Lizdale knitting Mills, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lizdale Knitting Mills, Inc. and Knitgoods Workers Union Local 155, International Ladies' Garment Workers' Union, AFL-CIO. Case 29-CA-3426 September 29, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 9, 1977, Administrative Law Judge Anne F. Schlezinger issued the attached Supplemental Decision in this proceeding.' Thereafter, Respondent filed exceptions and a supporting 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 Supplemental Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, 2 and conclusions of the Administra- tive 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Lizdale Knitting Mills, Inc., Queens, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IThe Board's original decision is reported at 211 NLRB 966(1974). 2 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 credibility 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 her findings. SUPPLEMENTAL DECISION ANNE F. SCHLEZINGER, Administrative Law Judge: On June 25, 1974, the National Labor Relations Board issued its Decision and Order' in which it directed Lizdale Knitting Mills, Inc., referred to herein as Respondent, inter alia, to make whole four employees, Abelardo Ceballos, Luz Maria Villada, Eucaris Ceballos, and Marta Guerrero, for losses of earnings resulting from their unlawful terminations by Respondent on May 31, 1973. The United States Court of Appeals for the Second Circuit, on September 26, 1975, issued its opinion granting enforce- I 211 NLRB 966. 523 F.2d 978. 232 NLRB No. 70 ment of the Board Order 2 and, on November 18, 1975, entered its judgment ordering enforcement. Controversy having arisen over the amounts of backpay due the discriminatees under the terms of the Board Order enforced by the court of appeals, the Regional Director for Region 29, on September 30, 1976, issued a backpay specification and notice of hearing, to which Respondent filed a timely answer. Pursuant to notice, a hearing was held before me in Brooklyn, New York, on December 1 and 2, 1976, and January 12, 13, and 14 and February 16 and 17, 1977, for determination of the amounts of backpay due the discriminatees. 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 hearing, Respondent, on or about April 25, 1977, filed a brief which has been duly considered. The General Counsel has not filed a brief. 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 Claimants The Board and court decisions identify the discrimina- tees as Abelardo Ceballos, his two sisters, Eucaris Ceballos (who was identified in the instant proceeding as Eucarias), and Marta Guerrero (who was Marta Ceballos before her marriage), and his girl friend, Luz Maria Villada (who at the time of the instant hearing was his wife). They will be referred to herein collectively as the backpay claimants and individually as Abelardo, Eucarias, Marta, and Luz Maria. As all four backpay claimants were from Colombia, spoke Spanish, and knew little English, each of them testified through an interpreter. 3 B. The Backpay Specification The parties stipulated at the hearing to certain amend- ments in the backpay specification and in Respondent's answer. One stipulation was that the backpay period should begin on May 31, 1973, and terminate on October 22, 1975, when Respondent offered all four backpay claimants reinstatement which they declined. Another stipulation was that the backpay specification correctly states that an appropriate measure of the gross backpay which each claimant would have earned during the backpay period is the hourly rate of pay as set forth therein multiplied by 41 adjusted hours, this adjustment reflecting time and one-half paid for hours worked over 40 per week, computed on a calendar quarter basis. The parties also agreed to the deduction of periods of plant closings for unpaid vacations, to changes based on exact figures as to certain interim earnings that were received from Social Security subsequent to the preparation of the backpay specification, to addition of a bonus that was given employees in 1973 but not for 1974 when none was given, and to certain changes based on books and records that Respondent made available for examination at the hearing. 3 There were three different interpreters during the course of the hearing. 592 LIZDALE KNITTING MILLS Most of the changes made in the backpay specification were read into the record. Because they were so numerous, an amended backpay specification was prepared, which was thereafter further amended during the hearing. The General Counsel reported, late in the hearing, that Eucarias, who received unemployment compensation for about 2 months after her discharge, had just advised him that she earned $400, not previously reported, on a job she held under an assumed name; that, as she was receiving unemployment compensation at the time, she did not report these earnings to Social Security; and that she had understood only social security items were to be reported for the backpay specification. Eucarias was not recalled to testify about this. The parties agreed that $400 would be deducted from the backpay due Eucarias for the second quarter of 1973, making the amount due for that quarter zero. As the amended backpay specification provides net backpay for that quarter of $225, this amount has been deducted from the $6,638 total found in the amended backpay specification to be due Eucarias, making that total $6,413. The backpay specification, as amended at the hearing and herein, accordingly claims that, on the basis of the facts and calculations pertaining to interim employment, earnings, and expenses, Respondent's obligation to make the discriminatees whole, under the Board Order enforced by the court of appeals, would be discharged by payment to the employees named below of the following amounts, plus interest accrued to the date of payment, minus the tax withholdings required by Federal and state laws: Abelardo Ceballos Luz Maria Villada Marta Guerrero Eucaris Ceballos $3,814 3,627 5,993 6,413 C. The Respondent's Contentions The backpay specification included a 15-cent increase in 1974 and a 10-cent increase in 1975 in the wage rates of all four backpay claimants based on increases at those times in the Federal minimum wage rates. Respondent contends, section D, this was unwarranted as to Abelardo and Marta, who were being paid more than the minimum