Grosvenor Resort

GROSVENOR RESORT 350 NLRB No. 86 1197 Grosvenor Orlando Associates, LTD., d/b/a The Grosvenor Resort, and its general partners Grosvenor Properties, Ltd., Donald E. Werby and Robert K. Werbe and Hotel Employees and Restaurant Employees, Local 55, AFL–CIO. Cases 12–CA–18190, 12–CA–18381 (–2, –4, –5), 12–CA–18467, 12–CA–18518, 12–CA–18576, and 12–CA–18830 September 11, 2007 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On June 29, 2005, Administrative Law Judge Benja- min Schlesinger issued the attached supplemental deci- sion. The Respondent filed exceptions1 and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The General Counsel filed cross-exceptions with a supporting brief, the Re- spondent filed an answering brief, and the General Coun- sel filed a reply brief. Finally, counsel for the individual discriminatees filed exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the supplemental decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions only to the extent consistent with this Sup- plemental Decision and Order. I. INTRODUCTION The Respondent’s housekeeping, service, and mainte- nance employees commenced an unfair labor practice strike on September 27, 1996. Three days later, the Re- spondent discharged them. On September 30, 2001, the Board issued a Decision and Order finding, in relevant part, that the discharges were unlawful. The Order di- 1 The General Counsel filed a motion to strike the Respondent’s ex- ceptions on the grounds that they did not comply with Sec. 102.46(b) of the Board’s Rules and Regulations. The General Counsel contends that the Respondent’s exceptions contain argument and fail to meet the Board’s specificity requirements. The Respondent filed an answering brief opposing the motion. Although the Respondent’s exceptions are not in complete conformity with the Board’s Rules, we find that they are in substantial compliance with those requirements. See America’s Best Quality Coatings Corp., 313 NLRB 470, 470 fn. 1 (1993), enfd. 44 F.3d 516 (7th Cir. 1995), cert. denied 515 U.S. 1158 (1995). Therefore, we deny the General Counsel’s motion. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. rected the Respondent to reinstate the employees and to make them whole for any loss of earnings and benefits resulting from their discharge.3 On October 8, 2002, the United States Court of Appeals for the Eleventh Circuit enforced the Board’s Order.4 The Respondent offered the employees reinstatement on December 9, 2002. Thus, the backpay period began on September 30, 1996, and it ended on December 9, 2002. In his supplemental decision, the judge resolved nu- merous issues raised by the Respondent in opposition to the General Counsel’s compliance specification alleging the amounts of backpay to be due 44 discriminatees.5 We adopt the judge’s findings that (1) the Union’s strike benefits and donations are not deductible as interim earn- ings,6 (2) interest should be accrued on backpay after the date the Respondent filed for bankruptcy, (3) the Starlite Cutting, 280 NLRB 1071 (1986), escrow remedy should apply for discriminatees Maria Hernandez and Norma Jimenez, even though they were subpoenaed but did not appear to testify,7 (4) an adverse inference should be drawn against the Respondent regarding the average hours the discriminatees worked per week for the Re- spondent,8 (5) the Respondent’s backpay liability for 3 Grosvenor Resort, 336 NLRB 613 (2001). 4 Grosvenor Orlando Associates, Ltd. v. NLRB, enfd. mem. 52 Fed.Appx. 485 (11th Cir. 2002). 5 There are no exceptions to the judge’s backpay awards to the fol- lowing discriminatees: Francisco Abreu, Rosetta Brown, Dorothy Col- lier, Lindsey Day, Enoch Deneus, Maria Gillaspie, Betty Jackson, Therese Josaphat, Dorzelia Joseph, Paul LeBlanc, Louis Preval, Isidro Rodriguez, and Adriana Sepulveda. 6 Chairman Battista agrees that this finding is consistent with current Board law. He notes that the Respondent does not argue for a change in the law. 7 Member Schaumber agrees with his colleagues that under current Board law the judge properly found that Hernandez’ and Jimenez’ backpay should be held in escrow, but disagrees with this precedent. In his view, a discriminatee who is served with a subpoena to testify but does not appear, or appears and suddenly leaves without testifying and fails to appear when rescheduled to testify, should not be entitled to have backpay held in escrow for 1 year. 8 The Respondent contends that six discriminatees averaged 40 hours per week when they worked for it, and that they should not have ac- cepted part-time work as interim employment. The Chairman and Member Walsh find that the Respondent’s failure to produce the pay- roll records, which were under its control, warrants an adverse infer- ence that the records would not have supported the Respondent’s calcu- lations of workweek hours. In any event, even accepting the 40-hour average, that does not, by itself, show that any of the employees who accepted interim work requiring less than 40 hours per week incurred a willful loss of earnings by doing so. In adopting the judge’s adverse inference, the Chairman and Member Walsh do not rely on McAllister Towing & Transportation Co., 341 NLRB 394 (2004), enfd. 156 Fed. Appx. 386 (2d Cir. 2005), as it is inapposite. Unlike McAllister Tow- ing, this case does not involve Bannon Mills, 146 NLRB 611 (1964), sanctions. Contrary to his colleagues, Member Schaumber does not rely on the judge’s adverse inference. Instead, Member Schaumber finds that the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198 discriminatee Maria Quevedo should be reduced during the fourth quarter of 2001 when Quevedo was on mater- nity leave, and (6) discriminatee Andres Alvarez did not willfully conceal his interim earnings and thus should be awarded the full amount of backpay. Further, we adopt the judge’s backpay awards to discriminatees Gilberto Carranza, Carlos Delgado, Oslaine Desir, Jules Josaphat, Martin Malagon, Lourdes Matos, Earl Rankin,9 and Raymond Smith.10 For the reasons stated below, however, we reverse the judge’s findings that (1) certain discriminatees did not incur a willful loss of earnings by delaying their initial search for interim work, (2) the Respondent’s expert tes- timony should be “generally reject[ed],” (3) discrimina- tee Montgomery was justified in quitting her interim em- ployment with K-Mart, and (4) the following discrimina- tees reasonably mitigated their damages: Robert Baity, Hector Caban, Ella Mae Davis, Aida Febles, Deborah Goodman, Israel Hernandez, Lidia Hernandez, Mollie Jackson, Flor Javier, Margarita Jimenez, Adisseau Lou- Respondent’s evidence was insufficient to meet its burden of proving that certain discriminatees did not mitigate their damages by working at interim jobs requiring less than 40 hours per week. 9 We agree with the General Counsel that the judge miscalculated by 50 cents Rankin’s total net backpay as $13,419.87 rather than $13,419.37 10 For the reasons set forth in the judge’s decision, we find that the Respondent failed to prove that Smith made an inadequate job search from the time of his discharge until he underwent surgery in the fourth quarter of 1997. According to his written reports, Smith (who was deceased by the time of the hearing) applied for work with three hotels in the first month after his discharge. He had an angioplasty and was unavailable for work during the last half of November 1996. He ap- plied to four employers in the first quarter of 1997 and eight employers in the second quarter. While there is no record of his job search in the third quarter, we are unwilling to infer that he departed from past prac- tice and ceased looking for work during this period. Based on evidence of Smith’s job search during the entire period at issue, we find the Respondent has not met its burden of proving that Smith failed to make sufficient efforts to mitigate backpay. Unlike his colleagues and the judge, Member Schaumber finds that Smith is not entitled to backpay for the fourth quarter of 1996, the first quarter of 1997, and the third quarter of 1997. Regarding the fourth quarter of 1996, Smith applied to three hotels. Although Smith suf- fered from some medical conditions, submitting three applications over a period of 12 weeks does not constitute a diligent search for interim employment. See examples of what constitutes an insufficient job search in sec. D, infra. Likewise, Member Schaumber finds that Smith’s search for work with four employers during the first quarter of 1997 was insufficient. Finally, with respect to the third quarter of 1997, Member Schaumber would not award Smith backpay in the ab- sence of any evidence that he searched for work during this quarter. Member Schaumber does not view Smith’s failure to sufficiently miti- gate his damages for three quarters of a year an isolated portion of the backpay period. See Wright Electric, 334 NLRB 1031 (2001) (quoting Electrical Workers Local 3 (Fischbach & Moore), 315 NLRB 1266 (1995) (citation omitted)), enfd. 39 Fed. Appx. 476 (8th Cir. 2002) (sufficiency of a discriminatee’s efforts to mitigate backpay is not based on “isolated portions of the backpay period”). isius, Frederic Meradin, Charitable Ovince, Joseph Pas- chal, Marie A. Pierre, Maria Quevedo, Feliza Ryland, Cleofas Viscaino-Hernandez, and Flossie Williams. II. ANALYSIS In a backpay proceeding, the General Counsel must first show the amount of gross backpay due to each dis- criminatee. The Respondent then has the burden of es- tablishing affirmative defenses to mitigate its liability, including willful loss of interim earnings. Millennium Maintenance & Electrical Contracting, 344 NLRB 516, 517 (2004). A discriminatee must make reasonable ef- forts to secure interim work to be entitled to backpay. Glenn’s Trucking Co., 344 NLRB 377 (2005). The “suf- ficiency of a discriminatee’s efforts to mitigate backpay are determined with respect to the backpay period as a whole and not based on isolated portions of the backpay period.” Electrical Workers Local 3, supra at 1266. It is the respondent’s burden to prove that the discriminatee failed to exercise reasonable diligence in searching for work. Millennium Maintenance & Electrical Contract- ing, supra. Backpay is not compelled by the Act, but is instead entrusted to the Board’s discretion, consistent with the “healthy policy” underlying the Act of “promot- ing production and employment.” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 199 (1941).11 A. Delay in Initial Search for Interim Work Some discriminatees did not begin their search for in- terim work until several weeks after being discharged. It is well settled that “an employee discriminatorily laid off or discharged need not instantly seek new work; rather the test is whether, on the record as a whole, the em- ployee has diligently sought other employment during the entire backpay period.” (Emphasis added.) Saginaw Aggregates, 198 NLRB 598 (1972), enfd. 482 F.2d 946 (6th Cir. 1973) (backpay awarded even though employee did not seek interim work for initial 2 weeks). Notwith- standing the Board’s focus on the totality of a discrimi- natee’s mitigation efforts, a discriminatee’s unreasonable delay in commencing an initial search for interim work will not be excused simply because he or she thereafter diligently seeks work. If the discriminatee unreasonably delays an initial search, the Board will toll backpay for that period, and will commence it if and when a reasona- bly diligent search begins. See Marlene Industries Corp., 183 NLRB 50, at 54–55 and 59 (1970) (discrimi- natee Edge’s backpay tolled for initial 6-week period, despite subsequent successfully diligent job search ef- 11 Our findings herein result from application of these well- established principles, not, as the dissent asserts, from any effort to reduce the Respondent’s monetary obligation to the victims of its unfair labor practices. GROSVENOR RESORT 1199 forts).12 Thus, the question in this case is whether some of the discriminatees waited an unreasonably long time before beginning their search for interim work. The judge did not exclude backpay for the discrimina- tees’ initial weeks of inactivity, even though he acknowl- edged that some of the discriminatees waited as long as 8 weeks before making any attempts to secure interim em- ployment. He found that so long as a discriminatee commenced a search for interim work within the fourth quarter of 1996 it was reasonable, provided the discrimi- natee made a reasonably diligent search for interim work thereafter. The Respondent contends that the discrimina- tees who did not begin their initial search for interim work immediately upon being discharged are not entitled to backpay for the fourth quarter of 1996. To determine whether some of the discriminatees un- reasonably delayed their initial search for interim work, we look to the Board’s precedent on this issue. As stated above, while the Board has not required discharged dis- criminatees to look for new work immediately, it has recognized limitations on the amount of time a discrimi- natee may wait to begin his or her initial search for in- terim work. In this regard, the longest period of total initial job search inactivity the Board has found permis- sible is the 2 weeks in Saginaw Aggregates, supra.13 Consistent with this precedent, we find that, absent cir- cumstances justifying a longer delay, the discriminatees here should have begun their initial search for interim work within the 2-week period following their dis- charges. If a discriminatee began a reasonably diligent search anytime within this period, then his or her back- pay would run from the date of the Respondent’s unlaw- ful action. If, however, a discriminatee failed to com- 12 E.g., Coronet Foods, Inc., 322 NLRB 837, 837 fn. 2 and 845 (1997) (backpay tolled for initial 7-week postdischarge period during which discriminatee Russell Haight failed to make any effort to seek interim employment.); Associated Grocers, 295 NLRB 806, 843 (1989) (discriminatee Brooks’ backpay tolled for initial 8-week period, not- withstanding subsequent job search met duty to mitigate). 13 In I.T.O. Corp. of Baltimore, 265 NLRB 1322, 1323 (1982), back- pay was awarded even though the discriminatee did not seek interim work for an initial 4 weeks, but the employee was demoted rather than discharged and waited 4 weeks in which no equivalent position was available before registering with a hiring hall for a lower paying posi- tion. In C-F Air Freight, 276 NLRB 481, 481 fn. 3 and 484 (1985), backpay was awarded even though the discriminatee did not seek em- ployment for the 3-week period after his discharge, but the Board noted that he did speak to a friend about possible employment in the air freight industry. Similarly, in Nickey Chevrolet Sales, Inc., 195 NLRB 395, 398 (1972), enfd. 493 F.2d 103 (7th Cir. 1974), backpay was awarded even though the discriminatee waited 40 days to make indi- vidual job applications, but he registered with an employment agency within a week after being discharged. Registration with a state unem- ployment agency is prima facie evidence of an active search for em- ployment. Midwestern Personnel Services, 346 NLRB 624, 627 (2006). mence a search at some point within this 2-week period, then his or her backpay would not begin to accrue until the discriminatee commenced a proper job search. Applying the foregoing, while we agree with the dis- sent that the reasonableness of interim job searches de- pends on an assessment of the circumstances of individ- ual discriminatees, we find, contrary to the dissent, that no circumstances exist in this case that would justify finding that any discriminatee reasonably delayed his or her initial search for interim work for more than 2 weeks after discharge. We recognize that many of the discrimi- natees were elderly, with limited skills and education, a long history of employment with the Respondent, and, in some instances, limited transportation. All of these fac- tors warrant consideration in determining whether an individual discriminatee exercised reasonable diligence when searching for interim work. None of these factors, however, justifies a discriminatee’s failure to search for work at all for periods of time beyond the first 2 weeks. Furthermore, since virtually all discriminatees found some employment once they commenced a reasonable job search, we know that work was available in the rele- vant labor market to applicants of similar age with simi- lar experience and skill levels. Under these circum- stances, to award backpay to discriminatees who delayed their initial search for interim work beyond an initial 2- week period would be to reward idleness. NLRB v. Mercy Peninsula Ambulance Service, 589 F.2d 1014, 1017 (9th Cir. 1979) (employee who has been a victim of an unfair labor practice is not entitled to simply await reimbursement from his employer for lost wages, for “the statute was not intended to encourage idleness” (ci- tation omitted)). Our dissenting colleague errs when he asserts that the discriminatees were entitled to delay any initial job search while picketing in support of a strike to regain their jobs with the Respondent. It is well established that “[p]icket line activity does not relieve the discriminatees of the obligation of making reasonable efforts to obtain appropriate interim employment”14 and that “[e]mployees who engage in picketing at the expense of seeking alternate employment incur willful losses of earnings by their failure to make the requisite search for work.”15 Further, since the dissent concedes that some discriminatees did look for jobs while they were still picketing, there is no apparent reason why others could not have done so. As a corollary argument, the dissent contends that the discriminatees delayed their initial search for interim 14 NLRB v. Madison Courier, Inc., 472 F.2d 1307 (D.C. Cir. 1972). 15 Ozark Hardwood Co., 119 NLRB 1130 (1958), remanded on other grounds 282 F.2d 1 (8th Cir. 1960). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200 work because they reasonably hoped to get their jobs back with the Respondent soon as a result of the strike and picketing. In this respect, the dissent relies on the expressed hopes of Union Organizer and Business Agent Gail Fabian rather than on the testimony of any discrimi- natee. There is no evidence that the Respondent engaged in any conduct that would warrant any optimism about the prospect of reinstatement and justify a further delay in the initial search for interim work beyond a 2-week period. Even assuming that some delay in searching for interim work could be justified on this basis, we find that reasonably diligent discriminatees should at least have begun searching for interim work at some time within the initial 2-week period, whether or not they continued to engage in picketing activities to regain their former jobs. Based on the foregoing, we reverse the judge and find that the following discriminatees unreasonably delayed their initial search for interim work: Baity, Goodman, Israel Hernandez, Lidia Hernandez, Javier, Jimenez, Louisius , Meradin, Ovince, Paschal, Pierre, Quevedo, Ryland, Viscaino-Hernandez, and Williams. As these discriminatees unreasonably delayed their initial searches, we toll their backpay to the date when each discriminatee commenced his or her search for interim work.16 16 As discussed in more detail below, we find that several discrimi- natees failed to conduct an adequate search for interim work in addition to unreasonably delaying their initial search for interim work. The following discriminatees, however, only unreasonably delayed their initial search for interim work. Accordingly, we have tolled backpay in the fourth quarter of 1996 until the date of the first application for work by: Goodman (November 14), Israel Hernandez (November 21), Lidia Hernandez (November 1), Louisius (November 15), Ovince (November 1), Paschal (November 1), Pierre (November 27), Quevedo (November 10), and Ryland (November 22). See attached Appendixes 1 through 9 for details on these discriminatees’ backpay recalculations. With respect to Quevedo, we agree with the General Counsel that the judge incorrectly reduced the Respondent’s liability from Quevedo’s total net backpay rather than from her gross backpay for the fourth quarter of 2001. We will modify the judge’s recommended Supplemental Order accordingly. Further, the Chairman and Member Schaumber note that the Respondent made no arguments about Quevedo’s credited testimony that her search for interim work was limited by transportation problems. For that reason, they find that Quevedo’s transportation problems justify what would have otherwise been an inadequate search in the fourth quarter of 1996. Similarly, the Chairman and Member Schaumber note that the Re- spondent does not dispute Lidia Hernandez’ credited testimony that her search for interim work was limited by transportation problems as well. For that reason, they find that Hernandez’ transportation issues also justify what otherwise would have been an inadequate search for in- terim work in the fourth quarter of 1996. Further, no exceptions were filed to the judge’s finding that Lidia Hernandez was entitled to back- pay for the last 3 weeks of the fourth quarter of 1999 through the first quarter of 2000. In the absence of exceptions, the Board adopts the judge’s findings. In reaching our decision, we have fully considered the individual circumstances of the discriminatees in this case and our conclusions are entirely consistent with es- tablished Board precedent concerning the time period accorded discriminatees to commence their interim job search. In the absence of a showing of unusual circum- stances in this case, we find that the discriminatees here unreasonably delayed their initial search for interim work by not beginning their search until 4–8 weeks after their discharge—a much longer time period than the Board has previously found to be reasonable. With due respect to our dissenting colleague, our decision represents nei- ther a radical departure from established backpay princi- ples nor a mechanical application of a 2-week rule. Rather, it is our colleague who would depart from Board precedent by permitting a prolonged and indefinite delay before a discriminatee must begin his or her initial search for interim work. B. The Respondent’s Expert Testimony In support of its contention that certain discriminatees failed to mitigate their damages, the Respondent called expert witnesses, including Doctor Bruce Seaman, a pro- fessor of economics, to testify about the conditions of the labor market at the time in question.17 Dr. Seaman testi- fied that the Orlando metro region had an “unusually strong” labor market during much of the backpay period, as measured by unemployment rates and “help wanted” ads in local newspapers. Dr. Seaman determined that if an employee searched for 40 jobs in a month, there was only a 12.9-percent chance of not getting a job. Dr. Seaman did not, however, meet with the discriminatees or consider their age and language barriers in his analy- sis. The judge “generally reject[ed]” this evidence. We re- verse the judge’s wholesale rejection. While we agree that expert testimony is too speculative to meet the Re- spondent’s burden of establishing that the backpay of certain discriminatees should be reduced, we nonetheless consider the expert testimony as a factor in determining whether the discriminatees diligently searched for in- terim work. See United Aircraft Corp., 204 NLRB 1068 (1973) (good-faith search for work depends on circum- 17 In addition to Dr. Seaman, the Respondent also called Jane Peter- son, the Respondent’s director of human resources, and Donna Smithberger, the director of human resources at Caribe Royal All Suites Resort. Relevantly, Peterson and Smithberger both testified that prospective employees would never be handicapped in seeking interim work because they had been discharged because of a labor dispute. The judge found their testimony “contrary to the wisdom contained in 344 volumes of the Decisions and Orders of the National Labor Relations Board.” The Chairman and Member Schaumber disavow this statement by the judge. GROSVENOR RESORT 1201 stances surrounding the search, including the economic climate in which the discriminatee operates). C. Willful Loss of Interim Earnings 1. Quitting interim employment The judge found that discriminatee Deborah Mont- gomery, a laundry attendant for the Respondent, was justified in quitting her interim job on March 28, 1998, and thus did not incur a willful loss of interim earnings from that date until June 19, 1998, when she started working for another employer. The judge determined that Montgomery’s decision to quit was justifiable be- cause she had been embarrassed by a coworker in front of customers. We disagree. On January 30, 1997, Montgomery was hired as a cashier by K-Mart. On March 28, 1998, Montgomery quit her job with K-Mart because of an incident with a coworker. Montgomery told the coworker not to prepare her own food in the store’s café. In the presence of cus- tomers, the coworker responded that she was going to cook her food whether Montgomery “liked it or not.” K- Mart tried to convince Montgomery not to quit because of the incident, but she quit because of what she said was her “embarrassment.” She did not work again until June 19, when she started a job with Winn Dixie. Contrary to the judge’s analysis, when a discriminatee is shown to have voluntarily quit interim employment, the burden shifts from the Respondent to the General Counsel to come forward with evidence that the action was reasonable.18 A voluntary quit is not a willful loss of employment “if the interim job is substantially more on- erous or is unsuitable or threatens to become so. . . [or] when it is prompted by unreasonable working condi- tions.”19 Montgomery’s testimony failed to show that she quit for any of these reasons. She quit simply be- cause she was assertedly embarrassed by a coworker in front of customers. Her subjective reaction to a single incident does not show that continued employment with K-Mart would be unduly burdensome. In fact, K-Mart tried to convince Montgomery not to quit. Under these circumstances, Montgomery’s voluntary quit was unjus- tified and constituted a willful loss of interim earnings.20 Consistent with the offset formula in Knickerbocker Plastic Co., 132 NLRB 1209, 1215 (1961), we shall 18 Taylor Machine Products, 338 NLRB 831, 835 (2003); Minette Mills, Inc., 316 NLRB 1009, 1010 (1995); Big Three Industrial Gas, 263 NLRB 1189, 1199 (1982). See also NLRB Casehandling Manual (Part Three), Sec. 10545.4. 19 Lundy Packing Co., 286 NLRB 141, 144 (1987), enfd. 856 F.2d 627 (4th Cir. 1988). 20 Compare, Big Three Industrial Gas, supra at 1199 (discriminatee Albright incurred willful loss of earnings by quitting interim job be- cause she did not “get along with” a supervisor there). therefore reduce Montgomery’s net backpay for the first and second quarters of 1998 by offsetting from gross backpay an interim earnings amount equal to that which she would have earned at K-Mart from the date she quit until the June 19 date when she started working for Winn Dixie.21 2. Inadequate search for interim work We find merit in the Respondent’s arguments that the discriminatees discussed below failed to sufficiently mitigate their damages by exercising reasonable dili- gence in seeking interim employment. Specifically, con- sidering all relevant employment factors in determining whether a discriminatee sufficiently mitigated losses, we find that the number of applications filed, the period of time between the applications, and the period of time between the applications and the starting date of interim work for these discriminatees shows an inadequate job search. With the exception of Mollie Jackson, the inade- quate job searches are limited to the fourth quarter of 1996.22 Thus, contrary to the judge and for the reasons discussed below, we find that the Respondent’s backpay liability for these discriminatees should be reduced ac- cordingly. a. Robert Baity Baity, a banquet server for the Respondent, did not be- gin his search for interim work until he unsuccessfully applied to an employer on October 29. He did not sub- mit another application until November 29. On Decem- ber 3, Baity applied a third time and secured employ- ment, which he held for the remainder of the backpay period. We find that Baity not only unreasonably delayed his initial job search, as discussed above, but also that he thereafter conducted an insufficient search for interim work. Baity did not apply for interim work until October 29, approximately 1 month after his discharge. He did not apply again for another month. One application in a 2-month period does not amount to a reasonable job search in a resort area where jobs were readily avail- 21 We agree with the General Counsel that the judge miscalculated Montgomery’s backpay for the first quarter of 2001 as $970.83, rather than $970.74. We will modify the recommended Order accordingly. 22 In this regard, we note that no exceptions were filed to the judge’s finding that the Respondent’s failure to establish when in November a discriminatee searched for work should lead to the conclusion that the discriminatee started searching on November 1. In the absence of exceptions, we adopt the judge’s finding. In adopting this finding, we note that where it is unclear which day in a month a discriminatee ap- plied or searched for work, we will assume that it occurred on the first day of that month. Our adoption of this finding is applicable to several discriminatees discussed below, as well as to discriminatees Ovince, Paschal, and Lidia Hernandez discussed above. See fn. 16, supra. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202 able.23 In fact, Baity quickly found interim employment once he began a reasonable job search. Accordingly, we toll Baity’s backpay until November 29, when he began sufficiently mitigating his damages. Therefore, we have recalculated Baity’s net backpay for the fourth quarter of 1996. See Appendix 10 for details on Baity’s backpay recalculations. b. Hector Caban Caban, a laundry attendant for the Respondent, applied for work on October 1 (see fn. 22, supra), in November, and on December 2. Caban secured employment on De- cember 2, but did not begin working until January 1997. While Caban did not unreasonably delay his initial search for interim work, we find that he conducted an insufficient search by applying to only three employers in approximately 3 months. Additionally, while Caban secured employment in December, he did nothing further to mitigate his damages even though he did not begin working until approximately 1 month later.24 Accord- ingly, we toll Caban’s backpay until January 1, 1997, when he began sufficiently mitigating his damages.25 Therefore, Caban is not entitled to any backpay for the fourth quarter of 1996. See Appendix 11 for details on Caban’s backpay recalculations. 23 We note that the judge credited Baity’s testimony that, in addition to the businesses specifically mentioned in his “Search for Work Re- port,” he also applied to “other places.” Even considering the testi- mony as credited, we find that it is too vague to support a finding that he, in fact, searched for work at more than one business in this 2-month period. 