetts work force development job
vacancy surveys and provides the total number of job
openings throughout the state, the number of openings in
transportation and warehousing, and the type of opening
(private, part-time, seasonal/temporary) for the second
and fourth quarters of 2008 and 2009 and the second
quarter of 2010. The report does not, however, include
any additional information about the jobs, such as what
duties they entail or how much they pay. Even assuming
that this data proves the existence of some available jobs
during the relevant backpay period, it does not establish
the existence of any substantially equivalent jobs. Alt-
hough it is possible that some of the openings were sub-
stantially equivalent to employment Avallon would have
received through the Local 25 hiring hall, without data as
to pay, hours, or job duties it is impossible to establish
which or how many were. See Pennsylvania State Cor-
rections Officers Assn., above, slip op. at 5.
Jellenik’s report also includes wage data for three oc-
cupational titles: (1) truck drivers, light or delivery ser-
vices; (2) taxi drivers and chauffeurs; and (3) bus driver,
school or special client. For each of these three job cate-
gories, Jellenik provided for each year of the backpay
period the total number of individuals presently em-
ployed in these categories and a breakdown of the lowest
to highest wages statewide, as well as in discrete areas of
the state. The Respondent’s reliance on this data misses
the mark, however, because the data covers only individ-
uals already employed and does not establish the exist-
ence of open, available jobs within the relevant geo-
graphic area. Thus, the data appears to show that a per-
centage of employed drivers were receiving wages sub-
stantially equivalent to what Avallon would have been
paid for work secured through the Local 25 hiring hall,
but it does not show that there were any available jobs
offering similar wages and, if so, how many. Further,
even if we were to assume that wage data of presently

equivalent to cocktail waitress job) (cited by Pennsylvania State Cor-
rections Officers Assn., above, slip op. at 5).
employed individuals is relevant to determining the ex-
istence of substantially equivalent employment, we find
that the data presented here would still be insufficient to
meet the Respondent’s burden. Although the wage data
presented indicates that some portion of existing driving
jobs provided wages comparable to the driving work
Avallon would have secured through the Local 25 hiring
hall, Jellenik testified that she did not know whether Av-
allon would be qualified for those jobs if they had been
available. As the Board stated in St. George Warehouse,
it is the Respondent’s burden to “produce evidence and
prove that there were suitable jobs available for someone
with the discriminatee’s qualifications.” 351 NLRB at
963. The data relied on by Jellenik clearly does not meet
this standard.
Lastly, Jellenik included in her report a list of employ-
ers who were hiring for non-CDL drivers during the
backpay period. She provided the name of the company,
the timeframe, the position, and the salary. These posi-
tions, however, only paid approximately 44–74 percent
of what Avallon had earned from driving work secured
through Local 25. See, e.g., Lundy Packing Co., 286
NLRB at 145 (Aliene Raynor) (finding a “substantially
[lower]” pay rate not substantially equivalent employ-
ment). Additionally, the report does not provide hours,
addresses, or duties for these jobs so as to be useful in
determining whether they constituted substantially
equivalent employment.
In light of the foregoing, we find that Jellenik’s report
does not satisfy the Respondent’s burden of proving the
existence of substantially equivalent jobs under St.
George Warehouse. In so finding, we acknowledge the
Respondent’s contrary arguments based on St. George
Warehouse. Specifically, the Respondent argues that a
respondent can satisfy the requirement to show substan-
tially equivalent jobs in the relevant geographic area by
calling a vocational expert as a witness to testify that
there are a number of comparable jobs in the geographic
area based upon Bureau of Labor Statistics data or classi-
fied ads. The Respondent argues that Jellenik’s report
and testimony is comparable to the evidence of substan-
tially equivalent jobs the Board found sufficient in St.
George Warehouse.
The Respondent is correct that the respondent in St.
George Warehouse met its burden of establishing the
existence of substantially equivalent jobs in the relevant
geographic area through the introduction of expert testi-
mony. We disagree, however, that the same conclusion
is warranted here. The fact that specific expert testimony
was found sufficient in St. George Warehouse to meet
the respondent’s burden of proving the existence of sub-
stantially equivalent employment does not mean that any
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
expert testimony is sufficient to meet a respondent’s bur-
den. Further, as explained, Jellenik’s report provides job
opening data without wage or other relevant information,
wage data without job opening information, and job
openings with wages that are clearly not substantially
equivalent to the work and wages Avallon enjoyed when
referred to driving work by the Respondent. Such evi-
dence is insufficient to meet the Respondent’s burden
under St. George Warehouse.
Having found that Jellenik’s report does not establish
the Respondent’s burden of proving the existence of sub-
stantially equivalent employment, we find that Avallon is
entitled to backpay for the entire backpay period, as set
forth in the compliance specification.9
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Teamsters
Local 25, based in Charlestown, Massachusetts, its offic-
ers, agents, and representatives, shall make whole Denise
Avallon by paying her $47,320.91, plus interest accrued
to the date of payment as prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010),
and minus tax withholdings required by Federal and
State laws. In addition, we shall order the Respondent to
pay Avallon an additional sum for the adverse tax conse-
quences of the multiyear lump sum backpay award, as
prescribed in Don Chavas, LLC d/b/a Tortillas Don Cha-
vas, 361 NLRB 101 (2014).10 In addition, Local 25 shall
make whole the New England Teamsters & Trucking
Industry Pension Fund by contributing $11,010.86 on