rates. Respondent also contends, section E, that the backpay period of each claimant should be reduced because each would have been laid off, and not thereafter reemployed, for lack of work each was capable of performing. Accordingly, Respondent urges that the backpay period, as to Abelardo, should terminate on or about February 10, 1974, and that there would have been no work available for him during 6 weeks prior to that date or at any time thereafter during the backpay period; as to Marta, should terminate on or about August 19, 1973; and, as to Eucarias and Luz Maria, should terminate on or about December 22, 1973. Respondent further contends, section F, that jobs in the knitting industry, for which the backpay claimants, on the basis of their experience, could have qualified, were available during periods of their unemployment; that their testimony with regard to attempts to find work during the backpay period was vague, indefinite, and incredible; that the evidence showed that they were not making adequate searches for interim employment; and, therefore, that the amounts of backpay found due should be abated in certain periods because, and to the extent that, the backpay claimants incurred willful losses of earnings by failing to make reasonably diligent searches for interim employment. D. The Wage Increase At the time of their discharges on May 31, 1973, the backpay claimants were receiving the following rates of pay: Abelardo Marta Eucarias Luz Maria $2.50 2.25 1.85 1.85 The backpay specification increased each of these wage rates by 15 cents on the basis of the Federal increase in the minimum rate, effective May I, 1974, from $1.85 to $2 an hour, and by 10 cents on the same basis the following year. At the hearing, the General Counsel withdrew the claim based on the 1975 increase. Respondent opposed the 1974 increase as to Abelardo and Marta, whose wages were above the minimum rates. The parties stipulated at the hearing that the employee complement was approximately 39 hourly paid employees at the time in question; that at least 24 employees not covered by the statutory requirement received raises at that time; that at various times during May 1974 "all employees on the payroll with certain exceptions" received a raise of 15 cents an hour; and that the exceptions were 2 who received increases of more than 15 cents, and several who received no increase including 3 who were newly hired at $2, a mechanic who received a salary of $400 a week, an assistant to the floorlady who received a salary of $300 a week, and Dolores Geddies who was raised from the $2.25 she was paid as a separator to $2.50 when she replaced Abelardo on the steamingjob. I find, on the basis of the stipulations of the parties and all the relevant circumstances of this case, that, as virtually all the hourly paid employees received a 15-cent increase during May 1974 after the Federal minimum wage increase became effective, it was reasonable to assume, in preparing the backpay specification, that Abelardo and Marta would likewise have received such increase. I find, therefore, that Respondent has not established that the 15-cent increase should be deducted from the amounts of backpay found to be due Abelardo and Marta. E. The Layoff Contention Respondent manufactures sweaters under contract with customers who furnish the materials and determine the styles. At the time of the discharges on May 31, 1973, Marta had been employed by Respondent about 2 years, Eucarias a little less than a year, Abelardo almost 6 months, and Luz Maria about 4-1/2 months. Abelardo did the steaming, Marta laid out materials for the cutter, and Eucarias and Luz Maria did cleaning work which, in Respondent's operation, meant clipping threads from garments. 593 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Abelardo maintained that he did pressing as well as steaming, that he had no prior experience but was shown how to perform these operations by Gelbord, Respondent's president, and the floorlady, and that he learned pressing quickly because he could observe what the pressers were doing from his nearby steaming table. He testified that he also, on a few occasions, cut threads to separate garments, cleaned garments, packed, helped load and unload trucks, brought material to operators, and helped in other capacities. In addition, he cleaned the plant and offices on Fridays after work. He testified that many employees spoke different languages, and that working at this plant did not require a knowledge of English. Marta testified that for about 2 days after her hire she pulled strings to separate pieces; that she was shown how to do the work for the cutter -- she did not know what the job was called on which she had no prior experience, and continued on that work until her discharge; that she also sometimes cut threads; that she packed for a day or two after the floorlady had someone show her how to do this; and that a few times she modeled new styles in the office. Eucarias testified that, in addition to the cleaning work, she operated the label machine, and she and Luz Maria testified that the latter did so when Eucarias was absent. Eucarias testified that she also at times operated various machines which she learned to do in Colombia, and other machines on which she was trained by the floorlady, and that some of her interim jobs involved operation of these machines. She admitted she could not recall the details of some of these machines and their operations, and ex- plained that it was difficult to do so after 4 years. Luz Maria testified that, for about 4 days after her hire by Respondent, she separated pieces, work on which she had no prior experience but learned very quickly from the floorlady; that the floorlady showed her how to do various other jobs; that she operated the label machine in Eucarias' absence, and operated a Remoldi machine one day; that she occasionally marked the places where buttons were to be placed on the garments; but that her principal job was cleaning, which she did with about a dozen girls including sometimes Eucarias. Respondent contends that the backpay claimants lied about their abilities and experience, and that all four, if they had not been discharged, would have been laid off at some point during the backpay period, and not recalled, for lack of work, as was the case with some employees who performed the same kinds of work and had greater seniority