24 Contrary to the dissent’s assertion, our finding does not create a rule requiring discriminatees to seek “interim interim” work. Instead, it highlights the inadequacy of Caban’s search for employment during the entire fourth quarter of 1996 and tolls his backpay accordingly. Even though Caban secured employment on December 2, he did not begin working until approximately one month later on January 1, 2007. Given the inadequate nature of Caban’s search up to December 2 and the substantial inactive period of time between his securing employ- ment and commencing work, the fact that he secured employment on December 2 does not convert his inadequate fourth quarter search into an adequate one. To appropriately mitigate backpay, Caban should have sought additional interim employment throughout the fourth quar- ter of 1996. We believe that our finding is consistent with the overarching prin- ciple of backpay, requiring the Board to look at the backpay period as a whole to determine the sufficiency of a discriminatee’s efforts to miti- gate backpay. While the dissent calls into question our finding, it cites no case law to the contrary. Having explained our rationale for this approach with regard to Caban, we note that the rationale is also appli- cable to our findings concerning other similarly situated discrimina- tees—Javier, Jimenez, and Viscaino-Hernandez. 25 The judge also found that Caban did not have any interim earnings until January 1997 and that his part-time status at Toys “R” Us after that time satisfied his duty to mitigate. For the reasons stated by the judge, we adopt these findings. c. Ella Mae Davis Davis, a salad maker for the Respondent, credibly tes- tified that she “went to two or three hotels” during the fourth quarter. Davis made only two or three applica- tions in 3 months. We find one application per month insufficient under the circumstances. Accordingly, Davis is not entitled to backpay for the fourth quarter of 1996. As the fourth quarter of 1996 was the only quarter of the backpay period in which backpay was sought for Davis, no backpay is due. d. Aida Febles Febles, a room attendant for the Respondent, applied for interim work immediately upon being discharged. She did not apply again until November 22, when she successfully secured employment and began working. Thus, Febles’ second application was approximately 7 weeks from the date of her first application. While Fe- bles did not unreasonably delay her initial job search, we find that she conducted an insufficient search by apply- ing to only two employers in 2 months. Accordingly, we toll Febles’ backpay until November 22, when she began sufficiently mitigating her damages.26 Therefore, we have recalculated Febles’ net backpay for the fourth quarter of 1996. See Appendix 12 for details on Febles’ backpay recalculations. e. Mollie Jackson The fourth quarter of 1996 and the first three quarters of 1997 are in dispute for Mollie Jackson, a room atten- dant for the Respondent. The judge found that Jackson sufficiently mitigated her damages. We disagree. Following her unlawful discharge, Jackson did not ap- ply for interim work. Instead, Jackson made minimal interim earnings by arranging flowers for her daughter. Jackson had injured her foot in an accident sometime before the strike began and her injury ultimately required surgery, which she had during the fourth quarter of 1997. Shortly thereafter, Jackson undisputedly withdrew from the labor market. The Board has found self-employment to be a proper way to mitigate damages. See Fugazy Continental Corp., 276 NLRB 1334, 1338–1339 (1985), enfd. 817 F.2d 979 (2d Cir. 1987) (less lucrative self- employment was sufficient mitigation). In this case, however, Jackson’s flower arranging was not self- employment, but merely a “hobby,” as conceded by Jackson during her testimony. Further, Jackson did not report her minimal earnings for tax purposes and she testified that she could not work because of an injury. 26 No exceptions were filed to the judge’s finding that Febles’ back- pay should not be reduced because of a medical leave of absence from an interim employer during the second and third quarters of 2001. In the absence of exceptions, we adopt the judge’s finding. GROSVENOR RESORT 1203 Accordingly, we find that Jackson’s flower arranging was not sufficient mitigation and that she is not entitled to backpay. f. Flor Javier and Margarita Jimenez We discuss these discriminatees together because their situations are identical. Both Javier and Jimenez, who were room attendants with the Respondent, secured em- ployment on November 1 (see fn. 22, supra), but did not begin working until December 7. They remained em- ployed for the rest of the backpay period. We find that Javier and Jimenez not only unreasonably delayed their initial job search but also conducted an insufficient search. They applied approximately 1 month after their discharge and submitted only one application in more than 2 months before beginning to work. While they secured employment in November, they did not begin working until approximately 1 month later and they did nothing further to mitigate their damages during this time. Accordingly, we toll Javier’s and Jimenez’ backpay until December 7. Therefore, we have recalcu- lated their net backpay for the fourth quarter of 1996. See Appendices 13 and 14 for details on Javier’s and Jimenez’ backpay recalculations. g. Frederic Meradin Meradin, a houseman for the Respondent, unsuccess- fully applied for interim work on November 1 and in December. On January 3, 1997, Meradin registered with IATSE and obtained some work. He applied to another employer in March 1997 and to two other employers in April. On June 21, 1997, Meradin secured full-time em- ployment. With respect to the fourth quarter of 1996, we find that Meradin unreasonably delayed his initial job search by not applying for interim work until November 1, ap- proximately 1 month after his discharge. Further, we find that Meradin conducted an insufficient search during the entire fourth quarter of 1996 because he applied to only two employers in approximately 3 months. With respect to the first and second quarters of 1997, however, we conclude that Meradin conducted a suffi- cient search. Within 3 days of the start of the first quar- ter of 1997, Meradin registered with IATSE. He was referred by IATSE to work at Freeman Decorating from January 7, until sometime in February 1997. As fully explained by the judge in his decision, job referral oppor- tunities for new registrants with IATSE depend on sev- eral factors and employees would have to stay in the sys- tem for some time in order to achieve higher wages, higher priority, and more regular employment. Still, Meradin’s first quarter interim earnings through IATSE compare favorably to those of fellow discriminatees who first registered with IATSE in the fourth quarter of 1996.27 Further, while still registered with IATSE, Me- radin applied to two additional employers during that quarter. Similarly, in the second quarter of 1997, Me- radin applied to two employers and secured full-time employment by the end of the quarter. Thus, we find that Meradin’s IATSE work, although not substantial, and his continuing efforts to secure full-time work during these quarters were sufficient mitigation. Accordingly, we toll Meradin’s backpay only until the first quarter of 1997, when he began sufficiently mitigating his dam- ages. Therefore, we have recalculated Meradin’s back- pay for the fourth quarter of 1996. See Appendix 15 for details on Meradin’s backpay recalculations. h. Cleofas Viscaino-Hernandez Viscaino-Hernandez, a room attendant for the Respon- dent, did not apply for interim work until November 15.28 She secured employment on that date but did not begin working until December 11. She made no other applica- tions for interim work during the quarter. For the reasons discussed above, we find that Vis- caino-Hernandez unreasonably delayed her initial job search. Further, she applied only once before beginning work more than 2 months after her discharge. While Vis- caino-Hernandez secured employment on November 15, she did not begin working until approximately 1 month later and she did nothing further to mitigate her damages during this time. Accordingly, we toll Viscaino- Hernandez’ backpay until December 11, when she began mitigating her damages. Therefore, we have recalculated Viscaino-Hernandez’ backpay for the fourth quarter of 1996. See Appendix 17 for details on Viscaino- Hernandez’ backpay recalculations. i. Flossie Williams Williams, a room attendant for the Respondent, ap- plied for interim work in November and in December. She started working for an interim employer on Decem- ber 11,29 and remained employed for the rest of the back- pay period, until her death in 1997. For the reasons dis- cussed above, we find that Williams unreasonably de- layed her initial job search. Further, we find that apply- ing to only two employers in more than 2 months was insufficient mitigation. Accordingly, we toll Williams’ backpay until December 11, when she sufficiently miti- 27 Carranza, Delgado, Hernandez, Leblanc, Paschal, and Rankin. 28 The General Counsel contends that the judge erred in finding Vis- caino-Hernandez applied for interim work on December 2, rather than in November. November 15, is listed on Viscaino-Hernandez’ Search for Work Reports. Accordingly, we correct the judge’s inadvertent error. 29 The record does not reveal the date that Williams was hired. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1204 gated her damages. Therefore, we have recalculated Williams’ backpay for the fourth quarter of 1996. See Appendix 18 for details on Williams’ backpay recalcula- tions. ORDER The National Labor Relations Board adopts the rec- ommended Supplemental Order of the administrative law judge as modified below and orders that the Respondent, Grosvenor Orlando Associates, Ltd., its officers, agents, successors, and assigns, doing business as The Grosve- nor Resort, and its general partners, Grosvenor Proper- ties, Ltd., Donald E. Werby, and Robert K. Werbe shall pay to each of the following discriminatees the amounts set forth opposite their respective names, plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), and minus tax withholdings required by Federal and State laws: GROSVENOR RESORT 1205 DISCRIMINATEE CLAIMANTS NET BACKPAY FICA MATCH MEDICAL EXPENSES SUM TOTAL Francisco Abreu 11,917.67 911.70 — 12,829.37 Andres Alvarez 55,148.31 4,218.85 313.89 59,681.05 Robert Baity 18,394.26 1,407.16 — 19,801.42 Rosetta Brown 2,480.05 189.72 — 2,669.77 Hector Caban 6,171.68 472.13 — 6,643.81 Gilberto Carranza 1,035.38 79.21 — 1,114.59 Dorothy Collier 5,611.55 429.28 620.50 6,661.33 Ella Mae Davis 0.00 0.00 0.00 0.00 Lindsey Day 4,935.73 377.58 2,129.93 7,443.24 Carlos Delgado 7,015.79 536.71 — 7,552.50 Enoch Deneus 9,659.27 738.93 — 10,398.20 Oslaine Desir 22,356.44 1,710.27 — 24,066.71 Aida Febles 10,164.94 777.62 — 10,942.56 Maria Gillaspie 5,067.53 387.67 — 5,455.20 Deborah Goodman 14,053.07 1,075.06 — 15,128.13 Israel Hernandez 2,733.54 209.12 — 2,942.66 Lidia Hernandez 12,323.54 942.75 — 13,266.29 Betty Jackson 14,789.40 1,131.39 927.11 16,847.90 Mollie Jackson 0.00 0.00 — 0.00 Flor Javier 9,117.52 697.49 — 9,815.01 Margarita Jimenez 18,926.19 1,447.85 — 20,374.04 Jules Josaphat 33,135.01 2,534.83 — 35,669.84 Therese Josaphat 21,093.98 1,613.69 — 22,707.67 Dorzelia Joseph 11,517.38 881.08 — 12,398.46 Paul LeBlanc 2,956.70 — — 2,956.70 Adisseau Louisius 22,609.48 1,729.63 — 24,339.11 Martin Malagon 16,920.14 1,294.39 11,224.29 29,438.82 Lourdes Matos 32,119.63 2,457.15 — 34,576.78 Frederic Meradin 19,420.87 1,485.70 — 20,906.57 Deborah Montgomery 37,268.21 2,851.02 — 40,119.23 Charitable Ovince 35,888.07 2,745.44 626.97 39,260.48 Joseph Paschal 7,712.83 590.03 — 8,302.86 Marie A. Pierre 2,212.36 169.25 — 2,381.61 Louis Preval 18,837.25 1,441.05 266.00 20,544.30 Maria Quevedo 10,940.25 836.93 — 11,777.18 Earl Rankin 13,419.37 1,026.62 1,172.08 15,618.07 Isidro Rodriguez 2,583.94 197.67 — 2,781.61 Feliza Ryland 7,639.20 584.40 — 8,223.60 Raymond Smith 57,140.55 — — 57,140.55 Cleofas Viscaino-Hernandez 19,185.69 1,467.71 — 20,653.40 Flossie Williams 1,579.97 — — 1,579.97 GROSVENOR RESORT 350 NLRB No. 86 1207 The total backpay of $4,378.45 due to Maria Hernandez, $7,894.27 due to Norma Jimenez, and $78,240.83 due to Adriana Sepulveda, together with the applicable FICA match of .0765 percent, shall be paid to the Regional Director for Region 12 and will be held in escrow for 1 year. In the event they appear, or any one of them ap- pears, to collect this backpay, Respondents will be of- fered an opportunity by the Regional Director to produce evidence or examine them about their interim earnings. MEMBER WALSH, dissenting in part. The principles to be applied in evaluating an unlaw- fully discharged employee’s efforts to obtain interim employment are well established. Central among them is that the sufficiency of the efforts is “determined with respect to the backpay period as a whole and not based on isolated portions of the backpay period.”1 In evaluat- ing those efforts, the Board considers what would be expected of a reasonable person in like circumstances, which may include age, education and skills, and em- ployment history.2 Equally important, the Board does not require either “success” or application of the highest standard of diligence; it requires only a good-faith effort to find suitable employment: “The applicable standard is one of reasonable diligence, not the highest diligence.”3 It should be self-evident that those principles do not yield mathematical formulas, but require the exercise of judg- ment and discretion. Although the majority pays lip service to those princi- ples, its decision here constitutes a radical departure from them. Without taking account of the backpay period as a whole, the individual employees, or the surrounding cir- cumstances, the majority faults some of the employees for not seeking work quickly enough, others for not look- ing hard enough, and still others who found interim em- ployment that did not commence right away. In so do- ing, the majority replaces the foregoing principles with mechanical rules of its own devise. The result is unfair to the employees, but it is also bad policy, for it produces an inadequate remedy for substantial violations of the law, and thus it will embolden others to commit viola- tions that would otherwise result in more substantial backpay obligations. Indeed, today’s decision is of a piece with other recent decisions of the majority limiting 1 Electrical Workers Local 3 (Fischbach & Moore), 315 NLRB 1266, 1266 (1995), citing I.T.O. Corp. of Baltimore, 265 NLRB 1322 (1982); accord: Wright Electric, Inc., 334 NLRB 1031 (2001), enfd. mem. 39 Fed. Appx. 476 (8th Cir. 2002). 2 See, e.g., United Aircraft Corp., 204 NLRB 1068 (1973); see also NLRB Casehandling Manual (Part Three) Compliance, Sec. 10545.3. 3 Arlington Hotel Co., 287 NLRB 851, 851 (1987), enfd. in relevant part 876 F.2d 678 (8th Cir. 1989). the backpay or (re)instatement rights of employees.4 Accordingly, I dissent from those portions of the opinion. I. DID THE EMPLOYEES SEEK INTERIM EMPLOYMENT IN A TIMELY MANNER? On September 27, 1996, the Respondent’s housekeep- ing, service, and maintenance unit employees began a strike and set up a picket line to protest what the Board later determined was the Respondent’s failure to engage in good-faith bargaining with their Union.5 Four days later, the Respondent unlawfully discharged all of the strikers. The judge found that, at the time of the discharge, the employees’ object in striking implicitly changed to in- clude protesting the discharge and getting their jobs back: “In that sense, the picket line constituted a mass application for work.” Union Organizer and Business Agent Gail Fabian credibly testified that she hoped the strike would be successful and that the employees would regain their jobs. She stated that she thought the strike would be resolved in “a matter of just a few days,” but that employees were looking for work “as of maybe about three weeks after we were out . . . when it looked like things weren’t going to be as quick as we thought.”6 On November 15, the striking employees sent letters to the Respondent stating their unconditional offer to return to work. On December 27, the Respondent replied, in- forming the employees that they had been permanently replaced, but that there were a “few positions” for which they could apply as new hires. The record shows that many of the discriminatees did not seek alternative em- ployment until late November, and several made their first application in December. The judge rejected the Respondent’s argument that those employees unreasonably delayed their search for interim employment. At the hearing, the judge observed that the letters the employees submitted to the Respon- dent indicated that the employees “still had a thought of going back to work at Grosvenor in the middle of No- vember.”7 In his decision, the judge reasoned that, as a policy matter, a requirement that the employees immedi- ately begin a search for work would have unreasonably required that they abandon the picket line, thus ceasing their concerted activity and relinquishing the effort both to recover their jobs and to compel the Respondent to bargain in good faith. The judge took account of the fact that many of the employees had substantial years’ worth of seniority and accrued benefits, and that the mass dis- 4 See, e.g., Oil Capitol Sheet Metal, 349 1348 (2007). 5 Grosvenor Resort, 336 NLRB 613, 615 (2001). 6 Tr. 1344–1345. 7 Tr. 1384–1385. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1208 charge caused trauma and disruption.8 In addition, the judge reasonably took account of the ages of the employ- ees9 and their access to transportation. Citing a wealth of Board precedent,10 the judge concluded that the employ- ees had not failed to mitigate backpay by waiting for a time before seeking new jobs, and he therefore declined to exclude from the backpay period that initial period of time. I would affirm the judge, for all the reasons he states. In addition, it is important in this case to take account of the fact that the entire backpay period here was 26 quar- ters—6-1/2 years. All but one of the employees found a new job and was gainfully employed within the first quarter of the backpay period,11 and all but one of the employees continued working for the entire backpay period.12 Considering all of the circumstances and the “backpay period as a whole,”13 I, too, would find that all of the employees are entitled to backpay beginning on September 30, 1996, the date of the unlawful mass dis- charge. The majority purports to subscribe to the same over- arching principle: “whether, on the record as a whole, the employee has diligently sought other employment during the entire backpay period.” Yet the majority re- fuses to accord this statement its plain meaning, and con- verts the standard into something different: whether the employees “waited an unreasonably long time before initially seeking interim work.” The majority then arbi- 8 At the time of the discharge, 7 of the 44 employees had between 7 and 10 years of service, and 17 had more than 10 years. 9 Thirteen of the employees were in their 40s, 8 were in their 50s, and 9 were in their 60s. 10 E.g., C-F Air Freight, Inc., 276 NLRB 481, 481 fn. 3 (1985) (“It is well settled that a discriminiatee need not seek work instantly. The test is whether on the record as a whole the employee has diligently sought employment during the entire backpay period.”); Saginaw Aggregates, 198 NLRB 598 (1972), enfd. 482 F.2d 946 (6th Cir. 1973). 11 Meradin is the only one of the employees who had no interim earnings in the last quarter of 1996. He submitted two employment applications during that quarter, however, and registered with the Un- ion’s hiring hall at the beginning of the next quarter. With the excep- tion of that last quarter of 1996 (the first quarter of the backpay period), Meradin was employed for the entire backpay period. The judge rea- sonably found that “looking at the entire backpay period, it is clear that Meradin made a good-faith effort to obtain interim employment.” See discussion of Meradin below. 12 Louisius is the only one of the employees who was not employed throughout the entire backpay period. But excluding one quarter when Louisius did not work and did not seek employment (and which there- fore is excluded from his backpay computation), he was unemployed only during the second quarter of 1997, and there is no dispute that he searched for work during that quarter. 13 Fischbach & Moore, 315 NLRB at 1266. trarily and mechanically decides that “an unreasonably long time” is anything longer than 2 weeks.14 The majority claims that awarding backpay for delays beyond an initial 2-week period will “reward idleness.” But the facts of this case rebut that claim. The employ- ees here did not sit idly by; they were engaged in con- certed action to get their jobs back. Once it became clear that that was not going to happen, however, they all sought and obtained work. And the record shows that the employees searched for work even before abandoning the picket line. Union Representative Fabian credibly testified that, during the first 3 months of the strike, the discriminatees were searching for work when they were not on the picket line, and that they would also search for work while they were on the picket line: “They would bring a newspaper and they would look at the paper and some would leave the line, go to an interview, and come back.”15 In any event, the cases upon which the majority relies do not support a “one size fits all approach,” let alone its 2-week rule. In NLRB v. Mercy Peninsula Ambulance Service, 589 F.2d 1014, 1016–1017 (9th Cir. 1979), the unlawfully discharged employee remained unemployed for the entire backpay period, about 9-1/2 months. The court’s decision that the employee did not make suffi- cient efforts to obtain employment was based on a con- sideration of the entire backpay period (id. at 1018–1019 and fn. 6); the court did not discuss or rely at all on how long it took the employee to commence his search. Coronet Foods, Inc., 322 NLRB 837 (1997), enfd. in relevant part 158 F.3d 782 (4th Cir. 1998), also relied upon by the majority, did not arise in the context of a strike; unlike in the present case, the employees there had no reasonable expectation of reclaiming their jobs and accrued benefits back. In any event, the entire backpay period for the employee at issue (Haught) was only 28 months, and he did nothing to look for employment for the first 7 weeks. In Associated Grocers, 295 NLRB 14 The majority applies this rule to the computation of backpay for employees Baity, Goodman, Israel Hernandez, Lidia Hernandez, Javier, Louisius, Meradin, Ovince, Paschal, Pierre, Quevedo, Ryland, Vis- caino-Hernandez, and Williams. 15 Tr. 1337. The majority cites two cases, NLRB v. Madison Cou- rier, Inc., 472 F.2d 1307 (D.C. Cir. 1972), and Ozark Hardwood Co., 119 NLRB 1130 (1957), remanded on other grounds 282 F.2d 1 (8th Cir. 1960), for the proposition that picket line activity does not relieve discriminatees of the obligation to seek interim employment. It is important to note, however, that the “bottom line” in both of those cases is that discriminatees are, ultimately, required to make only “rea- sonable efforts” (Madison Courier, 472 F.2d at 1320), or conduct “a reasonable search” (Ozark Hardwood, 119 NLRB at 1135 fn. 18). I do not contend that the discriminatees’ picketing relieved them of their obligation to seek interim employment, only that it did not interfere with their reasonable efforts to do so in the circumstances of this case. GROSVENOR RESORT 1209 806, 843 (1989), also cited by the majority, the backpay period was only 6 months, and the employee (Brooks) did nothing to look for employment for the first 8 weeks. Read properly, each of those decisions lends support to my position in this case. Each of the decisions takes ac- count of the backpay period as a whole and the particular circumstances of the individual employee. None of them, of course, lends any support to a 2-week rule.16 Accordingly, I would affirm the judge’s decision in this respect and find it unnecessary, as in I.T.O Corp. of Baltimore, supra, to “consider what [the employees] did during the initial . . . weeks in question.” II. DID THE EMPLOYEES MAKE ADEQUATE SEARCHES FOR INTERIM EMPLOYMENT? A. Applicable Principles and the Judge’s Decision The majority finds that certain of the employees made inadequate job searches in the last quarter of 1996 (the first quarter of the backpay period).17 I disagree. As stated above, the efforts discriminatees are ex- pected to make to obtain interim employment are those expected of reasonable persons in like circumstances, which may include age, education, employment history, and station in life, as well as then-prevailing employment trends in the relevant geographical area. See, e.g., United Aircraft Corp., 204 NLRB 1068 (1973) (circum- stances include economic climate in which employee operates, employee’s skill and qualifications, age, and personal limitations); see also NLRB Casehandling Manual (Part Three) Compliance, Section 10545.3. The judge properly applied that principle in this case, and 16 The majority asserts that the longest period of initial job search in- activity found permissible was 2 weeks, and it distinguishes I.T.O. Corp. of Baltimore, 265 NLRB 1322, 1322–1323 (1982), in which the Board awarded backpay to a discriminatee who waited 4 weeks to make individual applications, and Nickey Chevrolet Sales, Inc., 195 NLRB 395, 398 (1972), enfd. 493 F.2d 103 (7th Cir. 1974), in which the discriminatee waited 40 days. But the significant thing in both of those cases is that the Board looked at the employees’ efforts over the whole backpay period, considered their individual circumstances, and ultimately determined that the employees should not be denied backpay for their initial periods of inactivity. In Saginaw Associates, 198 NLRB 598 (1972), enfd. 482 F.2d 946 (6th Cir. 1973), also cited by the major- ity, the Board did not deny backpay for an initial 2-week period of idleness following the employee’s unlawful layoff. Again, the Board considered “the entire backpay period” and found no additional evi- dence that the employee “failed otherwise to exercise due diligence in seeking alternate employment.” Id. at 598. There is no indication in the decision that the Board regarded 2 weeks as an upper limit. Indeed, the tenor of the decision suggests otherwise. In any event, the entire backpay period in that case was only about 6 ½ months, and was not comparable to the 6-1/2-year backpay period in the present case. 17 The majority makes that finding with respect to employees Baity, Caban, Davis, Febles, Javier, Jimenez, Meradin, Viscaino-Hernandez, and Williams. As set out in part B, below, I find that each of those employees made a reasonable good-faith search for work. found that the employees’ job searches were reasonable taking such circumstances into account. For instance, the judge observed that the banquet and convention business drops off substantially in the latter part of December. Also, as noted above, many of the discriminatees were older persons who, although capable employees of the Respondent, might not be readily accepted as new hires.18 In addition, the judge took note that several of the discriminatees lacked transportation, and many spoke only Spanish or Haitian Creole. The judge also properly took account of the settled principle that discriminatees are not required to demon- strate “success”; rather, they are only required to make an honest, good-faith effort to find suitable employment. As found by the judge, the searches by the employees at issue here were reasonable, diligent, and adequate. It is important to note, as did the judge, that many of the employees credibly testified that they made efforts at obtaining work in addition to those listed on their Search for Work Reports. The judge also credited the testimony of union representative Fabian that, in filling out those reports for some of the employees, she wrote down only those job applications that resulted in a job. Not appreciating the significance of the reports, Fabian asked the employees merely to give her “a place where you have gone so they know that you are looking for work.”19 In attempting to determine the adequacy of the employees’ efforts, the judge properly resolved doubts against the Respondent, and gave the employees credit for applying for more jobs than the majority gives them based on the documentary evidence alone. See Florida Tile Co., 310 NLRB 609, 610 (1993), enfd. mem. 19 F.3d 36 (11th Cir. 1994) (in backpay proceedings, ambi- guities are resolved against the wrongdoer, who bears the burden of establishing any reductions from gross back- pay). The majority, although it once again acknowledges the guiding principle of determining the “sufficiency of a discriminatee’s efforts to mitigate backpay . . . with re- spect to the backpay period as a whole and not based on isolated portions of the backpay period,”20 fails to apply it. Instead, the majority again proceeds mechanistically and without regard for individual circumstances, and decides that one, two, or three applications in a 1-, 2-, or 3-month period are insufficient. That is in direct contra- vention of longstanding precedent: 18 Javier and Jimenez were in their 40s, Caban, Febles, and Meradin were in their 50s, and Davis and Williams were in their 60s. 19 Tr. 1350. 20 Wright Electric, Inc., 334 NLRB 1031 (2001), enfd. mem. 39 Fed. Appx. 476 (8th Cir. 2002). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1210 [T]o determine whether a discriminatee engaged in a good-faith effort to find interim work, so as to foreclose a finding of willful loss, the lack of applications in a quarter or two is not determinative, for the entire back- pay period must be scrutinized. Performance Friction Corp., 335 NLRB 1117, 1137 (2001), and cases cited; see also S.E. Nichols of Ohio, Inc., 258 NLRB 1, 11 (1981) (“[r]espondent does not meet his burden . . . by showing absence of a job application by [the] claim- ant in a particular quarter or quarters of the backpay pe- riod”), enfd. 704 F.2d 921 (1983), cert. denied 464 U.S. 914 (1983). Rather, as the Board stated in Schnabel Associates, 291 NLRB 648 (1988), “Although the number of efforts any given discriminatee made to obtain interim employment is certainly a factor to be considered,” the determination must take account of “the actions of the discriminatees throughout their respective backpay periods to determine whether [r]espondent has established . . . that the discrimina- tee did not conduct a reasonably diligent search for em- ployment.” Id. at 649–650. Accordingly, the failure of some of the employees here to satisfy the majority’s arbi- trary formula is simply not dispositive of whether they made a reasonably diligent search for employment. The majority creates yet another rule when it deter- mines that four of the employees who successfully ob- tained interim work were nevertheless required to look for other, “interim interim” work while waiting for their new jobs to start.21 Applying its rule, the majority tolls those employees’ backpay during those periods. But there is no policy (and no case support for the notion) that discriminatees must look for work while waiting for their interim employment to begin. Simply as a practical matter, an employer is not likely to hire an applicant who it knows will be leaving for another job in several weeks; it is unreasonable to expect a discriminatee to continue to look for employment in such a situation. B. Individual Discriminatees 1. Robert Baity Baity had worked for the Respondent as a banquet server for 7 years. After the Respondent unlawfully dis- charged him on September 30, 1996, Baity applied for work at the Radisson Hotel in downtown Orlando on October 29, at Disney World on November 29, and at the Royal Plaza on December 3. He was hired as an on-call banquet server at Disney World on December 3, and at another Radisson location (Twin Towers) on December 9. He began work in January 1997 and remained em- ployed for the rest of the backpay period. Indeed, from 21 As set out below, the majority applies this rule to employees Ca- ban, Javier, Jimenez, and Viscaino-Hernandez. January 1998 to the end of the backpay period, Baity earned more than he would have had he remained em- ployed by the Respondent, and the Respondent therefore owes no backpay for that period of time. The judge expressly credited Baity’s testimony that he made more applications for employment than he listed on his Search for Work Report. The majority simply ig- nores that inconvenient fact. And, as noted above, the banquet and convention business drops off substantially in December owing to the holidays, and the judge prop- erly found that Baity is not to blame for that decline. Looking at the entire backpay period, I agree with the judge that Baity’s search for employment was “reason- able, diligent, and adequate.” 