Rainbow Coaches

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rainbow Tours, Inc., d/b/a Rainbow Coaches and Hawaii Teamsters and Allied Workers, Local 966, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Ronald Sai and Garrett Wong. Cases 37-CA-1341, 37-CA-1342, and 37-CA- 1387 30 May 1986 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 12 April 1984 Administrative Law Judge Joan Wieder issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs 1 and has decided to affirm the judge's rulings, findings, 2 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Rainbow Tours, Inc., d/b/a Rainbow Coaches, Honolulu, Hawaii, its officers, agents, successors, and assigns, shall pay Simeon Agao Jr., Michael Akamine, Miles Fonseca, Yukio Iho, Lane Kaaiai, Eric Kana, Ralph Kaui, James Louis, Ronald Sai, and Henry Sanford the sums set out in the recommended Order. 1 We deny, as lacking in merit, the Respondent's motion to strike the General Counsel's brief in response to the Respondent's exceptions, and the General Counsel's motion to strike the Respondent's motion. We also deny the Respondent's motion for reconsideration inasmuch as it does not contain any newly discovered evidence or evidence not previously con- sidered by the Board Y The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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. Chairman Dotson agrees with the conclusions reached by the judge re- garding the discriminatees' duty to mitigate the Respondent's backpay li- ability. In reaching these conclusions, however, the Chairman relies on the analysis set forth in Brady v Thurston Motor Lines, No 83-1765 (4th Cir. Feb 6, 1985) Thomas W. Cestare, Esq., for the General Counsel. Jared Jossem and John Knorek, Esgs. (Torkildson, Katz, Jossem & Loden), of Honolulu, Hawaii, for the Re- spondent. John R. Desha, Esq., of Honolulu, Hawaii, for the Charg- ing Party- Hawaii Teamsters. Charlotte Duarte, Esq., of Honolulu, Hawaii, for the city and county of Honolulu. Wayne Matsuura, Esq., Deputy Attorney General, of Honolulu, Hawaii, for the State Department of Labor. SUPPLEMENTAL DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge. This sup- plemental proceeding was heard at Honolulu , Hawaii, on various dates in May, June, July, and August 1983. A backpay specification and notification was issued on Sep- tember 30, 1982, predicated on a Decision and Order of the Board dated March 29, 1979, 241 NLRB 589, which found that Respondent discriminatorily discharged 12 employees and granted superseniority to nonstrikers in violation of Section 8(a)(3) and (1) of the Act, and pro- vided that they be reinstated and reimbursed for all wages and other benefits lost between the date of the dis- charge and their reinstatement, with interest to be com- puted thereon in the manner prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See also Isis Plumbing Co., 138 NLRB 716 (1962). The United States Court of Appeals for the Ninth Circuit entered its judgment enforcing in full the Board's order. NLRB v. Rainbow Coaches, 628 F.2d 1357 (9th Cir. 1980). The parties' disagreement over the backpay owed dis- criminatees Simon (Jay) Agao, Michael Akamine, Miles Fonseca, Yukio (Ross) Iho, G. Lane Kaaiai, Eric Kama, Ralph Kaui, James Louis, Ronald Sai, and Henry San- ford led to the issuance of the backpay specification. Re- spondent's answer, filed October 14, 1982, generally denies each allegation of the specification. The General Counsel, on December 1, 1982, filed a Motion for Partial Summary Judgment. On December 14, 1982, an order was issued transferring the proceeding to the Board di- recting the parties to show cause why the General Coun- sel's motion should not be granted. Respondent replied on January 10, 1983, and filed an amended answer. The General Counsel filed a motion to strike Respondent's first amended answer; moved to find the backpay specifi- cation true; and, further, moved for partial summary judgment. The Board found, in a Supplemental Decision and Order, 266 NLRB 585, dated March 28, 1983, that Respondent's amended answer failed to deny with the requisite specificity the allegations with respect to discri- minatees Akamine, Kaaiai, Kaui, and Sanford. Therefore, gross backpay is an issue only concerning discriminatees Agao, Fonseca, Iho, Kama, Louis, and Sai. Interim earn- ings is in issue for all discriminatees. On the entire record and from my observation of the witnesses, I make the following 280 NLRB No. 17 RAINBOW COACHES 167 FINDINGS OF FACT 1. ISSUES Respondent raised both procedural and substantive issues. These issues include assertions that: the formula utilized by the Regional Director to determine gross backpay was the improper basis for such computation; the interim earning calculations for the discriminatees were erroneous; discriminatees willfully failed to mitigate damages; discriminatees Fonseca and Louis were rein- stated and then voluntarily quit; the failure to permit dis- covery so denied Respondent the rights guaranteed it under the fifth and sixth amendments of the United States Constitution affording due process of law and jury trial to preclude the presentation of a defense; the Board should find that certain claimants withheld relevant in- formation from the Board prior to hearing, which should relieve Respondent of all interest assessments regarding those claimants; some discriminatees concealed interim earnings and failed to respond in a timely manner to Board requests for information; and the failure of certain claimants to keep or furnish the Board with accurate records of job search constitutes a bar to their claim for backpay, for the failures were sufficiently flagrant as to constitute willful concealment of interim earnings. Also, certain issues arose at hearing regarding petitions to revoke several of Respondent's subpoenas. II. FINDINGS OF THE CASE A. Preliminary Matters 1. Motion to correct transcript On October 5, 1983 , Respondent filed a motion to cor- rect the transcript. In particular, it requests that a sub- stantial number of exhibits be acknowledged. To appreci- ate the need for the request, it must be noted that the re- porting service failed to submit a complete , understand- able record. It submitted an incomplete set of exhibits in a form that ignored any sense of order . Repeated re- quests to the reporting service failed to produce the miss- ing exhibits and joint requests to the parties for copies was the only method available to ensure completion of the record. Also, in some instances the transcript was un- clear about the disposition of several exhibits. In other instances the record clearly reflects dispositions which Respondent claims are inaccurate. This confusion may be ascribed in part to the failure of the reporting service to present a complete set of exhibits in usable form. This failure occurred after repeated requests during the trial to the reporting service to take measures ensuring reten- tion of a complete set of exhibits in a rational order. To accomplish this end, counsel for Respondent , Knorek, re- mained every evening to review the exhibits with the re- porter to ensure that the reporting service had complete sets of exhibits in order . These efforts were expended to no avail. Also the reporting service, contrary to request, did not maintain a rejected exhibit file. Therefore any use of ex- hibits must be done with great care since there was no way to ascertain from the files which exhibits were re- jected and which were admitted. Resort must be made to the transcript. Counsel for the General Counsel opposes the motion to correct the transcript regarding Exhibits C-26, C-27, and C-28, which Respondent contends were moved and received in evidence. The transcript reflects that at the time the exhibits were initially moved they were not ad- mitted for lack of authentication and, at the time authen- tication was attempted, the exhibits were shown to be either irrelevant or Respondent failed to provide the req- uisite authentication. They were not admitted into evi- dence. With respect to Respondent's Exhibits E-19(1) and E-19(2), these applications of Kaaiai were never moved into evidence. The motion as to these exhibits is denied. Respondent's Exhibit E-23 has been admitted and the mismarking noted in the motion is corrected. The motion to correct the transcript , to reflect that Re- spondent's Exhibits H-20, H-21, H-24 through H-33, and H-37 have been admitted, is granted. The motion to correct the transcript to reflect that Respondent's Exhibit 1-5 is admitted, is granted. The motion to correct the transcript to reflect that Respondent's Exhibit J-2 was admitted is granted. The motion to correct the transcript so it indicates that Exhibits A-13, C-46, and C-47, E-20 through E-22, and H-17 were identified is granted and the appropriate indices should be so modified . Also omitted from the in- dices are the proper notifications that Respondent's Ex- hibits C-31, C-32, and C-48; E-26, E-30, and E-32; G- 14; H-19, H- 19(l), H-38, and H-45; 1-19; J- 18; M; and R-2 were rejected. The indices should be amended to properly indicate these dispositions. The motion to correct the transcript to indicate that Respondent's Exhibits C-24, C-25, C-28, C-33, C-35, and C-36; E-28; H-42; and J- 1 were withdrawn is grant- ed. 2. Assertion that Board processes in backpay proceedings, as applied in this case, denied Respondent due process a. Delay Respondent claims that it has been denied due process for several reasons. One reason is the amount of time it took the Board agents to obtain information from the claimants, delays which were unexplained. These delays, it is argued, when cojoined with denial of discovery, and my rulings on subpoenas, resulted in the creation of irre- buttable presumptions which Respondent was denied the opportunity to test. For example, it asserts lack of oppor- tunity to determine whether claimants took reasonably sufficient steps to mitigate backpay. Respondent cites two cases to demonstrate that it has been denied due process. The first is Rainbow Valley Citrus Corp. v. Federal Crop Insurance Corp., 506 F.2d 467, 469 (9th Cir. 1974), which provides: The due process clause, in its procedural as opposed to its substantive aspects, guarantees plaintiffs that their liberty and property interests will not be in- vaded by the government except insofar as they are given an opportunity to challenge the purported 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD justification (legal, factual, or both) of the invasion. Thus, to make out a prima facie claim that they have been denied due process, plaintiffs must estab- lish two elements: (1) that their liberty or property interests have been invaded by the government without an opportunity to challenge that invasion, and (2) that the purported justification for the inva- sion is at least plausibly disputable (otherwise an op- portunity to challenge that justification would be an empty formality). The record demonstrates that Respondent was afford- ed every opportunity to challenge the claim of violation made in the underlying unfair labor practice case, which was tested in exceptions filed with the Board, and in its resort to the Ninth Circuit Court of Appeals. Having been adjudicated a violator of the Act responsible for re- instatement of employees, Respondent waited several years before engaging in any self-help remedies by making a good-faith offer of reinstatement to most, if not all, of the employees found to be discriminatees. This delay occurred despite the fact that it was ordered to re- instate these employees and failed to do so until around the time of the Ninth Circuit's decision in this matter. Respondent undisputedly had the right to assume this risk of litigation, but has no right to be saved from its consequences. Respondent also failed to show that the asserted justifi- cation for the "invasion is at least plausibly disputable." Id. Respondent has the clear burden of proof, as the wrongdoer, to show that the discriminatees improperly failed to mitigate damages . It is undisputed that the Board agents, well before trial, gave counsel for Re- spondent complete access to all material in their posses- sion relevant to interim earnings and computation of backpay. The General Counsel made all discriminatees available at trial for examination by Respondent. At Re- spondent's behest, the entire General Counsel's file was inspected in camera to ensure that all evidence that could be construed as facts had been made available to Respondent. That the General Counsel accumulates in- formation does not indicate any assumption of an obliga- tion to show whether the discriminatees took reasonable and sufficient steps to mitigate backpay. The employer has the burden of proving the affirmative defense of fail- ure to mitigate. See NLRB v. Mooney Aircraft, 366 F.2d 809, 813 (5th Cir. 1966); Florence Printing Co. v. NLRB, 376 F.2d 216, 223 (4th Cir. 1967), cert. denied 389 U.S. 840 (1967); Alamo Express, 217 NLRB 402 at 403 (1975), citing Brown & Root, 132 NLRB 486, 501, 540-543 (1961), enfd. 311 F.2d 447 (8th Cir. 1963); and I. Posner, Inc., 154 NLRB 202, 204 (1965). As Judge Learned Hand reasoned by analogy, "[i]t rest[s] upon the tort-feasor to disentangle the conse- quences for which it was chargeable from those from which it was immune." NLRB v. Remington Rand, Inc., 94 F.2d 862, 872 (2d Cir. 1938). "[T]he most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created." Midwest Hanger Co., 221 NLRB 911, 917 (1975), enfd. in relevant part 550 F.2d 1101 (8th Cir. 1977), citing Bigelow v. RKO Radio Pic- tures, 327 U.S. 251, 265 (1946). That Respondent chose to risk the potential infusion of vagaries caused by the passage of time occasioned by awaiting the results of its appeals before offering the claimants reinstatement does not alter its burden of proof or serve to shift the burden to the General Counsel. Respondent also asserts that the amount of time it took from the original decision adjudicating the issue of dis- crimination in March 1979 until the start of this hearing in May 1983 was so great as to render the accumulation of information sufficient to sustain the burden of proving mitigation an impossibility. The Supreme Court, in NLRB v. Rutter-Rex Mfg. Co., 395 U.S. 258, 264-265 (1969), placed the cost of any delay on the employer, stating: Wronged employees are at least as much injured by the Board's delay in collecting their backpay as the wrongdoing employer. In view of the "economic hardship caused by many years of undeservedly substandard earnings," lengthy delays "must render the back pay award a wholly inadequate and unsat- isfactory remedy" to the employees for the compa- ny's refusal to reinstate them . NLRB v. Mastro Plas- tics Corp., 354 F.2d 170, 180 (C.A. 2d 1965). This Court has held before that the Board is not required to place the consequences of its own delay , even if inordinate, upon wronged employees to the benefit of wrongdoing employers. [T]he Board could properly conclude that back pay is not only punishment for an unfair labor practice, but is also a remedy designed to restore , so far as possible, the status quo that would have obtained but for the wrongful act. Cf. Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194 (1941). As an aside, Respondent did not aver inability to pay and therefore this issue is not under consideration. See Schnadig Corp., 265 NLRB 147 (1982). The National Labor Relations Act requires the wrong- doer "to bear the risks of uncertainty, as to the extent of the consequences ascribable to their own actions." Elec- trical Workers UE v. NLRB, 426 F.2d 1243, 1251-1252 (D.C. Cir. 1970), cert. denied 400 U.S. 950 (1970). As the Court noted, in Bigelow v. RKO Radio Pictures, supra, 327 U.S. at 265, "The most elementary conceptions of justice and public policy require the wrongdoer shall bear the risk of the uncertainty which his own wrong has created." See further NLRB v. Katz, 369 U.S. 736 at 748 fn. 16 (1962), and citations contained therein. Thus, although unconditional offers of reinstatement went out to all employees on October 6, 1980, the undis- puted failure of the Board to collect information regard- ing the efforts of the discriminatees to mitigate backpay until the spring of 1982 does not eliminate or otherwise alter Respondent's burden of proof. This defense is found to be without merit. b. Lack of discovery Respondent asserts that lack of pretrial discovery is a denial of due process . It is well settled that the fifth RAINBOW COACHES amendment does not require that parties to Board pro- ceedings be permitted prehearing discovery. NLRB v. Valley Mold Co., 530 F.2d 693, 695 (6th Cir. 1976), cert. denied 429 U.S. 824 (1976); NLRB v. Interboro Contrac. tors, 432 F.2d 854, 857-858 (2d Cir. 1970), cert. denied 402 U.S. 915 (1971). It is further held that the National Labor Relations Act does not require or even specifical- ly authorize the Board to adopt discovery procedures. Electromec Design & Development Co. v. NLRB, 402 F.2d 631, 635 (9th Cir. 1969); NLRB v. Leprino Cheese Co., 424 F.2d 184, 187 (10th Cir. 1970), cert. denied 400 U.S. 915; NLRB v. Interboro Contractors, supra at 858. See fur- ther Rutter-Rex Mfg. Co., 194 NLRB 19 (1971), 396 U.S. 258 (1969). See further Flite Chief Inc., 246 NLRB 407 (1979); Medicine Bow Coal Co., 217 NLRB 931 at 932- 937 (1975); and Magic Pan Inc., 242 NLRB 840 (1979). This defense is found to be without merit. c. Laches Respondent, in its first amended answer and also as part of its denial of due-process argument, raises laches as a defense. This defense is related to its allegation that it has been prejudiced by the system employed by the Board to conduct backpay proceedings, particularly in the allocation of burden of proof and development of evidence. As noted by counsel for the General Counsel, the doctrine of laches is not a defense applicable to back- pay proceedings nor does it toll the backpay obligation. Citing Southeastern Envelope Co., 246 NLRB 423, 427 (1979); NLRB v. Rutter-Rex Mfg. Co., supra, 296 U.S. 458; Iron Workers Local 378 (Judson Steel), 213 NLRB 457, 460 (1974); NLRB v. Ozark Hardware Co., 282 F.2d 1, 6 (8th Cir. 1960). This defense is found to be without merit. d. Modifications to the backpay specifications The backpay specifications were modified at least four times. The initial modification occurred the first day of trial before testimony was taken. This amendment was generated by the Board's compliance officer Pamela Tal- kin's discovery of additional income immediately before the commencement of the hearing during interviews with the discriminatees. Another modification was occa- sioned by the discovery of a minor computational error by the compliance officer. Respondent contends that these amendments created confusion and it did not have an opportunity to verify the additional earnings. Re- spondent did not describe with specificity any difficulty occasioned by these amendments, and the almost 2- month hiatus in the trial between June 3 and July 26 af- forded more than ample opportunity to test the accuracy of these amendments. In analyzing this as well as Respondent 's other allega- tions, consideration must be given to the standard that where an employer has discharged an employee unlaw- fully, backpay is "the normal remedy." Golden Day Schools v. NLRB, 644 F.2d 834, 840 (9th Cir. 1981). The fmding of discriminatory discharge "is presumptive proof that some backpay is owed by the violating employer." NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1316 (D.C. Cir. 1972). Accord: NLRB v. Mastro Plastics Corp., 169 354 F.2d 170, 178 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966). The purpose of backpay is "to vindicate the public policy of the [Act] by making the employee whole for losses suffered on account of an unfair labor practice. NLRB v. Dodson's IGA Foodliner, 553 F.2d 617, 620 (9th Cir. 1977), quoting Nathanson v. NLRB, 344 U.S. 25, 27 (1952). The purpose of this proceeding is to restore "the economic status quo that would have ob- tained but for the company's wrongful refusal to rein- state." Pepsi-Cola Bottling Co v. NLRB, 414 U.S. 168, 188 (1973), quoting NLRB v. Rutter-Rex Mfg. Co., supra, 296 U.S. at 263. Accord: Love's Barbeque Restaurant v. NLRB, 640 F.2d 1094, 1103 (9th Cir. 1981). The employer must bear the burden of uncertainty in these situations. See American Ambulance, 255 NLRB 417 (1981). As noted in Marlene Industries Corp. v. NLRB, 440 F.2d 673, 674 (6th Cir. 1971), the General Counsel's burden in a backpay proceeding is limited to showing the gross backpay-what the employees would have earned if the employer had not contravened the Act. The employer then bears the burden of establishing deductions from the gross backpay; for example, interim earnings from alternative employment or willful failure to seek such employment. Id. See also NLRB v. Cambria Clay Products, 215 F.2d 48, 56 (6th Cir. 1954). See fur- ther S. E. Nichols of Ohio, 258 NLRB 1 (1981). Pursuant to the Board's Rules and Regulations (259 CFR Sec. 10253), the General Counsel is required to present only "gross amounts of backpay." The General Counsel also includes in the backpay specification deduc- tions for those amounts in mitigation which the General Counsel discovers through personal interviews, social se- curity records, etc. The General Counsel performs this service in the public interest to provide full information to the employer and to limit the backpay demands, only where aware of sums in mitigation. As noted above, the General Counsel does not thereby assume "the burden of establishing the truth of all the information supplied or of negativing matters of defense or mitigation." NLRB v. Brown & Root, 311 F.2d 447, 454 (8th Cir. 1963). The initial modifications of the specifications prior to the commencement of hearing were merely the General Counsel's revelations of additional discoveries of infor- mation. As such, they cannot be held to have assumed any role that is to be carried by counsel for Respondent who has the burden of establishing mitigation. That some of the information was voluntarily supplied, albeit at the eleventh hour, does not preclude its use. See Flite Chief, supra 246 NLRB at 407, enf. denied in part 640 F.2d 989 (9th Cir. 1981). The allegations involving individual dis- criminatees, wherein Respondent contends they willfully concealed interim employment with any fraudulent intent to increase backpay specifications, will be discussed below. The claimants were discharged at the end of January 1977. The Board, contrary to recommended but not re- quired practice, failed to solicit information from the dis- criminatees until 1982. This delay understandably made it difficult for the individual discriminatees to list with specificity and accuracy the details of their job search 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and led to last-minute disclosures and recollections after face-to-face interviews and discussions. Although Respondent objected to each amendment on the grounds it had no prior notice of such amendment, many of the amendments were occasioned by testimony and evidence adduced by Respondent and Respondent clearly heard and had access to the same testimony as the General Counsel who, as a courtesy to all, recalculat- ed the specifications to ensure the clarity of the record. This practice is found to have assisted all, including Re- spondent. Further, Respondent has failed to demonstrate specifi- cally any injury from those modifications. It has merely made a bare assertion of prejudice . Respondent failed to state either at hearing or in its brief any instance where the scheduling of this proceeding or the granting of an amendment created a circumstance that would require the granting of a continuance. There was not one specif- ic allegation that a witness was unavailable, that time was inadequate to investigate a particular fact, that fur- ther delay would help clarify matters, or that any other argument would support the claim of prejudice occa- sioned by these amendments. The assertion that the Office of the General Counsel was attempting to take actions designed to confuse mat- ters is without merit. At no time prior to the close of this trial did Respondent develop any evidence that indicated the issues were more complex or required greater prepa- ration than was apparent from its inception, or when the trial resumed at the end of July 1983. During the course of the hearing, the presentation of evidence proceeded without the slightest suggestion that the defense was in any sense handicapped by a lack of preparation and, indeed, no specific details to the contrary were set forth by Respondent. A review of the record requires the con- clusion that Respondent has still failed to show good cause for denying any of the amendments. In sum, it is found that the modification to the specifi- cation either occurred prior to the commencement of hearing or merely reflects evidence adduced by Re- spondent. The modifications are consonant with estab- lished law. They have not been shown to be a willful concealment of interim employment from the Board's compliance officer with a fraudulent intent to increase the issuance of backpay specifications or a denial of due process. 