9 In light of our finding that the Respondent failed to meet its bur-
den of proving substantially equivalent employment, it is not necessary
for us to reach the question of whether the discriminatee’s job search
was reasonable. We therefore find it unnecessary to pass on the judge’s
findings and the parties’ exceptions regarding the reasonableness of the
discriminatee’s job search.
Even assuming the testimony and report of the expert witness were
sufficient to meet the Respondent’s initial burden of establishing the
availability of substantially equivalent employment, Member McFerran
would find that the Respondent has not met its overall burden of estab-
lishing a “clearly unjustifiable refusal to take desirable new employ-
ment” Lundy Packing Co., 286 NLRB 141, 142 (1986), enfd. 856 F.2d
627 (4th Cir. 1988), quoting Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 199–200 (1941), and therefore Avallon is entitled to backpay for
the entire backpay period.
10 The Regional Director for Region 1 issued an amended compli-
ance specification on June 27, 2013, setting forth $1060.21 as the addi-
tional sum due Avallon for the adverse tax consequences of the multi-
year lump sum backpay award. As this Supplemental Decision &
Order issues in a different year than the amended compliance specifica-
tion, we recognize that the amount due Avallon may be higher or lower
than the amount listed in the amended compliance specification as her
tax situation may be different in 2018. We therefore leave to the Re-
gion to update this number as appropriate.
Avallon’s behalf, as well as any additional amounts due
the fund in accordance with Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (1979).
Dated, Washington, D.C. June 1, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Douglas Callahan and Scott F. Burson, Esqs., for the General
Counsel.
Michael A. Feinberg and Renee J. Bushey, Esqs., for the Re-
spondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This sup-
plemental proceeding was tried before me in Boston, Massa-
chusetts, on December 5–6, 2013. It followed issuance of a
Decision and Order, dated March 1, 2012 (358 NLRB 54) (the
Decision and Order), in which the National Labor Relations
Board (the Board) affirmed Administrative Law Judge Mark
Rubin’s decision finding that the International Brotherhood of
Teamsters, Local 25 (Local 25) operated an illegal hiring hall
by unlawfully failing and refusing to refer Denise Avallon for
employment from March 8, 2008, through August 24, 2011, in
violation of Section 8(b)(1)(A) and (2).1 The Board further
ordered Local 25 to, among other things, make Avallon whole
for any loss of earnings and other benefits suffered as a result
of its illegal conduct and consider her for future employment
referrals.2
Subsequent to the issuance of the Decision and Order, the
parties stipulated on April 23, 2013, that Local 25 would not
contest the propriety of the Decision and Order, but preserved
Local 25’s right to a hearing if the parties were unable to reach
agreement on the issue of backpay.3

1 GC Exh. 1(a).
2 On April 23, 2013, the Union and the General Counsel entered into
a stipulation conceding, in part, the propriety of the Board’s March 1,
2012 Order, including the findings of fact and conclusions of law un-
derlying said Order, and providing for the issuance of a compliance
specification and notice of hearing to resolve any disputes concerning
the amount of the make whole remedy due Avallon. (GC Exh. 1(c).)
3 GC Exh. 1(c).
INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 25 5
After failing to agree with the General Counsel as to the sum
of money necessary to make Avallon whole, Region 1 issued an
amended compliance specification and notice of hearing on
June 27, 2013, seeking $47,320.91 in net backpay,4 $11,010.86
for pension fund contributions and $1,060.21 for excess tax
liability, for a total of $59,346.45.5 Local 25 stipulated as to the
accuracy of the backpay calculated in the amended compliance
specification, but reserved the right to contest whether the Re-
gion: (1) reasonably determined the applicable backpay period;
(2) correctly included pension fund contributions, and (3)
properly imposed a Latino Express remedy. Local 25 also pre-
served an affirmative defense that Avallon willfully incurred a
loss of income by failing to conduct a reasonable job search
when substantially equivalent employment was readily availa-
ble.6
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Union, I make the following
FINDINGS OF FACT
The Compliance Specification
A. The Backpay Period
The backpay period, as set forth in the compliance specifica-
tion, begins on March 8, 2008, the date Avallon was placed on
the referral list under the terms of Teamsters Local 25 Motion
Pictures and Television Production Industry Referral Rules,
dated December 16, 2007 (2007 Referral Rules). About 3 years
later, those rules were replaced by Teamsters Local 25 Motion
Pictures and Television Production Industry Referral Rules,
dated February 24, 2011 (2011 Referral Rules). The 2011 Re-
ferral Rules required drivers to have commercial driver’s li-
censes (CDL), but provided a 6-month grace period for “Casual
List” drivers to obtain such certification.
Given Avallon’s conceded failure and/or inability to obtain a
CDL license, the Region ended the backpay period at the con-
clusion of the grace period, August 24, 2011.7 The undisputed
net backpay breaks down as follows:
Year Quarter 1 Quarter 2 Quarter 3 Quarter 4
2008 $1,656.72 $10,062.39 $5,510.95 $6,307.47
2009 0 1,401.66 13,309.03 $7,072.99
2010 350.42 $350.42 350.42 0
2011 $350.42 $350.42 $247.60 0

4 Backpay consists of hourly wages, vacation rates and meal allow-
ances. (GC Exh. 1(a), Exh. 1.)
5 In his brief, the General Counsel withdraws the claim for
$13,935.10 in missed contributions to Local 25’s health plan. (GC Exh.
1(d), (f), and (i).) In that respect, the testimony of Carol Blanchard,
executive director of Local 25’s health services and insurance plan, is
disregarded. (Tr. 86–96.).
6 GC Exh. 1(f) at 4; Tr. 7–9.
7 The 2011 Referral Rules were unambiguous as to their effective
date—February 24—and the additional 6-month grace period beyond
that date for members to obtain CDL licenses. (GC Exh. 2 at 6, 8; Tr.
27–28.) It is unclear, therefore, as to Local 25’s basis for sending out
warning letters on July 27, 2011, essentially reducing the grace period
by about 3 weeks. (GC Exh. 39.)
B. Pension Fund Contributions
The amended compliance specification also included a sum
for missed payments required by the collective-bargaining
agreement (CBA) during the backpay period to the New Eng-
land Teamsters & Trucking Industry Pension Fund (pension
fund).8 The fund currently has $2.7 billion in assets and 72,000
plan participants.9
Avallon is vested in the pension fund and is eligible to re-
ceive monthly pension payments in 2023. Pension fund contri-
butions are payable to vested members when they work at least
375 hours per calendar year. The financial health of the fund is
predicated on employers contributing to it pursuant to collec-
tive-bargaining agreements. Thus, the pension fund would be
harmed to the extent that it is ordered to provide Avallon with
additional pension credit without receiving the appropriate
amount of contributions.10
Based on the projected gross backpay, Local 25 would have
contributed $11,010.86 to the pension fund on her behalf.11 In
arriving at that amount, the Region relied on the average hours
worked by similarly situated “Casual List” employees referred
by Local 25, multiplying the hours by the applicable contribu-
tion rates, and calculating the following sums for each quarter
of the backpay period:12
Year Quarter 1 Quarter 2 Quarter 3 Quarter 4
2008 $558.88 $2,199.16 $1,157.19 $1,382.94
2009 0 $307.32 3,115.56 1,721.34
2010 $85.28 $85.28 142.96 0
2011 93.73 $93.73 67.49 0
With respect to any omitted contributions to the pension
fund, Local 25’s CBA with one employer, the New England
Motion Picture and Television Production Producers Associa-
tion, running from October 2008 to September 2013, specifies
the enforcement remedy available to Local 25; it is, however,
silent as to whether the same remedy would be available to
aggrieved members against Local 25. Article 9(d) of that CBA
stated, in pertinent part:
If the production company shall fail to make contributions to
the Pension Fund by the twentieth (20) day of the month fol-
lowing the month during which the Employees performed
work or received pay or were due pay within the scope of this
collective bargaining agreement . . . the Union shall have the

