Moran Printing, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1999

330 N.L.R.B. 376 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 376
Moran Printing, Inc. and International Brotherhood
of Teamsters, Local Union No. 5. Case 15–CA–
13705
December 30, 1999
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On June 22, 1999, Administrative Law Judge Howard
I. Grossman issued the attached supplemental decision.
The General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,1 and
conclusions only to the extent consistent with this Sup-
plemental Decision and Order.
On December 29, 1995, the Respondent unlawfully
laid off employees L. C. Gray and Ripley Dixon in viola-
tion of Section 8(a)(5) and (1) of the Act. In this pro-
ceeding, the judge found that neither discriminatee was
entitled to any backpay, and he dismissed the compliance
specification. Regarding Dixon, the judge discredited his
testimony and found that Dixon did not make a diligent
search for work prior to his interim employment with
Hackbarth Delivery Service (Hackbarth). The judge fur-
ther found that Dixon’s interim job with Hackbarth was
not substantially equivalent to his former position with
the Respondent. The General Counsel excepts only to
the above findings pertaining to Dixon. He argues that
Dixon is entitled to backpay for the entire backpay pe-
riod or, alternately, at least for the calendar quarters co-
inciding with his interim employment with Hackbarth.
1. We agree with the judge that the credited evidence
shows that Dixon did not exercise reasonable diligence in
his job search from the time of his layoff to the com-
mencement of his employment at Hackbarth. Dixon,
who was called as a witness by the Respondent, signed
the hiring hall out-of-work book maintained by the
Teamsters Union Local 5 only twice after his dis-
charge—in January and on May 13, 1996.2 Dixon also
procured the signature of the Union’s business manager
on an unemployment benefits form in order to obtain
such benefits until late June 1996.3 The record shows
that from late June 1996 until his Hackbarth employment
started on September 4, 1997, Dixon’s search for work
was at most sporadic. The judge discredited his testi-
mony regarding efforts to obtain work because of the
many inconsistencies among the written list of employers
that he had submitted to the Region’s compliance officer,
his deposition testimony in related court proceedings,
and his testimony at the compliance hearing.4 Therefore,
we find that the record supports the judge’s conclusion
that Dixon did not engage in a reasonably diligent job
search prior to his interim employment at Hackbarth.5

1 The General Counsel has implicitly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
2 The record indicates that Dixon’s failure to sign the out-of-work
book each month apparently meant that his name dropped further down
the referral list each month from his initial signing in January until his
second signing in May. Dixon testified that he was not told that he
needed to sign the book every month to remain near the top of the
referral list. The Union’s business manager testified, on the other hand,
that the need to sign the book at the beginning of each month in order
to remain current on the list was “common knowledge” among those
who used the hiring hall.
2. We disagree, however, with the judge’s finding that
Dixon’s acceptance of the position at Hackbarth violated
his obligation to seek substantially equivalent employ-
ment and therefore constituted insufficient mitigation of
damages. The record establishes that Dixon’s primary
work before his layoff by the Respondent was driving a
delivery truck and that his position at Hackbarth primar-
ily entailed driving a delivery car. At the time of his
unlawful layoff, his hourly rate was $9.47 per hour,
while Dixon’s uncontroverted testimony reflects that his
starting pay rate at Hackbarth was $7 per hour.
A discriminatee is entitled to backpay if he makes a
reasonably diligent effort to obtain substantially equiva-
lent employment. See United Aircraft Corp., 204 NLRB
1068, 1068–1069 (1973). In a backpay proceeding, the
burden is on the respondent employer seeking to mitigate
its liability to establish that the discriminatee willfully
incurred a loss of interim earnings by a “clearly unjusti-
fiable refusal to take desirable new employment,” or that
the discriminatee could have done better than he did in
taking particular interim employment. E & L Plastics
Corp., supra, quoting Phelps Dodge Corp. v. NLRB, 313
U.S. 177, 199–200 (1941). “Doubts as to when a claim-