than the backpay claimants. Gelhord testified about this in part as follows: A. The very first thing I do you have to layoff people which I feel very sorry about it for myself and for them. I have to layoff and I have to I am laying it off there is I am la)ing off first which I Now what I am talking about The floorlady actually she is laying them off or she comes to me and discussed who is going to be paid off. Although Gelbord, president of Respondent, admitted that Respondent had no shop rules and no formal seniority system, that seniority was not followed strictly on layoffs but only as a guide, and that he kept the better workers even if they were relatively new, he maintained that he would have laid off all the backpay claimants on the basis of seniority. Herskovitz, Respondent's floorlady for 11 years, who does most of the hiring, had hired all the backpay claimants. Gelbord, his business partner, and Herskovitz can and do discharge employees. They consult with one another about layoffs for lack of work.4 Gelbord testified that the steaming, which Abelardo performed, is done at the beginning of the manufacturing process; that it does not require experience and Abelardo had none to Gelbord's knowledge; and that it took only a couple of days for Gelbord to train Abelardo on the steaming work. Gelbord admitted that he testified at the original hearing in this proceeding that Abelardo came in to do on-the-floor work before he trained Abelardo on steaming, but maintained at the instant hearing that Abelardo did only steaming. He admitted that Abelardo may have helped with on-the-floor work occasionally, "definitely not" taking away yarn and packing sweaters but possibly helping a boy carry yarn, and, finally, that Abelardo may have been assigned for a few days to on-the- floor work and might at times have done work that he did not know about. Gelbord also testified, as to Abelardo being trained as a presser, "In our place no. In some other places maybe yes. In our place no because I am not doing that." He explained that he had two experienced pressers who had been employed for many years. Gelbord testified that he gave Abelardo the job of cleaning the plant after work on Fridays, that he did not object when he noticed that the other members of the family were helping Abelardo with this work, and that they were paid overtime for this work that was done after their regular hours. Gelbord testified that Dolores Geddies, who replaced Abelardo and was raised at that time from $2.25 to $2.50, was laid off for lack of steaming work in August and recalled in September 1973; that she was laid off again in February and recalled in March 1974, but not for steaming work; and that this work has been performed by Garcia and Goodman, and was being performed at the time of the hearing by Goodman. At a later point, however, he testified that Geddies in February 1974 was employed as a separator and was on the payroll in August 1974 as a steamer at $2.50. Finally, on the last day of the hearing, Gelbord asked to correct his previous answer as to Geddies, and stated that Geddies was laid off in February Q. What is the policy? A. If I take the book out and say which one operates from this machine and this machine I say how many and which one, this one I don't want and I ask why this is a good worker this one I would like to keep. No objection. I have seen she lays off mixed. I say why this this just works here a couple of weeks why do you want to keep her she just started. She says she is verv good. I have no objections. She lays off and out of curiosity I ask her what is the story I hear this one is here longer and they're both alike so I -- She has - I want her to say here. 594 LIZDALE KNITTING MILLS 1974 for 3 or 4 weeks, that she came back to work on the slicing machine, and that she was laid off in August because it was too expensive to pay her $2.50 for this operation. Gelbord testified that the floorboy takes in the yarn shipments, brings yarn to the knitters, packs, and does general work; that some of this work is semiskilled but does not require much training; that he could not give Abelardo a skilled job; and that the floorboy, who is still employed, began to work about 6 months before Abelardo did. Gelbord testified that Marta did only layout work; that she was hired for this job although he believed she had no experience at it and it is skilled work; that he and the floorlady, neither of whom speaks Spanish, taught Marta this work; but that he could not have trained Marta for other work as he would not have trained her or the other backpay claimants on machine operations because of the problem of communication, because he does not hire machine operators who do not speak English,5 and because he would not take the time to train people on machines in operation. Gelbord also testified that Marta quit at one time without giving reason and was rehired, that he criticized the floorlady for rehiring someone who had quit, that the floorlady said she needed Marta, and that Marta some time thereafter was granted a 3-week leave of absence, he did not know why. Gelbord testified that there were about six layout girls when Marta was discharged; that one, Demetreoff, had about a year less seniority than Marta, but Holt and the others had more; that a change in this operation reduced the need for layout work; that he laid off Demetreoff in August 1973 and Holt in February 1974 and did not recall them; and that the rest of the layout girls were retained but were not all still employed at the time of the hearing as there had been some turnover. Gelbord admitted at one point in his testimony that Eucarias had at times operated one of the two label machines. At another point, Gelbord admitted that he testified as to Eucarias, at the original hearing in this proceeding, that "At the beginning I believe she was plain on the floor later on she was on the labeling machine working." He testified at the instant hearing that he did not know why he said that, that Eucarias never worked as a floorgirl as far as he knew, and that she never operated a label machine full time. Gelbord testified that a change in label operations about January 1974 required only one operator on the label machine, and that was Montera who had been employed by Respondent since about 1967. He also testified that Daley has been the only floorgirl in the plant since about 1968, and then that