Marlene Industries Corp.

MARLENE INDUSTRIES CORP., ET AL. Marlene Industries Corporation; Decaturville Sports- wear Co., Inc.; Trousdale Manufacturing Co., Inc.; Westmoreland Manufacturing Corporation; Frisco Sportswear Co., Inc.; Aynor Manufacturing Com- pany, Inc.; Loris Manufacturing Company, Inc.; Charles Meltzer, Individually and as President of Marlene Industries Corporation; Samuel Meltzer, Individually and as Treasurer of Marlene Indus- tries Corporation; Abraham Dansky Individually and as Vice President of Marlene Industries Corporation; Ray Rindone; Daniel Beitsch; L E. Broyles; C. M. Jones; Victor Martin; Lloyd Eppersimons; W. J. Schwartz and Aynor Develop- ment Corporation and International Ladies' Gar- ment Workers' Union, AFL-CIO. Cases 26-CA- 2158, 26-CA-2216, 26-CA-2216-2, and 26-CA- 2276 January 18, 1978 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On October 21, 1977, Administrative Law Judge Hutton S. Brandon issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders the Respondent, Marlene Industries Corporation, et al., Lexington, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: Substitute the following language for that in the recommended Order: "The Respondent, Marlene Industries Corpora- tion, et al., its officers, agents, successors, and assigns shall make whole R. C. Brashers in the amount of 234 NLRB No. 41 $18,102 as net backpay to June 2, 1975, plus interest, together with backpay that shall continue to accrue from June 2, 1975, also with interest. Backpay, plus interest, for Peggy Cagle shall be determined from June 16, 1975, and shall continue to accrue. The amounts of such backpay owed Cagle and Brashers shall be determined in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950). Interest on all backpay is to be determined in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977)." 3 I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The recommended Order has been modified to state correctly the manner in which the interest rate to be applied to the backpay obligations is determined and to clarify the backpay obligation due Peggy Cagle. 3 See, generally, Iis Plumbing d Heating Co., 138 NLRB 716 (1962). SUPPLEMENTAL DECISION HuTroN S. BRANDON, Administrative Law Judge: On July 3, 1967, the National Labor Relations Board issued its Decision and Order I in the above-titled proceeding direct- ing Marlene Industries Corporation, et al., herein collec- tively called Respondent, to cease and desist from conduct found in violation of Section 8(aX1) and (3) of the National Labor Relations Act, as amended, and directing Respon- dent to make whole certain of its employees for wages they may have lost as a result of Respondent's discrimination against them. Thereafter, on January 29, 1969, the United States Court of Appeals for the Sixth Circuit issued its Decision enforcing in full the backpay provisions of the Board Order.2 Following issuance of a backpay specification and a Supplemental Decision and Order (183 NLRB 50 (1972) enfd. 440 F.2d 673 (C.A. 6, 1971), Respondent complied with the backpay provisions of the Board's Order and Supplemental Decision and Order to the extent it made whole the employees set forth in the Board's original Order. On September 17, 1971, the Board filed with the United States Court of Appeals for the Sixth Circuit its petition instituting civil contempt proceedings against Respondent alleging discriminatory conduct on the part of Respondent toward certain additional employees. The United States Court of Appeals for the Sixth Circuit on February 10, 1972, designated United States District Judge Harry Wellford as Special Master to hear the contempt petition. On October 5, 1973, the Special Master issued his memorandum wherein he recommended that Respondent be adjudged in civil contempt and be required to offer R. C. Brashers, Bennie Hamm, and Donald Pettigrew immedi- ate and full reinstatement and to make them whole for any loss of wages they may have sustained. Further, the Special Master recommended that Respondent be required to offer Peggy Cagle and Judy Maness comparable or substantially ' 166 NLRB 703 (1967). 2 406 F.2d 886. 285 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equivalent positions to that which they previously held, conditional, however, upon first availability of such posi- tions.3 On May 23, 1975, the United States Court of Appeals for the Sixth Circuit issued its opinion and order per curiam adopting the findings, conclusions, and recom- mendations of the Special Master.4 The Supreme Court denied the Board's motion for a writ of certiorari on October 2, 1975,5 and the court of appeals issued its order based on the recommendation of the Special Master on January 14, 1976. A controversy having arisen over the reinstatement of Peggy Cagle as required by the court's order and a controversy having arisen over the amount of backpay due R. C. Brashers pursuant to the court's order, the Regional Director of the National Labor Relations Board for Region 26, in the name of the Board and pursuant to the Board's Rules and Regulations, issued the backpay specification in this proceeding on May 23, 1977. Respondent, by its answer, raised issues with respect to the backpay due R. C. Brashers and the reinstatement of Peggy Cagle. Pursuant to notice, a hearing was held in this supplemen- tal proceeding