Local 294, Teamsters

National Labor Relations Board - Board Decisions

Jan 12, 1976

222 N.L.R.B. 155 (N.L.R.B. 1976)

LOCAL 294, TEAMSTERS 155
Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca (Rubber City Express) and Leo F. Lester. Case
3-CB-1906
January 12, 1976
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On October 1, 1975, Administrative Law Judge
Anne F. Schlezinger issued the attached Supplemen-
tal Decision in this proceeding,' Thereafter, Respon-
dent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor. Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and brief and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Local 294, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Albany, New York, its
officers, agents, and representatives, shall take the
action set forth in said Order.
i On July 2, 1973, the Board issued the underlying decision in this case,
reported at 204 NLRB 700.
SUPPLEMENTAL DECISION
ANNE F. SCHLEZINGER , Administrative Law Judge: On
July 2, 1973, the National Labor Relations Board issued its
Decision and Order ' in the above-entitled proceeding, in
which Local 294, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, here-
in called the Respondent , was ordered to make whole Leo
F. Lester, an individual , for loss of earnings suffered as a
-11of the Respondent having, in violation of Section
and (2), "knowingly and deliberately caused
-liscriminate against Lester in order to dis-
exercising his Section 7 rights and to
discourage other members from similarly doing so." On
December 3, 1974, the Court of Appeals for the District of
Columbia issued a per curiam Judgment 2 ordering enforce-
ment of the Board's make-whole Order.
A dispute having arisen over the amount of backpay due
Lester under the terms of the Board's Order, the Regional
Director for Region 3 (Buffalo, New York), on May 12,
1975, issued and served on the parties a backpay specifica-
tion and notice of hearing. Thereafter the Respondent
filed a timely answer to the backpay specification denying
certain allegations in the specification and asserting a
number of separate and distinct defenses as to the backpay
claim.'
Pursuant to -notice, a hearing was held before me in Al-
bany, New York, on July 22 and 23 and August 4, 1975,4
for determination of the amount of backpay due Lester.
All the parties appeared at the hearing and were afforded
full opportunity to be heard, to examine and cross-examine
witnesses, and to present evidence. Subsequent to the hear-
ing, the General Counsel and the Respondent filed briefs
on or about September 19, 1975, which have been fully
considered.5
Upon the entire record in this proceeding and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
A. The Backpay Specification
The Board's Order, enforced by the court of appeals,
requires that the Respondent reimburse Lester "for all
money lost as a result of its discrimination against him
from July 7, 1972, until the Respondent refers him to a job
substantially equivalent to the job he had with Rubber City
Express or until he obtains such a job, less his net earnings
during this period," with interest due in accordance with
Board policy.
The backpay specification, as amended, asserts that: (1)
Lester's backpay period began on July 6, 1972, and ended
on January 8, 1975, on which date he found substantially
equivalent employment; (2) an appropriate measure of the
hours Lester would have worked during his backpay period
is the weekly average hours worked by his replacement,
2 Local 294, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America v. N.LR B., 506 F.2d 1321 (C.A.D.C.,
1974)
s The General Counsel, prior to the hearing herein, filed a motion to
strike certain paragraphs of Respondent's answer and affirmative defenses
to the backpay specification and to adopt General Counsel's gross backpay
formula. Part of this motion was ruled on at the hearing and the remainder
is disposed of as indicated below In addition, the General Counsel, at the
opening of the hearing herein, filed a petition to revoke subpeona daces
tecum, served by the Respondent on Lester, which was granted.
4 The recess from July 23 to August 4 was granted, over the General
Counsel's objection, at the request of the Respondent in order that it might
call a witness whose testimony it discovered during the July hearing was
important to its case but who was then unavailable. The Respondent's re-
quests for a further postponement until Or Forster, who was ill, could
testify were denied to avoid further delay in concluding this proceeding
Moreover, certain records of Dr Forster were made available to, and were
placed in evidence by, the Respondent as discussed below.
