Kentucky River Medical Center

National Labor Relations Board - Administrative Judge Opinions

Feb 22, 2007

09-CA-037734 (N.L.R.B. Feb. 22, 2007)

JD(ATL)–7–07
Jackson, KY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
JACKSON HOSPITAL CORPORATION,
D/B/A KENTUCKY RIVER MEDICAL
CENTER
and CASES 9–CA–37734
9–CA–37795–1, –2
UNITED STEELWORKERS1 9–CA–37796
9–CA–37875
and 9–CA–38084–1, –2
9–CA–38237
ANITA TURNER, An Individual 9–CA–38468
Julius U. Emetu, II, Esq., for the General
Counsel.
Randy Pidcock, District Organizing
Coordinator, for the Charging Party.
Don T. Carmody, Esq., Bryan T. Carmody,
Esq., and Sam Braunstein, Esq. for
Respondent.
SUPPLEMENTAL DECISION AND ORDER
Statement of the Case
MARGARET G. BRAKEBUSCH, Administrative Law Judge. A Decision and
Order of the National Labor Relations Board issued on September 30, 2003, finding, among
other things, that Jackson Hospital Corporation, D/B/A Kentucky River Medical Center,
herein Respondent, discriminatorily discharged eight employees in violation of Section
8(a)(3) of the National Labor Relations Act. The Decision and Order further provided that the
unlawfully terminated employees be reinstated and made whole for any loss of earnings or

1 Upon the Charging Party Union’s unopposed motion at hearing, the name of the Union was changed for
the record from United Steelworkers of America to “United Steelworkers.”
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other benefits, computed on a quarterly basis, from the date of their discharges until the dates
of the Respondent’s offers of reinstatement, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest, as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). On June 3, 2005, the United States Court of Appeals for
the District of Columbia Circuit, herein the Court, entered its Judgment enforcing the Board’s
Order.
A controversy having arisen over backpay due, the Regional Director for Region 9 of
the National Labor Relations Board, herein the Board, issued a compliance specification and
notice of hearing on August 18, 2006. While the Board’s Order, as enforced by the Court,
required reinstatement and a make whole remedy for all eight discriminatees, the compliance
specification dealt only with backpay for Eileene Jewell, herein Jewell; Debra Miller, herein
Miller; Lois Noble; herein Noble, and Maxine Ritchie, herein Ritchie.2 Because Respondent
has failed to reinstate the remaining three discriminatees, the appropriate backpay amount
cannot be fully litigated. The Regional Director has reserved the right to issue a compliance
specification to determine the correct amount owed to the remaining discriminatees once the
issues regarding their reinstatement have been resolved and the backpay is tolled.
A hearing was held before me on multiple dates commencing October 18, 2006 and
concluding on November 28, 2006.3 The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses, argue orally, and file briefs. Upon
the entire record, including my observation of the demeanor of the witnesses, I find the
following:
I. Preliminary and Procedural Matters
A. General Counsel’s Motion for Partial Summary Judgment
Section 102.56(b) of the Board’s Rules and Regulations state in relevant part:
(b) Contents of answer to specification. The answer shall specifically admit, deny,
or explain each and every allegation of the specification, unless the respondent
is without knowledge, in which case the respondent shall so state, such
statement operating as a denial. Denials shall fairly meet the substance of the
allegations of the specification at issue. When a respondent intends to deny
only a part of an allegation, the respondent shall specify so much of it as is true
and shall deny only the remainder. As to all matters within the knowledge of
the respondent, including but not limited to, the various factors entering into

2 The compliance specification did not include any backpay owed for discriminatee Laotta Sizemore
because her interim earnings exceed her gross backpay.
3 The hearing began on October 18, 2006 and continued through the next day. On October 19, 2006, the
case was continued to allow Respondent additional time to subpoena necessary witnesses. The hearing
resumed and concluded on November 28, 2006.
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the computation of gross backpay, a general denial shall not suffice. As to
such matters, if the respondent disputes either the accuracy of the figures in the
specification or the premises on which they are based, the answer shall
specifically state the basis for such disagreement, setting forth in detail the
respondent’s position as to the applicable premises and furnishing the
appropriate supporting figures.
At the opening of the hearing, Counsel for the General Counsel moved for partial
summary judgment with respect to paragraphs one through four of the compliance
specification. Counsel for the General Counsel asserted that in its answer, Respondent had
not complied with the Board’s Casehandling Manual Part III4 that requires a respondent to
specifically state the basis for a denial and to furnish alternative figures and amounts.
Section 10652.2 of the Board’s Casehandling Manual, Part III, herein Compliance
Manual, provides in pertinent part:
Section 102.56(b) of the Board’s Rules and Regulations provides that if the
respondent disputes the accuracy of the backpay amount or the premises on
which it is based as alleged in the compliance specification, its answer to the
compliance specification shall specifically state the basis of the disagreement,
setting forth in detail the respondent’s position as to applicable premises and
furnishing appropriate alternative figures and amounts. General denials by the
respondent to allegations regarding the calculation of backpay are not
sufficient and do not comply with the requirements of Section 102.56(b) and
(c) of the Rules and Regulations. Pursuant to a motion for summary judgment,
the administrative law judge or the Board may deem these allegations to be
admitted as true.
Accordingly, General Counsel moved that Respondent be precluded from offering any
evidence to attack the gross backpay computation for “Appendix A,” sections one through
four. General Counsel further clarified that while Respondent could offer evidence on interim
earnings, Respondent should be precluded from offering evidence concerning gross backpay.
Section 1 of the compliance specification alleges that the backpay period for each
discriminatee begins on the date of the discriminatee’s discharge as set forth in the Board’s
Order and in Appendix A of the compliance specification and ends on August 5, 2005, the
response date for Respondent’s valid offer of reinstatement. In its answer, Respondent denies
the allegations set forth in Paragraph 1 of the specification relative to the definition of the
“backpay period” and avers that the “backpay” period for each discriminatee ends on July 19,
2005, the date of Respondent’s offer of reinstatement to each respective discriminatee.
Section 2 of the compliance specification alleges that gross backpay, interim earnings

4 Section 10652.2.
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and net backpay are computed on a quarterly basis with 13 weeks in a full calendar year. The
specification further alleges that partial calendar quarters are based on the date of the
discriminatee’s discharge or the date the discriminatee’s backpay tolled as set forth in
Appendix A. In the answer to section 2, Respondent admits the allegations relative to the
specification’s definitions of “gross backpay, interim earnings, and net backpay” being
“computed on a quarterly basis,” and relative to “13 weeks in a full calendar quarter” and
relative to “partial calendar quarters [being] based on the date of the discriminatee’s discharge
or the date of the discriminatee’s backpay [being] tolled.” Respondent thereafter adds:
“except denies the allegations that the foregoing are ‘as set forth in Appendix A.’”
Section 3 of the Specification alleges that gross backpay are wages that discriminatees
would have earned during the backpay period but for Respondent’s unlawful discrimination
against them. The specification further avers that quarterly gross backpay is based upon the
weekly average of the wages earned by each discriminatee while employed by Respondent
during calendar year 2000, plus subsequent wage increases, as set forth in Appendix A. In the
answer, Respondent admits the allegations of the specification relative to the definition of
“gross backpay” and relative to “quarterly gross backpay [being] based upon the weekly
average of the wages earned by each discriminatee while employed by [Kentucky River]
during the calendar year 2000, plus subsequent wage increases.” Respondent thereafter adds:
“except denies the allegations that the foregoing are ‘as set forth in Appendix A’.”
Section 4 of the specification alleges that wage increases for each discriminatee during
the backpay period are a percentage increase in the quarterly gross backpay based on the
increases in hourly wages granted by Respondent during the backpay period, as set forth in
Appendix A. The Respondent admits the allegations of the specification with respect to the
definition of wage increases; however, Respondent adds a denial that the allegations are as set
forth in Appendix A.
Analysis and Conclusions
In order to avoid summary judgment, a respondent’s answer to the compliance
specification must be “sufficiently specific to raise a litigable issue of fact.” Aneco, Inc., 330
NLRB 969, 971 (2000). It is also well settled, however, that a respondent may properly cure
defects in its answer before a hearing either by an amended answer or a response to a notice to
show cause. Mining Specialists, Inc., 330 NLRB 99, 101, fn. 12 (1999); Ellis Electric, 321
NLRB 1205, 1206 (1996); Vibra-Screw, Inc. 308 NLRB 151, 152 (1992).
Section 10652.2 of the Compliance Manual provides that in the event the answer is
defective, the Region should file a motion at the compliance hearing that the administrative
law judge deem allegations not properly answered be admitted without taking evidence in
support of the allegations and precluding the respondent from offering evidence to controvert
them. The section also provides:
Before filing either a motion with the Board or with the administrative law
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judge, the trial attorney should advise the respondent in writing that the answer
is deficient and, following the procedures in Section 10652.1, allow the
respondent a period of time, typically not to exceed 1 week, to file an amended
answer.
There is no dispute that prior to Counsel for the General Counsel’s motion for partial
summary judgment, there was no notice to Respondent that its answer was deficient and there
was no notice to Respondent that the Region intended to seek a motion for summary judgment
because of any perceived deficiency. At the beginning of the hearing, Counsel for the
General Counsel also amended paragraphs 5 and 6 of the compliance specification to conform
to the Compliance Manual and to conform to the definitions in Respondent’s answer.
By the admissions contained in paragraphs 2 through 4 of the answer, Respondent
does not dispute General Counsel’s process for computing gross backpay, including the
provision for wage increases. In paragraph 1 of the answer, however, Respondent denies the
backpay period and asserts that backpay for the discriminatees is tolled on July 19, 2005
rather than August 5, 2005 as alleged in the compliance specification. Thus, Respondent’s
answer appears to admit all the pertinent allegations contained in paragraphs 1 through 4 of
the complaint, with the exception of the specific date for the tolling of backpay. Despite the
admissions as described, Respondent inserts a conclusionary phrase: “except denies the
allegations that the foregoing are ‘as set forth in appendix A’ “at the end of paragraphs 1
through 4.
The Respondent’s answer to the compliance specification, considered in isolation, is
arguably deficient because of Respondent’s insertion of the blanket denial following the
admission of all other terms in paragraphs 2 through 4. Thus, Respondent has generally
failed, as required by the Board’s rules, to reveal with sufficient specificity, the basis on
which the Respondent disagrees with the specification’s allegations. The inserted denial
phrase provides no specificity and appears to be conclusionary only. In determining whether
a respondent has satisfied the Board’s requirements, the Board will construe the pleadings “in
the light most favorable” to the non-moving party. Eldeco, Inc., 336 NLRB 899, 900 (2001).
Accordingly, in light of the Board’s tendency to construe pleadings in this manner and
inasmuch as Respondent was not given notice of the deficiency of the answer, I denied
General Counsel’s motion for partial summary judgment. I further note that while an answer
may be insufficient as to matters within a respondent’s knowledge and control, it is sufficient
as to issues of interim earnings. Everman Electric Co., Inc., 334 NLRB No. 6, slip op at 3,
(2001); Dews Construction Corp., 246 NLRB 945, 946-947 (1979). While the denials in
Respondent’s answer in paragraph 2 through 4 may unclearly fail to refer to interim earnings,
it is apparent that it is interim earnings and net backpay rather than the gross backpay that are
in dispute with respect to these three paragraphs. With respect to paragraph one of the
answer, Respondent specifically denies the date of the tolling of the backpay period and
submits the alternative date. Such specificity is sufficient to raise a litigable issue of fact
regarding the closing date of the backpay period and thus defeat a motion for summary
judgment. See Aneco, Inc., 330 NLRB 969, 971 (2000).
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Finally, I note that even though I denied Counsel for the General Counsel’s motion for
partial summary judgment, Respondent did not present or attempt to present evidence to rebut
the computation of the gross backpay as defined in paragraphs two and three of the
compliance specification or the computation of wage increases as outlined in paragraph four
of the compliance specification. Respondent’s only evidence concerning the correct date for
the tolling of the backpay period as alleged in paragraph one of the compliance specification
and paragraph one of the answer was the submission of Respondent’s written offers of
reinstatement to the discriminatees. These documents were submitted into evidence as a joint
exhibit by General Counsel and Respondent. Accordingly, the record as a whole supports the
denial of Counsel for the General Counsel’s motion for partial summary judgment.
B. Respondent’s Motions to Amend the Answer
Following Counsel for the General Counsel’s motion for partial summary judgment
and my ruling thereon, and following the testimony of Eileene Jewell, Respondent moved to
amend the answer5 to allege a “lack of knowledge” with respect to compliance specification
paragraphs one, two, three, five, and six. Respondent argues that by asserting “lack of
knowledge” with respect to the allegations in the enumerated paragraphs, Respondent has
satisfied the obligation of Section 102.56(b) of the Board’s Rules and Regulations.
Additionally, having heard Jewell’s testimony, Respondent further moved to amend its
answer to conform to her testimony and to amend the answer to allege that there is no net
backpay for Jewell and that Jewel’s backpay period ended upon her initial termination.
Section 102.56(e) of the Board’s Rules and Regulations provides: “Following the
amendment of the specification by the Regional Director, any respondent affected by the
amendment may amend its answer thereto.” Counsel for the General Counsel opposed
Respondent’s motion to amend, asserting that there had been no amendment to the
compliance specification requiring a corresponding amendment to the answer. The only
amendment to the compliance specification simply revised the specification definitions to
conform to those definitions included in Respondent’s answer. I agreed, finding that General
Counsel’s amendment added nothing that required a corresponding amendment to the
Respondent’s answer.
It is well-settled that a respondent in a compliance proceeding may properly cure
defects in its answer before a hearing either by an amended answer or a response to a notice to
show cause. MFP Fire Protection Inc., 337 NLRB 984, 985 (2002); Ellis Electric, 321

