Sorenson Lighted Controls, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 282 (N.L.R.B. 1989)

282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sorenson Lighted Controls, Inc. and Local 371,
United Food and Commercial Workers Union,
AFL-CIO. Case 39-CA-2518
November 21, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On February 9, 1989, Administrative Law Judge
Steven Davis issued the attached supplemental de-
cision on backpay 1 The General Counsel and the
Respondent filed exceptions and supporting briefs
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findmgs, 2 and conclusions and to adopt the recom-
mended Order as modified below 3
'The Board s original Decision is reported at 286 NLRB 969 (1987),
and a correction dated January 27, 1988 Subsequently, the Respondent
entered into a stipulation agreeing that there were no Issues or areas of
disagreement relating to the Board's Decision and Order, except Issues
that pertain to the amount of backpay owing each of the discnmmatees
2 In the absence of exceptions, we adopt, pro forma, the judge s find-
ings regarding the net backpay for chscnminatees Lowla Cruz, Lydia
Diaz, and Alba Maldonado
In setting forth Wanda Bermudez' interim earnings for the second
quarter of 1985 in the factual section of his decision, the judge mistakenly
used the amount designated in the original, rather than the amended,
backpay specification In the section entitled Conclusions and Recom-
mended Order, he set forth the correct amount of $892
3 The Respondent has excepted to the judge s failure to exclude from
Wanda Bermudez backpay calculation the 1 month she was hospitalized
and the 1 month she spent recuperating We find merit in the Respond-
ent s exception because Bermudez was unavailable for work during that
period, and neither the backpay specification nor the judge excluded the
period from her backpay computation That failure may be explained by
Bermudez testimony that her hospitalization occurred in August 1986,
which of course would place It (and her recuperation) in the third quar-
ter of 1986 We note, however, that in so testifying, Bermudez acknowl-
edged that she was not certain about the timing of her hospitalization In
any event, documentary evidence, coupled with the substance of her tes-
timony concerning her interim employment with Church Homes, Pinker-
ton, and Arbor Acres during 1986, establishes that she worked full time
at Church and part-time for Pinkerton during the months of July,
August, and September, and that she went to work at Arbor Acres in
October and remained there until she quit in November or December
Clearly, It would have been impossible for her to have worked these jobs
when she did if her testimony regarding the date of her hospitalization is
accepted
We have, therefore, examined the record regarding Bermudez' interim
employment and efforts in the first and second quarters of 1986 to ascer-
tain when her combined 2 months of hospitalization and convalescence
occurred From that examination we have determined that she was hospi-
talized in May and convalesced in June, and that she was unavailable for
work in those months Because her interim earnings exceeded gross back-
pay for the time she did work, or was available to work, in the second
quarter of 1986, there is no backpay owing her for that quarter Accord-
ingly, we shall deduct the amount of $1102 listed as net backpay for her
in the quarter and shall modify the recommended Order to reflect that
deduction from her backpay computation
1 The judge tolled discrimmatee Paula Colon's
backpay period as of September 1, 1986, when she
moved from Hartford, Connecticut, to Massachu-
setts to be with her husband, who had moved there
to take a job The judge reasoned that Colon
moved for personal reasons rather than to seek em-
ployment and that, had she still been employed
with the Respondent, she would have left its
employ at the same time in order to live with her
husband
The General Counsel excepts, contending that
the judge's reasoning is based on conjecture be-
cause Colon's husband may have been forced to
move to Massachusetts to look for a better job to
compensate for the loss of Colon's income, caused
by her unlawful discharge The General Counsel
also argues that it is significant that Colon moved
while she was on layoff from an interim job and
that she looked for work once she settled in Massa-
chusetts For the following reasons Members Cra-
craft and Higgins find merit in the General Coun-
sel's exception
It is well established that a discnminatee does
not incur a willful loss of interim earnings merely
by leaving the vicinity of prior employment with a
respondent Although a discnminatee may incur
such a loss if the move would have taken place,
and employment with the respondent would have
terminated even if that employee had not been un-
lawfully discharged, 4 the burden is on the respond-
ent, as the wrongdoer, to prove this
In the instant case, the only evidence concerning
Colon's move from Hartford, Connecticut, to Mas-
sachusetts on September 1, 1986, is her testimony
that she moved "because my husband was working
alone and one of my family members got him a job
and so we had to leave" Contrary to the judge
and our dissenting colleague, we do not find that
this evidence is sufficient to meet the Respondent's
burden of proving that Colon and her husband
would have moved if she had still been working
for the Respondent It is just as reasonable to infer,
as the General Counsel contends, that Colon and
her husband "had to leave" to increase his earnings
in an effort to offset the financial impact of her dis-