5 Counsel for the Respondent also filed a motion to correct transcript.
This motion, which is unopposed, is hereby granted, and the transcript is
accordingly corrected.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ted Goodman, from the date Goodman, who was referred jobs prior to January 1975.
by the Respondent, replaced Lester, through August 12,
1972, the date on which Rubber City Express last operated
in the Albany area; (3) the weekly average hours worked
by Goodman were determined by adding his gross weekly
pay for each week he was employed by Rubber City Ex-
press during the period beginning with the week ending
July 15, 1972, and ending August 12, 1972, and the sum of
total gross earnings was divided by the number of weeks
during which Goodman worked in that period to arrive at
a weekly average wage, and that average was then divided
by $5.51, the wage rate in effect at that time, to arrive at
the average weekly hours of work, these computations
showing that the average weekly pay was $150.62 and the
average weekly hours were 27.33; (4) although Rubber City
Express was not a signatory to an area collective-bargain-
ing agreement with the Respondent, it paid Lester and
Goodman the wage rates set forth in such agreement,
which rates increased at various times during the backpay
period from $5.51 to $6.73 an hour; (5) the quarterly gross
backpay for Lester was determined by multiplying the av-
erage hours applicable to the respective calendar quarters
by the corresponding applicable wage rates; (6) the calen-
dar quarter net backpay is the difference between calendar
quarter gross backpay and calendar quarter interim earn-
ings; (7) the total net backpay due Lester is the sum of the
calendar quarter amounts of net backpay due him; and (8)
the total net backpay owing Lester, computed with deduc-
tions based on Lester's quarterly interim earnings and a
deduction for 1 week in which Lester was admittedly un-
able to work as a result of an automobile accident, is
$16,642.79, plus interest.
B. The Respondent's Contentions
The Respondent in its answer denies or asserts lack of
knowledge as to some of the allegations in the specifica-
tion. The Respondent also contends inter alia that (1)
Lester's backpay period ended on or about August 3, 1972,
when Rubber City Express discontinued its Albany opera-
tion, or, alternatively, when Lester obtained jobs with cer-
tain employers on various dates in 1972, 1973, and 1974,
which were substantially equivalent to Lester's job at Rub-
ber City Express; (2) the computation of hours of work
should be based on the weekly average hours worked by
both Lester and Goodman for Rubber City Express, not on
those worked only by Goodman, and, alternatively, the
computation in the specification is speculative as it fails to
consider the temporary nature of the work at Rubber City
Express; (3) Lester failed to make a diligent attempt to
obtain employment during the period in question, and
failed to register at job referral agencies including the of-
fice of the Respondent; (4) Lester sustained accident inju-
ries which made him physically unable to perform substan-
tially equivalent work for a period of time longer than 1
week; and (5) the Board's Order requires that the backpay
specification allege and prove that the Respondent dis-
criminated against Lester by failing to refer him to sub-
stantially equivalent jobs which were available for referral,
that this has not been shown, and that the Respondent did
refer Lester to several jobs and Lester did obtain various
C. Discussion
The Respondent has been ordered to make Lester whole
for losses of earnings caused by its discrimination against
him by reimbursing him for such losses "from July 7, 1972,
until the Respondent refers him to a job substantially
equivalent to the job he had with Rubber City Express or
until he obtains such a job, less his net earnings during this
period." The specification as amended finds that the
Respondent's obligation under this order is to pay Lester
the sum of $16,642.79 plus interest.
(1) The Respondent maintains that the specification re-
lied on incorrect factors in computing backpay on the basis
of Goodman's earnings and of the rates of pay in the
Respondent's area contract. The Board found, however,
that the Respondent unlawfully caused Lester, after he had
worked only a day or two at Rubber City Express, to be
replaced by Goodman on that job. And the testimony, by
witnesses for the Respondent as well as for the General
Counsel, shows that Rubber City Express, while not a sig-
natory to the Respondent's area contract, paid the contract
wage rates during the period of its Albany operation. These
rates are, therefore, a proper standard for determining the
amount of backpay due Lester, and the number of weekly
hours Goodman worked on this job constitutes an appro-
priate measure of what Lester would have earned on this
job absent the discrimination against him.
