F. E. Hazard, Ltd.

839 303 NLRB No. 130 F. E. HAZARD, LTD. 1 297 NLRB 790. 2 The referrals, offered on May 11, July 30, and October 6, 1987, were all for full-time mechanic positions with the same employer, Worrad Company. 3 F. E. Hazard, Ltd. v. NLRB, 917 F.2d 736. 4 All subsequent dates refer to 1987 unless specified otherwise. 5 Moffitt’s credited business records show he had roughly the same volume of business on July 20 and October 6 as on May 11. F. E. Hazard, Ltd. and Kenneth W. Moffitt. Case 39–CA–3533 July 23, 1991 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On February 26, 1990, the Board issued a Supple- mental Decision and Order in this proceeding1 in which it affirmed the administrative law judge’s find- ing that discriminatee Kenneth Moffitt did not incur a willful loss of earnings by maintaining his self-em- ployment while refusing three more lucrative job refer- rals2 from International Brotherhood of Electrical Workers, Local 42 (the Union). The United States Court of Appeals for the Second Circuit issued an opinion October 26, 1990,3 stating that the Board decision adequately explained why it was not unreasonable for Moffitt to refuse the first job referral. The court concluded, however, that the judge’s decision, adopted by the Board without expla- nation, did not adequately address the reasonableness of Moffitt’s rejection of the second and third job refer- rals. The court remanded the case to the Board for spe- cific factual findings on the reasonableness of Moffitt’s rejection of those subsequent referrals. The Board thereafter advised the parties that it had accepted the remand, and invited them to file statements of position. The General Counsel and the Respondent filed state- ments of position. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. We find that Moffitt’s refusals of the July 20 and October 6, 19874 job referrals did not constitute willful losses of earnings for the reasons that follow. The court agreed with the Board that Moffitt’s self- employment constituted proper mitigation of loss of wages until at least the time of the July 20 job referral. The court, citing Heinrich Motors v. NLRB, 403 F.2d 145 (2d Cir. 1968), enfg. 166 NLRB 783 (1967), ac- knowledged that self-employment is a proper manner for a discriminatee to mitigate damages and that the discriminatee is not required to look for other work while self-employed. F. E. Hazard, supra, 917 F.2d at 737. The court, relying on Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), stated, however, that ‘‘at some point a refusal to accept substantially equivalent em- ployment that is offered terminates the former employ- er’s back-pay obligation.’’ F. E. Hazard, supra, 917 F.2d at 738. In Ford Motor, a Title VII case, the Supreme Court held that the backpay liability of an employer charged with discrimination in hiring is tolled when the appli- cant in question rejects the employer’s subsequent un- conditional offer of the same job. With all due respect to the court of appeals, we do not believe that holding is applicable to the instant case. The critical distinction is that in Ford Motor the wrongdoing employer acted to end its ongoing discrimination by offering the appli- cant the job originally sought. Tolling backpay liability under these circumstances, according to the Supreme Court, encourages voluntary compliance with Title VII’s objectives by ‘‘giv[ing] an employer a strong in- centive to hire the . . . claimant.’’ 458 U.S. at 229. Here, it was not the wrongdoing employer that of- fered the discriminatee jobs on July 20 and October 6, but a third party. Thus, the inquiry before us is simply whether the discriminatee was engaged in legitimate interim employment. We agree with the court that Moffitt was legitimately engaged in self-employment at the time of the first job referral. He had started a business of maintaining and repairing vehicles of var- ious kinds and leasing out construction equipment which he had purchased and repaired. Once a discriminatee has embarked on a legitimate course of interim employment, there is no duty to search for more lucrative interim employment. Firestone Syn- thetic Fibers, 207 NLRB 810, 815 (1973). Nor must the discriminatee engage in the most lucrative interim employment. See, e.g., Fugazy Continental Corp., 276 NLRB 1334, 1338 (1985), enfd. 817 F.2d 979 (2d Cir. 1987) (discriminatee Monahan did not incur willful loss of earnings by leaving employment with an in- terim employer to engage in self-employment that was less lucrative); Sioux Falls Stock Yards, 236 NLRB 543, 568–570 (1978) (discriminatee who changed from higher paying to lower paying interim job did not incur willful loss of earnings; employee who accepts appro- priate interim employment, even at lower pay, is not required to search for better employment). We find that, as of the July 20 and October 6 offers, Moffitt was still self-employed and therefore continued to engage in legitimate interim employment. The record shows that, from the time of the first job refer- ral through the October 6 referral, Moffitt continued to obtain work at about the same rate.5 That he did not show a significant profit does not negate a finding of self-employment. See, e.g., Heinrich Motors, 166 NLRB 783, 784 (1967). The court remanded the case because it found that the judge’s decision, which we adopted without elabo- ration, addressed only why it was not unreasonable for 840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 We note that even the October rejection occurred during the first year of Moffitt’s self-employment, and only 5 months after the referral rejection which the court found reasonable. Moffitt to reject the May 11 referral. Having accepted the remand, we make the following specific findings. First, for the reasons discussed above, we believe that Moffitt’s rejections of the July 20 and October 6 referrals were reasonable. We further find that Moffitt had outstanding work commitments on July 20 and October 6. Because he would have had to accept the referrals on short notice, he would have been unable to meet his existing obligations if he accepted either referral. It was not unreasonable to reject the referrals in order to fulfill the existing commitments. Finally, although we recognize that the court said that at some point in time the ‘‘getting started’’ argument loses force as a justification for rejecting a well-paying job, we do not believe the court held the argument inappli- cable to the July 20 and October 6 rejections; it held only that the Board made no specific findings as to those rejections. Having reviewed the record, we con- clude that Moffitt’s self-employment was still a fledg- ling business in July and October,6 and it was not un- reasonable for him to reject the referrals even though the business was not yet profitable. We find, therefore, that Moffitt’s refusals of the July 20 and October 6 referrals did not constitute willful failures to mitigate his wage losses. ORDER The National Labor Relations Board affirms its Sup- plemental Decision and Order (297 NLRB 790 (1990)).