in Lexington, Tennessee, on August I and 2, 1977, before me, duly designated as Administrative Law Judge. Briefs were filed on behalf of the General Counsel, 6 the Charging Union, and the Respondent. The questions presented for decision are: (I) Whether Respondent made a valid reinstatement offer to R. C. Brashers; (2) whether Respondent's backpay liability to Brashers was tolled or otherwise diminished for that period of time when Brashers picketed Respondent in connection with a strike, even though Brashers was receiving interim earnings at the time; (3) whether Brashers incurred a willful loss of earnings or failed to exercise reasonable diligence in seeking interim employment; (4) whether Respondent offered Peggy Cagle reinstatement to her former job of tagging; and (5) whether Respondent's offer, and Cagle's acceptance, of a sewing job in 1974 satisfied Respondent's obligation under the court order with respect to Cagle. Upon the record in this supplemental hearing and from my observation of the witnesses who testified, I make the following: FINDINGS OF FACT 1. R. C. BRASHERS R. C. Brashers was employed by Respondent on January 10, 1966, after he had filled out an application in 3 Specifically, the language of the recommendation stated: H. Peggy Cagle and Judy Maness should be offered a position at Decaturville comparable or substantially equivalent to the positions held by them at their termination when they engaged in concerted activity during June 1970. Said reinstatement should be conditional, however, upon the first availability of such a position at Decaturville. When and as said Cagle and Maness are reinstated, they shall retain their seniority as of September 8, 1970. 4 518 F.2d 788. s 423 U.S.913. 6 Errors in the transcript have been noted and corrected, except with respect to the spelling of Brashers' name. I note that the transcript refers to R. C. Brashers as "Brasher." The backpay specification and the court decisions refer to him as Brashers as does his employment application at pencil which he submitted showing that his address was Route 1, Box 45, and further reflecting he lived in Tennessee. He apparently left blank his home city, and someone else had filled in the blank in ink showing the city to be "Saltillo, Tenn," 7 notwithstanding the fact that Brashers' real home city was Morris Chapel, a community approximately 10 - 12 miles west of Saltillo. While Brashers' application had a space for the telephone number of the applicant it was not filled in inasmuch as Brashers had no phone at the time and when he subsequently obtained one he never so advised Respondent. Brashers worked as a presser for Respondent until mid- August 1969, when he was temporarily laid off and advised that he could seek employment during the off period provided that he report back to work on Monday, August 18. Brashers thereupon found employment with Salant & Salant in nearby Parsons, Tennessee, but ceased work there to return to Respondent on August 18, where he was treated as having "quit," since he had accepted employ- ment with Salant & Salant. This treatment was found to have been discriminatorily motivated by the Special Mas- ter and the court. Upon being advised of his separation from Respondent, Brashers borrowed the car of fellow employee Eldridge Burge to drive to Parsons in an attempt to retain his job at Salant & Salant. Upon arriving there he was told that they could not use him.8 Brashers returned to Decaturville where he talked to a representative of the Charging Union who told him to "wait" for the union representative to check with "Atlanta." Within a few days Brashers was employed by the Union in organizational efforts at Re- spondent. Brashers was employed by the Union when the strike began at the Respondent in June 1970, and engaged in picketing in behalf of the Union while still in the employ of the Union up until about the third quarter of 1972, when he was laid off by the Union. Thereafter, Brashers continued to engage in picketing activities9 in behalf of the Union at Respondent until he secured employment with the Tennes- see Department of Conservation, Division of Parks, as a dishwasher at the Pickwick Landing Inn, Pickwick State Park, about July 1973. Notwithstanding his employment at Pickwick Respondent contends, and the record reflects, that Brashers continued to engage in picketing activities at Respondent's plant from two to three times a week up until the strike ended there about September 1974. Brashers worked at Pickwick until the second quarter of 1974, when he quit work there because his having to work Respondent. Accordingly, I hereby correct the transcript to reflect Brashers wherever it now shows Brasher. I Respondent's witness, Rebecca Adams, surmised that the inked in handwriting appeared to be that of Ruth Blankenship, a former receptionist for Respondent who assisted applicants in filling out applications. s This is based upon the testimony of Brashers whom I credit. Brasherm' testimony in this regard is supported by Burge who testified that he recalled loaning his car to Brashers. The fact that Brashers was in fact at one point employed by Salant & Salant is corroborated by Willie Gene Cawthron who was also employed there at the time. Accordingly, I do not accept the less than positive and hearsay testimony of Salant & Salant Industrial Relations Director Robert J. Hodge that R. C. Brasher was "committed for employment on August 14," 1969, "but never showed up for work." 9 The backpay specification does not seek backpay for the period from July 24, 1972, to July 15, 1973, when Brashers admittedly participated in the strike and was not employed and did not seek interim employment. 