Local 294, Teamsters

LOCAL 294, TEAMSTERS 155 Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca (Rubber City Express) and Leo F. Lester. Case 3-CB-1906 January 12, 1976 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On October 1, 1975, Administrative Law Judge Anne F. Schlezinger issued the attached Supplemen- tal Decision in this proceeding,' Thereafter, Respon- dent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor. Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the excep- tions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Albany, New York, its officers, agents, and representatives, shall take the action set forth in said Order. i On July 2, 1973, the Board issued the underlying decision in this case, reported at 204 NLRB 700. SUPPLEMENTAL DECISION ANNE F. SCHLEZINGER, Administrative Law Judge: On July 2, 1973, the National Labor Relations Board issued its Decision and Order ' in the above-entitled proceeding, in which Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, here- in called the Respondent, was ordered to make whole Leo F. Lester, an individual, for loss of earnings suffered as a -11of the Respondent having, in violation of Section and (2), "knowingly and deliberately caused -liscriminate against Lester in order to dis- exercising his Section 7 rights and to discourage other members from similarly doing so." On December 3, 1974, the Court of Appeals for the District of Columbia issued a per curiam Judgment 2 ordering enforce- ment of the Board's make-whole Order. A dispute having arisen over the amount of backpay due Lester under the terms of the Board's Order, the Regional Director for Region 3 (Buffalo, New York), on May 12, 1975, issued and served on the parties a backpay specifica- tion and notice of hearing. Thereafter the Respondent filed a timely answer to the backpay specification denying certain allegations in the specification and asserting a number of separate and distinct defenses as to the backpay claim.' Pursuant to -notice, a hearing was held before me in Al- bany, New York, on July 22 and 23 and August 4, 1975,4 for determination of the amount of backpay due Lester. All the parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence. Subsequent to the hear- ing, the General Counsel and the Respondent filed briefs on or about September 19, 1975, which have been fully considered.5 Upon the entire record in this proceeding and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT A. The Backpay Specification The Board's Order, enforced by the court of appeals, requires that the Respondent reimburse Lester "for all money lost as a result of its discrimination against him from July 7, 1972, until the Respondent refers him to a job substantially equivalent to the job he had with Rubber City Express or until he obtains such a job, less his net earnings during this period," with interest due in accordance with Board policy. The backpay specification, as amended, asserts that: (1) Lester's backpay period began on July 6, 1972, and ended on January 8, 1975, on which date he found substantially equivalent employment; (2) an appropriate measure of the hours Lester would have worked during his backpay period is the weekly average hours worked by his replacement, 2 Local 294, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America v. N.LR B., 506 F.2d 1321 (C.A.D.C., 1974) s The General Counsel, prior to the hearing herein, filed a motion to strike certain paragraphs of Respondent's answer and affirmative defenses to the backpay specification and to adopt General Counsel's gross backpay formula. Part of this motion was ruled on at the hearing and the remainder is disposed of as indicated below In addition, the General Counsel, at the opening of the hearing herein, filed a petition to revoke subpeona daces tecum, served by the Respondent on Lester, which was granted. 4 The recess from July 23 to August 4 was granted, over the General Counsel's objection, at the request of the Respondent in order that it might call a witness whose testimony it discovered during the July hearing was important to its case but who was then unavailable. The Respondent's re- quests for a further postponement until Or Forster, who was ill, could testify were denied to avoid further delay in concluding this proceeding Moreover, certain records of Dr Forster were made available to, and were placed in evidence by, the Respondent as discussed below. 5 Counsel for the Respondent also filed a motion to correct transcript. This motion, which is unopposed, is hereby granted, and the transcript is accordingly corrected. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ted Goodman, from the date Goodman, who was referred jobs prior to January 1975. by the Respondent, replaced Lester, through August 12, 1972, the date on which Rubber City Express last operated in the Albany area; (3) the weekly average hours worked by Goodman were determined by adding his gross weekly pay for each week he was employed by Rubber City Ex- press during the period beginning with the week ending July 15, 1972, and ending August 12, 1972, and the sum of total gross earnings was divided by the number of weeks during which Goodman worked in that period to arrive at a weekly average wage, and that average was then divided by $5.51, the wage rate in effect at that time, to arrive at the average weekly hours of work, these computations showing that the average weekly pay was $150.62 and the average weekly hours were 27.33; (4) although Rubber City Express was not a signatory to an area collective-bargain- ing agreement with the Respondent, it paid Lester and Goodman the wage rates set forth in such agreement, which rates increased at various times during the backpay period from $5.51 to $6.73 an hour; (5) the quarterly gross backpay for Lester was determined by multiplying the av- erage hours applicable to the respective calendar quarters by the corresponding applicable wage rates; (6) the calen- dar quarter net backpay is the difference between calendar quarter gross backpay and calendar quarter interim earn- ings; (7) the total net backpay due Lester is the sum of the calendar quarter amounts of net backpay due him; and (8) the total net backpay owing Lester, computed with deduc- tions based on Lester's quarterly interim earnings and a deduction for 1 week in which Lester was admittedly un- able to work as a result of an automobile accident, is $16,642.79, plus interest. B. The Respondent's Contentions The Respondent in its answer denies or asserts lack of knowledge as to some of the allegations in the specifica- tion. The Respondent also contends inter alia that (1) Lester's backpay period ended on or about August 3, 1972, when Rubber City Express discontinued its Albany opera- tion, or, alternatively, when Lester obtained jobs with cer- tain employers on various dates in 1972, 1973, and 1974, which were substantially equivalent to Lester's job at Rub- ber City Express; (2) the computation of hours of work should be based on the weekly average hours worked by both Lester and Goodman for Rubber City Express, not on those worked only by Goodman, and, alternatively, the computation in the specification is speculative as it fails to consider the temporary nature of the work at Rubber City Express; (3) Lester failed to make a diligent attempt to obtain employment during the period in question, and failed to register at job referral agencies including the of- fice of the Respondent; (4) Lester sustained accident inju- ries which made him physically unable to perform substan- tially equivalent work for a period of time longer than 1 week; and (5) the Board's Order requires that the backpay specification allege and prove that the Respondent dis- criminated against Lester by failing to refer him to sub- stantially equivalent jobs which were available for referral, that this has not been shown, and that the Respondent did refer Lester to several jobs and Lester did obtain various C. Discussion The Respondent has been ordered to make Lester whole for losses of earnings caused by its discrimination against him by reimbursing him for such losses "from July 7, 1972, until the Respondent refers him to a job substantially equivalent to the job he had with Rubber City Express or until he obtains such a job, less his net earnings during this period." The specification as amended finds that the Respondent's obligation under this order is to pay Lester the sum of $16,642.79 plus interest. (1) The Respondent maintains that the specification re- lied on incorrect factors in computing backpay on the basis of Goodman's earnings and of the rates of pay in the Respondent's area contract. The Board found, however, that the Respondent unlawfully caused Lester, after he had worked only a day or two at Rubber City Express, to be replaced by Goodman on that job. And the testimony, by witnesses for the Respondent as well as for the General Counsel, shows that Rubber City Express, while not a sig- natory to the Respondent's area contract, paid the contract wage rates during the period of its Albany operation. These rates are, therefore, a proper standard for determining the amount of backpay due Lester, and the number of weekly hours Goodman worked on this job constitutes an appro- priate measure of what Lester would have earned on this job absent the discrimination against him. The specification as amended deducts from gross back- pay amounts in mitigation discovered through examination of social security and other applicable records, including earnings on interim jobs and a period of unavailability for work for health reasons. Further, as the court stated in N.L.R.B. v. Brown & Root, Inc., 311 F.2d 447, 452 (C.A. 8, 1963): Obviously, in many cases it is difficult for the Board to determine precisely the amount of backpay which should be awarded to an employee . . . the Board may use as close approximations as possible, and may adopt formulas reasonably designed to produce such approximations.... "our inquiry may ordinarily go no further than to be satisfied that the method selected cannot be declared to be arbitrary or unreasonable in the circumstances involved." The formula applied in the instant case has not been shown to be "arbitrary or unreasonable." 