Tubari Ltd.

529 303 NLRB No. 86 TUBARI, LTD. 1 We note that in the second paragraph of the judge’s decision the first sen- tence should refer to 1984, not 1985. There were no exceptions filed to the judge’s finding regarding the entitlement of certain illegal aliens to backpay. In adopting the judge’s finding that the Respondent is not entitled to a 5- day grace period and that the Respondent’s backpay obligation therefore com- menced on December 3, 1984, we note that the Board previously found in Tubari, Ltd., 287 NLRB 1273 (1988), that the employees were unlawfully dis- charged. See 287 NLRB at 1273. Hence no 5-day grace period is applicable to their reinstatement or backpay entitlement. Only as an alternative finding did the Board conclude that, if the employees were not unlawfully discharged, then they were unfair labor practice strikers who had made a request to return, and that request was unlawfully denied. That action constituted a separate vio- lation of the Act. And in circumstances where unfair labor practice strikers’ offers to return to work are rejected, the Board has determined that the 5-day grace period is inapplicable. See Drug Package Co., 228 NLRB 108, 114 (1977). Hence the 5-day grace period does not apply here. Tubari, Ltd., Inc. and Fur Workers Union, Local 3, United Food and Commercial Workers, AFL– CIO. Cases 22–CA–13581 and 22–CA–13615 June 26, 1991 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 19, 1989, Administrative Law Judge Joel P. Biblowitz issued the attached supplemental de- cision. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions as modified and to adopt the recommended Order. In the underlying unfair labor practice proceeding, as noted at footnote 1 above, the Board found that the discriminatees in this case had been unlawfully dis- charged on December 3, 1984. They sought reemploy- ment with the Respondent on December 4 but that offer to return was unlawfully rejected by the Re- spondent. After their offer to return was rejected, the discriminatees picketed the Respondent in protest of its unfair labor practices from 7:30 a.m. to 3:30 p.m. daily. They were paid $150 a week by the Union for that activity, and that amount was included in the backpay specification as interim earnings, and they were also given $5 a day as ‘‘lunch money.’’ The judge found that the latter amount should also be in- cluded as interim earnings and there are no exceptions to that finding. In sum, the judge found that the discriminatees received $175 a week from the Union for picketing the Respondent. None of the discriminatees searched for interim employment else- where. The Respondent argued that because of their failure to engage in such a search the discriminatees should be denied any backpay. The judge rejected that contention and we affirm that conclusion. We start from the oft-quoted premise that ‘‘[o]nce the General Counsel has established the gross amount of backpay due the discriminatees in question ‘the bur- den is upon the employer to establish facts which would negative the existence of liability to a given em- ployee or which would mitigate that liability’ . . . . ‘The finding of an unfair labor practice is presumptive proof that some backpay is owed.’’’ NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972). Nonetheless, discriminatees have a duty to mitigate damages and the Board has found in particular cases that employees who engage in picketing at the expense of seeking alternative employment incur willful losses and are disqualified from receiving backpay for that period. In those instances, however, there was no indi- cation that the employees received compensation for their picketing duties. See, e.g., Ozark Hardwood Co., 119 NLRB 1130, 1136, 1137 (1957) (employees Homer Currier and Bill Friend), remanded on other grounds, 282 F.2d 1 (8th Cir. 1960); John Cuneo, Inc., 276 NLRB 75 (1985). By contrast, here the discriminatees received significant sums for their pick- eting. In Marlene Industries, 234 NLRB 285 (1978), the Board found that an illegally discharged employee who, during the backpay period, was later hired by and paid by the Union to picket the respondent in its orga- nizational drive at the respondent did not suffer a will- ful loss of earnings simply by picketing. As in Mar- lene Industries, in the instant case, where the Union’s payment to the discriminatees as compensation for their picketing duties constitutes interim earnings which are deductible from gross backpay (see Superior Warehouse Grocers, 282 NLRB 802 (1987)), we con- sider the discriminatees’ picketing sufficiently akin to interim employment. In such circumstances, it was in- cumbent on