criminatory discharge Stated simply, what Colon
did was to move from Connecticut to Massachu-
setts to be with her husband at a time when she
was unemployed, viz, on layoff from her interim
employment in Massachusetts, instead of doing so
in Connecticut In such circumstances, the move
from Connecticut to Massachusetts, in and of itself,
4 E g, Duroyd Mfg, 285 NLRB 1 (1987) (discnminatee Baker s back-
pay penod tolled when he moved from Respondent s vicinity to his in-
valid parents' home, where he was going to stay, job or no job ")
297 NLRB No 41
' SORENSON LIGHTED CONTROLS 283
is not a basis for finding a willful loss Our dissent-
ing colleague errs in suggesting that it was the
General Counsel's responsibility to introduce other
testimony or evidence proving that Colon would
not have moved in any event It was incumbent
upon the Respondent to resolve any ambiguity
about the inevitability and permanence of the
move The Respondent has failed to do so
Based on the foregoing, and in light of evidence
that Colon continued to engage in reasonably dili-
gent efforts to secure interim employment after her
move to Massachusetts, we reverse the judge and
continue the backpay period in accord with the
General Counsel's backpay specification
2 Relying on the Board's decisions in Fort Lock
Corp. 233 NLRB 78, 80 (1977) (J Diaz), and Selig-
man & Associates, 273 NLRB 1216, 1223 (1984) (S
Younce), modified on other grounds 808 F 2d 1155
(6th Cir 1986), the judge found that discrimmatee
Wanda Bermudez did not incur a willful loss of
earnings when she quit her job at Arbor Acres in
November or December 1986 because she did not
want to continue imposing on her brother-in-law to
drive her the 45 minutes each way that it took to
get to and from that job Further, the judge rea-
soned that her lack of transportation came within
the category of "personal difficulties" ascribable to
the Respondent since she had no other means of
transportation Thus, the judge concluded that Ber-
mudez' "lack of transportation prevented her from
continuing to work at Arbor Acres and that she
was justified in quitting that job"
The Respondent has excepted to this conclusion
arguing that, unlike the situation in Fort Lock,
supra, in which the discnminatee was terminated
from her interim job for absenteeism caused by the
loss of transportation through no fault of her own,
Bermudez quit her Arbor Acres job of her own
volition The Respondent also contends that she
did not encounter the "personal difficulties," in-
cluding the lack of transportation, that existed in
Seligman & Associates, supra, that forced the discn-
minatee in that case out of the job market for sev-
eral months Rather, the Respondent asserts that
Bermudez simply decided not to rely on her broth-
er-in-law any longer to get to work Therefore, the
Respondent contends, Bermudez incurred a willful
loss of earnings Chairman Stephens and Member
Higgins find merit in the Respondent's contention
The Board has held, as the judge correctly
noted, that a discnmmatee who loses interim em-
ployment owing to a lack of transportation beyond
that person's control has not engaged in a willful
loss of earnings justifying the loss of backpay
IMCOfinternational Measurement Co, 277 NLRB
962 (1985), Fort Lock, supra The key to that hold-
mg in those cases, however, was the discnminatee's
not being responsible for the lack of transportation
Here, the record establishes that Bermudez' broth-
er-in-law helped her find the job at Arbor Acres,
which is located in Glastonbury, a 45-minute ride
from her home, and that for the 3 months she
worked there, he willingly picked her up and
drove her to work and brought her home On
direct examination, Bermudez testified that after 3
months of being so transported, she quit the job be-
cause "she did not want to depend on her brother-
in-law all the time" In response to the question
whether her brother-in-law was still willing [at the
time of the hearing] to take her to Arbor Acres,
she replied, "yes" In these circumstances, we find
that the issue of whether Bermudez had access to
transportation was resolved by the availability and
willingness of her brother-in-law to drive her to
work We also find that whether she used this
transportation was within her control Indeed, Ber-
mudez admitted that the decision to quit her job
rather than continue to use the proffered transpor-
tation services of her brother-in-law was her deci-
sion alone Because that decision was based solely
on personal reasons, we find that her quitting
Arbor Acres was not justifiable and constituted a
willful loss of earnings Knickerbocker Plastic Go,
132 NLRB 1209, 1212-1215 (1953) 5
Accordingly, pursuant to the offset formula set
out in Knickerbocker Plastic, supra at 1215, we shall
compute as the offset the pay that Bermudez
would have earned at Arbor Acres from the time
of her quitting through the remainder of the back-
pay period, and we shall then deduct that offset as
interim earnings from her gross backpay In this
connection, in the event Bermudez secured other
employment during the time the offset is applica-
ble, and if, on a quarterly basis, she earned at such
employment a greater amount than the offset, the
offset will not be applied, but the actual interim
earnings will be deducted from gross backpay If
she earned less than the offset at employment se-
cured subsequent to quitting, also on a quarterly
basis, the amount of the offset will be applied Ap-
plying this formula to the remainder of Bermudez'
backpay period, we have used the offset amounts
of $1797 73 and $1980 55 for the first and second
quarters of 1987, respectively, because those pro-