2. Hector Caban Caban was 58 years old and a laundry attendant when the Respondent unlawfully discharged him. He applied for work with three employers—in October, at the Fam- ily Dollar store; in November, at Winn Dixie; and in De- cember, at Las Palmas at Sand Lake Condominium. Ca- ban was hired by Las Palmas on December 2, but did not start work until January. He had interim earnings throughout the remainder of the backpay period, and the majority affirms the judge’s findings that Caban satisfied his duty to mitigate during all but the first quarter of the backpay period. With respect to that quarter (the last quarter of 1996), however, the majority faults Caban for applying to only three employers and for not continuing to look for work after securing work in December. I disagree. Considered in light of the entire backpay period, Caban’s three applications in the last quarter of 1996 were reasonable. And, as stated above, it is unrea- sonable to expect a discharged employee to seek “interim interim” work. I would affirm the judge. 3. Ella Mae Davis Davis was a 62-year old salad maker when the Re- spondent unlawfully discharged her. She had worked at the Respondent’s hotel for about 17 years. The General Counsel sought backpay for Davis only for the last quar- ter of 1996, the period immediately following the dis- charge. Davis applied to two or three hotels during that period. The judge found that the Respondent failed to carry its burden of proving that Davis failed to conduct a reasonably diligent search for work. I agree. 4. Aida Febles Febles, 54 years old when the Respondent unlawfully discharged her, had been a room attendant for the Re- spondent. She looked for work on the day that she was fired and again on November 22, when she obtained a job at the Embassy Suites and started working. She then worked without a break in service for 24 quarters. Dis- GROSVENOR RESORT 1211 agreeing with the judge’s determination that Febles dem- onstrated reasonable diligence over the backpay period considered as a whole, the majority reduces Febles’ backpay award by eliminating compensation for the pe- riod September 30 to November 22. I would affirm the judge. 5. Flor Javier and Margarita Jimenez After the Respondent unlawfully discharged them, both Javier and Jimenez, who had worked as room atten- dants for the Respondent, were hired by Disney World on November 1 and started work on December 7; they worked there for the remainder of the backpay period. The judge found that the Respondent failed to prove that either of them failed to exercise due diligence. The majority penalizes Javier and Jimenez for not seeking work quickly enough and for not seeking “in- terim interim” work for the month of November. For the reasons stated above, I would affirm the judge. 6. Frederic Meradin Meradin was 55 years old and employed as a house- man when the Respondent unlawfully discharged him. Meradin unsuccessfully applied for work in November and December; he then registered with the union hiring hall on January 3, and was referred for a job from Janu- ary 7, until February, and again during another period in 1997. Meradin applied for a job at one hotel in March and at two others in April. He ultimately obtained a job at Disney World in June, and he remained there through- out the backpay period. The judge found that, “looking at his entire backpay period,” Meradin “made a good-faith effort to obtain interim employment.” The majority, however, faults Meradin for not seeking work quickly enough and more vigorously during the period immediately following the discharge, and tolls his backpay for the period September 30 to December 31. I would affirm the judge. 7. Cleofas Viscaino-Hernandez Viscaino-Hernandez was employed as a room atten- dant before the Respondent unlawfully discharged her. On November 15, she applied for work and was hired at Disney World, and she started that job on December 11. She remained there throughout the backpay period. The judge acknowledged her delay in initially seeking interim employment, but found that “Viscaino-Hernandez rea- sonably mitigated her damages, especially in light of her employment throughout the remainder of the backpay period.” The majority found that Viscaino-Hernandez, like other of the employees, did not begin her search for work quickly enough and that she should have sought “interim interim” employment for the period November 15 to De- cember 10. For the reasons stated above, I would affirm the judge. 8. Flossie Williams Williams was employed by the Respondent as a room attendant. She was 62 years old and had 22 years of ser- vice with the Respondent when it unlawfully discharged her. Williams applied for work at Disney World in No- vember and at C.F.I. Westgate Lake Resort in December, and she started work at Disney World on December 11, where she worked until February 15, 1997. No backpay is claimed after that date. Williams died on July 3, 1997. Taking all of those circumstances into account, the judge awarded backpay to Williams’ estate from the date of the discharge. Applying its test, the majority again finds that Wil- liams did not look for work quickly or widely enough in the last quarter of 1996. I would affirm the judge’s find- ing that Williams reasonably sought interim employ- ment. III. CONCLUSION In an effort to reduce an employer’s monetary obliga- tion to make whole the victims of its unfair labor prac- tices, the majority has misapplied and even rewritten the rules applicable to determining backpay. The result is unfair to the employees in this case and unwise as a mat- ter of policy. For those reasons, I would affirm the judge’s decision findings that the discriminatees named above neither unreasonably delayed their initial job searches nor conducted inadequate interim job searches. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212 APPENDIX 1 Backpay Calculations for Deborah Goodman Net Backpay for the fourth quarter of 1996: In revising Goodman’s net backpay for the fourth quarter of 1996, we divided $3,543.13 (total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain her average daily earn- ings of $54.51. Then we multiplied the average daily earnings by 32 (representing the number of workdays Goodman did not sufficiently mitigate) to obtain $1,744.32. We subtracted this amount from $3,543.13 to obtain a revised gross backpay amount for the quarter of $1,798.81, which, less interim earnings, produced a revised net backpay amount for the quarter of $1,374.33. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $1,798.81 $ 424.38 $1,374.43 1997 1st 3,739.77 3,145.29 594.48 1997 2nd 3,739.77 3,145.29 594.48 1997 3rd 3,739.77 3,145.29 594.48 1997 4th 3,739.77 3,145.29 594.48 1998 1st 3,863.93 3,186.67 677.26 1998 2nd 3,863.93 3,186.67 677.26 1998 3rd 3,863.93 3,186.67 677.26 1998 4th 3,863.93 3,186.67 677.26 1999 1st 3,977.53 3,207.56 769.97 1999 2nd 3,977.53 3,207.56 769.97 1999 3rd 3,977.53 3,207.56 769.97 1999 4th 3,977.53 3,207.56 769.97 2000 1st 3,977.53 3,497.60 479.93 2000 2nd 3,977.53 3,497.60 479.93 2000 3rd 3,977.53 3,497.60 479.93 2000 4th 3,977.53 3,497.60 479.93 2001 1st 3,977.53 3,329.51 648.02 2001 2nd 3,977.53 3,329.51 648.02 2001 3rd 3,977.53 3,329.51 648.02 2001 4th 3,977.53 3,329.51 648.02 2002 1st 4,117.14 4,815.93 0.00 2002 2nd 4,117.14 4,815.93 0.00 2002 3rd 4,117.14 4,815.93 0.00 2002 4th 3,167.03 3,704.56 0.00 Total: $14,053.07 GROSVENOR RESORT 1213 APPENDIX 2 Backpay Calculations for Israel Hernandez Net Backpay for the fourth quarter of 1996: In revising Hernandez’ net backpay for the fourth quarter of 1996, we divided $4,430.12 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain his average daily earnings of $68.16. Then we multiplied the average daily earnings by 37 (representing the number of workdays Her- nandez did not sufficiently mitigate) to obtain $2,521.92. We subtracted this amount from $4,430.12 to obtain a re- vised gross backpay amount for the quarter of $1,908.20, which, less interim earnings produced a revised net backpay amount for the quarter of $1,019.70. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $1,908.20 $ 888.50 $1,019.70 1997 1st 4,571.00 4,142.54 428.46 1997 2nd 4,571.00 4,142.54 428.46 1997 3rd 4,571.00 4,142.54 428.46 1997 4th 4,571.00 4,142.54 428.46 1998 1st 4,725.04 7,188.78 0.00 1998 2nd 4,725.04 7,188.78 0.00 1998 3rd 4,725.04 7,188.78 0.00 1998 4th 4,725.04 7,188.78 0.00 1999 1st 4,865.85 6,474.19 0.00 1999 2nd 4,865.85 6,474.19 0.00 1999 3rd 4,865.85 6,474.19 0.00 1999 4th 4,865.85 6,474.19 0.00 2000 1st 4,865.85 6,780.06 0.00 2000 2nd 4,865.85 6,780.06 0.00 2000 3rd 4,865.85 6,780.06 0.00 2000 4th 4,865.85 6,780.06 0.00 2001 1st 4,865.85 7,645.91 0.00 2001 2nd 4,865.85 7,645.91 0.00 2001 3rd 4,865.85 7,645.91 0.00 2001 4th 4,865.85 7,645.91 0.00 2002 1st 5,006.96 5,602.06 0.00 2002 2nd 5,006.96 5,602.06 0.00 2002 3rd 5,006.96 5,602.06 0.00 2002 4th 3,851.51 4,309.51 0.00 Total: $2,733.54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1214 APPENDIX 3 Backpay Calculations for Lidia Hernandez Net Backpay for the fourth quarter of 1996: In revising Hernandez’ net backpay for the fourth quarter of 1996, we divided $3,506.43 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain her average daily earnings of $53.95. Then we multiplied the average daily earnings by 23 (representing the number of workdays Her- nandez did not sufficiently mitigate) to obtain $1,240.85. We subtracted this amount from $3,506.43 to obtain a re- vised gross backpay amount for this quarter of $2,265.58, which, less interim earnings, produced a revised net backpay amount for the quarter of $1,846.78. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $2,265.58 $ 418.80 $1,846.78 1997 1st 3,778.18 2,967.07 811.12 1997 2nd 3,778.18 2,967.07 811.12 1997 3rd 3,778.18 2,967.07 811.12 1997 4th 3,778.18 2,967.07 811.12 1998 1st 3,968.22 3,517.02 451.20 1998 2nd 3,968.22 3,517.02 451.20 1998 3rd 3,968.22 3,517.02 451.20 1998 4th 3,968.22 3,517.02 451.20 1999 1st 4,174.57 3,078.43 1,096.14 1999 2nd 4,174.57 3,078.43 1,096.14 1999 3rd 4,174.57 3,078.43 1,096.14 1999 4th 4,174.57 3,078.43 1,096.14 2000 1st 4,174.57 3,913.84 260.73 2000 2nd 4,174.57 3,913.84 260.73 2000 3rd 4,174.57 3,913.84 260.73 2000 4th 4,174.57 3,913.84 260.73 2001 1st 4,174.57 4,764.96 0.00 2001 2nd 4,174.57 4,764.96 0.00 2001 3rd 4,174.57 4,764.96 0.00 2001 4th 4,174.57 4,764.96 0.00 2002 1st 4,321.09 6,022.34 0.00 2002 2nd 4,321.09 6,022.34 0.00 2002 3rd 4,321.09 6,022.34 0.00 2002 4th 3,323.92 4,632.57 0.00 Total: $12,323.54 GROSVENOR RESORT 1215 APPENDIX 4 Backpay Calculations for Adisseau Louisius Net Backpay for the fourth quarter of 1996: In revising Louisius’ net backpay for the fourth quarter of 1996, we divided $3,695.94 (total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain his average daily earnings of $56.86. Then we multiplied the average daily earnings by 33 (representing the number of workdays Louisius did not sufficiently mitigate) to obtain $1,876.38. We subtracted this amount from $3,695.94 to obtain a revised gross backpay amount for the quarter of $1,819.56, which, less interim earnings, produced a revised net backpay amount for the quar- ter of $1,629.16. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $1,819.56 $ 190.40 $1,629.16 1997 1st 3,813.47 1,381.08 2,432.39 1997 2nd 3,813.47 0.00 3,813.47 1997 3rd 3,813.47 1,547.08 2,266.39 1997 4th 0.00 0.00 0.00 1998 1st 3,941.98 2,698.73 1,243.25 1998 2nd 3,941.98 2,698.73 1,243.25 1998 3rd 3,941.98 2,698.73 1,243.25 1998 4th 3,941.98 2,698.73 1,243.25 1999 1st 4,059.45 2,939.97 1,119.48 1999 2nd 4,059.45 2,939.97 1,119.48 1999 3rd 4,059.45 2,939.97 1,119.48 1999 4th 4,059.45 2,939.97 1,119.48 2000 1st 4,059.45 3,548.07 511.38 2000 2nd 4,059.45 3,548.07 511.38 2000 3rd 4,059.45 3,548.07 511.38 2000 4th 4,059.45 3,548.07 511.38 2001 1st 4,059.45 4,204.88 0.00 2001 2nd 4,059.45 4,204.88 0.00 2001 3rd 4,059.45 4,204.88 0.00 2001 4th 4,059.45 4,204.88 0.00 2002 1st 4,177.18 3,919.40 257.78 2002 2nd 4,177.18 3,919.40 257.78 2002 3rd 4,177.18 3,919.40 257.78 2002 4th 3,213.21 3,014.92 198.29 Total: $22,609.48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1216 APPENDIX 5 Backpay Calculations for Charitable Ovince Net Backpay for the fourth quarter of 1996: In revising Ovince’s net backpay for the fourth quarter of 1996, we divided $4,017.07 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain her average daily earn- ings of $61.80. Then we multiplied the average daily earnings by 23 (representing the number of workdays Ovince did not sufficiently mitigate) to obtain $1,421.40. We subtracted this amount from $4,017.07 to obtain a revised gross backpay amount for the quarter of $2,595.67, which, less interim earnings, produced a revised net backpay amount for the quarter of $1,045.67. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $2,595.67 $1,550.00 $1,045.67 1997 1st 4,143.21 2,311.70 1,831.51 1997 2nd 4,143.21 2,311.70 1,831.51 1997 3rd 4,143.21 2,311.70 1,831.51 1997 4th 4,143.21 2,311.70 1,831.51 1998 1st 4,280.77 3,157.28 1,123.49 1998 2nd 4,280.77 3,157.28 1,123.49 1998 3rd 4,280.77 3,157.28 1,123.49 1998 4th 4,280.77 3,157.28 1,123.49 1999 1st 4,406.62 3,019.46 1,387.16 1999 2nd 3,506.91 3,019.46 1,387.16 1999 3rd 2,643.97 3,019.46 1,387.16 1999 4th 2,643.97 3,019.46 1,387.16 2000 1st 2,643.97 2,603.46 1,803.16 2000 2nd 2,643.97 2,603.46 1,803.16 2000 3rd 2,643.97 2,603.46 1,803.16 2000 4th 2,643.97 2,603.46 1,803.16 2001 1st 2,643.97 2,902.17 1,504.45 2001 2nd 2,643.97 2,902.17 1,504.45 2001 3rd 2,643.97 2,902.17 1,504.45 2001 4th 2,643.97 2,902.17 1,504.45 2002 1st 2,736.77 3,435.51 1,125.78 2002 2nd 2,736.77 3.435.51 1,125.78 2002 3rd 2,736.77 3,435.51 1,125.78 2002 4th 2,105.21 2,642.70 865.98 Total: $35,888.07 GROSVENOR RESORT 1217 APPENDIX 6 Backpay Calculations for Joseph Paschal Net Backpay for the fourth quarter of 1996: In revising Paschal’s net backpay for the fourth quarter of 1996, we divided $4,163.62 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain his average daily earn- ings of $64.06. Then we multiplied the average daily earnings by 23 (representing the number of workdays Paschal did not sufficiently mitigate) to obtain $1,473.38. We subtracted this amount from $4,163.62 to obtain a revised gross backpay amount for the quarter of $2,690.24, which, less interim earnings, produced a revised net backpay amount for the quarter of $1,655.86. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $2,690.24 $1,034.38 $1,655.86 1997 1st 4,242.31 4,840.93 0.00 1997 2nd 4,242.31 4,840.93 0.00 1997 3rd 4,242.31 4,840.93 0.00 1997 4th 4,242.31 4,840.93 0.00 1998 1st 4,322.30 7,286.80 0.00 1998 2nd 4,320.80 7,286.80 0.00 1998 3rd 4,320.80 7,286.80 0.00 1998 4th 4,320.80 7,286.80 0.00 1999 1st 4,446.53 5,169.74 0.00 1999 2nd 4,446.53 5,169.74 0.00 1999 3rd 4,446.53 5,169.74 0.00 1999 4th 4,446.53 5,169.74 0.00 2000 1st 4,446.53 4,504.41 0.00 2000 2nd 4,446.53 4,504.41 0.00 2000 3rd 4,446.53 4,504.41 0.00 2000 4th 4,446.53 4,504.41 0.00 2001 1st 4,446.53 3,800.38 646.15 2001 2nd 4,446.53 3,800.38 646.15 2001 3rd 4,446.53 3,800.38 646.15 2001 4th 4,446.53 3,800.38 646.15 2002 1st 4,572.37 3,651.13 921.24 2002 2nd 4,572.37 3,651.13 921.24 2002 3rd 4,572.37 3,651.13 921.24 2002 4th 3,517.21 2,808.56 708.65 Total: $7,712.83 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1218 APPENDIX 7 Backpay Calculations for Marie A. Pierre Net Backpay for the fourth quarter of 1996: In revising Pierre’s net backpay for the fourth quarter of 1996, we divided $3,468.08 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain her average daily earn- ings of $53.36. Then we multiplied the average daily earnings by 41 (representing the number of workdays Pierre did not sufficiently mitigate) to obtain $2,187.76. We subtracted this amount from $3,468.08 to obtain a revised gross backpay amount for the quarter of $1,280.32, which, less interim earnings, produced a revised net backpay amount for the quarter of $766.32. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $ 2187.76 $ 514.00 $766.32 1997 1st 3,671.66 3,399.71 271.95 1997 2nd 3,671.66 3,399.71 271.95 1997 3rd 3,671.66 3,399.71 271.95 1997 4th 3,671.66 3,399.71 271.95 1998 1st 3,880.57 3,791.01 89.56 1998 2nd 3,880.57 3,791.01 89.56 1998 3rd 3,880.57 3,791.01 89.56 1998 4th 3,880.57 3,791.01 89.56 1999 1st 4,017.95 4,203.28 0.00 1999 2nd 4,017.95 4,203.28 0.00 1999 3rd 4,017.95 4,203.28 0.00 1999 4th 4,017.95 4,203.28 0.00 2000 1st 4,094.69 5,480.33 0.00 2000 2nd 4,094.69 5,480.33 0.00 2000 3rd 4,094.69 5,480.33 0.00 2000 4th 4,094.69 5,480.33 0.00 2001 1st 4,226.54 5,508.97 0.00 2001 2nd 4,226.54 5,508.97 0.00 2001 3rd 4,226.54 5,508.97 0.00 2001 4th 4,226.54 5,508.97 0.00 2002 1st 4,374.89 6,807.34 0.00 2002 2nd 4,374.89 6,807.34 0.00 2002 3rd 4,374.89 6,807.34 0.00 2002 4th 3,365.30 5,236.41 0.00 Total: $2,212.36 GROSVENOR RESORT 1219 APPENDIX 8 Backpay Calculations for Maria Quevedo Net Backpay for the fourth quarter of 1996: In revising Quevedo’s net backpay for the fourth quarter of 1996, we divided $4,776.17 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain her average daily earnings of $73.48. Then we multiplied the average daily earnings by 29 (representing the number of workdays Quevedo did not sufficiently mitigate) to obtain $2,130.92. We subtracted this amount from $4,776.17 to obtain a revised gross backpay amount for the quarter of $2,645.25, which, less interim earnings produced a revised net back- pay amount for the quarter of $2,555.25. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $2,645.25 $ 90.00 $2,555.25 1997 1st 4,926.15 3,829.92 1,096.23 1997 2nd 4,926.15 3,829.92 1,096.23 1997 3rd 4,926.15 3,829.92 1,096.23 1997 4th 4,926.15 3,829.92 1,096.23 1998 1st 5,089.69 4,618.69 471.00 1998 2nd 5,089.69 4,618.69 471.00 1998 3rd 5,089.69 4,618.69 471.00 1998 4th 5,089.69 4,618.69 471.00 1999 1st 5,239.33 5,956.08 0.00 1999 2nd 5,239.33 5,956.08 0.00 1999 3rd 5,239.33 5,956.08 0.00 1999 4th 5,239.33 5,956.08 0.00 2000 1st 5,239.33 5,728.89 0.00 2000 2nd 5,239.33 5,728.89 0.00 2000 3rd 5,239.33 5,728.89 0.00 2000 4th 5,239.33 5,728.89 0.00 2001 1st 5,239.33 4,533.97 705.36 2001 2nd 5,239.33 4,533.97 705.36 2001 3rd 5,239.33 4,533.97 705.36 2001 4th 5,239.33 4,533.97 0.00 2002 1st 5,423.23 6,508.05 0.00 2002 2nd 5,423.23 6,508.05 0.00 2002 3rd 5,423.23 6,508.05 0.00 2002 4th 4,171.71 5,006.19 0.00 Total: $10,940.25 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1220 APPENDIX 9 Backpay Calculations for Feliza Ryland Net Backpay for the fourth quarter of 1996: In revising Ryland’s net backpay for the fourth quarter of 1996, we divided $4,080.94 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain her average daily earn- ings of $62.78. Then we multiplied the average daily earnings by 38 (representing the number of workdays Ryland did not sufficiently mitigate) to obtain $2,385.64. We subtracted this amount from $4,080.94 to obtain a revised gross backpay amount for the quarter of $1,695.30, which, less interim earnings, produced a revised net backpay amount for the quarter of $1,277.87. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $1,695.30 $ 417.43 $1,277.87 1997 1st 4,209.08 3,244.93 964.15 1997 2nd 4,209.08 3,695.06 514.02 1997 3rd 4,209.08 3,695.06 514.02 1997 4th 4,209.08 3,695.06 514.02 1998 1st 4,348.82 3,861.65 487.17 1998 2nd 4,348.82 3,861.65 487.17 1998 3rd 4,348.82 3,861.65 487.17 1998 4th 4,348.82 3,861.65 487.17 1999 1st 4,476.68 4,109.07 367.61 1999 2nd 4,476.68 4,109.07 367.61 1999 3rd 4,476.68 4,109.07 367.61 1999 4th 4,476.68 4,109.07 367.61 2000 1st 4,476.68 4,763.79 0.00 2000 2nd 4,476.68 4,763.79 0.00 2000 3rd 4,476.68 4,763.79 0.00 2000 4th 4,476.68 4,763.79 0.00 2001 1st 4,476.68 4,367.68 109.00 2001 2nd 4,476.68 4,367.68 109.00 2001 3rd 4,476.68 4,367.68 109.00 2001 4th 4,476.68 4,367.68 109.00 2002 1st 4,633.81 5,849.10 0.00 2002 2nd 4,633.81 5,849.10 0.00 2002 3rd 4,633.81 5,849.10 0.00 2002 4th 3,564.47 4,499.31 0.00 Total: $7,639.20 GROSVENOR RESORT 1221 APPENDIX 10 Backpay Calculations for Robert Baity Net Backpay for the fourth quarter of 1996: In revising Baity’s net backpay for the fourth quarter of 1996, we divided $10,973.00 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain his average daily earn- ings of $168.82. Then we multiplied the average daily earnings by 43 (representing the number of workdays Baity did not sufficiently mitigate) to obtain $7,259.26. We subtracted this amount from $10,973.00 to obtain a revised gross backpay amount for the quarter of $3,713.74, which, less interim earnings, produced a revised net backpay amount for the quarter of $2,748.86. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $ 3,713.74 $ 964.88 $2,748.86 1997 1st 11,180.39 8,763.99 2,416.40 1997 2nd 11,180.39 8,763.99 2,416.40 1997 3rd 11,180.39 5,774.09 5,406.30 1997 4th 11,180.39 5,774.09 5,406.30 1998 1st 11,387.23 11,702.39 0.00 1998 2nd 11,387.23 11,702.39 0.00 1998 3rd 11,387.23 11,702.39 0.00 1998 4th 11,387.23 11,702.39 0.00 1999 1st 11,718.60 14,359.33 0.00 1999 2nd 11,718.60 14,359.33 0.00 1999 3rd 11,718.60 14,359.33 0.00 1999 4th 11,718.60 14,359.33 0.00 2000 1st 11,718.60 15,306.77 0.00 2000 2nd 11,718.60 15,306.77 0.00 2000 3rd 11,718.60 15,306.77 0.00 2000 4th 11,718.60 15,306.77 0.00 2001 1st 11,718.60 13,943.45 0.00 2001 2nd 11,718.60 13,943.45 0.00 2001 3rd 11,718.60 13,943.45 0.00 2001 4th 11,718.60 13,943.45 0.00 2002 1st 12,549.45 16,979.64 0.00 2002 2nd 12,549.45 16,979.64 0.00 2002 3rd 12,549.45 16,979.64 0.00 2002 4th 9,653.42 13,061.26 0.00 Total: $18,394.26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1222 APPENDIX 11 Backpay Calculations for Hector Caban Net Backpay for the fourth quarter of 1996: We found that Caban did not sufficiently mitigate his damages during the entire fourth quarter of 1996. Therefore, we revise his gross and net backpay figures for that quarter to $0.00. Total Net Backpay: Year Qtr. Gross Backpay InterimEarnings Net Backpay 1996 4th $ 0.00 $ 0.00 $ 0.00 1997 1st 3,117.31 3,608.93 0.00 1997 2nd 3,117.31 3,608.93 0.00 1997 3rd 3,117.31 3,608.93 0.00 1997 4th 3,117.31 3,608.93 0.00 1998 1st 3,306.53 2,562.33 744.20 1998 2nd 3,306.53 2,562.33 744.20 1998 3rd 3,306.53 2,562.33 744.20 1998 4th 3,306.53 2,562.33 744.20 1999 1st 3,520.14 3,026.51 493.63 1999 2nd 3,520.14 3,026.51 493.63 1999 3rd 3,520.14 3,026.51 493.63 1999 4th 3,520.14 3,026.51 493.63 2000 1st 3,592.62 5,993.42 0.00 2000 2nd 3,592.62 5,993.42 0.00 2000 3rd 3,592.62 5,993.42 0.00 2000 4th 3,592.62 5,993.42 0.00 2001 1st 3,674.92 4,751.51 0.00 2001 2nd 3,674.92 4,751.51 0.00 2001 3rd 3,674.92 4,751.51 0.00 2001 4th 3,674.92 4,751.51 0.00 2002 1st 3,810.53 3,486.76 323.77 2002 2nd 3,810.53 3,486.76 323.77 2002 3rd 3,810.53 3,486.76 323.77 2002 4th 2,931.17 2,682.12 249.05 Total: $6,171.68 GROSVENOR RESORT 1223 APPENDIX 12 Backpay Calculations for Aida Febles Net Backpay for the fourth quarter of 1996: In revising Febles’ net backpay for the fourth quarter of 1996, we divided $3,913.55 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain her average daily earn- ings of $60.21. Then we multiplied the average daily earnings by 38 (representing the number of workdays Febles did not sufficiently mitigate) to obtain $2,287.98. We subtracted this amount from $3,913.55 to obtain a revised gross backpay amount for the quarter of $1,625.57, which, less interim earnings, produced a revised net backpay amount for the quarter of $1,205.62. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $ 1,625.57 $ 419.95 $1,205.62 1997 1st 4,036.44 3,852.62 183.82 1997 2nd 4,036.44 3,852.62 183.82 1997 3rd 4,036.44 3,852.62 183.82 1997 4th 4,036.44 3,852.62 183.82 1998 1st 4,170.45 3,440.00 730.45 1998 2nd 4,170.45 3,440.00 730.45 1998 3rd 4,170.45 3,440.00 730.45 1998 4th 4,170.45 3,440.00 730.45 1999 1st 4,293.06 3,949.10 343.96 1999 2nd 4,293.06 3,949.10 343.96 1999 3rd 4,293.06 3,949.10 343.96 1999 4th 4,293.06 3,949.10 343.96 2000 1st 4,293.06 3,928.44 364.62 2000 2nd 4,293.06 3,928.44 364.62 2000 3rd 4,293.06 3,928.44 364.62 2000 4th 4,293.06 3,928.44 364.62 2001 1st 4,293.06 3,676.08 616.98 2001 2nd 4,293.06 3,676.08 616.98 2001 3rd 4,293.06 3,676.08 616.98 2001 4th 4,293.06 3,676.08 616.98 2002 1st 4,443.74 5,201.19 0.00 2002 2nd 4,443.74 5,201.19 0.00 2002 3rd 4,443.74 5,201.19 0.00 2002 4th 3,418.26 4,000.91 0.00 Total: $10,164.94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1224 APPENDIX 13 Backpay Calculations for Flor Javier Net Backpay for the fourth quarter of 1996: In revising Javier’s net backpay for the fourth quarter of 1996, we divided $4,199.68 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain her average daily earn- ings of $64.61. Then we multiplied the average daily earnings by 49 (representing the number of workdays Javier did not sufficiently mitigate) to obtain $3,165.89. We subtracted this amount from $4,199.68 to obtain a revised gross backpay amount for the quarter of $1,033.79, which, less interim earnings, produced a revised net backpay amount for the quarter of $0.00. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $ 1,033.79 $1,063.00 0.00 1997 1st 4,331.55 3,656.61 674.94 1997 2nd 4,331.55 3,656.61 674.94 1997 3rd 4,331.55 3,656.61 674.94 1997 4th 4,331.55 3,656.61 674.94 1998 1st 4,475.36 3,722.50 752.86 1998 2nd 4,475.36 3,722.50 752.86 1998 3rd 4,475.36 3,722.50 752.86 1998 4th 4,475.36 3,722.50 752.86 1999 1st 4,606.94 3,755.36 851.58 1999 2nd 4,606.94 3,755.36 851.58 1999 3rd 4,606.94 3,755.36 851.58 1999 4th 4,606.94 3,755.36 851.58 2000 1st 4,606.94 4,803.65 0.00 2000 2nd 4,606.94 4,803.65 0.00 2000 3rd 4,606.94 4,803.65 0.00 2000 4th 4,606.94 4,803.65 0.00 2001 1st 4,606.94 4,740.29 0.00 2001 2nd 4,606.94 4,740.29 0.00 2001 3rd 4,606.94 4,740.29 0.00 2001 4th 4,606.94 4,740.29 0.00 2002 1st 4,768.64 6,053.36 0.00 2002 2nd 4,768.64 6,053.36 0.00 2002 3rd 4,768.64 6,053.36 0.00 2002 4th 3,668.18 4,656.43 0.00 Total: $9,117.52 GROSVENOR RESORT 1225 APPENDIX 14 Backpay Calculations for Margarita Jimenez Net Backpay for the fourth quarter of 1996: In revising Jimenez’ net backpay for the fourth quarter of 1996, we divided $4,561.77 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain her average daily earn- ings of $70.18. Then we multiplied the average daily earnings by 49 (representing the number of workdays Jimenez did not sufficiently mitigate) to obtain $3,438.82. We subtracted this amount from $4,561.77 to obtain a revised gross backpay amount for the quarter of $1,122.95, which, less interim earnings, produced a revised net backpay amount for the quarter of $656.55. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $ 1,122.95 $ 466.40 $ 656.55 1997 1st 4,705.01 3,357.01 1,348.00 1997 2nd 4,705.01 3,357.01 1,348.00 1997 3rd 4,705.01 3,357.01 1,348.00 1997 4th 4,705.01 3,357.01 1,348.00 1998 1st 4,861.22 3,564.33 1,296.89 1998 2nd 4,861.22 3,564.33 1,296.89 1998 3rd 4,861.22 3,564.33 1,296.89 1998 4th 4,861.22 3,564.33 1,296.89 1999 1st 5,004.14 3,699.62 1,304.52 1999 2nd 5,004.14 3,699.62 1,304.52 1999 3rd 5,004.14 3,699.62 1,304.52 1999 4th 5,004.14 3,699.62 1,304.52 2000 1st 5,004.14 4,721.92 282.22 2000 2nd 5,004.14 4,721.92 282.22 2000 3rd 5,004.14 4,721.92 282.22 2000 4th 5,004.14 4,721.92 282.22 2001 1st 5,004.14 4,668.36 335.78 2001 2nd 5,004.14 4,668.36 335.78 2001 3rd 5,004.14 4,668.36 335.78 2001 4th 5,004.14 4,668.36 335.78 2002 1st 5,179.78 6,397.56 0.00 2002 2nd 5,179.78 6,397.56 0.00 2002 3rd 5,179.78 6,397.56 0.00 2002 4th 3,984.45 4,921.20 0.00 Total: $18,926.19 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1226 APPENDIX 15 Backpay Calculations for Frederic Meradin Net Backpay for the fourth quarter of 1996: We found that Meradin did not sufficiently mitigate his damages during the entire fourth quarter of 1996. There- fore, we revise his gross and net backpay figures for that quarter to $0.00. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $ 0.00 $ 0.00 $ 0.00 1997 1st 4,609.38 2,233.90 2,375.48 1997 2nd 4,609.38 285.60 4,323.78 1997 3rd 4,609.38 3,311.06 1,298.32 1997 4th 4,609.38 3,311.06 1,298.32 1998 1st 4,764.71 3,861.43 903.28 1998 2nd 4,764.71 3,861.43 903.28 1998 3rd 4,764.71 3,861.43 903.28 1998 4th 4,764.71 3,861.43 903.28 1999 1st 4,906.71 3,860.11 1,046.60 1999 2nd 4,906.70 3,860.11 1,046.59 1999 3rd 4,906.70 3,860.11 1,046.59 1999 4th 4,906.70 3,860.11 1,046.59 2000 1st 4,906.70 4,747.92 158.78 2000 2nd 4,906.70 4,747.92 158.78 2000 3rd 4,906.70 4,747.92 158.78 2000 4th 4,906.70 4,747.92 158.78 2001 1st 4,906.70 4,484.11 422.59 2001 2nd 4,906.70 4,484.11 422.59 2001 3rd 4,906.70 4,484.11 422.59 2001 4th 4,906.70 4,484.11 422.59 2002 1st 5,049.00 6,795.94 0.00 2002 2nd 5,049.00 6,795.94 0.00 2002 3rd 5,049.00 6,795.94 0.00 2002 4th 3,883.84 5,227.65 0.00 Total: $19,420.87 GROSVENOR RESORT 1227 APPENDIX 16 Backpay Calculations for Deborah Montgomery Net Backpay for the first quarter of 1998 and the second quarter of 1998: According to Montgomery’s search for work reports, she earned $150 per week while working for K-Mart. This equals $30 per day. Montgomery unjustifiably quit her job with K-Mart on March 28, 1998, and did not acquire full- time employment until June 19, 1998. Thus, the Respondent’s liability should be offset by 59 workdays (2 in the first quarter of 1998 and 57 in the second quarter of 1998). For the first quarter of 1998, the Respondent’s backpay liability should be offset by $60 (2 workdays that Montgom- ery should have been employed x $30). We added this $60 to $2,634.00 (Montgomery’s interim earnings for the first quarter of 1998) to obtain $2,694.00 revised interim earnings. Finally, we subtracted $2,694.00 from $4,504.52 (gross backpay) to obtain $1,810.52 revised net backpay for this quarter. For the second quarter of 1998, the Respondent’s backpay liability should be offset by $1,710.00 (57 workdays that Montgomery should have been employed x $30). We added this $1,710.00 to $785.86 (Montgomery’s interim earn- ings for the second quarter of 1998) to obtain $2,495.86 revised interim earnings. Finally, we subtracted $2,495.86 from $4,504.52 (gross backpay) to obtain $2,008.66 revised net backpay for this quarter. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $4,290.41 $ 0.00 $4,290.41 1997 1st 4,400.67 1,625.63 2,775.04 1997 2nd 4,400.67 2,341.83 2,058.84 1997 3rd 4,400.67 2,751.87 1,648.80 1997 4th 4,400.67 2,382.63 2,018.04 1998 1st 4,504.52 2,694.00 1,810.52 1998 2nd 4,504.52 2,495.86 2,008.66 1998 3rd 4,504.52 1,824.50 2,680.02 1998 4th 4,504.52 2,608.52 1,896.00 1999 1st 4,639.21 3,163.13 1,476.08 1999 2nd 4,639.21 3,163.13 1,476.08 1999 3rd 4,639.21 3,163.13 1,476.08 1999 4th 4,639.21 3,163.13 1,476.08 2000 1st 4,639.21 4,074.45 564.76 2000 2nd 4,639.21 4,074.45 564.76 2000 3rd 4,639.21 4,074.45 564.76 2000 4th 4,639.21 4,074.45 564.76 2001 1st 4,639.21 3,668.47 970.74 2001 2nd 4,639.21 4,074.45 564.76 2001 3rd 4,639.21 3,192.71 1,446.50 2001 4th 4,639.21 4,427.14 212.07 2002 1st 4,810.40 3,967.99 842.41 2002 2nd 4,810.40 3,202.53 1,607.87 2002 3rd 4,810.40 3,458.29 1,352.11 2002 4th 3,700.31 2,778.25 922.06 Total: $37,268.21 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1228 APPENDIX 17 Backpay Calculations for Cleofas Viscaino-Hernandez Net Backpay for the fourth quarter of 1996: In revising Viscaino-Hernandez’ net backpay for the fourth quarter of 1996, we divided $4,367.35 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain her av- erage daily earnings of $67.19. Then we multiplied the average daily earnings by 51 (representing the number of workdays Viscaino-Hernandez did not sufficiently mitigate) to obtain $3,426.69. We subtracted this amount from $4,367.35 to obtain a revised gross backpay amount for the quarter of $940.66, which, less interim earnings, produced a revised net backpay amount for the quarter of $623.01. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $ 940.66 $ 317.65 $ 623.01 1997 1st 4,504.48 3,107.24 1,397.24 1997 2nd 4,504.48 3,107.24 1,397.24 1997 3rd 4,504.48 3,107.24 1,397.24 1997 4th 4,504.48 3,107.24 1,397.24 1998 1st 4,654.03 3,558.35 1,095.68 1998 2nd 4,654.03 3,558.35 1,095.68 1998 3rd 4,654.03 3,558.35 1,095.68 1998 4th 4,654.03 3,558.35 1,095.68 1999 1st 4,790.86 3,428.59 1,362.27 1999 2nd 4,790.86 3,428.59 1,362.27 1999 3rd 4,790.86 3,428.59 1,362.27 1999 4th 4,790.86 3,428.59 1,362.27 2000 1st 4,790.86 4,274.18 516.68 2000 2nd 4,790.86 4,274.18 516.68 2000 3rd 4,790.86 4,274.18 516.68 2000 4th 4,790.86 4,274.18 516.68 2001 1st 4,790.86 4,522.06 268.80 2001 2nd 4,790.86 4,522.06 268.80 2001 3rd 4,790.86 4,522.06 268.80 2001 4th 4,790.86 4,522.06 268.80 2002 1st 4,959.02 5,983.30 0.00 2002 2nd 4,959.02 5,983.30 0.00 2002 3rd 4,959.02 5,983.30 0.00 2002 4th 3,814.63 4,602.54 0.00 Total: $19,185.69 GROSVENOR RESORT 1229 APPENDIX 18 Backpay Calculations for Flossie Williams Net Backpay for the fourth quarter of 1996: In revising Williams’ net backpay for the fourth quarter of 1996, we divided $4,682.92 (the total gross backpay listed for this quarter in the compliance specification) by 65 (average workdays per quarter) to obtain her average daily earn- ings of $72.04. Then we multiplied $72.04 by 51 (representing the number of workdays Williams did not sufficiently mitigate) to obtain $3,674.04. We subtracted this amount from $4,682.92 to obtain a revised gross backpay amount for the quarter of $1,008.88, which, less interim earnings, produced a revised net backpay amount for the quarter of $702.53. Total Net Backpay: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $ 1,008.88 $ 306.35 $ 702.53 1997 1st 2,305.44 1,428.00 877.44 1997 2nd 0.00 0.00 0.00 1997 3rd 0.00 0.00 0.00 1997 4th 0.00 0.00 0.00 1998 1st 0.00 0.00 0.00 1998 2nd 0.00 0.00 0.00 1998 3rd 0.00 0.00 0.00 1998 4th 0.00 0.00 0.00 1999 1st 0.00 0.00 0.00 1999 2nd 0.00 0.00 0.00 1999 3rd 0.00 0.00 0.00 1999 4th 0.00 0.00 0.00 2000 1st 0.00 0.00 0.00 2000 3rd 0.00 0.00 0.00 2000 4th 0.00 0.00 0.00 2001 1st 0.00 0.00 0.00 2001 2nd 0.00 0.00 0.00 2001 3rd 0.00 0.00 0.00 2001 4th 0.00 0.00 0.00 2002 1st 0.00 0.00 0.00 2002 2nd 0.00 0.00 0.00 2002 3rd 0.00 0.00 0.00 2002 4th 0.00 0.00 0.00 Total: $1,579.97 Thomas W. Brudney and Rafael Aybar, for the General Coun- sel. Karl M. Terrell, Esq. (Shea Stokes & Carter, ALC), of College Park, Georgia, for the Respondents. Tobe Lev, Esq., Richard Siwica, Esq., and Carol Buxton, Esq. (Egan, Lev & Siwica, P.A.), of Orlando, Florida, for the Charging Party. Frank Horning, Esq. (Thomas F. Egan, P.A.), of Orlando, Flor- ida, for the Individual Discriminatees. SUPPLEMENTAL DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW I. PRELIMINARY STATEMENT BENJAMIN SCHLESINGER, Administrative Law Judge. On Sep- tember 30, 2001, the National Labor Relations Board (the Board) issued its Decision and Order (336 NLRB 613), direct- ing Grosvenor Orlando Associates, Ltd., d/b/a The Grosvenor Resort, its officers, agents, successors, and assigns, to take certain affirmative action, including that of offering full rein- statement to and making whole 44 discriminatees: Francisco Abreu, Andres Alvarez, Robert Baity, Rosetta Brown, Hector DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1230 Caban,1 Gilberto Carranza, Dorothy Collier, Ella Mae Davis, Lindsey Day, Carlos Delgado, Enoch Deneus, Oslaine Desir, Aida Febles, Maria Gillaspie, Deborah Goodman, Israel Her- nandez, Lidia Hernandez, Maria Hernandez, Betty Jackson, Mollie Jackson, Flor Javier, Margarita Jimenez, Norma Jimenez, Jules Josaphat, Therese Josaphat, Dorzelia Joseph, Paul LeBlanc, Adisseau Louisius, Martin Malagon, Lourdes Matos, Frederic Meradin, Deborah Montgomery, Charitable Ovince, Joseph Paschal, Marie A. Pierre,2 Louis Preval, Maria Quevedo,3 Earl Rankin, Isidro Rodriguez, Feliza Ryland, Adri- ana Sepulveda, Raymond Smith, Cleofas Viscaino-Hernandez, and Flossie Williams. On October 8, 2002, the United States Court of Appeals for the Eleventh Circuit, in a memorandum, 52 Fed. Appx. 485 (mem.), 2002 WL 31415439, enforced the Board’s Decision, and on December 2, 2002, entered its man- date. This is a backpay proceeding to determine the amounts due to the discriminatees, instituted by the issuance of a com- pliance specification on July 14, 2004.4 At all material times, Grosvenor Orlando Associates, Ltd., d/b/a The Grosvenor Resort was a limited partnership formed under the laws of the State of California and has been jointly owned by its general partners, Grosvenor Properties, Ltd. Don- ald E. Werby, and Robert K. Werbe, and is engaged in the op- eration of a resort hotel and conference center known as The Grosvenor Resort, located at Walt Disney World Village in Lake Buena Vista, Florida. Grosvenor and, by virtue of their status as general partners, Grosvenor Properties, Werby, and Werbe, are each individually and severally liable for remedying the unfair labor practices described above. In this decision, “Respondents” refers to the partnership and all of the partners; “the Grosvenor” refers to the hotel. II. THE DUTY TO MITIGATE DAMAGES IMMEDIATELY A substantial portion of this proceeding was devoted to Re- spondents’ attack on the effort that the individual discrimina- tees made to mitigate their damages. On September 26, 1996, as a result of the Grosvenor’s bad-faith bargaining with the Charging Party, Hotel Employees and Restaurant Employees, Local 55, AFL–CIO, the employees struck. Four days later, on September 30, the Grosvenor discharged all of them. According to the Board’s Decision, 336 NLRB at 618, “September 30[, 1994] is the date of discharge for purposes of calculating back pay in compliance proceedings.” The backpay period ended on December 9, 2002. Almost without exception, Respondents allege, the employees remained on the picket line and did not look for work immediately. For this reason, Respondents claim 1 Caban requested that he be referred to as “Caban,” rather than “Ca- ban-Gaston,” as stated in the compliance specification. 2 Marie Laguerre-Pierre changed her name to Marie A. Pierre. 3 Quevedo’s name appears in the transcript as Maria Fatima Gurvedo Orias, but her social security statement identifies her as Maria Quevedo. 4 This compliance proceeding was tried in Lake Buena Vista and Or- lando, Florida, on 12 days between November 15, 2004, and January 20, 2005. that they owe the employees nothing, until such time as the employees obtained new employment. While the employees went on strike originally to protest the Grosvenor’s unfair labor practices, on September 30, the day that they were discharged, the object of their strike implicitly changed to include protesting their discharge and getting their jobs back. In that sense, the picket line constituted a mass ap- plication for work to the Grosvenor. Union Organizer and Business Agent Gail Fabian testified that it was her hope that the strike would be successful and that the employees would be taken back, but her hopes began to wane after 2 or 3 weeks. In any event, the exclusion from backpay of the first several weeks after the mass discharge, in the circumstances of this proceeding, would serve to discourage the employees from engaging in their protected activities; and Respondents’ insis- tence that the employees immediately leave the line and relin- quish their right to recover their jobs, which, for many, in- cluded substantial seniority and accrued benefits, is unrealistic. Its position also disregards the trauma and disruption caused by the discharge of these employees, almost all of whom had been working for the Grosvenor for more than 7 years, 17 employ- ees, for more than 10 years. Respondents’ opposition is also contrary to Board law. “It is well settled that a discriminatee need not seek work instantly. The test is whether on the record as a whole the employee has diligently sought employment during the entire backpay pe- riod.” C-F Air Freight, 276 NLRB 481, 481 fn. 3 (1985); A. S. Abell Co., 257 NLRB 1012, 1015 (1981); Saginaw Aggregates, 198 NLRB 598 (1972), enfd. mem. 482 F.2d 946 (6th Cir. 1973); Nickey Chevrolet Sales, Inc., 195 NLRB 395, 398 (1972), enfd. 493 F.2d 103, 108 (7th Cir. 1974), cert. denied 419 U.S. 834 (1974); Keller Aluminum Chairs Southern, Inc., 171 NLRB 1252, 1257 (1968), enfd. 425 F.2d 709 (5th Cir. 1970); Cornwell Co., 171 NLRB 342, 343 (1968). For example, in I.T.O. Corp. of Baltimore, 265 NLRB 1322, 1323 (1982), despite the discriminatee’s failure to register at the union’s hiring hall for the first 4 weeks after he was fired and for other days during the backpay period, the Board looked at the entire backpay period of 2 years. The Board specifically found it “un- necessary to consider what [the discriminatee] did during the initial 4 weeks in question.” In Nickey Chevrolet, supra, the administrative law judge did not consider determinative the discriminatee’s failure to look for a job during the first 40 days after his discharge. In Wright Electric, Inc., 334 NLRB 1031 (2001), enfd. 39 Fed.Appx. 476, 2002 WL 1358789 (8th Cir. 2002), although the discriminatee followed his regular method of obtaining employment by registering with the union hiring hall during the initial 7-week period when he was unemployed, the Board looked at his entire 24-quarter backpay period. In both Nickey Chevrolet and Wright Electric, supras, the discriminatees had in fact either registered with the State un- employment commission or the union hiring hall, so that they had made some effort to obtain employment. But in I.T.O., supra, the discriminatee did nothing, and the Board nonetheless found it inconsequential. Here, many of the discriminatees GROSVENOR RESORT 1231 made no application for new employment until late November, almost 2 months after they were discharged; and several made their first applications in early December. In light of the fact that, thereafter, they diligently and reasonably made applica- tions for new employment, and almost all became employed in December, I conclude that their search for new employment at any time within the last quarter is reasonable. I will not exclude from the backpay period the 2 or 3 weeks from the end of the 28 days (I.T.O.), or even the 40 days (Nickey Chevrolet), or 7 weeks (Wright Electric) to the date when the discriminatees made their first search for work. III. STRIKE BENEFITS Another issue that was common to almost all the discrimina- tees involved strike benefits, which, with certain exceptions,5 the General Counsel did not offset from gross backpay and which, Respondents contend, were a form of interim earnings that should have been deducted. During the strike against the Grosvenor, which began on September 27, 1996, and ended in early January 1998,6 the Union paid strike benefits of $100 per week and some additional “strike donations”7 to all the dis- criminatees, except Francisco Abreu, who of the 44 discrimina- tees in this proceeding was the only 1 who never joined the picket line. The strike benefits were paid by the Union’s Inter- national office, from a per capita remitted by the Union from its members’ dues payments to the International. The donations came from moneys contributed by other labor organizations and individuals, apparently in sympathy with the strike. The Union reported to the Internal Revenue Service strike benefits, but not donations, in 1997, on IRS forms 1099-Misc. Fabian decided that showing up and picketing was the sole qualifica- tion for the strike benefit and donation. In Rice Lake Creamery Co., 151 NLRB 1113, 1131 (1965), enfd. as modified 365 F.2d 888, 893 (D.C. Cir. 1966), the Board stated: If the strike benefits received by the discriminatees constitute wages or earnings resulting from interim employment, they are proper deductions from gross backpay. If these sums rep- resent collateral benefits flowing from the association of the discriminatees with their union, then the sums are not de- ductible. The burden of proving that the strike benefits consti- 5 Some discriminatees reported their strike benefits as self- employment earnings for income tax purposes. These were deducted from their gross backpay. 6 I reject as pure speculation and surmise, supported by no hard evi- dence, Respondents’ contention that the strike against the Grosvenor ended earlier and that the strike was converted by early 1997 to make a showing to the Disney interests that the Union was “willing and able to mount high-profile concerted activity in protest of another employer’s action.” 7 The following donations were paid to all discriminatees except Abreu: $100, October 24, 1996; $100, November 1, 1996; and $77.91, November 22, 1996. Additional donations were paid to all discrimina- tees except Abreu, Matos, and Caban, as follows: $200, December 27, 1996; and $111, January 10, 1997. tuted wages for picketing and thus were in the nature of in- terim earnings, was on Respondent. The issue involves whether Fabian’s requirement that the discriminatees show up to picket at least some time each week suffices to demonstrate that benefits are not collateral but are direct payments for the picketing and thus interim earnings that are deductible from the discriminatees’ gross backpay. Al- though there is clearly some language in some decisions which supports the interpretation that, if payment is contingent on picketing, then the payment constitutes interim earnings, I con- clude that the benefits are not wages or interim earnings. For example, in Rice Lake Creamery, 365 F.2d at 893, the court agreed with the Board’s finding that the strike benefits were collateral, “flowing from the association of the discriminatees with their union,” and, therefore, not deductible like wages or earnings resulting from interim employment, where, to qualify for the benefits, the discriminatees were expected to do some picketing. However, the court noted this was not an absolute requirement; that some discriminatees received benefits after the picketing terminated, and that the amounts were not “en- tirely” related to the hours of picketing. Here, although showing up to picket appears to be an abso- lute requirement, albeit never announced to the discriminatees and unknown to them, there was no relation of the $100 pay- ments or donations to the discriminatees’ hours of picketing. Everyone received the same amount, no matter whether they picketed for a full 7-day week or one shift of 4 hours on 1 day, or whether they had interim employment or not. The uniform amount demonstrates that it was paid not for hours of works performed, but merely for the fact that the discriminatees, with- out any anticipation that they would be paid anything, sup- ported the strike by showing up to picket. Coast Delivery Ser- vice, Inc., 198 NLRB 1026, 1030 (1972). In ABC Automotive Products Corp., 319 NLRB 874, 877 (1995), the Board adopted the administrative law judge’s rec- ommendation that strike benefits should not be deducted as interim earnings where strikers received $100 per week and were required to be on the picket line 1 day per week. The judge relied on Madison Courier, Inc., 202 NLRB 808, 810 (1973), remanded on other grounds 505 F.2d 391 (D.C. Cir. 1974), in which the Board stated: [T]here is no record evidence indicating that the receipt of strike benefits by the unfair labor practice strikers in any way interfered with their efforts to locate suitable interim employ- ment. In the absence of such evidence we find that the claim- ants’ right to receive backpay should not be diminished by the fact that the claimants picketed, attended union-sponsored training sessions, or received strike benefits roughly compa- rable to their take-home pay during the period of the Respon- dent’s liability. The judge found, as I do here, that there was no evidence that the receipt of the strike benefits “in any way interfered with their efforts to locate suitable interim employment.” In fact, Fabian testified that the discriminatees would bring newspapers DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1232 to the picket line and sit underneath a tree and read it. They would leave the picket line, go to an interview, and come back. They would come to the line late, reporting that they were out in the morning looking for jobs. In addition, the union referred them to jobs while the strike was ongoing. In Glover Bottled Gas Corp., 313 NLRB 43, 45 (1993), enfd. 47 F.3d 1230 (D.C. Cir. 1995), cert. denied 516 U.S. 816 (1995), like here, a list of strikers was submitted to the union office each week, and strike benefits were then dispensed based on that list. The discriminatees were never told by their union what the requirements were for them to be eligible for strike benefits, despite the “conclusory” testimony by some discrimi- natees that they were paid for picketing or had to picket in or- der to receive strike benefits.8 The administrative law judge found that strike benefits were collateral to union membership and support for the strike, based on “the totality of the circum- stances.” The $100-strike benefit and donations had no relation at all to the earnings of the discriminatees when they were employed by the Grosvenor or to any service rendered by them on the picket line. There was never any contract between the Union and the discriminatees, either written or oral, in which the Un- ion sought the services of the discriminatees to picket for a certain amount, or the discriminatees agreed to do so. The Un- ion made no deductions for withholding or employment taxes. The discriminatees never completed signup sheets, daily logs, or other records showing when they picketed. The Union thus never treated these amounts as wages. The fact that in 1997 it sent the discriminatees form 1099s indicates that these pay- ments may have been reportable for income tax purposes, but nothing more, for the reasons adequately set forth in Florence Printing Co., 158 NLRB 775, 781–782 (1966), enfd. 376 F.2d 216 (4th Cir. 1967), cert. denied 389 U.S. 840 (1967). Superior Warehouse Grocers, 282 NLRB 802, 803–804 (1987), relied on by Respondents to support its contention that the payments here were interim earnings, is readily distinguishable and, in fact, supports my conclusion of law. There, the individual was paid $3 an hour for organizational picketing. Had the discriminatees here been paid an hourly wage for their services, my conclusion would be different. Even Tubari, Ltd. v. NLRB, 959 F.2d 451, 454 (3d Cir. 1992), a decision on which Respondents place major emphasis, gives no support to them. The court there cited NLRB v. Madi- son Courier Inc., 472 F.2d 1307, 1313 and fn. 12 (D.C. Cir. 1972), in which the union paid the discriminatees strike bene- fits “roughly comparable” to their weekly take-home pay, re- 8 Jules Josaphat testified: “At the beginning they would give the $100.00 to everyone. And then after a few months [probably in 1997] they make a schedule and you had to be there certain hours during the day.” Robert Baity, however, testified: “This was not necessarily for walking on the picket line. That was just for being on strike. We had a fund that the Union has which is a strike fund, which parts of it are taken from the Union dues and then other parts are donations from other Unions that go into the strike fund that is given to all the strikers whether you’re on the picket line or not.” quiring them to be available to picket and other strike-related duties for 2 hours per day, 6 days each week. In Tubari, 959 F.2d at 456, the court found that the Madison Courier court’s assumption that the union’s payments were benefits, rather than wages, was “completely understandable” since the 2-hour pick- eting stint, yielding wages “roughly comparable” to what the discriminatees previously earned, was hardly comparable to ordinary employment. As noted above, Respondents had the burden to prove that the amounts received from the Union by the striking employees were in the nature of pay for interim employment and were not benefits for their support of the strike. Respondents did not meet this burden. Because the strike benefits in Tubari, supra, were stipulated to be interim earnings, and I have found that they are not, and because it was conceded in Tubari that the discriminatees there did not search for other employment during the 7-1/2 hours that they were required to picket each day, and I find that there was no prohibition deterring the discriminatees here from searching for other employment, and in fact most did, Tubari is irrelevant to the issues in this proceeding. It is also irrelevant because Board law, as shown above, does not require discriminatees to look for employment immediately upon their unlawful dis- charge. Even if Tubari were relevant, I am bound “to apply established Board precedent which the Supreme Court has not reversed.” Iowa Beef Packers, 144 NLRB 615, 616 (1963), cited in Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984).9 I con- clude that all strike benefits and donations are not interim earn- ings and, except as already credited in the compliance specifi- cation, shall not be deducted from the discriminatees’ backpay. IV. RESPONDENTS’ EXPERT TESTIMONY In addition, because I have held that the discriminatees had no duty to search for employment immediately upon being discharged, much of Respondents’ proof concerning the avail- ability of employment in the Orlando during late 1996 is irrele- vant. Respondents attempted to demonstrate, through an expert and other witnesses, that, if the discriminatees increased their searches for employment, they could have essentially been employed at any time they wanted, thus filling in on all weeks and months that they were not employed and (presumably) obtaining employment that would have paid more than they earned. I did not find that testimony compelling, particularly because it was general, relying on statistics, which are often misleading, and was not specifically related to the availability of the full-time jobs that the discriminatees testified that they had applied for, and during the period that they were initially applying, from early October, a period that, according to one of Respondents’ witnesses, was, until Christmas, “notoriously slow.” (“[W]hen the kids go back to school [September] occu- pancy levels would drop.”) Furthermore, although there may have been many job oppor- tunities in Orlando, a large metropolitan area with a land area 9 Respondents concede that none of them reside or conduct business within the jurisdiction of the Third Circuit. GROSVENOR RESORT 1233 of 3,490.9-square miles,10 the issue is not whether there are jobs far distant11 from where this somewhat elderly12 and non- English-speaking group could travel by public transportation. The issue is whether there was some evidence that proved that these discriminatees did not make a reasonable effort to obtain jobs of the kind that the Grosvenor discharged them from. The issue is whether an applicant for employment who cannot recall her address, as one of the witnesses in this hearing could not, was the type of person that a particular employer would hire. The mere “existence of job opportunities by no means compels an inference that the discriminatees would have been hired if they had applied.” Delta Data Systems Corp., 293 NLRB 736, 737 (1989). The issue is whether prospective employees, who were just fired as a result of a labor dispute, would be welcomed by em- ployers which were trying to avoid labor disputes. In this re- spect, the testimony of Jane Peterson, the Grosvenor’s director of human resources, that an applicant would never be handi- capped if it was known the applicant had been discharged due to a labor dispute, including a strike, is contrary to the wisdom contained in 344 volumes of the Decisions and Orders of the National Labor Relations Board. It is also contrary to the Gros- venor’s unfair labor practices in their treatment of the discrimi- natees in this proceeding. Donna Smithberger, director of hu- man resources at the Caribe Royal All Suites Resort, stated that she would have had no problem hiring someone who had been involved in a labor dispute; yet, it took 9 months for her hotel to hire discriminatee Abreu, and he was not even an active participant in the strike or picketing. The issue is whether prospective employers, despite the leg- islative mandate of the Age Discrimination in Employment Act, 29 U.S.C. § 621 (1967), would willingly hire an older appli- cant13 or whether, when faced with two applicants, one of whom spoke and read English and the other did not, an em- ployer would prefer the English-speaking applicant. Not even the newspaper advertisements serve a probative purpose. There was no identification of the address of the employer and whether the job had already been filled by the time the adver- tisement was published, nor was there proof that any particular discriminatee would have been hired had she or he applied for that particular job. Arlington Hotel Co., 287 NLRB 851, 853 (1987), enf. granted in part, denied in part 876 F.2d 678 (8th 10 MSN Encarta Premium, http://encarta.msn.com/encyclopedia_761564744_1 /Orlando.html. 11 Many of the Spanish-speaking discriminatees lived in Haines City, 30 or 40 miles distant from the Grosvenor, which was 10 to 15 miles from the Disney main gate and 5 to 10 miles from International Drive, where there were many hotels. 12 Davis was 62 years old; Day, 62; Gillaspie, 60; Jackson, 68; Malagon, 69; Preval, 65; Rankin, 61; Smith, 67; and Williams, 62. Another 16 discriminatees were older than 50. 13 In order to prove that she preferred hiring senior citizens because they are more reliable than younger workers, Smithberger falsely in- flated the percentage of her senior (65 years or older) full-time employ- ees to 10–15 percent, whereas the true figure was 2 percent. Cir. 1989);14 Airport Services Lines, 231 NLRB 1272, 1273 (1977), enfd. mem. 589 F.2d 1115 (D.C. Cir. 1978). In short, there are so many variables in an employer’s choice of a pro- spective employee that this type of generalized testimony gives the trier of fact little help. Taylor Machine Products, Inc., 338 NLRB 831, 832 (2003), enfd. 98 Fed.Appx. 424, 2004 WL 1088245 (6th Cir. 2004); United States Can Co., 328 NLRB 334, 343 (1999), enfd. 254 F.3d 626 (7th Cir. 2001); Food & Commercial Workers Local 1357, 301 NLRB 617, 621 (1991). I generally reject it. V. CREDIBILITY Having heard each of the discriminatees testify, and having observed them carefully, I am persuaded that, except for a few witnesses, discussed below, each testified truthfully and, again with some exceptions, also discussed below, accurately. De- spite the fact that they signed or submitted to the Region Search for Work Reports on which they listed their attempts to gain employment, many were not filled out completely, due for the most part to the fact that many discriminatees do not speak or read or write English.15 Some of the reports were filled out by relatives. Some were completed by Fabian, who did not under- stand the significance of the documents and, once a discrimina- tee indicated that she or he had been hired, wrote in only the successful job application, thinking it unnecessary to write all the places that the discriminatees had actually made application prior to obtaining employment. Although the reports asked for all the places where the discriminatees searched for work, Fa- bian merely asked the discriminatees to give her “a place where you have gone so they know that you are looking for work.” Finally, although she wrote that the discriminatees were on the picket line, she did not intend that they were unable to work or search for work. In addition, many of the forms were submitted to the Region late, long after the attempts for employment were made. Thus, three or four or more quarters were filled out and submitted at the same time; and pertinent information was omitted. I found truthful and have credited the testimony of most of the dis- criminatees, who stated at the hearing that they had made other efforts at obtaining employment, in addition to those stated on the forms, even though some of them could not then recall the specifics of the establishments to which they applied. “It is well established that employees are not disqualified from backpay merely because of poor recordkeeping or uncertainty as to memory.” Hickory’s Best, Inc., 267 NLRB 1274, 1276 (1983), enfd. mem. 737 F.2d 1206 (D.C. Cir. 1984). 14 Upon remand, 297 NLRB 436 (1989), the Board accepted the de- cision of the court only as “the law of the case.” 15 Abreu, Alvarez, Caban, Carranza, Delgado, Deneus, Desir, Febles, Israel and Lidia Hernandez, Javier, Jimenez, Jules and Therese Jos- aphat, Louisius, Matos, Meradin, Ovince, Preval, Quevedo, Ryland, and Viscaino-Hernandez. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1234 VI. SOME GENERAL PRINCIPLES OF LAW Throughout Respondents’ briefs and motion papers, they ar- gue that the discriminatees had the duty to seek jobs which paid as much as they had earned at the Grosvenor. Respondents are incorrect. There is no “substantially equivalent earnings” test in Board law, and, in particular, the court’s decision in Tubari holds nothing of the sort. Rather, the court wrote, 959 F.2d at 454: The type of work the employee must seek depends upon his or her abilities. Generally, the employee must seek interim employment “substantially equivalent” to the position of which he or she was unlawfully deprived and that employ- ment must be suitable to a person of like background and ex- perience to the employee. NLRB v. Madison Courier Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972) . . . (citing NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 575 (5th Cir. 1966); accord Standard Materials, Inc. v. NLRB, 862 F.2d 1188, 1192–[19]93 (5th Cir. 1989). Thus, in this decision, I am guided by the following princi- ples of law: To be entitled to backpay, the discriminatees must make reasonable, honest, and good-faith efforts to secure in- terim employment. Millennium Maintenance & Electrical Con- tracting, Inc., 344 NLRB 516, 517 (2005); Chem Fab Corp., 275 NLRB 21, 21 (1985), enfd. mem. 774 F.2d 1169 (8th Cir. 1985); Electrical Workers Local 3 (Fischbach & Moore), 315 NLRB 1266, 1266 (1995), citing Mastro Plastics, 136 NLRB 1342 (1962), enfd. in relevant part 354 F.2d 170 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966). The law does not require that the search be successful. Millennium Maintenance, supra; Chem Fab Corp., supra. Respondents have the burden of prov- ing that the discriminatees did not seek or refused to accept suitable employment. Lundy Packing Co., 286 NLRB 141 (1986), enfd. 856 F.2d 627 (4th Cir. 1988). “Uncertainty in such evidence is resolved against the respondent[s] as the wrongdoer[s].” Id. They do not meet their burden of proof by presenting evidence of lack of employee success in obtaining interim employment or of low interim earnings. NLRB v. Miami Coca-Cola Bottling Co., supra, 862 F.2d at 575–576. VII. THE GENERAL COUNSEL’S MOTION FOR AN ADVERSE INFERENCE In an after-hearing motion, the General Counsel requested an adverse inference and an order striking those portions of Re- spondents’ brief which, according to him, misrepresented the record regarding the discriminatees’ weekly hours of work in 1996. The nub of the dispute is that Respondents claim that certain discriminatees did not mitigate their damages, because they accepted interim employment at jobs that they were regu- larly scheduled to work less than 40 hours per week, whereas they regularly worked at least 40 hours per week for the Gros- venor in 1996. Respondents claim that the determination of hours worked is readily ascertainable: one computes weekly pay by dividing the total gross wages paid by the Grosvenor in 1996 by 39, the number of weeks prior to the September 30 discharges of the discriminatees. Then, one divides that figure by the hourly wage. The result is the number of hours worked each week, and Respondents claim that their computations showed that virtu- ally all the discriminatees were working 40 or more hours. Compliance Officer Karen Marksteiner disputed that computa- tion on the first day of the hearing, testifying that Respondents had failed to provide any of the Grosvenor’s payroll records and that Respondents’ computation was incorrect because the earnings might have included bonuses and overtime pay. The General Counsel’s motion adds to that premium overtime pay, holiday pay, and reporting pay; and room attendants were eligi- ble for cleaning bonuses based on the number of rooms they cleaned, and maintenance workers were eligible for turnabout pay. Respondents were thoroughly familiar with the claim of the counsel for the General Counsel, who made known that “[o]ne possible issue will be whether the workweek was a 40-hour workweek” and that the “payroll records would show the num- ber of hours per week that the employees [at] Grosvenor worked immediately preceding the back pay period and through the back pay period.” The General Counsel had earlier subpoe- naed the Grosvenor’s payroll records. I advised Respondents’ counsel that, if there were going to be an issue concerning the number of hours worked weekly, he should file his petition to revoke as early as possible. He stated that he knew what his options were, to file a motion or to produce the records, yet did neither. Nor did Respondents introduce evidence from the Grosvenor’s managers or representatives regarding how many hours per week the discriminatees worked before being dis- charged, or from 33 of the 34 discriminatees who testified. The General Counsel requests the following relief: (1) an ad- verse inference that the payroll records would not have sup- ported Respondents’ position that the discriminatees regularly worked 40 hours per week for the Grosvenor in 1996, and (2) an order striking section VI of Respondents’ Reply Brief and the supporting appendices which computed the weekly hours of the discriminatees, as set forth above. The importance of the motion for the General Counsel rests on his contention that a number of discriminatees accepted jobs where they worked 24 or more hours, which would make them full-time employees under the Grosvenor’s handbooks and the collective-bargaining agreement that the Grosvenor unilaterally imposed on its employees in violation of the Act. Thus, the General Counsel contends that they accepted employment sub- stantially similar to what they would have had, had they not been discharged by the Grosvenor. Respondents, on the other hand, in computing that the discriminatees were employed at the Grosvenor for full 40-hour weeks, contends that the law required the discriminatees to obtain interim employment where they would receive substantially equivalent earnings, which, as held above, is not the law. But it is good law that a discriminatee may not mitigate her or his damages by accepting interim employment that is not “substantially equivalent” to the work performed before, and GROSVENOR RESORT 1235 Respondents’ withholding of the Grosvenor’s payroll records makes impossible a comparison of the work performed for the Grosvenor before and the interim work. To the extent that Re- spondents contend that certain discriminatees accepted part- time work, that argument must fail, because Respondents have failed to produce the documents that support their contention that the interim work was for fewer hours than the work for the Grosvenor. “Substantially equivalent” requires a comparison between what the discriminatee was doing, when employed by the Grosvenor, and what the discriminatee’s new job was. In addition, Respondents’ failure to ask any discriminatee, other than Montgomery, for the hours worked for the Grosvenor before the discharge, and the failure to ask any of the Grosve- nor’s representatives what were the hours of work of the dis- criminatees before their discharge leads to the logical inference that Respondents were seeking to conceal facts adverse to Re- spondents’ interests. Respondents’ opposition to the motion argues only the logic of its arithmetic formula and the law of mitigation. It does not otherwise justify Respondents’ failure to comply with the Gen- eral Counsel’s subpoena or to ask the representatives of the Grosvenor or even the discriminatees about their hours. The General Counsel’s motion is granted. McAllister Towing & Transportation Co., 341 NLRB 394, 394–398 (2004); Daikichi Sushi, 335 NLRB 622, 622 (2001). VIII. DISCRIMINATEES SEPULVEDA, MARIA HERNANDEZ, AND NORMA JIMENEZ Three discriminatees did not appear at the hearing. The Re- gion was unable to locate Adriana Sepulveda, nor were Re- spondents. Starlite Cutting, 280 NLRB 1071 (1986) (Starlite I), provides that her backpay shall be placed in escrow with the Regional Director, to be held for a period of 1 year, that period to start either when Respondents comply by depositing the backpay into escrow or on the date the Board’s Supplemental Decision and Order becomes final, including enforcement, whichever is later. Starlite Cutting, 284 NLRB 620 (1987) (Starlite II). Absent Sepulveda’s showing by a preponderance of the evidence that there were compelling reasons to justify her failure to come forward during that period, Respondents shall not remain obligated for the gross backpay amount speci- fied for the discriminatee after the end of the 1-year escrow period. Respondents were, however, able to find Maria Hernandez and Norma Jimenez and served them with subpoenas duces tecum. Maria Hernandez appeared with her mother, discrimina- tee Lidia Hernandez, on the day that they were initially sched- uled to testify, November 15, 2004; but they had to leave sud- denly when they received word that Lidia’s mother was ill in Mexico. Respondents’ counsel agreed to delay their testimony so they could travel to Mexico, with the expectation, and even representation, that they would return in time for the December trial session. They did not, and they were then scheduled to testify in January. Maria Hernandez failed to appear on January 20, 2005, the day that she was rescheduled to testify, as did Norma Jimenez; and Respondents moved to strike their claims for backpay. Starlite I, supra, gives an absent discriminatee an additional year to appear at a compliance hearing and be examined, as Respondents did throughout this proceeding, about the dis- criminatee’s effort to mitigate the backpay liability. Indeed, perhaps regarding these two discriminatees, Respondents wanted to argue that, under Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), they were illegal aliens and thus entitled to no backpay at all. These two discriminatees’ failure to appear, pursuant to the agreement of at least one to do so and the obligation of both to do so by the subpoenas served on them—indeed, the two could have arranged their days of hear- ing—prevented Respondents from an opportunity to prove their position. Both Starlite I and II make clear the Board’s aware- ness that its proceeding must at some point come to an end. As it wrote in Starlite I, 280 NLRB at 1072 fn. 4, “the law favors repose”; and the denial of this motion, giving these two dis- criminatees, who offered no reason for their failure to appear, yet another chance to attend yet another hearing, only to fail to show up again, might unnecessarily delay the final determina- tion of this proceeding. There is little legal authority. L’Ermitage Hotel, 293 NLRB 924 (1989), enfd. mem. sub nom. Ashkenazy Property Man- agement Corp. v. NLRB, 917 F.2d 62 (D.C. Cir. 1990), cert. denied 501 U.S. 1217 (1991), relied on by the General Counsel, is distinguishable. First, the administrative law judge found, at 929, that “[t]here are nine discriminatees who have not been located.” Although the judge recited that the employer had learned the whereabouts of the four named discriminatees from prehearing discussions with other discriminatees, he noted that “the record contains no evidence of this.” Thus, in that context, with the discriminatees not being found and there being no evidence of their being available to appear at the hearing, Star- lite I was properly invoked and utilized. In Schnabel Associ- ates, 291 NLRB 648 (1988), Ronnie Messer, who had been subpoenaed by the General Counsel, did not appear. The ad- ministrative law judge extinguished his claim for failing to cooperate with the Region during the compliance proceeding. Id. at 655. However, the Board noted Id. at 648 fn. 1, that the employer did not except to the judge’s decision to strike Messer’s claim and adopted the judge’s decision on that basis alone. In Beckley Belt Services, 289 NLRB 1179 (1988), the Board applied Starlite I where a discriminatee failed to appear at the compliance hearing despite being served with a subpoena by the General Counsel, recognizing that the employer deserved “an opportunity to cross-examine” the missing discriminatee. Id. at 1179. More telling is Electric, Inc., 335 NLRB 315, 315 (2001), in which the Board wrote: The record also shows that the Respondents knew where the claimants were and how to contact them, because the Re- spondents had made telephonic offers of employment to both. Notwithstanding that knowledge and the proximity of the hearing to the employees’ place of residence, the Respondents DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1236 made no effort to procure the employees’ attendance at the hearing, either by request or subpoena. In those circum- stances, the escrow procedure used primarily in cases where discriminatees are missing or fail to respond to a subpoena by one or both parties is not warranted. From this quotation, it appears that the Starlite I procedure is to be invoked not only where the discriminatees cannot be lo- cated but also where, as here, the discriminatees fail to respond to properly served subpoenas. I will thus deny Respondents’ motion and apply the escrow remedy to Maria Hernandez and Norma Jimenez. I turn now to the remaining 41 discriminatees. A. Francisco Abreu Respondents do not challenge Francisco Abreu’s backpay claim of $11,917.67, as stated in the compliance specification. B. Andres Alvarez Respondents, relying on American Navigation Co., 268 NLRB 426 (1983), contend that Alvarez willfully concealed his interim employment from the Regional Office and should be denied all his backpay. During the course of a Board proceed- ing, the Regional Office’s compliance office attempts to con- tinue communications with all the alleged discriminatees, send- ing them a form captioned “Claimant Expense Search for Work, and Interim Earnings Report” (Search for Work Report), which has in the upper right-hand corner spaces for the filling in of the quarter of the year for which the report is filed, and below, a space for the employee’s name and current address. The name is normally typewritten in by the Region, as is the case number and case name below that. In part I are spaces for three entries: (1) State, private, and union employment services where the employee registered for work; (2) search for em- ployment; and (3) all periods when the employee was unable to look for work. On the other side of the page is part II. That asks for (1) all expenses related to looking for work; and (2) records relating to any job the employee held, including the dates, name and address of the employer, job title, gross weekly pay, and reason for leaving the employer. Written in bold type on the face of the form is the following: It is important that you maintain records concerning your interim earnings and expenses, your search of work, and your availability for work during the entire period of time until your backpay period of entitlement has been re- solved. Additional copies of this form are available from the Regional Office. Your failure to truthfully report to the Board all interim earnings or other information affect- ing your backpay may result in partial or complete denial of any backpay which may be due you in this matter. Whether employees read this warning is unclear. In fact, ac- cording to Compliance Officer Karen Marksteiner, it is not an absolute that the discriminatees return those forms; often the employees do not even reply to the compliance officer’s request to fill in the form, and quarters go by without the return of any- thing. (“It’s certainly helpful to get them. If they are complete, fine. If they are not, they can return information in different formats.”) In this proceeding, it is clear that, at least for some employees, they did not respond each quarter and then sent in, in one batch, reports for numerous quarters. That delay in fill- ing out the reports frequently results in the inaccuracy of the reports. Employees simply do not recall all the information because of the lapse of time. One method of ensuring the accu- racy of the compliance specification is the requirement that the employees authorize the compliance officer to seek information about their earnings directly from the Social Security Admini- stration. The social security statements show all the earnings reported by the employees’ interim employers, typically on W- 2 forms, as well as earnings reportable on forms 1099, and individual self-employment earnings reported by the employee. Although Alvarez worked during the entire backpay period, he reported on the Board’s Search for Work Reports none of his interim earnings. In fact, he wrote nothing on the back side of any of the reports that he submitted; and the record does not make clear that he even looked at that side of the form. In addi- tion, even if he did, it is not clear that he understood what was being asked for. He was born in Cuba and did not attend school after second grade. He testified with the aid of an interpreter. On the other hand, he does have some limited command of English. At the beginning of his testimony, he began to answer a question, before that question had been fully translated. In addition, I found that he understood at least some English words as they were being spoken by counsel and me. On the other hand, his expression was blank enough that he did not indicate full comprehension of the English dialogue. Although he testified that he did not read English, he had enough comprehension of the English language to answer ques- tions on the face of the Report; and his answers indicated that he had at least some comprehension of what kind of informa- tion the report was looking for. Thus, on the third item, asking for any reason that he was unable to work, he answered, in his own handwriting “Full Pick Line” or “Full time pick line” for the third quarter of 1996 and the second and third quarters of 1997. In addition, he wrote “not working” in the second item, search for employment, for the second quarter of 1997. Begin- ning with the third quarter of 1997 through the first quarter of 2000, although he reported the unions he went to in the first item, he added “no work.” Because that first item requested not only the employment services that he went to but also the com- panies when he was referred to work, his answer of “no work” seems to be responsive, in the sense that he was not referred to any work by the unions. That was what he testified to when asked by Respondents’ counsel. I do not, therefore, find that his answers to the first item in- dicate a willful misleading. But he clearly, in his answers, “not working” and “no workers,” which he inserted once, intended to convey the idea that he was not working, when he obviously was. He began to work in the last half of 1997 for Diamond Transportation, where he moved cars at the Orlando Airport. He worked there, 40 hours a week, for about 1-1/2 years, until GROSVENOR RESORT 1237 early 1999. He worked after that, too, but the record is not en- tirely clear. He worked for Trim-Pak Corporation in March 1999 and worked there at least through June 2002, according to Trim-Pak’s records, but his social security statement indicates that he worked there only from 1999 through 2000. That state- ment also records that he also worked for Gevity HR III LP and First Watch Enterprises Inc. from 2000 through 2002, and one or both could be the same as Trim-Pak, which has his atten- dance record through June 2002. He also testified that he retired when he reached the age of 62 years in December 1999 and that he began to work only 5 or 5-1/2 hours a day, because he would otherwise lose some of his social security benefits;16 and that he did this for 3 or 4 months, and then left Trim-Pak. Trim-Pak’s records seem to substantiate a cutback of hours from 40 to about 25 or 30 hours, starting in September 2000, but Respon- dents’ brief raises no issue about this. Whatever his work history may have been, he had a work history that he did not reveal on his Search for Work Reports. His answer that those were “mistakes” was unconvincing. He conceded, at least at the hearing, that the forms sent by the Region asked him to provide information about his job search and employment. On the other hand, his lack of understanding of the Search for Work Report is exhibited by his inclusion of his social security benefits in answer to the first item on the face of the report. That item clearly did not ask for the benefits that he was receiving. He reported on his tax return his income from Diamond Transportation, despite the fact that Diamond Transportation may have paid him off the books, because it did not report his earnings for income tax purposes. He also re- ported as income the strike benefits that he received from the Union. In other words, Alvarez was not a dishonest person. That brings me to the Board’s Decision in American Naviga- tion, 268 NLRB 426. Respondents’ argument relies on the fact that Alvarez purposefully attempted to mislead the Region and conceal income. Here, although one could certainly take issue with the fact that Alvarez did not fill in his income on the back of any of the reports, as he should (as the compliance officer testified, “In a perfect world that’s what I get”), he did not at- tempt to mislead or conceal, as evidenced by the fact that he authorized the release of his information from the Social Secu- rity Administration. On the social security statement received— although not dated or time-stamped by the Region, they reflect his earnings through 2002—all his earnings from the work not reported on back side of his Search for Work Reports are re- flected. On that basis, the compliance specification accurately reflects all the earnings which Respondents complain were not revealed on his earlier reports; and the General Counsel gave Respondents Alvarez’ social security statement and supporting documents in July 2000, well in advance of the hearing in this proceeding. 16 An individual under 65 was permitted to earn $10,080 in 2000; $10,680 in 2001; and $11,280 in 2002 before incurring a reduction in his Social Security benefits for additional earnings. American Navigation, 268 NLRB at 428, requires a showing of willful perfidy and deception, a scheme for unjustified per- sonal gain. Performance Friction Corp., 335 NLRB 1117, 1119 fn. 11 (2001); Allied Lettercraft Co., 280 NLRB 979, 983 (1986); Rainbow Coaches, 280 NLRB 166, 186 (1986), enfd. as mod. mem. sub nom. Rainbow Tours, Inc. v. NLRB, 835 F.2d 1436 (9th Cir. 1987), cert. denied 487 U.S. 1235 (1988); com- pare, Toll Mfg. Co., 341 NLRB 832, 834–836 (2004). I find no attempt to lie and no attempt to conceal. Because this is the sole basis of Respondents’ defense, I conclude that Alvarez’ correct backpay is $55,148.31, as stated in the compliance specifica- tion. C. Robert Baity Robert Baity had been employed by the Grosvenor as a ban- quet server for 7 years. He applied for work at the Radisson in downtown Orlando on October 29, at Disney World17 on No- vember 29, and at the Royal Plaza on December 3, 1996. He was hired as an on-call banquet server at Disney World on De- cember 3, 1996, and at the Radisson Twin Towers on Decem- ber 9, 1996. He stopped working at the Radisson on June 30, 1997, because he was offered a full-time position at a new Dis- ney World resort, the Coronado, where he started on July 13, 1997, and remained employed throughout the rest of the back- pay period. From the first quarter of 1998, he earned more than he would have had he not been unlawfully discharged by the Grosvenor, which had no backpay responsibility from January 1, 1998. In fact, Respondents do not question Baity’s claim for the year 1997. Instead, they contend that Baity made an insuffi- cient, inadequate, and untimely effort to mitigate his damages. However, Baity did start looking for work in October and made additional applications in November and December, which enabled him to obtain the full-time employment and resulted in Respondents owing nothing for the period from January 1, 1998, on. Those applications began to be made within 1 month of his discharge and, in accordance with my ruling above, were not untimely. Furthermore, Baity made more applications for employment than he listed on his questionnaire (“I know there were other places that I know that I visited that I don’t see on this. I obviously didn’t keep as good of records as I should have. This is all that I put down on here.”). Although Respon- dents belittle that testimony, Baity seemed to me to be sincere, truthful, and reliable. His Search for Work Report shows that he applied to the Radisson Twin Towers, the Contemporary Hotel, and the Grand Floridian in April; and I find that he made other applications the quarter before. As he testified, he “need[ed] the benefits.” I thus find his search for employment reasonable, diligent, and adequate. The law does not require the highest standard of diligence or “success; it only requires an honest good-faith effort” to find suitable employment. NLRB v. Cashman Auto 17 Disney World owns many hotels. Each application to Disney World is an application to all of its hotels. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1238 Co., 223 F.2d 832, 836 (1st Cir. 1955); Arlington Hotel Co., 287 NLRB 851, 851 (1987), enf. granted in part, denied in part 876 F.2d 678 (8th Cir. 1989). Baity is not to blame for the fact that banquet and convention business drops off substantially in the latter part of December due to the holidays, because busi- nesses and groups do not typically hold out-of-town functions in Orlando during that period. The Grosvenor fired him, per- haps at the wrong time, increasing its liability because Baity could not find employment to replace what the Grosvenor took away from him. I conclude that he is entitled to the full amount claimed for the fourth quarter of 1996. In doing so, I reject Respondents’ alternate argument that his claim for the months of October and November should be denied, because he was picketing. That did not remove him from the labor market and does not automatically negate his right to reimbursement by Respondents. NLRB v. My Store, Inc., 468 F.2d 1146, 1151 fn. 4 (7th Cir. 1972); Florence Printing Co. v. NLRB, 376 F.2d 216, 218–220 (4th Cir.), cert. denied 389 U.S. 840 (1967). I conclude that he is entitled to $25,653.52, as stated in the com- pliance specification. D. Rosetta Brown Respondents did not call Rosetta Brown as a witness and omitted mention of her in their principal brief. Only in their reply brief did they argue: “She made only a single application during the fourth quarter of 1996 and did not begin working until December 11, 1996, generating only $320.63 during that quarter.” Adding her strike pay to that, Respondents conclude that the amounts fell far below the “substantially equivalent” standard under Tubari, Ltd. v. NLRB, 959 F.2d 451, which the Board has not followed, and thus her claim for that quarter, the only quarter for which backpay is claimed in the compliance specification, should be denied. In giving the parties the right to file reply briefs, it was not my intention to permit them to raise utterly new arguments on which they had the burden of proof. It was Respondents’ bur- den to prove that Brown did not mitigate her damages, Lundy Packing Co. v. NLRB, 856 F.2d 627, 629 (4th Cir. 1988); and Respondents did not meet their burden. Brown’s work search form shows that she searched for work in November 1996. Because it shows no date in November and because Respon- dents have the burden of proving Brown’s failure to mitigate, Beverly California Corp, 339 NLRB 776, 777 (2003), I find from their failure to establish the date that she searched on No- vember 1, 32 days from the date of her discharge. She was hired for this job and worked at this position throughout the remainder of the 24 quarters of the backpay period. Based on the entirety of her work record throughout that period, I find that she made a timely application and conclude that her back- pay is $2,480.05, as stated in the compliance specification. E. Hector Caban Hector Caban, a laundry attendant, applied for work at the Family Dollar store in October, at Winn Dixie in November, and at Las Palmas at Sand Lake Condominium Association (Las Palmas) on December 2, 1996. As I held above, that is a sufficient search for work. Although he testified that was hired as a maintenance worker at Las Palmas on the day that he ap- plied for work, and his Search for Work report shows his rate of pay to be $520 biweekly, his social security statement shows no earnings there until 1997. Respondents insist that $1040 be credited as interim earnings in the fourth quarter. There is no record or testimony about when Caban was first paid. Further- more, I find it unlikely that Caban walked in off the street, made an application, and immediately started work. Caban was not asked about when he started work in relation to when he applied for a job. Although the Social Security Administration can make a mistake, I will credit its statement, in the absence of proof about when Caban was paid. Accordingly, I refuse to find that he had any interim earnings in the last quarter of 1996. Caban worked at Las Palmas until June 1, 1998, when the employer decided to contract out its maintenance work and discharged him. He then looked for employment, applying to four employers, and was hired to a maintenance position by a fifth, Toys ‘R’ Us, on August 13, 1998. He remained there through the second quarter of 2001. His weekly earnings at Toys ‘R’ Us were initially lower than his earnings had been at Las Palmas, probably caused by the fact that it was a part-time position of 5 or 6 hours a day. He asked for more hours, but was not given them. Respondents complain that he should not have accepted a part-time job, but it seems that he had no choice of other employment. Part-time employment satisfies the duty to mitigate, absent a showing that full-time work was available. Be-Lo Stores, 336 NLRB 950, 950 fn. 1 (2001); United States Can Co., supra, 328 NLRB at 348. Besides, in the third quarter of 1999, when his earnings at Toys ‘R’ Us dropped, he took a supplemental job at the Florida Mall. Fi- nally, in light of Respondents’ failure to produce its payroll records, I cannot compare his hours at Toys ‘R’ Us with his hours at the Grosvenor. In sum, I find that he made a good-faith and reasonable effort to mitigate his damages during this pe- riod. Caban was rehired at Las Palmas on March 6, 2000, and con- tinued to work there throughout the remainder of the backpay period. By reason of his earnings at Las Palmas, there is no claim for backpay during 2000 and 2001, but the compliance specification claims $323.77 for the first three quarters and $249.05 for the last quarter of 2002, caused by Las Palmas’s reduction of his hours from 40 to about 28 in June 2002. Re- spondents contend that his backpay for 2002 should be denied: by accepting fewer hours, he failed to exercise reasonable dili- gence in obtaining a position substantially equivalent to the position from which he was discharged. I know of no Board authority that requires that result. In fact, the Board has held that a discriminatee who accepts suitable interim employment, even at a lower wage, has no continuing duty to search for a more lucrative job. F. E. Hazard, Ltd., 303 NLRB 839 (1991), enf. denied 959 F.2d 407 (2d Cir. 1992); Sioux Falls Stock Yards Co., 236 NLRB 543, 570 (1978). Here, Caban had suit- able interim employment and, for a reason not of his own do- ing, his employer reduced his hours. I am not going to blame GROSVENOR RESORT 1239 him for remaining on his job. I conclude that Caban is entitled to $9,109.49, as the compliance specification claims. F. Gilberto Carranza After being discharged, Gilberto Carranza, employed by the Grosvenor as a houseman, the person who supplies all of the necessary materials, such as linen, to the housekeepers, re- moves the garbage, takes the dirty linen to the laundry, and performs some general cleaning of areas such as the lobby. Generally, a houseman lifts objects that are too heavy for some of the housekeepers. In September 1996, he registered with International Alliance of Theatrical and Stage Employees, Lo- cal 631, AFL–CIO (IATSE). IATSE had collective-bargaining agreements with general contractors who set up trade shows at conventions in Orlando and who were required to use employ- ees referred by IATSE, which maintained a referral list. There were four categories of employees on that list, starting with either new hire 1 or 2, the IATSE representative not recalling which came first, helper, and journeyman. An employee ad- vanced from category to category upon obtaining 250 hours of work, and each advancement would result in a pay raise, the first category being paid at $10 per hour. Employees accruing 1000 hours or more were journeymen, who received the highest wage rate. Depending on the number of trade shows going on, it can take 3 or 4 weeks to get through one rotation of the list. As the IATSE representative described: “In most cases these people live hand to mouth and they can’t afford to wait through the rotation list because of the way the jobs are structured as far as Journeyman ratio to Helpers and New Hires. You have to really be prepared to stay the course in order to be able to make a living at it.” Once an employee accumulated enough hours to become a helper, he went to the bottom of that list. It took dis- criminatee Paschal more than 1 year to accrue the 1000 hours needed for journeyman status. “[T]he first year is very diffi- cult.” Carranza obtained sufficient work from IATSE in the last quarter of 1996 and the first quarter of 1997 that Respondents do not claim that he failed to mitigate. However, on April 24, 1997, he accepted a full-time job with CWI, a recycling com- pany, as a heavy machinery operator operating heavy equip- ment on a loader to recycle metals, engines, oil, and anything that is not accepted at a landfill. Then he was trained to operate and did operate a wood grinder. He earned $9.25 per hour, worked a 40-hour week, plus 16–20 hours of overtime, which, Carranza testified, he had to work to meet his financial needs. He remained on the job for 3 years, until about March 14, 2000, when he decided to leave “because the job that I was doing as an operator, I was earning very little. I was trying to make a little extra money so it was something that I had to do.” Carranza had been earning, admittedly with 16–18 overtime hours each week, almost $3000 more than he would have had the Grosvenor not discharged him. In 1999, he made more. His decision to leave was not a good one. His attempt to obtain a better-paying job was not fruitful. After a half year of looking, he had found nothing; and he called