The specification as amended deducts from gross back-
pay amounts in mitigation discovered through examination
of social security and other applicable records, including
earnings on interim jobs and a period of unavailability for
work for health reasons. Further, as the court stated in
N.L.R.B. v. Brown & Root, Inc., 311 F.2d 447, 452 (C.A. 8,
1963):
Obviously, in many cases it is difficult for the Board
to determine precisely the amount of backpay which
should be awarded to an employee . . . the Board
may use as close approximations as possible, and may
adopt formulas reasonably designed to produce such
approximations.... "our inquiry may ordinarily go
no further than to be satisfied that the method selected
cannot be declared to be arbitrary or unreasonable in
the circumstances involved."
The formula applied in the instant case has not been shown
to be "arbitrary or unreasonable." 6 Accordingly, I find ap-
propriate the method of computation utilized in this pro-
ceeding to determine the amount of backpay due Lester.
(2) The Respondent contends that backpay should be
cut off as of the date Rubber City Express discontinued its
hauling operation into Albany, which occurred on August
6 Where circumstances permit only a reasonable approximation of the
amount of backpay due, "any uncertainty must be resolved
wrongdoer whose conduct made certainty impossible"
Products Corp., 180 NLRB 142 (1969), enfd 436 F 2d^'
cert denied 493 U S 905 (1971); NHE/Freewa-
(1975); Local Union No. 2088, International Br
ers (Federal Electric Corporation), 218 NLP,'
dustries, Inc, 219 NLRB No. 159.
LOCAL 294, TEAMSTERS 157
12, 1972.7 Although this discontinuance was brought out at
the original hearing, backpay was not cut off as of that
date in the Board's Order, which requires the Respondent
to refer Lester not to a job at Rubber City Express but "to
a job substantially equivalent to the job he had with Rub-
ber City Express " Furthermore, the issue as to the effect of
this discontinuance on the Respondent's backpay liability
was raised in the enforcement proceeding, and the court of
appeals nevertheless ordered enforcement of the Board's
backpay Order. I find no merit, therefore, in the
Respondent's contention that the backpay cutoff date is
August 12, 1972.
I likewise find no merit in the Respondent's contention
that backpay should be cut off as of the dates in 1972,
1973, and 1974 when Lester obtained occasional work. The
testimonial and documentary evidence shows, and I find,
that these jobs were temporary, to replace a man who was
unavailable for a brief period, to furnish extra help for an
unusual or seasonal increase in work, or on some other
basis as needed for periods ranging from a day to a few
weeks. The Respondent, however, had Lester replaced by
Goodman on what was at the time expected to be a perma-
nent job with Rubber City Express.
(3) The Respondent contends that Lester failed to use
due diligence in seeking interim employment and argues
that this is shown by Lester's failure to register at the hiring
hall when jobs were available although representatives of
the Respondent had advised him to do so. The Board's
Order, however, does not condition backpay on the fre-
quency with which Lester registered at the hiring hall, but
on the Respondent's referral of Lester to a substantially
equivalent job.' Moreover, Lester, who at all times main-
tained his paid-up union membership, did on a number of
occasions go to the hiring hall in person to register for
work, at times waited there for hours to see if work would
be available, and frequently, to avoid these waiting peri-
ods, telephoned the hall, while looking elsewhere for work,
to leave word where he could be reached by telephone if
there was a job for him.
