J. H. Rutter-Rex Manufacturing Co., Inc.

J. H. RUTTER-REX MANUFACTURING COMPANY 19 J. H. Rutter-Rex Manufacturing Company, Inc. and Amalgamated Clothing Workers of America, AFL-CIO. Cases 15-CA-721 and 15-CA-723 November 5, 1971 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 13, 1956, the National Labor Rela- tions Board issued a Decision and Order in the above- entitled proceeding' in which it found that Respon- dent had violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. The Board's Order directed Respondent, inter alia, to offer to the unfair labor practice strikers who made unconditional requests for reinstatement immediate and full reinstatement to their former or substantially equivalent positions, and to make them whole for loss of pay resulting from the failure to reinstate them on request. Thereafter, the Board's Order was enforced in full by the United States Court of Appeals for the Fifth Circuit, including its reinstatement and backpay provisions.2 Pursuant to a backpay specification and appropri- ate notice issued by the Regional Director for Region 15, a hearing was held before Trial Examiner Owsley Vose for the purpose of determining the amounts of backpay due the discriminatees. On June 6, 1966, the Board issued a Supplemental Decision and Order3 in which it ordered Respondent to pay to certain enumerated discriminatees backpay in the amounts found by Trial Examiner Vose, as modified by the Board. The Board found, inter alia, that, with respect to those employees whose backpay was still accruing, payment to them of the net amount found to be due and accruing constituted satisfaction of Respondent's obligation only up to June 24, 1961, the terminal date of the backpay specification. Thereafter, the United States Court of Appeals for the Fifth Circuit granted in part and denied in part the Board's cross-petition for enforcement of its Supple- mental Decision and Order.4 The court found that the Board had been guilty of "inordinate" delay in issuing the backpay specification and it modified the Board's Order to eliminate all backpay accruing after July 1, 1959. On writ of certiorari to the Fifth Circuit Court of Appeals, the United States Supreme Court reversed the circuit court's judgment.5 On April 6, 1970, the circuit court issued its supplemental judgment enforc- ing the Board's Supplemental Decision and Order. Pursuant to a supplemental backpay specification and appropriate notice issued by the Regional Director for Region 15 on November 30, 1970, a hearing was held before Trial Examiner Lowell Goerlich for the purpose of determining the amounts of backpay due the 33 discriminatees whose backpay continued to accrue beyond June 24, 1961, the end of the period covered by the initial backpay specifica- tion. On June 23, 1971, the Trial Examiner issued his Decision in Backpay Proceedings, which is attached hereto, in which he awarded specific amounts of backpay to the 33 discriminatees. Thereafter, Respon- dent filed exceptions to the Trial Examiner's Decision in Backpay Proceedings and a supporting brief. The General Counsel filed exceptions to parts of the Decision, a supporting brief, and a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. During the hearing Respondent served a subpoena duces tecum on the Regional Director for Region 15 requiring him to produce "each and every statement, written and/or recorded and memoranda made by or as a result of interview or contact with any person, including backpay claim- ants, which pertains to employment, search for employment, interim earnings, availability for em- ployment and/or any other matter affecting any backpay claimant for the periods January 1, 1961 through December 31 of the year in which each individual claim terminates." Pursuant to National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, Sections 102.117 and 102.118, Respondent sought the General Counsel's permission for the Regional Director for Region 15 to comply with the subpena. Thereafter, the General Counsel denied Respondent's request on the ground that "the information sought is in the nature of pretrial discovery which is not available in unfair labor practice hearings" and it "is in the nature of investigatory materials compiled for law enforcement, and is of a privileged or confidential nature," falling within the exemptions of 5 U.S.C. Section 552(b). Thereafter, Respondent served a subpoena duces tecum on Thomas D. Johnston, counsel for the General Counsel in the instant proceeding, requiring him to produce the identical material previously sought from the Regional Director. Counsel for the 1 1 I5 NLRB 388. 4 399 F.2d 356 2 245 F.2d 594 5 396 U 5.258. 3 158 NLRB 1414. 194 NLRB No. 6 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel then filed a petition to revoke subpoena duces tecum with the Trial Examiner contending, inter alia, that, as noted above, the General Counsel had refused to release the same information pursuant to the subpena directed against the Regional Director; that in the instant situation Respondent had not requested the General Counsel's permission to allow Counsel Johnston to comply with the subpena; that the material sought by Respondent constituted the Board agents' "work product" and thus need not be produced; that the subpena did not describe with sufficient particularity the evidence sought; and, in any event, that all witnesses' state- ments, as defined in Rules and Regulations Section 102.118(d), would be made available for purposes of cross-examination pursuant to Section 102.118(b)(1). In opposing the General Counsel's petition to revoke, Respondent argued to the Trial Examiner, as it did in its brief in support of,exceptions before the Board, that, in view of the protracted nature of the proceeding and Respondent's inability therefore to obtain evidence needed to formulate its defense, the General Counsel should be required to produce the data upon which he based the supplemental backpay specification. The Trial Examiner concluded that, since the General Counsel had called the compliance officer who prepared the supplemental backpay specifica- tion, and he had as a witness testified how each discriminatee's backpay claim was determined, the General Counsel had "waived the privilege against disclosure and has imphedly given his consent, disclosing to the Respondent all files, documents, reports and memoranda and other records which were utilized by Mr. Norton [the compliance officer] in framing his testimony as well as framing the specifica- tions. In the Trial Examiner's opinion, therefore, the Respondent is entitled to any files, documents or memoranda or records of the Board which touch upon the testimony or are relevant to the testimony of Mr. Norton or to the specifications as filed in this proceeding. Consequently, the Trial Examiner over- rules the motion to revoke the subpoena." Thereafter, the General Counsel filed a request for special permission to appeal the Trial Examiner's ruling to the Board contending that the Trial Examiner cited no precedent for his ruling, that Respondent had not secured permission for release of said documents, and, moreover, that the Compliance Officer only testified to matters contained in the supplemental backpay specification and did not physically refer to documents, memoranda, notes, etc., in the files while testifying except those already in Respondent's possession. By telegraphic order dated March 25, 1971, the Board granted, the General Counsel's request for special permission to appeal the Trial Examiner's ruling denying the petition to revoke subpena. The Board then reversed the Trial Examiner's ruling, stating that it was too broad with respect to matter required to be produced. In the interim, on March 24,197 1, Respondent filed a motion to dismiss the supplemental backpay specification on the ground that the General Counsel had refused to comply with the Trial Examiner's ruling to produce the subpenaed documents. Respon- dent contended that the evidence sought was neces- sary and material to the defense of the claims alleged in the supplemental backpay specification and that the refusal of the General Counsel to comply with the Trial Examiner's ruling substantially prejudiced Respondent. Upon receiving the Board's telegraphic order reversing the Trial Examiner's ruling, the Trial Examiner denied Respondent's motion to dismiss. We agree with that ruling. Moreover, we note that in all other respects the General Counsel complied with applicable Board evidentiary rules. Thus, where affidavits of witnesses called by the General Counsel existed, the General Counsel made them available to Respondent's counsel. In a few instances, memoranda of conversations between Board agents and discrimi- natees were also turned over to Respondent. In keeping with the Board practice, Respondent received copies of all official social security documents pertaining to the discriminatees . Finally, except for,' discriminatee Denley, whom Respondent had an opportunity to call, the General Counsel called all the discriminatees involved herein so Respondent's coun- sel could engage in cross-examination. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire'' record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following minor modifica- tions. We adopt the Trial Examiner's findings and determinations of backpay due the following discri- minatees except where modified herein: Victoria Allen $2,543 Sonora Barnes (Rochon) 340 Doris E. Bowles 812 Marguerite Bozonier 1,601 Miriam Cheri 530 Bessie Cooper (Lee) 1,591 Georgiana Davis (Deruisa) 2,252 Lenora Davis 6 236 6 In the amended supplemental backpay specification Lenora Davis ' Examiner inadvertently failed to note this change . The award as stated claimed gross backpay was reduced from $293 to $236 but the Trial reflects this correction J. H. RUTTER-REX MANUFACTURING COMPANY 21 Alice T. Denley (Gabriel) 21 Gloria Dixon 191 Minnie M. Fernandez 2,185 Ethel Mae Foreman (Askin) 1,414 Edna Francis 1,161 Jimmie Lou Green 3,536 Gustavia Haynes (Gale) 4,530 Victoria Henderson 7 2,121 Rose Marie Hicks 1,778 Louise Jackson (deceased) 1,286 Eunice Johnson8 2,772 Lila Mae Landry (Coston) 192 Dorothy White (Learson) 1,591 Leonard Lewis 386 Bessie Montgomery 393 Adele Nash9 (Hall) 1,532 Desideria O'Campo 766 Yvonne Parnell (Charles) 1,367 Dorothy K. Reed 962 Adele L. Robertson 1,181 Rosalie Thornton 807 Marjorie Walker 351 Alma Wallace 52 Fannie M. Watford 10 9,592 Beatrice White (Lane) 3,007 ORDER On the basis of the foregoing Second Supplemental Decision and Order and the entire record in this proceeding, the National Labor Relations Board hereby orders that Respondent, J. H. Rutter-Rex Manufacturing Company, Inc., New Orleans, Louisi- ana, its officers, agents, successors, and assigns, shall pay to the employees involved in this proceeding as net backpay the amounts awarded to them in this Second Supplemental Decision and Order with interest. It is further ordered in view of the death of Louise Jackson that Respondent pay to Jackson's estate or any person or persons as their interests may appear the backpay due and owing on behalf of Jackson, including interest, 7In the amended supplemental backpay specification Victoria Henderson's claimed gross backpay was likewise reduced from $2,163 to $2,161 which, less found additional interim earnings of $40, results in net backpay of $2,121. The award as stated reflects this correction. a In the supplemental backpay specification Eunice Johnson's alleged backpay was $2,772 but in his brief the General Counsel erroneously asserted that backpay due Johnson amounted to $2,272 The Trial Examiner apparently relied on the General Counsel's inadvertent error. The award as stated reflects this correction. 9 The Trial Examiner found that Adele Nash (Hall) was due $1,533, as stated in the General Counsel's brief In fact, the supplemental backpay specification alleges that Nash is due $1,532 and the award as stated reflects this correction. 10 In the amended supplemental backpay specification Fannie M. Watford's claimed gross backpay was reduced from $10,057 to $9,692 but the Trial Examiner apparently overlooked this amendment in awarding Watford $9,957 backpay The award as stated ieflects this correction, less $100 found additional interim earnings We agree with the Trial Examiner that Watford is entitled to backpay during the period she engaged in a strike against her interim employer, Louisiana Garment. As found by the Trial Examiner, she incurred no willful loss of earnings in looking for work. She sought and for a brief time obtained work during the strike period for which interim earnings amounting to $100 have been deducted from her gross backpay. The evidence indicates that she would have been receptive to an offer to return to work from the Respondent during the Louisiana Garment strike, no such offer was forthcoming. In these circumstances, we will not penalize Watford by disallowing her backpay for the period of that strike. W. C. Nabors Company, 134 NLRB 1078, 1096. To hold otherwise would be to compel a discriminatee in situations similar to Watford's to forgo the legitimate exercise of Section 7 rights against his interim employer in order to reduce the backpay liability of the employer who discriminatorily discharged him. TRIAL EXAMINER'S DECISION IN BACKPAY PROCEEDINGS History of Proceedings LowELL GOERLICH, Trial Examiner: On February 13, 1956, the National Labor Relations Board, herein referred to as the Board, issued a Decision and Order 1 in the within captioned cases directing Respondent, J. H. Rutter-Rex Manufacturing Company, Inc., inter alia, upon application, to offer to all those employees who went on strike on April 21, 1954, or thereafter immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, dismissing if necessary all persons hired on or after that date, and make such applicants whole for any loss of pay by reason of the Respondent's refusal, if any, to reinstate them by the payment to each of them of a sum of money equal to that which he would normally have earned, less his net earnings during the period from 5 days after the date on which he applied for reinstatement to the date of the Company's offer of reinstatement, to be computed on a quarterly basis. Thereafter on June 10, 1957, the Court of Appeals for the Fifth Circuit issued its decision granting enforcement of the Board's Order.2 The court entered its decree of enforcement on August 19, 1957. On November 16, 1961, the Regional Director for Region 15 of the National Labor Relations Board issued the initial backpay specification in this matter. On January 23, 1963, Tnal Examiner Vose issued his Preliminary Intermediate Report and Order in Backpay Proceeding in which he approved the method of computing backpay set forth in the specification but provided that such computation in regard to group 5 employees should be subject to a 6 percent reduction which he found necessary in order fully to reflect the number of absences characteristic of a typical employee. Thereafter, on various dates between February 12, 1963, and September 30, 1963, hearings were held on the 1 J. H Rutter-Rex Manufacturing Company, Inc., 115 NLRB 388. 2 N.L.R B v J H Rutter-Rex Manufacturing Company, Inc., 245 F.2d 594. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issues raised by the Backpay Specification and the Respondent's amended answer. On June 2, 1964, the Trial Examiner issued his Supplemental Decision in Backpay Proceedings in which he ordered specific amounts of backpay to approximately 172 claimants and denied backpay to approximately 35 others while providing for 6 percent interest on the backpay due for each quarter commencing from the date of his Decision. On June 30, 1966, the Board issued its Supplemental Decision and Order.3 On July 23, 1968, the United States Court of Appeals for the Fifth Circuit handed down its opinion granting in part and denying in part the cross- petition for enforcement of the Board's Supplemental Decision and Order.4 On March 3, 1969, the Supreme Court of the United States granted the Board's petition for a writ of certiorari and on December 15, 1969, the Supreme Court handed down its opinion reversing the judgment of the United States Court of Appeals for the Fifth Circuit .5 On remand the United States Court of Appeals for the Fifth Circuit issued on April 6, 1970, its Supplemental Judgment Enforcing the Supplemental Backpay Order of the Board dated June 3, 1966, except as to certain individuals, none of whom are included in the Supplemen- tal Backpay Specification which is the subject of this proceeding.6 A controversy having arisen over the amount of backpay due under the terms of the Board's Supplemental Decision and Order as enforced by a United States Court of Appeals for the Fifth Circuit, the Regional Director of the National Labor Relations Board for Region 15, pursuant to authority duly conferred upon him by the Board, issued a Supplemental Backpay Specification on November 30, 1970, in which it was alleged the amount of backpay which the Regional Director claimed was due under the Board's Supplemental Order as enforced by the court. On February 16, 17, 18, and 19 and March 22, 23, 24, and 25, 1971, this proceeding came on for hearing on the Supplemental Backpay Specification, amendments thereto, and on the Respondent's answer. Each party was afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs in total, 122 pages, have been carefully considered by the Trial-Examiner. Upon consideration of the Supplemental Backpay Specification, the amendments thereto, the Respondent's answer, the evidence adduced at the hearing, the record as a whole, and the posthearing briefs of the parties and in view of the Trial Examiner's observation of the demeanor of the witnesses, the Trial Examiner makes the following findings of fact, conclusions of law, and reasons therefor. 3 158 NLRB 1414, directing, inter a&c, that the Respondent pay to the employees involved in the backpay proceeding the net Backpay amount including interest from the date of the Trial Examiner's Supplemental Decision but mmus the tax withholding required by the Federal and state laws as set forth opposite their names in the Appendix to the Trial Examiner's Supplemental Decision except for certain individuals named in the Supplemental Decision and Order who were to be paid the amount set forth by the Board. Additionally, the Board held: "With respect to those employees whose backpay was still accruing, as found by the Trial Examiner in his Supplemental Decision , payment to them of a net amount found to be due and accruing constitute the satisfaction of Respondent's First: In the Supplemental Backpay Specification, as amended, hereafter referred to as the Specification, the General Counsel seeks backpay for 32 black female claimants and 1 black male claimant covering the period from July 1, 1961,7 until each claimant was offered reinstatement. With the exception of Louise Jackson, now deceased, and Alice Denley (Gabriel) who presently resides in the State of California and whose claim amounts to $21, all the claimants were produced for testimony by the General Counsel and were cross-examined by Respon- dent's counsel. Gross backpay claims for all of the claimants, with the exception of Leonard Lewis, were based on a formula which utilized the average quarterly earnings of 15 employees in a control group, excluding those quarters where their earnings were less than $100 or less than 60 percent of the average of their three previous quarter earnings. These quarters were excluded because they were not representative. The 15 employees in the control group were among those employees in the control group used in the initial backpay proceeding and were still employed by the Respondent throughout the backpay period in the instant case. This group was selected because they were female production workers and had been treated in a similar manner in the initial backpay proceeding for determining gross backpay. With respect to the remaining claimant, Leonard Lewis, a different formula was used because of the nature of his work and the limited backpay period. Lewis' gross backpay was computed by taking the gross earnings of another employee, Isaac Williams, who performed similar work and who was one of the control group used in computing Lewis' backpay in the initial backpay proceeding, and comparing his earnings in the last quarter set forth in the initial backpay specification with the amount of earnings which Trial Examiner Vose found Lewis was entitled to for that quarter and then applying percentage ratio between the earnings of Williams and Lewis for that quarter with Williams' earnings for the quarter claimed in the instant case, thereby determining Lewis' gross backpay. The gross earnings of the control group employees were computed from July 1, 1961, through the period the claimants were entitled to backpay in the instant case. The average quarterly earnings for the control group employees were reduced by 6 percent to compensate for normal absenteeism of employees; such a reduction had been provided for by Trial Examiner Vose in the initial backpay proceeding. The earnings of the control group employees were taken from their social security earnings records. The figures set forth in the Specification for the quarter 1970-72 are projected earnings based on the previous obligation only up to June 24, 1961, which is the end of the period covered by this specification." 