5 In denying Counsel for the General Counsel’s motion for partial summary judgment, I offered both
Respondent and General Counsel the opportunity to further brief the issue if they desired to do so.
Respondent asserted that the motion to amend its answer was offered to protect its interest in the event
that Counsel for the General Counsel offered additional and persuasive argument that might lead to a
reversal of my earlier ruling denying the motion for partial summary judgment. Counsel for the
General Counsel, however, explained that while the Region did not concur with the basis for my ruling,
the Region did not plan to brief the matter.
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NLRB 1205, 106 (1996). In this instance, however, Respondent did not seek to amend its
answer prior to the hearing. Respondent sought to do so only after my denying General
Counsel’s motion for partial summary judgment and after hearing Jewell’s testimony.
Accordingly, inasmuch as there was no amendment to the compliance specification that
included any additional allegations, and in light of the fact that the motion to amend the
answer was made after Jewell’s testimony, there was no basis to grant Respondent’s initial
motion to amend the answer.
On November 20, 2006, and during a hiatus in the hearing proceeding, Respondent
filed a Second Amended Answer to Amended Compliance Specification. In the amended
answer, Respondent adds a new paragraph asserting that the Board is without statutory
jurisdiction to issue the relief sought in the specification for the benefit of discriminatee
Ritchie. Respondent asserts that at all times material, Ritchie was a “supervisor” within the
meaning of Section 2(11) of the Act, within the standard adopted by the Board in Oakwood
Healthcare, Inc., 348 NLRB No. 37 (September 29, 2006).
In brief, Respondent argues that in its September 29, 2006 decision, the Board adopted
definitions for the terms “assign,” “responsibility to direct,” and “independent judgment” as
those terms are used in Section 2(11) of the Act. Respondent asserts that while Ritchie’s
supervisory status could not have been argued in the underlying unfair labor practice
proceeding, Ritchie’s responsibilities could now arguably meet the Board’s new standard for
determining supervisory status.
Certainly, the Board’s usual practice is to apply new policies and standards
retroactively “to all pending cases in whatever stage.” SNE Enterprises, Inc., 344 NLRB No.
81, slip op. at 1, (May 17, 2005); Aramark School Services, 337 NLRB 1063, fn. 1 (2002).
The Board has also found, however, that it will apply an arguably new rule retroactively to the
parties in the case in which the new rule is announced and to parties in other cases pending at
the time, so long as this does not work as a “manifest injustice.” SNE Enterprises, Inc., above
at 2. In determining whether retroactive application will produce manifest injustice, the
Board looks to: (1) the reliance of the parties on pre-existing law,6 (2) the effect of
retroactivity on accomplishment of the purposes of the underlying law which the decision
refines; and (3) any particular injustice to the losing party under retroactive application of the
change of law. Pattern Makers (Michigan Model Mfgrs.), 310 NLRB 929, 931 (1993). See
also NLRB v. Bufco Corp., 899 F.2d 608 (7th Cir. 1990).
The courts have also applied a balancing of interests in analyzing the retroactivity of a
policy, standard, or rule. “In considering the equities, courts generally balance the interests of
the parties, taking into account such factors as the degree of hardship they will experience,
their justifiable reliance on past practices, and the statutory interest in a retroactive application
of the new rule.” Consolidated Freightways v. NLRB, 892 F.2d 1052, 1058 (D.C. Cir. 1989).

6 In Loehmann’s Plaza, 305 NLRB 663, 672 (1991), supplemented by 316 NLRB 109 (1995), the Board
considered whether the parties had “settled expectations” as to the consequences of the conduct in issue.
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In an even earlier case, the D.C. Circuit Court of Appeals identified factors for consideration
as: (1) whether the particular case is one of first impression; (2) whether the new rule
represents an abrupt departure from well-established practice or merely attempts to fill a void
in an unsettled area of law; (3) the extent to which the party against whom the new rule is
applied relied on the former rule; (4) the degree of the burden which a retroactive order
imposes on a party; and (5) the statutory interest in applying a new rule despite the reliance of
a party on the old standard. Retail, Wholesale and Dept. Store Union, 466 F.2d 380, 390,
(D.C. Cir. 1972).
On September 30, 2003, the Board issued its decision in the underlying unfair labor
practice matter, requiring full reinstatement and a make whole remedy for Ritchie. It is
undisputed that Ritchie’s supervisory status was not in issue prior to the Board’s decision.
The original charge, the resulting complaint, and the government’s proof presented to the
administrative law judge were premised upon Ritchie’s status as a non-supervisory employee.
The extent to which the charging parties and the government relied upon her non-supervisory
status is readily apparent. Accordingly, in light of the factors considered by the Board and the
courts, it is apparent that in this instance the inequity of applying the Board’s new analysis for
determining supervisory status far outweighs the interests of its application in this case.
Therefore, even if Respondent’s late-filed amendment to add an additional affirmative
defense were permissible, there is no equitable basis to entertain such retroactive application
of the Board’s new standard for determining supervisory status.
Despite the inequity of retroactive applicability as discussed above, Respondent’s
amendment is otherwise untimely. As discussed above, Section 102.56(e) of the Board’s
Rules and Regulations provides for a respondent’s amendment to its answer when the
respondent is affected by the Regional Director’s amendment to the compliance specification.
The Rules, however, do not provide for an amendment to insert an additional affirmative
defense. It is well settled that issues litigated and decided in an unfair labor practice
proceeding may not be relitigated in the ensuing backpay proceeding. IMAC Energy, Inc.,
322 NLRB 892, 894 (1997); Transport Service Co., 314 NLRB 458, 459 (1994).
Furthermore, matters litigated in an unfair labor practice case cannot be relitigated under the
guise of avoiding backpay. EDP Medical Computer Systems, 293 NLRB 857, 858 (1989).
Respondent argues that because a question concerning Board statutory authority may
be raised at any time, its amendment is timely. Respondent requests the reopening of the
record to receive “evidence of Ritchie’s ‘supervisory’ status at all times to the Compliance
Specification.” The Board, however, has not found that a respondent has carte blanche to
assert supervisory status at any juncture in the proceedings. In its decision in Yesterday’s
Children, Inc. 321 NLRB 766, fn. 1(1996),7 the Board found that the judge properly denied
the respondent’s motion to amend its answer and to supplement the record and its brief to