jected amounts are higher than her actual earnings
in those quarters We have, however, used her
actual earnings of $1553 and $1754 for the third
and fourth quarters of 1987, respectively, because
5 The dissent argues that a discnminatee is justified in quitting interim
employment that is unduly burdensome or disruptive to personal life
There is no evidence, however, that this was the case either for Bermu-
dez or for her brother-in-law
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
those earnings are higher than the corresponding
offset figures As a result of these computations, we
shall modify the recommended Order by requiring
the Respondent to pay Bermudez' net backpay of
$4551 72 6
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Sorenson Lighted Controls, Inc , Hart-
ford, Connecticut, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order, except that the amount of backpay to be
paid to Paula Colon shall be $15,733 and the back-
pay to be paid to Wanda Bermudez shall be
$4551 72
CHAIRMAN STEPHENS, dissenting in part
Contrary to my colleagues, I agree with the
judge that discnmmatee Paula Colon's backpay ter-
minated on September 1, 1986, when she removed
herself from the Hartford, Connecticut job market
by moving to Massachusetts to be with her hus-
band, who had moved there to take a job As the
judge found, Colon made the move for that reason
rather than to find work and, therefore, tolled her
backpay period The judge determined that, given
the personal reason for Colon's moving, she would
have made the same move at the same time regard-
less of her employment status with the Respondent
In short, he found that had she still been employed
by the Respondent she would have left its employ
in order to live with her husband
Like the judge, I rely on Colon's own testimony
about why she made the move "Because my hus-
band was working alone and one of my family
members got him a job and so we had to leave"
Like the judge, I find this to be a clear admission
that Colon was not moving in order to find work
and, more critically, that she was not claiming that
her prior discharge by the Respondent was the
reason for the move I thus find this case distin-
guishable from North Slope Mechanical, 286 NLRB
633 at 638 (1987), on which the General Counsel
relies, because there the discnminatee, Haynes, tes-
tified that he left his former area of employment in
order to seek jobs in Arizona substantially equiva-
lent to the job from which he had been discharged,
and the evidence supported both that claim and the
judge's finding that, but for the unlawful discharge,
Haynes would not have left This treatment of
Colon's backpay has nothing to do with willful loss
of employment, so the evidence of Colon's dill-
6 This figure includes a deduction for the excepted period in the
second quarter of 1986, as noted in fn 3, supra
gence in seeking employment after she had moved
to Massachusetts is irrelevant I simply find that,
because Colon's own testimony indicates that she
would have left the Respondent's employ on Sep-
tember 1, 1986, even had she been previously rein-
stated, her backpay should be terminated on that
date
MARY MILLER CRACRAFT, dissenting in part
Contrary to my colleagues, I agree with the
judge that discnminatee Bermudez' decision to quit
her interim employment at Arbor Acres was rea-
sonable and justified and therefore did not consti-
tute a willful loss of earnings In order to work at
Arbor Acres, Bermudez had to depend on her
brother-in-law to drive her to and from work—a
trip taking 45 minutes each way Though her
brother-in-law was willing to maintain his chauf-
feuring responsibilities, Bermudez decided to cease
imposing in this substantial manner on her brother-
in-law Before her unlawful discharge, Bermudez
was not required to place this significant burden on
her brother-in-law for transportation Thus, as the
judge correctly found, Bermudez encountered per-
sonal difficulties ascribable to the Respondent's
unfair labor practices and she therefore justifiably
quit her interim employment Further, as the judge
discussed, the Board has long held that discnmina-
tees are justified in quitting interim employment
that is more onerous or disruptive to personal life
than the job from which they were unlawfully dis-
charged See, e g, Newport News Shipbuilding, 278
NLRB 1030, 1033 (1986), Shell Oil Co, 218 NLRB
87 (1975) Similarly, when a discnmmatee accepts
interim employment, but ultimately and reasonably
finds that commuting to and from that job is
unduly burdensome or disruptive to personal life,
the discnmmatee should be deemed justified in
quitting that interim employment Contrary to my
colleagues, the fact that the discnminatee makes
the decision to quit—rather than having the deci-
sion forced on him or her by outside factors—is
not always controlling See, e g, Sam Tanksley
Trucking, 210 NLRB 656 fn 1 (1974) Indeed, in
Seligman & Associates, 273 NLRB 1216, 1223
(1984), on which they rely, the Board adopted the
judge's finding regarding discnminatee S Younce,
that she was justified in quitting a split-shift job be-
cause the remuneration did not justify the time re-
quired going back and forth to work, or the cost of
transportation and babysitting The Board has held
that an employee need not seek or accept employ-
ment that is an unreasonable distance from the dis-
criminatee's home See, eg, F M Broadcasting
Corp, 233 NLRB 326, 329 (1977) Surely, a discn-
minatee should not be penalized for attempting to
' SORENSON LIGHTED CONTROLS 285
work at a job with a difficult commute, but then
quitting because of the problems incident to the