4 J. H. Rutter-Rex Manufacturing Company, Inc. v. N.LR.B., 399 F.2d 356 (CA. 5). 5 N.L.R.B. v. J. H. Rutter-Rex Manufacturing Company, Inc., 396 U.S. 258. 6 J. H. Rutter-Rex Manufacturing Company, Inc. v. N. L. R. B., 434 F 2d 1318. 4 The Specification in the initial backpay proceeding ended with the date of June 24, 1961. J. H. RUTTER-REX MANUFACTURING COMPANY 23 quarter earnings because social security records for that period were unavailable at the time the Specification was prepared. The interim earnings of the claimants reflected in the Specification were based on information taken from their social security earnings records for those earnings reported to the Social Security Administration and from information obtained from each claimant for any earnings not reported on their social security earnings records. However, the majority of the interim earnings were reflected on the Social Security 4180 Forms, copies of which were furnished to Respondent. The exceptions of those earnings not reported on the social security earnings records, primarily related to domestic work and, in one instance involving Georgiana Davis (Deruisa), related to earnings derived from part-time work at two different restaurants. Only one employee, Adele Robertson, claimed expenses in connection with her search for work, which expenses were deducted from her interim earnings during that particular quarter. This involved a $33 train fare from New Orleans to Chicago, where she subsequently obtained employment. No claims in the Specification were made for those quarters in which net interim earnings exceeded gross backpay or for quarters or portions of quarters where the claimant was out of the labor market because of illness, maternity or personal reasons, inadequate search for work, or where backpay was tolled during the quarter. The net interim earnings set out in the Specification were those earnings of the claimants earned during the quarters or portions of the quarters claimed, less expenses incurred in seeking work. The net backpay of each claimant set forth in the Specification was determined by reducing the gross backpay by the net interim earnings of each claimant for each quarter or portions of each quarter claimed and by adding the quarters together, giving the total amount of backpay due each claimant, not including interest. Recovery was sought for the net backpay of each claimant as well as interest in the amount of 6 percent to be computed on the basis of Isis Plumbing & Heating Co., 138 NLRB 716. Joseph G. Norton, the compliance officer of the Board who had drawn the Specification, explained the formula, its application, and the computations contained in the Specification. His testimony was clear, forthright, and honest and the Trial Examiner was impressed that he was an ingenuous person, knew his business, and had drawn the Specification with great care and caution. Indeed the Trial Examiner is convinced that the testimony of Norton as well as the Specification reveal that doubts were resolved in favor of the Respondent. There is no question in the Trial Examiner's mind that the Specification is fairly drawn. 8 In comparing the General Counsel's formula to the Respondent's proposed formula, in support of which no evidence was adduced, counsel for Respondent said, There are some differences to a greater or lesser extent in individual cases but, in general, the overall -result was substantially the same . We don't intend to waive any contention that the method adopted by the Board as compared to a realistic departmental method, was designed to achieve the highest backpay result and, as best we can determine, it was purely coincidental that the figures end up as they have and we emphasize, we did not discover this until after the answer Furthermore, the Respondent, for all practical purposes, conceded the correctness of the gross backpay figures" contained in the Specification. The Trial Examiner finds that the formula employed by the General Counsel was fair and reasonable and that the General Counsel established a prima facie case for the amounts sought in the Specification. Second: The Respondent contends that the supplemental backpay claims should be dismissed because of the unjustified delay of the Board in filing the Supplemental Backpay Specification and because of the General Counsel's refusal to produce evidence. As to the latter contention, the Board has answered it adversely to the Respondent in the Respondent's direct appeal to the Board. As to the former contention, the Supreme Court in the above-captioned Rutter-Rex case at 396 U.S. 258 has answered it adversely to the Respondent. The defense, of course, would not lie, in the cases of claimants Green, Haynes, Hicks, or Lewis, who by reason of alleged strike misconduct were not offered employment until 1970, and claimants Davis and Watford, who also were not offered employment until 1970. While the Supreme Court thought it "deplorable" if the Respondent were hampered in the presentation of its defenses to the Backpay Specification by delay, it held that it was "even more deplorable" that innocent employees had to live for some years on reduced incomes as a combined result of the delay and the Respondent's illegal failure to reinstate them. Of the Respondent, the United States Court of Appeals for the Fifth Circuit has said (399 F.2d 356) (after referring to the Respondent's confrontations with the Board): It convinces us, of course, that Rutter-Rex is not, and has not been, a babe in the woods, now about to be victimized for ignorance or inadvertent ineptitude in the field of employer-employee relations, as regulated by the National Labor Relations Act. The court also said: The Company, experienced in labor disputes and represented by outstanding counsel, could not have possibly overlooked the plain command of the Court's decree that employees should be reinstated upon application and made whole for any loss of pay they might have suffered by refusal to reinstate.9 The Trial Examiner also found Respondent's counsel to be outstanding and surely capable of comprehending a long time ago Justice Marshall's suggestion that "[i ]t may be that the company could have, through the courts, compelled earlier Board action." Justice Marshall was referring to Section 10(e)(A) of the Administrative Procedure Act, 5 U.S.C. 1009(e)(A) (1964), which provides that courts shall "compel agency action unlawfully withheld or unreason- ably delayed." That learned Counsel did not try this was filed but we think the legal issue is framed and we just don't choose to litigate all these details of actual gross dollar amounts. Not net but gross dollar amounts which are similar in our computation and the Board's computation because we think that on balance that will achieve little.... So, we stick to our contentions about the formula but in saying this we understand you will, in all probability, adopt those gross figures. 9 It is the latter part of this decree which the Respondent seeks now to avoid. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD procedure, if the Respondent were apprehensive of delay, seems to indicate that the Respondent accepted the delay and pursued a course which was best fitted to its antiunion needs. In any event, any discouragement of its employees' union activities which was caused by its withholding backpay payments for such a long period mitigated to the advantage of the Respondent, and its employees were left to wonder for many years whether their employer was obligated to fully comply with the Act and whether the Act really afforded them protection in the pursuit of their union activities. For the employees such a state was "even more deplorable." In light of the Supreme Court's decision, with which the Trial Examiner is wholly in accord, the Trial Examiner finds that the Respondent's contention as set out above is without merit. Under the circumstances of this case fair play does not demand that the remedial policies of the Act be so lightly treated as to exonerate a convicted wrongdoer of the consequences of his misconduct. As a matter of public concern, it is better that the salutary purposes of the Act be accommodated. The General Counsel's explanation for the delay is both reasonable and adequate: The Supplemental Backpay Specification in the instant case was not issued until November 30, 1970, because of the Respondent's refusal at all times to comply with either the Trial Examiner's Supplemental Decision in Backpay Proceeding or the Board's Supplemental Decision and Order in the initial Backpay Specification proceedings, whereby Respondent was required to pay certain amounts of backpay to the same claimants as in the instant proceeding and whose backpay was still occurring, until after the United States Court of Appeals for the Fifth Circuit