3 The Union’s business manager testified that he signed the unem-
ployment benefit forms so that Dixon could receive benefits, not as an
acknowledgment that Dixon was seeking work outside the hiring hall.
4 Although he had submitted a list of many employers where he had
purportedly searched for work in this period, on the witness stand
Dixon could recall only two employers with whom he had applied for
work from July 1996 to September 1997, and neither of these two em-
ployers was on the list submitted previously to the compliance officer.
5 We do not adopt the judge’s finding that Dixon’s signings of the
out-of-work book “do not constitute a search for work.” Thus, contrary
to the judge, Dixon did not “delay in seeking employment” until Sep-
tember 1996. While we agree with the General Counsel that the judge
erred on this point, we nonetheless do not find that Dixon’s signing of
the book alone constitutes a reasonably diligent search for work. Reg-
istration with a hiring hall, like an employment service, “does not es-
tablish the reasonableness of an employee’s search for interim em-
ployment”; rather, “it is a factor to be weighed in determining whether
the search has been reasonably diligent.” Cf. Black Magic Resources,
317 NLRB 721 fn. 3 (1995) (state employment services); and E & L
Plastics Corp., 314 NLRB 1056, 1057 (1994) (same).
330 NLRB No. 54
MORAN PRINTING 377
ant is justified in lowering his sights should be resolved
‘in favor of the innocent discriminatee.’’’ United Air-
craft Corp., supra at 1068 (citing NLRB v. Madison Cou-
rier, Inc., 472 F.2d 1307 (D.C. Cir. 1972)).
The Respondent has not sustained its burden of show-
ing that Dixon failed to make a reasonably diligent effort
to obtain substantially equivalent employment at Hack-
barth. The record fails to show that Dixon’s delivery
work at Moran and Hackbarth were significantly differ-
ent, either in terms of pay rate6 or the nature of the work.
See Rainbow Coaches, 280 NLRB 166, 182 (1986), enfd.
628 F.2d 1357 (9th Cir. 1980) (quoting McCann Steel
Co. v. NLRB, 570 F.2d 652, 655 (6th Cir. 1978)).
Thus, we shall award backpay to Dixon for the third
and fourth quarters of 1997 and the first and second quar-
ters of 1998, in accordance with the amount described in
the compliance specification, but with one exception. As
previously indicated, we find that Dixon is only entitled
to backpay for approximately the last 4 weeks of the
third quarter of 1997. Therefore, we have recalculated
his gross and net backpay for this quarter and find that
Dixon is entitled to $1,666.76 net backpay for this quar-
ter.7 Accordingly, the total amount of net backpay due
Dixon for all four calendar quarters is $9,313.40.8
ORDER
The National Labor Relations Board orders that the
Respondent, Moran Printing, Inc., Baton Rouge, Louisi-
ana, its officers, agents, successors, and assigns, shall

6 The judge found that Dixon made “less than one-half” his former
salary while working at Hackbarth during the fourth quarter of 1997
and “a little more than half in the next quarter.” This finding is inaccu-
rate. According to the compliance specification, during the fourth
quarter of 1997, Dixon’s interim earnings at Hackbarth were $2,640.76,
and his total regular pay at the Respondent would have been $4,924.40.
In the first quarter of 1998, Dixon’s interim earnings at Hackbarth rose
to $3,270.76, while his pay at the Respondent would have remained the
same as the preceding quarter. In addition, Dixon gave uncontroverted
testimony that he worked less than full time when he first began to
work at Hackbarth in September 1997. Therefore, Dixon’s lesser earn-
ings at Hackbarth in the fourth quarter of 1997 are likely partially at-
tributable to a difference in the number of hours worked at his Hack-
barth position and the number of hours he would have worked at his
former job, not a large difference in pay rates as the judge apparently
assumed.
7 For the third quarter of 1997, we first divided $7,464.44 (the total
gross backpay listed for that quarter by the compliance specification)
by 13 (the number of weeks in the quarter) to obtain his average weekly
earnings of $574.19. Then we multiplied the average weekly earnings
figure by 4 (the number of weeks Dixon worked at Hackbarth during
this quarter) to obtain his revised gross backpay for this quarter,
$2,296.76. Finally, we subtracted $630 (the amount of his interim
earnings at Hackbarth listed for that quarter by the compliance specifi-
cation) from the revised gross backpay figure to obtain his revised net
backpay of $1,666.76.
8 This amount represents:

Third Quarter 1997 $1,666.76
Fourth Quarter 1997 3,308.48
First Quarter 1998 3,814.88
Second Quarter 1998 523.28
TOTAL $9,313.40
pay Ripley Dixon the sum of $9,313.40, plus interest,
less the tax withholdings required by Federal and state
law computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).