8 GC Exh. 5 at 2; GC Exh. 6 at 3.
9 This finding is based on the credible and unrefuted testimony of
Charles Langone, the pension fund’s administrator. (Tr. 97.)
10 Local 25 concedes that it would be liable to reimburse the pension
fund with contributions for additional pension credit awarded to Av-
allon as the result of a backpay award. (Tr. 101–103; R. Exh. 1.)
11 Langone testified that Avallon would have accrued pension bene-
fits for 2008 and 2009 totaling $184 based on the work hours listed in
the compliance specification, but nothing in 2010 since she would not
have met the annual “threshold” of at least 375 hours worked. (Tr. 99–
100.) The actual pension benefit, however, is irrelevant, as the com-
pensable amount is Local 25’s contributions to the pension fund on
Avallon’s behalf pursuant to the collective-bargaining agreement. See,
e.g., item 14 at p. 2 of the August 24, 2009 “Wichita” letter. (GC Exh.
6.)
12 GC Exh. 1(d), Exh. 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
right to . . . take whatever steps it deems necessary to secure
compliance with this Agreement . . . and the production com-
pany shall be responsible to the Employees for losses result-
ing there from. Also, the production company shall be liable
to the Trustees for all costs of collecting the payments due to-
gether with attorneys’ fees and such interest, liquidated dam-
ages or penalties which the Trustees may assess or establish in
their discretion.”13
C. Income Tax Reimbursement
Relying on the Board’s recent decision in Latino Express,
Inc., 359 NLRB 518 (2012), the amended compliance specifi-
cation also included the sum of $1,060.21 to reimburse Avallon
for the additional income tax burden she will incur after receiv-
ing a lump sum backpay award. The compensable amount con-
sists of the excessive tax burden of $844.98 resulting from the
backpay award and, since that too would be treated as income,
an additional $215.22 to cover the resulting tax consequences
of the reimbursement.14
Avallon’s Inability to Obtain Interim Employment
A. Avallon’s Experience and Qualifications Prior to the Back-
pay Period
Avallon is 54 years old and resides with her husband, a
welder, in North Attleboro, Massachusetts. She has a high
school diploma, approximately 2 years of college credits accu-
mulated over the course of 10 years, and has worked in a wide
assortment of positions. Avallon’s experience over the past 20
years includes customer service, clerical work, driving a deliv-
ery truck for UPS and a mail truck for Brown University, driv-
ing motion picture personnel in a 15-person van to and from
film locations, photography, and as a leasing agent. She has
never possessed more than a standard driver’s license. Avallon
is skilled at computer research and has some knowledge of
basic computer programs. She can lift as much as 50 pounds.15
Avallon’s hourly compensation over the past 20 years has
fluctuated significantly. She earned approximately $20 per
hour, plus overtime, from 1997 to 2003 while transporting 15-
passenger van transporting crew members from their hotels to
production locations. A full day could last as much as 17 hours
long, with overtime being paid after 65 hours per week. Alt-
hough sporadic, that work entitled Avallon to health benefits,
pension fund contributions, and a $50 daily meal allowance.
The duration of work assignments ranged from 10 to 24 days.
The most Avallon worked in a given year was 8 months. Dur-
ing nonwork periods between end of summer 2003 and March

13 While it is undisputed that Board law requires statutory interest to
be assessed on any retroactive pension contributions, the Board also
requires consideration of relevant documents in determining whether to
assess other costs as well. The evidence includes a provision enabling
Local 25, on behalf of the pension fund Trustees, to recoup any attor-
neys’ fees, interest, liquidated damages, or penalties from the produc-
tion company. There is no evidence in the record, however, contemplat-
ing a similar remedy against Local 25. (GC Exh. 6.)
14 GC Exh. 1(i) at 4–6; GC Exh. 4.
15 Avallon testified that she had difficulty performing heavy lifting,
but conceded that she can lift up to 50 pounds. (Tr. 28–30, 116–119,
149–150, 155, 158, 194.)
2004, she collected unemployment and performed part-time
work picture taking at BJs, computer ordering products (includ-
ed word and data processing), and scanning documents for an
insurance agency.16
From March 2004 to 2006, Avallon earned $11 per hour,
amounting to $25,000 annually, plus health benefits and a re-
tirement plan, while working as a driver/mail clerk for Brown
University.17 In that capacity, she routinely carried and deliv-
ered mail to various campus offices, but found it increasingly
difficult to lift heavy bulk mail. On one occasion, Avallon’s
supervisor reassigned her to clerical, nonlifting work in the
office. As a result, Brown put her to work inside for 2 weeks
until the pain went away. In August 2006, Avallon left to work
in real estate.18
From 2006 to 2008, Avallon worked 32 hours per week for
Tri Town Realty in North Attleboro as a leasing agent. In that
capacity, she completed typewritten form leases and showed
available apartment rentals. That job also paid $11 per hour, but
did not provide health or retirement benefits.19 While working
at Tri Town, Avallon periodically submitted applications for
office work-related positions at Brown University.20
On February 6, 2008, while still working at Tri Town Realty,
Avallon spoke with Mark Harrington, Local 25’s secretary-
treasurer about her desire to return to work as a driver on mo-
tion picture jobs and to have her name placed on the regular
employee list or the “Casual List.” Avallon’s request was de-
nied and she grieved that decision on March 6, 2008, stating
that “[y]ou have refused me work by not putting my name on
the regular employee list or the “Casual List.”21 In response,
Local 25 added her to the “Casual List” as number 145 on
March 11, 2008. In that position, Avallon was eligible for work
once the seniority list and the 144 members in front of her on