The Board in its Decision found that Lester, after the
Respondent brought about his replacement by Goodman,
had great difficulty in finding work, and that the work he
found was pnmarily outside the Respondent's jurisdiction
as a longshoreman and as a "gypsy driver." The present
record shows that this difficulty continued after the
Board's Decision issued. On many occasions when Lester
went to the union hall to register or telephoned to ask for
work, he was told by the office worker who took calls and
made referrals, and by the business agent who also made
referrals, that jobs were scarce and no work was available.
Lester was at the hall on or about June 8, 1973, when a call
was received that there was work available at Great Bear
7 The Rubber City Express operation was discontinued as too costly as a
result of demands made by the Respondent
s In its exceptions to the original Administrative Law Judge's Decision,
the Respondent specifically excepted to "the recommended remedy in that
there is no requirement that Lester follow the same procedures as other
Local 294 members in reporting to the Union hall each morning in order to
be listed as available for referral to jobs such as the one made available by
Rubber City Express " The record is clear, however, that men were referred
to jobs who were not at the union hall when the jobs became available
Spring Company. Although this work was rejected by the
other men at the hall, it was not offered to Lester. He heard
of it from the other men, telephoned the company, and
obtained the work.
The Respondent telephoned Lester, who was not at the
hiring hall that day, and referred him to a job at M & M
Transportation Company. One of the Respondent's wit-
nesses testified from the hiring hall records that this refer-
ral was made on February 23, while another witness testi-
fied that such a referral was made on March 23, 1973, and
also that a referral at Williams Press was offered Lester by
telephone on March 8, 1973, but he rejected it as he had to
go to court that morning with his son. Lester testified that
he worked on the M & M job a few days at a time during
a vacation period for a total of about 1-1/2 weeks, and that
this was the only job to which the Respondent referred him
during the backpay period. An official of Williams Press
testified that company records showed no one was hired on
March 8, 1973, or any time during that month. I find, on
the evidence as a whole, that the Respondent has not
shown that it referred Lester to a substantially equivalent
job, or that it offered him such a job which he rejected, or
that its failure to refer Lester to such a job was attributable
to Lester's absence from the hall when jobs became avail-
able as his presence at the hall was clearly not a prerequi-
site to referral.
(4) The Respondent also contends that Lester failed to
utilize other possible sources for obtaining interim employ-
ment . The record shows,-however, that Lester in August
1972 began receiving payments from the Unemployment
Compensation office, which refers recipients to jobs when
available? He also received some food stamp assistance
but rejected an offer of welfare payments as he hoped to
find work. Moreover, Lester, in addition to visiting and
telephoning the union hall, sought work through employ-
ment agencies, newspaper advertisements, friends, political
connections, and, primarily, by making the rounds of
freight terminals, trucking companies, and other firms that
employed men in his field of work.10 I find, therefore, that
the evidence does not support this contention of the Re-
spondent.
(5) The Respondent argues that Lester incurred a willful
loss of earnings on the ground that Lester formerly
"shaped up" for and frequently obtained longshore work,
but failed to shape up for this work during most of the
backpay period. As a result of injuries sustained in an au-
tomobile accident while on his way to work at the Port of
Albany on July 21, 1972; Lester was not able for a period
after that to perform work as strenuous as longshore work.
He admitted he did not shape up after the accident because
of his injuries, and also because this work had become ex-
tremely difficult to obtain. Augustine Crocco, president of
the local longshoremen's union, whom I found a frank and
credible witness, testified that this kind of work had be-
come scarce in the past few years as a result of several
9It is the Board's longstanding practice affirmed by the courts, as the
Respondent conceded during the hearing, to disallow deductions from
backpay for collateral benefits such as unemployment compensation Gul-
lets Gin Company, Inc v N L R B, 340 U S 361 (1951)
10 Lester testified that his current employment with the New York State
Government was obtained through a friend
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factors including automation; that the gangs, which includ-
ed union and nonunion men, had been reduced from four
to three; that preference for the available work had to be
given to those who had books; that Lester had not worked
the 1,000 hours a year required to obtain a book; and that
even the men who had books were working only about 2
days a week.