286 MARLENE INDUSTRIES CORP., ET AL. on Sunday there prevented him from attending church. Within a week thereafter on March 28, 1974, Brashers applied for, and on April 2, 1974, obtained, a job at Thermo-Dynamics, Inc., Parsons, Tennessee, as a produc- tion worker, and was employed there at the time of the hearing. On May 7, 1974, Respondent mailed a registered letter, return receipt requested, to Brashers at the Saltillo, Tennes- see, address appearing on his 1965 application. The letter, inquiring as to Brashers' interest in returning to work at Respondent, was returned by the postal service marked "Addressee unknown." Another letter of similar import was mailed by registered mail by Respondent to Brashers at the same address again on June 3, 1974. The result was the same; i.e., the letter was returned addressee unknown. On June 2, 1975, the Respondent, following the order of the court of appeals affirming the findings of the Special Master, again sent Brashers a registered letter, this time offering him immediate reinstatement to his former posi- tion. Again the letter addressed to Brashers in Saltillo, Tennessee, was returned marked "Addressee unknown." Respondent made no other efforts to contact or communi- cate with Brashers although Lloyd Anderson, Respon- dent's plant manager, did inquire of at least one employee in Respondent's plant as to where R. C. Brashers lived. That employee, Sopie Brasher, not identified as being any relation to R. C. Brashers, informed Anderson that Brash- ers lived in Saltillo. Anderson acknowledged that, about 1974, he learned through hearsay that Brashers was working at Thermo-Dynamics, Inc., Parsons, Tennessee, but made no effort to contact him there. The Charging Union, through its counsel, James R. Goldberg, by letter dated September 3, 1976, to Respon- dent's Counsel, Charles Hampton White, advised Respon- dent that Brashers had never received an offer of reinstate- ment, that Brashers desired reinstatement, and requested information as to when Brashers should return to work. In addition, the letter supplied Brashers' correct Morris Chapel address and phone number. White replied through a letter to the Region's compliance officer, Robert Watson, dated September 20, 1976, copy to Goldberg. In that letter Respondent took the position that an offer of reinstatement had already been made to Brashers, that the Respondent's offer was valid, that Brashers had not responded to it, and that Respondent "does not believe that it is again obliged to offer him reinstatement." No subsequent or additional offers were in fact made. Contentions and Conclusions The backpay specification did not seek any backpay for Brashers beyond June 2, 1975. Thus, the General Counsel apparently viewed Respondent's reinstatement offer to Brasher as valid. The Charging Union takes a contrary position and argues that Respondent never has made a valid reinstatement offer.t 0 Both the General Counsel and the Charging Union argue in support of the specification that Brashers never incurred any willful loss of earnings 10 That a Charging Party may dispute the General Counsel's backpay specification is not open to dispute. See Plasterers Local 5 (John P. Phillips Plastering Co.), Case 13-CB- 1235 (1966) (not published in Board volumes). t' Respondent's evidence in this regard shows only "pressers" being during the periods sought in the specification either by virtue of his having been employed by the Union or Pickwick Landing Inn at lesser rates than he would have made at Respondent, nor by his picketing in support of the Union during those periods when employed by the Union and Pickwick Landing Inn. Respondent, although admitting the gross backpay com- putations in the specification, argues that under N. LR B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569 (C.A. 5, 1966), Brasher must have at least made reasonable efforts to find new employment which was substantially equivalent to the position from which he was discriminato- rily discharged and was suitable to a person of his background and experience. Respondent argues that Brashers did not seek such employment and therefore Respondent is relieved of its backpay obligations. In this regard, Respondent submitted evidence through the testi- mony of various area employers tending to show availabili- ty of jobs for which Brashers was suited during the entire backpay period. Some of these employers specifically, Salant & Salant with plants at Parsons, Lexington, and Henderson, Tennessee, and Scotts Hill Sportswear, Incor- porated, Scotts Hill, Tennessee, utilized "pressers," the classification Brashers was employed in by Respondent at the time of his discharge, during the backpay period." Respondent also presented testimony of various other employers in other industries in the Decaturville, Tennes- see, area seeking to show the availability of jobs for which Brashers was "suitable" during the backpay period. Brash- ers never sought these jobs, Respondent argues, and, thus, when he "lowered his