7 While the Board’s Order was vacated in part, the First Circuit Court of Appeals did not find that the
Board had abused its discretion in denying the respondent’s motion to amend the pleadings in light of
the recent Supreme Court decision. Yesterday Children’s, Inc., v. NLRB 115 F.3d 36, (1st. Cir. 1997).
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allege that a charge nurse was a supervisor or manager rather than an employee. It is
significant that the judge’s decision issued on June 30, 1994. The respondent, however, based
its motion upon the Supreme Court’s May 23, 1994 decision8 that specifically involved the
standard for determining the supervisory status for nurses.
Based upon the above, I find no basis for Respondent’s motion to amend its answer as
asserted or to reopen the record to receive evidence of Ritchie’s supervisory status. In its
recent decision in T. Steele Construction Inc., 348 NLRB No. 79, slip op at 1, fn 1 (November
30, 2006) the Board denied the respondent’s motion to amend its answer in light of the
Supreme Court’s decision in NLRB v. Kentucky River Community Care, 532 U.S. 706, (2001),
and the Board’s decision in Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006).
C. Respondent’s Subpoenas Duces Tecum
On August 18, 2006, the Regional Director for Region 9 issued the Compliance
Specification and Notice of Hearing in this matter and set the hearing for October 18, 2006.
On Friday, October 13, 2006, Respondent served a subpoena duces tecum on Miller at 4:29
p.m. On Saturday, October 14, 2006, Respondent served subpoenas on Jewell, Noble, and
Ritchie.9 The subpoenas requested the production of a number of documents including: (1)
Federal, state, and local income tax documents; (2) documents reflecting efforts to obtain
interim employment; (3) documents relating to self-employment; (4) documents relating to
retirement or termination from interim employment; (5) documents relating to medical or
other disability for which the discriminatees were unavailable for interim employment; (6)
correspondence with the Union, the Board, the state unemployment office, and/or the
Respondent; and (7) documents showing education received during the backpay period.
Additionally, each subpoena duces tecum requested the production of (1) bank and other
financial institution documents showing deposits and withdrawals from checking and savings
accounts during the backpay period; (2) documents reflecting indebtedness and liabilities ,
including, but not limited to mortgage and lease commitments during the backpay period; and
(3) any and all documents relating to any financial commitments, including formal
agreements and/or court orders, with respect to any dependents.
On the first day of trial and only four to five days following the weekend receipt of the
respective subpoenas, the Charging Party Union, on behalf of each discriminatee, moved to
quash the subpoenas. The Charging Party Union asserted that the subpoenas were overly
broad in their scope and the production of the requested documents was also overly
burdensome to the discriminatees. The Charging Party Union further asserted that the
documents sought by the subpoenas were especially irrelevant in view of the fact that all of
the discriminatees were present and willing to testify under oath regarding the compliance
issue to be litigated in the proceeding. Counsel for the General Counsel concurred with the

8 NLRB v. Health Care & Retirement Corp., 511 U.S. 71, 114 S. Ct. 1778 (1994).
9 Because Respondent served the subpoenas over the weekend before the hearing, it is likely that neither
Board nor Union personnel were readily available to the discriminatees for assistance or clarification.
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Charging Party’s argument in support of its motion and further asserted that the Respondent’s
request for such documents relating to the discriminatees’ mortgage and child support
obligations was purely harassment. The Charging Party Union also asserted that certain of the
subpoenaed documents related to joint checking accounts and by their very nature did not
relate to the discriminatees’ interim earnings. Respondent, however, asserted that the
documents were relevant because production of the requested information might lead to the
need to subpoena additional documents to test the accuracy of the reported interim earnings.
I denied the petition to quash with respect to the request for the production of all
documents relating to interim earnings, search for work, supplemental education, and the
requested correspondence as described above. Certainly, the majority of these documents
related to information that the discriminatees provided to the Region to prepare the
compliance specification. I granted the petition to quash the subpoena with respect
Respondent’s request for the production of documents pertaining to the discriminatees’
financial obligations, liabilities, and net worth.
Respondent asserts that it is “not only entitled to request and produce evidence of a
discriminatee’s ‘off the record’ interim earnings, it is also entitled to inquire into a
discriminatee’s living expenses during the back pay period, in order to determine whether the
individual’s expenses and standard of living are beyond the amount of gross interim earnings
disclosed.” In support of this argument, Respondent cites NLRB v. Overseas Motors, Inc.,
818 F.2d 517 (6th Cir. 1987). In Overseas Motors, Inc., the Court found that the
administrative law judge erred in prohibiting the respondent from cross-examining the
discriminatee regarding the discriminatee’s expenditures and the source of almost $100,000
spent on living expenses and oversea trips. While the discriminatee asserted that he had
interim earnings from only part-time work at an auto repair shop and from auto repair work at
his home, he kept no records of his self-employment income. Although the discriminatee
alleged that he had no income from a wine-importing business, he admitted that he was
registered as a salesman for the company with the State of Michigan and that he had taken
four trips to Yugoslavia. Under those circumstances, the Court found that the administrative
law judge erred in precluding inquiry into the discriminatees’ expenses. The circumstances in
the Overseas Motors, Inc. case are certainly distinguishable from those in the instant case.
All of the discriminatees provided releases for full disclosure from the Social Security
Administration for information on all interim earnings. The Respondent has demonstrated no
evidence that any of the discriminatees had unreported10 income or had fraudulently
concealed interim earnings during the relevant backpay period. Respondent’s desire to probe
into the discriminatees’ net worth in hopes of unearthing relevant information is “pure
conjecture” and clearly only a “fishing expedition” that would not justify its subpoena. U.S.
ex rel. Vuitton Et Fils S.A. v. Karen Bags, Inc., 600 F. Supp. 667 (1985).

10 As discussed further in this decision, Respondent asserts that Miller’s income from her trucking
company should be counted as interim earnings. Although the Region takes the position that funds
received from the trucking company are not interim earnings, these funds were not hidden and were
reported to the Internal Revenue Service as required.
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As the Board recently observed in its decision in Parts Depot, Inc., 348 NLRB No. 9,
slip op. at fn. 6 (2006), the Board’s Rules11 provide, in pertinent part, that a judge should
“regulate the course of the hearing” and “take any other action necessary.” In that case, the
respondent filed exceptions to the administrative law judge’s failure to allow it to subpoena
certain records from the backpay claimants and from the Immigration and Naturalization
Service. The Board found that the administrative law judge acted within his broad discretion
in balancing burdensome against probity and by imposing a reasonable limitation on the
respondent’s ability to cross-examine claimants. While noting that the respondent was free to
question the backpay claimants about their searches for work, the actual employment
obtained, and their interim earnings, the Board also determined that the respondent was
properly precluded from burdening the record with cumulative and superfluous questions and
inquiry that amounted to nothing more than a fishing expedition.
Clearly, the information sought in paragraphs five, six, and seven of the respective
subpoenas sought documents which dealt with the discriminatees’ net worth and personal
liabilities. Respondent maintains that such documents are relevant because they reflect the
financial demands and burdens imposed upon the discriminatees during the relevant time
period. The subpoena is properly quashed in part, however, as there is an absence of either
claimed or apparent relevancy. Respondent’s a mere hope of possibly finding a “smoking
gun” is nothing more than a fishing expedition, rather than a request for the valid production
of reasonably anticipated probative evidence.
D. Lack of Discovery
During the course of the hearing, Respondent argued that because of the unavailability
of pre-trial discovery, Respondent was denied due process. The record also reflects, however,
that the hearing was adjourned for 39 days to allow the Respondent the opportunity to
subpoena witnesses and documents necessary for the presentation of its case.
Additionally, it is well settled that parties to judicial or quasi-judicial proceedings are
not entitled to discovery as a matter of a constitutional right. Starr v. Commissioner of
Internal Revenue, 226 F.2d 721, 722 (7th Cir. 1955), cert. denied 350 U.S. 993 (1956).
Furthermore, the Administrative Procedure Act does not confer a right to discovery in federal
administrative proceedings. Frilette v. Kimberlin, 508 F.2d 205, 208 (3d Cir. en banc 1974),
cert. denied 421 U.S. 980 (1975). Moreover, the National Labor Relations Act does not
specifically authorize or require the Board to adopt discovery procedures. NLRB v. Interboro
Contractors, Inc., 432 F.2d 854, 858 (2d Cir. 1970), cert. denied 402 U.S. 915 (1971); NLRB
v. Globe Wireless, Ltd., 193 F.2d 748, 751 (9th Cir. 1951). Accordingly, there is no basis in
fact or law to support a finding that Respondent was denied due process.

11 Section 102.35.
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E. The Correct Date for Tolling Respondent’s Backpay Obligation
The compliance specification designates August 5, 2005 as the date when backpay
tolls for Miller and Ritchie. Backpay is tolled earlier for Jewell and Noble, inasmuch as
Jewell retired in March 2003 and Noble became unavailable for work in December 2004. In
its answer, Respondent asserts, however, that backpay is tolled for Miller and Ritchie on July
19, 2005; the date of Respondent’s unconditional offer of reinstatement. There is no dispute
that the offer of reinstatement letters sent to Jewell, Noble, Miller and Ritchie are dated July
19, 2005.12 Each letter gives the discriminatee a deadline of August 5, 2005 to accept the
offer.
Generally, the Board finds that backpay is tolled on the date of actual reinstatement,
on the date of rejection, or in the case of discriminatees who do not reply, on the date of the
last opportunity for the discriminatee to accept the offer of reinstatement. Cliffstar
Transportation Co., 311 NLRB 152, 154-155 (1993); American Mfg. Co. of Texas, 167
NLRB 520, 521 (1967). In this instance, it is appropriate that backpay is tolled for Miller and
Ritchie on August 5, 2005,13 as set forth in the compliance specification.
II. Applicable Legal Principles and Authority
It is settled law that a finding by the Board that an unfair labor practice was committed
is presumptive proof that some backpay is owed. 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 (2nd Cir. 1965), cert. denied 384
U.S. 972 (1966). The General Counsel’s burden in a backpay proceeding is limited to
showing the gross backpay due each discriminatee. J. H. Rutter Rex Mfg. Co. v. NLRB, 473
F.2d 223, 230-231 (5th Cir. 1973), cert. denied 414 U.S. 822 (1973). The General Counsel has
discretion in selecting a formula that will closely approximate backpay. The Region has the
burden of establishing only that the gross backpay amounts contained in a backpay
specification are reasonable and not an arbitrary approximation. Performance Friction Corp.,
335 NLRB 1117 (2001); Mastell Trailer Corp., 273 NLRB 1190, 1190 (1984). In its decision
in Alaska Pulp Corp., 326 NLRB 522, 523 (1998), the Board stated: “If, due to the variables
involved, it is impossible to reconstruct with certainty what would have happened in the
absence of a respondent’s unfair labor practices, we will resolve the uncertainty against the
respondent whose wrongdoing created the uncertainty.” It should be noted that with the
exception of the disputed date for the tolling of backpay, Respondent does not challenge the
formula or the calculations used to arrive at the gross backpay as set forth in the compliance