issued its Supplemental Judgment on April 6, 1970; Respondent's failure or refusal to offer reinstatement to some of these claimants until as late as May 1970; and because of the intervening proceedings before the Board and Courts between the issuance of the initial Backpay Specifica- tion and the above-mentioned Supplemental Judgment of the Court on April 6, 1970. In addition, Respondent refused to make any of its records available for the purpose of computing the gross backpay in the Supplemental Backpay Specification, thereby causing additional time for preparation of the Supplemental Backpay Specification, as well as time spent for settlement purposes. Third: In the recent case of Fibreboard Paper Products Corporation, 180 NLRB No. 33, the Board has reviewed and io The Board cites N.L.R.B. v Mooney Aircraft, Inc., 366 F.2d 809 (C.A. 5). In such case the court commented at 812 While the General Counsel has the burden of proving unlawful discrimination on the part of the employer, and hence that backpay is due, the employer usually has the burden of establishing affirmative defenses which would mitigate his liability. N L R.B v. Miami Coca- Cola Bottling Co, supra [360 F.2d 569]; N.LR B v. Brown & Root, Inc., 8 Cir. 1963, 311 F.2d 447. Among these affirmative defenses are the unavailability of jobs because of nondiscriminatory factors, the employees' wilful loss of earnings, and employees' interim earnings to be deducted from the backpay award. • s s s t The cases are unanimous that the Employer must establish these defenses by a preponderance of the evidence. N LR.B. v Miami Coca- summarized some of the guiding principles applicable to backpay cases: "Willful loss of earnings is an affirmative defense, and the burden of proof is on the Respondent.[10] Once the General Counsel has shown the gross amount of backpay due, the burden is upon the employer to establish facts to negative or mitigate liability to a given employee.["] And finally, `any uncertainty is resolved against the wrongdoer whose conduct made certainty impossible.' " "It is accepted by the Board and reviewing courts that a discriminatee is not entitled to back pay to the extent that he fails to remain in the labor market, refuses to accept substantially equivalent employment, fails diligently to search for alternative work, or voluntarily quit alternative employment without good reason." N.L.R.B. v. Mastro Plastics Corporation, 354 F.2d 170 (C.A. 2) fn. 3. The test is whether the discriminatee has made reasona- ble efforts to find new employment which is substantially equivalent to his prior position. American Manufacturing Co., 167 NLRB 520, 525. In this respect the duty imposed on the discriminatee to minimize his loss of earnings stems from "the healthy policy of promoting production and employment." See Southern Silk Mills, Inc., 116 NLRB 769, 772. But this duty ". . . does not require success; it only requires an honest good faith effort.... " N.LR.B. v. Cashman Auto Co., 223 F.2d 832, 836 (C.A. 1). In computing the backpay awards the Board endeavors to restore the employee to the status quo he would have enjoyed if he had not been discriminatorily discharged. N.L.R.B. v. U. S. Air Conditioning Co., 336 F.2d 275, 277 (C.A. 6); N.LRB. v. Robert Haws Company, 403 F.2d 979 (C.A. 6). A discriminatee who has otherwise made reasonable efforts to seek out new employment is not required in each specific quarter to repeat job applications which from her past efforts she knows are foredoomed to futility in order to protect her claim of backpay for that particular quarter. Rather, the entire backpay period must be scrutinized to determine whether throughout that period there was, in the light of all surrounding circumstances, a reasonable continuing search such as to foreclose a finding of willful loss. [Cornwell Company, Inc., 171 NLRB No. 43.] The Respondent's affirmative defenses other than those which were purely legal were supported primarily by cross- examination of the claimants. Since these defenses must relate to the credibility of the claimants, the Trial Examiner carefully observed the demeanor of each witness as it related to the truthfulness of his or her testimony. In this Cola Bottling Co, supra, N.LR.B v. Mastro Plastics Corp., 2 Cu. 1965, 354, F.2d 170; N.LR.B. v. Brown & Root, Inc, supra The Court of Appeals for the Fifth Circuit has said in the above- captioned Rutter-Rex case (399 F.2d 356): backpay, as used in the applicable statute, includes moneys which it is reasonably found that an employee would actually have received in the absence of unlawful discrimination, that lack of available jobs is an affirmative defense, that the burden of establishing such a defense rests on the employer, and the burden likewise rests with an employer attempting to prove a former employee's failure to make reasonable search for other employment. n See also United States Air Conditioning Corporation, 141 NLRB 1278, 1280, enfd. 336 F.2d 275 (C A. 6). J. H. RUTTER-REX MANUFACTURING COMPANY 25 endeavor the Trial Examiner was aided by the searching and exacting cross-examination of counsel for the Respon- dent. Weighing all factors the Trial Examiner has concluded that none of the claimants deliberately lied for the purpose of dishonestly obtaining backpay. This conclusion is fortified by the fact that, had the claimants lied about crucial matters, the depth and artfulness of Respondent's counsel's cross-examination in most cases would have wrung the truth from these unsophisticated and unlearned witnesses. While there may have been a few taradiddles, these did not reflect adversely on the witnesses' overall credibility as to the material matters in issue. Each discriminatee's backpay claim will be examined in the light of the foregoing discussion, the whole record before the Trial Examiner, and the Respondent's affirma- tive defenses articulated in its answer and its memorandum to the Trial Examiner. Victoria Allen. Allen's backpay period extends from June 25, 1961, through May 24, 1963. During this period she worked for Schram Brothers in the second and part of the third quarters of 1962 and for Lynn Fashions, Inc., in part of the third ' and fourth quarters of 1962 until each went out of business. Prior to going to Schram Brothers she applied for work with various employers including Haspel's, B. Bennett, Famous Sternberg, Louisiana Garment, the Respondent, and others. She was also registered at the Louisiana State Employment Security Office, drawing unemployment compensation. Following her termination of employment at Lynn Fashions, Inc., she continued her search for employment. Respondent's records indicate that Allen applied for employment with the Respondent on November 23, 1962. She was not hired. Respondent maintains that Allen "was content to rely upon her drawings from the unemployment compensation bureau during periods of layoff up to the maximum amount allowable" from which the inference is suggested that she failed to search for work. As the footnote indicates 12 what she was required to do in order to remain eligible for unemployment benefits was sufficient to satisfy the requirements to qualify for backpay under the Act. The Trial Examiner finds that Allen made a reasonable and diligent search for other employment and loss of earnings, if any, was not caused by her own willfulness and that backpay due her, as alleged in the Specification, amounts to $2,543 plus interest at 6 percent per annum. Sonora Barnes (Rochon). Rochon's backpay period extends from June 25, 1961, through May 24, 1963, with the exclusion of the third and fourth quarters of 1961, the first 12 According to William J. Gilmore, Jr., Employment Security Supervisor 2 of New Orleans Claims Office, Department of Employment Security, an employee of 26 years' experience, an employee who seeks unemployment benefits, "must be out of work .. . register for work at the employment service and . . . file a claim for benefits. After [that] he reports back seven days later . sign[s] in and [has] a benefit rights interview whereby the whole law is explained...." In order for the weekly benefit to be approved, the claimant must appear, sign for benefits, and be asked if he is "able and available for work," whether he has "sought work in the past week" and whether he has had "any offers of work." He also signs a statement that his answers are "true and correct" and that he has complied with the regulations." The claimant's application is subject to review at all times. If a claimant presents an insufficient reason for turning down a job he "could be disqualified." The claimant is also classified, as explained by Gilmore, Jr.: According to the classification assigned the claimant, if he is in a type and second quarters of 1962, and the second quarter of 1963, for which no claims are being asserted. In the third and fourth quarters of 1962 and the first quarter of 1963 she was employed by J. H. Bonck, Inc. In addition to registering with the Louisiana State Employment Security Office and qualifying for unemployment benefits, she applied for work at several employers including Haspel's, Famous Sternberg, and Cute-Togs. The Trial Examiner finds that Sonora Barnes (Rochon) made a reasonable and diligent search for other employ- ment and loss of earnings, if any, was not caused by her own willfulness and that backpay due her, as alleged in the Specification, amounts to $340 plus interest at 6 percent per annum. Doris E. Bowles. Bowles' backpay period extends from June 25, 1961, through May 24, 1963. During this period she did daywork for Mrs. Paul Jensen and became employed by Deansgate, Inc., during the fourth quarter of 1961 where she was employed for the remainder of the backpay period. The Respondent conceded that it "believed that Bowles truthfully testified that she looked for additional work when employed only part time as a domestic." Its complaint is that "there was no way of actually checking Bowles' earnings as a domestic because her former employer who lived in New Orleans until 1967 or 1968 had moved to another city." (Slidell, Louisiana) Nevertheless, the