16 Avallon’s testimony regarding her general employment history
prior to the backpay period was generally credible and unrefuted. (Tr.
31–34, 139–145.)
17 Local 25 stipulated that work paying $11 per hour is substantially
equivalent to Local 25 work. (Tr. 34, 159.)
18 I was not convinced by Avallon’s statement that she was forced to
leave the Brown job because of the heavy lifting component of the
work. She conceded that she was accommodated at one point by being
assigned to clerical work when she experienced back pain and never
sought medical or other therapeutic support. Avallon also conceded that
she can lift up to 50 pounds. As such, I find it likely that she left to take
a more sedentary type of job as a real estate agent. (Tr. 34–36, 121,
146–148, 184–185.)
19 Avallon’s testimony about her employment at Tri Town was
vague and inconsistent as to the period she worked there. (Tr. 36, 159–
162.)
20 Local 25 asserts that these 10 job applications are relevant to show
a pattern as to why Avallon was unable to get work during the backpay
period and remains unemployed today. It also contends that she was
unqualified for these positions, but the General Counsel contends that
Avallon was familiar with word processing, including Adobe Acrobat,
and knows how to generate Excel spreadsheets. (R. Exh. 2–11; Tr.
157–158.) In any event, these applications provide little insight as they
were job searches performed during a period of time when Avallon was
working prior to the commission of the unfair labor practice on March
8, 2008.
21 R. Exh. 12.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 25 7
the casual referral list were exhausted.22 Avallon appealed that
decision on March 19, 2008, requesting that she be “restored to
my former position on the Movie Seniority Referral list along
with the other non CDL holders of Local #25 who have been
‘Grandfathered In” and are now working on productions in an
around the Boston area.”23
Sometime in early April 2008, while her appeal to be re-
stored to the Regular Seniority List was pending, Avallon gave
2-weeks notice and resigned from Tri Town Realty.24 She also
obtained a drivers’ certification from the Department of Trans-
portation on March 4, 2008. At that point, she expected to be-
called for driving jobs from the Casual List and wanted to be
available if and when that happened.25 On April 24, 2008, Av-
allon’s appeal was denied and she filed an unfair labor practice
charge the following day.26
B. Avallon’s Efforts to Find Interim Employment
Between March 2008 and August 2011, Avallon submitted
17 job applications, mostly online and to nearby universities.27
She limited her job search to full-time jobs in northeastern
Rhode Island and southeastern Massachusetts that paid at least
$10 per hour and provided health and retirement benefits.28
Avallon’s initial application was to Brown University in
April 2008, for a mail service coordinator position.29 In May
2008, she submitted three more applications30 with Brown Uni-
versity for positions as a secretary/receptionist position, office
assistant, and administrative assistant.31 From June to Novem-

22 GC Exh. 7.
23 R. Exh. 13.
24 Avallon’s testimony was vague and inconsistent as to when she
gave notice to Tri Town, but there is no doubt that it occurred after she
was placed on the casual list. (Tr. 174–176.)
25 Avallon’s assertion that there were ongoing movie productions
and she expected to be contacted for work is corroborated by Judge
Rubin’s findings that others listed before and after her on the casual list
were referred for driving work in 2008 and 2009. (Tr. 41, 175–177,
181; GC Exh. 1(a) at 5–6.)
26 R. Exh. 14–15.
27 The credibility of Avallon’s efforts to find employment during
portions of the backpay period was undermined by her failure to com-
ply with a subpoena to produce notes allegedly generated by her and
job rejection letters allegedly received. (GC Exh. 8.) Under the circum-
stances, I give no weight to a typewritten list that she generated for the
hearing, and allegedly relied on to refresh her recollection, as to what
was allegedly reflected in the missing notes. (Tr. 43, 50–52, 190–191.)
28 Avallon’s testimony that she did daily computer searches for inter-
im employment was not credible, given the lack of specificity and
corroboration. For similar reasons, I also did not credit her assertion
that she networked with family and friends or spoke with someone at
the unemployment office, who was unhelpful, even though he offered
her use of their computer databases. She also mistakenly referred to
southern Rhode Island instead of its northeastern portion, which is
where Brown University and Providence are located. (Tr. 56–60, 189,
203.)
29 GC Exh. 9.
30 I found Avallon’s explanation credible that discrepancies on the
latter applications as to why she left her previous position were at-
tributable to a simple failure to update her information on the form.
(GC Exh. 8, 10–12(a), 32; Tr. 204–205.)
31 I do not credit the conflicting testimony of Rhonda Jellenik, Local
25’s vocational expert, as to whether Avallon applied for office jobs for
ber 2008, Avallon submitted six applications for the following
openings: administrative assistant, financial assistant, office
assistant, stockroom assistant, staff assistant, and mail clerk.32
After submitting her November 5, 2008 application for the mail
clerk position, however, Avallon was informed by Brown Uni-
versity personnel that the college was in the midst of a hiring
freeze. The general hiring freeze lasted until about September
2010.33
Avallon did not apply for any positions anywhere between
November 2008 and June 2009.34 When she renewed her effort
to find employment, she did so sparingly.35 On June 24, 2009,
while Brown University’s general hiring freeze was still in
effect, she applied for a parking officer position.36 On Septem-
ber 9, 2009, she applied for a position as a special program
coordinator.37
In 2010, Avallon applied to three positions.38 On February 3,
2010, she reapplied to the parking officer position.39 On August
25, 2010, Avallon applied for an administrative assistant posi-
tion.40 On June 30, 2010, she applied for a library assistant
position at the Boyden Library in Foxborough, Massachusetts.
The position entailed basic computer operation, answering