long commute
Thomas R Gibbons, Esq , for the General Counsel
David C Anderson, Esq (Murtha, Cu//ma, Richter &
Pinney, Esqs ), of Hartford Connecticut, for the Re-
spondent
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge On No-
vember A 9, 1987, the National Labor Relations Board
(Board) issued its Decision and Order in Case 39-CA-
2518, published at 286 NLRB 108, and on January 27,
1988, issued a correction in that case, directing Sorenson
Lighted Controls, Inc (Respondent) to make whole
Wanda Bermudez, Paula Colon, Loida Cruz, Lydia Diaz,
and Alba Maldonado for any loss of earnings they may
have suffered by reason of Respondent's discrimination
A controversy arose over the amount of backpay due
certain of the employees under the terms of the Board's
Order Whereupon, the officer in charge of Subregion 39
issued a backpay specification and notice of hearing on
March 31, 1988, which set forth the amount of backpay
due each of the five employees Thereafter, Respondent
filed an answer in which the only matters placed in issue
were the interim earnings of the employees
A hearing was held before me in Hartford, Connecti-
cut, on October 3 and 25, 1987 At the hearing, Respond-
ent admitted the backpay amounts due to employees
Lydia Diaz and Alba Maldonado Following the hearing,
briefs were received from the General Counsel and Re-
spondent
Respondent does not contest the backpay formula or
the manner in which the gross backpay was computed
Accordingly, the only issues before me are the amount
of interim earnings and excepted periods for Bermudez,
Colon, and Cruz
Legal Principles
An employer may mitigate backpay liability by show-
ing that a claimant "willfully incurred" a loss by "clearly
unjustifiable refusal to take desirable new employment"
Phelps Dodge Corp v NLRB, 313 US 177, 199-200
(1941) This is an affirmative defense, with the burden on
the employer to prove the necessary facts NLRB v
Mooney Aircraft, 366 F 2d 809, 813-814 (5th Cir 1966)
An employer does not meet that burden by presenting
evidence of lack of employee success in obtaining interim
employment, or that low interim earnings resulted
Rather, the employer must affirmatively demonstrate
that the employee "neglected to make reasonable efforts
to find interim work" NLRB v Miami Coca-Cola Bot-
tling Co, 360 F 2d 569, 576 (5th Cir 1966) While a dis-
criminatee must make "reasonable exertions" to mitigate
his loss of income, he is not held to "the highest standard
of diligence" NLRB v Arduini Mfg Corp, 394 F 2d 420
(1st Cir 1968) Success is not the measure of sufficiency
when discrimmatees seek to achieve interim earnings, the
law "only requires an honest good faith effort "• NLRB v
Cashman Auto Co, 223 F 2d 832, 836 (1st Cir 1955) In
determining the reasonableness of this effort, the employ-
ee's skills and qualifications, his age and labor conditions
of the area are factors to be considered Mastro Plastics,
136 NLRB 1342, 1359 (1962) In determining whether an
individual claimant has made a reasonable search, the
test must be whether the record as a whole establishes
that the employee had sought other employment during
the entire backpay period Saginaw Aggregates, 198
NLRB 395, 398-399 (1972) Any uncertainty in the evi-
dence is to be resolved against the employer, the wrong-
doer Miami Coca-Cola Bottling Co, supra
Wanda Bermudez
The backpay period for Bermudez begins on March 4,
1985, and ends on December 18, 1987 While employed
by Respondent, Bermudez did factory work and earned
$3 37 per hour At the Respondent, she worked full time
on the first shift
Bermudez went to the State Employment Service
(SES) and completed an application She sought a job in
a factory, and considered going to school She looked
for work in newspapers and also asked her friends
Although jobs as a cashier were available, Bermudez
did not seek jobs handling money because she was not
ready for that responsibility and she did not like being a
cashier She did not handle money as part of her duties
at Respondent
Bermudez completed an application at High G Com-
pany
In April, May, and June 1985, Bermudez worked at
the Hartford Insurance Group as a receptionist She did
filing and light typing there
Bermudez went to Puerto Rico in July and August
1985, and the period from July 1 to August 23 has been
excepted from gross backpay, according to the backpay
specification Also excepted is a period from September
23 to October 4, 1985, which is apparently her second
trip to Puerto Rico
Bermudez' memory was admittedly poor when it came
to remembering dates of employment Although she tes-
tified that in between her two trips she worked for Acu-
mad Fulfillment Center for 3 months, it is obvious that
this cannot be so The backpay specification shows that
she worked in the second quarter of 1985, and earned
$1185 That appears to be the period of time that she
worked for Acumail The job for Acumail involved
making posters on a sort of assembly line Bermudez quit
that job She stated that It was a dirty job with much
dust which aggravated her bronchitis She further stated
that it was a factory job and not a career position that
she hoped to obtain She added that she did not want to
spend her life making less than $5 per hour _
Thereafter, Bermudez looked for work Once per
week and occasionally more often she went to the SES
to see if there were any jobs She returned to Acumail
and asked for employment but was told that there was
not enough work and they had enough workers
In January 1986, Bermudez began work for Pinkerton
Security Services as a part-time security guard When
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