Leslie Troope, Esq., for the General Counsel.
Murphy J. Foster III and Leslie Shirley, Esqs. (Brezeale, Sachse
& Wilson, LLP), for the Respondent.
Randall G. Wells, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. On
April 2, 1997, the Board issued an unpublished order in the
case captioned above, which adopted the finding of an adminis-
trative law judge that Moran Printing, Inc. (Respondent or the
Company) had committed various unfair labor practices, in-
cluding the unlawful layoff of employees L. C. Gray and Rip-
ley Dixon.1 On September 18, 1997, the Court of Appeals for
the Fifth Circuit entered its judgment enforcing the Board’s
Order, inter alia requiring Respondent to offer Gray and Dixon
reinstatement to their former positions, and to make them
whole for any loss of earnings they may have suffered by rea-
son of their unlawful layoffs.2 On August 7, 1998, the Regional
Director for Region 15 issued a compliance specification and
notice of hearing alleging that a controversy existed concerning
the amount of backpay due under the Board’s Order.3
A hearing was held before me on the allegations of the com-
pliance specification in New Orleans, Louisiana, on January 28,
1999. Thereafter, the General Counsel, Respondent, and the
Charging Party filed posthearing briefs, and Respondent filed a
posthearing reply brief. The essential issue is whether Gray
and Dixon engaged in a diligent search for interim employment
and thereby mitigated damages. On all the evidence of record,
including my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
A. The General Counsel’s Case
The parties stipulated to the accuracy of the calculations in
the backpay specifications, the tax statements of Gray and
Dixon, and the expired collective-bargaining agreement.4 The
General Counsel then rested.
B. Respondent’s Case
1. L. C. Gray
Prior to employment at Respondent’s facility, Gray worked
as a cook, a busboy, and a bartender. At Respondent’s, he was
a shipping clerk and a porter (cleaning up), unloading machines
in the foundry, and loading trucks.
a. Gray’s testimony
Gray was laid off on December 29, 1995, and was reinstated
by Respondent on April 6, 1998. He testified that he had no
interim earnings during this period, except for a “few dollars”
he made mowing lawns for friends. Gray asserted that he

1 G.C. Exh. 1(a).
2 G.C. Exh. 1(d).
3 G.C. Exh. 1(e).
4 G.C. Exhs. 2, 3, and 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 378
sought employment at four places, although he had no reason to
believe that they were hiring. The four places were True Value
Hardware Store, Sash & Door Co., Walker’s Filling Station,
and a lawyer’s office. In his pretrial statement Gray said that
the last place was a doctor’s office, not a lawyer’s office.
Asked whether the first place where he sought work was True
Value Hardware Store, Gray could not recall. However, he and
Dixon, had filed a complaint against Respondent in Federal
court, and his deposition was taken in connection with that case
about 2 weeks before his testimony in the unfair labor practice
case. He was asked during the deposition whether he first
sought work at True Value Hardware Store and replied that it
“could have been.” Gray testified that his visit to the hardware
store took place in the summer of 1996. He also testified that
his visit to “the lawyer’s office” took place in early 1977, and
“could have been” his last application for work.
b. The union hiring hall
Gray and Dixon were members of the Union, which main-
tained a hiring hall. Business Manager Byron Partin submitted
pages from the out-of-work book which shows Gray’s signature
on May 13, 1996.5 Partin testified that this was the entirety of
the evidence which he had that Gray sought work. Gray was
asked why he signed the book only once, and replied that he did
not know. He agreed that Partin told him in January 1996 that
he had to sign the out-of-work book if he wanted work. How-
ever, Gray did not sign the book until May 13, 1996. Dixon
signed in January 1996, and again on May 13.
Business Manager Partin testified that the Union has
bargaining units with warehousemen, the type of work which
Gray performed. Partin stated that an applicant’s signature in
the book remained “active” for 1 year. However, in referring
applicants for jobs, the Union started with the most recent
applicants during the month. Accordingly, many applicants
signed the out-of-work book every month, and thus increased
the likelihood that they would be hired. There was no formal
notice of this practice at the union hall. However, Partin
testified that the out-of-work book was “common knowledge
among the membership.” Gray testified that, although Partin
told him to sign the book, the business manager did not explain
ho

w it worked. Partin submitted copies of the out-of-work book to the Board
on May 19, 1997. In a cover letter accompanying these docu-
ments, Partin stated that Gray and Dixon were “actively seek-
ing employment.”6 On cross-examination, Partin testified that
this letter was true and correct. Partin also signed Louisiana
“Record of Work Search/Union Contract” documents submitted
to him by Gray and Dixon.7 He testified that he did not intend
to convey to the Department of Labor that they were actually
seeking employment. This was simply a “requirement” of the
department. Although Gray and Dixon remarked to him that
there were places where they had sought work, they never
asked him to find jobs for them.
c. The unemployment insurance benefits
Louisiana requires that an applicant for unemployment in-
surance benefits must engage in a search for work, and provide
a record of that search. The applicant must list one employer
contact per week and the date of the visit on a “Record of Work
Search/Union Contact.” In the alternative, a union member in
ents.