CWI, looking to return to work there. Unfortunately, CWI, which had written him a stel- lar recommendation, had no openings; and Carranza’s further attempts to find a new job were not fruitful. Finally, CWI pur- chased a new wood grinder, and rehired Carranza on April 10, 2001. He continued to work at CWI through the remainder of the backpay period. I am convinced that Carranza made a good-faith and diligent attempt to find a better-paying position, perhaps not as much as once a week from March 14, 2000, as he testified, but enough to satisfy the Board’s requirements that he search for work. After all, the reason that he left CWI, as reflected in CWI’s letter of recommendation, was to pursue other opportunities; and I believe that Carranza was sincere in his desire to improve himself. That does not mean that he was free to leave his well- paying job (at least, well paying, $9.25 per hour, when com- pared to the $7.58 hourly rate he would have earned at the Grosvenor) and leave the bill with Respondents. The General Counsel contends that the Board does not require a discrimina- tee to retain interim employment unless it is substantially equivalent to the position unlawfully denied, citing Lundy Packing Co., 286 NLRB at 145, for the proposition that a dis- criminatee may quit an interim position for any reason if the position is not substantially equivalent to unlawfully denied position. He then argues that Carranza’s CWI position was not substantially equivalent to his former position with the Grosve- nor, because operating a wood grinder at a recycling plant in no way resembles supplying linens to room attendants (house- keepers) at a hotel; and, therefore, Carranza had no obligation to retain his position with CWI. Although I generally agree with the General Counsel’s ar- gument, it has a major difficulty: Carranza did not leave CWI to look for the kind of position that he had with the Grosvenor. Instead, the General Counsel correctly states that he searched for work at the Wal-Mart warehouse, the McLean Warehouse, and other employers that employed heavy equipment operators. So he left a well-paying job as a heavy equipment operator to obtain a better-paying job as a heavy equipment operator. This was a move purely for personal gain, without any compelling justification, and constitutes a willful loss of earnings. Glover Bottled Gas Corp., 313 NLRB 43 (1993), enfd. 47 F.3d 1230 (D.C. Cir. 1995), cert denied 516 U.S. 816 (1995); Shell Oil Co., 218 NLRB 87 (1975), enfd. mem. sub nom. Weitzel v. NLRB, 551 F.2d 314 (9th Cir. 1977), cert. denied 434 U.S. 920 (1977). I conclude that Carranza’s total backpay is $1,035.38, for the fourth quarter of 1996 only. G. Dorothy Collier Dorothy Collier was employed for 23 years by the Grosvenor as a laundry attendant. According to her Search for Work Re- port, she registered for work at the Department of Labor and Employment Security on October 13, 1996, interviewed with, was hired by, and began working part time for H & H Cleaning Services on October 14, 1996, and continued to search for work at 11 other employers, including 10 hotels, beginning on Octo- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1240 ber 18 and continuing through the remainder of the fourth quar- ter of 1996. From the fact that she was paid strike benefits dur- ing the same quarter, coupled with the fact that her job at H & H Cleaning Services was only part time, as reflected on her report, Respondents contend, first, that she picketed full time, a fact not in evidence, and, second, that she accepted part-time employment because “she preferred to walk on the picket line for far less remuneration than she would have received by ob- taining ‘substantially equivalent interim employment,’” a fact also not in evidence. Quite simply, although she was subpoenaed to testify by Re- spondents, and although she did testify, she never stated any- thing even remotely related to the facts advanced by Respon- dents. I reject their contention. I find no basis to find that her acceptance of part-time work was a willful loss of earnings. In fact, from her report, it appears that H & H Cleaning Services was the only employer that offered her a job. She mitigated her damages by continuing to search for a full-time position after accepting the part-time cleaning jobs within 2 weeks of being discharged by the Grosvenor. Be-Lo Stores, 336 NLRB at 950 fn. 1; United States Can Co., 328 NLRB at 348. Viewed in the context of the entire backpay period, her mitigation efforts clearly displayed reasonable diligence. Wright Electric, Inc., 334 NLRB 1031. In any event, Respondents did not meet their burden to prove that she did not mitigate her damages. I con- clude that she is entitled to the full amount of $3,324.19 for the fourth quarter of 1996, the only quarter that Respondents con- test, and that her full backpay is $5,611.55, as the compliance specification states. H. Ella Mae Davis Ella Mae Davis, a salad maker, was 62 years old when the Grosvenor discharged her and 70 when she testified. The com- pliance specification requests backpay only for the fourth quar- ter of 1966. Soon after, she retired. Respondents contend that Davis did not look for work, as evidenced by her Search for Work Report. However, she insisted that the report did not contain her handwriting; and I find that she did not prepare it. As for her search for work, Respondents’ brief relies on the fact that Davis testified that the only employer she “called” for a job was the Grosvenor. However, it ignores her testimony that she searched for work by going to “some places,” namely, she “went to two or three hotels.” Respondents make much of the fact that she also picketed extensively that quarter, but she testi- fied that she did not search for work during the hours that she was picketing (she picketed from the morning until 2 p.m., Monday to Friday). I believe her testimony and find that Re- spondents did not prove that she failed to conduct a reasonably diligent search for work in the fourth quarter of 1996. I find her backpay is $2,308.33, as stated in the compliance specification. I. Lindsey Day Lindsey Day, a steward, employed by the Grosvenor for 12 years, was 62 years old when he was discharged and about 70 when he testified. He made an application for employment to Disney World in November 1996 and was hired on December 12. He held this position throughout the remainder of the back- pay period. Respondents dispute only his claim for backpay of $2,029.37 for the months of October and November, and the first 9 days in December 1996, contending, based on different formulations, that Day should receive either $1,352.90 or, as amended in its reply brief, $351.46. As I held before, the Board looks at the entire backpay period, and here, except for the very beginning, 70 days, Day worked every quarter. From the be- ginning of 1998, he earned more than he would have earned at the Grosvenor, for which there is no backpay obligation al- leged. Respondents, however, question that one application is not enough to mitigate fully his damages. The record does not sus- tain its assumption that Day made only one application. When asked whether he listed in his Search for Work Report all the places that he looked for work, Day answered: “Well, I have found all the papers that I found, and I didn’t know what I done with those papers. So, I couldn’t put it down because I put the papers I don’t know where.” That indicates that he looked for employment at more than just Disney World. So does his an- swer to another question: “Well, that’s when I was hunting for a job and I was walking [on the picket line] because I just never got much funds.” So, he was picketing at the same time that he was looking for employment. He was not, as Respondents con- tend, picketing exclusively, leaving himself unavailable for work at a substantially equivalent job. On the basis of this record, I conclude that Respondents did not meet their burden of proving that Day did not mitigate. I conclude, therefore, that he is owed backpay of $4,935.73, as the compliance specification states. J. Carlos Delgado Carlos Delgado, a houseman, searched for work at the Caribe Royal on October 10, 1996, and registered for work at the hir- ing hall operated by the International Brotherhood of Team- sters, Local 385, AFL–CIO (Teamsters) in Orlando on October 11, 1996, as well with IATSE. He obtained some work that fourth quarter from IATSE, but apparently very little, or at least he accepted very little, because his earnings totaled only $224.55. Respondents contend that what Delgado was doing that quarter was picketing full time and not making an earnest effort to obtain employment. IATSE work, however, was not steady, at least for new hires. A typical convention contractor requiring 50 IATSE referrals would be filled with about 40–45 journeymen, and the rest would be split between new hires and helpers. When a contractor needed an employee, IATSE con- tacted the next person on the referral list, by cell phone or beeper. If the employee failed to respond within 60–90 minutes, IATSE contacted the next person on the list. The referral list consisted of about 700–900 employees, of whom 200 were journeymen, and rotated with each referral. So, if an employee missed a call, the union would go through hundreds of other employees before returning to that employee, taking some 3–4 weeks. GROSVENOR RESORT 1241 There were several reasons why one employee on the list might work far more hours than another employee on the list, although both started with the same seniority and qualifications. One of them may reject more jobs, one may be harder to con- tact, one may be referred to work outside the decorating field; and one may be specifically requested by a contractor even though he was not next on the list.18 Although discriminatee Paschal earned $1,034.38 in 1996, others, such as Carranza and Rankin, earned less from IATSE than Delgado. In light of the fact that new hires do not obtain steady work, that their assign- ments are sporadic and the length of them a matter of luck, and that the convention business slows during the holiday season, I find that he reasonably mitigated his damages and will credit him with the entire claim of $2,843.44 for the fourth quarter of 1996. The compliance specification excepts the first, second, and fourth quarters of 1997; and Respondents contest Delgado’s claim that he searched for work in the third quarter of that year. His Search for Work Report shows that he searched for work at six employers during that quarter, and he testified that during this and the first two quarters of 1998, he also searched at a liquor store, Auto Zone, and Regal Boats, which hired him, but he worked there only 1 day because the resin hurt his eyes. That is a substantial search for employment. Delgado was not with- out work in the third quarter, all of it coming from IATSE; but Respondents complain that the amount of work was not enough, that others were receiving far more than Delgado. However, Delgado took himself out of the labor market for most of 1997, for which no backpay claim has been made; and, I infer, remained at the bottom of the list of IATSE referrals. Thus, his low amount of work was understandable, and he should not be punished for it. I find, therefore, that he mitigated his damages during that quarter, for which the full amount of $2,018.74, as alleged in the compliance specification, is owing. With Delgado again not working in the fourth quarter of 1997, his lack of work in the first and second quarters of 1998 becomes troubling. There was a sufficient showing that he searched for work in the third quarter of 1997, and he did some work for IATSE-contracted employers then; and he applied for work to six employers in the first quarter of 1998 and another five in the second, during which he finally obtained employ- ment, about which more, below. But what happened to IATSE? I find it most unlikely not only that he was not called for work but also that he was called for work, and accepted nothing. He was simply out of the market for a while; he was not interested in work; and the applications were either not made or were a charade to make it appear that he was looking for work, when he was not. I find that he is entitled to nothing in the first two quarters or 1998. 18 In addition, as of July 1, 1997, IATSE Local 835 was chartered to service the trade show industry in Orlando. The record, however, does not make clear whether any of the discriminatees were affected by this change. Contrary to the position of Respondents, which is based on the fact that his social security statement does not show any employment with American Diversified Services, I find that he did work for that employer, beginning on June 23, 1998, for 3 days per week through the first quarter of 1999. Delgado wrote this on his Search for Work Report and had no reason to lie about it, because his interim earnings would be deducted from any backpay due. He also testified that, during the first two quarters of 1997, he worked part time, 2 to 4 days per week, about 3 to 6 hours each day, at Diamond Transportation, al- though he did not report such earnings to the Board, nor pre- sumably to the Internal Revenue Service, because the amounts were not reflected on his social security statement. From his employment with both American Diversified Services and Diamond Transportation, it appears that Delgado was more interested in part-time employment, rather than a full-time job. Even when he finally changed jobs and began working for Disney World on March 6, 1999 (he applied for it on February 20, 1999), where he remained throughout the remainder of the backpay period, he worked part time, at least as late as the third quarter of 2000. In most of the quarters, he earned more from Disney World in his part-time position than he would have, had he worked for the Grosvenor full time. Respondents do not object to the backpay claim of $73.53 for each quarter of 2000. Had Respondents produced their payroll records showing that Delgado worked 40 hours each week, I would have found that he did not mitigate his damages, because he did not seek full- time employment in the last two quarters of 1998. Mastro Plas- tics Corp., supra, 136 NLRB at 1347. However, because I can- not compare the hours that Delgado worked then with the hours that he worked for the Grosvenor, I find that Respondents did not meet their burden of proving that Delgado did not mitigate his damages. Accordingly, I will deduct from the compliance specification the backpay claimed for the first two quarters of 1998, a total of $6,612.34; and I conclude that Delgado is owed the remainder, $7,015.79. K. Enoch Deneus In light of Respondents’ failure to challenge the compliance specification’s calculations of the backpay due to Enoch Deneus,19 I conclude that the backpay amount is $9,659.27. L. Oslaine Desir Oslaine Desir, a room attendant, first searched for work at Disney World in December 1996 and was hired at Disney World on January 3, 1997. She was discharged 2-1/2 months later, on March 22, 1997, having missed almost a week due to illness, albeit with permission from her employer, while still in her probationary period. Her next job, at Embassy Suites, started on May 1, 1997, and ended in early 1998, when she left to go to work for Preferred Brands, because she was not work- 19 Respondents do challenge the failure to deduct the strike benefits as interim earnings. I have previously ruled that the benefits are not earnings. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1242 ing enough hours. There, she worked off and on until 2001, putting salads into bags, placing the bags into boxes, and clos- ing the boxes. In 1999, she left the Orlando area to travel to Denver, Colo- rado, where she had a cousin. Desir worked for one employer there, where she earned $1,304.33, and then returned to her job at Preferred Brands. She was briefly laid off by Preferred Brands (then called Preferred Fresh Foods) and worked for La Quinta Inn late in 2000, but soon left there when she was re- called by Preferred Fresh Foods in 2001. She was again laid off by Preferred Fresh Foods in about September 2001, at the time of the World Trade Center tragedy; and she searched for work in Orlando but could not find a job. (Respondents admit that there was a drop of job opportunities following the 9/11 events.) She then moved back to Denver to find work because she could not find work in Orlando. She worked for McDon- ald’s at the Denver airport from late August through early Oc- tober 2002 and for a hotel for 3 days in October, but left be- cause of an injury. She testified that she missed her children, who were still in Orlando, so she moved back to Orlando at around Christmas 2002. Respondents object that Desir, for whom the first and second quarters of 2002 were excepted from the backpay period, is also not entitled to any backpay for the fourth quarter of 2001 and the third and fourth quarters of 2002. In other words, Respon- dents’ claim is that Desir did not look for work at all from Oc- tober 2001 to the end of the backpay period. The record, how- ever, makes clear that she worked at McDonald’s; and when asked what she did from the time she lost her employment at Preferred Fresh Foods to the time that she obtained employ- ment at McDonald’s, she testified that “it was very difficult to find a job.” She added that she kept on looking for work, but could not find any. That was the reason that she moved to Den- ver. Respondents emphasize that Desir could not recall even one place that she looked for work (“Oh my God, I can’t remem- ber”) and thus, contend that she did not look for any; but her power of recall was not exactly what all people might want, being unable when she first testified to recall her own address. Despite her failure to recall clearly, I am convinced by her sin- cerity as she testified that she was not fabricating. (“But I really looked for work. And after looking a lot of works over here I could not find, that’s the reason I went to Denver, to see if I could find some work. . . . And my cousin told me I would find work in . . . Denver.”) She could not find work in the fourth quarter of 2001, and I will not exclude it. Having observed Desir as she testified, I find it neither unusual nor suspicious nor remarkable that Desir could not recall the details of her search for employment in 2001. United Aircraft Corp., 204 NLRB 1068, 1068 fn. 4 (1973). I also conclude that she continued to search for work when she was in Denver and did, in fact, find work in Denver in the third and fourth quarters of 2002. Respondents contend that the work was minimal, but I find that it was the best that she was capable of obtaining, ending only in October, when she injured her finger at Loews, an event that does not disqualify her from receiving backpay. American Mfg. Co., 167 NLRB 520, 522 (1967). When she moved back to Orlando, albeit for personal reasons, she continued searching for work for the remainder of the backpay period, finally obtaining a job 10 days after the backpay period ended. I reject Respondents’ contention that she should be denied backpay for these last two quarters. I con- clude, therefore, that Desir is entitled to backpay in the sum of $22,356.44, as stated in the compliance specification. M. Aida Febles Aida Febles, a room attendant, unsuccessfully applied to work at the Royal Plaza on September 30, 1996, but her appli- cation to the Embassy Suites on November 22, 1996, was suc- cessful. She worked there until June 17, 1997, when she was hired by Disney World, where she remained for the remainder of the backpay period. Respondents’ claim that she should be denied backpay for the fourth quarter of 1996 has already been rejected. The Board does not require that she look for work immediately; she did, in fact, look for work on the day that she was fired and, again, within 2 months of the date of her dis- charge, and her work record for 24 quarters, upon being hired by Disney World, was continuous. Wright Electric, Inc., 334 NLRB 1031. While working at Disney World, Febles took a medical leave of absence from May 20, 2001, until she returned to work on July 17, 2001, a total of 57 days; and she received no wages during this period, but received disability payments beginning 28 days after the commencement of her leave. Respondents contend that, while it did not offer short-term disability benefits to its employees, employees could use paid time off, such as vacation or sick days, to compensate them during their leave. Given Febles’ 1987 hiring date at the Grosvenor, she would have qualified for “three weeks plus another two weeks and a day of personal time,” or 36 days of paid vacation.20 Respon- dents then subtract these 36 days (paid time off) from the 57 days she was out on medical leave and contend that she is not entitled to 21 days, or 3 weeks, of backpay during the period she was out on medical leave in 2001, relying on Superior Ex- port Packing Co., 299 NLRB 61, 65 (1990). Respondents’ argument is premised on the fact that Disney World’s disability payments were not already credited to Febles as interim earnings. During the hearing, counsel for the General Counsel raised the possibility that these payments had already been deducted as interim earnings, and I suggested that the parties should try to find out. That was the last that I heard of the matter; no further evidence was produced on this issue. Respondents bear the burden of proving facts that would elimi- nate or mitigate liability to Febles. NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). That includes the 20 The General Counsel argues that Febles would have had more than 10 years of seniority as of 2001 and would have been entitled to 4 weeks of paid vacation, as well as 11 paid personal days, for a total of 31 paid days. For the purpose of my conclusion of law, it is unneces- sary for me to resolve this conflict. GROSVENOR RESORT 1243 amount and nature of her interim earnings. Id. Because Re- spondents failed to produce evidence that her interim earnings did not include her disability payments, I assume that the pay- ments were included. In any event, doubts and uncertainties are to be resolved against the wrongdoing Respondents. United Aircraft Corp., 204 NLRB at 1068. I, therefore, find that no reduction in her backpay is warranted and conclude that Re- spondents owe her $12,452.92 as backpay, as the compliance specification states. N. Maria Gillaspie Respondents do not contest the compliance specification’s calculations concerning Maria Gillaspie.21 I conclude that she is owed $5,067.53. O. Deborah Goodman Deborah Goodman applied for work at seven employers be- tween November 14 and 22, 1996, and was hired at the Em- bassy Suites on November 29, 1966. She worked there, accord- ing to her Search for Work Report, until December 22 or 23, 1996. On January 1, 1997, she either applied for a job at Disney World or was accepted for employment, started there on Janu- ary 22, 1997, and worked there through the rest of the backpay period. Respondents dispute her claim, unlike Febles, only for the period September 30 through November 14, 1996, agreeing that, beginning on November 14, “she made a reasonably dili- gent effort” to find employment. I reject Respondents’ position that she had a duty to apply for interim employment before then, for the reasons already stated in rejecting its similar posi- tion regarding Febles. I thus conclude that the correct backpay owed to Goodman is as stated in the compliance specification, $15,797.39. P. Israel Hernandez Israel Hernandez, a houseman, registered for work at IATSE on November 21, 1996, and was referred for work on Novem- ber 24, 1996. He continued to work for various employers through IATSE’s referrals regularly for the remainder of the backpay period. Respondents dispute his claim for the period September 27,[?] through November 24, 1996, based on his failure to mitigate damages during this period, to wit, that he submitted only the single application for work referrals to IATSE during the fourth quarter of 1996 and made no other applications for work. For the reasons previously stated, I dis- agree. I note that, through IATSE, Hernandez received $10 per hour, 45-percent higher than his wage of $6.90 when he was discharged by the Grosvenor. Although it was difficult to ob- tain attractive work, new hires received raises after every 250 hours; and he stayed with IATSE throughout the entire backpay period, increasing his pay and work opportunities throughout the following 24 quarters and earning in the last 20 quarters more than he would have earned, had the Grosvenor not fired 21 Respondents do challenge the failure to deduct the strike benefits as interim earnings. I have previously ruled that the benefits are not earnings. him. Thus, his early employment, although not as much as Re- spondents may have appreciated, resulted in the reduction of Respondents’ backpay obligation. I conclude that Respondents’ objection is not well founded, and Hernandez is entitled to the entire amount of $5,255.46, as stated in the compliance specifi- cation. Q. Lidia Hernandez Lidia Hernandez, a room attendant, applied for work at Dis- ney World in November 1996 and began work as a house- keeper on December 7, 1996. She earned only $418.80 that fourth quarter, and Respondents object to the compliance speci- fication’s claim that she is entitled to backpay for that quarter, based on her “obvious” failure to mitigate damages. I reject Respondents’ position for the reasons previously stated. She applied in November and maintained, with certain exceptions, her employment at Disney World throughout the backpay pe- riod. In addition, I note that she did not search elsewhere for the justifiable reasons that she did not drive and had no transporta- tion. The Union took her to make her application, and she could walk to her job at Disney World. A discriminatee should not be disqualified if transportation problems limit her search for work. Respondents also contend that Hernandez is not entitled to backpay for the last 3 weeks of the fourth quarter of 1999, through the entire first quarter of 2000, and into the second week of the second quarter of 2000 (December 7, 1999, to April 15, 2000) because she was discharged for being late nine times and for leaving a key in the door of a room. This is not enough. As the Board held in Ryder System, Inc., 302 NLRB 608, 610 (1991), enfd. 983 F.2d 705 (6th Cir. 1993): The Board has consistently held that discharge from interim employment, without more, is not enough to constitute willful loss of employment. P*I*E Nationwide, 297 NLRB 454 (1989), enfd. in pertinent part 923 F.2d 506 (7th Cir. 1991), and cases cited therein. A respondent must show deliberate or gross misconduct on the part of the discharged employee in order to establish a willful loss of employment. Here we find that the Respondents failed to show that Larry Elmore’s con- duct fell within that standard. Elmore may have missed sev- eral scheduled deliveries, but he committed no offense involv- ing moral turpitude and his conduct was not otherwise so out- rageous as to suggest deliberate courting of discharge. With- out such proof, Elmore’s discharge from ATS will not serve as a basis for tolling his backpay. [Footnotes omitted.] I do not consider that her conduct deliberately courted dis- charge. Nor, apparently, did Disney World, which reinstated her, without backpay, and where she continued to work throughout the rest of the backpay period. Accordingly, I con- clude that Hernandez is entitled to the full amount of the back- pay sought in the compliance specification, $15,983.64. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1244 R. Betty Jackson Respondents do not contest that $14,789.40 is correctly due Betty Jackson as backpay, as set forth in the compliance speci- fication.22 I so conclude. S. Mollie Jackson Mollie Jackson, a room attendant, was 68 when discharged, had hurt her foot in a car accident before the strike began, had surgery on her foot in the fourth quarter of 1997, which quarter was excepted, and thereafter withdrew from the job market. She had some self-employment income during the fourth quarter of 1996 and during 1997, which has been deducted from her gross backpay. In light of Respondents’ failure to oppose the backpay figures set forth in the compliance specification, I conclude that she is owed $10,274.61. T. Flor Javier Flor Javier, a room attendant, was hired by Disney World in November 1996,23 started on December 7, 1996, and worked there for the remainder of the backpay period. Respondents dispute her claim for the fourth quarter of 1996, based on her failure to mitigate damages during this period. For the reasons expressed above, and particularly noting that she worked every quarter of the backpay period, I reject Respondents’ position. Wright Electric, Inc., 334 NLRB 1031. I conclude that her backpay is $12,254.20, as stated in the compliance specifica- tion. U. Margarita Jimenez Like Javier, Margarita Jimenez was hired by Disney World in November24 and started on December 7, 1996. For the rea- sons expressed above, and for the same reasons stated in my discussion of Javier, I reject Respondents’ objection to her failure to search for employment until November. I conclude that her backpay is $22,365.01, as stated in the compliance specification. V. Jules Josaphat Jules Josaphat was already employed by the Grosvenor as a lobby attendant when he obtained a second job as a steward at the Hyatt in 1989. He worked for both continuously since then, working for the Grosvenor from 7 a.m. until 3:30 p.m., then showering and driving 10 minutes to the Hyatt, where he 22 Respondents do challenge the failure to deduct the strike benefits as interim earnings. I have previously ruled that the benefits are not earnings. 23 Javier was not asked when she applied for the job. One of her Search for Work Reports shows that she was told in December that the All Star Resort, a Disney World hotel, was hiring and to wait for a call; a second shows that she was hired in November. I have chosen to credit the latter report, relying on the advice of United Aircraft Corp., 204 NLRB at 1068, that doubts, uncertainties, and ambiguities are to be resolved against the wrongdoing Respondent. 