she applied, the only job available was a 12-hour shift on
Saturdays Since nothing else was available she accepted
the position Later, although more hours were available
which she could have worked, she turned down the ad-
ditional hours because she would have had to work on
the second or third shifts, which ran from 3 p m to 7
a m She refused to work those shifts and quit work at
Pinkerton because she wanted a full-time, first shift job,
which was what she worked at Respondent Bermudez
worked for Pinkerton for 6 months, and even while at
that company she looked for another job
After she left Pinkerton, Bermudez continued looking
for work by completing applications at a few companies
whose names she could not recall She was told that she
would be contacted When those companies did not call
her, she called them and was told that she would not be
hired
Bermudez conceded that during her daily search
during this period, certain jobs were available which she
was not interested in because she sought a career, and
did not want to take another factory job with no future
However, she added that as to those jobs, although she
applied for them, the companies rejected her before she
turned them down
In August 1986, Bermudez was hospitalized for 1
month, and thereafter spent 1 month recuperating at
home
Thereafter, Bermudez worked for Church Homes Inc
for about 3 months as a full-time housekeeper She may
have worked for Pinkerton for about two Saturdays
while she was employed by Church Homes Bermudez at
first testified that she stopped working for Church
Homes because she was laid off, but after being shown a
document, stated that she was terminated by that organi-
zation for unsatisfactory attendance during her proba-
tionary period
Subsequently, Bermudez' brother-in-law found a job
for her as a laundry worker at Arbor Acres Farms, Inc
He drove her to and from work, a 45-minute trip from
her home She worked there about 3 months and then
quit in November or December 1986, because she did
not want to rely upon her brother-in-law to drive her,
and had no other transportation
Bermudez then worked for 1 week for Unico as a
housekeeper She worked from 5 to 9 p m She quit be-
cause she did not want such a job
Bermudez applied for assistance with the City Welfare
Department In order to receive such assistance, she was
required to work at Southend Community Services at
least 42 hours per month She worked there for about 3
months When that job ended, she was told that if she
accepted training with that organization, she would be
sent to help people She refused and left because she was
working for no compensation Bermudez stated she was
out sick 1 day When she returned she was asked if she
called the social worker to report her absence and she
replied that she did not but had told her that she did not
feel well She was then told not to return
Bermudez stayed home for 1 month, from June to July
1987 That penod has been excepted from gross backpay
From August to October 1987, Bermudez worked as a
cashier at Town Supermarket Prior to that job she had
not sought nor had she been offered a cashier's job, and
she stated that she would not accept a position involving
the handling of money
In October, she worked for Pinkerton as a security
guard That job was full time and paid more than the
cashier's job She was employed there through the end
of her backpay period, December 18, 1987
As set forth above, Bermudez first testified that when
she first applied to the SES immediately after leaving
Respondent, she told the SES that she was looking for a
factory job, but then testified that she did not want to
work in a factory She explained this by stating that her
feelings changed regarding the type of work she wanted
She stated that she was a good and reliable worker, and
if she found a job that she liked she would stay there—
even if it was a factory job, but that if a job was not to
her liking or had low pay she would not remain there
Paula Colon
Colon's backpay period begins on February 14, 1985,
and ends on December 18, 1987
Following her layoff by Respondent, Colon went to
the State Employment Service (SES) and looked for
work at Magnetic Company, UPS, and Foodway, where
she completed job applications None of those companies
offered a job then
In May 1985, she began work at Mercury Excelum,
Inc She was employed there for about 8 months, until
January 1986, when she left because there was no more
work
Colon stated that she continued looking for work "all
the time" at the same places—Magnetic, UPS, and Food-
way, and also looked for work in the area near her
home, and in Bloomfield
Colon went to Puerto Rico in July 1986 and returned
in August She did not look for work there and the
period from July 10 to August 15 has been excepted
from gross pay, as set forth in the backpay specification
When she returned to Connecticut in August, Colon
went to the State Employment Service and began col-
lecting unemployment insurance She also looked for
work at the places set forth above
In the summer of 1986, or possibly in late August, she
had to move to Haverhill, Massachusetts, where her hus-
band was working alone Since she was not familiar with
the area, her family took her once or twice per week to
look for work, in area nursing homes After 1 year of
searching, she found work, in about September 1987, at
the Union Mission Nursing Home, Inc , where she was
employed for about 3 months Due to marital problems,
she quit that job in about November 1987, and returned
to Hartford on about December 23, after her backpay
period ended
Loida Cruz
The backpay period for Cruz begins on February 14,
