Tubari Ltd.

National Labor Relations Board - Board Decisions

Jun 26, 1991

303 N.L.R.B. 529 (N.L.R.B. 1991)

529
303 NLRB No. 86
TUBARI, LTD.
1 We note that in the second paragraph of the judge’s decision the first sen-
tence should refer to 1984, not 1985. There were no exceptions filed to the
judge’s finding regarding the entitlement of certain illegal aliens to backpay.
In adopting the judge’s finding that the Respondent is not entitled to a 5-
day grace period and that the Respondent’s backpay obligation therefore com-
menced on December 3, 1984, we note that the Board previously found in
Tubari, Ltd., 287 NLRB 1273 (1988), that the employees were unlawfully dis-
charged. See 287 NLRB at 1273. Hence no 5-day grace period is applicable
to their reinstatement or backpay entitlement. Only as an alternative finding
did the Board conclude that, if the employees were not unlawfully discharged,
then they were unfair labor practice strikers who had made a request to return,
and that request was unlawfully denied. That action constituted a separate vio-
lation of the Act. And in circumstances where unfair labor practice strikers’
offers to return to work are rejected, the Board has determined that the 5-day
grace period is inapplicable. See Drug Package Co., 228 NLRB 108, 114
(1977). Hence the 5-day grace period does not apply here.
Tubari, Ltd., Inc. and Fur Workers Union, Local 3,
United Food and Commercial Workers, AFL–
CIO. Cases 22–CA–13581 and 22–CA–13615
June 26, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 19, 1989, Administrative Law Judge
Joel P. Biblowitz issued the attached supplemental de-
cision. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order.
In the underlying unfair labor practice proceeding,
as noted at footnote 1 above, the Board found that the
discriminatees in this case had been unlawfully dis-
charged on December 3, 1984. They sought reemploy-
ment with the Respondent on December 4 but that
offer to return was unlawfully rejected by the Re-
spondent. After their offer to return was rejected, the
discriminatees picketed the Respondent in protest of its
unfair labor practices from 7:30 a.m. to 3:30 p.m.
daily. They were paid $150 a week by the Union for
that activity, and that amount was included in the
backpay specification as interim earnings, and they
were also given $5 a day as ‘‘lunch money.’’ The
judge found that the latter amount should also be in-
cluded as interim earnings and there are no exceptions
to that finding. In sum, the judge found that the
discriminatees received $175 a week from the Union
for picketing the Respondent. None of the
discriminatees searched for interim employment else-
where. The Respondent argued that because of their
failure to engage in such a search the discriminatees
should be denied any backpay. The judge rejected that
contention and we affirm that conclusion.
We start from the oft-quoted premise that ‘‘[o]nce
the General Counsel has established the gross amount
of backpay due the discriminatees in question ‘the bur-
den is upon the employer to establish facts which
would negative the existence of liability to a given em-
ployee or which would mitigate that liability’ . . . .
‘The finding of an unfair labor practice is presumptive
proof that some backpay is owed.’’’ NLRB v. Madison
Courier, Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972).
Nonetheless, discriminatees have a duty to mitigate
damages and the Board has found in particular cases
that employees who engage in picketing at the expense
of seeking alternative employment incur willful losses
and are disqualified from receiving backpay for that
period. In those instances, however, there was no indi-
cation that the employees received compensation for
their picketing duties. See, e.g., Ozark Hardwood Co.,
119 NLRB 1130, 1136, 1137 (1957) (employees
Homer Currier and Bill Friend), remanded on other
grounds, 282 F.2d 1 (8th Cir. 1960); John Cuneo, Inc.,
276 NLRB 75 (1985). By contrast, here the
discriminatees received significant sums for their pick-
eting. In Marlene Industries, 234 NLRB 285 (1978),
the Board found that an illegally discharged employee
who, during the backpay period, was later hired by and
paid by the Union to picket the respondent in its orga-
nizational drive at the respondent did not suffer a will-
ful loss of earnings simply by picketing. As in Mar-
lene Industries, in the instant case, where the Union’s
payment to the discriminatees as compensation for
their picketing duties constitutes interim earnings
which are deductible from gross backpay (see Superior
Warehouse Grocers, 282 NLRB 802 (1987)), we con-
sider the discriminatees’ picketing sufficiently akin to
interim employment. In such circumstances, it was in-
cumbent on the Respondent to show that the picketing
was not suitable interim employment and the Respond-
ent has failed to show this. The Respondent principally
relies on the court’s statement in NLRB v. Madison
Courier, Inc., supra, that picket line activity does not
relieve discriminatees of the obligation of making rea-
sonable efforts to secure work in order to mitigate an
employer’s backpay liability. We find that this state-
ment, without more, does not compel the conclusion
that the discriminatees’ paid picketing activity in the
instant case does not constitute mitigation.