6 Accordingly, I find ap- propriate the method of computation utilized in this pro- ceeding to determine the amount of backpay due Lester. (2) The Respondent contends that backpay should be cut off as of the date Rubber City Express discontinued its hauling operation into Albany, which occurred on August 6 Where circumstances permit only a reasonable approximation of the amount of backpay due, "any uncertainty must be resolved wrongdoer whose conduct made certainty impossible" Products Corp., 180 NLRB 142 (1969), enfd 436 F 2d^' cert denied 493 U S 905 (1971); NHE/Freewa- (1975); Local Union No. 2088, International Br ers (Federal Electric Corporation), 218 NLP,' dustries, Inc, 219 NLRB No. 159. LOCAL 294, TEAMSTERS 157 12, 1972.7 Although this discontinuance was brought out at the original hearing, backpay was not cut off as of that date in the Board's Order, which requires the Respondent to refer Lester not to a job at Rubber City Express but "to a job substantially equivalent to the job he had with Rub- ber City Express " Furthermore, the issue as to the effect of this discontinuance on the Respondent's backpay liability was raised in the enforcement proceeding, and the court of appeals nevertheless ordered enforcement of the Board's backpay Order. I find no merit, therefore, in the Respondent's contention that the backpay cutoff date is August 12, 1972. I likewise find no merit in the Respondent's contention that backpay should be cut off as of the dates in 1972, 1973, and 1974 when Lester obtained occasional work. The testimonial and documentary evidence shows, and I find, that these jobs were temporary, to replace a man who was unavailable for a brief period, to furnish extra help for an unusual or seasonal increase in work, or on some other basis as needed for periods ranging from a day to a few weeks. The Respondent, however, had Lester replaced by Goodman on what was at the time expected to be a perma- nent job with Rubber City Express. (3) The Respondent contends that Lester failed to use due diligence in seeking interim employment and argues that this is shown by Lester's failure to register at the hiring hall when jobs were available although representatives of the Respondent had advised him to do so. The Board's Order, however, does not condition backpay on the fre- quency with which Lester registered at the hiring hall, but on the Respondent's referral of Lester to a substantially equivalent job.' Moreover, Lester, who at all times main- tained his paid-up union membership, did on a number of occasions go to the hiring hall in person to register for work, at times waited there for hours to see if work would be available, and frequently, to avoid these waiting peri- ods, telephoned the hall, while looking elsewhere for work, to leave word where he could be reached by telephone if there was a job for him. The Board in its Decision found that Lester, after the Respondent brought about his replacement by Goodman, had great difficulty in finding work, and that the work he found was pnmarily outside the Respondent's jurisdiction as a longshoreman and as a "gypsy driver." The present record shows that this difficulty continued after the Board's Decision issued. On many occasions when Lester went to the union hall to register or telephoned to ask for work, he was told by the office worker who took calls and made referrals, and by the business agent who also made referrals, that jobs were scarce and no work was available. Lester was at the hall on or about June 8, 1973, when a call was received that there was work available at Great Bear 7 The Rubber City Express operation was discontinued as too costly as a result of demands made by the Respondent s In its exceptions to the original Administrative Law Judge's Decision, the Respondent specifically excepted to "the recommended remedy in that there is no requirement that Lester follow the same procedures as other Local 294 members in reporting to the Union hall each morning in order to be listed as available for referral to jobs such as the one made available by Rubber City Express " The record is clear, however, that men were referred to jobs who were not at the union hall when the jobs became available Spring Company. Although this work was rejected by the other men at the hall, it was not offered to Lester. He heard of it from the other men, telephoned the company, and obtained the work. The Respondent telephoned Lester, who was not at the hiring hall that day, and referred him to a job at M & M Transportation Company. One of the Respondent's wit- nesses testified from the hiring hall records that this refer- ral was made on February 23, while another witness testi- fied that such a referral was made on March 23, 1973, and also that a referral at Williams Press was offered Lester by telephone on March 8, 1973, but he rejected it as he had to go to court that morning with his son. Lester testified that he worked on the M & M job a few days at a time during a vacation period for a total of about 1-1/2 weeks, and that this was the only job to which the Respondent referred him during the backpay