3. Jurisdiction Respondent, in its October 14, 1982 answer to the backpay specification, asserted as its second defense that the Board lacks jurisdiction over Respondent. The rais- ing of the issue at this juncture is clearly improper. As noted by the judge in the underlying unfair labor prac- tice proceeding, Respondent admitted, in its answer to the complaint, that at all pertinent times the Company was an employer engaged in commerce and in a business affecting commerce. There is no indication that Re- spondent raised the issue of jurisdiction when it filed ex- ceptions to the judge's finding of jurisdiction nor is there any indication that the issue was raised on appeal before the Ninth Circuit. Respondent's general denial of juris- diction is found to be without merit and untimely. There is no showing that this issue was raised based on newly discovered evidence, previously unavailable evidence, or special entitlement to relitigate the issue. Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). 4. The issues involving subpoenas a. State subpoenas Respondent argues that it has been denied a reasonable opportunity to meet its burden of proof because the State of Hawaii's petition to revoke a subpoena requesting the custodian of the records of the Unemployment Insurance Office, Unemployment Service Division, Department of Labor and Industrial Relations to produce certain records regarding the discriminatees was granted. The State filed its petition to revoke at the commence- ment of trial on the basis of a statutory privilege. I The State argued that the legislative history from the Standing Committee Report 206, Senate Committee on Labor, Hawaii Senate Journal 1969, p. 962, Standing Committee Report 159, House Committee on Labor and Employment Problems, Hawaii House Journal 1969, page 668, and other records and archives clearly indicate that the only matters encompassed under the Federal Civil Rights Act of 1964 and state and local law encompassing the same discrimination areas are exempted from this privilege. Copies of the Senate Journals were provided by the State's counsel. These reports make reference to state employment security agencies cooperating and as- sisting the fair employment practice agencies. Additional- ly, a letter from the director of the Department of Labor referencing this legislation specifically refers to the anti- discrimination requirements of the Civil Rights Act of 1964. Respondent has not adduced any evidence nor made any argument indicating that the legislative history re- Hawaii revised statute sec. 383-95 provides, in relevant part: (a) Except as otherwise provided in this chapter, information ob- tained from any employing unit or individual pursuant to the admin- istration of this chapter and determinations concerning the benefit rights of any individual shall be held confidential and shall not be disclosed or be open to public inspection in any manner revealing the individual's or employing unit's identity. Any claimant (or his legal representative) shall be supplied with information from the records of the department to the extent necessary for the proper presentation of his claim in any proceeding under this chapter. Sub- ject to such restrictions as the director may by regulation prescribe, the information and determinations may be made available to: (1) any federal or state agency charged with the administration of an unemployment compensation or the maintenance of a system of publish [sic] employment offices, (2) the bureau of internal revenue of the United States Department of Treasury, (3) any federal, state or municipal agency charged with the admin- istration of a fair employment practice or antidiscrimination law, and (4) any other federal, state or municipal agency if the director deems that the disclosure to the agency serves the public interest. (b) Information obtained in connection with the administration of the employment service may be made available to persons or agen- cies for purposes appropriate to the operation pf a public employ- ment service. Sec 383-144 of the Hawaii revised statutes provides a penalty for unlaw- ful disclosure of the subpoenaed material by imposing a fine of not less than $20 or more than $200 or imprisonment for not more than 90 days, or both. RAINBOW COACHES quires an interpretation different from that propounded by the State in its petition to revoke. The State of Hawaii has a policy of keeping the employment records confidential to encourage truthful reporting. Respondent asserts that the revocation of the subpoena deprived it of relevant evidence, records that would be probative of reasonable job search, and material useful for impeaching credibility and refreshing recollection. As stated in Canova Moving Storage Co. v. NLRB, 708 F.2d 1498, 1502 (9th Cir. 1983): Canova sought to use the records as evidence of lack of diligence in seeking interim employment. As the Board determined,[2] however, those records would only show what efforts the employees actu- ally reported to the Employment Development De- partment and not necessarily what was actually done. This evidence would have had its most signif- icant value in impeaching the testimony of the em- ployees concerning their efforts in seeking employ- ment. Canova had in its possession Board compli- ance documents and statements made by the em- ployees concerning the job searches that contained evidence analogous to the Employment Develop- ment Department reports. Given Canova's opportu- nity to cross-examine [the discriminatees] . . . on the basis of these materials, Canova was not preju- diced by the revocation. In this case, Respondent similarly sought the records for impeachment purposes. All records of the Board were turned over to the employer well before the com- mencement of hearing and the Board made all discrimin- atees available for examination by Respondent. Counsel for Respondent was aware of the Canova decision since it was cited to him the first day of trial. Counsel did not ask all the individual discriminatees if they filed any re- ports with the State which clearly and truly reflected their efforts in procuring interim employment. Respond- ent did not ask any of the discriminatees what they filed, if they kept records or copies of these filings and, if not, whether they would be willing to get copies from the State. Respondent has failed to state with specificity any reason that the State's claim of confidentiality and privi- lege should not be honored under the circumstances of this case. See NLRB v. Adrian Belt Co., 578 F.2d 1304, 1310 (9th Cir. 1978). See generally General Engineering v. NLRB, 341 F.2d 367, 372-373 (9th Cir. 1965); Herman Bros. Pet Supply v. NLRB, 360 F.2d 176 (6th Cir. 1966). See further Marine Welding v. NLRB, 492 F.2d 526 (5th Cir. 1974). Respondent requests reopening of the record on the basis of the revocation of this subpoena as well as the revocation of subpoenas served on several banks. This motion is denied. The subpoenas to the banks were con- ditionally revoked. As discussed more fully below, the subpoenas to the banks were not shown to be relevant. Respondent filed a special appeal to the Board concern- ing these rulings. The Board denied the appeal without 171 prejudice. Respondent's request to consider the constitu- tionality of the state provision was also denied. b. The subpoenas duces tecum issued to the city and county of Honolulu Respondent's brief did not specifically address the issues it raised on the record regarding these subpoenas. This failure cannot be construed as a waiver of its objec- tions. The city and county of Honolulu sought revoca- tion of the subpoenas duces tecum issued to the custodi- an of records of the Department of Civil Service, De- partment of Public Workers, Department of Finance, and the Honolulu Fire Department. Unlike the state statute, it was found that the applicable statutes did not afford the city and county of Honolulu similar protection against production.3 The petition to revoke was only granted in part. It was granted on those portions of the subpoena referring to individuals for which there are no records. The re- maining records of the city were reviewed in camera to determine if they should be released in toto since all records were requested. That portion of the subpoena re- garding the performance and evaluation reports of the discriminatees who were part-time employees of Re- spondent and full-time employees of the city and county of Honolulu fire department was not shown to be rele- vant. Respondent failed to show how the performance evaluation reports of the fire department were relevant to the issues of mitigation and gross backpay. The fire department leave records were found to be pertinent for they may indicate when employees may have been un- available for work or free to search for a job. The peti- tion to revoke was denied as to those items. The petition was granted as to performance and evaluation reports of the part-time employee of Respondent who was a full- time employee of the city and county of Honolulu's refuse department. Respondent failed to indicate that by s As here pertinent, Chap 92E, Hawaii revised statutes, was enacted in 1980 to implement the following portion of an amendment to the Hawaii state constitution The right of the people to privacy is recognized and shall not be infringed without a showing of a compelling state interest. The legis- lature shall take affirmative steps to implement this right "Personal record" means any item, collection, or grouping of in- formation about an individual that is maintained by an agency. It in- cludes, but is not limited to, the individual's educational, financial, medical, or employment history. . ["Personal record" includes a "public record," as defined under sec . 92-501 HRS sec 92-50 defines "public record" and states- As used in this part, "public record" means any written or printed report, book or paper, map or plan of the State or of a county and their respective subdivisions and boards, which is the property there- of, and in or on which an entry has been made or is required to be made by law, or which any public officer or employee has received or is required to receive for filing, but shall not include records which invade the right of privacy of an individual Sec. 92E-13 provides that- Nothing in this chapter .. shall be construed to permit or re- quire an agency to withhold or deny access to a personal record, or any information in a personal record: (1) When the agency is ordered to produce, disclose, or allow access to the record or information in the record, or when discovery of such record or information is allowed by prevailing rules of dis- covery or by subpoena in any judicial or administrative proceeding 2 261 NLRB 639 (1982) 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD granting the petition to revoke in part , it was deprived of documents which were relevant, material, or otherwise properly sought. Respondent did not ask any of the dis- cruninatees, who were the subject matter of the material sought in the subpoenas that were revoked , if they had copies of the material or any questions relating to that material which might have demonstrated their relevance and materiality. c. Bank subpoenas Respondent also subpoenaed several banks for their records of accounts in the names of some or all of the discriminatees. Some of the banks had representatives present in the courtroom but they declined to produce these documents for fear of violating state law. Some banks apparently did produce records, although Re- spondent did not state which banks complied. An exam- ple of compliance is Respondent's Exhibit 1-19, contain- ing Sai's mortgage payments, which was not admitted into evidence for its relevance had not been established. There were also indications that Respondent had re- ceived other bank records . Also, Fonseca's credit union statements were produced and were the subject of testi- mony by an employee of the fire department's credit union. Counsel for Respondent represented that one of the banks subpoenaed was willing to comply with the sub- poena providing that a certificate of compliance, pursu- ant to a Federal statute, 12 U.S.C. § 3308, was provided. The statute provides that a bank should not release the material until the Government authority seeking such records certifies in writing that it has complied with the applicable provisions of the chapter . Compliance with the statute requires that individuals, whose bank records are subpoenaed, must be served with a copy of the sub- poena which is served on the bank. Counsel for the Gen- eral Counsel refused to sign the certificate of compli- ance, as provided in the financial privacy section of Chapter 12 and asserted that there was no reasonable cause to believe the records were sought for law en- forcement purposes or that the notice provision of the statute had been satisfied . Counsel for Respondent admit- ted that the discriminatees whose records were sought were not served with copies of the subpoenas. I find that these were private subpoenas ; thus, accord- ing to the cited statute, it was not necessary to serve a copy on the discriminatees. The banks requested during the trial that the officer is- suing the subpoenas sign a document. I explained that I was not the issuing officer, but that I had no objection to ordering compliance if the relevance and materiality of the subpoenaed records were established . For example, Respondent was requested to establish whether the bank accounts were joint accounts or were in any way poten- tially probative of the issues involved in this proceeding. Respondent was permitted to repeatedly seek such infor- mation from the discriminatees to demonstrate probable relevance or materiality . Inexplicably , Respondent fre- quently failed to determine the nature of the accounts, such as whether they were mortgage accounts , car loans, or accounts where the discriminatees were merely co- signers. Respondent, near the close of hearing, sought production of Kaaiai's bank records, yet admitted that Kaaiai was not subpoenaed, they knew he was residing on another island, the island of Hawaii . Thus even if the request were granted, there was no mechanism by which to test the relevance and materiality of the subpoenaed documents in Kaaiai's absence. Nothing occurred during the closing stages of this proceeding which would have accounted for Respondent's failure to subpoena Kaaiai at the time it moved for production of his bank records. It is noted that the Fonseca credit union records, which were subpoenaed and were the subject of exami- nation, were not offered as evidence. Also, on the last day of hearing, Respondent requested production of the bank records of Fonseca. Fonseca had testified that day and had been excused after giving rebuttal evidence. This request was not shown to have been justified by the finding of new material . Again, the untimely nature of the request was not explained . Respondent never clearly established that the banks which wished to have certifi- cates of compliance were the same banks where Kaaiai, Fonseca, or other specified claimants kept accounts. The initial ruling refusing to order the banks to comply with the subpoenas was made early in the pro- ceeding and was made subject to renewal by Respond- ents on a showing of relevance and materiality.4 As noted in General Engineering v. NLRB, 341 F.2d 367 at 372-373 (9th Cir. 1975); the NLRB's own regula- tion authorizing revocation states that the administrative law judge or the [Board], as the case may be, shall revoke the subpoena if, in its opinion , the evi- dence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose pro- duction is required, or if for any other reason suffi- cient in law the subpoena is otherwise invalid. [Em- phasis in original.] [29 CFR Sec. 102.31(b) (1979).] Respondent, though repeatedly informed that it should find out the nature of the accounts and other matters to permit a determination of whether the evidence related to the matters under consideration or in question in this proceeding, failed to elicit this testimony. The basis for such failure is unexplained, either on the record or on brief. Without this requested information, it could not be determined if the facts in dispute were more or less prob- 4 It is noted that Respondent's argument regarding the relevance of these matters contained on p. 87 of its brief does not give page citations to the transcript. The brief does indicate at p 86 that Respondent under- stood its obligation to establish the potential relevance of the subpoenaed material. It does mention that they wished to review the records for signs of regular patterns of sizeable deposits. However , when questioning the witnesses, Respondent did not ascertain the nature of the accounts or the claimants' sources of income. Since several of the employees were part- time employees of Respondent with full-time employment elsewhere, Re- spondent did not establish how such regular deposits would indicate in- terim employment Although Respondent 's proposed or potential use of the accounts was clear, there were consistent failures to demonstrate that the subpoenaed documents were of such a nature as to be of potentially probative value. Repeated requests for information to permit an informed ruling were not met by Respondent, even though bank officials were present on two or more occasions , and all discriminatees appeared and testified. RAINBOW COACHES able than they would be without access to the evidence. See Rule 401 of the Federal Rules of Evidence. For ex- ample, if a bank account reflected mortgage payments on a house owned by a spouse , where there is a separation or divorce with a discriminatee who does not have any obligation to make payments, it would not tend to render a consequential fact more probable or less probable than it would without such evidence. Yet counsel repeatedly failed to ascertain the nature of the accounts subpoenaed or to describe such accounts so that the assessment of their relevance could be rationally made. Similarly, if there is a joint account with a spouse and the spouse makes all the deposits and withdrawals, or the account is maintained merely as a part of an estate plan, this would again be a situation where the existence of the account would not make a fact more or less likely than if there were no such evidence. No bank officials were called as witnesses. Respondent still seeks access to these accounts, even though the record demonstrates that some banks had complied with these subpoenas, as detailed further in dis- cussing the individual claimants ' cases. Respondent has not indicated which banks had supplied such records and has not removed their names from the request. In sum, Respondent failed to describe with specificity those ac- counts in banks which failed to comply with the subpoe- na in a manner which would permit a finding of poten- tial relevance. Lack of relevance is a valid ground for quashing subpoenas or granting petitions to revoke. See Howard Johnson Co., 250 NLRB 1412 fn. 2 (1980), citing Madeira Nursing Center v. NLRB, 615 F.2d 728 (6th Cir. 1980). It is concluded that Respondent has failed to dem- onstrate the need to reopen the record to permit exami- nation of the subpoenaed materials. Its brief fails to reveal any new or otherwise unconsidered basis for alter- ing the rulings in the case. The motion to reopen is denied. B. Gross Backpay and Conclusions 1. Background In the underlying decision, supra 241 NLRB 589, the Board found, inter alia, that Rainbow Tours, Inc., by part-owner and principal operating officer Kolt, threat- ened the Company's bus drivers if they sought union representations with the loss "of [his] services, the ac- counts [he] brought in, any possibility of additional new accounts, profits, the new buses, any possibility of wage increases and a question of whether the potential of loss the Company and their jobs would continue," in viola- tion of Section 8(a)(1) of the Act. It was also found that Rainbow violated Section 8(a)(1) of the Act on January 31, 1977, by discharging employees Sanford, Kaui, Iho, Akamine, Agao, Fonseca, Uwata, Kaaiai, Kama, Louis, Sai, and Garrett Wong in retaliation for their support of the Union. Several of these discriminatees were full-time employees. Sanford, Kaui, Akamine, and Agao were listed as holding seniority numbers between one through five on the full-time seniority roster. The remaining dis- criminatees were part-time employees, many of whom had other full-time employment. These part-time employ- ees also were senior employees. It was also found that: 173 Sanford, Kaui, Iho, Akamine, Agao, Fonseca, Uwata, Kaaiai, Kama, Louis and Sai unconditional- ly offered to return to work on February 2, 1977, and G. Wong would have done so but for receiving a report that Kolt had refused to reinstate any of the 11 just named to their former positions and status. Id. The decision also noted that Kolt offered Sanford, Kaui, Iho, Akamine, and Agao reinstatement as new hires, re- sulting in a loss of seniority. These actions were not deemed valid offers of reinstatement and Respondent was ordered to reinstate the discriminatees "to their former jobs or, if those jobs no longer exist, to substan- tially equivalent jobs with full restoration of their seniori- ty and other rights and privileges." 2. Position of the parties Based on the Board's Supplemental Decision and Order issued herein on March 28, 1983 , gross backpay is an issue only about the following discriminatees: Agao, Fonseca, Iho, Kama, Louis, and Sai. Partial summary judgment was granted as to the gross backpay computa- tions for Akamine, Kaaiai, Kaui, and Sanford. No gross backpay was computed for Paul Uwata, who returned to work shortly after he was discriminatorily discharged. However, as the records were not clear whether he was entitled to a day or two of backpay , a compliance officer gave the benefit of the doubt to Respondent. Uwata did not appear and testify in the backpay proceeding. It is found that Uwata is not entitled to any backpay based on the lack of evidence of an entitlement. The General Counsel's office has the burden of estab- lishing gross backpay by seeking to ascertain the proba- ble earnings of a discriminatee during the backpay period. These are earnings which would have been paid had the employee not been unlawfully discharged. See generally the National Labor Relations Board Casehan- dling Manual, Part 3 , Section 10530. 