The Respondent also points to the fact that Lester reject-
ed a job offered him by the State Employment Office. Les-
ter testified that thisjob was in Dwaynesburg, about 20-25
miles from his home; that he rejected it because of the
distance as his "automobile wouldn't hold up" and it
would mean getting home late; that he had never worked
out of town as he had children at home and no wife or
other adult to look after them in his absence;ii and that
this fob paid $2.50 an hour, less than half the contract rate
he was paid on the Rubber City Express job. 12
In addition, Teneyck Powell testified, as a witness subpe-
naed by the Respondent,13 that he was president of Davis
Seed Company, a garden business which was seasonal and
affected by weather; that Lester was hired in about Febru-
ary 1974 at $3.25 an hour to assist during the busy season,
which usually ran until about July 1; that business slowed
down, however, to such an extent that Lester was not need-
ed and was terminated on March 17; that he did not ob-
serve Lester at work but understood Lester was not a com-
pletely satisfactory employee, had poor customer relations,
and was not cooperative with the warehouse men; that he
never explained to Lester these aspects of the work nor
gave any reason for the termination other than that Lester
was no longer needed; and that he did not recall when he
hired another man.
Lester testified that while on this job he asked for a wage
increase a few times, and that he was finally told that the
company, while satisfied with his work, could not afford
him and was getting another man in his place. The Board's
Decision in this proceeding points out that the president of
Rubber City Express at the time Lester worked there had
asserted that "Lester performed the unloading to its full
satisfaction." And Crocco, who had known Lester through
the work at the dock for over 20 years, testified that Lester
never refused any kind of work, and was a hard worker
and "a little bit better than most."
I find, in all the circumstances of this case, that Lester
was evidently well aware of his family responsibilities, and
anxious to find and to retain work that would enable him
to carry out these responsibilities as well as to mitigate
backpay.14 The record shows that it was Lester who found
11 Lester testified that his truckdriving jobs sometimes took him out of
town, but that on these jobs he was directed to the work by telephone with
his base of operations in town, and that he would have accepted such work
12 See N L R B v Madison Courier, Inc, 472 F.2d 1307 (C.A D C., 1972),
which holds that a discriminatee need not seek or accept "employment
which is 'dangerous, distasteful or essentially different' from his regularjob"
or "ever accept anything but 'suitable ' interim employment"; United Aircraft
Corporation, 204 NLRB 1068 (1973)
i Davis, previously unavailable, was called by the Respondent when the
hearing resumed on August 4
14 The Board and the courts hold that a reasonably good-faith effort to
obtain interim employment "requires conduct consistent with inclination to
work and be self-supporting evidenced by the sincerity and reason-
ableness of the efforts made by an individual in his circumstances to relieve
virtually all the jobs at which he worked during the pro-
tracted backpay period; that when the Respondent failed
to refer him to, and he did not find, a substantially equiva-
lent job, he "lowered his sights" to accept various lower
paying and less desirable fobs, Is and that the job conceded
to constitute substantially equivalent employment was one
that Lester obtained through his efforts, not by a Respon-
dent referral. The evidence presented by the Respondent
does not establish that Lester neglected to seek interim
jobs, invited discharge by poor work performance, or re-
jected jobs for inadequate reasons.I" Accordingly, I find
that the General Counsel has shown that Lester did use
due diligence in obtaining interim employment, and that
the Respondent has not met its burden of proving willful
idleness or loss of earnings on the part of Lester.)
(6) The backpay specification was amended to deduct
$150.62 from the total backpay due Lester on the basis of a
I-week disability resulting from an automobile accident on
July 21, 1972. There was no reference to this matter in the
original specification. In his motion to strike, however, the
General Counsel stated, in response to one of the affirma-
tive defenses in the Respondent's answer, that he "is pre-
pared to stipulate that the period that Lester was unavail-
able for work due to a physical disability from a
nonindustrial accident having no casual [sic] connection
with Respondent's illegal conduct should be deducted
from Lester's total backpay," and, at the hearing, the Gen-
eral Counsel amended the specification by deducting I
week's backpay.