period. An official of Williams Press testified that company records showed no one was hired on March 8, 1973, or any time during that month. I find, on the evidence as a whole, that the Respondent has not shown that it referred Lester to a substantially equivalent job, or that it offered him such a job which he rejected, or that its failure to refer Lester to such a job was attributable to Lester's absence from the hall when jobs became avail- able as his presence at the hall was clearly not a prerequi- site to referral. (4) The Respondent also contends that Lester failed to utilize other possible sources for obtaining interim employ- ment . The record shows,-however, that Lester in August 1972 began receiving payments from the Unemployment Compensation office, which refers recipients to jobs when available? He also received some food stamp assistance but rejected an offer of welfare payments as he hoped to find work. Moreover, Lester, in addition to visiting and telephoning the union hall, sought work through employ- ment agencies, newspaper advertisements, friends, political connections, and, primarily, by making the rounds of freight terminals, trucking companies, and other firms that employed men in his field of work.10 I find, therefore, that the evidence does not support this contention of the Re- spondent. (5) The Respondent argues that Lester incurred a willful loss of earnings on the ground that Lester formerly "shaped up" for and frequently obtained longshore work, but failed to shape up for this work during most of the backpay period. As a result of injuries sustained in an au- tomobile accident while on his way to work at the Port of Albany on July 21, 1972; Lester was not able for a period after that to perform work as strenuous as longshore work. He admitted he did not shape up after the accident because of his injuries, and also because this work had become ex- tremely difficult to obtain. Augustine Crocco, president of the local longshoremen's union, whom I found a frank and credible witness, testified that this kind of work had be- come scarce in the past few years as a result of several 9It is the Board's longstanding practice affirmed by the courts, as the Respondent conceded during the hearing, to disallow deductions from backpay for collateral benefits such as unemployment compensation Gul- lets Gin Company, Inc v N L R B, 340 U S 361 (1951) 10 Lester testified that his current employment with the New York State Government was obtained through a friend 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD factors including automation; that the gangs, which includ- ed union and nonunion men, had been reduced from four to three; that preference for the available work had to be given to those who had books; that Lester had not worked the 1,000 hours a year required to obtain a book; and that even the men who had books were working only about 2 days a week. The Respondent also points to the fact that Lester reject- ed a job offered him by the State Employment Office. Les- ter testified that thisjob was in Dwaynesburg, about 20-25 miles from his home; that he rejected it because of the distance as his "automobile wouldn't hold up" and it would mean getting home late; that he had never worked out of town as he had children at home and no wife or other adult to look after them in his absence;ii and that this fob paid $2.50 an hour, less than half the contract rate he was paid on the Rubber City Express job. 12 In addition, Teneyck Powell testified, as a witness subpe- naed by the Respondent,13 that he was president of Davis Seed Company, a garden business which was seasonal and affected by weather; that Lester was hired in about Febru- ary 1974 at $3.25 an hour to assist during the busy season, which usually ran until about July 1; that business slowed down, however, to such an extent that Lester was not need- ed and was terminated on March 17; that he did not ob- serve Lester at work but understood Lester was not a com- pletely satisfactory employee, had poor customer relations, and was not cooperative with the warehouse men; that he never explained to Lester these aspects of the work nor gave any reason for the termination other than that Lester was no longer needed; and that he did not recall when he hired another man. Lester testified that while on this job he asked for a wage increase a few times, and that he was finally told that the company, while satisfied with his work, could not afford him and was getting another man in his place. The Board's Decision in this proceeding points out that the president of Rubber City Express at the time Lester worked there had asserted that "Lester performed the unloading to its full satisfaction." And Crocco, who had known Lester through the work at the dock for over 20 years, testified that Lester never refused any kind of work, and was a hard worker and "a little bit better than most." I find, in all the circumstances of this case, that Lester was evidently well aware of his family responsibilities, and anxious to find and to retain work that would enable him to carry out these responsibilities as well