In finding that the discriminatees did not fail to miti-
gate their losses, we do not rely on the object of their
picketing. They obviously have a statutory right to pro-
test their employer’s unfair labor practices through
picketing, but this does not automatically translate into
a right to have such picketing counted as interim em-
ployment that establishes mitigation of loss. In deter-
mining adequacy of mitigation, we must consider
whether—given the employee’s skills and experience,
and the rate at which he or she was compensated when
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Although acknowledging that employees do not have an automatic right
to have unfair labor practice picketing counted as interim employment that es-
tablishes mitigation of loss, Member Devaney does note that these employees
had been unlawfully discharged; had even sought their former positions from
the Respondent; and had been refused these jobs. He finds that paid picketing
of the sums involved in this case to pressure the Respondent to take them back
did not constitute willful loss of earnings. Cf. Pilot Freight Carriers, 238
NLRB 382 (1978).
In addition, Member Devaney, in agreeing with his colleagues that the
discriminatees’ paid picketing constitutes mitigation, finds it unnecessary to
determine whether a contrary result would be warranted if, unlike in the in-
stant case, those engaged in paid picketing were skilled employees who were
not limited to relatively low paid manual laborer work. See his colleagues’ dis-
cussion below in the following two paragraphs.
3 Chairman Stephens accepts Associated Grocers, supra, in which he dis-
sented in part, as applicable Board precedent on this point. He also notes that
employee Mullins, whose backpay he would have cut off for failure to seek
employment in the grocery warehouse industry, earned no money from any
employment during the period in which he sought work other than
warehousing work.
4 Indeed, it does not appear that the General Counsel had claimed the $10
weekly payments constituted interim earnings. The judge in Ozark, supra (then
called the ‘‘trial examiner’’) did not mention any such payments. In finding
that Fisher was entitled to backpay for the quarters in which Fisher engaged
in picketing, the judge (id. at 1166) relied on the ground that Fisher had satis-
fied his obligation to mitigate backpay by seeking farmwork, albeit unsuccess-
fully. In reversing, the Board found no record support for that finding, and
it simply noted the $10 payments without further elaboration.
employed by the Respondent–-acceptance of the pick-
eting job with the Union represents a reasonable effort
to obtain sustained income during the backpay period.2
We note that in Marlene Industries, supra, on which
we are relying to find mitigation here, the judge whose
decision was adopted by the Board made an initial
finding that discriminatee Brashears’ job as a ‘‘press-
er’’ was not ‘‘so highly skilled or highly paid that he
would be required to seek only ‘presser’ work’’ in
order to establish mitigation. Id. at 289. Accord: Asso-
ciated Grocers, 295 NLRB 806 (1989). In our view,
if we were dealing with skilled employees who, by vir-
tue of their experience, were not limited to relatively
low paid manual laborer work, then work for the
Union as a picketer could not excuse failure to seek
work in the same trade.3
The 19 discriminatees employed as picketers here,
however, had been employed simply as
‘‘floorworkers’’ performing unskilled laborer tasks,
and none was shown to have experience in any trade
or specialty. Accepting a ‘‘bird in the hand’’ for steady
pay that was less than what they had earned in the jobs
from which they were unlawfully discharged was not
unreasonable.
We also note the Respondent’s contention that the
judge overstated the extent of the discriminatees’ miti-
gation. The judge stated that the discriminatees ‘‘were
paid almost seventy five percent of their rate of pay
from the first day of the backpay period.’’ While it is
true, as the Respondent contends, that once overtime
earnings are included in the discriminatees’ backpay
entitlement, as the judge found they should be, then
their earnings from picketing constitute less than 75
percent of their wages, as they also do when the $.55
per hour wage increase of February 1, 1985, is
factored in, we nonetheless find the discriminatees’
earnings not so relatively small as to warrant the con-
clusion that their earnings from their picketing activity
do not constitute mitigation. In this regard, we find the
facts in the instant case distinguishable from those in
My Store, Inc., 181 NLRB 321 (1970). In My Store,
certain discriminatees during a portion of the backpay
period were engaged in picketing only and the Board
found they were not in the labor market. In addition
to the loans they received from the union during the
backpay period (which were not counted as interim
earnings), they also received small sums from the
union as compensation for their extra efforts in guiding
the picket line and those were counted as interim earn-
ings. The Board held that these discriminatees incurred
willful losses and were barred from receiving backpay
during the time that they only picketed. We find the
Board’s holding in My Store not controlling because in
My Store, unlike in the instant case, the amount the
discriminatees were paid by the union in extra com-
pensation was de minimis. Nor do we find the Board’s
holding in Ozark Hardwood, above at 1137–1138, with
respect to discriminatee Lum Fisher to be inconsistent
with our result in the instant case. Although in Ozark
Hardwood, the Board disallowed backpay for the pe-
riod during which Fisher served on the picket line and
during which the union paid him $10 dollars a week,
the payment was not clearly shown to be a payment
for picketing as in the instant case.4
Thus, we find that this was true employment in the
sense that the discriminatee/picketers worked regular
hours and were paid a specific weekly wage plus lunch
expenses. These were not mere strike benefits. Hence,
the judge did not err in treating this work as employ-
ment that constitutes mitigation and deducting the in-
come as interim earnings.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Tubari, Ltd., Inc.,
Saddlebrook, New Jersey, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Marta Figueroa, Esq., for the General Counsel.