1985, and ends on December 18, 1987
At the time of her layoff by Respondent, Cruz worked
full time during the day Her children were cared for by
their grandmother, to whom she brought them
,k , SORENSON LIGHTED CONTROLS 287
Cruz testified that as soon as she was laid off by Re-
spondent she went to the SES and thereafter began re-
ceiving unemployment insurance She stated that she
went to the SES to look for work once or twice immedi-
ately after being laid off, and then went there every
week She then testified, however, that she was not sure
whether she went to the SES every week Nevertheless,
when she visited the SES she told the representative that
she was looking for factory work
Cruz stated that from the time she was laid off until
her baby was born on July 2, 1985, she looked in the
newspaper for jobs, and also looked elsewhere for work,
including going to SES She did not ask her friends for
jobs, and did not visit prospective employers
Cruz received unemployment compensation until
August 1985, during which time she looked for, but was
unable to find, work She stated that during much of that
time she was unable to find a babysitter to care for her
two children
Cruz testified that she did not look for work for about
1 year after her baby was born The period from Sep-
tember 1, 1985, to August 5, 1986, has been excepted
from gross backpay, according to the backpay specifica-
tion 1
In July or August 1986, Cruz and her family moved to
New Britain, Connecticut Immediately after arriving in
New Britain, she tried to get a job Her aunt tried to find
her a job, and also took her to places which would take
care of her children She was unable to find either As a
result, she took children into her home to babysit for
them for a fee She earned $25 to $30 per week for about
1 year from this enterprise 2
Cruz testified that during the entire fourth quarter of
1986 she did not look for work, and that period has been
excepted from gross backpay in the backpay specifica-
tion
In early 1987, Cruz began work with her husband who
was employed in the cleaning business She worked as a
cleaner on the weekends She attributed the amounts set
forth in the backpay specification for the first and second
quarters of 1987 to such employment Even while em-
ployed with her husband, Cruz searched for other work
She sought work at New Britain Memorial Hospital and
at a factory near her home Neither was hiring She
stated that she sought work at that time close to her
home with no transportation problems, and further
sought part-time work so that she would not need a
babysitter Cruz added that she required that a job fit in
with her need to care for her children but would accept
a job farther away if necessary She did not turn down
any jobs offered her
In January or February 1987, Cruz applied for a job at
Walnut Hill, Inc. to work as a nurses aide on the third,
or night shift Walnut Hill is situated around the corner
from her residence She received no answer to her appli-
1 Inasmuch as Cruz testified that she did not look for work for a
period of time after her baby was born on July 2, 1985, I will except two
months, July and August 1985, from gross backpay
2 These amounts do not appear to be set forth in Cruz interim earn-
ings I will accordingly add them to the appropriate quarters Inasmuch
as Cruz testified that she earned between $25 and $30 per week by baby-
sitting, I have computed the amount at $27 50 per week
cation Later, apparently in the third quarter of 1987, she
heard that Walnut Hill was hiring people to work in the
dietary department She applied, was hired, and worked
full time for a while When she worked a friend took
care of her children Later she was unable to find a reli-
able babysitter, and stopped working full time, and began
part-time work at Walnut Hill She began such part-time
work in the late summer of 1987, and continued to be
employed there when her backpay period ended in De-
cember 1987
Analysis and Discussion'
Wanda Bermudez
Bermudez stated that early in her search for interim
employment she did not seek jobs involving the handling
of money because she was not ready for that type of re-
sponsibility, and refused to work additional hours for
Pinkerton because she would have had to work on the
second or third shifts, which ran from 3 p m to 7 a m
She gave a similar reason for quitting Unico—she
worked from 5 to 9 p m Similarly, Bermudez quit her
job at Acumail because it was a dirty, dusty job which
aggravated her bronchitis condition
The above positions involve the issue as to whether
Bermudez willfully incurred a loss of earnings by not ac-
cepting a cashier's job which she ultimately did work at,
her refusals to work evening shifts, even quitting a job
rather than do so, and her quitting a job for health rea-
sons
The Board has held that "a discnminatee need not
seek, accept or retain interim employment which is es-
sentially different from his regular job, which is unsuit-
able to someone of his background, skill and experience,
or which involves substantially more onerous condi-
tions " Rainbow Coaches, 280 NLRB 166 at 188 (1986)
Similarly, in Waukegan-North Chicago Transit, 235
NLRB 802 at fn 4 (1978), the Board stated that
The obligation to mitigate an employer's backpay li-
ability requires only that the claimant accept sub-
stantially equivalent employment Mlle Board
has held that a discnmmatee is not required to
accept employment on a different shift from the job
from which he was discharged
In Arlington Hotel Co, 287 NLRB 851 at 852 (1987),
the Board stated that it would not consider advertise-
ments for positions which would require the backpay
