Lozano Enterprises

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten employees with economic reprisals or changes of work- ing conditions if the above-named Union gets into the plant. WE WILL NOT instruct employees to stay out of the Union and be neutral. WE WILL NOT promise any employee his old job back if he abandons the Union. WE WILL NOT suggest that employees circulate a loyalty pledge to the Company. WE WILL NOT circulate and obtain employee signatures on an antiunion petition. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form labor organi- zations, to join or assist Textile Workers Union of America, AFL-CIO, CLC, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer to Alton Fellers, Louis Grunder, Robert Ruiz, Daniel Rod- riguez, Victor Zmeskal, and Ramon Martinez immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed. WE WILL make whole Alton Fellers and Louis Grunder for any loss of pay suffered by them by reason of the discrimination practiced against them, in accordance with the Recommended Order of the Trial Examiner's Decision. All our employees are free to become, remain, or refrain from becoming members of the above-named labor organization. LONE STAR TEXTILES, INC., GUADALUPE VALLEY COTTON MILLS DIVISION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol 8-0611, Extension 4371, if they have any question concerning this notice or com- pliance with its provisions. Lozano Enterprises and Jose Nabor Villasenor. Case No. 21-CA 4513. April 29,1965 SUPPLEMENTAL DECISION AND ORDER On May 15, 1962, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding,' finding, among other things, that the Respondent - had unlawfully discriminated against Jose Nabor Villasenor, and ordering the Respondent to offer him immediate and full reinstatement to his former or substantially, equivalent position, and to make him whole for any loss of pay he may have suffered by reason of the discrimination against him. Thereafter, the Board's Order was enforced by the United States Court of Appeals for the Ninth Circuit? 1137 NLRB 128. 2 N.L R.B. v Lozano Enterprises, 318 F. 2d 41. 152 NLRB No. 25. LOZANO ENTERPRISES 259 Pursuant to a backpay specification and appropriate notice issued by the Regional Director for Region 21, a hearing was held on March 2, 3, and 17, 1964, before Trial Examiner Henry S. Sahm, for the pur- pose of determining the amount of backpay due the discriminatee. On January 22, 1965, the Trial Examiner issued his Backpay Deci- sion. The Respondent filed exceptions to the Backpay Decision, to- gether with a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the backpay hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Trial Examiner's Backpay Decision and the Respondent's exceptions and brief, and hereby adopts the findings,3 conclusions, and recommendations of the Trial Examiner with the following additions and modifications. Villasenor had been employed by the Respondent as a Linotype operator on a Spanish language newspaper. During the approx- imately 2-year period after he was discharged, he registered daily with his union, which was attempting to locate a job for him, and regis- tered weekly with the California Department of Employment for the 39 weeks for which he drew unemployment compensation payments. In addition, he applied for work at over 15 establishments, most of which hired Linotype operators, and requested friends and acquaint- ances to let him know of job opportunities. Although he did not limit himself to seeking jobs as a Linotype operator, but sought and accepted various jobs which were offered him, his job opportunities were limited because of his unfamiliarity with the English language. In order to increase these opportunities, Villasenor took several courses in English during the period of his unemployment, but he continued to search for employment while taking these courses. Throughout the period of his unemployment Villasenor did not refuse any job referral or job offer and, it is clear from the entire record, he at all times maintained his availability for work. Accordingly, we find, in substantial agree- ment with the Trial Examiner, that Villasenor exhibited due diligence in his efforts to obtain work.4 There is no merit in the Respondents' contention that he failed to exhibit due diligence because he failed to apply to other possible job sources a $ The parties stipulated to the amount of pay Villasenor would have received if he had not been discharged, and to the amounts of his interim earnings. * Ripley Manufacturing Company, 150 NLRB 1696; Bonnar-Vawter, Inc., 135 NLRB 1270, 1278. S See Mastro Plastics Corporation and French-American Reeds Manufacturing Co., Inc., 136 NLRB 1342, 1359. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We likewise find no merit in the Respondent's contention that deduc- tions should be made from Villasenor's backpay of-lost earnings dating- from the time that he quit his job as janitor at the Forum Cafe. As, the Trial Examiner found, Villasenor, a skilled Linotype operator with 30 years' experience, was justified in quitting a janitorial job, which- was unsuited to a person of his skill and experience, which paid less than half the weekly wages he would have been receiving from the. Respondent if he had not been discriminatorily discharged, and which clearly did not meet the "desirable new employment" standard which the Supreme Court has established in such cases.6 The Respondent also urges that the "special assistance" payments. which the Union made to Villasenor during his discharge period should be deducted from his backpay award. The Trial Examiner found,, however, as do we, that Villasenor and the Union had agreed that Villasenor would repay these funds to the Union, contingent upon his. receiving a backpay award. Moreover, there is no basis in this record- for finding that these were earnings, as there is nothing in the agree- ment or in the record to indicate that Villasenor was to perform serv- ices for these payments.? ORDER On the basis of the foregoing, the Trial Examiner's Backpay Deci- sion, and the entire record in this case, the National Labor Relations. Board hereby orders that the Respondent, Lozano Enterprises, Los. Angeles, California, its officers, agents, successors, and assigns, shall pay backpay to Jose Nabor Villasenor as set forth in the Trial Exam- iner's Backpay Decision; 8 and that the Regional Director for RegionL 21 is authorized to take appropriate steps consistent with this Supple-- mental Decision and Order, without prejudice to the conduct of addi- tional backpay proceedings. 9 Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 197-220. See also Mastro Plastics Corporation, supra, at 1352; Brotherhood of Painters, Decorators & Paperhangers etc.- (Lauren Burt, Inc.), 114 NLRB 295, 299-300, cf. Knickerbocker Plastic Co., Inc., 132 NLRB 1209, 1214. N.L.R.B. v. Southern Silk Mills, Inc., 242 F. 2d 697 (C.A. 6), cited by the Respondent, held in effect that a dischargee must, if necessary to obtain in- terim employment , accept "other available , suitable employment at a somewhat - lower- rate of pay." [Emphasis added.) There is, however, no indication in that or any other court opinion that janitorial work would be deemed to be suitable employment for- a skilled Linotype operator , or that a dischargee must accept a reduction in wages of the extent here involved. 7 See Standard Printing Company of Canton, 151 NLRB 963. 8 For the reason stated in Nassau & Suffolk Contractors' Association, Inc., 151 NLRB- 972, we direct the addition of interest at the rate of 6 percent per annum of the amount of backpay, such interest to accrue from the date of this Order. TRIAL EXAMINER'S BACKPAY DECISION This is a proceeding on a backpay specification issued by the Regional Director on December 18, 1963 , as amended on February 13, 1964, for the purpose of deter- mining the amount of backpay which will make whole the discriminatee , Villasenor,. in the manner directed by the Board on May 15, 1962, in its Decision and Order-- LOZANO ENTERPRISES 261 'herein reported in 137 NLRB 128, and enforced by a decree of the United States <Court of Appeals for the Ninth Circuit (318 F. 2d 41). In sum, the specification, as amended, computed the net backpay due to Villasenor at $11,980 90 1 The Respondent Employer claims, however, that the discriminatee is not entitled to any backpay because he failed to exercise due diligence in seeking other work during his period of unemployment but deliberately caused his gross back wages to accumulate. Moreover, argues Respondent, even if the claimant exercised due dili- gence, the moneys paid him by his union, after his discriminatory discharge, in the form of union "assistance