1(c). Four basic gross backpay formulas have been utilized by the Board and approved in the courts through the years . Casehan- dling Manual, Part 3 . The compliance officer is charged with selecting the most appropriate formula to apply in a specific case. See Section 10536 of the Casehandling Manual, Part 3, Compliance Proceedings. This burden of creating a method to determine what would have hap- pened is recognized as frequently problematic and neces- sarily inexact. Taking cognizance of these difficulties, the Board "is only required to employ a formula reasonably designed to produce approximate awards due ." NLRB v. Pilot Freight Carriers, 604 F.2d 375, 378-379 (5th Cir. 1979), quoting Trinity Valley Iron Co. Y. NLRB, 410 F.2d 1161, 1177 fn. 28 (5th Cir. 1969). Accord: NLRB v. Brown & Root, supra at 452. In this proceeding, formula 2 was chosen , which is set forth in Section 10540 of Part 3 of the Casehandling Manual. Gross backpay was computed for the discrimin- atees under this formula using the average number of straight-time and overtime hours each discriminatee worked per week during his last 12 full weeks of em- ployment with Respondent, multiplied by the wage rate 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each individual would have received , taking into account when current employees received raises, plus an average amount of tips each received on a weekly basis prior to unlawful discharge . This figure was then reduced by the ascertained interim earnings to determine net backpay, One week during this 12-week period was not used be- cause Respondent's yard was shut down, which was deemed an unusual or uncharacteristic time period which should not be included in the computations . See Isaac & Vinson Security Services, 208 NLRB 47 (1973). Respond- ent did not claim this week should be included in the backpay calculations . Respondent does not take issue with the General Counsel's including increases in the gross backpay computations received by replacement employees over the backpay period. Formula 2 was chosen to measure the projected earn- ings of the discriminatees as it was "most reasonably de- signed to produce the approximate awards due [citations omitted]." Trinity Valley Iron v. NLRB, supra at 1177. The compliance officer relied on several factors in reach- ing this decision : the length of the backpay period in- volved, several years; the need to take into account wage increases over such a long period, which the use of an average of the earnings of comparable employees similar- ly situated fails to do; the inability to find representative replacement employees similarly or comparably situated with the same skills or preferences, because Respondent honors individual preference for particular tours, particu- larly among the most senior employees , such as the dis- criminatees. The Company's records reflected that the wages and hours worked by its employees fluctuated from week to week and from employee to employee, making it ex- tremely difficult, if not impossible, to determine which of Respondent's current employees were representative of particular discriminatees or all discriminatees . Also con- sidered was the fact that the business operated 7 days a week and each employee had unique working conditions with regard to availability, seniority, skills, and personal preferences. Thus, it was decided that the best measure of future hours was their past hours. Respondent takes issue with the General Counsel's choice of formula 2 and the use of a 12-week period im- mediately prior to their discharge as the basis for deter- mining earnings. Respondent contends that the General Counsel is seeking to accomplish a nonstatutory objec- tive. Specifically, Respondent contends that the General Counsel has chosen a time period and formula "to achieve ends other than those which can fairly be said to effectuate the policies of the Act." See further NLRB v. Seven-Up Bottling Co. ofMiami, 344 U.S. 344, 347 (1953). Respondent argues that the use of formula 2 fails to account for the seasonality of the business and the use of the 12-week period unfairly increases the amount of backpay the employees would have earned if they had not been discriminatorily discharged. It urges that two different formulas be utilized, one for Agao and another for the remaining discriminatees . Also, Respondent con- tends that the 12-week period utilized by the General Counsel was typical for it occurred when the business was beginning to prosper, yet the Company had few drivers which resulted in a unique increase in available straight and overtime work. The Company also claims this was a seasonally active period. The Casehandling Manual, at Section 10540.2(c), states that the chosen for- mula should be used when "the business of the ... em- ployer is not seasonal."6 3. Representative employees Respondent urges the use of formula 4 for computing gross backpay for Agao. Formula 4 in the Board's Case- handling Manual is found in Section 10544. Formula 4 uses the earnings of replacement employees or average earnings of replacement employees per pay period. This particular method of computation was urged because Agao was the only full-time employee whose gross back- pay was still in issue. Respondent would use the five most senior full-time drivers' average quarterly earnings throughout the backpay period to determine Agao's gross backpay. For Fonseca and Sai, who were firemen and part-time employees of the Company prior to their discriminatory discharge, Respondent urges using formu- la 3, which is explained in detail in Section 10542 of the Casehandling Manual. This formula uses the average earnings or hours of a representative employee or em- ployees who worked in a job similar to the discrimina- tees before the unfair labor practice and during the back- pay period. The use of this formula requires the selection of employees whose work, before the unfair labor prac- tice and during the backpay period, is similar to that work performed by the discriminatee. The use of these formulas requires the ability to accurately identify repre- sentative employees. In support of its argument urging use of formula 4 for Agao, Respondent, on page 20 of its brief, refers to Re- spondent's Exhibit V-1 as demonstrating that full-time drivers working for Rainbow during the backpay period would not have worked the hours alleged in the backpay specification nor earned the amount of gross backpay. Respondent's Exhibit V-1 has not been shown to be reli- able. Its computations are based on partial data. The methodology utilized to prepare the exhibit was not shown to be reliable or probative, was not shown to have a reasonable standard error, and was calculated from checkstubs, 50 percent of which were missing. There is no basis on which to find these figures repre- sentative. The exhibit was accepted to permit Respond- ent to argue that the General Counsel was seeking to ac- complish a nonstatutory objective with their calculations. The Company was invited to demonstrate that its meth- odology should be entitled to some weight but has failed to do so. In fact, it appears some of the statistics on the exhibit probably commingled figures for full-time and part-time employees. It used material developed in an ex- hibit marked for identification as Respondent's Exhibit V-2, which was not admitted because it was shown to 5 That section provides- The business of the company is not seasonal. In seasonal industries, there are relatively wide fluctuations in employee earnings depend- ing upon the season of the year Thus, if the unfair labor practice occurred in a season of low business activity , the average of employ- ee earnings during such period would be inordinately low and result in failure to make the discrimmatee whole. RAINBOW COACHES be completely unreliable. The individual who prepared the records for Respondent could not recall the methods he used in its preparation, could not recall how he reached the figures, and could not recall the meaning of references in the exhibit. Because Respondent's Exhibit V-1 uses some material from Respondent's Exhibit V-2, which was not admitted, it is found to be entirely unreli- able-6 The methods used to compile both Respondent's Exhibits V-2 and V-3 did not permit the drawing of the inferences or conclusions necessary to support the Com- pany's assertions. Respondent's Exhibit V-3 is the same as the average pay exhibit, Respondent's Exhibit V-1, except that it contains footnotes. The witness who prepared the exhibit did not add the footnotes, he did not know who did and, thus, the document was not admitted. It is concluded that Respondent's exhibits and other evidence fail to demonstrate any intent by the General Counsel to achieve ends other than those which can fairly be said to effectuate the policies of the Act. On the contrary, Kolt's testimony and the Company's apparent inability to devel- op a reliable statistical analysis indicating the existence of comparable replacement employees confirms the suitabil- ity of the formula selected by the General Counsel. Respondent has failed to demonstrate that the formula chosen by the compliance officer and the General Coun- sel's office is particularly oppressive and is not calculated to effectuate the policies of the Act. Although formula 2 is said to be appropriate when the backpay period is short, it does not indicate any inappropriateness where there is a long backpay period. No formula is perfect or could unquestionably project actual earnings . Formula 3 was rejected as the fairest measure because replacement employees were paid more than claimants and, as is the case with both formula 3 and formula 4, Compliance Of- ficer Talkin could not identify individuals who could fairly be considered replacement employees. No individ- uals were identified by any party as having worked com- parable hours and demonstrated similar work prefer- ences, such as choice of runs or buses. Further, these two formulas fail to take into account the fact, as deter- mined by the judge in the underlying unfair labor prac- tice decision, that the discriminatees were the most senior employees in both the full-time and part-time cate- gories. Respondent's own witnesses indicated that, although the business was subject to wide fluctuations, they were Some other deficiencies in R Exh V-2 are the calculations con- tained therein faded to take into account vacations or illnesses , and, the assumption of status as full-time or part-time employee was based on des- ignations given on payroll , and do not reflect with requisite accuracy when part-tine employees were elevated to full -time status. For example, Uwata was shown only as a full-time employee, yet his testimony clearly demonstrated that he was, for a portion of the time reflected on the ex- hibit, a part-tune employee. The exhibit does not indicate if an employee who left in the middle of the quarter or only worked a couple of days would have his income averaged in with all the others. It does not show how many hours and/or days each listed employee worked during the quarter Accordingly, R. Exh V-2 provides no basis for making a ford- ing of prospective earnings . Respondent's reference to this exhibit is mis- placed See, for example, Br. 23 175 weekly or daily, not seasonal.7 The reasons for these fluctuations are not only attributable to the nature of the business but include individual preferences. Respondent's witness Kolt, the managing director of Rainbow, most clearly presented the uniqueness of each driver's work schedule. Admittedly, seniority affected the drivers' scheduling and runs, which were dependent on individ- ual preference. The Company used the seniority system to give the individuals their choice which varied with their different wants. These accommodations were unique to each employee . Some individuals had Japanese language skills and liked to take Japanese tours. Kolt tes- tified as follows: Seniority system in our company gives the indi- vidual choice. Het [sic] gets choices of what he wants. Depending on the individual, different guys want different things. Some guys want to take Haole tours, meaning tours that are narrated in English. They like the tips. They like the rapport with the people. They fancy themselves as entertainers , which I personally think they are. It's part of the job. Some guys like-some guys prefer the foreign site-seeing because they don't have to talk, or they don't feel like talking and also, the tips were a factor with the foreign tours. Tips were included. With the English-speaking tours, you had to kind of work for them. Some guys preferred-they would want to stay with a certain piece of equipment. Generally, the better ones, depending on-you know, the senior guys got their choice of equipment, okay, but the equipment did not always go to the same place every day. We had to spread it out to keep all the customers happy. These options remained the same after the strike. Such individual selections can greatly impact on income. Some tours are four or more times longer than others. Some of the part-time employees would prefer to work more days or more hours than others. As will be noted in detail later, the firemen in particular worked several 24-hour days and then had several days off. They could individually elect how many days they wanted to work for Respondent on their days off from the fire de- partment. Because the choice of tours was based on se- niority, considering the options available and the record evidence, it is found that each employee's potential earn- ings, as compared to employees with the same or similar seniority, would not necessarily be representative or oth- erwise analogous for computation of backpay. Respond- ent has failed to indicate how the formulas it urges over- come this difficulty or meet this exigency. The Company failed to show any replacement employee or employees were representative of a claimant. The Company also failed to show that its records do not correctly reflect its T See the testimony of Paul Uwata , Tr 2419, where he indicated the number of hours he worked each week fluctuated weekly or at times daily. This situation obtained both before and after the strike. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees' wages prior to their unlawful discharges. Pat Izzi Trucking Co., 162 NLRB 242 (1966). 4. Seasonality The testimony fails to demonstrate that the tourist in- dustry is highly seasonal. The record clearly shows that the business is highly sensitive to market changes. Re- spondent's chief managing officer, Kolt, indicated that business changes on a daily basis, affected by such fac- tors as airline rates, holidays on the mainland, and weather on the mainland . Business increases with the se- verity of the winter on the mainland and decreases if the winter weather is good on the mainland. There was also testimony that the Christmas holiday season is a very active tourist time; but this factor is counterbalanced by the inclusion in the 12-week computation period of Thanksgiving and the period shortly thereafter, which is a very slow business period for the tour bus industry. The fluctuations that occurred during the 12-week period selected by counsel for the General Counsel were not shown to be aberrational or otherwise unrepresenta- tive of any other 12-week period. In support of its position concerning seasonality, Re- spondent produced a late-filed exhibit after the close of hearing, Appendix A, based on the plethora of material, particularly payroll records, introduced without objec- tion into the record. Late-filed exhibits were permitted to avoid surprise occasioned by recalculation or utilization of portions of the voluminous payroll records in the si- multaneously filed briefs. To afford comment on any such calculations, both parties were given the opportuni- ty to file exhibits which detailed the exact calculations prior to the brief date. Respondent's Appendix A was based on its voluminous payroll records. Respondent merely stated that Appendix A was taken from Respondent's Exhibits V-6 and V-7, which are 1976, 1978, and 1979 payroll records. Why 1977 payroll records were not used is unexplained. These computer readouts total thousands of pages. Respondent failed to state in its filing how the exhibits were compiled and its method of extrapolation. It is therefore found that this exhibit is unreliable and not probative. However, even if Appendix A were found to be reli- able, it demonstrates the lack of seasonality. As noted by both the compliance offiber and Kolt, the amount of the Company's business varies greatly from week to week and from day to day. For example, in 1980, the amount of business during the first and second weeks of the year was quite low, and yet in the third and fourth weeks there was an extremely high volume of business. Con- versely, in 1978, it appears that business declined during the second and third weeks of the year. Similarly, in 1980, there appears to be a decline in business around Thanksgiving and yet, in 1978, there appears to be an in- crease in business around that time. Therefore, it is found that Respondent's own exhibit demonstrates that there is no cyclical fluctuation in the business based on seasons and, hence, there is no showing of seasonality. See Sec- tion 10540.2(c) of the Casehandling Manual. 5. Utilization of a 12-week period Respondent's attack on the use of a 12-week period is not persuasive. The period was not shown to be insuffi- cient in length to be truly reflective of actual earnings. According to Respondent's own questionable exhibits, there was no such thing as a representative week; each week and day are different and subject to caprices that are not seasonal, such as the booking of conventions and the weather in other parts of the world. A 12-week period was selected because some of the discriminatees only worked for Respondent during that period of time. As noted by Administrative Law Judge Charles W. Schneider, in DeLorean Cadillac, 231 NLRB 329 at 332 (1977), "The actual earnings of employees in a represent- ative period prior to their discharge is a foundational for- mula traditionally used by the Board in determining the amount of backpay due discriminatees." As Administra- tive Law Judge Knapp said, in Chef Nathan Sez Eat Here, Inc., 201 NLRB 343, 345 (1973), that the actual earnings is "[t]he most fair, suitable and equitable formu- la to employ, and should not be departed from in the ab- sence of special circumstances." The formula proposed by the General Counsel in Chef Nathan Sez substantially fitted those requirements. It covered a period of employ- ment broad enough to be representative, and recent enough to be typical of relevant performance. That being so, the burden was on the respondent to establish special circumstances requiring deviation from it, and to propose a more satisfactory formula. As was the case in DeLor- ean Cadillac, id., the Respondent herein failed to meet either of those burdens. Respondent also failed to demonstrate that the 12- week period used by the General Counsel was not repre- sentative of average earnings. In Erlich's 814, Inc., 241 NLRB 1114 (1979), it was found that earnings during a representative 10-week period preceding discharge, pro- jected by calendar quarters over the backpay period, was a satisfactory method of determining gross backpay and was not arbitrary or unreasonable. In East Belden Corp., 267 NLRB 262 (1982), the Board rejected Respondent's contention that the 8-week period chosen by the General Counsel was inappropriate when it did not provide a more appropriate period. As noted in NLRB v. Pilot Freight Carriers, 604 F.2d 375, 379 (5th Cir. 1979): The use of Johnston's average weekly earnings for the seven weeks preceding his discharge as the basis for computing backpay was a reasonable formula. Because the strike was caused by the Company's il- legal action, any diminution in work opportunities during the strike period is no reason for reducing Johnston's award. Respondent argues that its business increased since the unlawful discharges; that it had just commenced a build- ing period during that time; that it had difficulty with equipment, which was subsequently replaced; that it has added customers; and thus, the use of actual hours may not reflect the time replacement employees, if such could be found, would have worked because there appears to be a greater subsequent demand on employees. Compli- RAINBOW COACHES 177 ance Officer Talkin testified that the 12-week computa- tion period was selected not only because it was consid- ered representative, but because Administrative Law Judge Christensen indicated in the underlying decision that Respondent added several buses and new accounts during this quarter . She thus determined that the period prior to the discharges was more indicative of future earnings . Respondent also avers that it has increased its full-time staff, thereby eliminating the need for as many hours from part-time employees. Such an argument is mere surmise. It is unknown whether Respondent would have increased its full-time staff in the same manner save for the unlawful discharges , for there would not have been a dearth of experienced drivers. There was no showing such increases in full-time drivers would have impacted on the income of the discriminatees , the most senior employees. Such surmise is insufficient to warrant a finding of the establishment of special circumstances requiring deviation from the proposed formula. Although an operational change more full-time em- ployees might have resulted in a change in earnings for the discriminatees, it is equally reasonable to assume that if the discriminatees were not discharged and were af- forded the opportunity to continue working under the same system, which Respondent stated still obtains, their wages would have been comparable to those of the back- pay period selected by the General Counsel, heretofore found appropriate . See East Texas Steel Castings Co., 116 NLRB 1336, 1337 (1956), enfd. 255 F.2d 284 (5th Cir. 1958). Also, Respondent failed to reconcile this merely speculative contention with its admission that business has shown an overall increase which may have resulted in increased work for part-time employees. In sum, Respondent has failed to indicate why any em- ployee or group of employees' incomes were more repre- sentative than the discriminatees ' earnings for the 12- week period used by the General Counsel in computing backpay. Respondent has not met its burden of showing the basis for computing gross backpay is "a patent at- tempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540 (1943). It is clear that the General Counsel has met its require- ment to select "a formula reasonably designed to produce the approximate awards due." Trinity Valley Iron & Steel Co. v. NLRB, 410 F.2d 1115 , 1177 fn. 28 (1969). The utilization of a period immediately prior to the unlawful discharges has been found to be appropriate for use in formulating the earnings percentage or multi- plier in the formulation of gross backpay. NLRB v. Pilot Freight Carriers, supra, 604 F.2d at 375. 6. Conclusions It is thus concluded that because Respondent has failed to show that employees it selected during the backpay period performed work during that period, which is rep- resentative of the work done by the class of discrimina- tees as a whole or for subgroups within that class, its al- ternative proposals for computing gross backpay are re- jected. Those groups of employees or employees selected as representative were not shown to have the same skills, work exigencies, or preferences. Respondent has singu- larly failed to show that there was a readily determinable individual or group of individuals who made the same choices of routes, buses, days off, and other income-pro- ducing factors as the discriminatees . Many of Respond- ent's alternatives are based on data that are not clearly defined or were derived in manners rendering them com- pletely unreliable . The General Counsel affirmatively showed that its measure was reasonable, and the timely raised alternatives proposed by Respondent using re- placement employees were not shown to have been rep- resentative of the discriminatees. The General Counsel's premises for the use of formula 3 for gross backpay are found to be appropriate. As noted by the court in NLRB v. Rice Lake Creamery Co., 365 F.2d 888 at 891 (D.C. Cir. 1966): This formula may not reach the exactly correct figure, but there is no suggestion of a formula that could, since the discriminatees did not actually work during the period. The formula used is a rea- sonable and legal basis for computation of gross amounts, and has had approval in court decisions. [See Chef Nathan Sez Eat Here, Inc., supra 201 NLRB 343; NHE/Freeway, Inc., 218 NLRB 259 (1975); and DeLorean Cadillac, supra, 231 NLRB 329.] Based on the exigencies present in this proceeding, and considering the conflicting backpay formula arguments, it is found that the formula propounded by the General Counsel is the most accurate method of determining gross backpay. J. S. Alberici Construction Co., 249 NLRB 751 (1980); American Mfg. Co. of Texas, 167 NLRB 520 (1967). When there are any uncertainties , such as the po- tential impact of the fluctuations in business and respond- ent's employment of a greater number of full-time driv- ers after the strike and after the discharge of the dis- criminatees, they will be assessed against the wrongdoer. NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966). Respondent failed to set forth an alternative formula or furnish appropriate supporting figures for computing the amounts owed with sufficient particularity and reli- ability as to permit the sought substitutions . The backpay award is only an approximation and the Board has con- siderable discretion in selecting a methodology which is reasonably designed to approximate the amount of back- pay a wrongfully discharged employee would have re- ceived absent the employer's wrongful conduct. Re- spondent has failed to show a representative employee or a backpay period that was demonstrated to be more rep- resentative than that chosen by the General Counsel. Re- spondent's proposals are replete with numerous unsup- ported speculations and assertions. It is concluded that the General Counsel's computations of gross backpay more than meets the legal standards of permissible dis- cretion in determining approximate gross backpay. See NLRB v. Carpenters Local 180, 433 F.2d 934 (9th Cir. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1970); Iron Workers Local 378 (Judson Steel), 262 NLRB 421 (1982).8 C. Woolworth Formula Respondent, based on its previously discussed claim of seasonality, requests relief from application of the Wool- worth formula. Citing NLRB v. Seven-Up Bottling Co. of Miami, supra, 344 U.S. at 350. The court, id. at 345, cited F. W. Woolworth Co., supra, 90 NLRB 289 at 292- 293 (1950) stating: The public interest in discouraging obstacles to industrial peace requires that we seek to bring about, in unfair labor practice cases, "a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimina- tion." In order that this end may be effectively ac- complished through the medium of reinstatement coupled with back pay, we shall order, in the case before us and in future cases, that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly pe- riods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which [the employee] would normally have earned for each such quarter or por- tion thereof, [his] net earnings, if any, and any other employment during that period. Earnings in one particular quarter shall have no effect upon the backpay liability for any other quarter. The court further provides, id. at 349, as follows: This is not to say that the Board may apply a remedy it has worked out on the basis of its experi- ence, without regard to circumstances which may make its application to a particular situation oppres- sive and, therefore, not calculated to effectuate a policy of the Act. The Company in this case main- tains that it operates a seasonal business, that em- ployees may earn three times as much in the first and fourth quarters of a year as in the second and third, and that a quarterly calculation of backpay would, in this context, be obviously unjust. Respondent states that the use of the Woolworth formu- la is oppressive in the instant proceeding because it oper- ates a seasonal business. As noted above, there was no showing of seasonality. Rather, there were great fluctua- tions in the business and in income among the individual drivers week to week, day to day, with no showing that such fluctuations were attributable to seasonal factors. Further, there was no showing that these fluctuations oc- curred within the backpay period in such a pattern or 8 The Board "is only required to employ a formula reasonably de- signed to produce approximate awards due " Trinity Valley Iron & Steel Ca Y. NLRB, supra, 410 F.2d at 1177 fn 28; NLRB v. Charley Toppino & Son.% Inc., 358 F.2d 94, 97 (5th Cit. 1966); NLRB v East Texas Steel Casting Co., 255 F.2d 284 (5th Cir. 1958) under any other special circumstance that would create an injustice if the Woolworth formula were applied. There was no showing that any employee sufficiently representative of any of the discriminatees received less money than a discriminatee would have received during the same period; nor was there any showing that apply- ing the Woolworth formula in the computation of interim earnings would result in a windfall . As the Board noted in Nelson Metal Fabricating, 259 NLRB 1023, 1024 (1982), Respondent's contention that computation of backpay on a quarterly basis was inequitable without foundation in law or reason is unpersuasive, for while ap- plication of Woolworth was never intended to be rigid or inflexible, there was no showing that the application of the formula produced a punitive remedy inasmuch as the employer rightfully exercised its right to assume the risk to resist reinstatement and backpay until after court en- forcement of the Board's order, risking the potential that the discriminatees would seek more gainful employment for a greater part of the backpay period. It took the risk and lost. This assumption of knowledgeable risk does not constitute an inequity or special circumstance of the genre discussed in NLRB v. Seven-Up Bottling, supra, 344 U.S. at 350, or warrant application of the pre-Woolworth rule. The Woolworth formula will be used in the compu- tation of interim earnings where such earnings are found to properly obtain. D. Other Affirmative Relief 1. Fraudulent concealment and poor recordkeeping During the trial, Respondent was permitted to amend its reply to include as an affirmative defense the assertion that claimants who were found to have withheld rele- vant information from the Board prior to the hearing be found to have fraudulently concealed interim earnings. The Company was also permitted to argue that any em- ployee who failed to respond in a timely fashion to the Board's request for information should not profit from these acts by permitting Respondent to be relieved of all interest payments . It also urges that all claims for back- pay be barred when claimants failed to keep records or refused to furnish the NLRB with reasonably accurate records of their job search, because such failure consti- tutes a willful nondisclosure of material evidence. The Board, in American Navigation Co., 268 NLRB 426 (1983), recently found that entitlement to backpay is dependent on the determination that such an award is necessary to effectuate the policies of the Act, citing Phelps-Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941), which is quoted as follows: [W]e must avoid the rigidities of an either-or rule. The remedy of back pay, it must be remembered, is entrusted to the Board's discretion; it is not me- chanically compelled by the Act. And in applying its authority over back pay orders, the Board has not used stereotyped formulas but has availed itself of the freedom given it by Congress to obtain just results in diverse, complicated situations. RAINBOW COACHES In analyzing the situation when there was a willful concealment of earnings, the Board determined that backpay will be denied for the quarters involving such concealment. The Board further found, however, with regard to the backpay for other quarters: On the other hand, to deny backpay in an amount that exceeds that which is necessary to deter deception is to provide a respondent with an unjustified windfall and to permit it to avoid the consequences of its unlawful conduct for no useful purpose. We find that a remedy which denies back- pay for the quarters in which concealed employ- ment occurred will discourage claimants from abus- ing the Board's processes for their personal gain and also deter respondents from committing future unfair labor practices. This remedy will be applied, of course, only in cases where the claimant is found to have willfully deceived the Board, and not where the claimant, through inadvertence, fails to report earnings. [American Navigation Co., 268 NLRB 426, 428 (1983).] The testimony has been evaluated and the facts analyzed to determine if there was a failure to report earnings and if such failure resulted from a deceitful intent or honest error. There was no showing of willful deceit. The fail- ure of claimants to accurately recall facts over the long period of time involved in this case is insufficient to deny the claimants a make-whole remedy, including interest. Respondent must show that the claimants' conduct was sufficiently egregious to warrant forfeiture of a remedy designed to effectuate the purposes of the Act. It has failed to meet this burden of proof. See Iowa Beef Pack- ers, 144 NLRB 615, 622 (1963); and D. V. Copying, 240 NLRB 1276 fn. 2 (1979). The Board addressed the issue of poor recall and rec- ordkeeping in Arduini Mfg. Corp., 162 NLRB 972, 975 (1967), holding that although claimants may have some difficulty in recalling past events and were guilty of poor recordkeeping, the fact that they testified openly and fully to the best of their recollection and disclosed all in- terim earnings, withholding nothing, does not present facts barring recovery. The burden still remains on the Respondent to show failure to mitigate or otherwise reduce or eliminate entitlement to backpay. Discriminatees were not sent backpay claim forms until 1982. When asked, their testimony varied as to their reasons for submitting incomplete forms. Claimants are not disqualified from receiving backpay solely because of poor recordkeeping or uncertain memories. See Izzi Trucking Co., 162 NLRB 242, 245; Hickory's Best, Inc., 267 NLRB 1274 (1983). All the claimants were made available repeatedly for examination by Respondent. There was no showing that any of the claimants engaged in falsehoods, padding of expenses or claiming expenses that were unreasonably large. Respondent was also af- forded every opportunity to call and examine representa- tives of all companies named by the claimants. That these companies by and large failed to keep records more than a year is not a circumstance that should re- dound to the detriment of the claimants. The holding of 179 this backpay hearing, well after valid offers of reinstate- ment were made to the claimants, was not by their choice. Under these circumstances, the claimants' poor record- keeping and reporting practices are not sufficient to ab- rogate their entitlement to backpay. Poor recordkeeping may have relevance only as it may impugn the reliability of the claimants' testimony. In general, the claimants im- pressed me as honest witnesses who received large pack- ets of forms from the General Counsel's office long after the events in question. Many claimants delegated the completion of the forms to spouses or other relatives. Poor recordkeeping was not shown to be intended to de- ceive or mislead. The failure was more the failure of Board personnel to follow usual practices of clearly in- forming alleged discriminatees around the time a com- plaint is issued of the necessity to maintain and retain records of their job searches and interim earnings as well as expenses incurred in such activities. This failure by the Board should not and does not redound to the detriment of the claimants. Respondent's own election to defer its offers of reinstatement until resolution of the underlying unfair labor practice proceeding by the Ninth Circuit Court of Appeals was also a cause of delay. This self-in- flicted burden does not alter the outstanding case law re- garding the claimants' obligation to maintain and retain records. Accordingly, Respondent's assertions that this failure denied the Company due process or abolishes its backpay obligations are without merit. E. Interim Earnings 1. In general Respondent asserts that each claimant's net backpay should be reduced because there was individually failure to mitigate damages. The underlying decision ordered that the employees be made whole for the loss of pay suffered as a result of Re- spondent's unfair labor practices. In computing the remedy, deductions are made from gross pay "for actual [interim] earnings of the worker, [and] also for losses which he willfully incurred" by a "clearly unjustifiable refusal to take desirable new employment." Phelps-Dodge v. NLRB, supra, 313 U.S. at 197-200. These deductions for interim earnings are permitted "not so much [for] the minimization of damages as [for] the healthy policy of promoting production and employment." Id. at 199-200. Further, "[t]he cases are unanimous that the defense of willful loss of earnings is an affirmative defense, and that the burden is on the employer to prove the defense." NLRB v. T Reynolds Box Co., 399 F.2d 688, 689 (6th Cir. 1968); NLRB v. Mooney Aircraft, supra, 366 F.2d 809 at 813 (5th Cir. 1966). It is the duty of the employer "to carry the burden of proof and to point out what evidence in the record sus- tains . . . [its] claim, as against the presumptive proof of the Board's findings that the employees did not sustain willful losses." NLRB v. T. Reynolds Box Co., supra, 399 F.2d at 670. The proof of the claimant's search for inter- im employment "is in no sense a part of the [General Counsel's] case." NLRB v. J. G. Boswell Co., 136 F.2d 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 585, 597 (9th Cir. 1943). As noted above, in this particu- lar case the General Counsel did comply with the Board's nonbinding policy that , after issuance of the backpay specification, it turned over to Respondent all the factual information it obtained which was relevant to the computation of net backpay, including search for em- ployment or availability for employment . See NLRB Casehandling Manual, Part 3, Compliance Proceedings, Section 10663.1-.3. The basis for the employer being given the burden of demonstrating mitigation is because "it is not practical, and it would significantly hamper the backpay remedy, if each discriminatee were required to prove the propriety of his efforts during the backpay period." NLRB v. Miami Coca-Cola Bottling Co., supra, 360 F.2d 575. One basis for mitigation is the demonstration that a discrimi- natee "willfully incurred" loss by a "clearly unjustifiable refusal to take a desirable new employment." Phelps- Dodge Corp. v. NLRB, supra, 313 U.S. at 199-200. The burden is on the employer to prove the necessary facts to establish such a willful loss of earnings . NLRB v. Mooney Aircraft, 366 F.2d at 813. To meet this burden, the employer must affirmatively demonstrate that the employee "neglected to make reasonable efforts to fmd interim work." Id. at 576. The employer fails to meet the burden by merely presenting evidence of lack of employ- ee success in obtaining interim employment or a demon- stration of low interim earnings. In determining if a dis- criminatee met his burden to mitigate, "he is held .. . only to reasonable exertions in this regard, not the high- est standard of diligence."9 NLRB v. Arduini Mfg. Co., 9 The concepts of "willful loss of income" and "reasonable efforts to mitigate" were explained in detail in Aircraft & Helicopter Leasing Co., 227 NLRB 644 at 646 (1976), affd. in High View, Inc, 250 NLRB 549, 550-551 (1980), and Neely's Car Clinic, 255 NLRB 1420 (1981), which provides: An employer may mitigate his backpay liability by showing that a discriminatee "willfully incurred " loss by a "clearly unjustifiable re- fusal to take desirable new employment" (Phelps Dodge Corporation v. NLRB, 313 U S 177, 199-200 (1941).), but this is an affirmative defense and the burden is upon the employer to prove the necessary facts. N.L.R.B. v. Mooney Aircraft. Inc., 366 F.2d 809, 813 (C.A. 5, Cir 1966). The employer does not meet that burden by presenting evidence of lack of employee success in obtaining interim employ- ment or of low interim earnings , rather, the employer must affirma- tively demonstrate that the employee "neglected to make reasonable efforts to find interim work." N.L.R.B v Miami Coca-Cola Bottling Company, 360 F.2d 569, 575-576 (C A. 5, 1966). Moreover, although a discriminatee must make "reasonable efforts to mitigate (his] loss of income ... [he] is held ... only to reasonable assertions in this regard, not the highest standard of diligence ." NLR.B. Y. Arduini Manufacturing Company, 395 F.2d 420, 422-423 (C.A. 1, 1968) Suc- cess is not the measure of the sufficiency of the discrimmatee's search for interim employment; the law "only requires an honest good faith effort." N.L.R.B. v. Cashman Auto Company and Red Cab Company, 223 F.2d 832, 836 (C.A. 1). And in determining the rea- sonableness of this effort, the employee's skill and qualifications, his age, and the labor conditions in the area are factors to be considered. Mastro Plastics Corp., 136 NLRB 1342, 1359 [1962]. In determining whether an individual claimant has made a reasonable search for employment, the test is whether the record as a whole estab- lishes the employee had diligently sought other employment during the entire backpay period. Saginaw Aggregates, Inc., 198 NLRB 598 (1972); Nickey Chevrolet Sales, 195 NLRB 395, 398 (1972). It is well established that any uncertainty in the evidence is to be re- solved against Respondent as the wrongdoer . NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966); Southern Household Products Co., 203 NLRB 881 (1973). supra, 395 F.2d at 422-423. The basis for this determina- tion is that success is not a measure of sufficiency of search for interim employment for the law "only re- quires an honest good faith effort." NLRB v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955). Also consid- ered in determining the reasonableness of efforts are the employee's skills and qualifications, his age, and the labor conditions in the area. Mastro Plastics Corp., 136 NLRB 1342, 1359 (1962). In determining diligence, activity during the entire backpay period is considered as well as the entire record. Saginaw Aggregates, supra; Nickey Chevrolet Sales, supra. Any uncertainty in the evidence is to be resolved against the company as the wrongdoer. NLRB v. Miami Coca- Cola Bottling Co., supra; Southern Household Products Co., supra. See generally Aircraft & Helicopter Leasing, supra; Westin Hotels Corp., 267 NLRB 244 (1983). As Judge William J . Pannier noted in Electrical Work- ers IBEW Local 401 (Stone & Webster Engineering), 266 NLRB 870, 875 (1983): [I]t is a fundamental proposition of backpay doc- trine that "there is no requirement that an employee wrongfully terminated must instantly seek new work." Keller Aluminum Chairs Southern, supra, 171 NLRB 1252 at 1257 [(1968)]. Accord: Saginaw Ag- gregates, 198 NLRB 598 (1972). For example, in Keller an employee who did not seek work during the 2-week period immediately following the dis- crimination against him was held not to have failed to exercise due diligence where thereafter he sought the obligation imposed by the mitigation doctrine, i.e., sought interim employment. Similarly, an em- ployee who quit one interim job to take another at a higher rate of pay was held not to have incurred a willful loss of earnings, as a result of having quit the first employer, when he was laid off by the second employer, absent "evidence that the employment with [the first interim employer] was `permanent' while that with [the second interim employer] was specified to be `temporary."' Laborers Local 1440 (Southern Wisconsin Contractors), 243 NLRB 1169, 1172 (1979). These general principles will be considered in determin- ing the backpay entitlements of the individual claimants. 2. Economic defenses Respondent asserts that the economic situation was such that the claimants should have found interim em- ployment readily throughout the entire backpay period. In support of this claim, Respondent introduced evidence through H. Laurence Miller Jr., a professor of economics at the University of Hawaii. Dr. Miller was found to be an expert as defined in the Federal Rules of Practice. He based his testimony on material provided to him almost, if not entirely, by Respondent. Dr. Miller's testimony is found not to be probative of job availability inasmuch as he admittedly could not attest to the truth and accuracy of the materials he reviewed. These materials did not adequately describe how they were compiled, the source of their statistics, the methodology employed to arrive at RAINBOW COACHES those statistics, or the derivation of estimates for particu- lar occupations or industries. Certain of Dr. Miller's testimony was not placed into a usable context. For example, be stated there was a gener- al increase in tourism but there was no evidence whether there was a concomitant increase in the tour bus business derivative from that general increase in tourism. There is evidence of record from other witnesses that the nature of tourism had changed, and that many tourists are now traveling independently and not using tour buses. Thus there is no basis in the record to analogize an increase in tourism with an increase in job availability as a tour bus driver. Dr. Miller could not opine whether the individ- uals involved in this particular proceeding, based on the information he had, had made a good-faith job search consonant with the term as used in the field of econom- ics, particularly those used in Respondent's Exhibits S-2 and S-3, which are articles by two economists entitled "The Economics of Job Search: A Survey," reprints from a magazine entitled "Economic Inquiry," Volume XIV, June 1976, which describe optimum job search uti- lizing a compendium of sociological, psychological, and economic factors. This definition of "job search" was not shown to be analogous to the applicable legal definition. Application of these studies, whose accuracy and predicates he did not know and could not commend, led him to the general conclusion that some claimants were successful in fmding interim employment by chance, re- gardless of the fact that they were full-time or part-time workers. He suspected, without any factual basis, that in- dividual need for income might have had an impact on the intensity of job search, but he really did not know. Individual idiosyncracies or unique attributes, such as the ability to speak a foreign language, had some bearing on success. The individual's personal attitudes, whether they were depressed or had a positive perception of self- worth, could affect intensity of job search. All these are factors that could increase chances for success. Thus, based on his testimony, mere chance could have been the primary attribute that led to success or lack thereof in finding interim employment. In sum, there was no eco- nomic evidence given by Dr. Miller that would support a fmding of failure to mitigate by any of the claimants. 3. Testimony of the bus companies In further support of its position, Respondent elicited testimony from approximately seven bus companies about job availability. As noted in Respondent's brief, the bus companies did not retain job applications for a period of time sufficient to permit a determination that any of the claimants, who were not hired by these com- panies, did not apply for employment. These companies only retained job applications of individuals they hired. Where there was testimony that names of claimants were unfamiliar or there was no recall of their applying for jobs, there was no reliable context in which to evaluate this information. For example, the mere passage of time would impair memory; a claimant could have telephoned and been told there were no jobs available, which could be construed by the bus company representative as fail- ure to apply for a job; and the individual testifying might not have been the individual who was approached, either 181 telephonically or in person with an inquiry from a claim- ant about a job.' ° These bus company witnesses testified about the number of drivers they hired during the backpay period. This testimony is not probative in determining job avail- ability for in almost all instances there was no showing of a direct correlation between the number of drivers hired per year and the number of applicants. There was no showing of the attributes the employer was seeking in drivers, such as foreign language skills or any other spe- cial factors. For example, Cheryl Kasamoto of Robert's Hawaii, Inc. testified that in 1979 Robert's hired nine in- dividuals who were both new employees and rehires. She does not know how many of the nine were rehires; they could have given preference to individuals who had previously worked for them. It was not ascertained if re- hires are given preference as an industry or company practice. The figures proffered by the different bus com- panies indicating the number of people hired were not placed in a context which would indicate job availability of a nature that is indicative of job availability or a will- ful failure to mitigate by any claimant. In the instant proceeding, not one employer testified that any of the claimants refused an offer of employment nor did they represent that if any particular claimant had applied for work with them they would have been hired. There was no explanation why some of the claimants, who testified that they filed for employment with certain companies, were not hired. As Administrative Law Judge Schneider found in Firestone Synthetic Fibers Co., 207 NLRB 810, 814 (1973): In this context, their testimony to the effect that they hired X number of employees during the back- pay period is thus of no significance whatever with respect to the issue of whether [claimants] would have secured employment had [they] applied. See further Midwest Hanger Co., supra, 221 NLRB 911 (1975). 