claimant to work a different shift from the one he
worked at his employer's facility See also Newport News
Shipbuilding, 278 NLRB 1030, 1033 (1986), where the
Board found that the backpay claimant did not incur a
willful loss of earnings where he quit interim employ-
ment because he was not used to working evening shifts
I accordingly find that Bermudez did not willfully
incur a loss of earnings by not seeking a cashier's job be-
cause she had not handled money as part of her work for
Respondent Respondent argues that inasmuch as she
eventually accepted and worked as a cashier for about 3
months at Town Supermarket, her refusal to accept a
cashier's job when she could have obtained one consti-
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tuted a willful loss of earnings However, it was Re-
spondent's burden to show that specific cashier's jobs
were available and that Bermudez was offered such posi-
tions and rejected them It has not done so 3 Moreover,
Bermudez stated that when she first became aware that
cashier's jobs were available, that was the beginning of
her backpay period and that she was "not ready" to
handle other people's money Her work as a cashier
began 2-1/2 years after her backpay period began and
her explanation, therefore, that she was apparently then
ready to accept such responsibility, is reasonable In ad-
dition, when she began work as a cashier, she had not
held a regular job for about 5 months, and apparently
was willing to accept this job which she may not have
felt comfortable with
Similarly, Bermudez' refusals to work on evening
shifts which she did not work at for Respondent did not
constitute a willful loss of earnings, pursuant to the
above cases
As set forth above, Bermudez quit the Acumail job be-
cause it was a dusty and dirty job which aggravated her
bronchitis condition, and also because it was a factory
job and not a career position which she hoped to
achieve The Board has excused employees from quitting
interim employment because of health reasons 0 K Ma-
chine & Tool Go, 279 NLRB 474, 478 (1986), Newport
News Shipbuilding, 278 NLRB 1030, 1031 (1986), Big
Three Industrial Gas, 263 NLRB 1189, 1216 (1982) Ac-
cordingly, Bermudez did not incur a willful loss of earn-
ings because she quit Acumail However, she testified
that after quitting and looking unsuccessfully for another
job she returned to Acumail and asked to return to
work Respondent argues that if she sought work at
Acumail the conditions could not have been so bad, and
that she therefore unjustifiably quit the Acumail position
Although that argument appears to have merit, it should
be noted that when Bermudez asked for reinstatement at
Acumail she had been out of work for several months,
and did not become employed again until January 1986,
and that was only a part-time, 12-hour per week position
Therefore, Bermudez was apparently desperate to obtain
work and returned to Acumail notwithstanding her
health problems
Bermudez' discharge by Church Homes, Inc does not
toll her right to backpay A discharge for cause, such as
Bermudez' (unsatisfactory attendance), does not consti-
tute a willful loss of employment, or involve an offense
that demonstrated moral turpitude Rainbow Coaches,
supra at 190, Newport News, supra at 1033, Kansas Re-
fined Helium Coaches, 252 NLRB 1162-1163 (1980)
Bermudez was employed by Arbor Acres Farms for 3
months, being driven to that job by her brother-in-law
She quit because she did not want to rely upon him to
drive her, and she had no other transportation to make
the 45-minute trip I reject Respondent's contention that
her refusal to impose upon her brother-in-law after 3
months constituted a willful loss of earnings Loss of in-
3 See Rainbow Coaches, supra at 191, where the Board stated that 'sev-
eral bus companies testified that they had job openings during the back-
pay period but there was no specific showing that these jobs were avail-
able to Fonseca or that he failed to accept such employment"
tenm employment due to loss of transportation through
no fault of the backpay claimant is not a basis to reduce
backpay In Fort Lock Corp, 233 NLRB 78 (1977), an
employee was discharged for absenteeism Her husband's
cousin, who drove her to work, failed to pick her up on
those days that she was absent and she had no other
means of transportation In Sehgman & Associates, 273
NLRB 1216, 1223 (1984), the Board found that a back-
pay claimant was not out of the job market when her car
broke down, she lived 20-25 miles from town and there
was no local employment The Board noted that inas-
much as the employee did not have transportation prob-
lems prior to her unlawful discharge by her employer,
there was no basis for diminishing backpay because of
"personal difficulties" totally ascribable to her employ-
er's unfair labor practices
Similarly, Bermudez could not herself travel to the
Arbor Acres job because she had no transportation Her
refusal to continue to impose upon her brother-in-law
after 3 months of chauffeuring by him falls in the catego-
ry of "personal difficulties" ascribable to Respondent I
accordingly find that lack of transportation prevented
her from continuing to work at Arbor Acres and that
she was justified in quitting that job
Paula Colon
Colon satisfied her obligation to search for work Im-
mediately after her layoff by Respondent, in February
1985, she went to the SES and completed job applica-
tions at three companies She found work at Mercury
Excelum where she worked for about 8 months and left
because she was laid off
Thereafter, Colon continued her search for employ-
ment until late August or the summer of 1986 when she