benefits" (which he was obligated to repay) should be deducted from any backpay award as these payments constitute "interim earnings." Furthermore, argues Respondent, a deduction should be made for the period of time he was attending school to improve his knowledge of English in an effort to qualify for Linotype jobs with English language publications. Finally, alleges Respondent, Villasenor unjustifiably quit one of his interim jobs so that appropriate deductions should be made for the period of time subsequent to this event. Pursuant to notice, a hearing was held in Los Angeles, California, before Trial Examiner Henry S. Salim. Upon consideration of the pleadings, the oral argument, the brief filed by the Respondent, and the entire record in this case, and from observa- tion of the witnesses, there are made the following: FINDINGS OF FACT Introduction Villasenor, the claimant discnminatee, has been a Linotype operator for approxi- mately 30 years with Spanish language publications and printing shops He was employed by Respondent as a Linotype operator at $2 an hour from February 1960 to August 23, 1961, when he was discharged because of his efforts to organize a union at Respondent's Spanish language newspaper plant.2 Discussion A backpay order is a reparation order designed to vindicate the public policy of The statute 3 and its purpose is to "make whole" the employee for losses which he suffered as a result of the unlawful discrimination 4 The discriminatee is entitled to . a sum of money equal to that which [he] would normally have earned as wages ,luring the period from the date of his discharge to the date of . offer of reinstate- iment,... less the amount earned subsequent to discharge ... Of course, where an economic shutdown occurs, backpay does not normally accrue; 6 discriminatees who do not normally make a reasonable search for work; , and discriminatees who have withdrawn from the labor market because of disability or for other reasons, do not receive backpay for such periods of disability 8 Only actual losses of earnings must be made good. Accordingly, deductions must be made from gross backpay not only for actual interim earnings by the worker for whom backpay is claimed but also for losses which are willfully mcurred.9 It is thus required to take into account the general considerations applicable to mitigation of damages 10 1 The specification alleges $12,040 90 : the method used to compute the gross backpay and Its amount is not disputed but by evidence introduced at the hearing it is uncon- tradicted that Villasenor had interim earnings of $60 which were not included in the specification. See footnote 39, infra. 2 As be has difficulty speaking English, Villasenor testified through an interpreter 8 Nathanson (MacKenzie Coach Lines) v. N L R B., 344 U.S. 25, 27. 4 See Phelps Dodge Corp v N L.R.B , 313 U.S. 177, 197 5Pennsylvania Greyhound Lines, Inc, 1 NLRB 1, affd 303 U.S. 261: Savoy Laundry, Inc., 148 NLRB 38. 6 Central Minerals Co., 59 NLRB 757; Satchwell Electric Construction Company, Inc., 128 NLRB 1265, 1279. 4 Phelps Dodge Corp., 313 U.S. 177. 8 Columbia Pictures Corporation, 82 NLRB 568; Kopman-Woracek Shoe Mfg, Co , 66 NLRB 789, enfd. 158 F. 2d 103 (C.A. 8). As to whether conduct on picket line bars backpay, see Elmira Machine Co . 148 NLRB 1695. 9 Phelps Dodge Corp , supra, at 198 10 N.L R B. v Seven-Up Bottling Company of Miami, Inc, 344 U S. 344, 346. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The burden of proof that Villasenor did not sufficiently mitigate his losses and "facts which would negative the existence of liability or which would mitigate the liability," 11 rests on Respondent-both because it was the original wrongdoer, and because the issue is one of affirmative defense.12 The Board in New England Tank Industries, Inc., 147 NLRB 598, stated: ... while the general burden of proof is on the General Counsel to establish for each discriminate the loss of pay which has resulted from Respondent's established discriminatory conduct, i.e., the gross backpay over the backpay period, the burden of proof is on Respondent to show diminution of that amount, whether such diminution results from claimants' willful loss of earn- ings, or from the unavailability of a job at Respondent's operation or for some reason unconnected with the discrimination. "Making the workers whole for losses suffered on account of an unfair labor prac- tice is part of the vindication of the public policy which the Board enforces" 13 and a Board backpay order, the Supreme Court has stated, "should stand unless it can be shown that it is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." 