12 Although Noble received an unconditional officer of reinstatement dated July 19, 2005, Respondent
also argues in brief that Noble was offered reinstatement in or about February 2002. As discussed more
fully below, the 2002 offer was not a valid and unconditional offer of reinstatement and did not toll
Noble’s backpay.
13 Miller’s personal tax record for 2005, submitted by Respondent, reflects earnings at Respondent’s
facility during the 2005 calendar year. There is no evidence, however, to establish that Miller returned
to work or accepted the offer of reinstatement prior to August 5, 2005.
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specification. Accordingly, I find General Counsel’s gross backpay formula appropriate and
sufficient for recommendation to the Board.
Once the General Counsel has established gross backpay, the burden is on the
Respondent to establish facts that reduce 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 cannot be satisfied, however, by
conclusionary or self-serving statements. W. C. Nabors, 134 NLRB 1078, 1088 (1961), enfd.
as modified on other grounds 323 F.2d 686 (5th Cir. 1963), cert. denied 376 U.S. 911 (1964).
A discriminatee is entitled to backpay if he makes a “reasonably diligent effort to
obtain substantially equivalent employment.” Moran Printing, 330 NLRB 376 (1999). In
seeking to mitigate loss of income, a backpay claimant is held only to reasonable exertions,
not the highest standard for diligence. The principle of mitigation does not require success; it
only requires an honest, good faith effort. Fabi Fashions, 291 NLRB 586, 587 (1988); NLRB
v. Arduni Mfg. Co., 394 F.2d 420, 422-423 (1st Cir. 1968); NLRB v. Madison, 472 F.2d 1307,
1319 (D.C. Cir. 1972).
It is well-established that any doubt or uncertainty in the evidence must be resolved in
favor of the innocent employee claimant and not the respondent wrongdoer. NLRB v.
NHE/Freeway, Inc., 545 F.2d 592, 594 (7th Cir. 1976); NLRB v. Miami Coca-Cola Bottling
Co., 360 F.2d 569, 572-573 (5th Cir. 1966).
III. Findings and Conclusions Concerning Individual Discriminatees
Based on the entire record, including the Board’s Decision and Order, as affirmed; the
testimony of witnesses and my observation of their demeanor, and record documents, I make
the following findings of fact and conclusions of law.
A. Eileene Jewell
At the time of her discharge from Respondent’s facility on August 17, 2000, Eileene
Jewell was 60 years old and worked as a surgical technician. Her duties included sterilizing
surgical instruments, working with the laundry to insure that a sufficient number of scrubs
were available, and keeping the surgical area and instruments clean. Prior to working as a
surgical technician, Jewell worked on the hospital floor as an aide. Her work as an aide
involved such duties as assisting patients, serving lunch trays, and changing bed linens.
She recalled that following her discharge, both the Region’s compliance officer and
the Union’s representative told her that she would be expected to look for and to find
employment. She applied for state unemployment insurance shortly after her discharge in
August 2000 and received unemployment benefits until March 2001. She recalled that during
the time that she received unemployment benefits, she visited the unemployment office in
Jackson, Kentucky and she periodically telephoned the agency. Following her discharge,
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Jewell primarily searched for work in her hometown community of Beattyville and Lee
County, Kentucky. While she did not keep a log of her contacts, she applied for work at the
Lee County Library, the Save-a-lot grocery store, and the local Dollar General Store. She
recalled that she contacted individuals who worked as sitters for the elderly and sick to
explore possible job openings. She read the newspaper and searched the want ads for possible
employment. Jewell testified that there was not work available in her community that was
comparable to the work that she performed at Respondent’s facility. She explained that there
were no hospitals in Lee County and the nearest hospital was approximately 30 miles away in
Irving, Kentucky. That facility, however, did not have a surgical unit. She acknowledged
that she did not check with any of the local physicians’ offices to inquire about possible
employment. She explained that there were only three physicians in practice in Beattyville
and she was familiar with the staff working for each doctor. The staffing for the three doctors
had remained essentially unchanged for a substantial period of time. Jewell testified that
while she also contacted the Presbyterian Missionary Group in Owsley County concerning
possible employment, she conceded that she did not search much farther than the Beattyville
area. Jewell’s husband died during the final days of the underlying unfair labor practice
hearing. She remembered that she had been really frightened during her job search because
she was alone with no income. Jewell explained that because of her age and her inexperience,
work opportunities were limited in her hometown. In early 2001, Jewell began working part-
time at Rite-Aid in Beattyville, Kentucky, as a pharmacy technician. She continued that
employment throughout 2002. Jewell also reported $856 income in 2001 and $664 income in
2002 for selling herbal medications as self-employment. Jewell explained that her
employment with Rite-Aid ended when two employees were transferred from the Jackson,
Kentucky store into the Beattyville store. Jewell was then asked to transfer to the West
Liberty, Kentucky store; which was approximately 70 miles from her home. Although Jewell
asked to work at a closer store in McKee, Kentucky, she was only given the option to transfer
to the West Liberty store. She explained that as she was only making $7 an hour, it did not
seem feasible to drive the requisite 70 miles each way to work only a half shift for part-time
employment. Jewell recalled that she had also asked if she could transfer from the pharmacy
department to any other position in the store. Her request was denied. After her work ended
with Rite-Aid, she no longer had sufficient contacts to continue her self-employment in
selling the herbal medications.
In December 2000, Jewell cashed her 401K termination distribution check. The
resulting distribution of $4,702.03 was deposited into her bank account. During the backpay
period, she used funds from this distribution to meet monthly expenses when necessary.
Compliance Supervisor John Grove testified that Jewell’s backpay period runs from
her date of discharge until March 23, 2003, when she retired and ceased to seek active
employment. Following her husband’s death in 2001 and prior to March, 2003, she received
Social Security widow’s benefits. In March 2003, Jewell filed for, and began receiving
retirement benefits based upon her own Social Security contributions.
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1. Respondent’s Proof Concerning Interim Earnings
When this matter resumed on November 28, 2006, Respondent presented the
testimony of Rite Aid Regional Human Resource Manager Roy Terry, herein Terry. Through
Terry’s testimony, Respondent introduced a document from Jewell’s personnel file identified
as a “termination form.” The document references a termination date of November 8, 2002
and the termination code is designated as “PERSNL.” Terry testified that the form is an
electronic e-form that Rite Aid uses to identify the basis for an employee’s termination. Terry
admitted that he was not familiar with the circumstances of Jewell’s leaving the company. He
asserted, however, that generally a “personal” code indicates a voluntary resignation by the
employee. Terry also identified a second electronic e-form containing handwritten portions
that had been contained in Jewell’s personnel file. The form contains a section categorized as
“Availability Information,” with the typewritten instruction: “Please list this employee’s
daily availability.” The form further contains a section showing the number of hours that the
employee can work weekly with the notation: “We recommend that you set the minimum
hours for all part-time employees to zero.” There is a handwritten note setting Jewell’s
minimum hours at “0” and maximum hours at “24.” Despite the notation of maximum
availability for 24 hours, the form also contains the specific hours and days of availability for
Jewell. These hours are shown to be a total of 31. Terry testified that he had no knowledge
as to who completed the handwritten portion of this form. Terry acknowledged that he had
not hired Jewell and he had no personal knowledge of her employment situation. He admitted
that the form did not reflect whether Jewell was a full-time or part-time employee. He further
admitted that he was unaware of any “personal” reason for Jewell’s leaving Rite Aid’s
employment.
2. Conclusions Concerning Jewell’s Backpay
Jewell’s backpay period covers the time between her unlawful discharge on August
17, 2000 and March 2003 when she retired. During this total backpay period, there are two
separate periods when Jewell was unemployed. The personnel document from Rite Aid
reflects that she was employed at Rite Aid from May 30, 2001 until November 8, 2002. Thus,
an analysis of her search for work is geared primarily to the period of time between August
17, 2000 and May 30, 2001 and the period of time from November 8, 2002 until the end of
March 2003.
In assessing a discriminatee’s search for interim employment, a respondent must
affirmatively establish that a discriminatee failed to make a reasonably diligent search for
equivalent interim employment. In assessing the search for work, the Board has found that a
discriminatee’s efforts need not comport with the highest standards of diligence, but merely
demonstrate a good faith effort. See Lundy Packing Co., 286 NLRB 141 (1987). In NLRB v.
Arduni Manufacturing Corp., 394 F.2d 420 (1st Cir. 1968), the employer was able to establish
that a discriminatee could not show that he had looked for jobs where he could use his
specific skills and he was unable to explain gaps in his job-search chronology. Additionally,
the discriminatee only went to the employment security office to check on his unemployment
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benefits. The Court even commented on the fact that the discriminatee’s records were sketchy
and his testimony was at times implausible and inconsistent. Despite indications that the
discriminatee failed to do all that he could have done to mitigate his loss of pay, the Court
nevertheless held that the NLRB could find that a reasonable search was conducted.
Although Jewell did not have an extensive recollection of where she searched for work and
did not keep records of her search for work, I find no evidence that she neglected to make an
honest good faith effort. N.L.R.B v. Cashman Auto Company and Red Cab Company, 223
F.2d 832, 836 (1st Cir. 1955).
Additionally, in determining the reasonableness of Jewell’s effort, I have also
considered her skills and qualifications, her age, and the labor conditions in her area. Mastro
Plastics Corp., 136 NLRB 1342, 1359, (1962). At the time of her discharge from
Respondent’s facility, Jewell was 60 years old and worked as a surgical technician.
Respondent’s CEO Okey David Bevins, herein Bevins, identified a map showing the hospitals
and other health care providers within an eight county regional area. Bevins explained that
the map depicted the health care facilities where there was a concentration of physicians
rendering primary care. He identified these facilities as primary care certified clinics or rural
health clinics. Bevins acknowledged that while the hospitals would have surgical technicians
on staff, the clinics would not.14 In his testimony, Bevins did not discuss any hospital
facilities that were in the surrounding area of Respondent’s facility. Respondent’s map,
however, reflects no other hospitals included in the areas designated as a primary service area
or a secondary service area for Respondent’s facility. Appalachian Regional Healthcare,
herein ARH, in Hazard, Kentucky, is the only hospital shown to be in a tertiary service area.
All the remaining hospitals on the map are in geographic locations outside the primary,
secondary, and tertiary service areas for Respondent’s facility. Additionally, there is no
record evidence that contradicts Jewell’s testimony concerning the distance between her home
and any other area hospitals. It is apparent therefore that Jewell’s opportunity to find interim
employment was affected by not only her age, but also the availability of comparable work as
a surgical technician in her geographic area.
Jewell acknowledged that she did not keep a written record of where she searched for
work prior to finding employment with Rite Aid or following her employment with Rite Aid.
The fact that she could not recall the names and dates of all the establishments she had
contacted during her search for work does not invalidate the conclusion that she made a
reasonable exertion to find employment. Airport Park Hotel, 306 NLRB 857, 861 (1992),
enfd. 13 F.3d 1347 (9th Cir. 1994); Ben Susan Restaurant Corp., d/b/a The Blue Note, 296
NLRB 997, 999 (1989). Additionally, I note that the Board has held that employees are not
automatically disqualified from backpay because of their poor recordkeeping or uncertainty as
to memory. Pat Izzi Trucking Co., 162 NLRB 242, 245 (1966), enfd. 395 F.2d 241 (1st Cir.
1968).