5 G.C. Exh. 7
6 G.C. Exh. 7.
7 See infra, sec. c.
good standing may satisfy the work search requirement by re-
porting to the union hall at least once each week and securing a
union officer’s signature on the “Record of Work Search/Union
Contact.”8
Gray (and Dixon) applied for and received unemployment
insurance benefits. Gray testified that he received a book re-
cording his search for work, and that he requested people whom
he asked for work to sign and date this book. He was shown
his “Record of Work Search/Union Contact.” This document
contains one entry prior to Gray’s discharge on December 29,
1995, 16 entries within the first 25 weeks of 1996, and none
thereafter.9 The entries consist of nine purported signatures of
individuals, and eight names of companies. Gray was asked
whether any of the writings on this document were his, and
replied that he signed the third and fourth entries (the names
“Robert G” and “Jamal Davis”). Gray asserted that the remain-
ing signatures were made by people to whom he applied for
work, or by individuals at the union hall. The only employer
listed on this form which coincides with Gray’s testimony is the
True Value Hardware Store.10 The nine individual signatures
were not identified except for the last three, purportedly signed
by Business Manager Byron Keith Partin. Partin agreed that
the 15th and 16th signatures were his, but denied that he signed
the last one. It is different in appearance from the prior two
signatures. (One of Partin’s signatures was dated May 13,
1996, the only date Gray signed the union out-of-work book.)
Partin testified that he signed the “Record of Work Search” in
order to allow Gray to collect benefits, not as an acknowledg-
ment that Gray was seeking work.
d. The classified newspaper ads
Respondent sought to introduce various documents as evi-
dence of newspaper advertisements of the availability of jobs,
and counsel for the General Counsel objected. For the reasons
give below I accept this evidence.
Respondent submitted two classes of documents: (1) pur-
ported copies of newspaper advertisements of the availability of
various jobs and (2) various affidavits to establish the
authenticity of these docum
The first category contains documents which, Respondent
contends, are copies of a Baton Rouge newspaper, The Advo-
cate, from January 1996 through October 1997. Some of these
documents contain the name of the newspaper and a date, while
others do not. The newspaper’s name and date appear on Janu-
ary 7, April 7, and October 6, 1996, and January 5, April 6, July
6, and October 5, 1997, with many purported pages from the
newspaper not containing the newspaper’s name or a date.
These pages are printed in a format and with type appearing to
be identical to that used in the dated documents.
The second category of documents contains an affidavit from
the library director of The Advocate, dated January 27, 1999,
stating that printed copies of newspapers are maintained for one
year, and thereafter on microfiche at the East Baton Rouge
Parish Library (R. Exh. 40). The second affidavit is from a
certified librarian from the East Baton Rouge Parish Library
stating that the attached reproductions are copies of classified
sections from The Advocate from January 7, 1996, through
October 5, 1997 (R. Exh. 5). The third affidavit is similar to
8 G.C. Exhs. 12, pp. 36 and 41; 13, pp. 36 and 41.
9 G.C. Exh. 12, p. 41.
10 The remaining stores are Home Depot, Wallace Offset, Blue
Cross, Lowes, and B. R. Door Supply.
MORAN PRINTING 379
the preceding one, and is signed by a certified librarian who is
also a member of Respondent’s law firm (R. Exh. 6).
Counsel for the General counsel objected to the first category
of documents on the ground that they did not contain the name
of the newspaper and were not dated. This objection was then
withdrawn as to such documents that contained the name and
date. Counsel objected to the affidavits authenticating these
documents on the ground that they were hearsay.
Section 902(6) of the Federal Rules of Evidence states that
extrinsic evidence of admissibility is not required as to “printed
material purporting to be newspapers or periodicals.” The
courts have cited this section of the Federal Rules as establish-
ing that newspapers or periodicals are self-authenticating.11
Counsel for the General Counsel questions the identity of the
documents, and argues that absent evidence other than affida-
vits to authenticate these documents, there is only hearsay evi-
dence that they are in fact newspapers. They are merely
“pages,” with the exception of those few documents which
contain the name of the newspaper and its date.
With respect to the absence of authenticating witnesses, Rule
803 of the Federal Rules of Evidence lists evidence not ex-
cluded by the hearsay rule “even though the declarant is avail-
able as a witness.” Included in such evidence are statements
not specifically covered by the hearsay exceptions which have
“equivalent circumstantial guarantees of trustworthiness”
(Rule 803(24)). In the case at bar, the undated documents have
a type and format similar to those which are named and dated
and which, the General Counsel concedes, are copies of news-
papers. I conclude that this similarity constitutes circumstantial
evidence that all the copies came from the same newspaper. In
addition, the librarians’ affidavits constitute further circumstan-
tial evidence of trustworthiness under Rule 803. Accordingly, I
find that the documents were newspapers or excerpts therefrom,
and they and the affidavits are admitted.12
The positions advertised are numerous and include jobs of
the type Gray had held. He testified that he read the ads in the
paper, but not “all the time.” He could not recall the number of
times he did so. He did not know that the ads are divided into
various classifications of employees, and paid “no attention” to
these classifications. Gray testified that he never called any of
the ads asking for “General Labor” nor, indeed, any other kind
of ad.
e. The medical problems of Gray’s wife, and his application
for retirement benefits
Gray testified that his wife had a “light stroke” in February,
and that he had been “taking care of her” since that time, with
the assistance of his daughter. He prepares food, cleans the
house, and runs errands. He testified about the extent to which
this affected his search for work. The transcript reads:

Q. [W]ould it be correct to say that the only work that
you have searched for since your wife’s stroke . . . have
been for part-time jobs?
A. Right. I’ve been looking for work, but nothing
come my way.

11 Snyder v. Whittaker Corp., 839 F.2d 1085 (5th Cir. 1988); Price v.
Rochford, 947 F.2d 829 (7th Cir. 1991); Orloff v. Cleland, 708 F.2d
372 (9th Cir. 1983); and Shell Oil Co. v. Kleppe, 426 F.Supp. 894 (D.
Col. 1977), affd. sub nom. Shell Oil Co. v. Andrus, 591 F.2d 597 (10th
Cir. 1979).
12 R. Exh. 3. Also R. Exhs. 4, 5, and 6.
Q. The reason why they were part-time jobs is be-
cause you needed time to take care of your wife, too.
Right?
A. Not necessarily for part-time. I want to work.
Q. I thought you told me that the work that you’ve
looked for since she was paralyzed was part-time?
A. I was looking for work.

On July 3, Gray applied for and later received retirement
benefits under the Social Security Act. He testified that, since
his retirement, he had been “mostly” looking for part-time
work. During Ripley Dixon’s deposition in the Federal pro-
ceeding which he and Gray filed against Respondent, Dixon
testified that Gray never told him about any places where Gray
had applied for work. Dixon changed this testimony during the
unfair labor practice hearing.
f. Gray’s asserted statement about his search for work
As set forth above, Business Manager Partin testified that
Gray never asked the business manager to find work for him.
Respondent also sought to elicit from Partin testimony that
Gray did say something about his search for work. Counsel for
the General Counsel objected on the ground that any such
statement was made during settlement discussions, and was
inadmissible. I agreed to hear the testimony, and thereafter rule
on its admissibility.
The time that the settlement negotiations took place is not
entirely clear. The General Counsel argued that they took place
after Gray had been reinstated, and involved Respondent’s
attempt to force a settlement on the backpay issue. Partin as-
serted that other issues, such as “effects bargaining” were dis-
cussed, but agreed that the amount of Gray’s and Dixon’s
backpay were also issues. The question posed to Partin was
whether Gray had ever said anything to indicate that he was not
seeking to be employed during “the relevant period.” Partin’s
answer was as follows:

Mr. Gray had told me that he did not want to pursue this any
further. I think the backpay for him at the time was a lump
sum of $34,000. He had told me that . . . he did not want to
go back to work at Moran. He wanted to go home and take
care of his wife. She was sick.