14 The Supreme Court has also recog- nized that "The computation of the amount due may not be a simple matter... . Congress made the relation of remedy to policy an administrative matter, subject to limited judicial review, and chose the Board as its agent for the purpose." 15 The Supreme Court has likewise spoken with respect to the quantum of proof necessary to sustain an award of damages. The Court has held that "there is a clear distinction between the measure of proof necessary to establish the fact that [a party] had sustained some damage, and the measure of proof necessary to enable [a tribunal] to fix the amount " 16 "Certainty in the fact of damage is essential. Certainty as to the amount goes no further than to require a basis for a reasoned conclusion." "The wrongdoer is not entitled to complain that [the amount of damages] cannot be meas- ured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise." 17 In determining the amount of backpay due, approximation of the loss by reasonable methods is sufficient.18 The courts of appeals have recognized that these holdings are applicable in Na- tional Labor Relations Board backpay cases. In one case 19 where the court, after quoting from the above Supreme Court cases, stated: These principles are, of course, intended to permit a solution of the problem of amount to be made upon any range of facts, circumstances or reasonable infer- ences, which afford a rational basis for a conclusion.20 Accordingly, the Board has the power to order "such affirmative action including reinstatement of employees with or without backpay" as will effectuate the purposes of the Act,21 and it is authorized to effect "a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination." 22 11 See United States Air Conditioning Corporation, 141 NLIIB 1278, 1280 12 See 134 A.L.R. 243, 257-270; Phelps Dodge Corp. v N L R B , 313 U S. 177, 199-200; W. C. Nabors, d/b/a W. C Nabors Co. v. N L R.B., 323 F. 2d 686 (C.A. 5) ; N L R B v. Brown t Root, Inc, etc., 311 F. 2d 447, 454 (CA. 8) ; Fisher Construction Co. v. Lerche, 232 F 2d 508, 509; N.L R.B. v. J. G. Boswell Co , 136 F 2d 585, 597 (C A 9) ; Mastro Plastics, 136 NLRB 1342, 1346. Southern Silk Mills, Inc, 116 NLRB 769; Ozark Hardwood Co., 119 NLRB 1130, 1135, Williston on Contracts § 1360. w Phelps Dodge Corp. v. N.L R B., 313 U.S. 177, 197. is N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc, 344 U.S. 344, 346, 347. w Nathanson v. N.L.R.B., 344 U.S. at 29-30 16 Story Parchment Paper Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562- 563. See Merchandiser Press, Inc., 115 NLRB 1441. 17 Stoi y Pai ehment Co v. Paterson Parchment Paper Co, supra; East Texas Steel Castings Company, Inc, 116 NLRB 1336 w Flora Construction Co., 149 NLRB 583. to See N.L.R B. v. Kartarik, 227 F. 2d 190, 192-193 (C.A. 8). 20 See also Marlin-Rockwell Corporation v N L R.B , 133 F. 2d 258, 260-261 (C A 2) ; N.L.R.B. v F. W. Woolworth Company, 121 F. 2d 658, 663 (CA 2) ; N.L.R.B v. Deena Artware, Inc., 228 F. 2d 871 (C.A. 6) ; N L.R B V. Cashman Auto Company, at al, 223 F. 2d 832, 836 (C.A. 1). 2L Section 10(c) of the Act. 22 Phelps Dodge Corp v . N.L R.B., 313 U. S. 177, 194. LOZANO ENTERPRISES 263 Thus, in fashioning any remedy, it is necessary that the nature of the unfair labor practice be looked to and the facts upon which it is premised. Conclusions In applying these principles to the facts in this proceeding, it is concluded and found that Villasenor made diligent and reasonable efforts to secure interim work after his illegal discharge by the Respondent. This is shown by his testimony which evidenced his repeated efforts in making approximately 24 job applications in seek- ing work, naming places and dates of employment applications as nearly as possible. Furthermore, when it is considered that his unfamiliarity with the English language limited him to Spanish language printing and publishing establishments, which num- bered approximately 23 in the Los Angeles area, it is clear that Villasenor engaged in a diligent search for work, particularly when it is borne