the Respondent to show that the picketing was not suitable interim employment and the Respond- ent has failed to show this. The Respondent principally relies on the court’s statement in NLRB v. Madison Courier, Inc., supra, that picket line activity does not relieve discriminatees of the obligation of making rea- sonable efforts to secure work in order to mitigate an employer’s backpay liability. We find that this state- ment, without more, does not compel the conclusion that the discriminatees’ paid picketing activity in the instant case does not constitute mitigation. In finding that the discriminatees did not fail to miti- gate their losses, we do not rely on the object of their picketing. They obviously have a statutory right to pro- test their employer’s unfair labor practices through picketing, but this does not automatically translate into a right to have such picketing counted as interim em- ployment that establishes mitigation of loss. In deter- mining adequacy of mitigation, we must consider whether—given the employee’s skills and experience, and the rate at which he or she was compensated when 530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Although acknowledging that employees do not have an automatic right to have unfair labor practice picketing counted as interim employment that es- tablishes mitigation of loss, Member Devaney does note that these employees had been unlawfully discharged; had even sought their former positions from the Respondent; and had been refused these jobs. He finds that paid picketing of the sums involved in this case to pressure the Respondent to take them back did not constitute willful loss of earnings. Cf. Pilot Freight Carriers, 238 NLRB 382 (1978). In addition, Member Devaney, in agreeing with his colleagues that the discriminatees’ paid picketing constitutes mitigation, finds it unnecessary to determine whether a contrary result would be warranted if, unlike in the in- stant case, those engaged in paid picketing were skilled employees who were not limited to relatively low paid manual laborer work. See his colleagues’ dis- cussion below in the following two paragraphs. 3 Chairman Stephens accepts Associated Grocers, supra, in which he dis- sented in part, as applicable Board precedent on this point. He also notes that employee Mullins, whose backpay he would have cut off for failure to seek employment in the grocery warehouse industry, earned no money from any employment during the period in which he sought work other than warehousing work. 4 Indeed, it does not appear that the General Counsel had claimed the $10 weekly payments constituted interim earnings. The judge in Ozark, supra (then called the ‘‘trial examiner’’) did not mention any such payments. In finding that Fisher was entitled to backpay for the quarters in which Fisher engaged in picketing, the judge (id. at 1166) relied on the ground that Fisher had satis- fied his obligation to mitigate backpay by seeking farmwork, albeit unsuccess- fully. In reversing, the Board found no record support for that finding, and it simply noted the $10 payments without further elaboration. employed by the Respondent–-acceptance of the pick- eting job with the Union represents a reasonable effort to obtain sustained income during the backpay period.2 We note that in Marlene Industries, supra, on which we are relying to find mitigation here, the judge whose decision was adopted by the Board made an initial finding that discriminatee Brashears’ job as a ‘‘press- er’’ was not ‘‘so highly skilled or highly paid that he would be required to seek only ‘presser’ work’’ in order to establish mitigation. Id. at 289. Accord: Asso- ciated Grocers, 295 NLRB 806 (1989). In our view, if we were dealing with skilled employees who, by vir- tue of their experience, were not limited to relatively low paid manual laborer work, then work for the Union as a picketer could not excuse failure to seek work in the same trade.3 The 19 discriminatees employed as picketers here, however, had been employed simply as ‘‘floorworkers’’ performing unskilled laborer tasks, and none was shown to have experience in any trade or specialty. Accepting a ‘‘bird in the hand’’ for steady pay that was less than what they had earned in the jobs from which they were unlawfully discharged was not unreasonable. We also note the Respondent’s contention that the judge overstated the extent of the discriminatees’ miti- gation. The judge stated that the discriminatees ‘‘were paid almost seventy five percent of their rate of pay from the first day of the backpay period.’’ While it is true, as the Respondent contends, that once overtime earnings are included in the discriminatees’ backpay entitlement, as the judge found they should be, then their earnings from picketing constitute less than 75 percent of their wages, as they also do when the $.55 per hour wage increase of February 1, 1985, is factored in, we nonetheless find the discriminatees’ earnings not so relatively small as to warrant the con- clusion that their earnings from their picketing activity do not constitute mitigation. In this regard, we find the facts in the instant case distinguishable from those in My Store, Inc., 181 NLRB 321 (1970). In My Store, certain discriminatees during a portion of the backpay period were engaged in picketing only and the Board found they were not in the labor market. In addition to the loans they received from the union during the backpay period (which were not counted as interim earnings), they also received small sums from the union as compensation for their extra efforts in guiding the picket line and those were counted as interim earn- ings. The Board held that these discriminatees incurred willful losses and were barred from receiving backpay during the time that they only picketed. We find the Board’s holding in My Store not controlling because in My Store, unlike in the instant case, the amount the discriminatees were paid by the union in extra com- pensation was de minimis. Nor do we find the Board’s holding in Ozark Hardwood, above at 1137–1138, with respect to discriminatee Lum Fisher to be inconsistent with our result in the instant case. Although in Ozark Hardwood, the Board disallowed backpay for the pe- riod during which Fisher served on the picket line and during which the union paid him $10 dollars a week, the payment was not clearly shown to be a payment for picketing as in the instant case.4 Thus, we find that this was true employment in the sense that the discriminatee/picketers worked regular hours and were paid a specific weekly wage plus lunch expenses. These were not mere strike benefits. Hence, the judge did not err in treating this work as employ- ment that constitutes mitigation and deducting the in- come as interim earnings. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Tubari, Ltd., Inc., Saddlebrook, New Jersey, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. Marta Figueroa, Esq., for the General Counsel. Stephen J. Edelstein, Esq. (Schwartz, Pisano, Simon, Elestein & Ben-Asher), for the Respondent. SUPPLEMENTAL DECISION JOEL P. BIBLOWITZ, Administrative Law Judge. This sup- plemental proceeding was initiated by a compliance speci- fication and notice of hearing issued by the Regional Direc- tor on June 30, 1989. Respondent filed a timely answer to said specification and the matter was heard by me on Octo- ber 12, 1989, in Newark, New Jersey. 531 TUBARI, LTD. 1 One of these employees, Felix Gonzales, was on disability leave at the time and did not report back to work until January 7, 1985. 2 The specification alleges, and Respondent admits, that on February 1, 1985, each discriminatee would have received a 55-cent hourly wage increase. By its Decision and Order (287 NLRB 1273) dated Feb- ruary 29, 1988, the Board found, inter alia, that Tubari, Ltd., Inc. (Respondent), violated Section 8(a)(1)(2) and (3) of the Act when it discharged 19 employees on December 3, 1985,1 in an attempt to dissuade its employees from replacing Local 1528, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL–CIO with Fur Workers Union, Local 3, United Food and Commercial Workers, AFL–CIO (the Union). The specification alleges that the backpay period for all except Gonzales begins on December 3, 1984, and ends on July 31, 1985. The backpay period for Gonzales begins on January 7, 1985, and ends on July 31, 1985. This much, Respondent admits. The specifica- tion next alleges that the appropriate measure of the hours the discriminatees would have worked during the backpay period, absent the discrimination, is the average number of hours, regular and overtime, each worked on a weekly basis during calendar year 1984; this figures multiplied by the discriminatees hourly rate2 of pay produces the appropriate weekly wages for each discriminatee. While admitting that the method of computing the hours the discriminatees would have worked is appropriate, denies it is proper in the instant situation because whereas the discriminatees worked a large number of overtime hours in 1984, Respondent moved to a larger facility in later November or early December 1984 in order to eliminate or reduce overtime hours. In addition to the above defense regarding the elimination of overtime hours, Respondent defends that 10 of the discriminatees are not entitled to any backpay since