sights" by taking jobs with the Union and Pickwick Landing Inn at lower rates of pay he incurred a willful loss of earnings. Finally, Respondent argues that Brashers continued to picket Respondent during the strike from its inception in June 1970 until about September 1974, even after he was employed by Thermo-Dynamics in April 1974. Thus, Brashers, being actively engaged in the picketing of Respondent for such period, should be disqualified for any backpay, the Respondent contends. The Validity of Respondent's Reinstatement Offer to Brashers The Board has previously held that a letter offering reinstatement to an unlawfully discharged employee which letter did not reach the addressee does not constitute a valid offer of reinstatement. See Ertel Manufacturing Corp., 147 NLRB 312 (1964). If, however, the offer, whether received by the addressee or not, is a bona fide offer, i.e., one made in good faith, it will serve to toll the backpay period of the addressee. See Knickerbocker Plastic Co., Inc., 132 NLRB 1209 (1961). On the other hand, an employer's ultimate obligation to reinstate a discriminatorily dis- charged employee is not relieved even by a bona fide offer of reinstatement if such offer is not received by the employee. See Jay Company, Inc., 103 NLRB 1645, 1647 (1953), enfd. 227 F.2d 416 (C.A. 9, 1954); Knickerbocker hired during the period August 18 to December 31, 1969, and for each year thereafter. It is not broken down in monthly periods and thus does not show that "presser" jobs were immediately available to Brashers. 287 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plastic Co., supra. See also Lipman Bros., Inc., 164 NLRB 850 (1967). This is essentially because an unsuccessful attempt to correct a violation of the National Labor Relations Act does not accomplish the purposes of the Act. See Sachs & Sons and Helen Sachs, Inc., 135 NLRB 1199 (1962). "The burden of establishing that a valid offer of reinstatement has been made falls on the original wrong- doer." Rafaire Regrigeration Corp., 207 NLRB 523 (1973). Under ordinary circumstances, a letter offering reinstate- ment mailed to the last known address of an employee appearing on an employer's payroll will constitute a bona fide offer so as to toll backpay. See Knickerbocker Plastic Co., supra; Rental Uniform Service, 167 NLRB 190 (1967); The Rollash Corporation, 133 NLRB 464 (1961). There are exceptions, however. In Monroe Feed Store, 122 NLRB 1479 (1959), the Board found that a letter offering reinstatement sent to an employee's last known address, an address from which the employee had moved without notice to the employer, was not a bona fide offer because there was available to the employer several sources of information regarding the current and correct address of the employee. Likewise, in enforcing the Board's order in Jay Company, Inc., supra, the Court of Appeals for the Ninth Circuit commented at 227 F.2d 419: Respondent made no effort to notify Shannon other than by mailing the letter. Shannon had been unlawful- ly discharged. It was respondent's duty to remedy the wrong. The loss of employment frequently is followed by a change of domicile. A few inquiries might and probably would have resulted in learning where Shan- non could have been contacted. The Board was justified in concluding that that duty had not been fulfilled. More recently, in Gladwin Industries, Inc., 183 NLRB 280 (1970), the Board held that a letter offering reinstatement to a discriminatee mailed to his last known address did not operate to toll backpay or cut off the obligation to reinstate him. The letter was not delivered due to the discriminatee's moving without notice to the employer. There the employer had not sought the assistance of the union representing the employees and had not communicated to it or its president, the discriminatee to whom the letter was addressed. The letter was the "sum total" of the employer's efforts to contact the discriminatee. Accordingly, the Board conclud- ed at 281: In these circumstances, where the Respondent clearly had other available means, namely, through the Union, to communicate its offer to Warren [the discriminatee] and where it appears that Respondent could have readily obtained Warren's address from the Union, we find, contrary to the Trial Examiner, that Respondent did not fulfill its reinstatement obligations by its letter of June I 1, 1968, to Jim Larry Warren. 12 Although the record is not clear, I conclude that Respondent's inquiry of Sopie Brasher occurred prior to Respondent's mailing of the June 2 letter to Brashers inasmuch as Anderson testified that he did nothing to contact Brashers subsequent to the return of the letter. 