he recalled that Daley was on maternity leave, "I don't remember exactly the years. . . '71, '72, '73 I am not quite sure." Gelbord testified that Luz Maria's only work was cleaning garments, and that she never to his knowledge carried materials or garments to and from operators, the work of a floorgirl. Gelbord also testified that the cleaning work performed by Luz Maria and by Eucarias was the least skilled job in the plant; that, at the time the backpay claimants were discharged, he had 12 or 13 doing this Gelbord testified at one point that he did not know what language the backpay claimants spoke, but that there have been some employees who spoke Spanish. Several of Respondent's witnesses. including a machine work; and that he reduced this number early in January 1974 to 8 or 9, and laid off more of them in or about February 1974, reducing the number he has had since then to 6. He also testified that, at the time Eucarias and Lu, Maria would have been laid off on the basis of seniority, there was no other job they could do as he thought all the other jobs were "machine operators of various sorts." Gelbord maintained that the backpay claimants did not, and could not, perform the different functions they claimed to have done, and disputed their descriptions of certain machines and their operations. On the other hand, while he testified that he was "Quite familiar" with the machines as he sees them every day and makes all the repairs and adjustments on them, and although he used gestures, made sketches, and analyzed certain garments that were made at the plant and brought to the hearing to illustrate what the machines did, his descriptions of machine operations were unclear and confusing. On the last day of the hearing, when Gelbord was recalled by Respondent to refute certain testimony by the backpay claimants, he was asked, for example, if the eyelet machine operation was a descnbed by Eucarias. He denied this, and went on to testify as follows: Q. How do you operate it? A. First the washer. Q. What is a washer? A. Exactly what it says a washer. Q. A little steel ring? A. Correct. A flat steel ring I would say about one twentieth of a thousand - Q. So tell me how to operate the eyelet machine? A. The eyelet first you have by hand take it by hand and put the eyelet on top of the bottom plunger. Q. You say you pick up an eyelet and put it on the plunger? A. On top. Q. Is that in the machine? A. Yes. It is. Q. You feed it into the machine? A. Let's not misunderstand each other you are placing it on top of the plunger sitting it, it means it will collate to the fitting but you're placing it on top of the plunger. Q. You are talking about a washer? What do you do with it. A. The washer you take and putting it first thing on top of the plunger then you take the main buttonhole and you stretch it down firmly on the plunger. At that point the cloth is about or the washer is on the left side of the cloth. Then all you do at that point you press the pedal and the eyelet is being fitted by the machine, the eyelet being fitted by the machine not by hand. * * The eyelet machine does not belonging in the knitting industry what we had and I assume that is the operator, came from different European countnes and spoke English with various foreign accents. 595 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only eyelet machine. The washer and the left side of the cloth on top of the washer and the eyelet. Q. And the eyelet comes from the machine? A. Let me explain why. Ask like that. The washer is - May I have a piece of paper? (Handing to witness.) Looking from the profile this is a washer (indicating), here comes the cloth (indicating), here like that from the profile. The eyelet is from the press from the top is pressing through, the washer, through the washer and it is pressing it runs out like that and then it becomes a ready eyelet that way and that way (indicating) and here is the cloth (indicating). Q. In other words Mr. Gelbord to paraphrase what you have drawn - JUDGE SCHLEZINGER: I think it would be well to paraphrase it. (Direct examination continued). Q. (By Mr. Kimmell) There is a washer in between the two pieces of cloth? A. No. No. Q. There is a washer underneath the cloth? A. Assuming this is the cloth, this is the right side of the cloth (indicating). Q. Yes. A. This is the left side of the cloth (indicating). Q. Yes A. This is the plunger you take the washer and put it fit it right on top of it. Q. On top of what? A. Of the plunger. The plunger. Q. The washer goes on top of the plunger? A. Yes. You take the cloth. Q. On top of the plunger with the washer? A. Yes. Correct. Then you take - You press the pedal and it comes down while the machine rotates, at the same time it is like - It comes this way from up, down to the left (indicating). At the same time this too beneath about the plunger then it comes down. Q. Which pushes the eyelet through the fabric? A. Yes. And then it comes the eyelet. Q. Now, so the eyelet comes from the machine? A. Yes. Correct. Q. Just to the contrary of what Miss Ceballos said that the eyelet is put where the washer is? A. Exactly. Gelbord testified that the knitters, pressers, and cutters are very highly paid; men of great skill doing work requiring years of experience; that some of the machine operations performed by women also require years of experience; that it was his policy not to train people for these jobs but to hire only people who had obtained experience at other plants in the area; that he had no problem finding such qualified people since 1973 as there were always many applicants seeking work; and that he has been able to hire experienced people for skilled jobs at or near the minimum wage, and he raises their wages only after they have shown that they do good work. Respondent conceded at the hearing that, subsequent to the discharges of the backpay claimants, a large number of new employees were hired in low-paying classifications; that some worked for very brief periods as there is considerable turnover, while others were still employed; and that many of the machine operations were carried on full time throughout 1974, and some operations were carried on "Around the clock.... Two shifts all the time." Gelbord testified that his books showed 39 employees including supervisors in July 1974, but that he could not state how many there were on particular dates; that there were no