Stephen J. Edelstein, Esq. (Schwartz, Pisano, Simon, Elestein
& Ben-Asher), for the Respondent.
SUPPLEMENTAL DECISION
JOEL P. BIBLOWITZ, Administrative Law Judge. This sup-
plemental proceeding was initiated by a compliance speci-
fication and notice of hearing issued by the Regional Direc-
tor on June 30, 1989. Respondent filed a timely answer to
said specification and the matter was heard by me on Octo-
ber 12, 1989, in Newark, New Jersey.
531TUBARI, LTD.
1 One of these employees, Felix Gonzales, was on disability leave at the
time and did not report back to work until January 7, 1985.
2 The specification alleges, and Respondent admits, that on February 1,
1985, each discriminatee would have received a 55-cent hourly wage increase.
By its Decision and Order (287 NLRB 1273) dated Feb-
ruary 29, 1988, the Board found, inter alia, that Tubari, Ltd.,
Inc. (Respondent), violated Section 8(a)(1)(2) and (3) of the
Act when it discharged 19 employees on December 3, 1985,1
in an attempt to dissuade its employees from replacing Local
1528, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO with Fur
Workers Union, Local 3, United Food and Commercial
Workers, AFL–CIO (the Union). The specification alleges
that the backpay period for all except Gonzales begins on
December 3, 1984, and ends on July 31, 1985. The backpay
period for Gonzales begins on January 7, 1985, and ends on
July 31, 1985. This much, Respondent admits. The specifica-
tion next alleges that the appropriate measure of the hours
the discriminatees would have worked during the backpay
period, absent the discrimination, is the average number of
hours, regular and overtime, each worked on a weekly basis
during calendar year 1984; this figures multiplied by the
discriminatees hourly rate2 of pay produces the appropriate
weekly wages for each discriminatee. While admitting that
the method of computing the hours the discriminatees would
have worked is appropriate, denies it is proper in the instant
situation because whereas the discriminatees worked a large
number of overtime hours in 1984, Respondent moved to a
larger facility in later November or early December 1984 in
order to eliminate or reduce overtime hours.
In addition to the above defense regarding the elimination
of overtime hours, Respondent defends that 10 of the
discriminatees are not entitled to any backpay since they are
illegal aliens, and that none of the discriminatees are entitled
to backpay because of the lack of diligent search for suitable
interim employment. Finally, during the backpay period, the
Union paid each of the discriminatees $150 a week, plus $25
a week ‘‘lunch money’’ to picket the Respondent’s facility
between 7:30 a.m. and 3:30 p.m. The General Counsel in-
cludes the $150 a week each received from the Union as in-
terim earnings; Respondent alleges that the $25 a week
‘‘lunch money’’ should have been included as well.
Facts and Analysis
This specification involves discriminatees; pursuant to the
Board’s Decision and Order, the backpay for all but Felix
Gonzales begins on December 3, 1984, the date they were
discriminatorily discharged. Gonzales was on disability leave
at the time, so his backpay period does not begin until his
leave ended on January 7, 1985. The backpay period for all
19 discriminatees ended on July 31, 1985. In determining the
backpay due to these discriminatees, the compliance officer
figured the hours they would have worked during the back-
pay period by the average number of hours they worked
(regular and overtime) on a weekly basis in 1984; these fig-
ures were based on Respondent’s payroll records. He then
multiplied the regular hours by the hourly wage they were
receiving for the period through January 31, 1985, and multi-
plied the regular hours by the hourly wage which was admit-
tedly increased by 55 cents an hour for the period February
1 through July 31, 1985. Overtime pay was determined in a
similar fashion, but at a time and a half rate. Deducted from
the gross backpay rate, as interim earnings, was $150 a week
that each of these employees received from the Union for
picketing every day from 7:30 a.m. to 3:30 p.m. Also de-
ducted (but not contested or relevant to any of the issues
herein) was money paid to four of the discriminatees as part
of a settlement of a prior related manner. Respondent has
four affirmative defenses herein:
1. Discriminatees Edgar Aguilar, Veronica Avila, Ismelda
Castro, Martha David, Elvia Escobar, Edith Flori, Gladys
Luna, Carlos Ochoa, Hugo Patino, and Sara Valiezo are enti-
tled to no backpay since they were illegal aliens during the
backpay period.