in mind that Villasenor testified on cross-examination that he was told by a linotypist in the Sierra Printery named Morua, about September 1962, that he (Villasenor) was blacklisted by all Spanish language printing and publishing establishments due to his having filed a charge with the Board against the Respondent. It is not too unreasonable to accept this as true, as the Respondent made no attempt to call Morua as a witness or to refute this testimony.23 The testimony of Antonio Mendez and Antonio Medrano, who have been employed by Respondent for 25 and 36 years respectively, that Villasenor told them on sepa- rate occasions he was not interested in obtaining work because his employment and union benefits were so excellent, is not credited. Moreover, this inconclusive testi- mony is belied by the fact that Mendez acknowledged that in attempting to find work for Villasenor that the latter followed through on the job leads that he gave to Villa- senor. Furthermore, the trier of these facts subscribes to the credibility findings of the Trial Examiner in the complaint case (137 NLRB 128, 130) that Villasenor "testified with every appearance of frankness, fairness, and accuracy." Accordingly, Villasenor's denial of Mendez and Mendrano's testimony that he told them he was not interested in obtaining work because of the substantial union and unemployment benefits he was receiving while unemployed is credited. Moreover, in appraising the diligence of an employee's efforts to obtain employ- ment there is, of course, no requirement that the wrongfully discharged employee's search meet with "success: it only requires an honest good faith effort." 24 What constitutes such a good faith effort is "impossible to define sharply" 25 as the answer necessarily depends upon the entire circumstances of each particular case.26 In broad terms, however, it is generally agreed that a good-faith effort is best manifested, not by a "mechanical application of the number or kind of applications for work which have been made but by the sincerity and reasonableness of an individual in his circumstances to relieve his unemployment." [Emphasis supplied.] 27 It requires conduct consistent with an inclination to work and to be self-supporting, the economic climate in which the individual operates, his skill and qualifications, or lack, his age, and his personal limitations and handicaps. It is in the context of the foregoing that it is determined in each case whether the discriminatee made a sincere and reasonable effort to mitigate the loss of earnings flowing from his discriminatory discharge. The additional attendant circumstances, in appraising his diligence to obtain employ- ment, are Villasenor regularly, after his discharge, reporting daily to the offices of his union and registering with the Federal and State employment agencies in his efforts to seek work.28 Not content with seeking work through his union and regis- 22 Halliday v. U S., 315 U S 94, 99 ; Interstate Circuit v. U.S , 306 U S. 208, 225 ; Wallick and Schwalm Company, et al. V. NL.R.B., 198 F. 2d 477, 483 (C.A. 3) ; Concord Supplies & Equipment Corp., 110 NLRB 1873, 1879. 24 N L R.B v Cashman Auto Company, supra 25 Cuidice v. Board of Review, 14 N.J. Super. 335, 82 A. 2d 206, 207. 29 See Mooresville Cotton Mills V. N.L.R B , 110 F. 2d 179, 181 (C.A. 4) ; Uivlted Protec- tive Workers v. Ford Motor Co., 223 F 2d 49, 52 (CA. 7). For general discussion, see Williston on Contracts, § 1359 (rev ed. '1937) ; 56 C.J.S. Master & Servants, § 59(b). 21 Nelson v. Van Horn Constr. Co , 102 N.E. 2d 57, 59 (Ohio), and authorities there cited, of Mastro Plastics Corp. 136 NLRB 1342, 1359. 28 See Harvest Queen Mill & Elevator Company, 90 NLRB 320, which held that regis- tration with the United States Employment Service is conclusive proof of a reasonable search. Accord: The Ohio Public Service Company, 52 NLRB 725, enfd. 144 F. 2d 252 (C.A. 6). 