burden of proof to establish Bowles' interim earnings was on the Respondent. Moreover, the record does not disclose that Mrs. Jensen would not have been available for testimony. Bowles testified that she worked 2 or 3 days a week for Mrs. Jensen at $3.50 a day plus carfare. The Trial Examiner believes that in the light of the Respondent's burden, the Respondent has been given fair credit for Bowles' earnings. The Trial Examiner finds that Bowles made a reasonable and diligent search for other employment and loss of earnings, if any, was not caused by her own willfulness and that backpay due her, as alleged in the Specification, amounts to $812 plus interest at 6 percent per annum. Marguerite Bozonier. Bozonier's backpay period extends from June 25, 1961, through May 24, 1963, with the exclusion of the third and fourth quarters of 1961 and the first quarter of 1963, for which no claims are asserted. In 1962 and 1963 Bozonier was employed by J. H. Bonck Co., Inc. When unemployed during the backpay period, she qualified for unemployment compensation and applied for work with a number of employers. Respondent complains that Bozonier was "content merely to rely upon unemploy- of industry that has a high turnover rate or he has a varied work history, we put him in what we call Classification C and every five weeks he is given a form to fill out to list the places he sought work in those five weeks and they ask him various questions. Have you been searching for work? Is there any problems at home that would keep him from accepting work? And he has a desk interview and that is gone over and checked to determine his availability. If you fall into a category of a highly unionized group, we put them in A Classification, where they would be interviewed only every 10 weeks. On the 10th week we would ask him if he is a paid up union member and ask him to produce his union record to show that he is a paid up member in good standing with the union, who normally would get his jobs for him. After a claimant's benefits have expired, his job application becomes inactive unless he reports once every thirty days. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment compensation for the first- six months or so of 1962" rather than search for employment . However, as was pointed out above, the requirements for job search to remain eligible for unemployment compensation satisfied the requirements for recovery of backpay under the Act. The Trial Examiner finds that Bozonier made a reasonable and diligent search for other employment and loss of earnings, if any, was not caused by her own willfulness and that backpay due her, as alleged in the Specification, amounts to $1,601 plus interest at 6 percent per annum. Miriam Cheri. Cheri's backpay period extends from June 25, 1961 , through May 24, 1963, with the exclusion of the second quarter of 1962, for which no claim is asserted. During the entire backpay period Cheri worked at Seg-Mar, Inc., at a job comparable to that in which she worked for the Respondent. The fact that Cheri worked was proof of her desire to be employed . The fact that Cheri (as claimed by the Respondent) confirmed to a Board attorney in 1961 that she would not accept an offer of reinstatement from the Respondent and thereby showed no interest in returning to the Respondent's employ is irrelevant to the issues of this case. See Heinrich Motors, Inc., 166 NLRB 783; Burnup and Sims, Inc., 157 NLRB 366, affd. 383 F.2d 987 (C.A. 5). The Trial Examiner finds that Cheri incurred no willful loss of earnings and that backpay due her, as alleged in the Specification, amounts to $530 plus interest at 6 percent per annum. Bessie Cooper (Lee). Lee's backpay period extends from June 25, 1961, through May 24, 1963. Lee testified that during the entire backpay period she worked 4 days a week as a domestic for Dr . Digner.at $6 a day. While the Respondent challenges the interim earnings figure based on this testimony, Dr. Digner was not called for testimony. The Trial Examiner credits Lee's testimony and finds interim earnings in the amount of $2,376 as more fully set out in the Specification. During the latter part of 1961 and in the early part of 1963, Lee applied for employment at Respondent's plant. She was not hired. During the backpay period she also looked for other jobs and answered ads in the newspaper. She also applied at the Tulane Shirt Factory and Bonck's. Since the Respondent failed to hire Lee on application, her continued employment as a domestic may, to that extent, be attributed to such failure. In any event the Trial Examiner is of theopinion that Lee fulfilled all her obligations to mitigate damages and that backpay is due her, as alleged in the Specification, in the amount of $1,591 plus interest at 6 percent per annum. Georgiana Davis (Deruisa). Deruisa's backpay -period extends from June 25, 1961 , through May 24, 1963, with the exclusion of a portion of the third quarter of 1961, for which no claim is being asserted. During the backpay period, Deruisa, commencing in the third quarter of 1961, worked in each quarter. The fact that Deruisa worked refutes any claim that she had voluntarily withdrawn from the labor market. That, as is contended by the Respondent, Deruisa would have been unavailable for daytime work with the Respondent if it had been offered, is sheer speculation which ought not to be indulged to free a Respondent who offered no employment from the obligation of the court's decree. The Trial Examiner concludes that Deruisa was available for employment and satisfied her obligations to mitigate damages and that backpay due her, as alleged in the Specification, amounts to $2,252 plus interest at 6 percent per annum. Lenora Davis. Davis' backpay period extends from June 25, 1961 , through April 19, 1968, with the exclusion of the third and fourth quarters of 1961 , the first, third, and fourth quarters of 1962, the second, third, and fourth quarters of 1963, 1965, the third and fourth quarters of 1966, the second, third, and fourth quarters of 1967, and the first quarter of 1968. The Respondent offered Davis reemployment on April 19, 1968. During her entire backpay period she worked for L. Frank & Co., Inc. There is no question about her availability for work nor that her obligations to mitigate damages were fulfilled. The Trial Examiner finds that backpay due her, as alleged in the Specification, amounts to $293 plus interest at 6 percent per annum. Alice T. Dentley (Gabriel). Gabriel's backpay period extends from June 25, 1961, through May 24, 1963, with the exclusion of the fourth quarter of 1961, for which no claim is being asserted. During the period claimed, Gabriel was employed at Cute-Togs of Nola, Inc. Her claim is for $21.13 Since the evidence establishes Gabriel was employed during the period claimed, she was available in the labor market and satisfied her obligation to mitigate damages. The Trial Examiner finds that backpay due her, as alleged in the Specification, as amended, amounts to $21 plus interest at 6 percent per annum. Gloria Dixon. Dixon's backpay period extends from June 25, 1961 , through April 19, 1963, with the exclusion of the third quarter of 1961 , the first and third quarters of 1962, and the first quarter of 1963 , for which no claims are being asserted. Throughout the backpay period Dixon worked for the New Orleans Recreation Department in the costume department. By working Dixon established her availability for employment and satisfied her obligation to mitigate damages. The Trial Examiner finds that backpay due her, as alleged in the Specification, amounts to $191 plus interest at 6 percent per annum. Minnie M. Fernandez. Fernandez' backpay period extends from June 25, 1961 , through May 24, 1963, with the exclusion of the third quarter of 1963, for which no claim is being asserted. During the backpay period Fernandez was employed by the Louisiana Garment Manufacturing Co., Inc„ until laid off around July 1961 because of shortage of work. She was rehired by Louisiana Garment Manufacturing Co., Inc., in the second quarter of 1962 and worked there until she was laid off around December 22, 1962. Following both layoffs she applied for unemployment compensation and drew 73 Gabriel, who lives in California, did not appear for testimony. cost make this impossible, so we wrote her a letter releasing her from the Counsel for Respondent stated, "The claim was amended to $21. We had subpoena" subpoenaed Mrs. Dentley [Gabriel], the travel expense plus the subpoena J. H. RUTTER REX MANUFACTURING COMPANY unemployment compensation following her second layoff. During the period of her layoff, she looked for work at such places as Louisiana Garment, Haspel's, Famous Sternberg, Cute-Togs, Benny Davis, and J. H. Bonck. The fact that Fernandez found work is proof that she was looking for work. During the entire backpay period Fernandez was available for work and satisfied her obligations to mitigate damages. The Trial Examiner finds that backpay due her, as alleged in the Specification, amounts to $2,185 plus interest at 6 percent per annum. Ethel Mae Foreman (Askin). Askin's backpay period extends from June 25, 1961, to April 19, 1963. Throughout the backpay period Askin worked for the Clematis Laundromat. That Askin chose to work for Clematis Laundromat did not bar her reinstatement rights, as is urged by the Respondent, since it was not necessary for her to make a final choice between the two jobs until she was offered reinstatement. East Texas Steel Castings Co., Inc., 116 NLRB 1336, 1344, enfd. 255 F.2d 284 (C.A. 5). In regard to the Respondent's claim that, by remaining at Clematis Laundromat, Askin did not fulfill her concurrent obligation to seek substantially equivalent employment, the credible record does not support a finding that the Clematis Laundromat job was not substantially equivalent to the one Askin held at the Respondent's plant 14 Askin's job with Clematis Laundromat was suitable alternate employment which satisfied her obligation to mitigate damages. The Trial Examiner finds that backpay due her, as alleged in the Specification, amounts to $1,414 plus interest at 6 percent per annum. Edna Francis. Francis' backpay period extends from June 25, 1961, through May 24, 1963, with the exclusion of the third quarter of 1961, the third quarter of 1962, and a portion of the second quarter of 1962, for which no claims are asserted. Francis was employed by B. F. Davis until she was laid off for lack of work around June 1962. She registered with the Louisiana State Employment Security Office and drew unemployment compensation until around February 1963. During her backpay period she searched for employment and visited such employers as D. H. Holms, Maison Blanche, Sears and Roebuck, Gus Mayer, Kreegers, Adlers, Krauss, Louisiana Garment, Haspel's, Excel, and Schram Brothers. She was reinstated by the Respondent in May 1963. The Trial Examiner finds that Francis made a reasonable and diligent search for other employment and loss of earnings, if any, was' not caused by her own willfulness and that backpay due her, as alleged in the Specification, amounts to $1,161 plus interest at 6 percent per annum. Jimmie Lou Green. Green's backpay extends from June 25, 1961, through May, 9, 1970, with the exclusion of all those quarters for the period from the first quarter of 1967 through the second quarter of 1970, for which no claims are 14 Askin's job at the Respondent's plant was the sewing of button holes on hip pockets; at Clematis Laundromat her job was to wash and fold clothes. Apparently neither job required much skill or training. 