2. The discriminatees are entitled to no backpay for over-
time because beginning at about the commencement of the
backpay period, Respondent altered its working conditions
which ‘‘would have eliminated the need for overtime.’’
3. The discriminatees should be denied backpay because
they did not look for interim employment.
4. The discriminatees should be denied backpay for under-
stating and mistating interim earnings, presumably, by not in-
cluding the $5 daily ‘‘lunch money.’’
When loss of employment is caused by a violation of the
Act, the finding by the Board that an unfair labor practice
was committed is presumptive proof that some backpay is
owed. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175–
176 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966). The
General Counsel’s burden for the backpay proceeding is ‘‘to
show the gross backpay due each claimant.’’ J. H. Rutter-
Rex Mfg. Co. v. NLRB, 473 F.2d 223, 230 (5th Cir. 1973),
cert. denied 414 U.S. 822 (1973). Once the General Counsel
has established gross backpay, the burden is on respondent
to establish affirmative defenses that would mitigate its li-
ability. NLRB v. Brown & Root, 311 F.2d 447, 454 (8th Cir.
1963). Respondent has the burden of establishing such mat-
ters as unavailability of jobs, willful loss of earnings and in-
terim earnings to be deducted from the backpay award.
NLRB v. Mooney Aircraft, 366 F.2d 809, 812–813 (5th Cir.
1966). When there are uncertainties or ambiguities, doubt
should be resolved in favor of the wronged party rather than
the wrongdoer. United Aircraft Corp., 204 NLRB 1068
(1973).
Respondent first defends that 10 of the discriminatees
should receive no backpay because they were illegal aliens
during the backpay period. In support of this defense,
Michele Glass, Respondent’s president, testified that she
knew, or believed that she knew, some of the discriminatees
by other names and that she ‘‘came to believe’’ that Aguilar,
Avila, Castro, David, Escobar, Flori, Luna, Ochoa, Patino,
and Valerezo were undocumented aliens. Additionally, she
testified that she ‘‘received a statement from Social Security
about three of the individuals. And a couple of the individ-
uals had to go back to their country for a period of time.’’
The only concrete evidence supplied by Respondent on this
defense was a document sent by the Immigration and Natu-
ralization Service of the United States Department of Justice
to Ismelda Lucrecia Castro de Hernandez, presumably
discriminatee Ismelda Castro. The document is dated October
5, 1988, and the box check on the form states: ‘‘In accord-
ance with a decision made in your case, you are required to
depart from the United States at your own expense on or be-
fore October 54, 1989.’’ No further explanation is provided.
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent’s fourth affirmative defense alleges that the discriminatees
should be denied backpay for understatement or mistatement of interim earn-
ings, presumably not including the $5 a day ‘‘lunch money’’ as interim earn-
ings. Although I disagree that the discriminatees should be denied backpay for
this reason, I find that the $5 a day that the discriminatees received should
be included in their interim earnings. In order to receive this additional $5 a
day, the discriminatees had to be preent at the facility while the picketing was
taking place. I therefore find it undistinguishable (other than in name) from
the $150 a week also paid to the discriminatees.
In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the Su-
preme Court modified the Board and the Seventh Circuit’s
remedial order involving discriminatees who were illegal
aliens. In Felbro, Inc., 274 NLRB 1268 at 1269 (1985), the
Board modified the administrative law judge’s remedy (by
issued prior to the Supreme Court’s ruling in Sure-Tan, stat-
ing that Sure-Tan
held, inter alia, that while undocumented alien workers
are employees entitled to the Act’s protection, ‘‘in com-
puting backpay, the employees must be deemed ‘un-
available’ for work (and the accrual of backpay therefor
tolled) during any period when they were not lawfully
entitled to be present and employed in the United
States.’’
The court, in NLRB v. Felbro, Inc., 795 F.2d 705 (9th Cir.