they are illegal aliens, and that none of the discriminatees are entitled to backpay because of the lack of diligent search for suitable interim employment. Finally, during the backpay period, the Union paid each of the discriminatees $150 a week, plus $25 a week ‘‘lunch money’’ to picket the Respondent’s facility between 7:30 a.m. and 3:30 p.m. The General Counsel in- cludes the $150 a week each received from the Union as in- terim earnings; Respondent alleges that the $25 a week ‘‘lunch money’’ should have been included as well. Facts and Analysis This specification involves discriminatees; pursuant to the Board’s Decision and Order, the backpay for all but Felix Gonzales begins on December 3, 1984, the date they were discriminatorily discharged. Gonzales was on disability leave at the time, so his backpay period does not begin until his leave ended on January 7, 1985. The backpay period for all 19 discriminatees ended on July 31, 1985. In determining the backpay due to these discriminatees, the compliance officer figured the hours they would have worked during the back- pay period by the average number of hours they worked (regular and overtime) on a weekly basis in 1984; these fig- ures were based on Respondent’s payroll records. He then multiplied the regular hours by the hourly wage they were receiving for the period through January 31, 1985, and multi- plied the regular hours by the hourly wage which was admit- tedly increased by 55 cents an hour for the period February 1 through July 31, 1985. Overtime pay was determined in a similar fashion, but at a time and a half rate. Deducted from the gross backpay rate, as interim earnings, was $150 a week that each of these employees received from the Union for picketing every day from 7:30 a.m. to 3:30 p.m. Also de- ducted (but not contested or relevant to any of the issues herein) was money paid to four of the discriminatees as part of a settlement of a prior related manner. Respondent has four affirmative defenses herein: 1. Discriminatees Edgar Aguilar, Veronica Avila, Ismelda Castro, Martha David, Elvia Escobar, Edith Flori, Gladys Luna, Carlos Ochoa, Hugo Patino, and Sara Valiezo are enti- tled to no backpay since they were illegal aliens during the backpay period. 2. The discriminatees are entitled to no backpay for over- time because beginning at about the commencement of the backpay period, Respondent altered its working conditions which ‘‘would have eliminated the need for overtime.’’ 3. The discriminatees should be denied backpay because they did not look for interim employment. 4. The discriminatees should be denied backpay for under- stating and mistating interim earnings, presumably, by not in- cluding the $5 daily ‘‘lunch money.’’ When loss of employment is caused by a violation of the Act, the finding by the Board that an unfair labor practice was committed is presumptive proof that some backpay is owed. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175– 176 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966). The General Counsel’s burden for the backpay proceeding is ‘‘to show the gross backpay due each claimant.’’ J. H. Rutter- Rex Mfg. Co. v. NLRB, 473 F.2d 223, 230 (5th Cir. 1973), cert. denied 414 U.S. 822 (1973). Once the General Counsel has established gross backpay, the burden is on respondent to establish affirmative defenses that would mitigate its li- ability. NLRB v. Brown & Root, 311 F.2d 447, 454 (8th Cir. 1963). Respondent has the burden of establishing such mat- ters as unavailability of jobs, willful loss of earnings and in- terim earnings to be deducted from the backpay award. NLRB v. Mooney Aircraft, 366 F.2d 809, 812–813 (5th Cir. 1966). When there are uncertainties or ambiguities, doubt should be resolved in favor of the wronged party rather than the wrongdoer. United Aircraft Corp., 204 NLRB 1068 (1973). Respondent first defends that 10 of the discriminatees should receive no backpay because they were illegal aliens during the backpay period. In support of this defense, Michele Glass, Respondent’s president, testified that she knew, or believed that she knew, some of the discriminatees by other names and that she ‘‘came to believe’’ that Aguilar, Avila, Castro, David, Escobar, Flori, Luna, Ochoa, Patino, and Valerezo were undocumented aliens. Additionally, she testified that she ‘‘received a statement from Social Security about three of the individuals. And a couple of the individ- uals had to go back to their country for a period of time.’’ The only concrete evidence supplied by Respondent on this defense was a document sent by the Immigration and Natu- ralization Service of the United States Department of Justice to Ismelda Lucrecia Castro de Hernandez, presumably discriminatee Ismelda Castro. The document is dated October 5, 1988, and the box check on the form states: ‘‘In accord- ance with a decision made in your case, you are required to depart from the United States at your own expense on or be- fore October 54, 1989.’’ No further explanation is provided. 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Respondent’s fourth affirmative defense alleges that the discriminatees should be denied backpay for understatement or mistatement of interim earn- ings, presumably not including the $5 a day ‘‘lunch money’’ as interim earn- ings. Although I disagree that the discriminatees should be denied backpay for this reason, I find that the $5 a day that the discriminatees received should be included in their interim earnings. In order to receive this additional $5 a day, the discriminatees had to be preent at the facility while the picketing was taking place. I therefore find it undistinguishable (other than in name) from the $150 a week also paid to the discriminatees. In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the Su- preme Court modified the Board and the Seventh Circuit’s remedial order involving discriminatees who were illegal aliens. In Felbro, Inc., 274 NLRB 1268 at 1269 (1985), the Board modified the administrative law judge’s remedy (by issued prior to the Supreme Court’s ruling in Sure-Tan, stat- ing that Sure-Tan held, inter alia, that while undocumented alien workers are employees entitled to the Act’s protection, ‘‘in com- puting backpay, the employees must be deemed ‘un- available’ for work (and the accrual of backpay therefor tolled) during any period when they were not lawfully entitled to be present and employed in the United States.’’ The court, in NLRB v. Felbro, Inc., 795 F.2d 705 (9th Cir. 1986), disagreed with the Board on the remedy, stating: in Sure-Tan, the Supreme Court did not address the issue whether undocumented workers remaining at work in the United States throughout the backpay pe- riod are entitled to backpay awards. Sure-Tan barred from backpay only those undocumented workers who were unavailable for work in the backpay period be- cause they were outside the United States without entry papers. The court pointed out the obvious difference between Sure-Tan and Felbro in Sure-Tan, all five discriminatees left the United States on the day that they were unlawfully termi- nated. In Felbro, the discriminatees all returned to work for the respondent. In Felbro, Inc., 291 NLRB 373 (1988), the Board accepted the above as the law of the case and modi- fied its remedy accordingly. In Rios v. Enterprise Assn. of Steamfitters Local 638, 860 F.2d 1168 (2d Cir. 1988), the Second Circuit agreed: ‘‘We conclude, in agreement with the Ninth Circuit, that undocumented workers who have re- mained in the country are eligible for backpay as of the time of a violation.’’ On the basis of the above, there is no doubt that Respond- ent’s first affirmative defense is totally lacking in merit. The sole evidence presented by Respondent was that the Immi- gration and Naturalization Service ordered Castro to leave the country by October 5, 1989. This is more than 4 years after the conclusion of the backpay period. Further, the evi- dence establishes that, like Felbro, supra, and Rios, supra, all 19 discriminatees remained in the country and were rein- stated, on July 31, 1985. This affirmative defense must there- fore fall. Respondent’s next affirmative defense is that the discriminatees are not entitled to backpay for overtime be- cause just prior to the commencement of the backpay period, Respondent moved to a larger, more efficient facility, elimi- nating the need for overtime. In Brown & Root, supra, the court stated that ‘‘in many cases, it is difficult for the Board to determine precisely the amount of backpay which should be awarded to an employee’’; however, the Board may use close approximations, and may adopt formulas reasonably designed to produce close approximations, so long as it is not arbitrary or unreasonable. Mastell Trailer Corp., 273 NLRB 1190 (1984). In the instant matter, the compliance of- ficer used the formula of each employee’s average number of hours worked per week in 1984, prior to the backpay pe- riod. This is a standard and fair formula to be employed in this matter, and Respondent, apparently agrees, contending only that overtime hours and pay should be excluded from the formula because of the change in its operation and facil- ity in about November and December 1984. The issue, there- fore, is whether Respondent has sustained its burden requir- ing deviation from an otherwise