4. Analyses of individual claims a. Simeon Agao Jr. The gross backpay listed in the backpay specification for this employee totals $60,813.09, covering a period from the day after his unlawful discharge on January 31, 1977, to October 21, 1980, which is approximately 2 weeks after a valid offer of reinstatement was sent to him, albeit not to his current address. Respondent does not question the use of October 21, 1980, as the date for the cessation of Agao's backpay period. The backpay specification indicates that this claimant had net interim earnings including unquestioned expenses of $15 for mile- 10 For example, Charles G Moffat, of Robert's Hawaii Tours and Transportation, stated specifically that he had personal knowledge that Sanford did not apply However, it was further ascertained that Robert's has more than one office , that Sanford could have inquired at another office or from an individual at the office where Moffat worked but not Moffat, been told that there were no openings and Moffat would have no knowledge of such an inquiry Moffat did not know what the personnel director actually told prospective employees 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD age and telephone calls, for a total net backpay of $7321.18. Respondent avers that Agao did not sufficiently miti- gate because he accepted, on March 5, 1977, a lower- paying position as a full-time driver with Robert's Hawaii Tours. At one time, the job became part-time due to renovations to Robert's facilities. Although he worked 8 hours a day as a part-time employee, he received sub- stantially lower wages and benefits. Respondent asserts that because the job at Robert's was a lower-paying posi- tion, Agao did not make an adequate job search for an equivalent position. Citing McCann Steel Co., 239 NLRB 1302 (1979), implementing the decision in McCann Steel v. NLRB, 570 F.2d 652 (6th Cir. 1978); NLRB v. Madi- son Courier, Inc., 505 F.2d 391 (D.C. Cir. 1974). In McCann Steel Co., supra, 239 NLRB at 1302, it was found: In its decision [McCann Steel Co. v. NLRB], the Court stated (570 F.2d at 655): We believe that "substantially equivalent employ- ment" refers to the hours worked at the interim employer as well as the nature of the work there. Thus, Hinsley refused to accept "substantially equivalent employment" when he refused to work the same numbers of hours at his interim employer as he worked at McCann. This was a willful loss of earnings. The NLRB should calcu- late a constructive interim earnings figure based upon the amount of pay Hinsley would have re- ceived at his interim employer had he always worked the same number of hours, including overtime, he averaged at McCann to the extent those hours were available at the interim employ- er. The NLRB should then deduct the new con- structive interim earnings figure from the amount Hinsley would have earned at McCann in calcu- lating the back pay award. The instant case is clearly distinguishable. Agao testi- fied credibly"' and without controversion that he worked all the time available at Robert's, seeking all pos- sible overtime, but that overtime was not compensated in the manner that it was at Rainbow. Respondent, appar- ently cognizant of the veracity of this testimony, next argues that Agao should have continued his job search after accepting the position at Robert's since the terms and conditions of his employment at Robert 's were not as favorable as they were at Rainbow and, therefore, he should have searched for more suitable work. Respond- ent, however, failed to demonstrate that the position at Robert's was significantly lower paying or was so dan- gerous, distasteful, or essentially different from his em- ployment at Rainbow as to incur an obligation to seek other employment. Agao, a few days before accepting the Robert's position, was working for VSP Tours and the earnings he made at VSP Tours were deducted as in- terim earnings. That VSP Tours was not listed on the forms he submitted to the Board detailing the nature and i i Agao testified with candor, a forthright demeanor and inherent con- sistency. extent of his job search does not discredit him. Agao did, prior to commencement of this proceeding , report these earnings. Respondent also argues that Agao did not make a dili- gent search between his discharge and his employment with VSP Tours and Robert's. Agao testified that in February 1977 he looked for work at the following bus companies: Hawaiian Discovery, Hawaiian Scenic, MTL-which is also called the Bus and is the public transportation company for the area the Kauai Electric Company and Barking Sands Missile Base. Respondent asserts these claimed employment inquiries are not truthful, arguing that Agao denied in his testimo- ny making application to Barking Sands Missile Base. In fact, Agao stated he did not make a written application at Barking Sands Missile Base, not that he did not apply in some other form such as by telephone or personal visit. Respondent produced a witness, the former oper- ations manager for Greyhound, who did not recall Agao applying for employment. This is not probative of failure to make a diligent job search . The hiatus in time alone could cause the failure of memory by either the Grey- hound witness or Agao. Also, the Greyhound employee could have been on vacation or otherwise unavailable during February 1977. As noted above, any uncertainty is to be resolved against the Respondent as the wrongdo- er; and because it has not been clearly shown that Agao failed to make applications or inquire about job availabil- ity at the places he stated, it is found that, considering the record as a whole, he diligently sought other em- ployment during the backpay period, being successful ap- proximately 1 month after his discharge. Saginaw Aggre- gates, supra at 598; Nickey Chevrolet Sales, supra at 398; NLRB v. Miami Coca-Cola Bottling Co., supra at 569; Southern Household Products Co., supra at 881. Respondent notes that Agao, as well as most of the other claimants, failed to complete their backpay forms submitted to the Board in a manner consistent with their testimony. Their testimony indicated their job searches were more extensive than the forms indicated . As noted previously, the forms were sent to the claimants general- ly in April 1982. The extensive period of time between the actual events and the request to record them under- standably resulted in an inability to recall when and where they made each job application. Agao's failure to list initial VSP Tours on a form he supplied to the Board does not render him not credibile nor does it constitute a willful failure to provide informa- tion. This information was provided by Agao fully and freely from the inception of the trial. Poor recordkeep- ing, as indicated above, is not a basis for denial of a claim in a backpay proceeding. This does not disqualify or toll the backpay obligation. Employees are not dis- qualified from backpay merely because of poor record- keeping or uncertainty of memory. See Izzi Trucking Co., supra at 245. Although Agao's interim earnings were less than he would have earned if he had not been wrongfully dis- charged, this is not probative of a failure to take suitable interim employment. Agao was the third in seniority at Respondent. He was unable for the period of time he RAINBOW COACHES worked for Robert's to attain comparable seniority. There was no showing by Respondent that there were job opportunities extant as a full-time bus driver or other suitable interim employment where Agao could attain sufficient seniority to fully mitigate Respondent's back- pay liability. There is no showing in fact or in law that requires a discriminatee to fully mitigate a backpay obli- gation once a reasonably comparable job has been found. There is no showing that a more comparable job was available given all the circumstances, including seniority. Further, there was no showing that the acceptance of a job at Robert's was the acceptance of significantly lower-paying work too soon after the discriminatory dis- charge, warranting a reduction in backpay on the grounds of a willfully incurred loss by accepting "an un- suitably" lower-paying position. Agao accepted a full- time position at Robert's approximately 1 month after unsuccessfully searching for work, which became part- time at one point during the backpay period with the same number of hours assigned but at lower pay. The Robert's position was a similarly skilled position that compared favorably with Respondent's. It was not shown that Respondent did not pay higher than the pre- vailing wages and benefits. As noted in Aircraft & Heli- copter Leasing, 227 NLRB 644 at 646 (1976): The employer does not meet that burden by pre- senting evidence of lack of employee success in ob- taining interim employment or low interim earnings; rather the employer must affirmatively demonstrate that the employee "neglected to make reasonable ef- forts to find interim work." In the case of Agao, his interim earnings were not shown to be significantly less than that which he earned at Re- spondent nor that which he could have earned at any other bus company considering the loss of seniority. Ac- cordingly, this assertion by Respondent is found to be without merit. Respondent's argument would place the claimants in the extremely difficult position of having to seek employ- ment that is exactly equivalent, if not better in pay and working conditions, than that which they lost without a clear showing that there was an availability of such working situations in the Honolulu area. This argument overlooks the requirement that the claimant only seek substantially equivalent positions. In fact, if one were to adopt Respondent's position, the discriminatee would not have to accept the Robert's job because it had more on- erous terms and conditions of employment with less total remuneration. See Waukegan-North Chicago Transit Co., 235 NLRB 802 fn. 4 (1978), citing Richard W. Kaase Co., 162 NLRB 1320 (1967). Such a construction would result in much higher backpay awards and is contraindicated by established case law. Respondent also claims that the backpay computations were in error because there was one notation on a social security form indicating that Agao earned approximately $28,823 in 1978 rather than the $14,411.63 indicated in the specification. Respondent never raised this issue at trial to clarify this conflict. Robert's records were avail- able to Respondent and were not used to controvert the 183 accuracy of the specification. This failure to raise the issue at a time when explanation or clarification was pos- sible cannot now support an attack on the specification. As previously stated, all doubts must be resolved against Respondent. Agao did lose 2 or 3 days' work during the backpay period because of a skydiving injury. Also, after his first year of employment Agao took vacations, and did not look for additional employment during these vacations. Because Agao was a full-time employee of Respondent, he was entitled to vacation and health benefits. Respond- ent did not allege in its answer or amended answer to the specification that vacation pay was improperly added nor did it seek to amend its answer or otherwise raise the issue during the hearing. The same obtains for the 2 or 3 days when Agao was absent due to illness caused by the skydiving accident. Respondent had full knowledge at the hearing yet made no timely request to amend and correct the specification. Additionally, there was no showing that these benefits during the interim period would not obtain if he had retained his employment with Respondent. See Florida Steel Corp., 234 NLRB 1089 (1978). The term "backpay" encompasses not only wages but any accompanying pension, health, welfare, or other fringe benefit payments or contributions which are inte- gral parts of an employer's overall wage structure. See NLRB v. Strong Roof Co., 393 U.S. 357, 358-360 fn. 4 (1969); NLRB v. Rice Lake Creamery Co., supra, 365 F.2d at 892; Inland Steel Co., 77 NLRB 1, 4-5 fn. 13 (1948), and cases cited therein, enfd. 170 F.2d 247 (7th Cir. 1948), cert. denied 336 U.S. 960 (1948). Because the backpay award is intended to make employees whole, it properly includes any fringe benefit payments or contri- butions that would normally be afforded the affected em- ployees along with their wages, including health and welfare payments and vacations. Under Respondent's benefit plan, Agao would have been paid for the days he was out ill or on vacation. It was not shown that Agao took vacations or sick leave that exceeded the reimbursa- ble benefits 12 he would have received from Respondent save for his unlawful discharge. In fact, it is just such losses of time without pay that would have been covered save for the illegal discrimination that the Board pro- vides for in its remedy. See, for example, NLRB v. Rice Lake Creamery Co., supra, 365 F.2d at 888. In sum, it is found that Agao made an honest and good-faith successful effort to find substantially equiva- lent employment. Accordingly, I conclude that Agao is entitled to net backpay in the amount of $7321.18, exclu- sive of interest. b. Michael Akamine The backpay period for this claimant extends from the first quarter of 1977 through the third quarter of 1977 and the General Counsel claims total net backpay of $1663.18. From the fourth quarter of 1977 through 1980, 12 The record does not clearly indicate how many sick and vacation days full-time drivers received during the backpay period These benefits vaned during the backpay period and Kolt could not specifically recall that benefits were in effect at the various times here pertinent 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Akamine had greater interim earnings than gross back- pay. In the report forms Akamine filed with the Board, he indicated that he applied for interim work at Hawaiian Scenic, Grey Line-also known as Hawaii Transporta- tion, Pan American Airlines, Continental Airlines, Poly- nesian Hospitality, Charley's, and Robert's Tours. During his testimony, Akamine confirmed these applica- tions and further indicated that in February 1977 he ap- plied to MTL. After approximately 5 weeks of searching for a job, Akamine commenced working for Robert's about March 2, 1977. Respondent, in its brief, admits that Akamine diligently searched for work; and in fact claims that he should be the standard against which all claim- ants are measured. Considering the facts and Respond- ent's admission, it is concluded that Akamine is entitled to net backpay in the amount of $1663.18, exclusive of interest. c. Miles Fonseca Fonseca was employed by Respondent as a part-time driver. During this employment, as well as currently, he worked full time as a fireman for the city and county of Honolulu. Net backpay is claimed for him from Febru- ary 1, 1977, to October 14, 1980, in the amount of $18,421.76, which includes an additional $40 claimed for union dues expended to retain an interim job. Respondent asserts that Fonseca should not receive any backpay and, if there is some entitlement, it should total $414.33 due to willful loss of earnings occasioned by his quitting after being rehired by Respondent in Feb- ruary 1977. Respondent also claims that Fonseca failed to search diligently for interim employment and willfully concealed earnings from various construction jobs and certain tips. Further, Respondent claims that there were several periods of unavailability for work which are off- sets. It is undisputed that after his unlawful discharge, Fon- seca returned to work, starting at the bottom of the part- time seniority list for, as a prerequisite to such reinstate- ment, he had to relinquish seniority. The question of whether this was reinstatement to a substantially equiva- lent job was not decided in the underlying unfair labor practice proceeding. However, the underlying proceed- ing did find Fonseca and the other discriminatees uncon- ditionally offered to return to work February 2, 1977, and would have returned if Kolt had not told them they "would go to the bottom of the seniority roster, i.e., the first full-time returnee would be No. 8 on the full-time seniority roster and the first part-time returnee would also be No. 8 on the part-time roster." Rainbow Coaches, 241 NLRB 589 at 594 (1979). The underlying decision ordered Respondent to make all the employees whole "for any loss of earnings they may have suffered as a result of their discharges" and to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges. Id. at 598. Respondent clearly failed to comply with this order by rehiring Fonseca, and placing him at the bottom of the seniority list. There was no showing that during the term of Fonseca's reinstatement this shortcoming had been rectified. As noted in Sumco Mfg. Co., 267 NLRB 253, 258 (1983): [A]n offer of reinstatement to a job which is not substantially equivalent to that held prior to the dis- crimination does not toll backpay even when, as here, the employee accepts the offer, if that employ- ee subsequently quits because of dissatisfaction with the inadequate reinstatement . JIB Industries, 245 NLRB 538 (1979) (employee worked 2 months at a nonequivalent job before quitting); Marlene Indus- tries, 234 NLRB 285 (1978) (employee worked 2 or 3 weeks at the nonequivalent position); Glass Guard Industries, 227 NLRB 1140 (1977). Moreover, as the Board noted in Marlene Industries, supra at 291, the reinstatement of an employee without according her the seniority she had acquired prior to the discrimi- natory discharge does not satisfy Respondent's obli- gation to reinstate an employee to a substantially equivalent position. There was no evidence that Respondent reinstated Fonseca to a substantially equivalent position; on the contrary, it admittedly required that he go to the bottom of the seniority list which clearly had an adverse impact on his choice of tour bus runs. The above-quoted case does infer that the loss of se- niority must have a causal nexus in the decision to quit. Respondent argues that Fonseca quit for other reasons. Fonseca applied for reemployment on February 2, 1977. It is uncontroverted that prior to such reinstatement, Fonseca was one of the five most senior part-time em- ployees. Around early April 1977, he resigned from Rainbow and started working for Charley's, another tour bus company. Respondent argues that Fonseca quit because he was having problems with some drivers at Rainbow. The basis of this contention is that Gaylord Kolt, the stepson of Steve Kolt, chief operating officer of Respondent, went to a bar with Fonseca after work on a few occa- sions and, during one of these occasions, an individual who did not participate in the strike made a remark about Fonseca. Fonseca stated he wanted to kick the person's posterior but that the individual was too short. Respondent also notes that a comment made in 1982 on a form provided by the Board, wherein Fonseca stated he did not want to work for Rainbow anymore, because it would create internal problems , indicates he quit because of such internal problems. Another statement on the form, that he was not interested in working for someone who wrongly fired him, was not addressed by Respond- ent. As further proof that Fonseca's reasons for quitting were other than reduction in seniority, Respondent argues that he never commented to Gaylord that he was dissatisfied with the dispatches he was receiving even though Gaylord was a dispatcher. Gaylord's initial de- scription of himself as a dispatcher was, on cross -exami- nation, clarified as being a dispatcher trainee who did not work those hours when the drivers were actually dispatched. The dispatcher who actually handed out the jobs was not called to testify. Therefore, the requested inference has no basis. RAINBOW COACHES Fonseca's testimony that he received less hours of work than other part-time drivers was based on his dis- cussion with these other drivers, and the fact that the nature of the runs he received was different from those he received prior to his unlawful discharge. Prior to his discharge, he had longer runs, mostly tours; after rein- statement with the loss of seniority, he was not given "money runs." He considered "money runs" and foreign tourist pickups, which also have tours connected to them, as "money runs." On his return, he would be given 2-hour transfers of tourists and baggage, which are not "money runs." Because he lived quite a distance from work, he informed an unnamed individual at the Company that if this was all that was available, it did not pay for his commuting from the north shore. Pamela Talkin, the compliance officer who reviewed the figures, stated that although during 1 week after his reinstatement Fonseca did earn a substantial amount of money, in general he earned less after his reinstatement than he had been earning prior to his unlawful discharge. Talkin also noted, without refutation, that Fonseca had an unusually low number of hours in December, before his discharge, compared to the rest of his predischarge work history. A review of the exhibits indicates that he generally earned substantially less after his reinstatement for those weeks reported although there were some fluc- tuations. There was no explanation why he had only 1 week of substantial earnings or why it was different from the other weeks. Respondent, who has the records, did not present an analysis of Fonseca's working record for a meaningful period prior to his discharge, and did not refute Fonseca's testimony that he received mostly trans- fers, or scrub runs, not regular money runs as he had in the past. Respondent's failure to explain its failure to ex- trapolate from its payroll records evidence substantiating their contention supports drawing an adverse inference. The Company did not refute Fonseca's claim that he complained about his runs, just that he did not complain to Gaylord or his stepfather. There was no evidence in- dicating when the incident in the bar occurred in relation to his decision to quit. There is no basis for drawing an inference that this incident was the causal nexus for his resignation. Fonseca explained that his statement on the form was an analysis, reached in 1982 in response to the Company's 1980 offer of reinstatement, indicating his feeling of dissatisfaction over the Company's past treat- ment of him. He denied that the reason he left was be- cause there were hard feelings regarding other employ- ees or internal problems. Fonseca's testimony is credited based on demeanor, inherent probabilities, and his dem- onstrated candor. Respondent also argues that because Fonseca was si- multaneously employed by Charley's Tours and Trans- portation at the time he left Rainbow, he actually quit to go to another job.13 Fonseca denies that was the reason 18 There is some confusion in the record regarding when Fonseca started working at Charley's The representative of Charley's testified that the records indicate Fonseca was first hired by that company April 12, 1977, after he quit his second employment with Respondent Howev- er, R Exh P-9(a) indicates that he was paid for a period in March 1977. Fonseca, in his testimony, candidly indicated that he was working for Charley's prior to his quitting Respondent 185 for his leaving. Charley's did not offer him much work at that time. In fact, when he was working at Charley's in the second quarter of 1978, he was also working for Greyhound. It is undisputed that the tour business at Charley's was very slow. Respondent did not introduce any evidence that indicated Fonseca was working so many hours at Charley's Tours that it operated as an in- ducement to him to leave Rainbow or precluded him from working for both companies. Again Respondent has failed to present, as is its burden herein, evidence to sup- port its claim that Fonseca