1986), disagreed with the Board on the remedy, stating:
in Sure-Tan, the Supreme Court did not address the
issue whether undocumented workers remaining at
work in the United States throughout the backpay pe-
riod are entitled to backpay awards. Sure-Tan barred
from backpay only those undocumented workers who
were unavailable for work in the backpay period be-
cause they were outside the United States without entry
papers.
The court pointed out the obvious difference between
Sure-Tan and Felbro in Sure-Tan, all five discriminatees left
the United States on the day that they were unlawfully termi-
nated. In Felbro, the discriminatees all returned to work for
the respondent. In Felbro, Inc., 291 NLRB 373 (1988), the
Board accepted the above as the law of the case and modi-
fied its remedy accordingly. In Rios v. Enterprise Assn. of
Steamfitters Local 638, 860 F.2d 1168 (2d Cir. 1988), the
Second Circuit agreed: ‘‘We conclude, in agreement with the
Ninth Circuit, that undocumented workers who have re-
mained in the country are eligible for backpay as of the time
of a violation.’’
On the basis of the above, there is no doubt that Respond-
ent’s first affirmative defense is totally lacking in merit. The
sole evidence presented by Respondent was that the Immi-
gration and Naturalization Service ordered Castro to leave
the country by October 5, 1989. This is more than 4 years
after the conclusion of the backpay period. Further, the evi-
dence establishes that, like Felbro, supra, and Rios, supra, all
19 discriminatees remained in the country and were rein-
stated, on July 31, 1985. This affirmative defense must there-
fore fall.
Respondent’s next affirmative defense is that the
discriminatees are not entitled to backpay for overtime be-
cause just prior to the commencement of the backpay period,
Respondent moved to a larger, more efficient facility, elimi-
nating the need for overtime. In Brown & Root, supra, the
court stated that ‘‘in many cases, it is difficult for the Board
to determine precisely the amount of backpay which should
be awarded to an employee’’; however, the Board may use
close approximations, and may adopt formulas reasonably
designed to produce close approximations, so long as it is
not arbitrary or unreasonable. Mastell Trailer Corp., 273
NLRB 1190 (1984). In the instant matter, the compliance of-
ficer used the formula of each employee’s average number
of hours worked per week in 1984, prior to the backpay pe-
riod. This is a standard and fair formula to be employed in
this matter, and Respondent, apparently agrees, contending
only that overtime hours and pay should be excluded from
the formula because of the change in its operation and facil-
ity in about November and December 1984. The issue, there-
fore, is whether Respondent has sustained its burden requir-
ing deviation from an otherwise appropriate formula.
DeLorean Cadillac, Inc., 231 NLRB 329 (1977). NLRB v.
Dodson’s Market, 553 F.2d 617 (9th Cir. 1977). I find that
it has not. Glass testified that in November or December, Re-
spondent moved from its 7500 square foot facility in
Ridgefield, New Jersey, to a 22,000 square foot facility in
Saddle Brook, New Jersey. She testified that the purpose of
the move was to increase the amount of machinery, thereby
increasing production, while, at the same time, increasing the
number of employees in order to decrease the amount of
overtime worked by employees. Respondent received financ-
ing from the State of New Jersey in making this move into
larger quarters’ in consideration of this financing, Respond-
ent committed to employing at least 60 employees at the new
facility. It had employed approximately 20 at the Ridgefield
facility. At the time of the hearing herein, Respondent em-
ployed approximately 65 people. However, Glass did not
know how many employees it employed at the new facility
between December 1984 and July 31, 1987, nor did she
know over what period of time the State of New Jersey, re-
quired Respondent to reach the figure of 60 employees. Fi-
nally, Respondent could have supported this affirmative de-
fense with its payroll records for the backpay period; its
failed to do so. Glass’ vague, unsupported testimony is there-
fore not enough to rebut the General Counsel’s appropriate
remedy herein. This affirmative defense is therefore dis-
missed. East Wind Enterprises, 268 NLRB 655 (1984).
Respondent’s third affirmative defense is that the
discriminatees should be denied backpay because of the lack
of diligent search for interim employment, and the General
Counsel acknowledged that the discriminatees spent from
7:30 a.m. to 3:30 p.m., daily, on the picket line, for which
they were paid $150 a week (which is included in the speci-
fication as interim earnings) plus $5 a day ‘‘lunch money,’’3
and that none of the discriminatees searched for interim
work. The issue is a clear one: can a discriminatee refuse to
search for interim employment while picketing his former
employer, when he is being paid by the union for doing so
and is listing that pay as interim earnings?