which she was unqualified. As previously noted, Avallon knew how to
use several computer programs, including Microsoft Office and Excel.
(Tr. 231, 269–270.)
32 The first five of those job applications indicated that the applicant
had “No Interest to Interview.”
However, the cross-examination merely established that such an en-
try meant that Avallon was not contacted by Brown University. With
respect to her application for the mail clerk position, that opening was
cancelled due to a hiring freeze. (GC Exh. 32; Tr. 151–152.)
33 Avallon conceded being informed of the hiring freeze when she
applied in November 2008. (GC Exh. 33; Tr. 111–112, 186–188.)
34 Given Jellenik’s testimony that there were thousands of jobs avail-
able that fell within Avallon’s qualifications and experience in Massa-
chusetts, I did not credit Avallon’s sweeping assertion that “there was
nothing out there.” (Tr. 189.) Avallon may have been justified in limit-
ing her search to jobs within a 60-mile range. (Tr. 203.) However, I did
not find credible her assertion that she focused solely on openings that
had offered health, retirement, meal or vacation plans comparable to
Local 25’s (83–84). On cross-examination, she conceded that she never
considered benefits offered at the places that she did apply to in 2010
and 2011. (Tr. 120, 199–207.)
35 I credit Jellenik’s testimony that Avallon’s job search efforts were
virtually nonexistent. In her opinion, Avallon needed to send out at
least 5 to 10 resumes to different employers per week and attend job
fairs and career center for interviews. For example, Avallon never
applied to hospitals, who were major employers during the backpay
period. (Tr. 234–236)
36 GC Exh. 21–21(a); Tr. 66.
37 The job opening, entailing the coordination of all aspects of the
Year of India Program, involving lectures, art, conferences and out-
reach, was geared to applicants with event planning experience. (GC
Exh. 22–22(a).)
38 I did not credit Avallon’s vague and uncorroborated testimony,
supposedly refreshed by the dubious notes (GC Exh. 8), that she ap-
plied by email in 2010 for positions at Norfolk Power Equipment,
Whole Foods, and Natural Distributors, an unspecified child care agen-
cy, an unspecified furniture company, and temporary employment
agency . (Tr. 70–75.)
39 GC Exh. GC Exh. 24–24(a).
40 GC Exh. 25(a).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
telephones, and other clerical tasks.41
In 2011, Avallon applied to only two positions.42 On March
1, 2011, Avallon applied for a laundry/housekeeping supervisor
position and coordinator of plants and therapeutic animals at
Madonna Manor, a skilled nursing facility in North Attleboro.43
She also applied in or around May 2011, to Wheaten College
for a mailroom position.44
C. The Availability of Substantially Equivalent Jobs45
Based on Avallon’s employment history as a van driver, de-
livery driver, and leasing agent, she had transferrable skills to
customer service representative, retail clerk, receptionist, in-
formation clerk, food preparation worker, counter clerk, cafete-
ria attendant, hostess, rental clerk, sales representative, tele-
marketer, account collector, and courier. Although paying con-
siderably less per hour than driving in the movie industry, the
hourly wages are comparable when considering that work in
these areas is general steady work and not intermittent.46
Avallon’s residence in North Attleboro is located in South-
eastern Massachusetts, near the border between Massachusetts
and Rhode Island; her home is considerably closer to Provi-
dence, Rhode Island than Boston, which was about a 35-mile
commute.47 The following job vacancies existed during the
backpay period in the Greater Boston and Southeastern Massa-
chusetts areas in the transportation and warehousing:48 2008-
2nd Quarter: 1,015; 2008-4th Quarter: 943; 2009-2nd Quarter:
738; 2009-4th Quarter: 884; 2010-2nd Quarter: 1,024.49