as to mitigate backpay.14 The record shows that it was Lester who found 11 Lester testified that his truckdriving jobs sometimes took him out of town, but that on these jobs he was directed to the work by telephone with his base of operations in town, and that he would have accepted such work 12 See N L R B v Madison Courier, Inc, 472 F.2d 1307 (C.A D C., 1972), which holds that a discriminatee need not seek or accept "employment which is 'dangerous, distasteful or essentially different' from his regularjob" or "ever accept anything but 'suitable' interim employment"; United Aircraft Corporation, 204 NLRB 1068 (1973) i Davis, previously unavailable, was called by the Respondent when the hearing resumed on August 4 14 The Board and the courts hold that a reasonably good-faith effort to obtain interim employment "requires conduct consistent with inclination to work and be self-supporting evidenced by the sincerity and reason- ableness of the efforts made by an individual in his circumstances to relieve virtually all the jobs at which he worked during the pro- tracted backpay period; that when the Respondent failed to refer him to, and he did not find, a substantially equiva- lent job, he "lowered his sights" to accept various lower paying and less desirable fobs, Is and that the job conceded to constitute substantially equivalent employment was one that Lester obtained through his efforts, not by a Respon- dent referral. The evidence presented by the Respondent does not establish that Lester neglected to seek interim jobs, invited discharge by poor work performance, or re- jected jobs for inadequate reasons.I" Accordingly, I find that the General Counsel has shown that Lester did use due diligence in obtaining interim employment, and that the Respondent has not met its burden of proving willful idleness or loss of earnings on the part of Lester.) (6) The backpay specification was amended to deduct $150.62 from the total backpay due Lester on the basis of a I-week disability resulting from an automobile accident on July 21, 1972. There was no reference to this matter in the original specification. In his motion to strike, however, the General Counsel stated, in response to one of the affirma- tive defenses in the Respondent's answer, that he "is pre- pared to stipulate that the period that Lester was unavail- able for work due to a physical disability from a nonindustrial accident having no casual [sic] connection with Respondent's illegal conduct should be deducted from Lester's total backpay," and, at the hearing, the Gen- eral Counsel amended the specification by deducting I week's backpay. The Respondent contends that Lester was unavailable for work following the accident for considerably longer than I week. Counsel for the Respondent attempted to subpena Dr. Forster, who treated Lester after the accident, and after Lester had been examined and released by a hos- pital. Counsel stated, however, at the July hearing, that he was advised the doctor was recovering from an operation and would not be available to testify for "several weeks," and, at the August hearing, that he was advised the doctor "probably would be available" in a month. He urged at the August hearing that, if his repeated requests for a.post- ponement until Dr. Forster could testify were denied, he be permitted to place in evidence certain records furnished by Dr. Forster. This request was granted over the General Counsel's objection. These records include a letter of Dr. his unemployment Circumstances include the economic climate in which the individual operates. his skill and qualifications, his age and his personal limitations" Mastro Plastics Corp, 136 NLRB 1342, 1359 (1962), enfd 354 F 2d 170 (C A 2, 1965), cert denied 384 U S. 972 (1966) 15 See N.L.R B v Cashman Auto Company, 223 F 2d 832, 836 (C A I, 1955), holding that the "principle of mitigation of damages does not require success , it only requires an honest good faith effort", N LR B v. Madison Courier, Inc, supra, holding that doubts as to when a backpay claimant is justified in lowering his sights should be resolved "in favor of the innocent discriminatee", Local Union No 2088, 1 B E W, supra, stating that the Board's "paramount concern must be in protecting the rights of the wronged party"; Avon Convalescent Center, inc, 219 NLRB No. 91 (1975). 16 The Supreme Court holds that deductions are made from a discriminatee's gross backpay "for losses which he wilfully incurred" by a "clearly unjustifiable refusal to take desirable new employment ." Phelps Dodge Corp v. NLRB , 313 U S. 177, 197 (1941) 17 See NLRB v Pugh and Barr, Inc, 231 F.2d 588 (C A 4, 1956); N L.R B v Southern Silk Mills, Inc, 242 F 2d 697 (C A 6, 1957), cert denied 355 U.S 821, United Aircraft Corporation , supra, NHE/Freeway, Inc, 218 NLRB No 41 (1975) LOCAL 294, TEAMSTERS Forster dated July 29, 1975, stating that "I cannot possibly appear in any court in the immediate future inasmuch as I was operated on . . . on July 16, 1975, and am convalesc- ing slowly." One of the doctor's reports placed in evidence by the Respondent states, under date of July 24, 1972: I