Once an employee is discharged unlawfully, trigerring the
commencement of the backpay period (as occurred with the
discriminatees herein on December 3, 1984), he has certain
rights and obligations under the Act. He has the right to
picket his employer’s facility to publicize the wrong per-
petrated upon him by his employer. Although one might as-
sume that this right is absolute and would allow the em-
ployee to spend all his time picketing to protest his employ-
533TUBARI, LTD.
4 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 objec-
tions to them shall be deemed waived for all purposes.
5 Discriminatees Eduardo Martinez, Francisco Molina, Juan Moreira, and
Carlos Ochoa each received money as part of a settlement of a prior related
case. The amounts they received was added to their net interim earnings, to
the extent of those earnings, for each quarter until the amount was exhausted.
er’s unfair labor practice, this, apparently, is not so. The Act
also obliges the employee to mitigate the damages caused by
Respondent by looking for interim employment, and this ob-
ligation to look for work clearly modifies the discriminatees’
right to picket. Ozark Hardwood Co., 119 NLRB 1130
(1957); Rice Lake Creamery Co., 151 NLRB 1113, 1131
(1965); Sioux Falls Stock Yards Co., 236 NLRB 543, 549
(1978). As the court stated in NLRB v. Madison Courier,
Inc., 472 F.2d 1307, 1320 (D.C. Cir. 1972): ‘‘picket line ac-
tivity does not relieve the discriminatees of the obligation of
making reasonable efforts to obtain appropriate interim em-
ployment.’’ See also the Board’s Second Supplemental Deci-
sion and Order in Madison Courier, Inc., 202 NLRB 808
(1973). The instant situation presents a novel twist to this
issue: while admitting that the discriminatees did not search
for interim employment while picketing, the specification
lists the $150 a week that the Union paid to the employees
for picketing.
I find that the discriminatees are not barred from receiving
backpay due to their admitted failure to search for interim
employment. The Union paid each of the discriminatees $175
a week; in return for this the discriminatees were obligated
to picket or perform other services for the Union at Respond-
ent’s facility. This therefore constitutes employment (of some
sort) and mitigates Respondent’s damages Superior Ware-
house Grocers, 282 NLRB 802 (1987). Prior to February
1985, these discriminatees would have been paid $6.15 an
hour by Respondent; the Union was paying them $4.33 an
hour. Although Respondent might argue that this is a ploy
designed by the Union to Respondent’s detriment, I find, on
the contrary that it is a reasonable way to mitigate damages.
The discriminatees were paid almost 75 percent of their rate
of pay from the first day of the backpay period. Many em-
ployers in backpay cases would settle for mitigation to this
extent. Finally, I find that the instant case presents a fair
compromise between discriminatees’ right to picket their un-
lawful discharges and their obligation to mitigate damages.
Effective picketing of this nature requires the discriminatees
present at the employer’s facility during the entire period that
it is open; such picketing leaves little time for an effective
search for interim employment. The instant situation allows
the discriminatees to effectively picket their unlawful dis-
charge, while, at the same time, mitigating Respondent’s
damages.
Finally, I must address certain additional defenses raised
by Respondent at the hearing and in his brief. Respondent
relies on Southwestern Pipe, 179 NLRB 364 (1969), for the
proposition that the Board requires discharged employees to
actively search for interim employment even if he is pick-
eting his employer to protest his discharge. However, South-
western Pipe was not a backpay case and did not involve a
striker’s failure to search for interim employment. Rather, it
involved a striker’s refusal to accept an offer of reinstatement
because the employer had not made a similar offer to fellow
strikers also entitled to immediate reinstatement. Addition-
ally, Respondent relies on Drug Package Co., 288 NLRB
108 (1977), for the proposition that backpay should not begin
to run until December 8, 1984, 5 days after the unfair labor
practice. This case is inapplicable to the facts herein where
the Board found that these employees were unlawfully termi-
nated on December 3, 1984, or, in the alternative, they were
engaged in a walkout that constituted protected concerted ac-
tivity under the Act. In this situation, I see no reason to grant
Respondent a 5-day grace period. Respondent also alleges
that discriminatee Eduardo Martinez should be denied back-
pay because he was a probationary employee prior to De-
cember 3, 1984, who would have been terminated without re-
gard to the events relevant to the underlying Board pro-
ceeding. The sole evidence supporting this is Glass’ testi-
mony that Martinez had been employed by Respondent for
a few weeks prior to December 3, 1984, and was therefore
a probationary employee. In answer to the question: ‘‘Had
the company at that point considered whether Mr. Martinez
would have been continued as an employee, but for the
events that transpired?’’, she testified that Respondent had
decided to terminate him. This contention is an affirmative
defense with the burden on the Respondent to establish that
Martinez would not have remained in its employ for non-
discriminatory reasons. As the administrative law judge stat-
ed in Midwest Hanger Co., 221 NLRB 911, 917 (1975):
‘‘Respondent must make the showing and mere conclusions
are not sufficient.’’ As the trial examiner stated in W. C.