records of each employee's job function, and he could not remember what work some employees per- formed, who operated particular machines, the dates when employees were hired, the amount of training they received, or the wage rates they were paid, and, in some instances, whether they were still employed; and that the books showed a number of individuals employed at the minimum wage who had less seniority than the backpay claimants. Gelbord testified that the knitting industry is busy in some years and slow in others, and that the business in fact fluctuates from month to month; that, following the discharges of the four backpay claimants in May 1973, the industry as he recalled was busy during the remainder of 1973; that, during that period, Marta "with her skills as a layout girl" and employees who were experienced in cleaning and other operations should have had no difficulty getting jobs as the industry needed workers; and that he needed help in certain categories at this time but was unable to obtain the employees he needed. Herskovitz, the floorlady, testified that she did most of the hiring and the supervision, with the aid of an assistant floorlady, and that she knew the employees better than Gelbord, who was in and out of the plant. Herskovitz testified that Abelardo first did on-the-floor work, carrying materials to and from various operations, for "quite a few weeks"; that, when he requested it, she promised to and did train him on steaming; and that, when he wanted to do more work and to earn more money, she permitted him to clean the premises on Fridays after work. Herskovitz denied that Abelardo did any pressing and asserted that pressing requires long experience, whereas it takes only a few weeks to teach steaming, and pressing is much a higher paid job than steaming, although she admitted that the same machines can be used for both pressing and steaming. Herskovitz denied also that Abelar- do performed any of the packing duties done by the packers. She admitted he might have tied up cartons, which is usually done by the shipping man, and might have helped with other shipping operations when the shipper was absent. Herskovitz testified that Marta was the layout girl, that in 2 years Marta did no other work, and that she asked Marta a few times to try on sweaters so she could check sizes but she also asked other girls to do this. She denied that Marta ever did packing, which she described as involving inspection of each garment, folding garments a certain way and placing them in boxes, and recording sizes, colors, quantities, and styles in accord with packing lists or pin tickets, after which a shipping boy places the boxes into cartons. Herskovitz testified that Eucarias worked at the finishing table; that, when Eucarias requested instruction on a 596 LIZDALE KNITTING MILLS machine, she put Eucarias as "a favor" on the label machine; that she permitted Eucarias to do this work about an hour a day occasionally because Eucarias "did not produce anything . . . it takes a while until you learn anything to do"; and that Eucarias never ran the various machines Eucarias claimed she did because it takes years to learn those machines and Eucarias was not able to operate them. Herskovitz testified that Luz Maria was there a short time, she did not know how long; that Luz Maria worked at the finishing table cutting threads and cleaning up garments, an operation that has been changed but required more skill at that time; that Luz Maria never did any other work; and that she never showed Luz Maria how to run any machine. Herskovitz testified that she hired a number of people after the four backpay claimants were discharged, but none for steaming, layout, label machine operation, or cleaning; that she hired only machine operators with experience; that it was easy in the area of the plant to get skilled people even at low rates on certain machines; and that the backpay claimants could not have done this work. Several employees testified, as witnesses for Respondent, that years of experience were required to learn their jobs. They were not able, however, to explain why the learning process was so long but indicated that it took much practice to acquire speed and proficiency in the work. They testified that they acquired their skills and experience before coming to work for Respondent, but all admitted they learned by on-the-job training. Some of these witnesses also testified, after the backpay claimants were identified for them at the hearing, that they never saw the backpay claimants perform certain kinds of work that the backpay claimants testified they had done. Several of these witnesses admitted, however, that their work required close concentration, and that they knew very few employees or what work they did even at the present time. One of these witnesses, Tommy Kelly, testified at different points that it took months, a year, 2 years, of on- the-job training to learn pressing, but that he could not verbalize the instructions; that some styles are easier to press than others and he could press some garments in a minute; and that knowing how to steam would help in learning how to press, and the same machine can be used for both. He also testified that Abelardo had worked only about 10 feet from him but he never saw Abelardo do any pressing. He also testified, however, that he did not recall who did the steaming after Abelardo left, that he did not know what work Geddies did, and that she did no steaming as far as he knew. It was Geddies who replaced Abelardo on steaming after Abelardo's discharge. Clara Christopher testified that it takes about 2 years to learn her packing job, which includes examining, folding, and boxing sweaters, marking the contents, and sending defective ones to a mender or operator.6 She testified that she began on another job as a floorgirl but was trained in packing by a girl working next to her, and that only trained people were hired by the Respondent. She testified that she 6 Gelbord testified that the packers are paid $2.25. z Gelbord testified that he thought there were 14 or 15 merrow machine operators in 1974, but he was not sure of the number. did not recall any of the backpay claimants ever working in her department, that she does not speak Spanish, that she does not "associate with too many of the other girls most of them speak Spanish," that none in her department are Spanish speaking and