Respondent argues that this testimony is not barred by Rule
408 of the Federal Rules of Evidence.13 Respondent cites Vul-
can Hart Corp. v. NLRB, 718 F.2d 269, 276 (8th Cir. 1983), to
support its argument that Rule 408 does not require exclusion
of this testimony. More apposite is DiMucci Construction Co.
v. NLRB 24 F.3d 949, 950 (7th Cir. 1994), where the respon-
dents made admissions concerning one of the issues in the case.
13 Rule 408 reads:
Evidence of (1) furnishing or offering or promising to furnish or
(2) accepting or offering or promising to accept, a valuable con-
sideration in compromising or attempting to compromise a claim
which was disputed as to either validity or amount, is not admis-
sible to prove liability for or invalidity of the claim or its
amount. Evidence of conduct or statements made in compro-
mise negotiations is likewise not admissible. This rule does not
require the exclusion of any evidence otherwise discoverable
merely because it is presented in the course of compromise ne-
gotiations. This rule also does not require exclusion when the
evidence is offered for another purpose, such as proving bias or
prejudice of a witness, negating a contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecu-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 380
I conclude that Partin’s testimony is admissible, but question
its relevance. Gray did accept reinstatement.14 His asserted
comment to Partin does not establish that, prior thereto, he did
or did not make a diligent search for work.
2. Ripley Dixon
a. Dixon’s asserted search for work
Dixon had worked approximately 25 years for Respondent.
Prior to his layoff in December 1995 he worked as a truck-
driver, a janitor, a shipping clerk, and a porter. The latter job
consisted of setting up trash boxes, sweeping, obtaining “solu-
tions,” and washing presses. He was classified as a truckdriver
at the time of his layoff.
Dixon testified that he did not “choose” to do porter work,
and that the only job he was seeking after his layoff by Re-
spondent on December 29, 1995, was a driver’s job. During his
deposition in the federal case which he and Gray filed against
Respondent, Dixon could not remember the name of any place
where he filed an application for employment. In his testimony
at the unfair labor practice hearing 2 weeks later, Dixon testi-
fied that he filed applications at “Herlis Trailer” and “Baton
Rouge J.C.’s.”
Dixon had submitted to the Region in 1997 a purported
“Work Search” record copied by his wife from a scratch pad
which Dixon no longer had. He testified that he reviewed this
record and that it was accurate. There are numerous entries on
this documents,15 but neither “Herlis Trailer” nor “Baton Rouge
J.C.’s” appears on it. The first place is “Cintas” in September
1996. Dixon testified that this was the first place where he
sought work. During his deposition, Dixon could remember
only “Cintas,” “Herlis Trailer, “Ready Portion,” and “Louisiana
Lottery” as places where he looked for work. During his depo-
sition he added “someplace on Airline Highway near Sam’s.”
Dixon could not remember any other places in his testimony at
the hearing. He asserted that he only sought a job as a driver.
Jobs for drivers were listed in the Baton Rouge Advocate.
Dixon stated that he read the classified section, and claimed
that he made some calls. However, he could not remember any
names.
Dixon was asked whether he had any documents other than
his own record to support his asserted search for work. He
referred to his “unemployment book,” by which he meant his
Louisiana “Record of Work Search/Union Contact.” This
document shows one entry for each of the first 25 weeks of
1996, and none thereafter. Each signature is that of Union
Business Manager Hardin, or his secretary. No company is
listed.16
Dixon’s purported work record shows that he sought work in
August 1997 at “Hackbarth Delivery Service,” and that he be-
gan working there in September 1997. Dixon testified that this
was true.