13 J. H. Rutter-Rex Manufacturing Company, Inc., 158 NLRB 1414 In view of the Board and court decisions noted above, I am constrained to accept the position espoused by the Charging Union that Respondent has never made a valid offer of reinstatement to R. C. Brashers. As in Gladwin Industries, Inc., supra, the "sum total" of Respondent's efforts to reach Brashers was its June 2 letter to Brashers, except for the inquiry of one employee regarding Brashers' address. Mailing a letter to Brashers at an address which Respondent knew from experience the year before would result in the letter being returned marked "Addressee unknown" hardly constitutes an act of complete good faith. Respondent's reliance on its records of Brashers' address was hardly justified after the return of the 1974 letters forwarded to Brashers at that address and in view of the fact that Brashers' application had been obviously "doc- tored" by someone to show a city address not in Brashers' handwriting. There were other sources of information regarding Brashers' correct address available to Respondent. Re- spondent, as admitted by Lloyd Anderson, was well aware, in 1974, that Brashers was employed by Thermo-Dynamics at a plant only a few miles away. Yet, Respondent made no attempt to ascertain from that employer Brashers' correct address or to contact Brashers at that place of employment. Brashers had a telephone listing and had had one for several years although he had never advised Respondent of it. The listing was under Milledgeville, Tennessee, and had Respondent tried to locate a number for him in Saltillo through telephone company information it may well have been successful in securing Brashers' number. But again, Respondent did not make any effort in this regard. While the Union was not the employees' collective- bargaining agent insofar as this record shows there had been communications between the Respondent and the Union on various matters. At no time did Respondent seek any information from the Union regarding Brashers' correct address. Respondent does not deny that there may have been other ways of contacting Brashers. On cross-examination, Plant Manager Anderson stated with regard to ascertaining Brashers' address as being Morris Chapel "I wouldn't say you have no way of knowing." "I did not know it." But again, after Respondent's June 2 letter to Brashers was returned "Addressee unknown" Respondent did nothing further to attempt to contact Brashers because, in the words of Anderson, "I didn't know that that was my responsibility to run Mr. Brashers down." 12 Considering the foregoing, and keeping in mind the principle that between an employer whose unlawful con- duct gave rise to the problem in the first instance and the employee victim of this wrongdoing the employer rather than the innocent employee should bear the consequences of the unlawful conduct,13 I conclude that Respondent did not make a bona fide offer of reinstatement to Brashers and did not satisfy its reinstatement obligations. Gladwin Industries, Inc., supra, Monroe Feed Store, supra. I so find. Accordingly, I conclude that Brashers' backpay period was (1966). See also McCann Steel Company, Inc., 212 NLRB 394 (1974), where the Board, citing N.L R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569 (C.A. 5, 1966), stated that any uncertainties in the record must be resolved against the wrongdoer. 288 MARLENE INDUSTRIES CORP., ET AL. not cut off on June 2, 1975, as indicated in the backpay specification. Brashers' Alleged Willful Loss of Earnings It is well settled that in a backpay proceeding the burden is upon the General Counsel to show the gross amounts of backpay. When that has been done the burden shifts to the employer to establish facts or circumstances which would negate the existence of liability to a given employee or which would mitigate that liability. N.LR.B. v. Brown & Root, Inc., 311 F.2d 447 (C.A. 8, 1963); Marlene Industries Corporation, et al. v. N. LR.B., 440 F.2d 673 (C.A. 6, 1971). In the case herein the General Counsel has carried his burden inasmuch as the Respondent admitted the gross backpay computations. The burden, thus, is upon Respon- dent herein to show Brashers' willful loss of earnings. In attempting to carry its burden in this regard Respon- dent has shown that R. C. Brashers, following his discharge by Respondent, worked for the Union and subsequently for another employer at a lower rate of pay than he had received for his work with Respondent, that he picketed Respondent for a substantial time during the backpay period, and that there were numerous jobs in the vicinity for which Brashers was suited during the backpay period but he made no attempt to secure such jobs. It is settled that in order to be entitled to backpay an employee must take "reasonable efforts" to find new employment which is substantially equivalent to the posi- tion from which he was discharged and is suitable to a person of his background and experience. N.L.R.B. v. Miami Coca-Cola Bottling Co., supra. It has also been said by the Board that "it is incumbent on a claimant to seek a job for which he has extensive experience. Knickerbocker Plastic Co., Inc., 132 NLRB 1209, 1219 (1961). But "an employee discriminatorily laid off or discharged need not instantly seek new work; rather the test is whether, on the record as a whole, the employee has diligently sought other employment during the entire backpay period." Saginaw Aggregates, Inc., 198 NLRB 598 (1972). However, "[I If the discriminatee accepts significantly lower-paying work too soon after the discrimination in question, he may be subject to a reduction in back pay on the ground that he willfully incurred a loss by accepting an 'unsuitably' low- paying position." N. LR.B. v. The Madison Courier, Inc., 472 F.2d 1307, 1321 (C.A.D.C., 1972). But doubts as to when a claimant is justified in "lowering his sights" should be resolved in favor of the innocent discriminatee. Ibid. See also Champa Linen Service Company, 222 NLRB 940 (1976). In