quit for reasons not connect- ed with his discriminatory reinstatement . Respondent's request that Fonseca's backpay specification be comput- ed to reflect this quit and the amount he would have earned had he not quit is found to be without merit. As Respondent notes in its brief, quoting from NLRB v. Vita Foods, 377 F.2d 81 at 87 (5th Cir. 1967): Where a discriminatee takes an interim job with the discriminator, his quitting for reasons unconnected .with the discrimination tolls the discriminator's backpay obligation to the extent of the interim wage; this is the same result as if the discriminatee had unjustifiedly quit a similar job with a third party. In neither case does the employee have the unlimited option to leave an interim job without in- curring a willful loss. Assuming arguendo that this was comparable to any other interim employment, a claimant does not willfully incur a loss of earnings merely by voluntarily quitting in- terim employment, unless he does so without good reason. See NLRB v. Vita Foods, supra at 87; NLRB v. Mastro Plastics Corp., 354 F.2d 170 at 174 fn. 3 (2d Cir. 1965); NLRB v. Madison Courier, 472 F.2d 1307 (D.C. Cir. 1972). Respondent alleges that harassment by other employees was the basis for his leaving Respondent after his reinstatement. If this is true, the burden of proof is on the employer. See Marlene Industries Corp. v. NLRB, 440 F.2d 673 at 674 (6th Cir. 1971). Respondent has failed in this burden. A discriminatee need not seek, accept, or retain interim employment which is essentially different from his regular job, which is unsuitable to someone of his background, skill, and experience or which involves substantially more onerous conditions. Lozano Enter- prises, 152 NLRB 258, 260 (1965), enfd. 356 F.2d 483 (9th Cir. 1966). As noted in Richard W. Kaase Co., 162 NLRB 1320 (1967), a discriminatee does not have to accept a job with more onerous terms and conditions of employment. His obligation is to mitigate an employer's backpay liabil- ity only to the extent that the claimant accepts substan- tially equivalent employment. Setting aside the loss of seniority, which in itself re- moves the job as being substantially equivalent, the claimant is not required to subject himself to threats and more onerous working conditions occasioned by harass- ment from coworkers. Respondent argues in its brief that "Fonseca did, however, tell Kolt he was having prob- lems with some of the drivers at Rainbow." There is no indication that Respondent tried to alleviate these diffi- culties or otherwise abate the known onerous nature of 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employment. See Midwest Hanger Co., 221 NLRB 911 at 920 (1975). Respondent infers that Fonseca had formed the inten- tion not to accept reinstatement if offered by Respondent because of the difficulties he had with his coworkers and, thus, Respondent's backpay liability should be tolled. It is not unexpected or unusual that Fonseca would have concern about untoward comments made to him by coworkers after a strike or would have ambigu- ous feelings toward an employer who unlawfully dis- charged him and reinstated him with a loss of seniority resulting in the lost facility to choose the runs he consid- ered more desirable . Fonseca's equivocal remarks do not demonstrate he irrevocably decided to decline a good- faith offer of reinstatement. Respondent had within its power the right to test the propriety of this remedy by reinstating Fonseca with appropriate seniority. Respond- ent's election not to do so until October 1980 will not support a curtailment of Respondent's backpay liability to Fonseca based solely on his ambiguous remarks. Ac- cordingly, it is concluded that Fonseca's backpay contin- ued to run after he left Respondent and that his quitting did not toll such entitlement for he did not receive a valid offer of reinstatement to substantially equivalent employment. There was no showing that any claimant exhibited unwillingness to return to work for Respondent prior to receiving a valid, good-faith, unconditional offer of reinstatement. There is an absence of any evidence of a cavalier pro- clivity by Fonseca while employed with Respondent or elsewhere to change jobs or to engage in disputes with coworkers or supervisors. If Respondent's contentions are true, then it requires a fording that Fonseca was goaded into such conduct by the situation imposed on his resumed employment and, thus, the backpay is not tolled. See United Aircraft Corp., 204 NLRB 1068 at 1078 (1973). Again, Respondent has failed to show that Fon- seca willfully incurred a loss of earnings by quitting his employment with it in early April 1977 under the cir- cumstances described in this proceeding and admitted by Respondent. Finally, as noted above, when, as here, there is a ques- tion regarding the motive , all questions must be resolved against the wrongdoer, Respondent. Consequently, even if one rejects the above finding that Fonseca quit because of a loss of seniority resulting in loss of earnings and less remunerative assignment of runs, a finding which Re- spondent's evidence failed to clearly refute, the fact that Respondent knew that Fonseca was being harassed by strike replacements or other coworkers who were given greater seniority than he and did nothing to mitigate it is a substantially more onerous working condition than that existent in his previous position. He is not required to work under those conditions. See NLRB v. Miami Coca- Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966). See fur- ther East Wind Enterprises, 268 NLRB 655 (1984). Respondent also argues that Fonseca's backpay should be tolled because he revealed interim earnings with Greyhound and from construction jobs only the week before the trial. Recognizing that Board law finds revela- tion of information prior to commencement of trial not an indication of willful concealment, albeit shortly before such event, Respondent claims that because Fonseca was under subpoena at the time, it was not voluntarily sub- mitted information. The "perfidious" nature of such late revelation, according to Respondent, is demonstrated by the fact that Fonseca described the Greyhound earnings as being off the books cash payments when in fact he re- ceived paychecks and tips. It is undisputed that Fonseca volunteered that he worked for Greyhound and Re- spondent was able to find documents indicating actual payments although there were no deductions from those checks for pension, health and welfare payments, social security, or otherwise. Fonseca mischaracterized the nature of the payments and had no recollection of receiving paychecks, constru- ing payments without deductions, normally required by law, to be off the books. This mischaracterization does not warrant a finding that he intentionally concealed em- ployment or income from the Board and Respondent. There was no showing of perfidy or deception of a nature to be deterred by the tolling of backpay during those quarters in which such concealments occurred. American Navigation Co., 268 NLRB 426 (1983). Re- spondent had notice the week before commencement of hearing that Fonseca had interim earnings from employ- ment in casual construction and working for Greyhound. After initially examining Fonseca about these, as well as his other jobs and job-seeking efforts, Respondent had a 6-week hiatus in the trial to test the accuracy of these revelations. The Board has consistently recognized that individual claimants have difficulty in keeping accurate accounts of interim employment which they often hold for a short term, particularly when, as here, there was a lengthy backpay period. Despite these factors, the claim- ant did not fail to report the earnings. His estimates were, in the case of Greyhound, inaccurate. The esti- mates of his earnings from the construction jobs used in the specification was higher by $500 than Fonseca's esti- mate. There is no showing that Fonseca's failure to put into the documents filed with the Board all the information he subsequently revealed to the Board agent at their first meeting was an attempt at guile. Fonseca did reveal the sources of income to the General Counsel and thence to Respondent "before the weekend prior to the hearing, of both the income and of the failure to report it for tax and unemployment benefit purposes." There was no showing of deliberate concealment of earnings or any other improprieties that would hamper Respondent in the presentation of its case. There was no motion for a continuance beyond the 6-week recess in the trial. Thus, there is no basis to disqualify Fonseca from recovering backpay due to his failure to complete the forms sent to him by the Board well after his unlawful discharge and well after the adjudication that such discharge was dis- criminatory. See Cumberland Farms Dairy of New York, 266 NLRB 855 (1983). That Fonseca erred in his estimates how much he earned at Greyhound does not support a contention that there was a fraudulent withholding of information. It has long been recognized that such statements of interim earnings in circumstances such as these are only esti- RAINBOW COACHES mates and that errors in estimates may tilt in either direc- tion. The amount of backpay awarded requires only that it be based on reasonable conclusions . Again, Respondent has failed to show that there was an intentional conceal- ment or fraudulent concealment of employment. See American Navigation Co., supra. This finding is buttressed by the undisputed evidence that Fonseca believed there were no records of these Greyhound earnings, and there were no records of his income from casual construction work and he could have concealed these earnings. Yet such income was revealed before the trial. See West Texas Utilities Co., 109 NLRB 936 (1954); Deena Artware, 112 NLRB 371, 375 (1955), enfd. 228 F.2d 871 (6th Cir. 1955). Fonseca's admission that he did not report some of the interim earnings he received on his tax returns is repre- hensible; however, it is not the type of concealment that would toll backpay. There was no claim or contention by Respondent that Fonseca's failure to reveal income from the construction job on his taxes was a factor that would bar him from reinstatement. The candor in which he revealed such actions cojoined with the observation of his demeanor and all the other relevant testimony con- vinces me that Fonseca was testifying truthfully to the best of his ability to recall the circumstances of his job search and the jobs he held during the backpay period. Fonseca was cognizant of his family responsibilities and anxious to find part-time employment to enable him to meet those responsibilities which would also mitigate the gross backpay due him. See NLRB v. Southern Silk Mills, 242 F.2d 697 (6th Cir. 1957), cert. denied 355 U.S. 821 (1957); United Aircraft Corp., supra, 204 NLRB at 1068. As was noted in Inta-Roto, Inc., 267 NLRB 1027 (1983): Improper as this man's conduct may have been with respect to his statutory duty to pay his taxes like everybody else, I do not think his behavior in this respect sufficient reason to deprive him now of the make-whole remedy to which he is entitled under the Board's order. . . . There was no real de- ception against the Respondent, for the picture it was faced with at the hearing was correct in all re- spects. I do not mean to condone anybody's wrong- doing where payment of taxes is concerned, or even where honesty in their dealings with this Adminis- trative Agency is concerned. But I think it is a rele- vant factor, all things considered, that [he] did, of his own volition, play it straight in the end. Respondent argues that Fonseca failed to make "rea- sonable efforts to mitigate . . . loss of income." NLRB v. Arduini Mfg. Corp., 394 F.2d 420 at 422 (1st Cir. 1968). Again, this is an affirmative defense; the burden is on the employer to prove the necessary facts. NLRB v. Mooney Aircraft, 366 F.2d 809 at 813 (5th Cir. 1966); NLRB v. Mercy Peninsula Ambulance Service, 589 F.2d 1014, 1017 (9th Cir. 1979); NLRB v. Reynolds Box Co., 399 F.2d 688 (6th Cir. 1968). In assessing the reasonableness of efforts to mitigate loss of income, the entire circumstances sur- rounding the effort are to be considered. Fonseca was employed as a full-time firefighter. This full-time em- 187 ployment usually did not require him to work 8 hours a day, 5 days a week. Rather, he worked 24-hour days, 3 days a week. This schedule permitted more free time to seek and work at moonlighting jobs. However, the fact that he was fully employed did not permit him to seek full-time employment elsewhere or to spend full time seeking interim employment. On leaving Respondent's employ, Fonseca worked for Charley's. Work for part-time employees at Charley's was admittedly extremely slow. Charley's called him only as needed and the need was infrequent. In addition to working as a part-time employee of Greyhound as a "VIP" tour driver in 1977 and 1978, he sought employment at Hawaiian Scenic, Hawaiian Dis- covery Tours, Polynesian Adventure, Mini-Bus Tours of Hawaii, Moana Tours, Hawaii Transportation (also known as Gray Line), Robert's Tours, and Akamai Tours. Fonseca also sought employment in construction during 1979 and 1980. He is a journeyman carpenter who installed drywall prior to working for Rainbow. Akamai could not recall his seeking employment at their compa- ny and refuted his assertion they told him they did not hire firemen. Because there was no showing that the in- dividual who testified was the individual Fonseca asser- tedly spoke to, nor was there evidence that absolutely no one else interviewed employees or talked to employees, this refutation is not considered probative. Akamai Tours did not retain employment applications more than 1 year. Akamai did not have a policy, according to the individ- ual who testified, against hiring firemen; however, Akamai Tours also was not shown to have had part-time openings at the time Fonseca said he applied. There could have been a lack of interest in hiring firemen be- cause they could only work part time. Accordingly, it is found that Respondent did not refute Fonseca's claim that he spoke to the individual at Akamai Tours and was informed they were not interested in hiring a fireman. Fonseca admittedly applied to the bus companies once only, based on his understanding that if they were inter- ested they would call him. Whether this is a standard practice was not shown on the record. Accordingly, Fonseca's behavior in only applying once at these bus companies is not shown to be an unreasonable failure to mitigate. As the Board held in Cornwell Co., 171 NLRB 342 at 343 (1966): 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 fore- doomed to futility in order to protect her claim of backpay for that particular quarter. Rather, the entire backpay period must be scrutinized to deter- mine whether throughout that period there was, in the light of all surrounding circumstances, a reason- able continuing search such as to foreclose a fmding of willful loss. Fonseca also testified that he applied for part-time em- ployment at Bums Security. Respondent notes that Burns' representative indicated the company had no record of such application and that such files go back to 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1974. What Respondent failed to note was that the indi- vidual who testified for Burns, Mr. Smith, was not with the company during the backpay period, and did not know on which basis applications were kept on file. The basis for his surmise that all files go back to 1974 was not predicated on any personal firsthand knowledge or even hearsay statements by any other employee. This baseless surmise does not support a finding that Fonseca did not apply to Burns. Currently Burns does not accept oral ap- plications, but the witness could not testify from personal knowledge what the practice was during the backpay period. Accordingly, Fonseca's testimony that he applied at Bums was not adequately refuted. Respondent asserts that during this period of time Fonseca was fired from Charley's, which should toll the backpay period. Although there is a letter indicating that he was discharged, pay statements reveal that he was still employed after this ostensible discharge . It appears that he was fighting a fire at a time when he should have reported for work, which led to the issuance of a letter; however, because he received pay for work after that date, it also appears that some rapprochement was reached and he was not terminated. However, even as- suming he was terminated, discharge under these circum- stances has not been shown as a basis for tolling back- pay. There was no showing that the discharge was occa- sioned by a willful loss of employment by Fonseca or in- volved an offense that demonstrated moral turpitude. Mastro Plastics Corp., 145 NLRB 1710 (1964); Barberton Plastics Products, 146 NLRB 393 (1964); Kansas Refined Helium Co., 252 NLRB 1156 (1980). Fonseca had two periods of employment with Char- ley's. The first started near the end of his reinstatement term with Rainbow or immediately thereafter until he commenced work about August 1977 with Greyhound Royal Hawaiian Transportation as a VIP limousine driver. That employment lasted until December 1978 when Greyhound ceased operations in Hawaii. He then recommenced working for Charley's until the third quar- ter of 1979 when they ceased to have any part-time work for him. He then stopped working at Charley's and began seeking construction work. Because his employment at Charley's failed to produce any income because he was rarely, if ever, called to work, he was not obligated to retain such employment. As noted in Waukegan-North Chicago Transit Co., 235 NLRB 802 at fn. 4 (1978): A discriminatee does not have to accept a job with more onerous terms and conditions of employment. The obligation to mitigate an employer's backpay li- ability requires only that the claimant accept sub- stantially equivalent employment. The Lakeland offer involved a wage rate less than one-half that which Hook enjoyed with Respondent. Acceptance of the Burns offer would have reduced his wages by approximately one-third. Fonseca worked as a carpenter and performed small construction jobs privately for individuals. He also hung gypsum board in two houses for a subcontractor in a subdivision in Hawaii Kai, earning $460 per house. He found the job through some cousins . He constructed a patio for a friend of a friend in Kaneohe which took about a week of his spare time . He could not recall which quarter he engaged in that activity. The construc- tion work was all in 1979 and 1980. He built a patio in Kailua. He helped build a house in Pupukea , but most of this work occurred after 1980. However, some of the proceeds from this work were included in interim earn- ings because he could not recall exactly when he helped the individual build the house. Work proceeded on the house as money was available and the house still is not finished. The house is depicted in Respondent's Exhibit C-29. He helped build the top floor. Fonseca estimated his earnings from construction based on the needs he ex- perienced in paying tuition bills for his children . Fonse- ca's assertion that he was experiencing financial difficul- ties is apparently substantiated by the testimony about his accounts at the Honolulu Fire Department Credit Union. These records were not moved into evidence . The testi- mony indicated that he had experienced a decrease in his cash balance and an increase in his loans. Respondent argues that because Fonseca did not go through the union hiring hall, he did not make reasona- ble efforts in acquiring construction jobs . There was no testimony regarding the availability of part-time work in hanging drywall during the backpay period from any of- ficial of the appropriate union . There was a dispute be- tween the Carpenters and Latherers Unions regarding who had authority to refer individuals to hang drywall. Also, Fonseca was not a member of the Latherers or Carpenters Unions at this time . There was no evidence regarding membership requirements in these unions as a prerequisite to referral . Accordingly, this argument is found to be without substance . It is undisputed that the construction industry was slow and there were not many jobs available. Fonseca called his uncle, Richard Fon- seca, several times seeking his assistance. His uncle was formerly an official in the Latherers Union . Richard Fonseca's testimony regarding the advice he gave his nephew differs from the claimant 's testimony. However, the differences could have been occasioned by the juris- dictional dispute between the unions, and Richard Fon- seca had no knowledge about the Carpenters ' referral system. He did acknowledge that Miles Fonseca called him "a lot" looking for work. Both Richard and Miles Fonseca agreed that in Honolulu hiring is done by per- sonal contact and over the phone . He stated you get a job if you know someone . Respondent failed to show that in this slow construction period, Fonseca's failure to find more part-time employment in this field was indica- tive of a failure to make a reasonably diligent job search. Fonseca's self-employment in construction does not in- dicate lack of reasonable diligence . As the court noted in NLRB v. Armstrong Tire & Rubber Co., 263 F.2d 680, 683 (5th Cir. 1959): Bona fide full self employment will be regarded as complying with the obligation imposed upon a dis- charged employee to use reasonable diligence to keep himself in gainful employment ... . RAINBOW COACHES Respondent does not contend that Fonseca's self-em- ployment in construction jobs was not bona fide employ- ment. See further W C. Nabors Co., 134 NLRB 1078 at 1092 (1961). Fonseca applied for work with all his former employers in this specialized field of hanging drywall. He named several of the companies to which he made application. No representatives from these compa- nies were called by Respondent to refute Fonseca's as- sertion. That these companies were subcontractors rather than general contractors is not shown to warrant an in- ference of lack of due diligence in job search for there is no indication that seeking work with subcontractors dealing with the special craft he was skilled in was not the proper way of seeking employment. That these com- panies were not listed on the forms submitted to the NLRB did not hamper Respondent in presenting its case, considering the length of this proceeding, including the recess, affording Respondent ample time to call witnesses who may potentially have shown mitigation or lack of diligence. The use of a "grapevine" in industries where the unrefuted evidence is that this is the usual method of gaining employment is significant evidence of diligence. Madison Courier, 202 NLRB 808, 813 (1973). Fonseca did not register with the State Employment Service for assistance in getting a part-time job. There was no showing that the State does lend its assistance to such registrants. Also, the failure to register with the State Employment Service does not show lack of reason- able efforts in seeking interim employment. Fonseca did have interim earnings during each quarter in the backpay period. There were poor business condi- tions in the construction industry and an admitted change in operations in the tour bus industry which in- creased utilization of minibuses. This was not shown to have increased job availability for part-time or full-time tour bus drivers. Several bus companies testified that they had openings during the backpay period but there was no specific showing that these jobs were available to Fonseca or that he failed to accept such employment. See Florence Printing Co. v. NLRB, 376 F.2d 216, 221- 223 (1967), cert. denied 389 U.S. 840 (1967). There was no evidence of willful idleness or any other matters that overcome the presumption that Fonseca did not willfully incur any loss of earnings. NLRB v. Reynolds Box Co., 399 F.2d 668 (6th Cir. 1968), held that the employer has the duty "to carry the burden of proof and to point out what evidence in the record sustains . . . [its] claim, as against the presumptive proof of the Board's fmdings that the employees did not sustain willful losses." Id. at 670. I find that Respondent has failed to support its burden of proving that Fonseca failed to make a reason- ably diligent effort to seek interim employment. Respondent next asserts that certain offsets