telephoned the Albany Hospital and obtained the following report: "7/21/72-Cervical spine: There is no evidence of fracture or dislocation... . Thoracic spine:. .. There is no good evidence of any recent injury . . . The Respondent also placed in evidence certain records furnished, pursuant to subpena, by Richard Kohn, the at- torney who represented Lester in the claim for damages against the party who caused the accident. These records include a report dated September 12, 1973, prepared by Dr. Forster at Kohn's request, which states that Lester was ex- amined immediately after the accident at a clinic and was given medication but not detained; that Lester consulted the doctor 3 days later; that the doctor, who had treated Lester previously, put him "on a regime of medication con- sisting of muscle relaxants and analgesics" and that Lester "was given physical therapy, including cervical traction quite regularly through November 9, 1972"; that "Diagno- sis, following initial examination was: strain, neck and back. In addition to the treatment already outlined, patient was also given an elastic belt, and was advised to use hot soaks at home. . . . patient made some progress . . . he ultimately began using an adequate corset." The report concludes that Lester has not returned to see the doctor, since November 9, 1972, that the doctor did not know his status since then, but that "I expect a full recovery in the long run." Lester admitted at the hearing herein that he was under the doctor's care about 7 months, but maintained that, while he was unable for a substantial period thereafter to do work as strenuous as longshore .work, he was incapaci- tated for only I week from performing his usual truckdriv- ing and warehouse work. He had no job at this time to which to return when he recovered from his injuries, but testified that after the 1 week's disability he resumed searching diligently for work. At the original hearing in this proceeding, however, Lester testified that he was unable to work for 3 or 4 weeks after the accident. Kohn, called as a witness by the General Counsel, testi- fied that his office prepared a bill of particulars in connec- tion with the claim for damages arising from the accident. This document states in part that: "(10) Plaintiff was sub- stantially confined to his home, except for visits to his phy- sician and for necessaries, for a period of approximately one week following the accident. . . . (12) Plaintiff was prevented from pursuing his usual employment for approx- imately one week following the accident. . . . (14) Plaintiff was a teamster, employed by McGrath Corporation at the Port of Albany, earning wages of approximately $210 for a forty-hour week." The Respondent at the hearing objected to Kohn' s testi- mony and to the evidence adduced as to the bill of particu- 159 lars on the ground that this document, prepared after is- suance of the Board's Decision herein, was "a self-serving document signed by Mr. Lester who well knew at the time he signed it that he had a back pay compliance proceeding in the offing." 18 Kohn testified, however, that the bill of particulars, which is addressed to the law firm representing the defen- dant in the accident case, was prepared at the demand of that law firm and responds to each item in that demand; that his law office "prepared it from the records that were available to us, the medical bills, the medical report, the estimate to the damage to his car, the receipts for the bills that he had incurred in connection with his care and treat- ment"; and that Lester came to the office and reviewed and signed the document, but "had no input in the prepa- ration of that Bill of Particulars." Lester impressed me generally as a candid and believa- ble witness. While there are, as in this instance, some in- consistencies in his testimony, they appeared to be attribut- able to the effect of the passage of time on his recollection rather than a deliberate attempt to misrepresent what oc- curred. Furthermore, I found Kohn a wholly credible wit- ness. There is no basis in the record for finding that Kohn claimed a 1-week disability in the lawsuit because of a pos- sible backpay proceeding before the Board. Accordingly, I find, on the basis of Kohn's credited testimony and on the entire record, that the Respondent has failed to show that Lester was unavailable for work for a longer period after the accident than the I week for which the General Coun- sel has deducted backpay. Concluding Findings It is well established that the Board has broad authority in determining backpay remedies that will "bring about a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimina- tion," and that will make one who has been discriminated against whole for any loss of earnings suffered as a result of the discrimination.19 It is also well established that, after the General Counsel has computed the gross amount of backpay due the discriminatee in question, the burden of proving events that warrant a diminution of these amounts devolves upon the party who unlawfully discriminated against or caused the discrimination against the