appropriate formula. DeLorean Cadillac, Inc., 231 NLRB 329 (1977). NLRB v. Dodson’s Market, 553 F.2d 617 (9th Cir. 1977). I find that it has not. Glass testified that in November or December, Re- spondent moved from its 7500 square foot facility in Ridgefield, New Jersey, to a 22,000 square foot facility in Saddle Brook, New Jersey. She testified that the purpose of the move was to increase the amount of machinery, thereby increasing production, while, at the same time, increasing the number of employees in order to decrease the amount of overtime worked by employees. Respondent received financ- ing from the State of New Jersey in making this move into larger quarters’ in consideration of this financing, Respond- ent committed to employing at least 60 employees at the new facility. It had employed approximately 20 at the Ridgefield facility. At the time of the hearing herein, Respondent em- ployed approximately 65 people. However, Glass did not know how many employees it employed at the new facility between December 1984 and July 31, 1987, nor did she know over what period of time the State of New Jersey, re- quired Respondent to reach the figure of 60 employees. Fi- nally, Respondent could have supported this affirmative de- fense with its payroll records for the backpay period; its failed to do so. Glass’ vague, unsupported testimony is there- fore not enough to rebut the General Counsel’s appropriate remedy herein. This affirmative defense is therefore dis- missed. East Wind Enterprises, 268 NLRB 655 (1984). Respondent’s third affirmative defense is that the discriminatees should be denied backpay because of the lack of diligent search for interim employment, and the General Counsel acknowledged that the discriminatees spent from 7:30 a.m. to 3:30 p.m., daily, on the picket line, for which they were paid $150 a week (which is included in the speci- fication as interim earnings) plus $5 a day ‘‘lunch money,’’3 and that none of the discriminatees searched for interim work. The issue is a clear one: can a discriminatee refuse to search for interim employment while picketing his former employer, when he is being paid by the union for doing so and is listing that pay as interim earnings? Once an employee is discharged unlawfully, trigerring the commencement of the backpay period (as occurred with the discriminatees herein on December 3, 1984), he has certain rights and obligations under the Act. He has the right to picket his employer’s facility to publicize the wrong per- petrated upon him by his employer. Although one might as- sume that this right is absolute and would allow the em- ployee to spend all his time picketing to protest his employ- 533 TUBARI, LTD. 4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec- tions to them shall be deemed waived for all purposes. 5 Discriminatees Eduardo Martinez, Francisco Molina, Juan Moreira, and Carlos Ochoa each received money as part of a settlement of a prior related case. The amounts they received was added to their net interim earnings, to the extent of those earnings, for each quarter until the amount was exhausted. er’s unfair labor practice, this, apparently, is not so. The Act also obliges the employee to mitigate the damages caused by Respondent by looking for interim employment, and this ob- ligation to look for work clearly modifies the discriminatees’ right to picket. Ozark Hardwood Co., 119 NLRB 1130 (1957); Rice Lake Creamery Co., 151 NLRB 1113, 1131 (1965); Sioux Falls Stock Yards Co., 236 NLRB 543, 549 (1978). As the court stated in NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1320 (D.C. Cir. 1972): ‘‘picket line ac- tivity does not relieve the discriminatees of the obligation of making reasonable efforts to obtain appropriate interim em- ployment.’’ See also the Board’s Second Supplemental Deci- sion and Order in Madison Courier, Inc., 202 NLRB 808 (1973). The instant situation presents a novel twist to this issue: while admitting that the discriminatees did not search for interim employment while picketing, the specification lists the $150 a week that the Union paid to the employees for picketing. I find that the discriminatees are not barred from receiving backpay due to their admitted failure to search for interim employment. The Union paid each of the discriminatees $175 a week; in return for this the discriminatees were obligated to picket or perform other services for the Union at Respond- ent’s facility. This therefore constitutes employment (of some sort) and mitigates Respondent’s damages Superior Ware- house Grocers, 282 NLRB 802 (1987). Prior to February 1985, these discriminatees would have been paid $6.15 an hour by Respondent; the