14 Although Bevins testified that possibly orthopedic clinics might need surgical technicians, he identified
none by name and demonstrated no specific knowledge of such job opportunities.
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Respondent argues that because Jewell quit her employment with Rite Aid, she is not
entitled to any backpay following her employment with Rite Aid. In support of this argument,
Respondent relies upon Terry’s testimony. While Terry identified a form from Jewell’s
personnel file that reflected that there was a personal reason for her termination from Rite
Aid, he had no personal knowledge of the circumstances of Jewell’s employment. While he
also identified a document that purported to show that Jewell was available for 31 hours each
week, he also admitted that he did not know whether she had been hired as a full-time or part-
time employee and he did not know who had completed the information on the personnel
documents. He acknowledged, however, that the hours shown on the document would
normally be considered part-time employment with Rite Aid. Thus, neither the personnel file
documents nor Terry’s testimony rebuts Jewell’s testimony that she was only hired as a part-
time employee for Rite-Aid. Additionally, the document purporting to show that Jewell
voluntarily left her employment with Rite Aid does not rebut Jewell’s testimony. Jewell
acknowledged that she left employment with Rite Aid and she credibly explained her basis for
doing so.
Certainly, under established Board policy, a claimant is deemed to have willfully
incurred loss of income by voluntarily relinquishing interim employment “without compelling
or justifying means.” Knickerbocker Plastic Co., Inc., 132 NLRB 1209, 1212 (1961). A
claimant, however, is under no obligation to retain nonequivalent employment, once secured,
regardless of the conditions under which the employee is required to work. Churchill’s
Supermarkets, 301 NLRB 722, 725 (1991). In fact, the Board has found that a skilled
employee was justified in quitting an unskilled job that was paying less than half his former
weekly wages. Lozano Enterprises, 152 NLRB 258 (1965). While the Board expects an
employee to retain an interim job, exceptions have been found when the interim employment
was unprestigious, annoying, or certain to create unacceptable disruption to the
discriminatee’s private life. Shell Oil Co., 218 NLRB 87, 89 (1975). In Tualatin Electric
Inc., 331 NLRB 36, 40 (2000), a discriminatee’s backpay was not reduced when he
voluntarily quit an interim job that required him to drive an additional 40 miles without the
opportunity for overtime pay that had been available when he worked for the respondent
employer. Because the interim employment was not found to be substantially equivalent to
the position from which he had been unlawfully discharged, his resignation was not found to
be willful loss of interim earnings. In the instant case, Jewell had only been able to find
interim employment in a part-time position with considerably less pay15 than she had received
in her job at Respondent’s facility. While Terry testified that a Rite Aid document reflects
that Jewell left her interim employment because of a “personal” reason, he does not dispute
her testimony that if she had continued her employment with Rite Aid, she would have been
required to transfer to another store, requiring her to drive 70 miles from her home for part-
time employment. Accordingly, inasmuch as Jewell’s job with Rite Aid was not substantially
equivalent to the position from which she was unlawfully terminated, her backpay should not

15 At the time that she left her employment with Rite Aid, her quarterly interim earnings were $1,778 as
compared to $5,427 that she would have received for the same period had she continued her employed
with Respondent.
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be reduced because she was forced to cease her employment with Rite Aid. Additionally,
Terry did not rebut Jewell’s testimony that she asked to work at the McKee Kentucky store or
to work in other positions within the Beattyville store when her position was eliminated as a
pharmacy technician in the Beattyville store.
Additionally, I do not find that Jewell’s backpay should be reduced because she
initially accepted a part-time position. There is no evidence that Jewell rejected full-time
employment in lieu of part-time employment. Moreover, Jewell should not be penalized
because she accepted part-time employment rather than waiting for a full-time employment
offer. See United Supermarkets, Inc., 287 NLRB 394, 398 (1987); Lundy Packing Co., 286
NLRB 141, 144 (1987). Respondent also argues that during her employment with Rite Aid,
Jewell did not make any effort to locate another part-time job. Although Respondent
presented Rite Aid’s Regional Human Resource Manager, there was no evidence that Rite
Aid offered Jewell any work other than part-time work. Additionally, Respondent presented
no evidence to show that any other part-time jobs were available to Jewell or even known to
Jewell. Accordingly, inasmuch as there was no record evidence that Jewell was offered or
refused to accept additional part-time employment, there is no evidence that Jewell failed to
make a reasonable effort to mitigate her losses. Be-Lo Stores, 336 NLRB 950, 950 fn. 1
(2001); United States Can Company, 328 NLRB 334, 338 (1999); enfd. 254 F.3d 626 (7th Cir.
2001). Furthermore, even though Jewell accepted interim employment earning less than she
had made at Respondent’s facility, she was under no duty to continue to search for a more
lucrative job or to search for the most lucrative interim employment. F.E. Hazard, Ltd., 303
NLRB 839 (1991); Fugazy Continental Corp., 276 NLRB 1334, 1338 (1985), enfd. 817 F.2d
979 (2d Cir. 1987).
Appendix A of the compliance specification establishes Jewell’s gross backpay at
$54,621. With interim earnings of $13,029, the resulting net backpay for Jewell is $41,592.
For the reasons explained above and based upon the entire record,16 I find that Jewell is
entitled to backpay in the amount of $41,592.
B. Lois Noble
Prior to her termination from Respondent’s facility on August 28, 2000, Noble worked
as a phlebotomist. This work entailed drawing blood from patients in the emergency room as
well as in the hospital. A license or certification was not required for her work. Prior to
working at Respondent’s facility, she was employed as a phlebotomist at the University of
Kentucky Clinic in Lexington, Kentucky. Noble testified that following her termination from
Respondent’s facility, it was her understanding that she was required to look for work and to
find work. Noble also explained that because she had a child and responsibilities, she needed

16 I found Jewell to be a totally credible witness. She did not appear to embellish her search for work or to
minimize any apparent weaknesses in her attempts to find interim employment. As discussed above,
her explanation for leaving Rite Aid was uncontradicted. Overall, there is no credible record evidence
that disputes or contradicts Jewell’s testimony.
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to find work. She began her search for work in September 2000. Noble applied with the state
unemployment office in Hazard, Kentucky and in Jackson, Kentucky. She checked all the
state agency’s openings for phlebotomists. Noble testified that from the time that she was
discharged until she found employment in 2002, she checked the job listings at one of the
state unemployment offices at least once a week. She recalled that she contacted the hospital
in Hazard as well as several of the medical clinics, including the Central Kentucky Blood
Bank in Hazard, Kentucky and the University of Kentucky. She additionally contacted the
hospital in Winchester, Kentucky; which is located approximately 90 minutes away from her
home. She also contacted friends who worked in her same medical field. In addition to her
applications for work as a phlebotomist, Noble additionally applied for work at all the Dollar
General Stores, Big Lots Stores, grocery stores, and fast food restaurants in her area. She also
recalled that while she submitted an application to the Hazard Hotel to work as a maid, she
was not offered work.
In May 2002, Noble became certified as a certified nurse’s aid. In order to receive her
certification, she attended weekly training classes on Saturdays for approximately three
months. Noble began working at the Hazard Nursing Home, Inc. in June 2002 and continued
her employment until December 2004. While working at the nursing home, Noble worked 30
to 40 hours or more each week. In January, 2005, Nobel became a full-time student in a
Licensed Practical Nursing program and has remained in that program.
1. Conclusions Concerning Noble’s Backpay
Bevin testified that primary care clinics, home health agencies, and some physician’s
offices would need the services of a phlebotomist. While Bevin estimated that there might be
35 or 40 facilities that would be able to use the services of a phlebotomist, he did not identify
specific facilities or their proximity to Noble’s residence. Although he recalled that one of the
clinic physicians was looking for a nurse17 approximately a year prior to the hearing, he did
not demonstrate any knowledge of whether there were specific openings for phlebotomists or
whether phlebotomists were hired at any of the clinics at the time that Noble was looking for
employment. He opined that “phlebotomists are constantly in demand in hospitals in the
area.” He did not, however, identify the specific hospitals nor indicate their proximity18 to
Noble.
Noble’s testimony regarding her search for interim employment was not contradicted.
She credibly testified concerning her attempts to secure interim employment. Her lack of
success in obtaining interim employment after her unlawful termination and prior to her full-
time employment in 2002 does not impeach her testimony nor relieve Respondent of its