the instant case it does not appear that Brashers' job with Respondent, that of a "presser," was so highly skilled or highly paid that he would be required to seek only "presser" work. His last average rate of pay for Respon- dent was $2.48 per hour, on a piece rate basis which by even 1969 standards did not suggest a high degree of skill. His experience in the job covered a period of 3 years and his only experience prior to that was farming. Thus, I conclude that his experience and his rate of pay as a presser did not render his subsequent jobs with the Union and Pickwick Landing Inn "unsuitable" or "unsuitably low- paying positions." In this regard, as pointed out by the General Counsel's brief based on the figures of Brashers' interim earnings in the backpay specification, including free meals from the Union, Brashers' gross hourly rate with the Union was about $2.19 per hour or only 29 cents per hour less than his average rate with Respondent. This difference can hardly be classified as significantly lower paying work. Likewise, the rate of pay received by Brashers at Pickwick Landing Inn appears to have been consistent with what he was earning from the Union. Indeed, it appears to have been more than he was earning after becoming employed by Thermo-Dynamics, Inc. Further, the starting rates of pay for other jobs in the vicinity in 1969, based on the evidence presented by Respondent, appeared to be less than the rate earned by Brashers with Respondent. While the net backpay began to rise substantially and remain at a higher level beginning with the fourth quarter of 1971, such rise was due to an increase in the gross backpay figure rather than a "substantial" reduction of Brashers' interim earnings. Accordingly, I find that Brashers' employment by the Union and Pickwick Landing Inn was "suitable" for one of his experience and he did not incur a willful loss of earnings by virtue of such employment. I further find that Brashers exercised due diligence in seeking other employment after his discharge by Respon- dent. The credited evidence establishes that he immediately sought employment from Salant & Salant after his dis- charge. While he did not forthwith submit applications to other area employers he was not required to apply for "each and every possible job that might have existed," but only to make diligent efforts to obtain suitable work. N.LR.B. v. Madison Courier, Inc., supra That he made such diligent efforts, except for such periods when no backpay was sought by the specification, is reflected by his securing three jobs during the backpay period and his desire to work is established by the fact that he did work. See Burnup and Sims, Inc., 157 NLRB 366, 373 (1966). With respect to Respondent's argument that Brashers incurred a willful loss of earnings by his continued involvement in the strike against Respondent, it is suffi- cient to note that the backpay specification tolls the backpay for that period of time that Brashers picketed Respondent without being otherwise employed. While employees who engage in picketing at the expense of seeking alternate employment incur willful losses of earn- ings by their failure to make the requisite search for work (Ozark Hardwood Company, 119 NLRB 1130, remanded 282 F.2d I (C.A. 8, 1960)), backpay eligibility of picketing discriminatees is "to be determined with respect to each employee considering the record as a whole, and not merely from the fact of picketing." N.LR.B. v. Rice Lake Creamery Company, 365 F.2d 888, 894 (C.A.D.C., 1966). In the instant case Brashers was employed by either the Union or Pickwick Landing Inn during those periods of picketing of Respondent for which backpay is sought. There was no evidence presented by Respondent that showed that Brashers reduced his availability for work with his employers at that time. Indeed, the picketing by Brashers during the period of his employment by the Union may well have been incidental to such employment. Accordingly, I find that Brashers did not incur a willful 289 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loss of earnings for picketing during the periods for which backpay is sought. Ii. PEGGY CAGLE Prior to the time that Peggy Cagle joined the strike at Respondent in 1970 she had been employed as a "tagger." The tagging job which is paid on an incentive or piece rate basis was described on the record as an operation in which the employee, from a standing position, attaches tags showing size, cloth content, etc., to garments using strings attached to buttons on the garments, brass pins or a Dinnison gun which injects a thread-like piece of nylon through the tag and through the garment. Cagle had never been utilized on any sewing machine operations which make up the majority of Respondent's plant jobs. On May 6, 1974, after the findings of the Special Master, Respondent through Plant Manager Lloyd Anderson wrote Cagle indicating it had been advised Cagle might be interested in working again and requesting that if Cagle was so interested to come to Respondent's personnel office within 3 days of receipt of the letter. The letter added that, based upon her skills and the work schedules and the openings in the plant Respondent would endeavor to put Cagle to work as soon as practicable. Cagle did not respond to that letter so Respondent through Anderson wrote her again on