Nabors Co., 134 NLRB 1078, 1088 (1961): ‘‘It follows that
mere self serving and conclusionary statements by Respond-
ent that he would have laid off the 11 claimants here for eco-
nomic and nondiscriminatory reasons do not suffice to de-
prive these claimants of their remedial rights.’’ As Respond-
ents allegations regarding Martinez are solely conclusionary,
self-serving, and totally unsupported by any other evidence,
this defense is therefore denied. A & T Mfg. Co., 280 NLRB
916 (1986).
Finally, counsel for Respondent, in his brief, states that he
disagrees with the backpay calculations in the backpay speci-
fication for the following discriminatees: Veronica Avila,
Ismelda Castro, Edith Flori, Arnulfo Hernandez, Eduardo
Martinez, Ramon Molgado, Francisco Molina, Carlos Ochoa,
and Juan Perez. The only reference in the brief to mistakes
in the backpay specification, apparently, is: ‘‘Many of the
employees were not on the payroll as of January 1, 1984, so
the number of weeks worked by them is less than 49. The
number of hours worked includes holiday hours.’’ This is in
regard to the computation for average regular hours worked
by the discriminatees. In arriving at the average number of
regular hours worked by these nine discriminatees during
1984 (as appears in the appendix below), I have included the
holiday hours for which they were paid by Respondent in
1984, but I have excluded their final week of employment
in 1984 when they were terminated early in the week.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Tubari, Ltd., Inc., Saddlebrook, New Jer-
sey, its officers, agents, successors, and assigns, shall pay, to
the individuals named below and listed in the appendix
below the amounts set forth beside their names,5 plus interest
computed in accordance with Florida Steel Corp., 231
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 651 (1977), and New Horizons for the Retarded, 283
NLRB 1173 (1987).
Edgar Aguilar $10,394
Veronica Avila 7,684
Ismelda Castro 8,278
Tomas Cruz 11,165
Martha David 7,445
Elvia Escobar 6,847
Edith Flori 4,397
Felix Gonzales 7,439
Arnulfo Hernandez 15,742
Gladys Luna 5,420
Eduardo Martinez 712
Concepcion Molgado 2,791
Ramon Molgado 8,662
Francisco Molina 0
Juan Moreira 4,296
Carlos Ochoa 6,925
Hugo Patino 7,573
Juan Perez 4,044
Sara Valerezo 5,541
APPENDIX
Yr./Qtr. Avg. Weekly Wage Wks. Gross Backpay Net Interim Earning Net Backpay
Aguilar, Edgar
84/4 $445.91 4.2 $1,873 $735 $1,138
85/1 445.91 4.8 2,140 840 1,300
85/1 485.78 8.0 3,886 1,400 2,486
85/2 485.78 13.0 6,315 2,275 4,040
85/3 485.78 4.6 2,235 805 1,430
$10,394
Avila, Veronica
84/4 $172.45 4.2 $1,564 $735 $829
85/1 372.45 4.8 1,788 840 948
85/1 405.75 8.0 3,246 1,400 1,846
85/2 405.75 13.0 5,275 2,275 3,000
85/3 405.75 4.6 1,866 805 1,614
$7,684
Castro, Ismelda
84/4 $88.53 4.2 $1,632 $735 $897
85/1 388.53 4.8 1,865 840 1,025
85/1 423.87 8.0 3,386 1,400 1,986
85/2 423.87 13.0 5,503 2,275 3,228
85/3 423.87 4.6 1,947 805 1,142
$8,239
Gonzalez, Felix
85/1 $395.72 4.0 $1,583 $700 $883
85/1 431.11 8.0 3,449 1,400 2,049
85/2 431.11 13.0 5,604 2,275 3,329
85/3 431.11 4.6 1,983 805 1,178
$7,439
Hernandez, Arnulfo
84/4 $590.86 4.2 $2,482 $735 $1,747
85/1 590.86 4.8 2,836 840 1,996
85/1 643.71 8.0 5,150 1,400 3,750
85/2 643.71 13.0 8,368 2,275 6,093
85/3 643.71 4.6 2,961 805 2,156
$15,835
Luna, Gladys
84/4 $311.07 4.2 $1,306 $735 $571
85/1 311.07 4.8 1,493 840 653
85/1 338.89 8.0 2,711 1,400 1,311
85/2 338.89 13.0 4,406 2,275 2,131
85/3 338.89 4.6 1,559 805 754
$5,420
535TUBARI, LTD.