17 He also recalled that one of the clinics hired three of Respondent’s nurses during the two years
prior to the 2006 hearing.
18 As discussed above, Respondent’s map of the area surrounding Respondent’s facility indicates
no hospitals in Respondent’s primary or secondary service area and only one hospital in
Respondent’s tertiary service area. Respondent Exhibit No. 13.
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burden of proving facts to mitigate liability. Respondent has the burden of establishing the
amount of any interim earnings that are to be deducted from the backpay amount due, and has
the burden of establishing any claim of willful loss of earnings. NLRB v. Mooney Aircraft,
366 F.2d 809, 812-813, (5th Cir. 1966). With respect to a discriminatee’s search for interim
employment, a respondent must affirmatively establish that the discriminatee failed to make a
reasonably diligent search for equivalent interim employment. In evaluating the search for
interim employment, the Board has found that a discriminatee’s efforts need not comport with
the highest standards of diligence but merely demonstrate a good faith effort. Basin Frozen
Foods, Inc., 320 NLRB 1072, 1074 (1996); Canova v. NLRB, 708 F.2d 1498, 1506 (9th Cir.
1983). In post-hearing brief, Respondent cites the Board’s decision in American Bottling Co.,
116 NLRB 1303, 1307 (1956), for the principle that a discriminatee’s registering with the
state unemployment agency should not be given conclusive weight in determining the
adequacy of a discriminatee’s search for work. In keeping with its earlier decision in
Southern Silk Mills, 116 NLRB 769 (1956), the Board in American Bottling Co. went on to
point out, however, that registering with the state agency is a factor to be given such weight
as it may be entitled under all the circumstances of the case. In the instant case, Noble
credibly testified that she not only searched for work with the state agency, she looked for
work, even outside her field of training. Noble’s regular inquiry with the unemployment
agency is not indicative of a lack of motivation for seeking work elsewhere and does not
establish that she used it as a substitute for a diligent search for work otherwise.
It is not enough for a respondent to present evidence of low or no interim earnings;
rather a respondent must affirmatively demonstrate that the discriminatee neglected to make
reasonable efforts to find interim employment. Westin Hotel, 267 NLRB 244, (1983), enfd.
758 F.2d 1126 (6th Cir. 1985); Smyth Mfg. Co., 277 NLRB 680 (1985). Respondent asserts
that Noble should have been able to find interim employment during the period between her
discharge on August 28, 2000 and when she began her employment with the Hazard Nursing
Home, Inc. Suspicion and surmise, however, have not been found to be any more of a valid
basis in a backpay hearing than in an unfair labor practice hearing. See Laidlaw Corp., 207
NLRB 591, 594 (1973); enfd. 507 F.2d 1381 (7th Cir. 1974), cert. denied 422 U.S. 1042
(1975). Additionally, the Board has long held that when there are uncertainties or
ambiguities, doubt should be resolved in favor of the wronged party rather than the
wrongdoer. United Aircraft Corp., 204 NLRB 1068 (1973). To conclude otherwise would
effectively penalize Noble for Respondent’s unlawful termination.
Noble had no interim earnings from August 28, 2000 until June 2002. Based upon her
total record testimony, there is no basis to find that her lack of success is indicative of a
willful loss of earnings or an unreasonable search for work. In determining whether an
individual claimant made a reasonable search, the Board looks to whether the record as a
whole establishes that the employee has diligently sought other employment during the entire
backpay period. Black Magic Resources, Inc., 317 NLRB 721 (1995); Saginaw Aggregates,
198 NLRB 598 (1972). The Board has found that the “sufficiency of a discriminatee’s efforts
to mitigate backpay are determined with respect to the backpay period as a whole and not
based on isolated portions of the backpay period.” Wright Electric, Inc., 334 NLRB 1031,
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1031 (2001); Electrical Workers IBEW Local 3 (Fischbach & Moore) 315 NLRB 1266, 1266
(1995); I.T.O. Corp. of Baltimore, 265 NLRB 1322 (1982). Noble credibly testified that prior
to obtaining employment with Hazard Nursing Home, Inc., she not only tried to find work as
a phlebotomist, but she also tried to find work in unrelated fields. She credibly testified that
she tried to find a job as a maid and also applied at retail and fast food establishments. It is
apparent that after finding no success in her chosen field or in any other jobs, she entered a
training program to become a certified nursing assistant. Because she took the initiative to
train herself and to learn new skills, she was able to secure interim employment. Thus,
looking at Noble’s backpay period as a whole and not simply at the isolated period prior to
May 2002, the record supports a finding that Noble engaged in a diligent search and effort to
secure interim employment. Kawasaki Motors Mfg. Corp., 850 F.2d 524, 528 (9th Cir. 1988);
Colorado Forge, 285 NLRB 530, 538 (1987).
2. Respondent’s 2002 Offer of Reinstatement
On February 19, 2002, Respondent’s CEO Bevins sent a letter to Noble, offering
interim or temporary reinstatement. Bevins explained in the letter that Respondent was
offering temporary reinstatement during the time that Respondent appealed the judge’s
finding that Noble had been unlawfully terminated. Bevins further explained that if she
returned to work and Respondent prevailed in its appeal, Respondent would again terminate
her employment. Bevins also explained that by declining his offer of temporary
reinstatement, Noble did not forfeit her right to “fight” her termination through the legal
process. Noble testified that she declined the job because she needed a job that was more
stable and not temporary.
Respondent argues that Noble’s rejection of Respondent’s February 2002 offer
released Respondent from any backpay obligation from the date the offer was rejected.
Respondent cites Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 238-239 (1982) in support of its
argument that an employee’s rejection of an employer’s “valid offer of reinstatement” tolls
the employer’s backpay obligation. Respondent acknowledges, however, that research
revealed no cases in which an employee’s rejection of an offer of interim employment made
pursuant to a Section 10(j) injunction is considered within the context of tolling an employer’s
backpay obligations.
Certainly, Respondent’s 2002 letter to Noble does not constitute a valid offer of
reinstatement. It is well settled that an offer of employment must be specific, unequivocal,
and unconditional to toll backpay and satisfy a respondent’s remedial obligation. Midwestern
Personnel Services Inc., 346 NLRB No. 58, slip op. at 1, (2006); L.A. Water Treatment, 263
NLRB 244, 246-247 (1982); Standard Aggregate Corp., 213 NLRB 154 (1974). Even the
very wording of Respondent’s letter reflects that Noble was free to reject the offer of
temporary employment and that such rejection would not prejudice her later reinstatement
upon Court order. Thus, despite Respondent’s assurances to Noble that she was free to reject
the offer of interim employment, Respondent now seeks to rely upon that rejection as a basis
for tolling its backpay obligation. Contrary to Respondent’s argument, I do not find that
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Respondent tolled its backpay obligation by offering temporary reinstatement to Noble in
February 2002.
Appendix A of the compliance specification includes a total of $77,242 for Noble’s
gross backpay. During the course of the hearing, it became apparent that the Region had
erroneously included $934 in her interim earnings. When Noble clarified in her testimony
that this income was received in 2000 prior to her employment with Respondent, Counsel for
the General Counsel moved to amend the compliance specification to correct the error. With
the amendment to the specification, Noble’s total interim earnings were corrected to $36,974.
For the reasons that I have stated above, I do not find a basis to further reduce the backpay
beyond the interim earnings described above. Accordingly, I find that the appropriate
backpay owed to Noble is $40,268.
C. Debra Miller
Prior to her discharge from Respondent’s facility on August 21, 2000, Debra Miller
worked as a phlebotomist. In this position, she collected blood samples from hospital patients
and prepared the accompanying paperwork. Miller testified that she began looking for
interim employment within days of her discharge. She asserted that she looked for laboratory
and medical positions by reviewing newspapers and the internet. She testified that she also
applied for work at the surrounding hospitals. In approximately January 2001, she obtained
interim employment with the Central Kentucky Blood Center, herein CKBC. The compliance
specification documents that no backpay is owed from February 15, 2002 until April 15, 2002
because Miller was unavailable for work during that time. Miller testified that during this
time she resigned from her job with CKBC in order to enter nursing school.19 Miller testified
that even though she had planned to attend nursing school, her daughter underwent surgery
and she remained at home to care for her daughter during the recuperative period. After her
daughter’s condition improved, it was too late to enter the nursing program and she began a
new search for work. Miller testified that the two months that she spent caring for her
daughter were the only two months that she was unavailable for work during the backpay
period.
For approximately three months in 2003, Miller worked as a laboratory assistant for
the Appalachian Regional Healthcare (ARH) facility in Hazard, Kentucky. She explained that
while her duties at ARH were similar to those performed at Respondent’s facility, the duties
were broader in scope. After working for three months for ARH, Miller returned to
employment with the CKBC. She explained that she did so in order to increase her earnings.
Miller continued to work for CKBC until 2004, when the facility closed.

19 Respondent submitted into evidence a letter purporting to be Miller’s typewritten letter of resignation.
Miller acknowledged that while she did not recall preparing the letter, her name was included at the
bottom of the document. The letter does not reference her intention to enter nursing school and
confirms that February 15, 2002 would be her last day of employment.
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Miller testified that following her loss of employment with CKBC, she continued to
search for work by researching the internet and the weekly newspapers. She talked with
friends about job openings and applied at fast-food restaurants. She explained that she did not
resubmit an application to the ARH in Hazard because the facility did not have openings in
the laboratory at that time. She asserted that she went to the hospital and spoke with
individuals who worked in the laboratory and determined that there were no jobs open. When
she initially applied for work with ARH, she had submitted an application to work as a
nurse’s aid as well as to work in the laboratory. She testified that she had not submitted a new
application because she assumed her applications were still on file with ARH. She
acknowledged that while she had spoken with individuals in the laboratory, she had not
contacted anyone in ARH’s Human Resources office.
1. Miller’s Trucking Company
Miller also owned and operated a trucking company from 1997 until approximately
December 2004. Miller testified that prior to 1997 her mother-in-law had owned three trucks
and had an arrangement with Pine Branch Coal to haul coal. When her mother-in-law became
disabled, Miller took possession of the three trucks and signed an agreement with Pine Branch
Coal to continue the coal deliveries. Prior to 2004, the trucking company employed three
drivers for the three trucks. Miller testified that she discontinued the trucking operation in
2004 because it was no longer profitable. She maintains that although she was president and
sole owner of Debbie Miller Trucking Inc., she did no “actual” or “physical” work. She
asserted that her certified public accountant handled all the bookkeeping and her mechanics
maintained the trucks. She contends that writing payroll checks once every two weeks was
her only job. There was no record evidence that rebutted Miller’s testimony that she did the
very same work for the trucking company both before and after her discharge from
Respondent’s facility.
2. Conclusions Concerning Miller’s Backpay
a. Whether Miller’s Income from the Trucking Company Reduces her Gross Backpay
There is no dispute that during a portion of the backpay period, Miller received money
from the trucking company that was designated as salary. In 2000, she received both a salary
and a $32,000 dividend20 from the trucking company. During the remainder of the backpay
period, she continued to pay personal expenses from the trucking company’s funds and the
expenses were counted for tax purposes as loans to Miller as a corporate officer. As of
September 30, 2003, Miller owed a total of $56,390.57 for loans from the trucking company.
In preparing the compliance specification, the Region did not include either the salary or the
loans that Miller received from the trucking company as interim earnings based upon the fact