June 3, 1974, requesting that she come in by June 7, 1974, if she were interested in working for Respondent again. This time Cagle came to Respondent's plant and was given a job of "setting pockets," a sewing machine operation in which the operator sews pockets on garments while seated at a machine. The pocket-setting job, like her former tagging job, was paid on a piece work basis. Cagle testified that she only kept the "pocket setting" job about 2 or 3 weeks when she quit because she "just couldn't do a machine job." It was the testimony of Rebecca Adams, personnel director for Respondent, that Cagle only worked a "few days" on this occasion and then called in sick. She was terminated after 3 more days without calling in. Following the decision of the court of appeals adopting the findings and recommendations of the Special Master, Respondent, again through Plant Manager Anderson, wrote Cagle by letter dated June 2, 1975, advising her that "we will immediately re-employ you as a tagger as soon as an opening appears in our work force for taggers." 14 Cagle, who had undergone open heart surgery on March 25, 1975, responded to the June 2 letter by going to Respondent's plant on June 13 where she talked to Personnel Director Rebecca Adams. At Adams' request, Cagle filled out an application reflecting in addition to the usual information the fact that she had heart surgery earlier in 1975. In response to written questions on a supplemental sheet attached to the application Cagle indicated that she was able to work every day and that she could stand or sit all day and work. Cagle testified that she told Adams that if necessary she could get a doctor's statement regarding her ability to work. Adams, presented by the Respondent, 14 Notwithstanding the language of the letter, Lloyd Anderson testified that it was his determination to offer Cagle a tagging job "even if I had to go out there and pay a woman [tagger I to stand in the corner. could not recall any discussion with Cagle regarding a doctor's statement. Adams told Cagle that they did not have "anything" [tagger job] at the time and Cagle left the plant, leaving on her application the phone number of her mother, Mrs. Mova Miller, through whom she could be reached. It was Cagle's unequivocal testimony that following her application she had no further communication with Re- spondent whatsoever. She very specifically denied that she ever talked to Rebecca Adams after June 13, 1975. Respondent's witness Rebecca Adams testified, on the other hand, that following Cagle's departure from the plant Adams reported to Lloyd Anderson that Cagle had come in. Anderson, notwithstanding that no tagging jobs were available, directed Adams "to get it over with," to contact Cagle and offer her a tagging position. Adams testified that that same afternoon she phoned the number left by Cagle, talked to a woman whose name she did not get, identified herself and requested that the woman have Cagle call her.' 5 It was Adams' further testimony that a few days later Cagle phoned Adams and at that time told Adams she could not return to work because of her heart surgery. Adams also testified that she did not thereafter communicate with Cagle although she did see Cagle at Respondent's plant on a subsequent occasion, date unspecified, when Cagle came to the plant to see her two sisters who worked in the plant for Respondent. Contentions and Conclusions It is the General Counsel's contention in which the Charging Union concurs that based on Cagle's testimony Respondent never made an offer of reinstatement to Cagle. The Respondent's position on Cagle is two-fold, first that the reinstatement of Cagle in 1974 to the pocket-setting job satisfied its obligation under the court's order to reinstate Cagle to a "comparable or substantially equivalent posi- tion," and, secondly, even if the 1974 reinstatement did not satisfy such obligation it was satisfied by its 1975 offer through Adams which was declined by Cagle. Whether Respondent offered Cagle a "tagger" job in 1975 depends on whether one believes the testimony of Cagle as opposed to the testimony of Rebecca Adams, personnel director. Based on the demeanor of the witnesses and considering the record as a whole I credit Cagle. Cagle's testimony was emphatic and unequivocal. Further, a rejection of an offer of a "tagger" position for health reasons is entirely inconsistent with her action in having put in her application a few days prior to the alleged rejection and having marked on that application that she was physically able to work. Adams' testimony on the other hand was not as emphatic as that of Cagle. In addition, Adams was initially equivocal regarding what she was told by Plant Manager Anderson with respect to treatment of Cagle when and if she came in to apply for a tagger position in response to Respondent's June 2 letter. She ultimately testified she had no instructions with respect to what to do when Cagle came in. She thus told Cagle there were no tagging positions available. Anderson on the Is Cagle's mother, Mrs. Miller, testified that she had received no call from Adams and had not relayed any messages to Cagle from Adams or anybody else. 290 MARLENE INDUSTRIES CORP., ET AL other hand testified that he had told his personnel staff that "when they [respondees to the June 2 reinstatement offers] came in let