had to move to Massachusetts where her husband was
working alone As held by the Board in Mastro Plastics,
136 NLRB 1342, 1350 (1962), a case involving an em-
ployee who left an interim job when she moved with her
husband 50 miles from her employer
Although a claimant may seek a job beyond the vi-
cinity of the labor market and still be entitled to
backpay, nevertheless it appears here that her
reason for leaving the vicinity had nothing to do
with seeking a job and that she would also have left
her job at Mastro
Similarly, in Duroyd Mfg, 285 NLRB 1 (1987), the
Board held that an employee removed himself from the
job market when he moved, for personal reasons, from
New York to Ohio
Accordingly, inasmuch as Colon's move to Massachu-
setts was due to her husband's locating employment
there and not because she decided to leave Hartford to
find work, I find that she would have left her employ
with Respondent for the same reason, had she still been
employed there Therefore, I will terminate Colon's
backpay as of September 1, 1986
4 SORENSON LIGHTED CONTROLS 289
Loida Cruz
When Cruz was laid off by Respondent, she was em-
ployed by it full time and her children were cared for by
their grandmother She diligently sought work by going
to the SES regularly, looking in the newspater and else-
where
When Cruz was unable to find work from February
1985, when her backpay period began, to July 1985,
when her baby was born, due to her inability to find a
babysitter to care for her two other children In 1987,
she sought work which would conform with her need to
ensure that her children were taken care of According-
ly, she looked for jobs that were near her home, al-
though she stated that she would accept a job located
farther away, she sought part-time work so that she
would not need a babysitter, and brought her children
with her when she worked with her husband
Respondent argues that Cruz improperly limited her
search for work due to her child care responsibilities I
do not agree In Richard W Kaase Co, 162 NLRB 1320,
1313 (1967), the Board rejected an identical argument
where an employee sought only part-time, evening inter-
im employment so that she could care for a grandchild
The Board stated
Having adjusted her own life to this (part time)
schedule, it does not seem reasonable to hold that
when Kaase unlawfully chose to sever the employ-
ment relationship, it became the duty of the inno-
cent victim of that discnmination to change her
mode of living, discontinue the care of her grand-
child and accept daytime employment all for
the purpose of reducing Kaase's backpay
and thus accommodating the wrongdoer
See also Seligman & Associates, supra at 1223
I accordingly find that Cruz' efforts to find interim
employment were substantial and her inability to find
such work, due to the unavailability of proper babysit-
ting facilities, did not constitute a willful loss of earnings
Conclusions and Recommended Order
Backpay—Wanda Bermudez
Period GrossBackpay
Interim
Earnings Net Backpay
1985
1st Qtr $45800 $ 0 $45800
2d Qtr 1752 00 892 860 00
3d Qtr 701 00 292 409 00
4th Qtr 1,56200 1,562 00
1986
1st Qtr 1,85300 768 1,08500
2d Qtr 1,88200 780 1,102 00
3d Qtr 1,91100 2,705
4th Qtr 1,95100 2,011
1987
1st Qtr 1,956 00 180 1,776 00
2d Qtr 1,986 00 874 1,112 00
3d Qtr 1,40600 1,553 0
Backpay—Wanda Bermudez—Continued
Period GrossBackpay
Interim
Earnings Net Backpay
4th Qtr 1,768 00 1,754 14 00
Total Net
Backpay $8,378 plus
interest
Paula Colon
1985
1st Qtr $86300 $0 $86300
2d Qtr 1,75200 672 1,08000
3d Qtr 1,865 00 1,801 64 00
4th Qtr 1,91100 1,854 57 00
1986
1st Qtr 1,85300 729 1,12400
2d Qtr 1,88200 0 1,88200
3d Qtr 598 80 0 598 80
Total Net
Backpay $5,668 80 plus
interest
Pursuant to the above decision, backpay ends on Sep-
tember 1, 1986 Gross backpay as set forth in the amend-
ed specification is $1210 Deducted from this is $152 80
per week for the 4 weeks in September 1986, or $611 20,
leaving the total $598 80 for the third quarter
Loida Cruz
Period GrossBackpay
Interim
Earnings Net Backpay
1985
1st Qtr $896 $0 $896
2d Qtr 1,820 1,820
3d Qtr 0 0
4th Qtr 0 0
Gross backpay as set forth in the amended specifica-
tion is $1314, which is for the penod July 1 to August
31 I have found that Cruz did not work or seek work
during this period due to the birth of her baby on July 2
Lowla Cruz
Period GrossBackpay
Interim
Earnings Net Backpay
1986
1st Qtr $0 $0
2d Qtr 0 0
3d Qtr 1,264 '$22000 1,04400
4th Qtr 0 0
1987
1st Qtr 2,202 640 00 1,210 00
2 352 00
992 00
2d Qtr 2,054 650 00
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 357 50
1,00750
2,163 1,01000
1I000
3d Qtr
1,04650
Loida Cruz—Continued Upon the foregoing, I issue the following'
ORDER
The Respondent, Sorenson Lighted Controls, Inc , its
officers, agents, successors, and assigns shall make whole
the discnminatees involved herein and the backpay
claimants by payment to them of the amounts of net
backpay set forth opposite their names, plus interest
thereon accrued to the date of payment, less tax with-
holdings required by Federal and state law
Lydia Diaz $ 2,06400
Alba Maldonado 5,52200
Wanda Bermudez 8,37800
Paula Colon 5,668 80
Loida Cruz 8,31150
' 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 pur-
poses
Gross
Backpay
Interim
Earnings Net Backpay
' Interim earnings consist of $220 of babysitting for 8 weeks
2 Interim earnings consist of $352 of babysitting for 12 8
weeks
3 Interim earnings consist of $357 50 of babysitting for 13
weeks
4 Interim earnings consist of $110 of babysitting for 4 weeks
Period
1,12000
1,892 640 00
1,04300
1,25200
$8,311 50 plus
Interest
4th Qtr
Total Net
Backpay