14 The backpay specifications, the validity of which Respondent ad-
mits, show that Gray’s backpay ended early in the second quarter of
1998. G.C. Exh. 1(e), app. B.
15 “9/96—Cintas,” “10/96—U Hall,” “11/96—Lottery,” “(illegible),”
“3/97—City Parish,” “4/97—Waste Management,” “5/97—BFI,”
“6/97—Airborne Express,” “7/97 Banner Produce,” “8/97—Hackbarth
Del.,” “9/97—Began work at Hackbarth.” G.C. Exh. 6.
16 G.C.. Exh. 13, p. 41.
b. Dixon’s workers’ compensation claim
Dixon was involved in a work-related accident in February
1993. He suffered a shoulder injury, and underwent surgery
about 7 months later. After 11 months of absence, he was re-
leased to return to work, and did so. Dixon testified that he
received workers’ compensation benefits during this period.
After his return to work, he was able to function without any
difficulty, according to his testimony. He asserted that he en-
gaged in shipping, driving, and porter work. In addition, he had
to off-load manually skids of paper containing 500 reams.
Subsequent to Dixon’s layoff by Respondent, he filed an-
other workers’ compensation claim based on the same injury.
Thereafter, Dixon and Respondent filed a joint petition to com-
promise this claim. The petition, signed by Dixon and Respon-
dent’s representative, states that a “real dispute” existed as to
the nature, extent, and duration of Dixon’s disability. Dixon
claimed, according to the petition, that he suffered from either
temporary or permanent total disability, or permanent, partial
disability. He testified at the hearing that he did not read this in
the petition—he did not have his glasses.. The petition shows
that Respondent had already paid over $36,000 in medical ex-
penses and over $15,000 to Dixon.17
The joint petition was approved on February 12, 1997, and
Dixon received an award of $1500. Later, as shown above, the
Court of Appeals for the Fifth Circuit enforced the Board’s
underlying Order in the case at bar, and the Regional Director
issued his compliance specification and notice of hearing. Re-
spondent was represented by a different attorney during these
proceedings, and Dixon testified that he did not want this attor-
ney to see the settlement document, because they were his “pri-
vate papers.” During his deposition in the current proceeding
against Respondent in Federal court, Dixon was asked whether
he ever told the Region about this award. He replied, “Maybe I
didn’t,” and at the instant hearing said, “Nothing’s certain.”
3. Testimony of Compliance Officer Annie Archie
a. Testimony concerning L. C. Gray
Compliance Officer Annie Archie became involved in this
case some time in 1997. On direct examination, by Respondent
she testified that the Region had no evidence that L. C. Gray
made a search for work after mid-1997. On examination by
counsel for the General Counsel, Archie stated that Gray “actu-
ally gave (her) places where he had searched for work.” Archie
relied on statements made to her by the discriminatees that “the
Union” had signed the unemployment compensation books to
verify that they had searched for work. According to Archie,
the discriminatees told her that business manager Partin or his
secretary had signed these books. Archie relied on the fact that
the discriminatees had been deemed eligible for unemployment
insurance benefits. “Also sufficient for the Board is that they
have qualified for unemployment compensation benefits and
without any other inquiry we can accept that they have drawn
unemployment.”
In addition, Archie relied on Gray’s signing of the union out-
of-work book, and the letter from Business Manager Partin
stating that the discriminatees had been actively looking for
work. The compliance officer also took into consideration the
fact that Gray was over 60 years of age, had worked as a ship-
ping clerk, did not have a driving license, and did not drive.
17 R. Exh. 8., pars. 5 and 7.
MORAN PRINTING 381
b. Testimony concerning Riley Dixon
With respect to Dixon, Archie considered a list of places
where he said he had attempted to find employment, had signed
the union out-of-work book, and had submitted his unemploy-
ment compensation book.
C. Factual and Legal Conclusions
1. Applicable principles
In Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 199–200
(1941), the Supreme Court stated that in fashioning an appro-
priate backpay order, the Board “may give appropriate weight
to a clearly unjustifiable refusal (by the discriminatee) to take
desirable new employment not so much (for) the minimization
of damages as the healthy policy of promoting production and
employment.” “It has been accepted by the Board and review-
ing courts that a discriminatee is not entitled to backpay to the
extent that he fails to remain in the labor market, refuses to
accept substantially equivalent employment, fails diligently to
search for alternative work, or voluntarily quits alternative em-
ployment without good reason.” NLRB v. Mastro Plastics
Corp., 354 F.2d 170, 174 fn. 3 (2d Cir. 1965), cert. denied 384
U.S. 972 (1966). “Once the General Counsel has established
the gross amount of backpay due the discriminatee, the burden
is upon the employer to establish facts which would negative
the existence of liability to a given employee, or which would
mitigate that liability.” NLRB v. Brown & Root, Inc., 311 F.2d
447, 454 (8th Cir. 1963). “In order to be entitled to backpay, an
employee must at least make “reasonable efforts to find new
employment which is substantially equivalent to the position
(which he was discriminatorily deprived of) and is suitable to a
person of his background and experience.” NLRB v. Miami
Coca-Cola Bottling Co., 360 F.2d 569, 575 (5th Cir. 1966).
“[T]he principle of mitigation of damages does not require
success; it only requires an honest good faith effort” NLRB v.
Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955).
2. L. C. Gray
Gray was discharged on December 29, 1995, and claimed to
have sought work from an employer (for the first time), about 6
months later, in mid-1996. Gray asserted that he sought work
at 4 employers, the last in early 1977 (a lawyer’s office, or a
doctor’s office). Since the total elapsed time between Gray’s
discharge and his reinstatement was about 2-1/4 years, his al-
leged search for work comprised less than one-fourth of that
period.
The local newspaper contained ads soliciting employment
applications in jobs for which Gray was qualified. Although he
read some of these ads, he did not make any calls.
Gray obtained unemployment insurance benefits. He was
required to submit, each week, the name of an employer where
he sought work, or a union official’s signature. To authenticate