she knows very few employees outside her own department, and that while on the job she is constantly looking down at her work. Emily Lorenzoni, who learned to run both the merrow and the Remoldi machines in Italy, testified that it took 2- 3 years to learn to operate the merrow and months to learn to operate the Remoldi. She also testified that she never saw any of the backpay claimants operating these ma- chines; that she saw Eucarias on the label machine occasionally, but never on the other machines Eucarias claimed to have operated; that she thought she would have seen the backpay claimants if they were on the machines in question as she occasionally raises her head from her work, which requires much concentration, and looks around; that she does not know the names of employees, and would speak to other employees if they spoke Italian; that it was difficult to recall who was on a machine in 1973; and that she did not know how large the sewing department was or how many machines there were as "I worked there five years I never counted why for me to count the machines." 7 Fannie Montera, who has been a label machine operator at Respondent over 10 years, testified that she was the only one but sometimes needed help in this work, occasionally full-time help; that she recognized Eucarias, who was pointed out to her, as a former employee of Respondent, but "I don't remember if she made labels, I am so busy with my work the machines are sometimes so far apart I don't know if they're helping or not"; that she thought she saw Eucarias on the label machine a few times but not for an entire week, unless she was out, and she did not recall if she had an extended absence in 1973; that she saw Luz Maria working on the layout table laying out work for the cutter, but did not remember seeing Luz Maria on the label machine or on other machines; and that she did not in fact know what the backpay claimants did as "There are so many other people there when you're so busy you're not really looking." The last of this series of employee witnesses, Mary Trambosch, who has been employed by Respondent over 10 years, testified that she learned the merrow operation, which took 3-4 years, before coming to this job; that she never saw Eucarias on the merrow or other machines but only on layout work;8 that she never saw Luz Maria on a machine but only working at the table; and that she did not see how anyone could operate the various machines. She testified, as to how many merrow machines there were, "Maybe fourteen, maybe ten. I don't know. It is a lot. It is a lot of machines I never counted." She testified that these machines were gray, but. as to the color of the Remoldi machine, which she also saw every day, "I think it is green. I am not sure. I think it is green. I am not sure.... I think it is green. I never worked on the Remoldi machine.... It is a green color. Yes." She also testified that she did not know if Eucarias ever ran the label machine, that it was 8 The layout work, which Montera said she saw Luz Maria do and Trambosch said she saw Eucarias do, was Marta's job. 597 DECISIONS OF NATIONAL LABOR RELATIONS BOARD difficult to recall who operated machines in 1973 or 1974, and that she is used to the merrow machine by now so looks up and gets up from her work occasionally. Respondent's witnesses disputed the descriptions given by the backpay claimants as to the appearance and operations of the machines. It is evident, however, and I find, that the confusion in these respects on the part of the backpay claimants was attributable to language problems, the lapse of time, and their work on other machines in other plants in the 4-year interim. I am convinced that the backpay claimants, in testifying, for example, that certain machines in Respondent's plant were one color when others testified that they were some other color, were not deliberately lying in an attempt to show they operated certain machines when in fact they did not. Moreover, Respondent's witnesses also had considerable difficulty in describing the machines and their operations. I find, on the basis of their demeanor as witnesses and the record as a whole, that the backpay claimants were testifying candidly and to the best of their recollection about work they did and operations they learned to perform while in Respondent's employ. On the other hand, the testimony of Respondent's witnesses as to the limited abilities of the backpay claimants was replete with self- contradictions, contradictions of one another, evasions, and implausibilities. I credit the testimony of the backpay claimants, therefore, that they performed various kinds of work. It is clear from the record, and I find, that all four backpay claimants were hard-working and ambitious, and sought to learn, and from time to time did learn, both by observation and by instruction, operations other than those they had previously learned or were generally performing. Respondent evidently thought highly enough of them as employees that, after Marta had worked there for a considerable period, it hired the other three at different times; it rehired Marta, who had quit without giving any reason, and thereafter granted her a leave of absence; and it paid Marta and Abelardo more than the minimum wage although asserting repeatedly it was able to hire experi- enced skilled employees at the minimum wage, and more than it paid some employees who had for years been performing certain "skilled" operations. Respondent admittedly did not have a policy of layoffs based on seniority. Moreover, at times during the backpay period it hired new employees at minimum wages for both its skilled and unskilled jobs. And it admittedly for a time during the backpay period had difficulty finding employees in categories it needed. As has been frequently held, by the Board and the courts, "It is a well settled principle that the burden of proof is on the employer to show that it would not have had work available for a discriminatee due to factors unrelated to the discriminatory discharge [cita- tionsl."9 I am convinced, and find, on the entire record, that Respondent has failed to establish, by competent and probative evidence, that it would have laid off, and not rehired, the backpay claimants during the backpay period, if they had been employed subsequent to May 31, 1973, for lack of work that they could perform. 