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tering at the State and Federal unemployment agencies, Villasenor attempted to find work through his own efforts. Thus, he sought out friends to ask their help; he "walked the streets" to find work, and even though he was a skilled Spanish language linotypist with 30 years' experience, he looked for employment from nonprinting sources and accepted such menial work as janitor and dishwasher at much lower pay. He continued to report daily at the union offices, where he was referred to the Pacific Press, Fashion Printery, and Hearst Publishing Company by his union but due to the language barrier was unqualified to perform Linotype work on an English language newspaper.29 Notwithstanding these determined efforts to find work, Villa- senor was unsuccessful in obtaining work on a Spanish language publication or printery in the Los Angeles area. Confronted with these extenuating circumstances, he applied for work at a used-car lot, at a photographer's studio, tanning plant, res- taurant, metal factory, and worked as a bus boy, janitor, and dishwasher in addition to three temporary printing jobs of short duration.30 In sum, the above chronological recital of Villasenor's efforts to find work demon- strates that he engaged in a continuous effort over a 2-year period of time to find work in order to support himself and his family, and he also attempted to broaden his employment opportunities by taking correspondence courses and attending school to learn English.31 Whatever work he did locate, he took no matter how temporary, arduous, or unpleasant. He sought work through his Union, the appropriate State and Federal governmental agencies, and by his own efforts. And then too, as men- tioned above, there is testimony that due to his efforts in attempting to organize a union at the Respondent's newspaper, he was thwarted, after his discharge, in seek- ing work because of his union activities by being blacklisted by Spanish language publications and printshops in the Los Angeles area. Under these circumstances, it is concluded and found by substantial evidence on the whole record that Villasenor engaged in a diligent and continuous effort to find gainful employment and that Respondent has not established by credible evidence that Villasenor failed to make a reasonable search for work or incurred a willful loss of earnings.32 Respondent also contends that even if Villasenor exercised due diligence, there should be deducted from his backpay award the Union's "relief assistance," 33 the time he spent in school,34 and the "unjustified" quitting of his janitor's job at the Forum Cafeteria. The Respondent has cited no relevant authority for these proposi- tions nor has research disclosed any precedent which supports these arguments. Respondent's contention that the amount of money he could have earned as a jani- tor at the Forum Cafeteria had he not quit this job apparently is based on the premise that the claimant did not sufficiently mitigate his losses, which is contrary to the finding made above that Villasenor engaged in a diligent and continuous overall effort to do all that was required by the law., Moreover, the effect of Respondent's contention, if it is understood correctly, is that if a discriminatee seeks interim employment and is successful, he thereby cuts himself off from any further backpay in the event that such employment terminates and, therefore, he is left without remedy because he had chosen to mitigate damages. It is inconceivable that the 29 The money paid Villasenor by his Union (which he was obligated to repay), was considerable ($6,343.67), so that it was not only anxious to have this repaid soon but it was also to the Union's advantage to see that he made diligent efforts to obtain work in order that it could cease paying him union assistance benefits as soon as possible In implementing this policy, the Union required Villasenor to report daily to its office and sign a register in order to check effectively on whether he was actively seeking work and also to refer him to jobs. s° He earned in the aggregate $162 64 at these three printing jobs n Villasenor remained from Monday to Friday, inclusive, during his 2 years of un- employment in the Los Angeles area, except weekends, when he left to visit his wife and children in Mexico. sa See, e.g., Brown and Root, Inc., et at., 132 NLRB 486; W. C. Nabors Company, d/b/a W. C. Nabors, 134 NLRB 1078 ; Bonnar-l7awter, Inc, 135 NLRB 1270, M. J. McCarthy Motor Sales Co , 147 NLRB 605 33 After his discriminatory discharge, the Union agreed to pay Villasenor such financial assistance as would supplement any unemployment benefits to which he was entitled up to an amount of 60 percent of what he had been earning as a Linotype operator until such time as his backpay