should be allowed to account for unavailability for work as indicat- ed in the fire department's leave records. Such unavail- ability is attributable either to illness or vacations. It is undisputed that Respondent did not pay part-time drivers any vacation or sick leave benefits. Under normal cir- cumstances involving full-time employees when such benefits were not paid, the backpay awards would deduct from the total those days that an employee is un- available for work due to illness or vacations. However, 189 in the case of Fonseca and the other part-time employ- ees, a different question obtains . As the Court stated in NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 573 (5th Cir. 1966): If an unlawfully discharged employee finds inter- im work, his earnings are deducted from gross backpay due. But the rule requiring deduction of in- terim earnings applies only to earnings during the hours when the employee would have been em- ployed by the employer in question. Phelps Dodge Corp. v. N.L.R.B. [219 NLRB 41, 313 U.S. 177, 198 and fn. 7], citing Pusey Maynes & Breish Co., 1 NLRB 482, 486 (1936).14 In this proceeding, gross backpay was calculated using actual earnings for the employees for a 12-week period immediately preceding their unlawful discharges. Periods that the part-time workers were unavailable for work at Respondent due to illness or vacations could be included in these calculations. Because the propriety of such off- sets must be shown by Respondent as part of its burden, Respondent must show that the vacation and sick leave reflected in the Fire Department records were matters not already reflected in gross backpay, and are proper deductions as occurring during hours when the employee would have worked for the Company. Respondent has failed to make any reference to what was included in the gross backpay of Fonseca and the other part-time claim- ants. To grant its request to make these deductions could result in the double counting of an offset. As noted pre- viously, all unanswered questions must be resolved against the wrongdoer. Respondent has failed to show that these are proper offsets and were not already re- flected in the specifications. Respondent also failed to show that the sick leave taken by Fonseca from the Fire Department was of such a nature as would preclude him from working at interim employment as a bus driver. The exigencies of the job as a fireman were never explored nor were the require- ments for sick leave sufficiently detailed to warrant the requested analogy that illness sufficient to remove one from work as a fireman were of such a duration or nature to warrant the assumption that he would also be unable to work as a tour bus driver. Similarly, the vaca- tions that Fonseca took were not shown to have taken him away from Oahu and he may have used those peri- ods moonlighting, thereby increasing his interim earn- ings. These aspects were never explored. Consequently, it is concluded that under the facts of this case, even as- 14 Backpay awards are made by the NLRB pursuant to Sec. 10(c) of the National Labor Relations Act As found in McCann Steel v. NLRB, 570 F 2d 652 at 655 (6th Cu. 1978): [Backpay awards] are generally calculated by subtracting from what an employee would have earned but for his wrongful discharge the amount the employee actually earned in the interim between the discharge and the offer of reinstatement . The award is also reduced by any willful loss of earnings by the employee . . A willful loss of earnings includes the refusal of the employee to "accept substan- tially equivalent employment " We believe that "substantially equivalent employment " refers to the hours worked at the interim employer as well as the nature of the work there 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suming that there is a potentially valid basis for deduct- ing the days that he was ill or on vacation, such basis was not sufficiently established on the record to warrant the granting of the requested offsets. In sum, considering all the circumstances, including Fonseca's interim employment in every quarter of the backpay period while working full time as a fireman, co- joined with Respondent's failure to show accessibility of interim employment during the backpay period in the fields where he was skilled, and the failure to show that Fonseca should have known that he should apply more than once to each bus company he contacted or that such renewed application would increase his chances of employment leaves no basis to determine how much Fonseca would have earned had he conducted himself otherwise. Therefore there is no basis to reduce the award to Fonseca. Accordingly, it is concluded that Fonseca is entitled to $18,421.76 in net backpay, includ- ing $40 for union dues, plus interest. d. Yukio Iho Iho was a full-time driver with Respondent until the date of his unlawful discharge. Backpay is sought only for the first and third quarters of 1977, with total net backpay amounting to $1687 .57. The interim earnings calculations were based on W-2 forms which were cor- related with social security statements. His interim em- ployer, Robert's Tours, did not have complete records. Respondent does not attack the accuracy of these docu- ments. Respondent claims that because Iho did not obtain any interim employment until March 1977, "there is no corroborated evidence that he made any kind of diligent search during the intervening month of Febru- ary." This assertion is confusing inasmuch as Respondent has the burden of showing willful loss of earnings by failure to exercise reasonable efforts to secure interim employment. Additionally, this assertion overlooks Iho's undisputed testimony that during February and March he sought employment at Grey Line, Polynesian Hospitality, Char- ley's Hawaiian Scenic, in fact practically all the tour bus companies, the MTL, the city bus line, the gas company, and Pan American Airlines. Iho also searched for jobs using the classified sections in the newspaper, registered with the unemployment office, and sought assistance from the Teamsters Union. He received an offer of em- ployment at Charley's and was in his second day of training when he received the offer of employment from Robert's. Inasmuch as Charley's did not guarantee 40 hours' work per week, and Robert's did, he left Char- ley's and went to work for Robert's. Charley's did not pay him while he was in training. He was hired by Rob- ert's because he spoke Japanese. As noted in Keller Alu- minum Chairs Southern, 171 NLRB 1252, 1257 (1968): [T]here is no requirement that an employee wrong- fully terminated must instantly seek new work; it is only required that the record as a whole show that he exercised due diligence to this end . See Monroe Feed Store, 122 NLRB 1479, 1483. Considering the number of places Iho applied for work and the fact that he accepted the first offers of em- ployment received, there is nothing in the record to show that he did not use reasonable efforts to find inter- im work. Accordingly, it is concluded that Iho is entitled to total net backpay of $1687.57, exclusive of interest. e. Lane Kaaiai Kaaiai was employed by Respondent as a part-time driver prior to his unlawful termination in January 1977. He commenced his employment with Rainbow in 1973; terminated his employment there voluntarily to start his own plant nursery, which failed; and returned to work for Rainbow until January 1977. The backpay period is asserted to be from the date of discharge to October 21, 1980, with a total net backpay of $20,312.52. In its brief, Respondent argues that Kaaiai did not make a reasonably diligent search for suitable interim employment; that he left the Island of Oahu to live on the Island of Hawaii in June 1978; that Hawaii is a loca- tion that has many fewer prospects for employment and, thus, relocating was a willful failure to seek suitable in- terim employment; and once having found such suitable interim employment with Islander U-Drive, he quit that job after 1 month, thus failing to prudently retain such employment subjecting him to an offset by the amount that he would have earned had he retained such job. Kaaiai commenced his job search, for both full-time and part-time employment in February 1977, first seeking positions in the airline industry by applying at Hawaiian Airlines, Aloha Airlines, and Western Airlines. He also applied for work as a fireman with the city and county of Honolulu. Respondent asserts, on page 44 of its brief, that the Fire Department indicated it had no records of employment applications for Kaaiai, which does not ac- curately reflect record evidence. This statement fails to recognize the unrefuted representation by the city and county of Honolulu that it does not keep records for un- successful candidates nor records of applications by name. Kaaiai testified that he also applied to the telephone company, Gray Line, Hawaiian Scenic, Inter-Island, Ha- waiian Transporation, Moana Tours, and Charley's. Inter-Island Resorts, according to Respondent, had no records of an employment application filed by Kaaiai. Inter-Island is also known as Gray Line. Gray Line did have operations on the Island of Hawaii. According to the representative of Inter-Island, the secretary was sup- posed to purge the files of all applications that were over 1 year old. The absence of any applications for unsuc- cessful job applicants is probably the result of this regu- lar purging operation. Kaaiai also sought employment at the Hawaiian State Employment Office, many employ- ment services, a tour escort service, Hawaiian Electric Company, and Hawaiian Telephone Company. He was qualified to seek employment as a heavy equipment oper- ator, but did not seek employment in that field because his brother and father, who worked for a construction company as heavy equipment operators on the Island of Oahu, told him that the job market in that industry was very poor. RAINBOW COACHES Respondent argues that Kaaiai applied to approximate- ly 27 companies during the 45-month backpay period. This fact was not clearly established on the record. Kaaiai indicated that he could not recall when he made the applications to the different companies. The evidence indicates that most of the applications occurred before he secured employment at Islander U-Drive and started self- employment as a lei stand operator. Eventually he se- cured full-time employment, which he still holds, at a restaurant. Therefore, it appears that most of the applica- tions were made within an 18-month period. Also, the places that were stated as potential employers were not represented to be a complete list, but all that he remem- bered years later. Further, the claimant sought employ- ment by making telephone inquiries and answering ad- vertisements in newspapers. Considering the hiatus in time from the actual attempts to find employment, the fact that the claimant also registered with several em- ployment companies and the state, and that his efforts started almost immediately on his unlawful discharge, it is found he exercised due diligence. Kaaiai moved to the island of Hawaii because his in- laws had a house he and his wife could live in rent free. i 5 Kaaiai was unsuccessful in finding interim em- ployment until after his move to the " Big Island" when he got a job with Inter-Island Hotel Operating Corpora- tion, Islander U-Drive. While on the island of Hawaii, Kaaiai lived at two or three locations. He applied for work at Budget Rent A Car; Tropical Car Rental; Hotel Kamehameha; Spin- drifter Restaurant; Kona Surf, Lockheed in Hilo; Polyne- sian Pacific Cargo, an airline; Hilo Lei Company; Oper- ating Engineers Local 3; United States Postal Service; Polynesian Pacifica; and possibly Robert's Tours. Kaaiai stated those were all the places he could recall and it was only after discussing his job search history with his wife that he remembered these efforts. Kaaiai further tes- tified credibly that he reviewed job opportunities in the newspapers. Kaaiai quit his job at Islander U-Drive after I month. During that 1 month, he earned $758.60. There is no showing whether this income included payments for overtime. Kaaiai quit because he was initially hired to work at the counter renting cars. The employer wanted him to work in excess of the agreed-upon 40 hours per week and required that he shuttle cars, wash the cars, and in general perform duties other than those to which he agreed when he accepted the employment. Respondent asserts that Kaaiai's seeking employment initially at airlines on Oahu indicated a willful loss of income for he was not seeking suitable interim employ- ment. Kaaiai was unable to remember the dates he ap- plied at the various airline companies in relation to the time he applied at the listed bus companies on Oahu or if such attempts were in fact a premature lowering of sights or an otherwise improper failure to seek suitable interim employment with reasonable diligence. Respond- 15 Kaaiai was living on the island of Oahu rent free prior to his dis- charge. Thus, this is not considered an offset against gross income As noted by the General Counsel, housesitting does not constitute earnings that are deductible from gross backpay. Citing Melrose Processing Co., 151 NLRB 1352 (1965); United Aircraft Corp, 204 NLRB 1068 at 1073 (1973). 191 ent failed to specify why initially looking for employ- ment at airline companies was a failure to seek suitable employment since a tour bus driver's knowledge of the island, and other skills, may have been highly suitable for such employment. There was no showing what the wages would have been if such employment had been se- cured. Accordingly, Respondent did not support its alle- gation that Kaaiai failed to use reasonable efforts to secure comparable employment. See NLRB v. Mercy Pe- ninsula Ambulance Service, 589 F.2d 1014, 1017-1018 (9th Cir. 1979). Respondent also asserts that Kaaiai's move to the less urbanized island of Hawaii constituted a willful loss of earnings. As noted in Mandarin Y. NLRB, 621 F.2d 336 at 338 (9th Cir. 1980): A discharged employee is not confined to the geo- graphical area of former employment; he or she re- mains in the labor market by seeking work in any area with comparable employment opportunities. Cf. NLRB v. Robert Haws Co., 403 F.2d 979, 981 (6th Cir. 1968). Respondent failed to produce any evidence demonstrat- ing that there were proportionately fewer opportunities for Kaaiai on the island of Hawaii than on Oahu for an individual of Kaaiai's skill, education, age, and experi- ence Kaaiai was able to secure employment on the island of Hawaii. Respondent next contends that Kaaiai willfully in- curred loss of income by quitting his job at Islander U- Drive. The General Counsel argues, on the other hand, that Respondent failed to show that his decision to quit amounted to willful avoidance of interim earnings at a job comparable to his employment at Respondent. No representative of Islander U-Drive was called to appear and testify. It is noted that the Inter Island Resorts em- ployment occurred in the third quarter of 1979, which was shortly after Kaaiai's arrival on the island of Hawaii. As found in Florida Steel Corp., 234 NLRB 1089, 1092 (1978): [H]aving obtained substantially equivalent suitable interim employment, a discriminatee must prudently retain such employment or run the risk of being subjected to an exclusion from gross backpay the amount that would have been earned had such job been retained. Knickerbocker Plastic Co., Inc., 132 NLRB 1209, 1212-16 (1961); Gary Aircraft Corpora- tion, 211 NLRB 554, 557 (1974). The initial question is whether Kaaiai's employment was suitable interim employment and, if so, was his reason for quitting excusable. Kaaiai asserts that he was being asked to work much longer periods of time than he did for Respondent, and work more than 40 hours a week under terms and conditions that were not disclosed at the time he commenced such employment. However, there was no showing how much greater his workweek was than 40 hours or the amount of time he had to devote to tasks other than working at the desk, his origi- nal assignment . There was no evidence that this employ- 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment created unacceptable disruptions in his private life. In fact, when he left this employment, he worked at a lei stand and then started his own lei stand where he worked for much less, yet devoted 10 to 12 hours a day, 7 days a week to this endeavor. The Inter Island Resorts job paid substantially more per month than Kaaiai earned while working for Re- spondent and, as noted above, there was no evidence whether he was paid for overtime, what his hourly rate was, or any other indication that it was not equivalent suitable interim employment. As noted by the Board in Knickerbocker Plastic, supra at 1212, "Persons who incur willful losses in interim earnings by quitting certain jobs must do so with compelling or justifying means." That the claimant may have worked for longer periods of time than he did for Respondent, albeit, perhaps at a much higher wage, and performed some duties the nature and extent of which are unclear and were different from what he originally assumed he would have to perform do not appear to place a burden on the claimant unsuited to a person of his skills and experience , or more onerous than those he would have been required to perform for Respondent. He was willing to work longer hours 7 days a week in his own lei stand business. There is no show- ing that this job was an unsuitable way of earning a living that justified his quitting with no prospect for suit- able substitute employment. The bare claim of stress caused by working an unspecified number of hours in excess of 40 hours per week, and performing some duties other than standing behind a counter, without further ex- planation, are insufficient to justify quitting. I find that Kaaiai's voluntary cessation of gainful employment, without other suitable employment in the offing, is a willful loss of earnings for the period subsequent to his quitting. See further Miami Coca-Cola Bottling Co., 151 NLRB 1701 (1965); Midwest Hanger Co., 221 NLRB 911 at 919 (1975), affd. in pertinent part 550 F.2d 1101 (8th Cir. 1977), cert. denied 434 U.S. 830 (1977); Shell Oil Co., 218 NLRB 87 (1975). As noted in Shell Oil Co., at 88-89, and the cases cited therein, the circumstances re- lating to the quitting of a job because of distasteful job conditions have to be shown to be more than personal convenience, preference, or accommodation rather than an inherent difficulty. Also, there was no showing that the job was not suitable because it was unprestigious, an- noying, or created unacceptable disruption to his private life. See Lozano Enterprises, 152 NLRB 258 (1965), and John S. Barnes Corp., 205 NLRB 585 (1973). His interim earnings will be offset by deeming he would have earned the amount he was earning at the time he quit for the remainder of the backpay period. Be- cause he was earning wages at a monthly rate greater than he would have at Respondent during the backpay period, it is concluded that he is entitled to no backpay from the third quarter of 1979 to the end of the backpay period. The adjusted total net backpay due Kaaiai is $ 14,963.76, plus interest. f. Eric Kama The General Counsel asserts Kama's total net backpay is $20,079.50, including $200 he paid in mandatory union dues to retain interim employment . Kama worked full time for the city and county of Honolulu as a fireman. He was employed by Respondent as a part-time driver until he was discriminatorily discharged on January 31, 1977. Kama had worked for Rainbow about 3 months prior to his termination. Kama graduated from high school. He had 4 years of military experience, reaching the rank of sergeant. He retired from the Fire Depart- ment in 1981. Kama's first application for interim employment was with Charley's in March 1977. He commenced employ- ment at Charley's in early April 1977.16 Respondent as- serts that this delay in applying for work, and the fact that Charley's was the only job application he made, was a willful loss of earnings. As noted above, a claimant need not seek interim employment immediately after an unlawful discharge. Keller Aluminum Chairs Southern, 171 NLRB 1252 at 1257 (1968). See Monroe Feed Store, 122 NLRB 1479, 1483 (1959). There were no questions asked by any of the parties regarding Kama's failure to secure employment or make applications prior to March. As found in Cornwell Co., 171 NLRB 352 at 353 (1968), if the theory asserted to prove the necessity for dimunition of backpay was that the claimant was chargeable with willful loss of earnings through failure to look for suitable alternate employ- ment, it was incumbent on respondent to demonstrate by a fair preponderance of the evidence that the claimant did not make any reasonable efforts, when considered in light of all the surrounding circumstances, to seek out work that might have been available to her. To determine reasonableness, the entire backpay period is to be considered and reasonableness is to be as- sessed considering existing conditions affecting the search for work such as age, area of residence, extent of employment opportunities open to that individual with his particular skill, and experience. Respondent's failure to ascertain why Kama did not apply for any jobs prior to March 1977, and only sought work at Charley' s, leads to the conclusion that it failed to bear its burden of prov- ing this a willful loss of earnings. Kama may have had a reasonable expectation of reinstatement at Respondent. The job at Charley's paid substantially less than Kama earned at Rainbow. As found in NLRB v. Southern Silk Mills, 242 F.2d 697 (6th Cir. 1957), "after a reasonable period of time," claimants for backpay should be re- quired to "lower their sights" and take whatever work was available in order to reduce Respondent's potential backpay liability. Kama's actions in this case, based on the record, have not been shown to be of the genre of a willful loss of earnings or an unreasonable lowering of sights. As noted previously in this decision, the business activ- ity at Charley's diminished and, although Kama called in daily, there were no interim earnings as there was no work available during the third and fourth quarters of 1977 and the second and third quarters of 1978. Kama admitted that he noticed the dimunition of work during these periods. He acknowledged that Charley's did not 1° Kama also worked for dust 3 days for Kekona , a transportation serv- ice for golf courses. This employment was outside the backpay period. Respondent did not call any witnesses from Kekona RAINBOW COACHES have sufficient work to keep the full-time employees en- gaged for 40 hours a week. During this time he admitted failing to look for any interim employment in 1977 during these periods of layoff. He only filled out an ap- plication and took an orientation tour at Polynesian Ad- venture. On January 11, 1980, Kama applied for work with Robert's Tours and was hired. For the remainder of the backpay period, he was retained by Robert's as a part-time employee on an on-call basis. Respondent argues that Kama had a duty during these long layoffs to seek additional work, and his failure to do so, having sought employment at one other tour company in 1978, constituted a willful loss of earnings. By Kama's own admission, he saw that there was in- sufficient business at Charley's to produce work for part- time employees and he did not have a reasonable expec- tation of earning any income. Yet he did not make any effort to search for part-time work in 1977 and made only one application in 1978 to another tour bus compa- ny. Although Kama reached retirement age from the Fire Department in 1981, it was not shown or asserted that his age, area of residence, particular job skills, and experience were such to render seeking employment at only one other bus company during four quarters of un- employment a reasonable effort to secure interim em- ployment. Kama's admission that he foresaw the lack of work obviates a finding that he reasonably anticipated being recalled to work in the near future. Therefore, I will disallow his claim for backpay for the third and fourth quarters of 1977 in the amount of $1885.78 for each quarter, and for the second and third quarters of 1978 in the amounts of $1933.42 and $1947.95, respec- tively. As noted in Cornwell Co., 