41 GC Exh. 26–27; Tr. 68–69.
42 Again, I did not credit Avallon’s vague and uncorroborated testi-
mony that she applied by email for certain openings. As such, I do not
find that she applied in 2011 to a veterinary practice, Wheaten College,
and Sports Cars Unlimited. (Tr. 78–80.)
43 I did not credit Avallon’s testimony that she might have previous-
ly applied to Madonna Manor in 2010. (GC Exh. 29-30; Tr. 67, 75–77.)
44 GC Exh. 31.
45 Jellenik’s sweeping assertion that Avellon should have obtained
interim employment within 3 months was vague and unsubstantiated.
(Tr. 238–240.) Accordingly, I gave it no weight.
46 Local 25 provided expert testimony by Jellenik regarding the
availability of substantially equivalent jobs and Avallon’s qualifications
to perform them. Her report, as well as the job surveys that she relied
upon, were previously provided to the General Counsel, who had no
objection to its receipt in evidence. Accordingly, I credit her testimony
regarding applicable state and Federal employment statistics. (R. Exh.
17; Tr. 208–209, 214–219.)
47 Jellenik did not provide statistics relating to available employment
in Rhode Island, but conceded that its unemployment rate was consist-
ently higher than Massachusetts’ rate during the backpay period. (256–
258)
48 I relied on Jellenik’s statistics of job vacancies in these areas,
which were within reasonable commuting distance of Avallon’s home,
but not those in Northeastern Massachusetts. (R. Exh. 17 at 2.). I also
did not rely on statewide estimates of 10,000 to 15,000 available trans-
portation jobs 20,000 office jobs since they would have included jobs
that were not within reasonable commuting distance to Avellon’s resi-
dence. (Tr. 220–225, 229–330; R. Exh. 17 at 16–17.)
49 The Massachusetts Workforce Development surveys for transpor-
tation jobs were issued twice a year in 2008 and 2009, once in 2010 and
not issued in 2011. (R. Exh. 17 at 2; Tr. 221.) In the absence of evi-
dence from the General Counsel indicating that those statistics were
In addition, the following job openings existed during the
backpay period in the Greater Boston and Southeastern Massa-
chusetts areas in food service, sales and office/administrative
support: 2008-2nd quarter: 15,509; 2008-4th quarter: 13,509;
2009-2nd quarter: 9,856; 2009-4th quarter: 16,928; 2010-2nd
quarter: 17,445.50
Legal Analysis
Backpay
The prior determination that Local 25 committed an unfair
labor practice is presumptive proof that Avallon is owed a cer-
tain amount of backpay. Minette Mills, Inc., 316 NLRB 1009,
1010–1011 (1995); Arlington Hotel Co., 287 NLRB 851, 855
(1987), enfd. 876 F.2d 678 (8th Cir. 1989); NLRB v. Mastro
Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. denied
384 U.S. 972 (1966). The General Counsel’s burden was, there-
fore, limited to showing the gross backpay due Avallon. J. H.
Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223, 230–231 (5th Cir.
1973), cert. denied 414 U.S. 822 (1973). In that regard, the
General Counsel need show only that the gross backpay
amounts contained in the compliance specification were rea-
sonable and not an arbitrary approximation. Performance Fric-
tion Corp., 335 NLRB 1117 (2001); Mastell Trailer Corp., 273
NLRB 1190, 1190 (1984). Local 25 does not contest the rea-
sonableness of the compliance specification and, therefore, its
calculations will be relied upon as the amount of gross backpay
that would have been earned by Avallon as a driver in the mov-
ie industry during the backpay period.
As the General Counsel established gross backpay, the bur-
den shifted to Local 25 to establish facts warranting a reduction
of the amount due for gross backpay. Atlantic Limousine, 328
NLRB 257, 258 (1999); Florida Tile Co., 310 NLRB 609
(1993); Hacienda Hotel & Casino, 279 NLRB 601, 603 (1986).
This burden can only be met, however, by a showing that: (1)
there were substantially equivalent jobs within the relevant
geographic area; and (2) the discriminatee unreasonably failed
to apply for these jobs. St. George Warehouse, 351 NLRB 961,
961 (2007), affd. and enfd. 645 F.3d 666 (3d Cir. 2011).
A. The Backpay Period
Local 25’s initial contention in attempting to reduce gross
backpay is to shorten the backpay period. The compliance spec-
ification alleges that the backpay period commenced on March
8, 2008 and ended on August 24, 2011, at the end of the 6-
month grace period provided in the updated 2011 Referral
Rules. Local 25 does not dispute the commencement date, but
contends that the backpay period ended March 24, 2011, since
Avallon failed to obtain a CDL license during the 6-month
grace period under the 2011 Referral Rules.

inaccurate or unreliable, I credit them as illustrative of transportation
employment opportunities during 2008, 2009 and 2010.
50 I excluded job openings listed for the Northeastern Massachusetts
category. (R. Exh. 17 at 13–15.) Moreover, with respect to the listings
of openings at 45 companies at unspecified locations between March
2008 and February 2011, I considered only the hourly wage rates to the
extent that they demonstrated the substantially equivalent nature of
such work. (Id. at 15–16.)
INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 25 9
It is well established that where there are uncertainties or
ambiguities, doubts should be resolved in favor of the wronged
party rather than the wrongdoer. United Aircraft Corporation,
204 NLRB 1068, 1068 (1973). In United Aircraft Corporation,
the Board held that the backpay claimant should receive the
benefit of any doubt rather than the Respondent, the wrongdoer
responsible for the existence of any uncertainty and against
whom any uncertainty must be resolved. Id. Further, in Stage-
hands Referral Service where the Respondent disputed the
close of the backpay period chosen by the General Counsel, the
Board emphasized the remedial purpose of the Act and adopted
the General Counsel’s end date for the backpay period. Stage-
hands Referral Service 354 NLRB 83, 89 (2009) (refusing to
shorten the backpay period pursuant to a subsequent union
referral for only 2 days because it would not further the remedi-
al purposes of the Act).
A plain interpretation of the 2011 Referral Rules provides
that Avallon’s eligibility for work referrals ended on August
24, not March 24, 2011, Indeed, Local 25 waited until almost 6
months after the 2011 Referral Rules went into effect before
reminding applicable members that the 6-month grace period
was approaching and warning that they risked revocation of
eligibility if they failed to obtain a CDL license. Local 25’s
contention that Avallon should not be afforded the benefit of a
grace period because she failed to obtain a CDL license is un-
founded. Avallon continued to have the right to be referred
work from Local 25’s hiring hall during that period of time
regardless of whether or not she obtained a CDL license.
Moreover, since it is unclear as to whether Avallon under-
took a good faith effort to obtain a CDL license during the
grace period, any doubt or uncertainty in the evidence must be
resolved in her favor. NLRB v. NHE/Freeway. Inc., 545 F.2d
592, 594 (7th Cir. 1976) (resolving doubt in favor of the dis-
criminatees where there was uncontradicted and corroborated
evidence that discriminatees sought work at numerous institu-
tions during the backpay period, but some of those institutions
had no record of the applications being filed); NLRB v. Miami
Coca-Cola Bottling Co., 360 F.2d 569, 572–573 (5th Cir. 1966)
(resolving uncertainty against employer whose unlawful dis-
crimination made it impossible to determine whether the dis-
charged employee would have earned a monetary safety award,
which was included in the backpay). Accordingly, the backpay
period is determined to have commenced on March 8, 2008 and
ended on August 24, 2011.
B. The Availability of Substantially Equivalent Jobs
Local 25’s initial burden is to prove the availability of sub-
stantially equivalent jobs available within the relevant geo-
graphic area for someone with the discriminatee’s qualifica-
tions. St. George Warehouse, supra at 963.
Local 25 met its burden by proving that vacancies existed for
substantially equivalent jobs existed in 2008, 2009 and 2010 in
the Greater Boston and Southeastern Massachusetts areas.51
Southeastern Massachusetts was in the immediate proximity of