9 N.L.R.B. v. Midwest Hanger Co., 550 F.2d 1101 (C.A. 8, 1977); Bagel Bakers Council of Greater New York and its Employer-Members, 226 NLRB 622 (1976). F. The Search for Interim Employment Following their discharges, a union agent took all the backpay claimants to Respondent's plant to request reinstatement, and then to the union employment office, where he registered them as applicants for various kinds of work. The Union never referred them to any jobs. Abelardo and Eucarias also registered with the Unemploy- ment Compensation Commission for a period following the discharges, but not for other periods during which they were unemployed, and Marta and Luz Maria never registered there. Their explanation for failure to register was that they were looking for, and hoped to find, jobs that would provide more money than they could get from unemployment compensation. Luz Maria did register at one time at an employment agency. Eucarias had, for a period while employed by Respon- dent, also worked part time at Pentagon Plastics. After the discharges, some of the backpay claimants got jobs there for a time. All looked for jobs in factories. Abelardo also looked for other kinds of work he could do, and found work for a time as a laborer on a construction project, and at times drove a "gypsy" cab. As Abelardo knew a little more English than the other backpay claimants, he sometimes went with them to help look for work, and friends also helped them to find jobs. Luz Maria found one job through a friend. They also helped one another. At times one of them found a job at a plant and was able to get jobs there for some of the others so they had the opportunity again to work and arrange transportation together. Their family assisted with support when some were unable for periods of time to find work. Their difficulty in looking for jobs was compounded by their unfamiliarity with English, with the New York area, and with the public transportation system. On occasion they went to an area in New York where there were manufacturing plants and walked from plant to plant applying for work. They were often told that there was no work, or that they would be called when there was work and were never called. At other times they did find work, for a day, a week, a month, or occasionally for periods of many months. The testimony of the backpay claimants about the search for interim jobs was vague and indefinite. They could not remember names of some of the plants where they applied or the precise locations, only the general area of New York where the plants were located, and that certain of these plants made belts, cushions, plastics, electrical products, dolls, pens, sweaters, coats, or women's wear. Eucarias testified that she got a job at a plant where she worked for a day but was unable to return there to work or to collect her day's pay because she could not find the place again. The backpay claimants also at times denied, on examina- tion by counsel for Respondent, that they worked at places that were listed as their employers in the backpay specification. When they were asked about these employ- ers, however, in terms of street addresses or the shortened names by which they identified some of these employers, they were able to recall the employers and testify about 598 LIZDALE KNITTING MILLS those jobs. Counsel for Respondent urged, during the presentation of such testimony and in the brief, that the backpay claimants were lying, and that a backpay remedy should be denied individuals who testified at such variance from the backpay specification. When Eucarias, for example, could not recall working for a named employer who was listed on the backpay specification, counsel for Respondent argued that her backpay claim should be dismissed. She recognized the employer in question, however, when given the address, and testified that she worked there for over a month for about $2.50 or $2.60 an hour, which was more than she had been paid by Respondent, that she was laid off there when work got slow, and that she was called to come back to that job but was then employed on the job on which she had been working for over 8 months at the time of the instant hearing. Counsel for Respondent also argued at the hearing that the backpay claimants knew more English than they would admit, particularly Abelardo. At counsel's request, Abelardo was questioned in English without an interpreter. He was unable, however, adequately to understand or to answer the questions in English, and resumed testifying with the interpreter. It is established policy under the Act that a backpay claimant is required to make a reasonable search for interim employment '° in order to mitigate loss of income and the amount of backpay. The Board and the courts hold, however, that, in seeking to mitigate loss of income, a backpay claimant is "held. . . only to reasonable exertions in this regard, not the highest standard of diligence .... The principle of mitigation of damages does not require success; it only requires an honest good faith effort .... The Board and the courts also hold that the burden of proof is on the employer to show that the employee failed to make a reasonable search,12 or that he willfully incurred losses of income or otherwise was not available for work during periods when backpay is claimed,13 and any "doubts should be resolved in favor of the backpay claimant rather than the respondent wrong- doer who is responsible for any uncertainty which may exist" and against whom any uncertainty must be re- solved. 14 What constitutes a good-faith effort to mitigate backpay depends upon the facts and circumstances of each case. The board has stated: . . . that in broad terms a good-faith effort requires conduct consistent with an inclination to work and to be self-supporting and that such inclination is best evidenced not by a purely mechanical examination of the number or kind of applications for work which have N. L. R. B. v. Midwest Hanger Co., supra. " N.LR.B v. The Madison Courter, Inc., 472 F.2d 1307 (C.A.D.C., 1972); N. LR.B. v. Arduini Manufacturing Corporation, 394 F.2d 420, 423 (C.A. 1, 1968); N.LR.B. v. NHE/Freewayr, Inc., et al., 545 F.2d 592, 594 (C.A. 7, 1976); McCann Steel Compan); Inc., 224 NLRB 607 (1976). V N L. R.B. v. Midwest Hanger Co., supra. N L. R.B. v. Pugh and Barr, Inc., 231 F.2d 588 (C.A. 4, 1956); N.LR.B. v. Miami Coca-Cola Bottling (Compfny, 360 F.2d 569 (C.A. 5. 