15 Norton testified, "If we are making no claim as far as gross for a particular month in a quarter for purposes of the Specification we are saying that she was either not available for work that month or out of the labor market that month." 27 being asserted. Portions of some of those quarters claimed are also excluded.15 With the exception of the third quarter of 1965, when Green worked for Mrs. Dessauer, she performed domestic work for the Hess family in each of the quarters claimed in the backpay period. While working for the Hess family, she did not work during the summer months for which no claims are asserted. When Green worked for the Respon- dent she performed bar tacking and loop tacking. She returned to work for the Respondent in May 1970 but subsequently left her employment there due to an injury sustained while working. Green worked for Cute-Togs in the third quarter of 1963. She also sought work elsewhere and commenced working for the Hess family after she couldn't find a factoryjob. She had sought work with the Respondent. As in the case of Askin, there is no credible proof that supports a finding that the work Green performed was not substantially equivalent employment to bar tacking and loop tacking. It was the Respondent's burden to present such proof. Since the Respondent did not meet its burden in this regard, the Trial Examiner is left to conjecture. Without appropriate proof the Trial Examiner cannot find that domestic work, which may require excellence in cooking, mending, and sewing, is not equivalent to bar tacking and loop tacking. The difference of pay is not controlling because substantially equivalent employment is not always compensated for by the same wage. Green made herself available for work during the backpay periods claimed and satisfied her obligations to mitigate damages. The Trial Examiner finds that backpay is due her, as alleged in the Specification, in the amount of $3,536 plus interest at 6 percent per annum. Gustavia Haynes (Gale). Gale is one of the individuals who was subject to the strike violence defense asserted by the, Respondent in the earlier proceedings.16 Her backpay period extends from June 25, 1961, through May 9, 1970, with the exclusion of the fourth quarter of 1961, the first and third quarters of 1962, and the second quarter of 1965, 1967, the first and third quarters of 1968, and the third quarter of 1969, for which no claims are being asserted. Portions of other quarters are not being claimed. During the backpay period Gale worked for Schram Brothers, Lynn Fashions, Inc., Louisiana Garment Manufacturing Co., Inc., Young Set, Inc., Local 602, and J. H. Bonck, Inc. In 1963 she performed domestic work, during which period she also registered with the Louisiana State Employment Security Office and drew unemployment compensation for approximately 6 months. Besides looking for domestic work she applied at Haspel's, Cute-Togs, and Bonnie Francis. Her work performance record indicates that she kept herself available for employment. The fact that she obtained jobs indicates that she searched for work. The Trial Examiner finds no reason to deny her the backpay claimed in the Specification and finds that backpay due 16 In view of this fact, Respondent's clams, as follows, is without merit since it is clear that it would have been futile for Gale to have applied for employment with the Respondent : "It is submitted that Gale surrendered her reinstatement rights by making no applications at all at the Rutter Rex plant with the exception of the one made shortly after the termination of the strike in 1955." 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her, as alleged in the Specification, amounts to $4,530 plus interest at 6 percent per annum. Victoria Henderson. Henderson's backpay period extends from June 25, 1961, through May 24, 1963, with the exclusion of the third quarter of 1962 and the year 1963, for which no claims are being asserted . Prior to the beginning of the backpay period, Henderson had worked for Seg-Mar but had been laid off because of a shortage of work. Up until the time she went to work for the Louisiana Garment Manufacturing Co., Inc ., in the second quarter of 1962, she was registered with the Louisiana State Employment Security Office and was looking for any kind of work. She contacted a restaurant on Magazine Street, Wembley Tie, and Famous Sternberg. She found work at the Louisiana Garment Manufacturing Co., Inc. Sometime prior to taking the Louisiana Garment job she performed domestic work for 2 or 3 weeks for 2 days a week, earning $5 a day. While there is some doubt whether interim earnings for this domestic work have been established by sufficient evidence , since the General Counsel has been liberal in allowing interim earnings in his Specification, the Trial Examiner will allow $40 as interim earnings. Otherwise the Trial Examiner finds no reason to deny the backpay sought by the General Counsel since Henderson has satisfied her obligation to mitigate damages. The Trial Examiner finds that backpay due Henderson amounts to $2,123 plus interest at 6 percent per annum. Rose Marie Hicks. Hicks' backpay period extends from June 25, 1961, through May 9, 1970, with the exclusion of the second and third quarters of 1962, the first, second, and fourth quarters of 1963, the first quarter of 1964, the second, third, and fourth quarters of 1965, the first, second, and fourth quarters of 1966, the third quarter of 1967, the first and second quarters of 1968, 1969 , and 1970, for which no claims are asserted. At the beginning of the backpay period Hicks was employed by Schram Brothers until it discontinued business, at which time she applied and was hired by Cute- Togs. She quit Cute-Togs because it would not fix her machine. Within 2 or 3 days she was hired by Comas Pants Factory, where she worked 3-1/2 months until she was discharged as a result of an argument . On appeal she was found eligible to draw unemployment compensation. Credible proof in the record does not establish that she was discharged for cause . About 2,months after she left Comas Pants Factory, she was rehired by Cute-Togs where she worked for the remainder of her backpay period. During the 2-month period in which she was unemployed, she registered with the Louisiana State Employment Security Office and drew unemployment compensation. She also applied for work at various employers during this period including Cute-Togs, Famous Sternberg, and Wembley Tie and took tests at the unemployment office for work at American Can and for sales and commodity jobs. While Hicks' testimony was vague on the subject, it would appear that she was incapacitated for about 3 weeks in 1964 by reason of a neck operation. Respondent claims that backpay should have been terminated as of that date, for had Hicks been working for the Respondent, she would have quit. Such supposition is highly speculative. It does not take into account the Respondent's burden. There was no showing that the Respondent in 1964 enforced a policy which would have ' denied Hicks sick leave under the circumstances or that vacation time was not available for the time lost. The Respondent's claim is without merit. Hicks' working records conclusively establish Hicks' availability in the labor market and she is entitled to the backpay requested in the Specification. The Trial Examiner finds that backpay due her, as alleged in the Specification, amounts to $1,778 plus interest at 6 percent per annum. Louise Jackson (deceased). Jackson's backpay period extends from June 25, 1961 , to May 24, 1963. During the entire backpay • period, Jackson performed domestic work for John Dart. While the Respondent claims that such work was not substantially equivalent to that which Jackson performed while working for the Respondent , it produced no credible proof to support such claim . Thus the Respondent did not meet its burden and the Trial Examiner is left with no facts on which he can base a finding favorable to the Respondent on this point. The fact that Jackson worked is evidence that she was not willfully causing a loss of earnings and that she was available for employment. Since proof does not establish that Jackson was not entitled to the backpay claimed in the Specification, the Trial Examiner finds that backpay due Jackson, as alleged in the Specification, was in the amount of $1,286 plus interest at 6 percent per annum. Eunice Johnson. Johnson's backpay period extends from June 25, 1961, through February 15, 1963. Her first job was with the Respondent where she was in training . She was rehired by the