APPENDIX—Continued
Yr./Qtr. Avg. Weekly Wage Wks. Gross Backpay Net Interim Earning Net Backpay
Martinez, Eduardo
84/4 $230.68 4.2 $969 $969 $0
85/1 230.68 4.8 1,107 1,107 0
85/1 262.40 8.0 2,099 2,099 0
85/2 262.40 13.411 3,411 3,101 310
85/3 262.40 4.6 1,207 805 402
$1,137
Molgado, Concepcion
84/4 $239.79 4.2 $1,007 $735 $272
85/1 239.79 4.8 1,151 840 311
85/1 261.33 8.0 2,090 1,400 690
85/2 261.23 13.0 3,396 2,275 1,121
85/3 261.23 4.6 1,202 805 397
$2,791
Molgado, Ramon
84/4 $398.95 4.2 $1,676 $735 $941
85/1 398.95 4.8 1,915 840 1,075
85/1 434.63 8.0 3,477 1,400 2,077
85/2 434.63 13.0 5,650 2,275 3,375
85/3 434.63 6.3 1,999 805 1,194
$8,662
Molina, Franciso
84/4 $76.41 4.2 $1,161 $1,161 $0
85/1 76.41 4.8 1,327 1,327 0
85/1 301.13 8.0 2,409 2,409 0
85/2 301.13 13.0 3,915 3,915 0
85/3 301.13 4.6 1,365 1,385 0
$0
Moreira, Juan
84/4 $338.25 4.2 $1,421 $1,421 $0
85/1 338.25 4.8 1,624 1,624 0
85/1 368.50 8.0 2,948 2,058 890
85/2 368.50 13.0 4,791 2,275 2,516
85/3 368.50 4.6 1,695 805 890
$4,296
Ochoa, Carlos
84/4 $487.39 4.2 $2,047 $2,047 $0
85/1 487.39 4.8 2,339 2,339 0
85/1 530.98 8.0 4,248 3,589 659
85/2 530.98 13.0 6,903 2,275 4,628
85/3 530.98 4.6 2,523 805 1,638
$6,925
Patino, Hugo
84/4 $361.19 4.2 $1,517 $735 $782
85/1 361.19 4.8 1,734 840 894
85/1 405.34 8.0 3,243 1,400 1,843
85/2 405.34 13.0 5,269 2,275 2,994
85/3 405.34 4.6 1,865 805 1,060
$7,573
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX—Continued
Yr./Qtr. Avg. Weekly Wage Wks. Gross Backpay Net Interim Earning Net Backpay
Perez, Juan
84/4 $73.74 4.2 $1,150 $735 $415
85/1 73.74 4.8 1,314 840 474
85/1 310.81 8.0 2,386 1,400 986
85/2 310.81 13.0 3,877 2,275 1,602
85/3 310.81 4.6 1,372 805 567
$4,469
Valerezo, Sara
84/4 $314.33 4.2 $1,320 $735 $585
85/1 314.33 4.8 1,509 840 1,401
85/1 342.44 8.0 2,740 1,400 1,340
85/2 342.44 13.0 4,452 2,275 2,177
85/3 342.44 4.6 1,575 805 770
$5,541
Cruz, Tomas
84/4 $466.82 4.2 $1,961 $735 $1,226
85/1 466.82 4.8 2,241 850 1,407
85/1 508.56 8.0 4,068 1,400 2,668
85/2 508.56 13.0 6,611 2,275 4,336
85/3 508.56 4.6 2,339 805 1,534
$11,165
David, Martha
84/4 $365.96 4.2 $1,537 $735 $802
85/1 365.96 4.8 1,757 840 917
85/1 398.68 8.0 3,189 1,400 1,789
85/2 398.68 13.0 5,183 2,275 2,908
85/3 398.68 4.6 1,834 805 1,029
$7,445
Escobar, Elvia
85/4 $349.72 4.2 $1,469 $735 $734
85/1 349.72 4.8 1,679 840 839
85/1 381.00 8.0 3,048 1,400 1,648
85/2 381.00 13.0 4,953 2,275 2,678
85/3 381.00 4.6 1,753 805 948
$6,847
Flori, Edith
84/4 $283.33 4.2 $1,190 $735 $455
85/1 283.33 4.8 1,360 840 520
85/1 308.67 8.0 2,638 1,400 1,238
85/2 308.67 13.0 4,013 2,275 1738
85/3 308.67 4.6 1,420 805 615
$5,111