20 Miller does not deny that she took money from the corporation to pay personal expenses during the
2000 tax year. On the advice of her accountant, Miller counted the payment of these expenses as a
dividend from the company.
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that Miller’s duties and hours of work did not increase, decrease, or change after she was
unlawfully terminated from Respondent’s facility. Counsel for the General Counsel asserts
that Miller’s salary and loans from the trucking company were based upon her personal needs
and tax considerations, rather than based upon work that she performed for the trucking
company. Respondent, however, asserts that any salary or loans paid out to Miller from the
trucking company during the backpay period are interim earnings and should be applied to
offset Respondent’s backpay liability.
b. Miller’s Corporate and Personal Tax Records
Respondent subpoenaed and subsequently submitted into evidence Miller’s personal
tax records as well as the corporate tax records for Debbie Miller Trucking, Inc during the
backpay period. It should be noted that Miller’s personal tax records are based upon the
calendar year and the corporate tax records for Debbie Miller Trucking, Inc. are based upon
the fiscal year. Accordingly, because the records are based upon two separate periods of time,
there is some disparity in computations and amounts. Overall, the records appear to be
essentially consistent.
To analyze the records in light of Respondent’s arguments, it is essential to first look
at the records for the fiscal and calendar year 2001. The corporate tax records for the fiscal
year ending in September 2001 reflect an outstanding loan amount of $27,321.13 to Miller as
the sole corporate officer. During the same tax year, Miller received a salary from the
trucking company in the amount of $19,000. During the tax year ending in September 2002,
Miller received no salary from the trucking company. She did, however, receive additional
loans from the company in the amount of $21, 010.61. For the tax year ending September
2003, Miller received no salary from the trucking company. She received additional loans
from the company totaling $8, 058.83. Thus, as of September 2003, Miller’s unreimbursed
loans from the trucking company amounted to a total of $56, 390.57. Respondent argues that
the salary and loans to Miller during the backpay period were the equivalent of interim
earnings that should offset Respondent’s backpay liability.
Miller does not dispute that she pulled money from the trucking company to pay
personal expenses during the entire backpay period. The tax records for the fiscal year ending
in September 2000 demonstrate, however, that she had this same practice prior to her August
2000 discharge. The corporate tax records for the trucking company for the fiscal year ending
in September 2000 reflect that Miller was paid $28, 800 in salary. It is significant that the tax
year ended 40 days after Miller’s discharge from Respondent’s facility. Thus, the majority of
the fiscal tax year ending on September 30, 2000 covered the time period prior to Miller’s
termination and prior to the beginning of her backpay period. The records reflect that from
October 1, 1999 through September 30, 2000, Miller received a designated salary amount
every two weeks. During approximately one-half of the pay periods reported in the 2000
fiscal tax year, Miller received $1049.62 per pay period. During other pay periods, Miller
received lesser amounts averaging $764.12. Miller does not dispute that during this same
fiscal tax year, she additionally took $32,000 from the trucking company to pay personal
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expenses. The $32,000 was considered to be a dividend and declared as income on Miller’s
personal income taxes for the calendar year 2000. In reviewing the cash disbursements
throughout the 2000 fiscal tax year, it is apparent that Miller had a practice of using the
trucking company funds for her personal use long before her discharge and certainly as early
as October, 1999. A review of the cash disbursement for the corporation reflect payments to
clothing stores, doctors, food stores, and pharmacies throughout the fiscal year.21 Thus,
whether the money received from the trucking company was salary or loans; she also received
this money prior to her discharge and supplemented her earnings from Respondent.
Additionally, Miller testified, without contradiction, that following her discharge from
Respondent’s facility, the work that she performed with the trucking company did not
increase and she remained available to look for other employment.
c. Respondent’s Argument Concerning Taxable Income
In an effort to reduce its backpay liability owed to Miller, Respondent devoted a good
deal of time and attention in the hearing as well as in its brief to the money that Miller
received from the trucking company. Respondent, in fact, devoted a large portion of its brief
to its discussion of the Internal Revenue Code and how the Code defines taxable income.
Respondent asserts “Inasmuch as tax returns filed for federal income tax purposes is a
reasonable basis for establishing the compensation of an individual, whether in the form of
wages, net earnings from self-employment or otherwise, an understanding of certain federal
income tax principals” as set forth in the Internal Revenue Code “is essential.” Thereafter in
its brief, Respondent provides an extensive discussion of “taxable income” under the Internal
Revenue Code and as analyzed by the Internal Revenue Service and reviewing courts. In
summary, Respondent maintains that because Miller’s salary and dividends from the trucking
company constitute taxable income, they are interim earnings that reduce gross backpay.
The Board, however, does not treat “taxable income” as synonymous with interim
earnings. An early example of the Board’s view is found in Florence Printing Co., 158
NLRB 775, 781-782 (1966), enfd. 376 F.2d 216 (4th Cir. 1967), cert. denied 389 U.S. 840, 88
S. Ct. 68 (1967). In that case, the respondent employer argued that because a discriminatee’s
strike benefits are taxable as “gross income” under the Internal Revenue Code, such benefits
should therefore be regarded as earned income equivalent to interim wages and deductible
from gross backpay. In rejecting the employer’s argument, the judge (whose decision was
affirmed by the Board) explained that the respondent’s argument ignored the well-known fact

21 As examples of corporate cash disbursements for apparent personal expenses, Respondent’s Exhibit No.
10 reflects that cash disbursements were made to Food City on the following dates: 10-8-99, 10-19-99,
10-30-99, 11-10-99, 11-17-99, 11-29-99, 12-31-99, 1-3-00, 1-30-00, 2-18-00, 2-26-00, 3-2-00, 3-11-00,
3-28-00, 4-8-00, 4-19-00, 4-23-00, 5-16-00, 8-5-00, 9-2-00, 9-9-00, 9-18-00, 9-27-00, and 9-23-00.
Cash disbursements were made to Rite Aid on the following dates: 11-3-99, 11-24-99, 12-3-99, 12-31-
99, 3-1-00, 3-10-00, 3-17-00, 4-4-00, 4-19-00, 6-1-00, 7-2-00, 7-9-00, 9-9-00, and 9-11-00. Cash
disbursements were also made to J.C. Penny on 10-11-99, 11-2-99, 12-6-99, 2-1-00, 3-3-00, 4-4-00, 5-
15-00, 6-14-00 and 8-5-00. Respondent’s Exhibit No. 10 also reflects cash disbursements to three
doctors, Fashion Bug, Wal-Mart, and numerous other entities that appear to be personal expenses.
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that “gross income” for Federal income tax purposes is a purely statutory invention designed
solely for the purpose of raising revenue and has no relationship to the definition of “gross
income” under statutes that are wholly unrelated to Federal tax law; i.e. the National Labor
Relations Act. The judge noted that the question was not whether the strike benefits were
gross income for Federal income tax purposes, but whether they constituted earnings under
the “backpay” provisions of the National Labor Relations Act, and thus would be used as a
setoff against gross backpay.
In the Florence Printing Co. decision, the judge looked to the Board’s earlier decision
in National Motor Bearing Co., 5 NLRB 409, 438 ( 1938), enfd. as modified 105 F.2d 652
(9th Cir. 1939 ) where the Board explained: “In all cases in which back pay is awarded, we
will, in accordance with our usual practice, order the deduction of all sums earned since the
discharges, which would not have been earned if the employee had been working for the
respondent.” [Emphasis added]. In finding that the strike benefits did not constitute earnings,
the judge also considered Black’s Law Dictionary and its definition of “earnings” as: “the
reward for personal services, whether in money or chattels, the fruit or reward of labor; the
gains of a person derived from his services or labor without the aid of capital; money or
property gained or merited by labor, service, or the performance of something; that which is
gained or merited by labor, services, or performance.” Ibid at 782. Accordingly, while
Miller’s salary, loans, or dividend from the trucking company may constitute taxable income,
such tax status is not sufficient to transform the income into interim earnings for backpay
purposes.
d. Respondent’s Argument that Miller was Self-Employed
Respondent asserts that as an officer of Debbie Miller Trucking, Inc., Miller took
funds from the company in the form of salary and dividends and used those funds for her
personal expenses. Respondent maintains that because Miller treated the company as her own
“pocket book,” the company should be treated as a self-employment business that generated
interim earnings during the backpay period.
I do not, however, find significance in how Miller utilized the assets of the trucking
company. Primarily, there is no dispute that Debbie Miller Trucking, Inc. existed prior to
Miller’s unlawful discharge. She testified, without dispute, that her duties as president of that
company did not change after her discharge. What changed, however, was the fact that
because she no longer had income from Respondent, she used more trucking company assets
and income to pay her own personal debts and obligations.
Additionally, the law is well settled that earnings or profits during the period of
discrimination from a business or job which a discriminatee held during his or her
employment with the respondent are not deductible from gross backpay as interim earnings.
Rice Lake Creamery Co., 151 NLRB 1113, fn. 4 (1965). Furthermore, I note that while
Miller’s backpay period ran from her August 21, 2000 discharge until August 5, 2005, there
were only five quarters in which she is deemed to have no interim earnings. Thus, any
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income derived from Debbie Miller Trucking, Inc. was supplemental to her interim
employment with Central Kentucky Blood Center, Inc., and Appalachian Regional Healthcare
(ARH). The Board and Courts have consistently held that second job earnings normally are
not considered as interim earnings to be deducted from gross backpay, particularly when the
claimant held the second job prior to discharge. NLRB v. Ferguson Electric Co., Inc., 242
F.3d 426, 433 (2nd Cir. 2001); U.S. Telefactors Corp., 300 NLRB 720, 722 (1990); Calson
Tower Geriatric Center, 281 NLRB 399, 402 (1986).
Any income that Miller derived from Debbie Miller Trucking, Inc. was clearly
supplemental earnings. It is well established that supplemental earnings from “moonlighting”
jobs constitute an exception to the general rule regarding interim deductions and such
supplemental earnings are not properly deducted if the employee had the moonlighting job
prior to his or her unlawful discharge. Birch Run Welding and Fabricating, Inc., 286 NLRB
1316, 1318 (1987), enfd. 860 F.2d 1080 (6th Cir. 1988); Miami Coca-Cola Bottling Co., 151
NLRB 1701, 1710 (1965), enfd. 360 F. 2d 569, 573 (5th Cir. 1966). The burden is on
Respondent to prove that Miller would not have been able to work at her supplemental job
prior to her illegal termination. Daniel Construction Co., 276 NLRB 1093, 1100 (1985).
Miller’s testimony that she performed the same duties for the trucking company before and
after her unlawful discharge is unrebutted. Respondent has not shown that Miller did not
receive supplemental earnings from the trucking company prior to her discharge.
Respondent’s own exhibits, in fact, establish that Miller received supplemental earnings from
the trucking company prior to her discharge from Respondent’s facility. Accordingly,
whether or not Miller received money from the trucking company as either salary or loans
after her termination does not change the undisputed evidence that this income was
supplemental and existed prior to her discharge. Had Miller “earned” a larger income from
the trucking company because of her non-employment with Respondent, such an increase
would be counted as part of her interim earnings. See Rice Lake Creamery Co., 151 NLRB
1113, fn. 4 (1965). As discussed above, however, any income from the trucking company
during the backpay period was either supplemental income comparable to the income that she
had received prior to her discharge or a loan from the trucking business that had no
correlation to earnings. Just as the Board recognized in the Florence Printing Co. decision,
the resources taken from the trucking company were not “earnings.” While Miller’s unlawful
termination may have prompted her to deplete more of the trucking company’s assets, the
income was clearly not interim earnings that would reduce Respondent’s backpay liability.
e. Respondent’s Argument that Miller Concealed Records
In response to Respondent’s subpoena, Miller produced her corporate tax records for
the tax years ending in 2000, 2001, 2002, and 2003. She testified that the tax return for the
tax year ending in 2004 had not been filed as yet. In its brief, Respondent argues that because
Debbie Miller Trucking, Inc. was operational during 2004, it follows logically that Miller
“likewise received some income from that source during 2004.” Respondent further argues
that because Miller has failed to produce financial records concerning the trucking company’s
income during 2004, she is intentionally concealing her 2004 earnings. As discussed in detail
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above, I do not find that Miller derived income from the trucking company that constituted
interim earnings during any portion of the backpay period. Whatever income that Miller may
have received from the trucking company in 2004 would no doubt be consistent with what she
received in 2000, 2001, 2002, and 2003. Furthermore, inasmuch as Miller produced all of the
income records for the other four years in the backpay period, there is no basis to conclude
that she is intentionally concealing this information or that she failed to file the corporate tax
return in order to conceal interim earnings. Accordingly, I find no merit to Respondent’s
argument.
f. Miller’s Voluntary Resignation from an Interim Employer
Respondent asserts that Miller forfeited her right to backpay when she voluntarily
resigned from Central Kentucky Blood Center (CKBC) during the first quarter of 2002.
Miller testified that she resigned from the CKBC in February 2002 because she intended to
attend nursing school. She asserted that before she could begin classes, her daughter became
ill and it was necessary for her to remain at home to care for her daughter. She maintained
that when her daughter’s condition improved, it was too late for her to apply for nursing
school. Miller denied that she left her position for any reason other than to attend nursing
school.
Respondent submitted into evidence a typewritten letter directed to CKBC containing
the following:
I am officially resigning from the company. I feel at this time that it is just
to[o] stressful for me. I am resigning of my own free will. This is a decision i
feel i have to make at this time. I [I] have really given my decision a lot of
thought so i regret to inform you that February 15 2002 will be my last day of
employment.
While not signed, the letter ends “sincerely Debra A. Miller.” When shown the letter, Miller
testified: “I don’t remember writing it. I could have, but I don’t remember writing it.”
Respondent also submitted into evidence the handwritten employment application that Miller
completed on February 18, 2003 for CKBC. In listing her prior employers, Miller included
her earlier employment period with CKBC. Miller includes “stress” as the reason for leaving
her prior employment with CKBC.
As documented in Miller’s February 18, 2003 application to CKBC and as reflected in
her testimony, it appears that Miller’s next employment was with ARH in Hazard, Kentucky.
She held this position for three months before returning to work with CKBC. Her earnings
when she returned to CKBC as well as with ARH were less than what she earned during her
initial period of interim employment with CKBC.
Based upon the record evidence, it appears that Miller quit her employment with
CKBC in February 2002 for personal reasons. While Miller does not remember writing the
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alleged letter of resignation, she does not deny writing the letter. Additionally, Miller does
not deny that when she reapplied to CKBC in February 2003, she identifies “stress” as her
reason for her prior resignation. When a discriminatee quits interim employment, the burden
shifts to the General Counsel to show that the decision to quit was reasonable. Taylor
Machine Products, Inc., 338 NLRB 831, 835 (2003). Inasmuch as Miller maintained that she
resigned her employment with CKBC to enter nursing school, there was no record evidence
concerning the cause of any stress for Miller or to justify the need for her to resign because of
the stress. Additionally, there was no evidence to corroborate her plans to attend school or to
dispute the purported letter to CKBC or her 2003 employment application to CKBC. Overall,
the record evidence does not demonstrate that Miller’s quitting her interim employment in
February 2002 was reasonable.
Using the offset formula set out in Knickerbocker Plastic Co., 132 NLRB 1209, 1212-
1215 (1961), it is appropriate to use the earnings that she would have earned at CKBC from
the time of her quitting through the remainder of her backpay period as interim earning
deductions from her gross backpay. The Board has also set out a formula for determining the
appropriate deduction when a backpay claimant has additional reduced interim earnings
following a voluntary resignation from interim employment. Using the Board’s analysis in
Sorenson Lighted Controls, 297 NLRB 282, 283, (1989), the earnings that Miller received at
the time that she resigned from CKBC should be used as the correct amount of interim
earnings for the remainder of the backpay period. Accordingly, for each quarter beginning
with the first quarter of 2002, a quarterly deduction of $4561 should be used to offset Miller’s
gross backpay.
For the reasons stated above, I compute the net backpay due Debra Miller, excluding
interest, as follows:
Quarter
Gross
Backpay
Interim
Earnings
Net
Backpay
3/2000 $2,234 $2,234
4/2000 $4,915 $4,915
1/2001 $4,915 $4,561 $ 355
2/2001 $4,980 $4,561 $ 419
3/2001 $5,008 $4,561 $ 448
4/2001 $5,083 $4,561 $ 522
1/2002 $2,737 $4,561 $ -
2/2002 $4,379 $4,561 $ 182
3/2002 $5,195 $4,561 $ 634
4/2002 $5,289 $4,561 $ 728
1/2003 $5,289 $4,561 $ 728
2/2003 $5,362 $4,561 $ 801
3/2003 $5,469 $4,561 $ 908
4/2003 $5,569 $4,561 $1,098
1/2004 $5,569 $4,561 $1,098
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2/2004 $5,569 $4,561 $1,098
3/2004 $5,862 $4,561 $1,301
4/2004 $5,862 $4,561 $1,301
1/2005 $5,862 $4,561 $1,301
2/2005 $5,963 $4,561 $1,402
3/2005 $2,293 $4,561 $ -
Accordingly, the total net backpay for Miller, excluding interest, is $21,473.
D. Maxine Ritchie
Prior to her termination from Respondent’s facility, Maxine Ritchie worked as a
registered nurse in the Intensive Care Unit of the hospital. Her duties involved total care for
the hospital patients. Ritchie testified that following her termination in August 28, 2000, she
looked for employment anywhere that she thought there might be a job opening. She
searched the newspapers and the internet. She also visited hospitals and clinics in her area
and reviewed employment bulletin boards. Other than employment in the medical field,
Ritchie applied to work as a substitute teacher. Ritchie estimated that within a week to two
weeks following her termination on August 28, 2002, she submitted an application for
employment with ARH in Hazard, Kentucky. In April 2001, Ritchie was hired by ARH. She
initially worked for ARH as a home health nurse. During the time that she worked as a home
health nurse, Ritchie was permitted to drive a company vehicle to visit her patients in their
homes. After approximately seven months of employment with ARH, she changed to a
position as a psychiatric nurse. From April 2001, Ritchie worked continuously as a full-time
employee at ARH until May 2003. Ritchie testified that in May 2003, ARH closed its
psychiatric unit and ARH changed her position to home health nurse. The company vehicle
that she had driven when she was first employed with ARH was no longer available to her.
Ritchie testified that in order to fulfill her duties as a home health nurse, she would have
needed a four-wheel drive vehicle for her work. While neither counsel inquired further about
this requirement, I take judicial notice that Hazard, Kentucky is located in the midst of the
Appalachian Mountains. It is reasonable that a four-wheel drive vehicle would be required
for mountain driving in certain weather conditions. Ritchie did not own such a vehicle. To
use her own vehicle in her work would have also required her to purchase additional
insurance to cover her for approximately $300,000. Ritchie explained that her husband had
been injured in a mining accident and she could not afford to purchase the vehicle or the
increased insurance coverage for the vehicle.
Following her loss of work with ARH, Ritchie found employment with the Kentucky
River District Health Department on May 17, 2003. Her initial position was Asthma
Coordinator. She has continued this interim employment with this same employer and
currently holds the position of Tobacco Coordinator. Ritchie recalled that in approximately
2004, she was also employed by ARH for PRN22 work on evenings and weekends during a