Union was paying them $4.33 an hour. Although Respondent might argue that this is a ploy designed by the Union to Respondent’s detriment, I find, on the contrary that it is a reasonable way to mitigate damages. The discriminatees were paid almost 75 percent of their rate of pay from the first day of the backpay period. Many em- ployers in backpay cases would settle for mitigation to this extent. Finally, I find that the instant case presents a fair compromise between discriminatees’ right to picket their un- lawful discharges and their obligation to mitigate damages. Effective picketing of this nature requires the discriminatees present at the employer’s facility during the entire period that it is open; such picketing leaves little time for an effective search for interim employment. The instant situation allows the discriminatees to effectively picket their unlawful dis- charge, while, at the same time, mitigating Respondent’s damages. Finally, I must address certain additional defenses raised by Respondent at the hearing and in his brief. Respondent relies on Southwestern Pipe, 179 NLRB 364 (1969), for the proposition that the Board requires discharged employees to actively search for interim employment even if he is pick- eting his employer to protest his discharge. However, South- western Pipe was not a backpay case and did not involve a striker’s failure to search for interim employment. Rather, it involved a striker’s refusal to accept an offer of reinstatement because the employer had not made a similar offer to fellow strikers also entitled to immediate reinstatement. Addition- ally, Respondent relies on Drug Package Co., 288 NLRB 108 (1977), for the proposition that backpay should not begin to run until December 8, 1984, 5 days after the unfair labor practice. This case is inapplicable to the facts herein where the Board found that these employees were unlawfully termi- nated on December 3, 1984, or, in the alternative, they were engaged in a walkout that constituted protected concerted ac- tivity under the Act. In this situation, I see no reason to grant Respondent a 5-day grace period. Respondent also alleges that discriminatee Eduardo Martinez should be denied back- pay because he was a probationary employee prior to De- cember 3, 1984, who would have been terminated without re- gard to the events relevant to the underlying Board pro- ceeding. The sole evidence supporting this is Glass’ testi- mony that Martinez had been employed by Respondent for a few weeks prior to December 3, 1984, and was therefore a probationary employee. In answer to the question: ‘‘Had the company at that point considered whether Mr. Martinez would have been continued as an employee, but for the events that transpired?’’, she testified that Respondent had decided to terminate him. This contention is an affirmative defense with the burden on the Respondent to establish that Martinez would not have remained in its employ for non- discriminatory reasons. As the administrative law judge stat- ed in Midwest Hanger Co., 221 NLRB 911, 917 (1975): ‘‘Respondent must make the showing and mere conclusions are not sufficient.’’ As the trial examiner stated in W. C. Nabors Co., 134 NLRB 1078, 1088 (1961): ‘‘It follows that mere self serving and conclusionary statements by Respond- ent that he would have laid off the 11 claimants here for eco- nomic and nondiscriminatory reasons do not suffice to de- prive these claimants of their remedial rights.’’ As Respond- ents allegations regarding Martinez are solely conclusionary, self-serving, and totally unsupported by any other evidence, this defense is therefore denied. A & T Mfg. Co., 280 NLRB 916 (1986). Finally, counsel for Respondent, in his brief, states that he disagrees with the backpay calculations in the backpay speci- fication for the following discriminatees: Veronica Avila, Ismelda Castro, Edith Flori, Arnulfo Hernandez, Eduardo Martinez, Ramon Molgado, Francisco Molina, Carlos Ochoa, and Juan Perez. The only reference in the brief to mistakes in the backpay specification, apparently, is: ‘‘Many of the employees were not on the payroll as of January 1, 1984, so the number of weeks worked by them is less than 49. The number of hours worked includes holiday hours.’’ This is in regard to the computation for average regular hours worked by the discriminatees. In arriving at the average number of regular hours worked by these nine discriminatees during 1984 (as appears in the appendix below), I have included the holiday hours for which they were paid by Respondent in 1984, but I have excluded their final week of employment in 1984 when they were terminated early in the week. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended4 ORDER The Respondent, Tubari, Ltd., Inc., Saddlebrook, New Jer- sey, its officers, agents, successors, and assigns, shall pay, to the individuals named below and listed in the appendix below the amounts set forth beside their names,5 plus interest computed in accordance with Florida Steel Corp., 231 534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB 651 (1977), and New Horizons for the Retarded, 283 NLRB 1173 (1987). Edgar Aguilar $10,394 Veronica Avila 7,684 Ismelda Castro 8,278 Tomas Cruz 11,165 Martha David 7,445 Elvia Escobar 6,847 Edith Flori 4,397 Felix Gonzales 7,439 Arnulfo Hernandez 15,742 Gladys Luna 5,420 Eduardo Martinez 712 Concepcion Molgado 2,791 Ramon Molgado 8,662 Francisco Molina 0 Juan Moreira 4,296 Carlos Ochoa 6,925 Hugo Patino 7,573 Juan Perez 4,044 Sara Valerezo 5,541 APPENDIX Yr./Qtr. Avg. Weekly Wage Wks. Gross Backpay Net Interim Earning Net Backpay Aguilar, Edgar 84/4 $445.91 4.2 $1,873 $735 $1,138 85/1 445.91 4.8 2,140 840 1,300 85/1 485.78 8.0 3,886 1,400 2,486 85/2 485.78 13.0 6,315 2,275 4,040 85/3 485.78 4.6 2,235 805 1,430 $10,394 Avila, Veronica 84/4 $172.45 4.2 $1,564 $735 $829 85/1 372.45 4.8 1,788 840 948 85/1 405.75 8.0 3,246 1,400 1,846 85/2 405.75 13.0 5,275 2,275 3,000 85/3 405.75 4.6 1,866 805 1,614 $7,684 Castro, Ismelda 84/4 $88.53 4.2 $1,632 $735 $897 85/1 388.53 4.8 1,865 840 1,025 85/1 423.87 8.0 3,386 1,400 1,986 85/2 423.87 13.0 5,503 2,275 3,228 85/3 423.87 4.6 1,947 805 1,142 $8,239 Gonzalez, Felix 85/1 $395.72 4.0 $1,583 $700 $883 85/1 431.11 8.0 3,449 1,400 2,049 85/2 431.11 13.0 5,604 2,275 3,329 85/3 431.11 4.6 1,983 805 1,178 $7,439 Hernandez, Arnulfo 84/4 $590.86 4.2 $2,482 $735 $1,747 85/1 590.86 4.8 2,836 840 1,996 85/1 643.71 8.0 5,150 1,400 3,750 85/2 643.71 13.0 8,368 2,275 6,093 85/3 643.71 4.6 2,961 805 2,156 $15,835 Luna, Gladys 84/4 $311.07 4.2 $1,306 $735 $571 85/1 311.07 4.8 1,493 840 653 85/1 338.89 8.0 2,711 1,400 1,311 85/2 338.89 13.0 4,406 2,275 2,131 85/3 338.89 4.6 1,559 805 754 $5,420 535 TUBARI, LTD. APPENDIX—Continued Yr./Qtr. Avg. Weekly Wage Wks. Gross Backpay Net Interim Earning Net Backpay Martinez, Eduardo 84/4 $230.68 4.2 $969 $969 $0 85/1 230.68 4.8 1,107 1,107 0 85/1 262.40 8.0 2,099 2,099 0 85/2 262.40 13.411 3,411 3,101 310 85/3 262.40 4.6 1,207 805 402 $1,137 Molgado, Concepcion 84/4 $239.79 4.2 $1,007 $735 $272 85/1 239.79 4.8 1,151 840 311 85/1 261.33 8.0 2,090 1,400 690 85/2 261.23 13.0 3,396 2,275 1,121 85/3 261.23 4.6 1,202 805 397 $2,791 Molgado, Ramon 84/4 $398.95 4.2 $1,676 $735 $941 85/1 398.95 4.8 1,915 840 1,075 85/1 434.63 8.0 3,477 1,400 2,077 85/2 434.63 13.0 5,650 2,275 3,375 85/3 434.63 6.3 1,999 805 1,194 $8,662 Molina, Franciso 84/4 $76.41 4.2 $1,161 $1,161 $0 85/1 76.41 4.8 1,327 1,327 0 85/1 301.13 8.0 2,409 2,409 0 85/2 301.13 13.0 3,915 3,915 0 85/3 301.13 4.6 1,365 1,385 0 $0 Moreira, Juan 84/4 $338.25 4.2 $1,421 $1,421 $0 85/1 338.25 4.8 1,624 1,624 0 85/1 368.50 8.0 2,948 2,058 890 85/2 368.50 13.0 4,791 2,275 2,516 85/3 368.50 4.6 1,695 805 890 $4,296 Ochoa, Carlos 84/4 $487.39 4.2 $2,047 $2,047 $0 85/1 487.39 4.8 2,339 2,339 0 85/1 530.98 8.0 4,248 3,589 659 85/2 530.98 13.0 6,903 2,275 4,628 85/3 530.98 4.6 2,523 805 1,638 $6,925 Patino, Hugo 84/4 $361.19 4.2 $1,517 $735 $782 85/1 361.19 4.8 1,734 840 894 85/1 405.34 8.0 3,243 1,400 1,843 85/2 405.34 13.0 5,269 2,275 2,994 85/3 405.34 4.6 1,865 805 1,060 $7,573 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX—Continued Yr./Qtr. Avg. Weekly Wage Wks. Gross Backpay Net Interim Earning Net Backpay Perez, Juan 84/4 $73.74 4.2 $1,150 $735 $415 85/1 73.74 4.8 1,314 840 474 85/1 310.81 8.0 2,386 1,400 986 85/2 310.81 13.0 3,877 2,275 1,602 85/3 310.81 4.6 1,372 805 567 $4,469 Valerezo, Sara 84/4 $314.33 4.2 $1,320 $735 $585 85/1 314.33 4.8 1,509 840 1,401 85/1 342.44 8.0 2,740 1,400 1,340 85/2 342.44 13.0 4,452 2,275 2,177 85/3 342.44 4.6 1,575 805 770 $5,541 Cruz, Tomas 84/4 $466.82 4.2 $1,961 $735 $1,226 85/1 466.82 4.8 2,241 850 1,407 85/1 508.56 8.0 4,068 1,400 2,668 85/2 508.56 13.0 6,611 2,275 4,336 85/3 508.56 4.6 2,339 805 1,534 $11,165 David, Martha 84/4 $365.96 4.2 $1,537 $735 $802 85/1 365.96 4.8 1,757 840 917 85/1 398.68 8.0 3,189 1,400 1,789 85/2 398.68 13.0 5,183 2,275 2,908 85/3 398.68 4.6 1,834 805 1,029 $7,445 Escobar, Elvia 85/4 $349.72 4.2 $1,469 $735 $734 85/1 349.72 4.8 1,679 840 839 85/1 381.00 8.0 3,048 1,400 1,648 85/2 381.00 13.0 4,953 2,275 2,678 85/3 381.00 4.6 1,753 805 948 $6,847 Flori, Edith 84/4 $283.33 4.2 $1,190 $735 $455 85/1 283.33 4.8 1,360 840 520 85/1 308.67 8.0 2,638 1,400 1,238 85/2 308.67 13.0 4,013 2,275 1738 85/3 308.67 4.6 1,420 805 615 $5,111