The Respondent contends that Lester was unavailable
for work following the accident for considerably longer
than I week. Counsel for the Respondent attempted to
subpena Dr. Forster, who treated Lester after the accident,
and after Lester had been examined and released by a hos-
pital. Counsel stated, however, at the July hearing, that he
was advised the doctor was recovering from an operation
and would not be available to testify for "several weeks,"
and, at the August hearing, that he was advised the doctor
"probably would be available" in a month. He urged at the
August hearing that, if his repeated requests for a.post-
ponement until Dr. Forster could testify were denied, he be
permitted to place in evidence certain records furnished by
Dr. Forster. This request was granted over the General
Counsel's objection. These records include a letter of Dr.
his unemployment Circumstances include the economic climate in which
the individual operates . his skill and qualifications , his age and his personal
limitations" Mastro Plastics Corp, 136 NLRB 1342, 1359 (1962), enfd 354
F 2d 170 (C A 2, 1965), cert denied 384 U S. 972 (1966)
15 See N.L.R B v Cashman Auto Company, 223 F 2d 832, 836 (C A I,
1955), holding that the "principle of mitigation of damages does not require
success , it only requires an honest good faith effort", N LR B v . Madison
Courier, Inc, supra, holding that doubts as to when a backpay claimant is
justified in lowering his sights should be resolved " in favor of the innocent
discriminatee", Local Union No 2088, 1 B E W, supra, stating that the
Board's "paramount concern must be in protecting the rights of the
wronged party"; Avon Convalescent Center, inc, 219 NLRB No. 91 (1975).
16 The Supreme Court holds that deductions are made from a
discriminatee 's gross backpay "for losses which he wilfully incurred" by a
"clearly unjustifiable refusal to take desirable new employment ." Phelps
Dodge Corp v. NLRB , 313 U S. 177, 197 (1941)
17 See NLRB v Pugh and Barr, Inc, 231 F.2d 588 (C A 4, 1956);
N L.R B v Southern Silk Mills, Inc, 242 F 2d 697 (C A 6, 1957), cert
denied 355 U.S 821, United Aircraft Corporation , supra, NHE/Freeway,
Inc, 218 NLRB No 41 (1975)
LOCAL 294, TEAMSTERS
Forster dated July 29, 1975, stating that "I cannot possibly
appear in any court in the immediate future inasmuch as I
was operated on . . . on July 16, 1975, and am convalesc-
ing slowly."
One of the doctor's reports placed in evidence by the
Respondent states, under date of July 24, 1972:
I telephoned the Albany Hospital and obtained the
following report:
"7/21/72-Cervical spine: There is no evidence of
fracture or dislocation... .
Thoracic spine:. .. There is no good evidence of
any recent injury . . .
The Respondent also placed in evidence certain records
furnished, pursuant to subpena, by Richard Kohn, the at-
torney who represented Lester in the claim for damages
against the party who caused the accident. These records
include a report dated September 12, 1973, prepared by Dr.
Forster at Kohn's request, which states that Lester was ex-
amined immediately after the accident at a clinic and was
given medication but not detained; that Lester consulted
the doctor 3 days later; that the doctor, who had treated
Lester previously, put him "on a regime of medication con-
sisting of muscle relaxants and analgesics" and that Lester
"was given physical therapy, including cervical traction
quite regularly through November 9, 1972"; that "Diagno-
sis, following initial examination was: strain, neck and
back. In addition to the treatment already outlined, patient
was also given an elastic belt, and was advised to use hot
soaks at home. . . . patient made some progress . . . he
ultimately began using an adequate corset." The report
concludes that Lester has not returned to see the doctor,
since November 9, 1972, that the doctor did not know his
status since then, but that "I expect a full recovery in the
long run."