1966); Glass Guard Industries, Inc., a Division of Guardian Indust.res. 227 NLRB 1140 (1977). '4 UnitedAircraft Corporation, 204 NLRB 1068 (1973). ms Hickman Garment Company, 196 NLRB 428. 432 (1972), enfd. by been made, but rather by the sincerity and reasonable- ness of the efforts made by an individual in his circumstances to relieve his unemployment. Circum- stances include the economic climate in which the individual operates, his skill and qualifications, his age, and his personal limitations.1 5 The pertinent circumstances in this case show, and I find, that the backpay claimants, despite their "personal limita- tions," looked for and found jobs to an extent "consistent with an inclination to work and to be self-supporting" during the years following their discriminatory discharg- es. 16 Accordingly, I find, on the basis of my observation of the witnesses and the record as a whole, that the backpay claimants were testifying truthfully about their search for interim employment, and that their testimony about this was vague and indefinite, not because of an intention or attempt to deceive, but because of their lack of knowledge of English and of the New York area, the lapse of time of about 4 years, the failure to keep records, poor memories for names, locations, and dates, and a lack of understand- ing as to the information they were expected to furnish. Furthermore, all four did seek reinstatement with Respon- dent, all four registered with the Union, and all four looked for jobs, and there is no evidence that any of them rejected offers of jobs. Moreover, all of them did find interim jobs, some for substantial periods, and no backpay is sought for periods when they were not seeking work for various reasons, Luz Maria, for example, at the times when she had two babies. In conclusion, I find that all four backpay claimants made a sincere and reasonable effort, in their circumstances, to find interim employment to mitigate loss of income resulting from their discriminatory discharges and because they needed to work to earn their livelihood, and that Respondent has failed to substain its burden of proving lack of due diligence in seeking interim employ- ment or willful loss of earnings on the part of any of the backpay claimants during the periods when backpay is claimed. Concluding Findings The backpay remedy is not a private right but a public one granted by the Board, with court approval, to discourage unlawful discrimination against employees and thereby to vindicate the policies of the Act. t7 As the Supreme Court has stated, "Making the workers whole for losses suffered on account of an unfair labor practice is Order issued Dec. I 11, 1972 (C.A. 6). See also N.LR.B. v. Lozano Enterprises, 356 F.2d 483 (C.A. 9, 1966), enfg. 152 NLRB 258 (1965). is N. LR.B. v. Cashman Auto Company and Red Cab Company, 223 F.2d 832, 836 (C.A. 1, 1955); United Aircraft Corporation, supra. In N. LR.B v. J. H. Rutter-Rex Manufacturing Co., Inc., et al., 396 U.S. 258 (1969), the Supreme Court found it "deplorable" that "innocent employees had to live for some years on reduced incomes" as a result of an employer's discrimination against them. 17 Truck Drivers, Oil Drivers, Filling Stalion and Platform Workers' Union Local No. 705, IBT (Randolph Paper Compani,), 227 NLRB 694 (1977), and cases cited therein. 599 DECISIONS OF NATIONAL LABOR RELATIONS BOARD part of the vindication of the public policy which the Board enforces." 18 It has been long established, by the Board and the courts, that the "finding of an unfair labor practice ... is presumptive proof that some backpay is owed,"'19 and 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 discrimination," 20 and that will make discriminatorily terminated employees whole for any losses of earnings suffered as a result of the unlawful terminations.21 It is also well established that, after the Regional Director has computed the gross amounts of backpay due the discriminatees in question, the burden of proving events that warrant a diminution of these amounts devolves upon the party who unlawfully terminated the backpay claimants, and uncertainties as to the amounts due are resolved against that party.2 2 Accordingly, on the basis of the findings, conclusions, and Board and court rulings explicated above, I find that Respondent has failed to meet its burden to show, by credible and probative evidence, that the grounds it has asserted for the mitigation of its backpay liability warrant any diminution of the amounts found due in the backpay specification, as amended. In conclusion, therefore, I find, based upon the totality of the relevant evidence in this case, that Respondent is liable to make the backpay claimants IR Phelps Dodge Corporation v. N. LR.B., 313 U.S. 177, 197; N.L.R B. v. International Longshoremen's and Warehousemen's Union, Local No. 13, 549 F.2d 1346 (C.A. 9, 1977). 19 N.L.R.B. v. Mastro Plastics Corporation and French American Reeds Manufacturing Company, Inc., 354 F.2d 170, 178 (C.A. 2, 1965), cert. denied 384 U.S. 972 (1966); N.L.R.B. v. Madison Courier, Inc., supra; N.L.R.B. v. NHE/Freewav, Inc., supra. whole, pursuant to the Board Order enforced by the court of appeals, by payment to each of them of the amounts specified in the backpay specification, as amended. I shall therefore recommend that the backpay specification, as amended at the hearing and herein, be adopted, and that the backpay claimants be awarded the amounts of net backpay found in accordance therewith to be due to them. ORDER The Respondent, Lizdale Knitting Mills, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall satisfy its obligation to make whole the backpay claimants here involved by payment of the amounts of net backpay set forth opposite their names: Abelardo Ceballos Luz Maria Villada Ceballos Marta Ceballos Guerrero Eucarias Ceballos $3,814 3,627 5,993 6,413 Each of the foregoing amounts shall be paid 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), minus any tax withholdings required by Federal and state laws. 20 Phelps Dodge Corp. v. N. L R.B., supra; Bagel Bakers Council of Greater New York v. N.LR.B., 555 F.2d 304 (C.A. 2, 1977). 21 Golay & Co., Inc. v. N.LR.B., 447 F.2d 290 (C.A. 7, 1971), cert. denied 404 U.S. 1058 (1972); Golden State Bottling Co., Inc. v. N.LR.B., 467 F.2d 164 (C.A. 9, 1972); United Aircraft Corporation, supra. 22 N.LR.B. v. Miami Coca-Cola Company, supra; United Aircraft Corporation, supra. 600