Respondent in February 1963. During her backpay period, Johnson worked for Pelican Tomato Co., Inc., Southern Baptist Hospital, Perry's Restaurant and Bar, and Chicken Alonzo. During this period she also applied for employment at B. Bennett, a place on Jeanette Street , sewing factories on Jefferson Davis and St. Bernard, and Louisiana Garment. She also applied for work through the employment service, which sent her to a sewing factory on Camp Street, where she filed an application. The Trial Examiner is convinced that Johnson made a reasonable and diligent search for work and that any loss of earnings were not caused by her own willfulness . The Trial Examiner finds that backpay due her , as alleged in the Specification, amounts to $2,272 plus 6 percent interest per annum. Lela Mae Landry (Coston). Coston's backpay period extends from June 25, 1961, through October 23, 1962. No claim for backpay is made for the third and fourth quarters of 1961. Coston's social security records indicate that she worked for Equipto, Inc. While it is suggested that Equipto, Inc., is related to the Respondent, the record lacks sufficient credible proof that during the backpay period Coston was employed by the Respondent. The Respondent claims that backpay should be disal- lowed for Coston as of September 1961 because it must be presumed that her employment relationship with the Respondent would have terminated at the time of her pregnancy in 1961. The Respondent offered no credible proof that under the Respondent's labor policy in 1961 Coston's pregnancy would have caused the termination of J. H. RUTTER-REX MANUFACTURING COMPANY 29 her employment which was its burden. Thus the Trial Examiner can make no such finding. Since there is no credible proof that Coston was unavailable for work or incurred willful loss of earnings, the Trial Examiner finds, as claimed in the Specification, that backpay due Coston, as alleged in the Specification, amounts to $192 plus 6 percent interest per annum. Dorothy White (Learson). Learson's backpay period extends from June 25, 1961, through May 24, 1963. Throughout the backpay period she performed domestic work for Albert De Ben, Jr., and others. Learson looked for no other type of work. When offered employment by the Respondent in May 1963 she declined because she was expecting a baby but by letter stated, "I will apply later." Later she filed an application for employment. The Respondent contends that Learson's claim should be dismissed "on the grounds of abandonment of reinstate- ment rights and failure to seek substantially equivalent employment during the backpay period." As to the former, the facts do not support such contention. Learson indicated her willingness to return to the Respondent's employment by filing an application for employment. As to the latter contention, the Respondent, as was its burden, submitted no proof that the domestic work Learson performed was not substantially equivalent to the work she was engaged in with the Respondent. The Trial Examiner is of the opinion that Learson is entitled to the backpay set out in the Specification and finds that the backpay due her, as alleged in the Specification, amounts to $1,591 plus interest at 6 percent per annum. Leonard Lewis. Lewis' backpay period extends from June 25, 1961, through May 9, 1970. However, no backpay is claimed after the third quarter of 1961. Except for a short time at Imperial Records, Inc., Lewis worked during the entire backpay period for Haspel Bros., Inc., doing layout work which was the same type of work he performed for the Respondent. No valid affirmative defense is stated against his claim. The Trial Examiner finds that backpay due him, as alleged in the amendment to the Specification, amounts to $386rplus interest at 6 percent per annum. Bessie Montgomery. Montgomery's backpay period extends from June 25, 1961, through May 24, 1963, with the exclusion of the third quarter of 1961 through 1962, for which no claims are being asserted. During the backpay period Montgomery was employed by J. H. Bonck Co., Inc., a garment plant. During the quarters claimed she was laid off for lack of work and filed for unemployment compensation. She drew partial unemployment compensa- tion when work was slack. During the period, she applied for employment with such employers as Haspel's, Famous Sternberg, Krauss, Maison Blanche, J. C. Penney, and the Respondent. The Trial Examiner is convinced that Montgomery made a reasonable and diligent search for other employment and loss of earnings, if any, was not caused by her own willfulness and finds that backpay due her, as alleged in the Specification, amounts to $393 plus interest at 6 percent per annum. Adele Nash (Hall). Hall's backpay period extends from June 25, 1 961, through May 24, 1963. While working for the Respondent, she packed shirts and pants in boxes for shipping. During the entire backpay period she worked for Sidney P. Prendergast, Sr., as a child care nurse. Hall was reinstated by the Respondent in May 1963 and worked until it appeared her packing job would terminate. She applied for social security. While employed by Prendergast, Hall, on a couple of occasions, requested employment with the Respondent. She was not hired. At that time it was difficult to obtain packing work. Respondent contends that Hall should be denied backpay because she was content to remain at low paying domestic work or other low paying employment without seeking higher wages and that such does not satisfy the obligation to mitigate her loss of earnings. The discrimina- tee's duty to mitigate damages did not require that she search for a higher paying job if she was filling a substantially equivalent or a suitable alternate job. It is common knowledge in the field of labor relations that many substantially equivalent jobs do not pay equal wages. Based on the record before him the Trial Examiner cannot find that the job of a child care nurse is not substantially equivalent to a packer of shirts and pants. It appears that the responsibilities of the former would exceed those of the latter. Moreover, the Respondent's failure to employ the discriminatee upon her application contributed to the discriminatee's loss of earnings, of which Respondent ought not to be heard to complain. The Trial Examiner is of the opinion that Hall satisfied her obligations to mitigate damages and finds that backpay due her, as alleged in the Specification, amounts to $1,533 plus interest at 6 percent per annum. Desideria O'Campo. O'Campo's backpay period extends from June 25, 1961, through May 24, 1963. During the backpay period, O'Campo worked first for Stevens Band Paper Co., Inc., and then for Frank J. Mathew, Jr. The latter was domestic work. Stevens Band closed its plant sometime in 1962. O'Campo sought work at other paper bag companies, candy companies, watched newspaper advertisements for work, and looked for sewing work. The employment with Mathew was obtained through a newspaper advertisement. Some of the places O'Campo visited for work were Virginia Paper Bag, Jacobs Candy, and the Roosevelt Hotel. Since it was not affirmatively shown that O'Campo was unavailable for work or incurred willful loss of earnings during the backpay period, the Trial Examiner finds, as alleged in the Specification, that backpay due O'Campo amounts to $766 plus 6 percent interest per annum. Yvonne Parnell (Charles). Charles' backpay period extends from June 25, 1961, through March 27, 1963. Throughout the quarters claimed she worked as a domestic employee for L.A. Gravois where she was paid $25 a week. She worked 5 days during the week from 9 a.m. to 2 p.m. Charles looked for work at Louisiana Garment and the Tulane Shirt Factory and at several hotels including the Deville and Fontainbleau. She was "always looking for a better job." She also checked newspaper advertisements for help wanted. The credible evidence adduced does not establish that 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charles' domestic work was not substantially equivalent to that which she performed for the Respondent. Nor does the credible proof establish that she willfully removed herself from the labor market. The Trial Examiner finds, as alleged in the Specification, that there is backpay due her in the amount of $1,367 with interest at 6 percent per annum. Dorothy K Reed. Reed's backpay period extends from June 25, 1961, through May 24, 1963. Her earnings during this period were derived from housework. During the backpay period she was "going to places trying to get applications." She went to "the department stores and a couple of sewing factories." She also "went back to Rex"; she was told that Rex would call her. She was sent by "Social Security" to a glass factory but "they wanted somebody with a car." The job was not taken by Reed because "you had to stand out on the highway and wait for a bus." She also applied at a baby clothes factory on Gentilly Road. Reed described her work at the Respondent's plant, "A machine, there's a machine and you fasten the collar on it and you press down with your feet. They call it block point." The Respondent has not established by credible evidence that the housework performed by Reed was not substantial- ly equivalent to the block point she performed for the Respondent. Nor has the Respondent adduced credible evidence to establish that Reed willfully removed herself from the labor market. The Trial Examiner finds, as alleged in the Specification, that backpay due Reed amounts to $962 plus interest at 6 percent per annum. Adele L. Robertson. Robertson's backpay period extends from June 25, 1961, through May 24, 1963. No claim for backpay is made during the first, second, and third quarters of 1962. During the entire backpay period, except for the time she cared for her ill sister-in-law and her children, she was either gainfully employed or was actively looking for work. No claim is made for the period Robertson cared for her sister-in-law and her children. Prior to this period, which extended from the end of 1961 to April 1962, she had worked for Seg-Mar, Inc. Respondent contends