51 It is insignificant that Local 25’s did not interview Avallon or con-
sult any employer regarding her prospects for any job opening. St.
George’s Warehouse, 351 NLRB at 962.
Avallon’s residence, while the Greater Boston area involved
commuting distances of approximately 40 miles. Local 25 did
not, however, produce reliable evidence that such opportunities
existed in 2011. Its vocational expert opined that suitable job
vacancies existed in the Greater Boston and Southeastern Mas-
sachusetts areas at all times between 2008 and 2011, but pro-
vided only statistics from 2008 through 2010. Therefore, Local
25 failed to carry its burden of proof that there were substantial-
ly equivalent jobs within the appropriate geographic areas in
2011. See Acosta v. Acosta, 725 F.3d 868 (8th Cir. 2013) (un-
supported expert opinion must be excluded), citing FRE 702(d)
(requiring that expert opinion be based on sufficient facts or
data); Burgard v. Super Valu Holdings, Inc., 113 F.3d 1245
(10th Cir. 1997) (rejecting vocational expert’s opinion as con-
clusory and unsupported by any evidence of the number and
types of suitable and equivalent jobs in the appropriate geo-
graphic area).
C. Avallon’s Efforts to Find Interim Employment
Local 25 also contends that Avallon unreasonably resigned
from her job at Tri Town in April 2008 and then failed to un-
dertake a good-faith search for interim work. The General
Counsel contends that Avallon registered at Local 25’s hiring
hall and reasonably expected to be called back to work in the
movie industry. Given the sporadic nature of such work, she
then undertook a search for suitable work by applying to job
openings in southeastern Massachusetts.52
It is undisputed that Avallon voluntarily resigned from Tri
Town in April 2008, in order to make herself available for a
return to anticipated work as a driver for the movie industry.
Under the circumstances, the burden shifted back to the Gen-
eral Counsel to show that Avallon’s decision to resign from Tri
Town was reasonable and does not warrant an offset to gross
backpay. First Transit, Inc., 350 NLRB 825, 826–827 (2007)
(discriminatee’s resignation from interim employment was
unreasonable when he resigned solely due to a pay cut);
Grosvenor Resort, 350 NLRB 1197, 1201 (2007) (discrimi-
natee’s resignation from interim job after coworker embar-
rassed her in front of customers was unreasonable). As previ-
ously noted, that burden was satisfied by Judge Rubin’s deci-
sion that there were ongoing movie productions at the time and
other Local 25 members listed before and after her on the Cas-
ual List were referred for driving work in 2008 and 2009.
Local 25’s also advances several arguments as to why an
offset to backpay is warranted for the remainder of the backpay
period. First, Local 25 argues that Avallon failed to undertake a
reasonably diligent search for interim employment after leaving
Tri Town because she was being supported by her husband and
did not need to work. Further, Local 25 asserts that it was not
reasonable for Avallon to focus almost exclusively on positions
with universities, submit so few applications over the backpay
period.
A discriminatee is entitled to backpay if he or she makes a
reasonably diligent effort to obtain substantially equivalent

52 I reject Local 25’s contention that Avallon’s unsuccessful job ap-
plications in 2006 to 2008, while still employed, created a pattern that
is probative of her being unqualified for positions that she applied to
during the backpay period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
employment. The Lorge Sch. & Linda Cooperman, 355 NLRB
558, 560 (2010) (discriminatee applied to over 600 jobs during
an 8-month job search); Flannery Motors, Inc., 330 NLRB 994,
995 (2000) (discriminatees sought substantially equivalent
mechanic positions and had no duty to search for more lucra-
tive employment). Such a search need not consist of a specific
method that the respondent thinks would have been more suc-
cessful. United States Can Co., 328 NLRB 334 (1999), enfd.
254 F.3d 626 (7th Cir. 2001); Continental Insurance Co., 289
NLRB 579 (1982). A discriminatee need not seek employment
“which involves conditions that are substantially more onerous
than [her] previous position,” such as traveling distances sub-
stantially further from one’s home. St. George Warehouse, Inc.,
645 F.3d 666, 673 (3d Cir. 2011). However, while the Board’s
analysis of the effort to find interim work does not depend upon
a purely mechanical examination of the number or kind of ap-
plications generated, a discriminatee’s search for work must be
more than sporadic. Moran Printing, Inc., 330 NLRB 376
(1999).
Avallon submitted 17 job applications between March 2008
and August 2011, a period of about 3-1/2 years. She submitted
the applications mostly online and to nearby universities. Av-
allon also limited her job search to full-time jobs in northeast-
ern Rhode Island and southeastern Massachusetts that paid at
least $10 per hour and provided health and retirement benefits.
Her job efforts essentially break down into three periods of
time.
From April 2008 to November 2008, Avallon conducted a
reasonable search for employment by submitting 10 job appli-
cations. She was qualified for those openings based on her
skills and qualifications in customer service, clerical work,
driving commercial vehicles, photography, real estate leasing,
and basic computer operation and research. See In Re J.J. Cas-
sone Bakery, Inc., 356 NLRB 951 (2011) (citing Mastro Plas-
tics, 136 NLRB 1342, 1359 (1962)) (employees made reasona-
ble efforts to find interim employment based on their skills,
qualifications, ages and labor conditions in the area). Avallon
reasonably limited the scope of her job search to northeastern
Rhode Island and southeastern Massachusetts where her home
is considerably closer to Providence, Rhode Island than Boston,
which was about a 35 mile commute. She was not obligated to
search for work in northeastern Massachusetts, which involved
substantially more onerous travel than her previous position.
See, e.g., NLRB v. St. George Warehouse, Inc., 645 F.3d at 673
(discriminatee was not obligated to look for jobs substantially
further than his former employer was from his home); NLRB v.
Westin Hotel, 758 F.2d 1126, 1130 (6th Cir. 1985) (employee
acted reasonably in choosing not to apply for available posi-
tions 25 miles away from home, where her previous employer
was located, because she did not have adequate transportation).
From November 2008 to June 2009, however, Avallon failed
to submit any job applications. Her situation is similar to the
one in Glenns Trucking Co., 344 NLRB 377 (2005). There, the
Board held that the discriminatee failed to exercise reasonable
diligence in searching for interim employment where the dis-
criminatee went nearly a year with no evidence of any job
search efforts, and tolled his backpay accordingly.
From June 2009 to May 2011, Avallon’s job search was spo-
radic and she submitted only 7 job applications. Board analysis
of a job effort does not depend upon a purely mechanical exam-
ination of the number or kind of applications for work made by
a discriminatee. Mastro Plastics Corp. supra at 1359. However,
Avallon’s inactivity during this period of time was similar to
the one portrayed in Moran Printing, where the Board held that
the discriminatee failed to exercise reasonable diligence in
seeking interim employment by merely signing the hiring hall’s
out-of-work book and having his union representative sign his
unemployment forms. Moran Printing, Inc. supra at 376–377.
Moreover, this situation is distinguishable from cases where
discriminatees were found justified in relying on job referrals
from a union hiring hall. See Big Three Indus. Gas & Equip.
Co., 263 NLRB 1189, 1198 (1982) (discriminatee relied on
union hiring hall and obtained regular interim employment
which required roughly the same degree of skill). In Midwest-
ern Personnel Services, Inc., 508 F.3d 418, 423–424 (7th Cir.
2007), the Seventh Circuit affirmed the Board’s backpay award
where the discriminatee secured six jobs through the hiring hall
list, found work on his own and registered with the state unem-
ployment agency. In this case, however, Avallon recognized as
far back as March 2008, that she would not be able to rely on
her referral work from Local 25 and would need to look for
alternative work.
In conclusion, Avallon did not undertake a reasonable job
search in 2009, 2010, and 2011; her job search in 2011, howev-
er, is irrelevant since Local 25 failed to meet its burden of
demonstrating the availability of substantially equivalent em-
ployment during that period of time.
D. Net Backpay
Based on the foregoing, Avallon is entitled to backpay for
the four quarters of 2008 based on her demonstrated efforts
during that time to obtain interim employment. Moreover, due
to Local 25’s failure to demonstrate the existence of available
interim employment at any time in 2011, Avallon is entitled to
backpay for the first three quarters of 2011. Backpay is tolled
for all of the claimed quarters in 2009 and 2010. Accordingly,
Avallon is owed $24,485.97 in net backpay based on the fol-
lowing amounts payable per quarter:
Year Quarter 1 Quarter 2 Quarter 3 Quarter 4
2008 $1,656.72 $10,062.39 $5,510.95 $6,307.47
2009 0 0 0 0
2010 0 0 0 0
2011 $350.42 $350.42 $247.60 0
PENSION FUND CONTRIBUTIONS
The compliance specification included the sum of
$11,010.86 in payments owed to the pension fund on Avallon’s
behalf during the backpay period. Local 25 did not contest the
accuracy of that gross calculation, which was based on the
number of hours worked during the backpay period by compa-
rable employees multiplied by the applicable contribution
rates.53 Moreover, it concedes that Avallon has an economic