Lester admitted at the hearing herein that he was under
the doctor's care about 7 months, but maintained that,
while he was unable for a substantial period thereafter to
do work as strenuous as longshore .work, he was incapaci-
tated for only I week from performing his usual truckdriv-
ing and warehouse work. He had no job at this time to
which to return when he recovered from his injuries, but
testified that after the 1 week's disability he resumed
searching diligently for work. At the original hearing in this
proceeding, however, Lester testified that he was unable to
work for 3 or 4 weeks after the accident.
Kohn, called as a witness by the General Counsel, testi-
fied that his office prepared a bill of particulars in connec-
tion with the claim for damages arising from the accident.
This document states in part that: "(10) Plaintiff was sub-
stantially confined to his home, except for visits to his phy-
sician and for necessaries, for a period of approximately
one week following the accident. . . . (12) Plaintiff was
prevented from pursuing his usual employment for approx-
imately one week following the accident. . . . (14) Plaintiff
was a teamster, employed by McGrath Corporation at the
Port of Albany, earning wages of approximately $210 for a
forty-hour week."
The Respondent at the hearing objected to Kohn' s testi-
mony and to the evidence adduced as to the bill of particu-
159
lars on the ground that this document, prepared after is-
suance of the Board's Decision herein, was "a self-serving
document signed by Mr. Lester who well knew at the time
he signed it that he had a back pay compliance proceeding
in the offing." 18
Kohn testified, however, that the bill of particulars,
which is addressed to the law firm representing the defen-
dant in the accident case, was prepared at the demand of
that law firm and responds to each item in that demand;
that his law office "prepared it from the records that were
available to us, the medical bills, the medical report, the
estimate to the damage to his car, the receipts for the bills
that he had incurred in connection with his care and treat-
ment"; and that Lester came to the office and reviewed
and signed the document, but "had no input in the prepa-
ration of that Bill of Particulars."
Lester impressed me generally as a candid and believa-
ble witness. While there are, as in this instance, some in-
consistencies in his testimony, they appeared to be attribut-
able to the effect of the passage of time on his recollection
rather than a deliberate attempt to misrepresent what oc-
curred. Furthermore, I found Kohn a wholly credible wit-
ness. There is no basis in the record for finding that Kohn
claimed a 1-week disability in the lawsuit because of a pos-
sible backpay proceeding before the Board. Accordingly, I
find, on the basis of Kohn's credited testimony and on the
entire record, that the Respondent has failed to show that
Lester was unavailable for work for a longer period after
the accident than the I week for which the General Coun-
sel has deducted backpay.
Concluding Findings
It is well established that the Board has broad authority
in determining backpay remedies that will "bring about a
restoration of the situation, as nearly as possible, to that
which would have obtained but for the illegal discrimina-
tion," and that will make one who has been discriminated
against whole for any loss of earnings suffered as a result
of the discrimination.19 It is also well established that, after
the General Counsel has computed the gross amount of
backpay due the discriminatee in question, the burden of
proving events that warrant a diminution of these amounts
devolves upon the party who unlawfully discriminated
against or caused the discrimination against the backpay
claimant ,20 and uncertainties as to the amounts due are
resolved against that party.21 In accord with this broad au-
thonty, the Board orders a union which causes an employ-
er to discriminate against employees to restore these em-
ployees "as closely as possible, to the . . . financial status
18 The bill of particulars was signed on June 3, 1974 , almost a year after
the Board 's Decision, and about 6 months before the court's order
19 Phelps Dodge Corp v N L R B, supra, N L R B v J H Rutter-Rex
Manufacturing Inc, Company, 396 U S 258, 262 (1969), N L R B v. United
States Air Conditioning Corp, 336 F 2d 275 (C A 6, 1964), Golay & Compa-
ny, inc v NLRB, 447 F 2d 290 (C A 7, 1971), cert denied 404 U S 1058