24 Her two Search for Work Reports for the last quarter of 1996 are almost identical to those of Javier, even including the handwriting. I make the same factual finding as in fn. 24. worked from 5 p.m. to 1 a.m. (from 4 p.m. to midnight after the Hyatt changed his schedule during the backpay period). From the time that he was fired, through 1997, Josaphat did not work at any job during the hours that he had worked for the Grosve- nor. He picketed, and the only money he received, other than from the Hyatt, was strike benefits. Respondents object that it has any backpay obligation for that period. I disagree. Josaphat credibly testified that, when he first started picketing, he looked for a job, but some employers did not even accept applications, so he did not report them on his Search for Work Reports. Later, he learned that he should have written them on his reports, and he did so. I find, then, that he did search for work in the first two quarters after he was dis- charged, even though he could recall the names of only two employers that he went to, that he made applications at Disney World in November 1996 and Westgate Village in January 1997, and that he applied for work at seven employers in the second quarter of 1997 and five employers in the third quarter of 1997, including at least one application each month during these quarters. I also find truthful that he registered with both the Teamsters and IATSE in October 1996. Although he registered with the two unions, he seems to have had no interest in doing that work. He worked at not one job for IATSE, which the record shows was sending people out for jobs. But he should not be penalized for not accepting what was admittedly very spotty work, not completely similar to his prior work as a lobby attendant. Respondents rely on the fact that, 4 days after the Union called off its strike, about January 8, 1998, Josaphat applied for and was hired by Riutel Orlando, Inc., where he began working on January 18. Then, he cut back his work at Hyatt to accommodate the fact that he was again working two jobs. This, Respondents contend, demonstrates that Josaphat was not willing to work while the strike was go- ing on. However, he made applications for work in each quarter through the third quarter of 1997. That he made none in the last quarter is not significant. As the Board stated in Cornwell Co., 171 NLRB 342, 343 (1968): A discriminatee who has otherwise made reasonable efforts to seek out new employment is not required in each specific quarter to repeat job applications which from her past efforts she knows are foredoomed to futility in order to protect her claim of backpay for that particular quarter. Rather, the entire backpay period must be scrutinized to determine whether throughout that period there was, in the light of all surround- ing circumstances, a reasonable continuing search such as to foreclose a finding of willful loss. Here, Josaphat was employed commencing in the first quar- ter of 1998 and throughout the remainder of the backpay pe- riod. Respondents had the duty to show that Josaphat did not seek full-time employment. They did not prove that any of the employers to whom Josaphat made application actually offered him a full-time position that he refused. Barring that proof, I will deny Respondents’ claim that he failed to mitigate through 1997. Furthermore, his successful application in January 1998 GROSVENOR RESORT 1245 to Riutel Orlando is sufficient to grant him full backpay for that quarter, and I will not exclude the first 18 days, as Respondents request. However, Respondents are entitled to some setoff. Respon- dents do not dispute the legal proposition, espoused by the General Counsel, that earnings from a supplemental job that a discriminatee held before the unlawful discharge and main- tained afterward are not deductible from gross backpay as in- terim earnings. But, here, because Josaphat could not obtain interim employment to replace the loss of his job at the Gros- venor, he increased his hours of work at the Hyatt during 1997 to cover his loss of income from the Grosvenor. The additional income from Hyatt, $4,777.36, albeit from a second job, is directly attributable to his effort to obtain earnings and make up what he had lost when he was discharged by the Grosvenor. Accordingly, it should be added to his 1997 interim earnings. His interim earnings for the year 1997 will therefore be in- creased $1,194.34 per quarter, and his net backpay will be re- duced to the sum of $1,449.66 each quarter. Respondents do not otherwise dispute Josaphat’s backpay for the remainder of that quarter through part of the third quarter of 2001, but note that, beginning in September 2001, according to his own admission, he voluntarily eliminated 1 day of his work at Riutel Orlando, reducing his hours one-fifth each week, and his reduced hours continued through the remainder of the back- pay period. Josaphat testified that he reduced his hours because he was just working too hard, that he did not want to work that hard anymore, and that working the two jobs had become too difficult for him at his age (he was then about 61). At a result of his reduction of his interim employment without compelling or justifying means, Respondents contend, relying on KSLM-AM & KSD-FM, 275 NLRB 1342, 1343 (1985), and Medline Indus- tries, 261 NLRB 1329, 1332 (1982), that his claim for backpay starting in September 2001 through to the end of the backpay period should be denied. The General Counsel contends that, even though Josaphat reduced his hours, he averaged 23.8 hours in 2001 (rounded up to 24), and 26 hours in 2002 and, thus, would have retained full-time status had he been working for the Grosvenor in 2001 and 2002, because its collective-bargaining agreement, which it unilaterally imposed on the Union in violation of the Act, con- ferred regular status on unit employees who worked a regular schedule of 24 to 40 hours. That, however, did not establish the workweek of an employee. I agree with Respondents’ conten- tion that the definition of “full-time” employee in the Grosve- nor’s handbook is simply the Grosvenor’s cut-off point for receipt of certain benefits, such as healthcare coverage, and has nothing to do with Josaphat’s obligation to mitigate. Whether he would have retained full-time status at the Gros- venor makes no difference. The General Counsel did not com- pute its gross backpay claim of the basis of anything but Jos- aphat’s 1996 gross wages, earned prior to his discharge. It was Josaphat’s obligation to mitigate his damages at a job that was substantially equivalent to the job that he held at the Grosvenor. Josaphat never worked a full 5-day week, 8 hours each day for Riutel Orlando. He averaged 35 hours a week in 1998 and 31 in 1999 and 2000. His hours in 2001 represented a reduction of 24 percent from the prior year; and his hours in 2002 constituted a reduction of 17 percent from 2000, an average for the 2 years of about 20 percent, which is what Josaphat said was his reduc- tion. It may be justifiably argued that Josaphat should not be re- warded by his decision to work less and that Respondents should not be charged for Josaphat’s determination that it was becoming too hard for him to work two full-time jobs. It may be argued with equal force that he should have reduced his work at his second job with Hyatt, rather than Riutel Orlando. On the other hand, Respondents’ failure to produce the Grosve- nor’s payroll prevents me from comparing what hours Josaphat worked at Riutel Orlando with his hours at the Grosvenor. He may have worked more at his interim employment than he did at the Grosvenor. Accordingly, Respondents have not met their burden of proving that, by reducing his hours, Josaphat did not mitigate his damages. I decline to reduce his backpay from September 2001 to the end of the backpay period. I conclude, in accordance with the foregoing, that the total backpay owing to Josaphat is $33,135.01. W. Therese Josaphat Respondents object to almost all of the backpay claim of Therese Josaphat, a room attendant and the wife of Jules Jos- aphat (Jules). First, Respondents claim that she is entitled to nothing for the fourth quarter of 1996 because she applied for employment to only one employer, Disney World, in Novem- ber. In fact, according to her Search for Work Report, she also registered for work with IATSE and the Teamsters in October. In addition, because she understands far less English than Jules, he filled out the reports for her. He apparently made the same errors of omission for her that he did for himself, omitting from her reports the occasions that she went to employers, at least two of whom she named, to seek employment, only to be told that there was none available, so they did not give her an appli- cation to fill out. In accord with my prior ruling, she made a sufficient attempt to obtain interim employment; and I reject Respondents’ objection, noting that she was employed through- out the entire remainder of 24 quarters of the backpay period. Wright Electric, Inc., 334 NLRB 1031. However, Respondents do not even agree that her consistent employment evidenced a good-faith attempt to obtain a job. Rather, they take issue with the claim for 1997, first, on the ground that she received strike benefits for “walking on the picket line for far less remuneration than she would have re- ceived by obtaining ‘substantially equivalent employment.’” However, in light of the fact that the Union paid its strike bene- fits for merely appearing at the picket line, but not based on the actual time spent there, she performed no work at the picket line and received no wages. The second reason that Respon- dents contend should bar her from receiving backpay is that she made too few applications for work. She, however, in addition to those to whom she made applications in the last quarter of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246 1996, searched for work at three employers in January, four more in February, and two more in March 1997. At one of them, she applied a second time. She made two other applica- tions in each of the following 2 months, one of them for a sec- ond time, and credibly testified that she continued looking for work throughout 1997 because she was not satisfied with the number of hours she was working at the two jobs she obtained that year at the Host Marriott (a joint venture with the Orlando Arena), in April, and the Royal Plaza, in May. With that em- ployment, together with her applications for work, Josaphat exercised reasonable diligence in seeking employment in 1997. Respondents next contend that she did not mitigate damages in 1998, because on December 28, 1997, she quit her part-time job with Host Marriott for, according to a personnel action form subpoenaed from the employer, “personal reasons.” She testi- fied, however, that she was dismissed because there was “not enough work.” I credit her testimony. The Host Marriott docu- ment is unreliable, because it was dated on April 24, 1998, reflecting, allegedly, a personnel action taken almost 4 months before. I specifically made known my qualms about the docu- ment and indicated to Respondents’ counsel that, if he wanted to affirmatively prove that she quit, he should produce someone from Host Marriott. He did not do so. Having lost her job there, Josaphat had only her position with the Royal Plaza, for whom she worked at least 24 hours per week, sometimes 26, some- times 30. When the hotel was busy, she worked 8 hours per day, but it was not busy all the time. Respondents contend that she failed to mitigate her damages by not looking for a full 40-hour workweek, such as the one that, it claims, she had when she was employed by the Grosve- nor; but, as I held above, I infer that she did not have a full-time job. Furthermore, even had Respondents proved that the Gros- venor employed her regularly for 40 hours each week, I find that she did the best that she could. She had reasonably stable employment that often, even though hers seems to be a part- time job, required her to work full-time hours. I will not deny her claim for backpay for 1998. Similarly, I reject Respondents’ contention that Josaphat is not entitled to any backpay for the remainder of the backpay period. From the time that she began to work for the Plaza Hotel, she earned as much as 90 percent, and no less than 82 percent, of what she earned had she re- mained at the Grosvenor. I will not, as a matter of law, find that she had a duty to seek employment that resulted in relieving Respondents of their gross backpay obligation. Acceptance of interim employment that is only part time, or pays less than her former employment, does not necessarily establish that a dis- criminatee incurred a willful loss. Associated Grocers, 295 NLRB 806, 810 (1989). Furthermore, as noted above, the Board has held that a discriminatee who accepts suitable in- terim employment, even at a lower wage, has no continuing duty to search for a more lucrative job. F. E. Hazard, Ltd., 303 NLRB 839; Sioux Falls Stock Yards Co., 236 NLRB at 570. I conclude that Josaphat’s backpay is $21,093.98, as stated in the compliance specification. X. Dorzelia Joseph Respondents do not contest the backpay claim of Dorzelia Joseph.25 I conclude that her backpay is $11,517.38, as stated in the compliance specification. Y. Paul LeBlanc By the time of the hearing, discriminatee Paul LeBlanc, a bellperson, had died. Respondents contend that he should not receive any backpay for October, because he did not apply for a job in that month. Respondents’ factual premise is correct, but omits that he applied to three employers in November, as well as registered with IATSE, because he worked for three exposi- tion companies, beginning on November 24, 1996. I have pre- viously ruled that a discriminatee who commences a search for interim employment within the last quarter of 1996 should not be denied backpay, particularly where, as here, LeBlanc worked continuously throughout the backpay period, until the final nine weeks of 1999 and the portion of 2000 before his death, which the compliance specification excepts. Wright Electric, Inc., 334 NLRB 1031. I conclude that his estate is entitled to backpay of $2,956.70, as stated in the compliance specification. Z. Adisseau Louisius Adisseau Louisius, a houseman, applied to work at Disney World on December 3 and was hired on December 7, 1996. He initially washed dishes but was transferred on December 28, 1996, to scrubbing frying pans with his hands, work that he told his supervisor he could not perform, and he was fired. In so finding, I give no weight to documents from Disney World to the effect that Louisius told his employer that he was “not a dishwasher” and walked out. First, the statement was hearsay. Second, Louisius denied making that statement. Third, he had been a dishwasher for the Grosvenor for 6 years, prior to be- coming a houseman; and I find it unlikely that he would have made any such statement. Fourth, he had been washing dishes for Disney World for 20 days, and I find it unlikely that he would have made such a statement at that point of his employ- ment. Accordingly, I find that he left for the reason that his employer changed the nature of his work. That does not compel the conclusion that he should be denied backpay for the quarter, as Respondents suggest; and Respondents did not establish a willful loss of earnings or gross misconduct. La Favorita, Inc., 313 NLRB 902, 903–904 (1994), enfd. mem. 48 F.3d 1232 (10th Cir. 1995). It is equally well settled that a discriminatee does not incur a willful loss of earnings by quitting an interim job for a justifiable reason. Florida Steel Corp., 234 NLRB 1089, 1092, 1094–1095 (1978), enfd. mem 598 F.2d 615 (4th Cir. 1979); Mastro Plastics Corp., 136 NLRB at 1349–1350; East Texas Steel Castings Co., 116 NLRB 1336, 1347 (1956), enfd. 255 F.2d 284 (5th Cir. 1958). 25 Respondents do challenge the failure to deduct the strike benefits as interim earnings. I have previously ruled that the benefits are not earnings. GROSVENOR RESORT 1247 He next obtained employment at the Ramada Inn on January 4, 1997, but his employment ended on January 24, 1997, be- cause the employer used a labor pool to supply workers, caus- ing Louisius to be placed in a different position for which he was not qualified. In March, he was hired by the Hampton Inn, but laid off 2 weeks later because work was slow. A document in his file contains a handwritten statement and a check stub, apparently from the Hampton Inn, contains handwriting: “Who This Concern I Adisseau Louisius Left Job Because Because was Told To do Something that I wasn’t Told to do. Like Clean up shit.” Louisius cannot read, did not write this statement, and did not know who did. His cousin’s child translated for him in filling out his Search for Work Reports. Although I find the Hampton Inn document more than suspicious, it is more unreli- able than his own denial, which I credit. Even if I did credit the writing, his voluntary leaving the position would not, in any event, excuse Respondents from paying him backpay, because there is on the face of it some justification for his voluntary quit. After he left the Hampton Inn, Louisius searched for work at two employers in April, two in May, and three in June 1997 and yet some others, including the Sheraton and a hotel behind the Sheraton. He next worked at the Holiday or Ramada Inn from July 18 until August 13, 1997, when he, according to his Search for Work Report, was laid off because of “No Hours.” He searched again for work at three employers in September. (The fourth quarter of 1997 was excepted from the backpay period.) When the picketing ceased in early January 1998, he searched for work at a hotel in Sea World, the Sheraton, the Marriott, and another employer in Lake Buena Vista. (His last Search for Work Report was filed for the third quarter of 1997.) He next worked for the Westside Inn & Suites, starting May 4, 1998; and he also started working for the Sizzler Restaurant in mid-May, where he was trying to obtain a position on the night shift. When that was unsuccessful, he quit Westside on June 7, 1998, to work full time at Sizzler because it paid $6 per hour (he later received a raise to $6.50), while Westside paid $5 per hour. But, again, on February 7, 1999, he quit, this time be- cause a new supervisor had reduced his schedule from 40 hours to only 5 hours each day. After he left, his child in Haiti became sick, so Louisius trav- eled there to take care of him; but his child died. He returned to the United States and started work on March 4, 1999, at Lott’s Concrete Products, Inc., making cement blocks, but quit on July 14, 1999, because he found it too difficult to “pack” the blocks. On August 13, 1999, he began working for J.F.A. Masonry Concrete, Inc. and remained in that position until November 4, 1999. He worked at yet other employers that year: Ronald Earl Kindell, P. H. Freeman Sons, Inc., Contract Personnel, Inc., and Creative Staffing Services, Inc. He moved to North Carolina in December, 1999 and worked for Food Lion for the rest of the backpay period. Respondents complain that Louisius was willfully idle dur- ing a number of periods when he was unemployed. The first period is from September 27 to December 2, 1996, prior to his application to Disney World, but I am not convinced that this is so. His Search for Work Reports were filled out by Fabian, who testified that, when a discriminatee told her that he or she ob- tained employment, she would fill in only that successful appli- cation and the fact of employment and would not report any other applications. Louisius credibly testified that he also looked for a job in mid-November; so, in accord with my prior ruling, I will not exclude this initial period of unemployment immediately following his discharge by the Grosvenor. I note that, although Louisius’s employment record is spotty, filled with gaps because of his dissatisfaction with his jobs or his employers’ changes of work assignment, Louisius steadily tried to obtain employment and looked for work that would provide him with a living. He is credited with interim earnings for every one of the quarters of the backpay period. The second period is 5 or 6 weeks from January 25 to early March 1997, after he was discharged from Disney World, when he refused to scrub pans with his bare hands. That was, as I held above, not gross misconduct; and he again looked for work. La Favorita, Inc., 313 NLRB 902, 903–904. His reason for leaving the Ramada was that he was not qualified for the job and, thus, I infer, could not perform his assignments. That, similarly, is not gross misconduct. Id. For almost 4 months, from late March to July 18, 1997, he had no work, but that resulted from the fact that he was laid off by the Hampton Inn. He did not quit. He left the Sizzler in February 1999, because the employer reduced his workweek. He left Lott’s Concrete because he found the job too difficult. I reject Respondents’ contention that I should pick out these periods of weeks and sometimes as much as several months and reduce Respondents’ backpay liability. The Grosvenor fired him, and he should not be blamed for the fact that he could not find a suitable replace- ment for what he had lost by reason of the Grosvenor’s viola- tion of the Act. The only period for which Respondents might have had a justifiable claim was in February 1999, when Louisius traveled to Haiti for about 3 weeks to care for his son, who passed away. But Respondents are liable for that period, too. Under the Grosvenor’s handbook, because he had been employed for 9 years when the Grosvenor discharged him, he would have had more than 10 years of seniority in 1999, and, thus, been entitled to 4 weeks of paid vacation, 11 paid personal days, and 5 paid bereavement days for a funeral outside Florida. Thus, the Gros- venor would have been obliged to pay him for these 3 weeks, and I will not exclude them from the backpay period. I con- clude that Respondents owe Louisius backpay in the sum of $24,485.86, as stated in the compliance specification. AA. Martin Malagon The compliance specification states that Martin Malagon is entitled to $74,304.62 as backpay. Malagon had worked as a full-time banquet server for the Grosvenor since Respondents purchased the facility in 1986 and had been the banquet man- ager for the prior owner for 6-1/2 years. He was 69 years old when the Grosvenor discharged him. The compliance specifica- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248 tion excepted the third and fourth quarters of 1998 and 2000 and the rest of the backpay period commencing with the first quarter of 2001, when he withdrew from the job market. The General Counsel has proved that Malagon had surgery in early 1998 and was unable to work for 2 weeks. However, because of his seniority with the Grosvenor, he would have been entitled to 4 weeks’ paid vacation and 11 paid personal days; so that would have covered this brief period of disability, which I will not exclude. Respondents oppose Malagon’s claim on the ground that he did not adequately apply for jobs and that he did not pursue available jobs. I found Malagon to be honest and sincere and have credited his testimony. Thus, I find that he applied for positions as a banquet server at the Hotel Royal Plaza in No- vember 1996 and Disney World in December, where he was hired as an on-call banquet server at the Disney Institute, be- ginning December 10, 1996. In early January 1997, he also applied for work at the Radisson Twin Towers and was hired there as an on-call banquet server on January 13, 1997. In the same quarter, he also inquired into positions at a Holiday Inn and another Radisson, as well as other hotels that he could not recall, but none of them gave him an application and all told him that they had no openings. Servers at banquets in Orlando are either full-time or on-call. Hotels have a minimum number of full-time servers, such as what Malagon was when employed by the Grosvenor, who are essentially guaranteed that they will work at all of their em- ployers’ functions, as well as being assigned other tasks within their hotels. A larger number of servers are on-call, meaning that, when a hotel has a function and has need for more than its full-time servers, it will call its on-call servers to offer them employment for their banquets. Most banquet servers place their names on the on-call rosters for several hotels at once and do not work as full-time banquet servers dedicated to specific hotels, as Malagon had done for the Grosvenor. So, Malagon, having been fired, filed or tried to file applica- tions with hotels during the last quarter of 1996 and the first, maybe the second, quarter of 1997. He filed only two applica- tions. The other hotels, however many, but only four at best, would not even take his application. And he received some work, but the work in 1997 amounted to only 41 percent of what he would have been earning had he remained in the Gros- venor’s employ. The next 2 years, that percentage dropped to only 25 and 24 percent, respectively. Yet, at no time after the very early quarters did he look for additional employment. When asked whether he knew that there was a lot of work for banquet servers in Orlando, he answered, “There probably was, but there wasn’t for me. Not for a 70 year old going to apply for that type of work.” I recognize that, in determining the reasonableness of any individual’s efforts, factors such as the individual’s age, as well as skills, qualifications, personal limitations, and the labor con- ditions in the area must be considered. Alaska Pulp Corp., 326 NLRB 522, 534–535 (1998), enfd. in part sub nom. Sever v. NLRB, 231 F.3d 1156 (9th Cir. 2000); Laredo Packing Co., 271 NLRB 553, 556 (1984); Mastro Plastics Corp., 136 NLRB at 1359. The difficulty with Malagon’s claim is that, rather than testing his theory that a man of his age would never obtain additional work, he never applied for any additional work. The issue, then, is whether Malagon fully mitigated his damages. I conclude that he did not. It is true that Baity, another of the discriminatees and a banquet server, earned enough to fully mitigate by being a part-time banquet server for only two em- ployers. But Malagon did not, even though he sought as many hours as possible and never turned down an on-call assignment. He had to understand, at some point, which I find to be by the middle of 1997, that he had to apply to other hotels in order to make up for what he lost when the Grosvenor discharged him. I, thus, conclude that Malagon made a good-faith effort to obtain employment after he was discharged, and through the first two quarters of 1997. After that, by receiving jobs solely from Disney World and the Radisson, which paid him consis- tently far lower than what he had earned before, he indicated that he was satisfied with working less. That may well have been due to his age. His tax returns indicate that his profession was “retired/waiter,” a description that Malagon explained was an error recorded by his tax preparer; but I find that description accurate, one that he probably gave for the filling out of his tax returns. He had been receiving social security benefits and a minimal union pension since 1991, and probably wanted less work. I conclude that the only backpay due to Malagon is for the last quarter of 1996 and the first two quarters of 1997, in the sum of $16,920.14, as stated in the compliance specification. BB. Lourdes Matos Lourdes Matos, like Malagon, was also a full-time banquet server. Within 2 weeks of the beginning of the strike, she ap- plied for work at the Radisson Twin Towers and in December 1996 at the Hilton and received on-call work from both. During that last quarter of 1996, she also applied for work at and ob- tained a little work from the Embassy Suites Hotel. The follow- ing year, she also applied for work and received some from the Airport Hyatt and the Palace Resort, and apparently, which I infer from a statement made by Respondents’ counsel, also applied to Disney World. In the first quarter of 2000, Matos obtained a full-time position at the Hilton. Respondents contend that they are not liable for any backpay for the last quarter of 1996 and the years 1997 and 1998 on the ground that she made insufficient efforts to obtain work. I dis- agree. As shown by Baity, her three applications for work in the last quarter of 1996 may well have been sufficient to produce interim earnings in amounts equaling what she would have earned, had the Grosvenor not fired her. In addition, she made further efforts to obtain work from other employers in 1997 and was on call from at least five hotels; and, unlike Malagon, there is nothing in the record that suggests that she stopped looking for enough work that would potentially result in a full income or that her reliance on getting full-time employment from five employers was not honest and in good faith. Respondents do not meet their burden merely by showing minimal interim earn- GROSVENOR RESORT 1249 ings. They must affirmatively show that Matos “neglected to make reasonable efforts to find interim work.” NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d at 575–576. They did not. I find that she reasonably mitigated her damages and conclude that her backpay is $32,119.63, as stated in the compliance specification. CC. Frederic Meradin Respondents’ only dispute with the compliance specification regarding its backpay liability to Frederic Meradin, a house- man, concerns the first three quarters of the backpay period. He applied for work on November 1, 1996,26 at Disney World and in December at the Royal Plaza. On January 3, 1997, he regis- tered for work with IATSE. He again applied to the Royal Plaza in March 1997 and applied for work at the Howard John- son Inn and the Radisson Plaza in April. His registration with IATSE resulted in his obtaining work from January 7 until sometime in February 1997, as well as work for another employer sometime in 1997. On June 21, 1997, Meradin was hired at Disney World, where he remained employed throughout the remainder of the backpay period. As a result, looking at his entire backpay period, it is clear that Me- radin made a good-faith effort to obtain interim employment. Wright Electric, Inc., 334 NLRB 1031. Furthermore, he applied to two employers in the last quarter of 1996, one of which ap- plications led to full-time employment; and, through his regis- tration with IATSE, Meradin was able to obtain employment, although not as much as Respondents contend he should have, based on what other discriminatees received from IATSE. But, as the General Counsel cogently argues, Respondents provided no evidence that Meradin rejected referrals, made himself un- available, or otherwise incurred a willful loss of earnings. Fur- thermore, Respondents’ comparisons are somewhat misleading, because the record does not break down the discriminatees’ earnings from IATSE referrals by quarter. It could well be that there was little work in the first quarter of 1997. It could also be that Meradin was called by IATSE, but simply missed the call, only to be placed in the back of the referral list. I conclude that Meradin is entitled to $23,849.13 as backpay, as stated in the compliance specification. DD. Deborah Montgomery Deborah Montgomery, a laundry attendant, searched for work at two employers in October 1996, three in November, and five in December. She searched at hotels, retail stores, and a cleaning service. She searched for work in January 1997 at the Caribe Royal and was hired on January 30 as a cashier at K- Mart. She asked for a full-time position but K-Mart reserved full-time positions for employees with more seniority, so she worked about 34 hours per week. Respondents contend that Montgomery’s search for employment was inadequate, insist- ing that she made only 11 applications and that, had she made 26 I agree with the General Counsel’s contention that Respondents’ failure to establish when in November a discriminatee searched for work should lead to the finding that he searched on November 1. more, increasing her searches to 30 searches during that 4- month period, her probability of success would have been 95 percent, versus failure of less than 5 percent. I reject this “probability of success” argument, finding, first, no basis in Board law for it. What she did was conduct a per- fectly reasonable search for employment. The Board does not require the extraordinary efforts that Respondents would have her make. Atlantic Limousine, Inc. v. NLRB, 243 F.3d 711, 721 (3d Cir. 2001); NLRB v. Arduini Mfg. Corp., 394 F.2d 420, 422–423 (1st Cir. 1968); Delta Data Systems Corp., 293 NLRB at 737. Second, all that Respondents have shown is her prob- ability of success, not the actual result of her search. Respon- dents concede that they are not asserting that “the probability analysis is a literal predictive tool.” In fact, it is not; and that is the reason that I reject its use in this proceeding. Finally, there is no proof in the record that Montgomery spent her time on the picket line, to the exclusion of looking for interim employment. In sum, I find that Montgomery’s search was sufficient, and I will not deny her backpay for the last quarter of 1996 and the first quarter of 1997. Montgomery quit her position with K-Mart on March 28, 1998, after a coworker had been rude to her and embarrassed her in front of her regular customers. She had no job until June 19, 1998, when she started working at Winn Dixie. Respon- dents contend that she is not entitled to backpay after she