53 Local 25 produced evidence as to the additional monthly pension
benefit to Avallon, but the compensable amount at issue is the contribu-
INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 25 11
interest in the future of the pension fund and is entitled to have
contributions made to the fund on her behalf, but only to the
extent that she is found to have used reasonable diligence in her
job search.
Based on the compensable sum of net backpay owed Av-
allon, Local 25 is obligated to make whole the pension fund by
contributing the corresponding amount of pension contribution,
$5,553.12.54 That amount is based on the following contribu-
tions per compensable quarter:
Year Quarter 1 Quarter 2 Quarter 3 Quarter 4
2008 $558.88 $2,199.16 $1,157.19 $1,382.94
2009 0 0 0 0
2010 0 0 0 0
2011 $93.73 $93.73 $67.49 0
INCOME TAX REIMBURSEMENT
Pursuant to its decision in Latino Express, Inc., 359 NLRB
518 (2012), the Board requires that respondents reimburse dis-
criminatees for the adverse income tax consequences incurred
by a lump-sum backpay award covering more than 1 year and
to file a report with the Social Security Administration allocat-
ing the backpay award to the appropriate calendar quarters.
The compliance specification includes an additional sum for
the specific adverse tax consequence and Local 25 does not
dispute the reasonableness of that gross calculation. It does
contend, however, that Latino Express is inapplicable if Av-
allon’s backpay award does not exceed 1 year. As previously
noted, Avallon is entitled to backpay for 2008 and 2011. Ac-
cordingly, Avallon will be compensated for the adverse tax
consequences of the lump-sum award of $24,485.97. The
amount payable is the extent to which the Federal and State tax
for that award exceeds the aggregate amount of taxes had the
backpay been received incrementally each year. In addition,
Avallon shall be reimbursed for the incremental tax resulting

tions owed to the pension fund simultaneous with the payment of back-
pay pursuant to the CBA.
54 As previously noted, the record is devoid of evidence authorizing,
on behalf of the pension fund, the imposition of liquidated damages,
attorneys fees (not applicable here), and monetary penalties.
from the payment of the excess taxes on her behalf. For pur-
poses of making such tax calculations, Exhibit 4 to the amend-
ed compliance specification is revised as follows:
Year Taxable
Income
(Backpay)
Filing Status Federal Tax State Tax
2008 $23,537.53 Married
Filing Joint-
ly/Widower
$2,728.13 $1,247.49
2011 948.44 Married
Filing Joint-
ly/Widower
94.84 50.27
Taxes Paid $2,822.97 $1,297.27
2008-
2012
$24,485.97
CONCLUSION
Based on the findings and analysis set forth above, and on
the entire record, I issue the following recommended supple-
mental55
ORDER
Respondent, the International Brotherhood of Teamsters,
Local 25, its officers, agents, successors and assigns, shall
make whole discriminatee Denise Avallon by paying her
$24,485.97 in net backpay and an additional sum for the excess
income taxes resulting from such award, plus interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010), accrued to the date of payment, and minus
tax withholding required by Federal and State law. In addition,
Local 25 shall make whole the New England Teamsters &
Trucking Industry Pension Fund by contributing $5,553.12 on
Avallon’s behalf.
Dated, Washington, D.C. February 20, 2014

55 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.