case was determined, provided, however, that he would reim- burse the Union from whatever moneys were recovered from the Respondent See Respondent's Exhibit No. 6. "It is uncontroverted that during the time he attended school a "few hours" a day that he continued to look for work. LOCAL 4, INT'L BROTHERHOOD OF TEAMSTERS, ETC 265 Board would place a discriminatee on the horns of such a dilemma and thereby defeat the public purpose of remedying discriminatory discharges . Such an interpre- tation or limitation upon the Board 's ability to grant backpay would be incongruous and would fall far short of effectuating the policies of the Act.35 Then, too, the Board has held that the quitting of an interim job for a good personal reason does not mitigate against the eligibility of a discriminatee for backpay.36 For Villasenor, a skilled Linotype operator, to be tied down to a menial job at the Forum Cafeteria at $1 an hour and thus greatly impinge on his efforts and the time available to him to find employment at his trade would appear to be a good personal reason to quit in order to devote all of his time to obtaining a job as a Linotype operator .37 Con- sequently, in leaving the Forum job, Villasenor did not incur a willful loss of earn- ings. It is not believed that a discriminatee is required to continue working at such a job under the conditions here delineated in order to avoid a finding of willful loss of earnings .38 Then, too, there has been no evidence offered to show that Villasenor ever refused a specific offer of new employment. It is not believed that wholly apart from the fact that Villasenor acted reasonably and with due diligence in mitigating the financial impact of Respondent 's unfair labor practices, he was, under penalty of willful loss , obligated, as a matter of law, to assume the onerous duties that Respondent would have thrust upon him . Villasenor is not a culprit and it is he, not Respondent, whose rights the Board and the court of appeals have found to be violated ; and while Villasenor has an obligation to exercise due diligence in mitigating Respondent 's backpay liability, the Act cannot be administered so as to permit a lawbreaker, himself, to assure the benefits of his unlawfulness , and this would be the effect were some of Respondent's contentions in that respect to be accepted. The law does not require this. Accordingly, it is concluded and found that Respondent's obligation to make whole Villasenor in the manner prescribed in the Board's decision will be satisfied by pay- ment to him of the sum of $11 ,980.90.39 The payment of interest on the net backpay will not be recommended as it was not required by the Board's original Order which was enforced by the court.40 It is recommended that the Board adopt the foregoing findings and conclusions. 35 Cf. N.L.R.B. v. Cashman Auto Company, at al., 223 F. 2d 83 (C.A. 1), enfg. 109 NLRB 720. See also Efco Manufacturing Inc., 111 NLRB 1032 ; Brotherhood of Painters, Decorators & Paperhangers, etc. (Lauren Burt, Inc.), etc., 114 NLRB 295; Southern Silk Mills, Inc., supra ; East Texas Steel Castings Co., 116 NLRB 1336, 1347-1348 , enfd. 255 F. 2d 284 ( C.A. 5) (welder's acceptance of lower paying job as cabdriver). 36 See East Texas Steel Castings Company, Inc ., supra, at 1347-1348. 87 See Harvest Queen Mill and Elevator Co., supra, with respect to a backpay claimant giving up desirable new employment which Villasenor 's janitor' s job at the Forum Cafeteria was not. as Ozark Hardwood Company, 119 NLRB 1130 , enfd. 282 F. 2d 1 (C.A. 8). 89 The specification alleges $12 ,0'40.90 ; this does not include the claimant 's uncon- tradicted interim earnings of $60 while employed by the Del Moral Printery in the third quarter of 1961 . It is understood, of course, that the obligation to make Villasenor whole shall accrue until the date of a proper order of reinstatement . A.P.W. Products Co., Inc., 137 NLRB 25. so Mooney Aircraft, Inc., 148 NLRB 1057; Ellis and Watts Products, Inc., 143 NLRB 1269, and cases cited therein ; General Engineering, Inc., and Harvey Aluminum, 147 NLRB 936. Local 4, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and P. Ballantine & Sons. Case No. 22-CD-105. April 29, 1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by P. Ballantine & Sons, herein called the Employer, alleging that Local 4, Interna- 152 NLRB No. 28.