that had Robertson worked for the Respondent she would have terminated her employment likewise to care for her sister-in-law and her children; thus it insists that her backpay should be cut off as of April 20, 1962. The Trial Examiner considers such contention to be highly speculative without sufficient probative value to be credited. The Respondent would have the Trial Examiner guess as to what Robertson would have done if she had worked for the Respondent or how the Respondent would have treated her under the circumstances. Perhaps the Respondent would have allowed her a leave of absence or perhaps others would have cared for her sister-in-law. After Robertson's sister-in-law died, Robertson searched for employment. She applied for employment with the Respondent, Bonck, and the Union Passenger Terminal. She also went to Chicago, Illinois, seeking work because she couldn't find any work in New Orleans. She found work at the St. Francis Hospital in Evanston, Illinois, where she worked until she became ill with pneumonia. After recovery she returned to New Orleans and again sought work at such places as Union Passenger Terminal, Tulane Shirt Factory, Blue Plate, Seg-Mar, and Benny Davis. She incurred travel expenses which are allowed. There is no credible evidence that she willfully incurred loss of earnings. She made a reasonable and diligent search for work. The Trial Examiner finds that, as alleged in the Specification, backpay, together with travel expenses, due Robertson amounts to $1,181 plus interest at 6 percent per annum. Rosalie Thornton. Thornton's backpay period extends from June 25, 1961, through May 24, 1963, with the exclusion of the second and fourth quarters of 1962 and the second quarter of 1963, for which no claims are being asserted. Thornton worked for Ward's Discount House during the third and fourth quarters of 1961 and the remainder of the quarter claimed at Murphy's Wholesale Tailors. Her job in both places was tailoring work. The fact that she was employed establishes her desire to work. She satisfied any obligation to mitigate damages. The Trial Examiner finds that, as alleged in the Specification, backpay due her amounts to $807 plus interest at 6 percent per annum. Marjorie Walker. Walker's backpay period extends from June 25, 1961, through May 24, 1963, with no claim made for the third quarter of 1961 and the third and fourth quarters of 1962. During the entire backpay period, Walker worked for Louisiana Garment Manufacturing Co., Inc. Respondent does not contend that she sustained a willful loss of earnings. The Trial Examiner finds that, as alleged in the Specification, backpay due Walker amounts to $351 plus interest at 6 percent per annum. Alma Wallace. Wallace's backpay period extends from June 25, 1961, through May 24, 1963. However, no claim is made for the backpay period after the third quarter of 1963, because of Wallace's retirement from the labor market. Wallace was employed during the entire backpay period at Seg-Mar, a sewing factory in New Orleans. She qualifies in all respects for the backpay claimed in the Specification, as amended. The Trial Examiner finds that backpay due Wallace amounts to $52 plus interest at 6 percent per annum. Fannie M. Watford Watford's backpay period extends from June 25, 1961, through April 19, 1968, with the exclusion of the third quarter of 1964, and the first and second quarters of 1965. From the second quarter of 1964 until the end of her backpay period, Watford was in the employ of the Louisiana Garment Manufacturing Co., Inc. Prior to that time she was available for work and was continuously searching for work. Except when she nursed Mrs. Stribley, she found no work. She sought work at Imperial Dye House, Louisiana Garment, Tulane Shirts, Schram, B. Bennett, Harry Hymen, and other factories. She also followed newspaper advertisements for help wanted. On at least two occasions she contacted the Respondent, but was not hired. She filed written applications with the Respondent on December 4, 1961, and September 27, 1961. J. H. RUTTER REX MANUFACTURING COMPANY 31 While Watford worked for Louisiana Garment she engaged in a strike from November 3, 1966, until March 5, 1968. She looked for work during this period and earned $100 during the carnival season working for "Greenburg's costume place." 17 The Respondent claims that Watford was offered employment by the Respondent sometime in December 1961. The Respondent produced no credible written or oral substantiating evidence to support this contention; hence the Trial Examiner finds the contention to be without merit. Likewise without merit is the Respondent's contention that Watford should be disqualified for backpay during those quarters in which she engaged in a voluntary strike against the Louisiana Garment. Not only does it appear that Watford searched for work and performed some work during that period, but the statute does not require that the duty imposed on a discriminatee to minimize his loss of earnings which stems from "the healthy policy of promoting production and employment" also requires that a discriminatee violate a lawful picket line placed at an interim employer's establishment in order to mitigate an employer's backpay liability arising from a discriminatory discharge. Such sanction would clearly discourage the participation of interim employees in a lawful strike. Thus it would impede and interfere with the right to strike which the Act protects. (See Section 13 of the Act.) To disallow the discriminatee backpay accruing while she was engaged in a lawful strike against her interim employer for such reason would countervail the protection afforded to employees in Section 7 of the Act. Furthermore, there is no proof that Watford would have withheld her services during this period had the Respondent offered her employment. Thus the Trial Examiner finds that Watford was not disqualified for backpay during the period she engaged in a strike against Louisiana Garment Company. The Trial Examiner further finds that there is no credible evidence to support a finding that during the backpay period Watford was out of the labor market, unavailable for work or incurred a willful loss of earnings. The Trial Examiner further finds that backpay due Watford amounts to $9,95718 plus interest at 6 percent per annum. Beatrice White (Lane). Lane's backpay extends from June 25, 1961, through May 24, 1963. Lane returned to work for the Respondent in May 1963. During the backpay period she "put applications in at Steins, Holmes, Krauss and Wrights on Rampart Street " She also applied for work at Schram, McKool, Tulane Shirt Shop, Louisiana Pants, and several department stores. Lane's only employment during her backpay period was sewing work which she performed in her home. While the Trial Examiner is not convinced that interim earnings from this work during the backpay period have been proved with sufficient specificity to warrant a finding, since the General 17 General Counsel concedes that the $100 may be included in interim earnings. is One hundred dollars which was earned by Watford while she was on strike has been deducted from the amount alleged in the Specification. 19 Nine hundred and sixty dollars, representing interim earnings, has been deducted from the amount alleged in the Specification 20 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the Counsel concedes that interim earnings of "possibly $10 per week" ought to be credited, the Trial Examiner allows as interim earnings the amount of $120 a quarter for the eight quarters of the backpay period. The Trial Examiner finds that Lane made a reasonable and diligent search for work and that her loss of earnings, if any, was not caused by her own willfulness. The Trial Examiner further finds backpay due Lane amounts to $3,007,19 plus 6 percent interest per annum. The Trial Examiner confirms the General Counsel's Specification, as amended, with the modifications above noted. Upon the foregoing findings of fact and conclusions of law and the entire record before the Trial Examiner and pursuant to Section 10(c) of the Act, the Trial Examiner issues the following recommended: 20 SUPPLEMENTAL ORDER Respondent, J. H. Rutter-Rex Manufacturing Company, Inc., New Orleans, Louisiana, its officers, agents, succes- sors, and assigns, shall make the employees involved in this proceeding whole by payment to them of the following amounts together with interest at the rate of 6 percent per annum, commencing June 2, 1964,21 and continuing until the amounts are paid in full, but minus tax withholding required by Federal and state laws. Victoria Allen $2,543.00 Sonora Barnes (Rochon) 340.00 Doris E. Bowles 812.00 Marguerite Bozonier 1,601.00 Miriam Cheri 530.00 Bessie Cooper (Lee) 1,591.00 Georgiana Davis (Deruisa) 2,252.00 Lenora Davis 293.00 Alice T. Denley (Gabriel) 21.00 Gloria Dixon 191.00 Minnie M. Fernandez 2,185.00 Ethel Mae Foreman 1,414.00 (Askin) Edna Francis 1,161.00 Jimmie Lou Green 3,536.00 Gustavia Haynes (Gale) 4,530.00 Victoria Henderson 2,123.00 Rose Marie Hicks 1,778.00 Louise Jackson (deceased) 1,286.00 Eunice Johnson 2,272.00 Lila Mae Landry (Colton) 192.00 Dorothy White (Learson) 1,591.00 Leonard Lewis 386.00 Bessie Montgomery 393.00 Adele Nash (Hall) 1,533.00 Desideria O'Campo 766.00 Yvonne Parnell (Charles) 1,367.00 findings, conclusions, and recommended Supplemental Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 21 June 2, 1964, is the date suggested by the General Counsel which the Trial Examiner finds to be a reasonable date under the circumstances of this case. 32 Dorothy K. Reed Adele L. Robertson Rosalie Thornton Marjorie Walker Alma Wallace Fannie M. Watford Beatrice White (Lane) DECISIONS OF NATIONAL LABOR RELATIONS BOARD 962.00 In view of the death of Louise Jackson it is recommended 1,181.00 that the Respondent be ordered to pay to Jackson's estate 807.00 or any person or persons as their interests may appear the 351.00 backpay due and owing on behalf of Jackson, including 52.00 interest. See Herman Nelson Division, American Air Filter 9,957.00 Co., Inc., 127 NLRB 939. 3,007.00