quit K-Mart, but her quit appears to be justifiable, in light of her embarrassment. Respondents bear the burden of proving that she was not justified in quitting K-Mart, and did not. Lundy Packing Co., 286 NLRB at 144 (1987). I reject Respondents’ position. Then she quit Winn Dixie, first, because she had been hired by Publix on July 29, 1998, and it offered higher wages; and, second, because Winn Dixie had required her to sell un- sanitary corned beef that had an expired date. That is more than ample justification for her to leave her employer. Respondents contend that she was not entitled to backpay for the period while she was working at K-Mart, because she chose voluntarily to work for much-reduced hours at a much-reduced rate of pay. That is not so. Montgomery testified without con- tradiction that her employment was part time and, as she con- tinued to work, she would progress to a full-time job, all in accord with the normal practice of the grocery industry. Insofar as Respondents contend that her starting wage was $5 an hour, $2-per-hour less than she was earning at the Grosvenor, that is the Grosvenor’s fault, not hers. Montgomery had 10 years of seniority at the Grosvenor, and none at her interim employ- ment. Respondents also contend that, beginning with her employ- ment with K-Mart, and continuing while she was working for Winn Dixie and Publix, Montgomery failed to look for a higher-paying job with more hours, as required in order to miti- gate damages. I disagree. I find that she obtained the employ- ment that was available to her. NLRB v. Madison Courier, 472 F.2d at 1320. I reject the notion that requires someone who worked in the Grosvenor’s laundry had to select only certain kinds of jobs for her interim employment, and that work in a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250 grocery, where one had to start as a part-time employee, was excluded from the types of jobs she could take. Avon Convales- cent Center, 219 NLRB 1210, 1211 fn. 5 (1975), enfd. in part, denied in part 549 F.2d 1080 (6th Cir. 1977). In addition, I note that, in fact, she remained with Publix long enough to become a full-time employee, often working 35 hours or more per week, beginning in February 1999, although her hours, starting in 2001, often still dipped to less than 30, and sometimes less than 24, for reasons unexplained in the record. The point is that, based on her employment, she was trying as best she could to earn a living and, thus, was making a reasonable attempt to mitigate her damages. The final issue regarding the accuracy of the compliance specification stems from her taking a voluntary 6-month leave of absence from Publix, from January 20 until July 17, 2001, to travel to Ohio to take care of her ill sister. Although she testi- fied that she worked continuously for United Dairy Farmers, Wunderlichs Market, and Burger King during her stay in Ohio, her interim earnings for the first two quarters of 2001 are about 40 percent of what she had been making at the end of 2000, and her interim earnings for the third quarter is about 25 percent less. Because her testimony is that, in July 2001, she returned to the same Publix store that she worked in before, and earning the same rate of pay as she was paid before January 2001, the amount that she should have earned, had she not left, should have been $4,074.45 each quarter, the amount she earned each quarter during the preceding year. So, I will adjust the interim earnings for the first three quarters of 2001 by assuming that she would have made that amount for five-sixths of the first quarter, all of the second quarter, and one-sixth of the third quarter. I have used her actual figures to compute the remainder of the first and third quarters, to wit, one-sixth of $1,638.54 in the first quarter and five-sixths of $3,016.36 in the third quarter. The result is as follows: Year Qtr. Gross Backpay Interim Earnings Net Backpay 2001 1st $4,639.21 $3,668.47 $970.83 2001 2d 4,639.21 4,074.45 564.76 2001 3d 4,639.21 3,192.71 1,446.50 I conclude that Montgomery’s backpay is $39,038.30. EE. Charitable Ovince Charitable Ovince, a room attendant, searched for work at at least two employers during November and two more in De- cember 1996. One of these may or may not have been a new hotel at which she applied, but she could not remember. (Ovince was 67 years old when she testified.) She was hired as a room attendant at the Swan Hotel on January 27, 1997, but sustained an injury on February 11, and was sent home. The hotel would not permit her to return. She again looked for work and was hired on March 4, 1997, by the Quality Inn, where she remained during the entire backpay period. Respondents raise two issues. First, they claim that her search for work during the fourth quarter of 1996 was inade- quate. I reject that contention for the reasons previously ex- pressed, noting that viewing the entire backpay period shows that she was constantly employed. Electrical Workers Local 3 (Fischbach & Moore), 315 NLRB at 1266. The second issue is more problematic. As of June 1, 1999, she began working a 24- hour part-time schedule. On the basis of her reduction of hours, the General Counsel amended the compliance specification by reducing her gross backpay, not by 25 percent, based on its assumption that a 32-hour workweek was the measure of a regular full-time schedule, as Compliance Officer Marksteiner testified, but by 40 percent, based, I find, on her belief that Ovince had reduced her hours from a 40 24 weekly. During the hearing, the General Counsel again rethought the compliance specification based, first, on the fact that the Gros- venor’s handbooks established 32 or 30 hours per week as the minimum for “regular” employees. Then, upon further reflec- tion, because the collective-bargaining agreement conferred regular status on unit employees who worked a regular sched- ule of 24 to 40 hours, the General Counsel determined that he should not have reduced Ovince’s backpay at all, because she worked 24 hours each week. So the compliance specification was again amended to restore her backpay figures, as originally stated. I find that the General Counsel obtained the correct result in his final amendment, but only based on my ruling regarding the effect of Respondents’ failure to produce the Grosvenor’s pay- roll records. Respondents refused to produce Ovince’s payroll records for a reason. I infer that their reason was that she did not work 40 hours and that her part-time schedule at the Quality Inn was substantially equivalent to her job at the Grosvenor. If that inference is incorrect, Respondents have only themselves to blame. I conclude that Ovince is entitled to $37,309.48, as stated in the compliance specification. FF. Joseph Paschal Respondents dispute only the fourth quarter of 1996 backpay liability due to Joseph Paschal, a bellperson. Paschal looked unsuccessfully for work at two employers during November and also registered with IATSE, which referred him to work, his first job starting on November 18, 1996. He continued to work through IATSE referrals for the remainder of the backpay period. In accord with my prior legal conclusion, looking at his employment in every one of the 25 quarters of the backpay period, I find that Paschal’s search for employment, which was, by mid-November, successful, satisfied his duty to mitigate damages. I conclude that his backpay is $9,186.21, as the com- pliance specification states. GG. Marie A. Pierre Marie A. Pierre, a room attendant, applied for a job at and was hired by Disney World on November 27, 1996, began work on December 7, 1996, as a room attendant, and worked in this position throughout the remainder of the backpay period. Respondents contend that she is not entitled to backpay for the period of September 27 through December 7, 1996, based on GROSVENOR RESORT 1251 her failure to mitigate damages during this period. As noted above, no claim has been submitted for any period prior to the September 30 date that all the discriminatees were fired. Re- garding Respondents’ contention that, according to her Search for Work Report, she submitted only one application in the fourth quarter, that on November 27, I have previously rejected Respondents’ claim, and do so here, particularly based on her employment throughout the backpay period. Wright Electric, Inc., 334 NLRB 1031. I conclude that her backpay is $4,400.12, as stated in the compliance specification. HH. Louis Preval Louis Preval, a houseman, was 65 when the Grosvenor dis- charged him. He applied for work at the Royal Plaza in October 1996, Disney World in November, and the Holiday Inn in De- cember, Renaissance Hotel in January 1997, the Sheraton Hotel in February, and Florida Hospital in March. He also applied to other hotels, but he forgot who they were. Although those at- tempts to obtain employment were unsuccessful, his registra- tion with IATSE on January 8, 1997, resulted in his receiving a referral for work with GES Exposition Services from January 24 until February 20, 1997, and numerous other contractors throughout the remainder of the backpay period, although, as time went on, he could not handle the heavier work involved in setting up conventions. He also continued to search for addi- tional work, both at places he had gone to before as well as new ones, a total of six attempts in the second quarter of 1997, shortly before the end of which he was hired as a houseman by yet another employer to whom he had applied, Holiday Inn. But he was laid off from this job a mere 2-1/2 weeks later, because there was not enough work at the hotel to retain all the staff and he had no seniority. Respondents’ attack on his testimony about this layoff was silly, in light of the fact that both of their wit- nesses were merely guessing; neither had even the slightest knowledge of the facts leading to his losing his job. Preval continued to search for work into the third quarter, applying to three hotels, and credibly testified that from the time that he was laid off through the third quarter of 1997, he looked for work at even more employers, but he forgot them by the time that he sent in his Search for Work Reports. Respondents attack his record on various grounds, but most of the attack is leveled at the low amount of Preval’s interim earnings, particularly through 1997. They theorize that, because he was receiving Social Security and strike benefits, he must have been relying more on that money and less on going to work. But that is mere speculation. He was 65 years old on July 18, 1996, and started receiving Social Security benefits while he was still employed by the Grosvenor. He did not quit and did not ask for fewer hours. Although he started work for IATSE in 1997, and his earnings there were not as high as some others who earned the better portion of their interim earnings setting up conventions, Respondents did not show that Preval pur- posely declined work. Rather, his Social Security statement shows that his earnings kept increasing, so much so that no backpay claim is made for the years 2000, 2001, and 2002. The backpay claimed for the year 1999 is $778.29 per quarter, and his interim earnings were 76 percent of what he would have made had he not been fired by the Grosvenor. Similarly, the backpay claimed for the year 1998 is $1,022.46 per quarter, and his interim earnings were 67 percent of what he would have made had he remained an employee of the Grosvenor. On the basis of his employment record during the entire backpay period, he was not taking less work because he was receiving Social Security benefits. Otherwise, he would have continued to rely more on them than on taking more work. Furthermore, he made sufficient attempts to gain employment in line with his prior employment as a houseman and in light of his age (he was 73 when he testified in this proceeding). I con- clude that Respondents did not prove that Preval did not miti- gate his damages and that he is owed $18,837.25, as the com- pliance specification states. II. Maria Quevedo Maria Quevedo’s Search for Work Report states, under the item of employment services where she registered, the date of November 10 and an address in Winter Haven, Florida, which is the same as listed on her husband’s Search for Work Report. He, Gilberto Carranza, testified that that was the address of IATSE, and I so find. In the item of reasons that she was unable to work, the word “strike” is circled. She also indicated that she started work at Disney World on December 21, 1996, where she remained an employee for the entire backpay period. Re- spondents contend that she should be denied backpay for the entire fourth quarter of 1996 on the ground that she made no effort to obtain interim employment. (Her Social Security statement shows, however, very small earnings from Disney World and Mastercorp., the latter perhaps being a referral from IATSE.) However, she explained that she did not search for work earlier because she did not have a driver’s license. When she worked for the Grosvenor, her husband drove her. When she obtained employment with Disney World, someone else took her to her job because her husband was unavailable to drive her. A discriminatee should not be disqualified if her work search efforts are limited by the lack of transportation to job interviews. Viewing her mitigation effort in the context of the entire backpay period, she exercised reasonable diligence. Wright Electric, Inc., 334 NLRB 1031. In addition, Respondents contend that Quevedo was on a ma- ternity leave of absence effective from September 27 to De- cember 7, 2001, and received no regular wages. She did receive maternity leave pay, perhaps as much as $210 per week, but the amount was not reported for Social Security purposes. Her leave was for 10 workweeks and 2 days, or 72 days. Consider- ing that there are 13 weeks in a calendar quarter, and 5 work- days in each calendar week, I conclude that she was absent 52 workdays. Although the Grosvenor has no provision for mater- nity leave, had she remained its employee, she would have been entitled to use towards her leave, her vacation of 4 weeks (20 workdays) and 88 hours of personal time (11 workdays). That leaves a total of 21 workdays, towards which Respondents are DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252 entitled to a reduction of her backpay in the fourth quarter of 2001 of $1,692.81 [$5,239.33 (gross backpay for any given quarter during 2001) divided by 65 (workdays in a quarter) equals $80.61 (daily wage) multiplied by 21 (workdays to be credited) equals $1,692.81]. I conclude that Respondents’ backpay liability to Quevedo is $12,083.72. JJ. Earl Rankin Earl Rankin, employed by the Grosvenor as a maintenance engineer, appeared to do more rough and finished carpentry (he was a carpenter before working for the Grosvenor) than engi- neering. Among the tasks that he performed as an employee of the Grosvenor, a period that went back to 1983, before Respon- dents acquired the hotel, was to repair damaged air walls, which separated sections of the ballroom so they can be used by separate parties; he fixed high pressure pipes and the air- conditioning system; he occasionally swung sledgehammers and pushed wheelbarrows; and he poured concrete for a side- walk and lifted railroad ties. But, mostly, he performed carpen- try tasks; and his efforts to obtain employment as a carpenter at ten hotels during the fourth quarter of 1996 does not deserve the attack that Respondents made on his search for employ- ment. Nor does the fact that he registered for employment with IATSE. And, in fact, he earned some money from IATSE refer- rals in that fourth quarter, starting on November 22, and con- tinued to receive referrals, until May 12, 1997, when, he testi- fied, the job of lifting and rolling huge amounts of carpet be- came too much for his back, and he could do it no longer. (His back improved after 2 weeks of not accepting IATSE referrals.) Respondents attack that testimony, noting that Rankin stated that he had gone to the VA Hospital in Orlando about his back. Respondents subpoenaed records from the Hospital, which showed that, although he went there in late 1967, a half-year after his back pains had ceased, his complaints were about a condition unrelated to his back. From that, Respondents con- tend that Rankin lied. I do not agree. Even though Rankin’s memory 7 years later may not be as sharp as Respondents would like (Rankin was 69 years old), I can understand that, even without going to a hospital, the kind of work that he was doing could cause him, or anyone else, back pain, severe enough that he would justifiably discontinue that line of work. It was not as if the IATSE jobs were using his carpentry skills. As a new hire, he mainly rolled aisle carpet and performed “pipe and drape” work, which consisted of setting up dividers with drapes to separate trade show exhibit booths, and then setting the furnishings, signs, and other accoutrements. Rolling carpet was the most undesirable job, disliked by new hires more than any other assignment and described as “[l]abor-intensive, on your knees rolling carpets for miles and miles and miles” and a “backbreaking job.” He had a right to cease this work, not only because of its physical difficulty for him, Lord Jim’s, 277 NLRB 1514, 1516 (1986); Chem Fab Corp., 275 NLRB at 24, but also because the work was not even substantially equivalent to his former job with the Grosvenor. Lundy Packing Co., 286 NLRB at 145. Respondents also object to his “part-time IATSE work,” but Baity’s interim earnings demonstrate that, with time, Rankin could have earned sufficient amounts to mitigate fully his dam- ages. I find, therefore, that Rankin reasonably sought work during the last quarter of 1996 and through May 15, 1997. On that day, 3 days after completing his last IATSE job, Rankin took a full-time job at Diamond Transportation, driving cars for at the Orlando airport and some long-haul driving to Jackson- ville, Miami, and Sarasota, at $5.15 per hour, down from the $10 per hour that he was receiving on IATSE jobs, and worked there through the end of the third quarter of 1999, when he was being paid $6 per hour. The General Counsel argues that Rankin legitimately low- ered his sights by working for Diamond Transportation and continuing to search for carpentry work until 1999, relying on Seattle Seahawks, 304 NLRB 627, 636–637 (1991), enfd. sub nom. Nordstrom v. NLRB, 984 F.2d 479 (D.C. Cir. 1993). However, during this period of time, he was essentially the leader of the strikers (he was the Union’s chief steward, and Fabian testified that he was “pretty much in charge when I wasn’t there”), at least through early January 1998, when the strike ended; and his job at Diamond Transportation was scheduled later in the day, so that he could supervise the picket- ing in the morning. I also find that he looked for work only in the last quarter of 1997, when he applied for work at nine em- ployers. I specifically reject his testimony that he looked for work at other employers and at other times, but merely forgot to put them on his Search for Work Reports. Rankin’s earlier Reports contain such detail that it is unlikely that, as he testi- fied, he was “[a]bsentminded,” that he “goofed,” and that he “just overlooked it.” I find instead that his Reports are accurate and that, after the last quarter of 1997, he stopped looking for work. Furthermore, even if he searched for some work, as he testified, his search was not a good-faith effort to obtain suitable and sufficient interim work. Whether that resulted from his filing for and receiving Social Security benefits in October 1996, as Respon- dents suggest, and earning enough, but not too much, so that his Social Security benefits would not be reduced, I need not de- cide. It is enough to find that he did not mitigate his damages from May 15, 1997, through the third quarter of 1997; he made a reasonable attempt to find employment in the fourth quarter of that year; and then he gave up all efforts. Accordingly, I conclude that $13,419.87 is due to Rankin as backpay, as fol- lows: Year Qtr. Gross Backpay Interim Earnings Net Backpay 1996 4th $7,547.88 $3,084.50 $4,463.88 1997 1st 7,701.85 3,432.88 4,268.97 1997 2d 3,850.93 3,432.88 418.05 1997 4th 7,701.85 3,432.88 4,268.97 GROSVENOR RESORT 1253 KK. Isidro Rodriguez Isidro Rodriguez, a maintenance engineer, registered for work with IATSE on November 21, 1996, and, before that, looked for work and “turned a few applications in” or signed “a few applications” with employers. IATSE referred him for work with various contractors beginning on November 24, and he worked referrals until February 12, 1997, when he started working for Disney World as a maintenance person on and worked solely, except for a day, in this position throughout the final 24 quarters of the backpay period. Respondents object that he did not look for work until he began accepting IATSE jobs and so should be denied backpay for October and through No- vember 24, 1996. Because I have found that he did, in fact, look for work with other employers prior to his IATSE registra- tion, I reject Respondents’ objection. In any event, his entire work history persuades me that he was attempting to, and did successfully mitigate his damages. Wright Electric, Inc., 334 NLRB 1031. I conclude that Respondents owe him backpay of $2,583.94, as stated in the compliance specification. LL. Feliza Ryland Feliza Ryland, a room attendant, applied for a job at the Em- bassy Suites on November 22, was hired, began to work there on November 29, 1996, and left on January 29, 1997, when she took a job at Disney World because it paid more. She remained there for the rest of the backpay period. Respondents dispute her claim for the fourth quarter of 1996, based on her failure to mitigate damages during this period. Based on my prior ruling, and especially considering her work history during the entire backpay period, I conclude that she is entitled to backpay for the fourth quarter of 1996 and that Respondents owe her back- pay of $10,024.84, as stated in the compliance specification. MM. Raymond Smith Raymond Smith, a bellperson, was 67 years old when dis- charged and died in 2004. Respondents’ brief essentially recog- nizes, in these circumstances, the difficulty of proving that Smith did not mitigate his damages, especially in light of the testimony of so many of the discriminatees that they did not record all their searches for employment. Respondents write: Respondent is substantially prejudiced in its ability to meet its burden of proving a failure to mitigate damages as Mr. Smith is deceased and could not be called as a witness. Respondent was also unable to call any witnesses close to Mr. Smith, and his wife has passed away. His stepson was called, but his stepson was not close to Mr. Smith during his life, and testi- fied also that Mr. Smith had “no friends,” and therefore no one Respondent can call to try and establish for the record what was going on in Mr. Smith’s life during the backpay pe- riod. What is in evidence is Smith’s Search for Work Reports, which state that he searched for work at the Radisson Twin Towers, the Courtyard Marriott, and the Howard Johnson’s Universal Tower in October 1996. He had an angioplasty and was incapacitated from November 17 to 30, 1996, which is excepted from Respondents’ backpay liability. He searched for work at four employers in the first quarter of 1997, another four in April, and two in May. He also sought work through the Union at the Hilton in May and at the Radisson Twin Towers in June. He underwent surgery in the fourth quarter of 1997, which is another period excepted from backpay liability. He continued his search for work during the first quarter of 1998 at six employers and sought work at two other employers through the Union. He searched for work at K-Mart on April 7, Good- ing’s on April 20, Albertson’s on May 4, and Publix on May 30, 1998, indicating on his Publix application that he was avail- able to work all hours and days. Smith was finally hired, his first employment, by Publix to bag groceries on May 30, 1998. He worked there until Novem- ber 9, 1998, when he left for K-Mart because, he wrote, of its higher pay and better working conditions. He started there on November 20, 1998. Smith was laid off by K-Mart on January 3, 1999, because the holiday season ended. He then searched for work at seven employers in the first quarter of 1999, an- other 10 employers in the second quarter, and four employers in July, including Embassy Suites, which hired him as a breakfast greeter on July 29, where he remained through January 12, 2001. He then had eye surgery, and did not return to work. The compliance specification excepts the period from January 15, 2001, through the end of the first quarter of 2001, after which Smith withdrew from the labor market. While first claiming that Smith did not seek substantially equivalent work, Respondents also contend that Smith unrea- sonably limited his search to bellman jobs. Smith was, of course, a bellman (bellperson), and it was nothing but reason- able for him to seek a job with which he was familiar. Respon- dents further contend that he could not have made a reasonable search for employment because he was unsuccessful for 20 months. But the Grosvenor fired him, and he was 69 years old, and not exactly one whom employers would select, if they had a choice. I recognize that there is no Report for the third quarter of 1997, so there is no record that he searched for a job during that quarter, but the Board does not require that he search for jobs each and every quarter, especially when he has so many job applications pending. The Board does not require him to repeat searches that are likely to prove futile. Cornwell Co., 171 NLRB 342, 343 (1968). In any event, I am loathe to find, from the mere fact that there is no report in the Regional Office’s files, that Smith did not search for employment. Again, as held above, the discriminatee gets the benefit of the doubt. Respondents also complain that, when Smith finally obtained employment, he took a part-time job. In light of my ruling on the General Counsel’s motion for an adverse inference and to strike one of their defenses, there is nothing in this record that shows how many hours Smith regularly worked at the Grosve- nor. Respondents, therefore, cannot prevail on their claim that Smith accepted interim employment based on fewer hours. In any event, the record does not reveal that he was offered a full- time job by anyone; and the credited testimony reveals that, in DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254 similar stores, such as groceries, employers hired new employ- ees only in part-time positions. Respondents also complain that Smith moved around from job to job, but Smith wrote on his Report that he moved from Publix to K-Mart because he re- ceived higher pay and better working conditions. He lost his job at K-Mart because the employer laid him off. I reject Respon- dents’ contention that “the only reasonable conclusion is that he was making only token efforts at a job search . . . in the robust, tight-job-market of Orlando.” Smith’s history demonstrates how little value Respondents’ expert testimony has when it fails to consider the plight of unemployed, unskilled, and elderly persons. Finally, Respondents argue that Smith was not able to obtain employment “due to physical problems.” There is noth- ing in the record to sustain that proposition, except that he had some relatively minor surgery. The General Counsel excepted the periods when he was disabled. Accordingly, I conclude that the backpay due to Smith is $57,140.55, as stated in the compliance specification. In doing so, I reject, as legally unfounded, Respondents’ contention that this amount is “impermissibly punitive.” NN. Cleofas Viscaino-Hernandez, Cleofas Viscaino-Hernandez, a room attendant, made a sin- gle application to Disney World on December 2, 1996, was hired, started work on December 11, and worked there for the rest of the backpay period. Respondents dispute her claim for the fourth quarter of 1996, based on her failure to mitigate damages. In light of my ruling above, I find that, in spite of her delay, Viscaino-Hernandez reasonably mitigated her damages, especially in light of her employment throughout the remainder of the backpay period, Wright Electric, Inc., 334 NLRB 1031; and I conclude that Respondents’ backpay liability is $22,612.38, as stated in the compliance specification. OO. Flossie Williams Flossie Williams, a room attendant, died on July 3, 1997. According to her Search for Work Report, she searched for work in November 1996 at Disney World and, in December, C.F.I. Westgate Lake Resort. She started working for Disney World on December 11, 1996, and worked there until February 15, 1997. No backpay is claimed after that date. Respondents contend that, by not beginning to work until December 11, and having only two applications in the 71 days prior to then, she did not mitigate her damages. Again, for almost all the reasons previously expressed—due to her death, she obviously had no lengthy history of employment throughout the backpay pe- riod—I disagree; and I conclude that she is owed $5,254.01, as stated in the compliance specification. IX. MEDICAL EXPENSES The General Counsel seeks reimbursement for certain out-of- pocket medical expenses incurred by nine discriminatees during the backpay period. Respondents’ brief is silent, from which I infer that it has no opposition. Indeed, it stipulated to the le- gitimacy of some of these expenses; and the record sufficiently demonstrates that the named discriminatees incurred all these expenses. Shortly after the Grosvenor terminated the discrimi- natees, it gave them a notice under COBRA, the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. § 1161, that they could continue their benefits under its employee health plan. The following paid the following amounts, which are more that they would have paid as the Grosvenor’s employ- ees, for which Respondents must reimburse them: Alvarez, $313.89; Collier, $620.50; Day $2,129.93; Jackson, $927.11; and Malagon, $313.89. In addition, the following discrimina- tees incurred out-of-pocket medical expenses, for which they would have been covered had they remained the Grosvenor’s employees: Davis, $221.55; Ovince, $626.97; Preval, $266.00; Malagon, $11,224.29; and Rankin, $1,172.08. I conclude that Respondents must reimburse them for these amounts, too. X. INTEREST In a posthearing motion, the General Counsel moved to strike Respondents’ reply brief, claiming that, for the first time, Respondents addressed the issue of interest on the backpay, arguing that bankruptcy law prohibits the accrual of postpeti- tion interest. Whatever merits that position may have, and the General Counsel appears to concede, at least partially, that it has some merit, because he has requested that I separately iden- tify the dollar amounts of the overall backpay award and the interest accrued on the award from September 30, 1996, until the Debtor, which is named as “Grosvenor Orlando Associates, a California limited partnership, d/b/a Grosvenor Resort,” filed for bankruptcy on February 3, 2004, I find that the normal order granting interest in accord with the Board’s normal practice will effectuate the purposes of the parties’ rights. Clearly, the United States Bankruptcy Judge knows the identity of the bank- rupt (Respondents question that they are all subject to the Judge’s Amended Order Confirming Amended Plan of Reor- ganization; the General Counsel contends that they are not) and when the liability of whoever is bound ceases for the purpose of paying interest. I further feel certain that the General Counsel will assist the Bankruptcy judge by giving a detailed computa- tion of all interest due under this decision. In this respect, the General Counsel’s motion to strike is denied. [Recommended Order omitted from publication.]