backpay claimant,20 and uncertainties as to the amounts due are resolved against that party.21 In accord with this broad au- thonty, the Board orders a union which causes an employ- er to discriminate against employees to restore these em- ployees "as closely as possible, to the . . . financial status 18 The bill of particulars was signed on June 3, 1974 , almost a year after the Board's Decision, and about 6 months before the court's order 19 Phelps Dodge Corp v N L R B, supra, N L R B v J H Rutter-Rex Manufacturing Inc, Company, 396 U S 258, 262 (1969), N L R B v. United States Air Conditioning Corp, 336 F 2d 275 (C A 6, 1964), Golay & Compa- ny, inc v NLRB, 447 F 2d 290 (C A 7, 1971), cert denied 404 U S 1058 (1972) 20 N L R B v Brown & Root, Inc, supra, N L R B v Miami Coca-Cola Bottling Company, 360 F 2d 569 (C A 5, 1966), N L R B v Madison Courier, Inc. supra 21 N L R B v Miami Coca-Cola Co, supra, Local Union No 2088, IBE W, supra 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they would have occupied if it had not been for the dis- crimination." 22 The Board requires the union in such cases to reimburse the affected individual for what he would have earned, as an employee of the employer who termi- nated him or in comparable employment, absent the union's discriminatory conduct,23 where the claimant has made a reasonable effort in good faith to mitigate his loss of income.24 I find, in all the relevant circumstances of this case, that the Respondent has failed to show that the effect of its discrimination in causing the termination of Lester's em- ployment by Rubber City Express has been cut off by any job referral it made, or that it has taken any other mean- ingful action to remedy its discrimination against Lester in an effort to cut off its continuing liability for backpay prior to Lester's finding substantially equivalent employment in January 1975. I also find that the evidence does not show that Lester failed to exercise due diligence in seeking inter- im employment, that he incurred willful losses, or that the occasional temporary interim jobs he found in 1972, 1973, and 1974, constituted substantially equivalent employment that would terminate the Respondent's backpay liability. I find further that the only effect of such interim employ- ment that is warranted in this case is that Lester's earnings should be, and have been, deducted from the backpay due Lester. It is apparent, therefore, and I find, on the basis of the foregoing and the entire record, that the Respondent was required by the Board's Order to make Lester whole from July 6, 1972, until the Respondent offered him or he found substantially equivalent employment; that he concededly found such employment on January 8, 1975; that the Re- spondent has failed to meet its burden of showing, by cred- ible and probative evidence, that any job referral by the 22 Pen and Pencil Workers Union, Local 19593 (Parker Pen Co). 91 NLRB 883, 888 (1950) 23 See, for example, Local 17, international Union of Operating Engineers (Vogth & Sons Construction Corp ), 143 NLRB 29 (1963), Dependable Truck Leasing, Inc, 190 NLRB 422 (1971) 24 N L R B v Madison Courier, Inc., supra Respondent, Lester's search for work , the interim jobs Les- ter found, Lester's rejection of a job, the effects of Lester's automobile accident, or any of the other conduct or events asserted by the Respondent as grounds for mitigation of its backpay liability, warrant an earlier cutoff date than Janu- ary 8 , 1975, or any diminution of the amount found to be due Lester in the backpay specification , as amended. In conclusion , therefore, I find that , in order for the Respon- dent to make Lester whole for the loss of earnings suffered by him as a result of the Respondent 's discrimination against him, as required by the Board 's Order, enforced by the Circuit Court of Appeals for the District of Columbia, the backpay remedy in this case must include what Lester would have earned, absent the Respondent's discrimina- tion, on a job substantially equivalent to the job he had with Rubber City Express, from July 6, 1972, until Lester began work on a substantially equivalent job on January 8, 1975. I shall therefore recommend that the backpay spec- ification , as amended , be adopted, and that Lester be awarded the amount of net backpay set forth therein. Upon the basis of the foregoing findings and conclu- sions, and upon the entire record in this case , I recommend that the Board issue the following: ORDER25 The Respondent, Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Albany, New York, its officers, agents, and rep- resentatives, shall satisfy its obligation to make Leo F. Les- ter whole by payment to him of the sum of $16,642.79, plus interest thereon accrued to the date of payment at the rate of 6 percent per annum, computed in the manner specified in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).26 25 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, 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 26 International Photographers of the Motion Picture Industries, Local 659, etc, 216 NLRB No 120 (1975)