them go ahead and file an application, bring their records up to date, and I wanted to talk to them and give them a job then."' 6 Accordingly, I do not accept Adams' testimony where Cagle's contradicts it. I therefore find that Respondent did not in fact offer Cagle reinstate- ment to her old tagger position on and after June 13, 1975. I also do not find merit to Respondent's argument that Respondent's offer, and Cagle's acceptance of, the pocket- setter job in 1974 satisfied Respondent's obligation under the court's order (then the Special Master's recommenda- tion). Without regard to whether the pocket-setter classifi- cation constituted a "comparable or substantially equiva- lent position" to the tagger position it is clear from the record that, in 1974, when Cagle was hired as a pocket- setter she was not given her seniority as of September 8, 1970, as required under the court order. Plant Manager Anderson testified along these lines as follows: Q. (By Mr. Goldberg) As I understand it, in 1974, you were not intending to reinstate people to their former jobs. Is that right? A. We offered them a job in order, if there were any backpay, that this would be cut off at that point and we were going to reinstate them if the Court so ruled. Q. If the Court subsequently decided that they were entitled? A. Yes. Q. Then you would give them their seniority? A. Yes. Q. And reinstate them to their former job? A. Yes. is based on the computations set forth in Appendix A which is attached to this Decision. The gross backpay figures in the appendix are based on those set forth in the specification and admitted by Respondent. The net interim earnings in the appendix are based on those set forth in the specification as amended at the hearing by the General Counsel. Upon the foregoing findings of fact, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 19 The Respondent, Marlene Industries Corporation, et al., Lexington, Tennessee, its officers, agents, successors, and assigns, shall make whole R. C. Brashers as net backpay to June 2, 1975, the amount of $18,102 plus interest accrued at the rate of 7 percent per annum as provided in Florida Steel Corporation, 231 NLRB 651 (1977), until payment of all backpay due, less tax withholding required by Federal and state laws. Backpay for R. C. Brashers and Peggy Cagle shall continue to accrue, the amounts of such backpay to be determined by supplemental proceedings, if necessary. 1s The Charging Union in its bnef requests that I "consider" ordering Respondent to pay litigation costs of the General Counsel and the Union. Due consideration has been given this request without regard to its appropriateness in a backpay proceeding; I conclude that Respondent's position in this proceeding has not been frivolous or so without foundation as to warrant imposition of such a remedy. 19 In the event no exceptions are lled as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the fundings, conclusions, and recommended Order herein shall, as provided in Sec. 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. Since it is obvious that Respondent intended only to limit its backpay liability and not to "reinstate" Cagle without regard to availability of her old job, and since she was not accorded her seniority during the period of her employ- ment by Respondent in 1974, it cannot truly be said that Respondent's offer to her of the pocket-setting job satisfied Respondent's obligation under the Special Master's recom- mendations which specifically required reinstatement to seniority.l 7 I find and conclude that it did not. III. CONCLUSIONS Based on the foregoing and the whole record, I conclude that Respondent has not offered reinstatement to R. C. Brashers nor did it offer reinstatement to Peggy Cagle. I further conclude that the total net backpay due R. C. Brashers, to June 2, 1975, only, is $18,102.58 This backpay 1a Here Anderson contradicted his own earlier testimony on the subject 1t Had Respondent intended to fully reinstate Cagle pursuant to the findings and recommended order of the Special Master it could have done so during the 2 months preceding June 1974, when it hired at least two taggers. I would not in any event find the pocket-setting job which Cagle took to be "comparable or substantially equivalent" since it clearly involved different skills and a new period of training and experience for proficiency. Yr & Qrcr 69-3 -4 70-1 -2 -3 -4 71-1 -2 -3 -4 72-1 -2 -3 73-3 -4 74-1 -2 -3 -4 75-1 -2 (6/2) TOTAL APPENDIX A R. C. Brashers Cross Interim Backpay E.rnings $478.26 1,620.33 1,480.78 1,524. 55 1,300.04 2,015.53 1 ,402.93 1,570.88 1,456.33 2,179.82 2.130.20 2,105.12 318.28 2,344.03 2,754.22 2,959.25 2,570.16 2,060.34 2,421.62 2.699.67 1,905.73 $412.75 1 ,072.50 1 072.50 1 ,072. 50 1,072.50 1,137.50 1,050.00 .1 37.50 1 ,37.50 121 7.50 1,137. 50 1,137.50 262.50 987. 50 1,185.00 1,185.00 1,228.21 1,003.32 1,101.35 741.12 903.76 Net Interim Net Exp. Earn!nsa eackpay 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 10.40 17.60 17.60 6.00 6.00 $412.75 1,072.50 1,072.50 1,072.50 1,072.50 1,137.50 1,050.00 1,137.50 1,137.50 1,217.50 1,137. 50 1,137.50 262.50 987.50 1,185.00 1,185.00 1,217.81 985.72 1,083.75 735.12 897.76 566 548 408 452 228 878 353 433 319 962 993 968 56 1,357 1,569 1,774 1 ,352 1,075 1,338 1,965 1.008 $18,102 *Rounded to nearest whole dollar. 291