(1972)
20 N L R B v Brown & Root, Inc, supra, N L R B v Miami Coca-Cola
Bottling Company, 360 F 2d 569 (C A 5, 1966), N L R B v Madison Courier,
Inc. supra
21 N L R B v Miami Coca-Cola Co, supra, Local Union No 2088,
IBE W, supra
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they would have occupied if it had not been for the dis-
crimination." 22 The Board requires the union in such cases
to reimburse the affected individual for what he would
have earned, as an employee of the employer who termi-
nated him or in comparable employment, absent the
union's discriminatory conduct,23 where the claimant has
made a reasonable effort in good faith to mitigate his loss
of income.24
I find, in all the relevant circumstances of this case, that
the Respondent has failed to show that the effect of its
discrimination in causing the termination of Lester's em-
ployment by Rubber City Express has been cut off by any
job referral it made, or that it has taken any other mean-
ingful action to remedy its discrimination against Lester in
an effort to cut off its continuing liability for backpay prior
to Lester's finding substantially equivalent employment in
January 1975. I also find that the evidence does not show
that Lester failed to exercise due diligence in seeking inter-
im employment, that he incurred willful losses, or that the
occasional temporary interim jobs he found in 1972, 1973,
and 1974, constituted substantially equivalent employment
that would terminate the Respondent's backpay liability. I
find further that the only effect of such interim employ-
ment that is warranted in this case is that Lester's earnings
should be, and have been, deducted from the backpay due
Lester.
It is apparent, therefore, and I find, on the basis of the
foregoing and the entire record, that the Respondent was
required by the Board's Order to make Lester whole from
July 6, 1972, until the Respondent offered him or he found
substantially equivalent employment; that he concededly
found such employment on January 8, 1975; that the Re-
spondent has failed to meet its burden of showing, by cred-
ible and probative evidence, that any job referral by the
22 Pen and Pencil Workers Union, Local 19593 (Parker Pen Co). 91 NLRB
883, 888 (1950)
23 See , for example , Local 17, international Union of Operating Engineers
(Vogth & Sons Construction Corp ), 143 NLRB 29 (1963 ), Dependable Truck
Leasing , Inc, 190 NLRB 422 (1971)
24 N L R B v Madison Courier, Inc., supra
Respondent , Lester's search for work , the interim jobs Les-
ter found , Lester's rejection of a job , the effects of Lester's
automobile accident , or any of the other conduct or events
asserted by the Respondent as grounds for mitigation of its
backpay liability , warrant an earlier cutoff date than Janu-
ary 8 , 1975, or any diminution of the amount found to be
due Lester in the backpay specification , as amended. In
conclusion , therefore , I find that , in order for the Respon-
dent to make Lester whole for the loss of earnings suffered
by him as a result of the Respondent 's discrimination
against him , as required by the Board 's Order , enforced by
the Circuit Court of Appeals for the District of Columbia,
the backpay remedy in this case must include what Lester
would have earned , absent the Respondent 's discrimina-
tion , on a job substantially equivalent to the job he had
with Rubber City Express, from July 6, 1972, until Lester
began work on a substantially equivalent job on January 8,
1975. I shall therefore recommend that the backpay spec-
ification , as amended , be adopted , and that Lester be
awarded the amount of net backpay set forth therein.
Upon the basis of the foregoing findings and conclu-
sions, and upon the entire record in this case , I recommend
that the Board issue the following:
ORDER25
The Respondent, Local 294, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Albany, New York, its officers, agents , and rep-
resentatives, shall satisfy its obligation to make Leo F. Les-
ter whole by payment to him of the sum of $16,642.79, plus
interest thereon accrued to the date of payment at the rate
of 6 percent per annum, computed in the manner specified
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).26
25 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations . be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
26 International Photographers of the Motion Picture Industries, Local 659,
etc, 216 NLRB No 120 (1975)