22 While the term “PRN” was not defined for the record, Ritchie’s additional work for ARH appeared to
Continued
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period of seven to eight months. During 2004 and while working at the Kentucky River
District Health Department, Ritchie was also employed by Hazard Community College as a
part-time evening instructor.
1. Conclusions Concerning Ritchie’s Backpay
Following Ritchie’s unlawful discharge on August 28, 2000, Ritchie found interim
employment in April 2001. Thereafter, she continued to work without significant interruption
for the remainder of the backpay period. During at least two quarters of the backpay period,
Ritchie’s interim employment earnings exceeded her gross backpay amount and no net
backpay accrued for these periods. Additionally, because of the amount of her interim
earnings for two other quarters, her net backpay amounted to only $118 for the entire quarter.
Therefore, throughout 2002, Ritchie’s interim earnings were substantial enough to virtually
extinguish Respondent’s backpay liability for that period of time.
Ritchie testified, without dispute, that when ARH eliminated her job in the psychiatric
unit and moved her to home health, she was unable to accept the job. She explained that she
did not have the vehicle and could not afford the required car insurance that would have been
necessary for her to perform the work in home health. The Board has long held that a
claimant is not required to accept or retain interim employment that is substantially more
onerous, is unsuitable, or threatens to become so. See Parts Depot, Inc., 348 NLRB No. 9,
slip op. at 14 (2006). Thus, her resignation from ARH did not constitute a willful loss of
employment, as the acceptance of the job in home health would have created a substantially
onerous condition of employment. Sorenson Lighted Controls, 297 NLRB 282, 282 (1989).
A claimant is certainly entitled to quit interim employment to search for work in a less
onerous job. Ryder System, Inc., 302 NLRB 608, fn. 11 at 621 (1991). Additionally, it
should be noted that even though she had to resign from ARH, she almost immediately found
employment with the Kentucky River District Health Department. While she received less
pay for her work with Kentucky River District Health Department over the next two years, the
Board has also found that a claimant who accepts a job at a lower rate of pay than the job
from which he was illegally discharged is under no duty to continue to search for work.
Champa Linen Service Co., 222 NLRB 940, 942 (1976). I also note that despite the fact that
her earnings were less with Kentucky River District Health Department, she also tried to
supplement her income by working part-time with ARH and by part-time teaching with
Hazard Community College.
Accordingly, the total record evidence demonstrates that Ritchie not only made a
diligent search for work throughout the entire backpay period, she may have even exceeded
expectations for diminishing Respondent’s backpay liability. Accordingly, Respondent has
failed to meet its burden of showing that Ritchie did not properly mitigate damages. The
compliance specification includes $232,247 as Ritchie’s total gross backpay. Her interim
earnings are shown to be $143,723. Therefore, the correct amount of net backpay for Ritchie,
_________________________
be part-time work as needed at the hospital.
JD(ATL)–7–07
5
10
15
20
25
30
35
40
45
32
excluding interest, is $88,876.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:23
ORDER
IT IS HEREBY ORDERED that the Respondent Jackson Hospital Corporation,
D/B/A Kentucky River Medical Center, Jackson, Kentucky, its officers, agents, successors,
and assigns, shall pay the individuals named below the indicated amounts of total gross
backpay and other applicable reimbursable sums, with interest thereon accrued to the date of
payment computed in the manner described in New Horizons for the Retarded, 283 NLRB
1173 (1987), minus tax and withholdings required by Federal and State laws.
Eileene Jewell $41,592
Debra Miller $21,473
Lois Noble $40,268
Maxine Ritchie $88,876
Dated, Washington, D.C., February 22, 2007.
Margaret G. Brakebusch
Administrative Law Judge

23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.