his claim, Gray submitted 16 signatures on his unemployment
book for the first 25 weeks of 1996, and none thereafter. Gray
himself signed two of the names. Although Union Business
Manager Partin signed two of them, he did not sign one which
was purportedly his. The remaining names are unidentified. It
was on the basis of this deficient list of names that Gray based
his claim for unemployment insurance benefits.
In Southern Silk Mills, Inc., 116 NLRB 769, 770 (1956), the
Board stated: “[W]e shall no longer give conclusive weight to
registration with such (employment) agencies in determining
the issue of reasonable search, but shall treat such registration
as a factor to be given greater or less weight depending upon all
the circumstances.”
In NLRB v. Seligman & Associates,, 808 F.2d 1155 (6th Cir.
1986), enfg. in part and denying and remanding in part 273
NLRB 1216 (1984), the discriminatees were a couple who
managed an apartment complex. As in the case at bar, the em-
ployer in Seligman introduced photostatic copies of microfilms
of a local newspaper showing numerous ads soliciting applica-
tions from qualified applicants, i.e., caretaker couples. One of
the discriminatees, in testimony quoted by the court, stated that
she and her husband “didn’t want to get involved in that” (808
F.2d at 1167). Although the court acknowledged that the care-
taker couple sought other jobs, it stated that the discriminatees
had “willfully failed to seek other comparable employment in
mitigation of their losses” (id at 1168). The court remanded
the issue of backpay to the Board, and left open the issue of
how long the discriminatees could have waited after receiving
an invalid offer of employment which the employer had made
to them. On remand, the Board concluded that 6 weeks of free
rent which the discriminatees had received constituted suffi-
cient backpay, and found that no further backpay was due.
Seligman & Associates, 290 NLRB 676 (1988). In the case at
bar, Gray, like the discriminatees in Seligman, read ads adver-
tising jobs for which he qualified, but did not apply.
In February 1996, Gray’s wife became impaired following a
stroke, and Gray became her principal caretaker. On July 3,
1996, he applied for and later received Social Security retire-
ment benefits. In Continental Insurance Co., 289 NLRB 579,
580 (1988), the Board stated that the discriminatee’s acceptance
of retirement benefits, together with other factors, showed that
he effectively removed himself from the job market. Although
he visited employment agencies, and made some attempts to
find employment, the Board concluded that he “would only
have accepted work when he chose and as he pleased.” (Id.)
Accordingly, the Board found that he was ineligible for back-
pay.
On the basis of Gray’s delay in seeking interim employment
and in signing the Union’s out-of-work book, the short period
in which he even claimed to be seeking work, the undocu-
mented nature of this alleged search, his failure to seek jobs
which were advertised in the newspaper, and his receipt of
retirement benefits, I conclude that he willfully failed to make
reasonable efforts to obtain interim employment. Accordingly,
he is not entitled to backpay.
3. Ripley Dixon
Dixon submitted a written statement to the Board and gave
testimony on two occasions regarding his alleged search for
work. These submissions are contradictory, as set forth above,
and include Dixon’ assertion of a loss of memory on occasion.
Although he was discharged on December 29, 1995, his first
asserted attempt to get a job was about 9 months later, in Sep-
tember 1996.
Dixon signed the union out-of-work book in early 1996, and
again in May 1996, but these signings do not constitute a search
for work. He applied for and received unemployment insur-
ance benefits, but the union official’s signatures, authenticating
to the state agency that he was seeking work, ended in June
1996 at a time when he was still unemployed.
Although Dixon had worked in various jobs for Respondent,
he searched only for a job as a driver. Although solicitations
for applications from drivers appeared in The Advocate, and
Dixon read the classified section, there is no evidence that he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382
called any of these ads. One of them appeared a week after his
discharge, on January 7, 1996.18
Dixon was injured on the job in 1993 or 1994, and received
worker’s benefits in the amount of $15,000, while Respondent
paid medical bills of $36,000. After Dixon was discharged in
December 1995, he resurrected the claim based on his injury,
and alleged that he suffered from temporary or permanent total
disability, or permanent partial disability. However, Dixon also
testified that, subsequent to his injury, he was fully capable of
functioning, and could unload deliveries of 500 reams of paper.
Needless to say, these assertions are inconsistent.
Based on Dixon’s admitted delay in seeking employment,
the early termination of his union authentications, his failure to
call newspaper ads for the very job he claimed to be seeking,
and his unreliability as a witness, I find that he did not make a
diligent search for work.
Finally, there is the issue as to whether Dixon is entitled to
any backpay for the difference, if any, between the salary
which he received from Hackbarth Delivery Service beginning
in August 1997, and the salary which he was receiving from
Respondent. The compliance specification asserts interim earn-

18 R. Exh. 3.
ings beginning in the third quarter of 1997 and extending to the
second quarter of 1998, when Dixon was reinstated. The
amount of the interim earnings is less than the amount of gross
backpay, and the difference is said to be owed by Respondent
to Dixon.19
The difficulty with this argument is that Dixon was required
to seek a job “substantially equivalent” to the one that he held
with Respondent. According to the compliance specification,
Dixon was making at Hackbarth less than one-half the amount
he was earning with Respondent during the fourth quarter of
1997, and a little more than half in the next quarter. At the
same time, driver ads appeared in the newspaper, and there is
no evidence that Dixon called to find out the amount of wages
they paid. I conclude that his job with Hackbarth was not sub-
stantially equivalent to his job with Respondent. Accordingly,
he is not entitled to any backpay.
On these findings of fact and conclusions of law and on the
entire record, and my careful consideration of the opinions of
the compliance officer, I conclude that neither Gray nor Dixon
is entitled to any backpay. Accordingly, the compliance speci-
fication is dismissed.
19 G.C. Exh. 1(e), app. D.