171 NLRB 342 at 343 (1968), backpay can be tolled for any part of the backpay period when it is found that the claimant did not make a reasonable effort to secure interim employment. Thus, al- though the entire backpay period as a whole is utilized in determining reasonableness of job search, when certain periods of such backpay timespan demonstrate a willful failure, backpay should only be tolled for those periods. See Knickerbocker Plastic Co., 132 NLRB 1209 at 1217 (1961) Respondent asserts that those days Kama was shown to have been ill or on vacation on the Fire Department records should be considered offsets. As noted above, Respondent has the obligation of showing that Kama's vacations or illnesses interfered with his search for work or prevented him from accepting available employment. See generally Laborers Local 1440 (Martindale Builders), 243 NLRB 1169 (1979). As Respondent notes, the records indicate that Kama took vacations from June 2- 15, September 17-22, November 11-15, 1977, June 6-28, October 12-14, 1978, February 24-26, 1979, August 24- 28, 1980. Kama, as a part-time employee of Rainbow, was not entitled to vacation or sick leave. Kama testified that he usually spends 1 week on vacation each year with his parents, but further testified that he only went to the "Big Island" where his parents reside two times during the backpay period. This matter was never clari- fied on the record. It was Respondent's obligation to demonstrate willful absenteeism during the backpay period and the failure to clarify the record does not war- 193 rant the assumption that Kama vacationed on the island of Hawaii each year of the backpay period. Kama testi- fied that he was only off the island of Oahu twice during his vacations. He normally took his vacation during those periods when there was the greatest activity in his interim employment. The record shows that he spent 1 week during the backpay period in October 1977 on the island of Hawaii. There was no showing that he looked for interim part-time employment while on the island of Hawaii. Accordingly, it is found that this 1-week period in 1977 was a temporary removal from the labor market during which he lost his eligibility to receive backpay. See Gary Aircraft Corp., 210 NLRB 555 at 557 (1974). Because this trip to Hawaii occurred during a period of time when backpay was tolled, there shall be no addi- tional offset. Kama's testimony was unclear on when he took a second vacation on the island of Hawaii. He could not recall when he made the visits to Hawaii, but he did go in 1979 for a weekend when his niece got married. This trip to the island of Hawaii is found to be a temporary removal from the labor market, for which he lost his eli- gibility to receive backpay. One week will be offset during the first quarter of 1979 because Kama testified he usually went for a week and because the exact extent of this sojourn is unknown, the usual 1-week vacation will be assessed. Thus, Respondent's backpay liability should be reduced by $43.22 in first quarter 1979. As for those periods Kama was on sick leave from the Fire Department, as noted above in the discussion relat- ing to Fonseca, sick leave offsets for short periods of time must be shown to be warranted. Respondent has failed to meet this burden of proof. Recognizing that sick leave ordinarily would raise the inference of temporary unavailability for interim employment, in this particular case where actual earnings were utilized in determining gross backpay, there must be a showing that the request- ed offsets would not result in double counting. Respond- ent's failure to indicate that such illnesses indisposed the individual from performing his interim job, or that this factor was not already considered in the gross backpay calculations because the 12-week period may have in- cluded short periods of illness, requires a finding that such deductions have not been shown to be warranted. 17 Respondent also raised as an affirmative defense in the transcript its lack of access to subpoenaed bank records, asserting this precluded presentation of its case. Kama was shown a joint savings account signature card for First Federal Savings and Loan. Respondent's possession of such records to try to refresh Kama's recollection sub- stantiates that it received some bank records, as found above. Respondent did not detail, as noted above, which bank records it had received. Respondent further asked Kama questions about his mortgage payments and re- ferred to material which appeared to be mortgage records. These documents were not identified nor placed in the record. It is undisputable, based on the record evi- dence, at transcript 1491, that Respondent had bank 17 Kama was on sick leave May 6-8, 1977, August 17-21, 1978; Sep- tember 24-26, 1978; and July 7-11, 1979 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD records for some of the claimants that were voluntarily provided by some banks. This defense has been found to be without merit. In sum, it is found Kama should be reimbursed net backpay of $9166.14, plus interest, as shown in Appendix F. g. Ralph Kaui Kaui was a full-time bus driver for Respondent and the second most senior driver prior to his unlawful ter- mination about January 31, 1977. Total net backpay is claimed in the amount of $20,286.83. This claim includes undisputed expenses for union dues and mileage. Respondent asserts several affirmative defenses seeking to reduce Kaui's total net backpay claim to the amount of $3555.64. The first assertion in Respondent's brief is that Kaui failed to make a reasonably adequate job search for he only applied at MTL Bus Line, prior to commencing work as a part-time employee for Hawaiian Transportation, an affiliate of Inter Island Resorts. This assertion overlooks the undisputed evidence that Kaui worked as a limousine driver for VSP Tours after he ap- plied for work as a bus driver with MTL and registered with the State of Hawaii Unemployment Service. Be- cause work at VSP did not produce adequate income, he began work for Hawaiian Transportation in February 1977. Respondent argues that Kaui's net backpay should be reduced for he accepted a part-time job in February without having made an adequate job search for full-time employment. Citing McCann Steel Co. v. NLRB, 570 F.2d 652 (6th Cir. 1978), and NLRB v. Madison Courier, 505 F.2d 391 (D.C. Cir. 1974). The Board and courts are cognizant that discriminatees may, and sometimes are, re- quired to seek and accept "other suitable employment at somewhat lower rates of pay." NLRB v. Southern Silk Mills, 242 F.2d 697 (6th Cir. 1957). In determining suit- ability, various factors must be considered. As noted by the District of Columbia in NLRB v. Madison Courier, supra at 405: [Thhere is some danger in withholding back pay from a claimant who accepts a lower paying job without making a completely adequate search for higher-paying work. If he accepts the lower-paying job too soon, he may be held to have incurred a willful loss of income by accepting an unsuitable position. But if he turns down the lower-paying job, he may be held to have incurred a willful loss of earnings by failing to "lower his sights." Conse- quently, doubts in this area should be resolved in favor of the claimant. See also NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569 at 575 (5th Cir. 1966). Thus, the initial question is whether other suitable employment was sought for a reasonable period of time after the unlawful discharge. As the court held in McCann Steel Co. v. NLRB, supra at 652, "suitable or substantially equivalent employment" refers to the nature of the work as well as the number of hours worked. Initially, it is noted that Respondent did not show that the job with Hawaiian Transportation was clearly unsuit- able. The evidence clearly demonstrates that many of the jobs in the tour bus industry on the island of Oahu are filled by word of mouth recommendations. Thus, analo- gizing Kaui's situation to those who were able to obtain full-time jobs through word of mouth recommendations does not establish the availability of such jobs for this claimant. Akamine and Iho both found full-time jobs through recommendations and both had Japanese lan- guage skills which may have been the basis for their ob- taining that employment almost immediately after their unlawful discharges. Unrefuted is Kaui's testimony that it is the usual practice in the tour bus industry to com- mence employment at the bottom as a part-time driver, and work up through the different categories which are: part-time driver, junior driver and full-time driver. Also unrefuted and unquestioned was Kaui's assertion that all three driver categories are paid the same rate, and that it is possible for a part-time driver to call in and work 6 or 7 days a week, earning as much or more than full-time drivers. Kaui was discharged by Rainbow while working as a tour bus driver and found interim employment as a bus driver, albeit, part time and lower in seniority. Under the facts of this case, Respondent has failed to show clearly that Kaui failed to accept a suitable position. There was no demonstration that any other available job would have been more appropriate for Kaui, given his particu- lar job skills or lack of a particular language skill. There was no evidence that he was offered a position with a tour bus company as a full-time employee which he failed to accept. Accordingly, this assertion is found to be without merit. Kaui had to be available for work at Hawaiian Trans- portation 6 days a week and accepted all work offered. The number of days he had to be available for work may have limited his opportunities to seek other employment. After Hawaiian Transportation temporarily laid him off, he began looking for work elsewhere. Kaui eventually found work at Hawaiian Scenic Tours in December 1977 and continued working for that company until it ceased operations in December 1980. Kaui then went back to work at Inter Island Resorts (a/k/a Hawaiian Transpor- tation Company), which eventually was called Gray Line Tours. In December 1980 he left Gray Line to take a full-time position with the city and county of Honolulu in the Parks and Recreation Department . During the times when he was laid off by the bus companies, he reg- istered for work at the State Employment Service, went to the Teamsters Union and made applications at Pepsi- Cola as a truckdriver, a trucking company called CPM & F, the Waikiki Trade Center, Hawaiian Airlines, Ha- waiian Telephone, Young Laundry as a truckdriver, and Foremost Dairies. He often referred to the computer list- ing of jobs at the State Employment Office because he lived nearby, and telephoned in response to jobs adver- tised in the want ad section of the newspaper. These actions are found to constitute a reasonably dili- gent search for interim employment . That the claimant experienced several periods of layoff due to lack of busi- RAINBOW COACHES ness supports his claim that there was no more suitable employment available. At one juncture, while working for Hawaiian Scenic, he was elevated to the position of full-time driver and then, due to lack of business, re- duced to a junior position. These facts refute Respond- ent's contention that Kaui could have found a full-time position or that the failure to fmd such a job indicates lack of diligence. There was no evidence that Kaui willfully worked fewer hours than offered during the backpay period. Re- spondent argues that in a personnel action form, dated April 25, 1980, Hawaiian Scenic Tours changed Kaui's position from regular driver to junior driver effective April 28, 1980, and surmised that this was probably done because he failed to make himself available for work. The basis for this surmise is unexplained in the brief. However, it is noted that in the same exhibit, Respond- ent's Exhibit G-16, there is an employment status report which shows that Kaui last worked June 26 and was temporarily laid off July 2, 1980, for lack of work. Thus, Respondent's inference appears effectively refuted by its own exhibit demonstrating that shortly after his change in status, Kaui was laid off for lack of work. The person- nel action form also indicated that there was a reduction in the number of hours he worked since his change of status, further supporting a conclusion that he was made a junior driver due to lack of work and his seniority ranking with the Company. Apparently after the backpay period ended, Kaui did not make himself available for work and was discharged from the Hawaiian Scenic Bus Company on November 24, 1980. The dismissal notice stated the basis for the action was that the employee "did not make self avail- able for work." There was no testimony on what that particular action meant or the circumstances surrounding it. This evidence regarding events subsequent to the backpay period was not shown to be reflective of any actions during the backpay period which would warrant the drawing any adverse inference. There is no conten- tion that he quit. Discharge from interim employment is not a willful loss of earnings. Even assuming arguendo that Kaui was shown to have been responsible for his discharge subse- quent to the termination of the backpay period, this find- ing did not demonstrate willful loss of earnings during the backpay period. Respondent's exhibit demonstrates that Kaui's hours were greatly reduced. This dimunition in work rendered his employment not substantially equivalent to his job at Rainbow, and Respondent did not show that he had incurred an obligation to retain such employment. The greatly reduced hours the record shows Kaui worked could arguably demonstrate that the job was unsuitable and thus he had no obligation to retain it See Keller Aluminum Chairs Southern, 171 NLRB 1252 (1968); Waukegan-North Chicago Transit Co., 235 NLRB 802 at fn. 4 (1978), which states: A discriminatee does not have to accept a job with more onerous terms and conditions of employ- ment. The obligation to mitigate an employer's backpay liability requires only that the claimant accept such substantially equivalent employment. 195 The Lakeland offer involved a wage rate less than one-half that which Hook enjoyed with Respond- ent. Acceptance of the Bums offer would have re- duced his wages by approximately one-third. In ad- dition, with respect to the weekend work required by Bums, the Board held that a discriminatee is not required to accept employment on a different shift from a job from which he is discharged. The Rich- ard W. Kaase Company, 162 NLRB 1320 (1967). The individual who had a regular schedule of work, as Kaui did with Respondent, similarly would not have to retain employment when he had to be available 6 days a week and only received a few days' work per pay period. A failure to retain such a job would not be con- strued as a willful loss of income. Respondent notes that several paystubs were missing from Kaui's records. Kaui's wife kept most of his pays- tubs and prepared their income tax forms. Kaui was as- signed to work for two movie companies and his earn- ings records differed from his recollection. This matter was never clarified and there was no official from the employer, Hawaiian Scenic, or its affiliates, either ARA or Leeward Bus Company, that would indicate that his poor recollection was otherwise indicative of an intent to deceive or defraud. An equally reasonable explanation is that one of the jobs was compensated in a regular pay- check from his employee, Hawaiian Scenic, and the other was just not properly recalled and did pay substan- tially less than he remembered . Other missing paystubs are considered to be subject to the same reasoning ap- plied to the claimants' lack of accurate or complete rec- ordkeeping, discussed above. These missing stubs, as well as the failure to keep accurate or complete records, has not been shown to be of such a nature as to abrogate or reduce Respondent's obligations to this or any of the other claimants. Respondent asserts that various vacations and days off for illness should be offsets, with the exception of a period from May 15 to August 31, 1978. On May 15 Kaui broke his clavicle in a motorcycle accident and was disabled until September 1, 1978. Respondent's Exhibit G-11, page 24, shows that he received some reimburse- ment in the amount of $1864.80 for the period May 22 to September 1, 1978. The record copy of this document does not note the issuer of this payment nor the purpose of the payment. Respondent argues that it was a tempo- rary disability payment and, as such, should be credited as an interim earning. Respondent did ' not indicate who was the issuer of the payment nor did it get an explana- tion of the nature of this payment. This may have been an insurance benefit which would have been encom- passed in lost fringe benefits or collateral benefits not properly offset. Medline Industries, 261 NLRB 1329 (1982). Vacations and illnesses have not been shown to be proper offsets. The term "backpay" is a term of art en- compassing not only wages but also any accompanying pension, health, welfare, or similar fringe benefit pay- ments or contributions which have long been character- ized as integral parts of the employer's overall wage structure. See NLRB v. Strong Roofing Co., 393 U.S. 357, 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 358-360 fn. 4 (1969); NLRB v. Rice Lake Creamery Co., 365 F.2d 888, 892 (D.C. Cir. 1966); Inland Steel Co., 77 NLRB 1 at 4-5 fn. 13 (1948), and cases cited, enfd. 170 F.2d 247 (7th Cir. 1948), cert. denied 336 U.S. 960 (1949). Inasmuch as backpay is intended to make em- ployees whole, it is well established that it may properly include any fringe benefit payments or contributions which, but for the unfair labor practice found in the un- derlying proceeding, would have been earned or gar- nered by the affected employee along with their wages. NLRB v. Strong, id. Respondent provided vacation and sick leave benefits to full-time employees, including Kaui. Respondent has failed to demonstrate that, except for the disability period occasioned by the motorcycle accident, the vacation and sick days this claimant took during the backpay period would not have been included in his benefits if he had remained an employee of Rain- bow. Accordingly, Respondent's request that the days Kaui was on vacation or sick leave, with the noted ex- ception, be deducted from his net backpay has not been shown to have merit and is denied. As to the moneys received from the motorcycle acci- dent, the Board noted in Canova Moving & Storage Co., 261 NLRB 639, 640 (1982), affd. 708 F.2d 1498 (1983): A controversy has arisen over how much, if any, of this sum may be offset as interim earnings from backpay otherwise due Phillips. As the Administra- tive Law Judge correctly observed, the Board, in American Manufacturing Company of Texas, [167 NLRB 520 (1967)] held that the workers' compen- sation payments are deductible insofar as they con- stitute a payment for wages lost by a discriminatee during a backpay period; but, to the extent that such payments constitute reparation for physical damage suffered, they are, as a collateral benefit un- related to wages, excluded from the computation of interim earnings. Respondent has failed to bear its burden of proof in showing the nature of this payment. There was no evi- dence the payment constituted a reparation for physical damage suffered or was, as claimed, a temporary disabil- ity payment. Further, Respondent failed to show how, under the applicable law of the State of Hawaii such payments are usually treated. However, as found in the Canova case, id., absent un- usual circumstances not here present, an employer is not liable for backpay during periods that an improperly dis- charged employee is unavailable for work due to a non- work-related disability. See American Mfg. Co., id. at 522. There was no indication that the disability in this case was other than temporary and since the doctor cer- tified a return to work by September 1, 1978, the record evidence indicates that Kaui was temporarily disabled and unavailable for work from May 15 to September 1, 1978. Accordingly, backpay will not be awarded for this period. Respondent argues that the number of days Kaui was disabled should be multiplied by his daily wage to determine the offset. However, to do so would permit an offset greatly in excess of the gross backpay for the same period. The amount of the offset for this period of dis- ability will be computed on a proportional basis, or one- half of the gross pay for the second quarter and one- third the gross pay for the third quarter of 1978. The total net pay is reduced to $17,251.24, as reflected in Ap- pendix G, plus interest. h. James Louis The claimed backpay period for James Louis runs from the time of his unlawful termination, February 1 until July 1, 1977. The total net backpay claimed is $2952.17. The backpay period for Louis was cut off as of July 1, 1977, because it became apparent to the General Counsel that Louis was devoting so much of his time to the pursuit of his own business that from July 1 forward that he was unavailable for work as a part-time employ- ee. Louis had worked for Respondent as a part-time em- ployee while retaining full-time employment with the city and county of Honolulu in its refuse department. Like Fonseca, Louis returned to work at Rainbow Tours after the strike ended. Respondent has several affirmative defenses. Initially, Respondent notes that Louis returned to Rainbow as a part-time driver after his unlawful discharge, arguing Louis' resignation on April 17, 1977, from Rainbow's employ was essentially voluntary and was not followed by a diligent job search or with the prospect of other similar employment, constituting a willful loss of income. It is uncontroverted that Respondent failed to reinstate Louis under terms and conditions consonant with the Board's order in the underlying proceeding. When Louis returned to Rainbow's employ, he was admittedly in- formed by Kolt that he was to be treated like a new driver, start from the bottom of the seniority list, and be subjected to an evaluation course to qualify as a tour bus driver. As noted in discussing Fonseca's reinstatement and subsequent resignation from employment at Rain- bow, improper reinstatement does not toll the running of the backpay period. See S. E. Nichols of Ohio, 258 NLRB 1 (1981), and cases cited therein. Also similar to Fonseca, it is found that Louis was constructively dis- charged. Contrary to Respondent's assertion that Board Agent Talkin determined, after investigation, that Louis' hours were no different after his reinstatement from before, she testified that such similarity only existed con- cerning 1 month, March 1977.18 As Respondent's Exhib- it H-2 demonstrates, there was a general dimunition in Louis' income after his reinstatement. Also uncontrovert- ed is Louis' testimony that he left because there were cliques,19 his hours of employment began diminishing, his income dropped, and he was given less desirable as- signments and less desireable equipment. Inasmuch as these changes in income and job assignments are directly attributable to his unlawful discharge, it is concluded that his leaving Respondent's employ without having an- other job was not a willful loss of earnings. 18 At Tr. 2082, Talkm stated that there were similarities in the hours "only with regard to March " 19 There was no attempt to investigate whether this reference to cliques indicated there was harassment by any supervisory personnel or others who might be construed as agents of Respondent. RAINBOW COACHES It is noted that Louis had a class III state of Hawaii drivers license which did not qualify him to drive tour buses. It is unclear whether Rainbow knew that he did not qualify as a tour bus driver under the licensing pro- cedures of the State. In an application Louis filed with Respondent, he stated he had a class IV license. There is no indication whether Respondent required its drivers to present the proper license on a periodic basis for its review to ensure fitness to drive. Louis' class III license only authorized him to drive 12-passenger vans. He always had a class III license. There was no record evi- dence whether the Company had knowledge of this falsehood or lack of proper qualifications during the backpay period. There is no basis to find those actions bar recovery of backpay. Louis started his employment with Rainbow in 1967 or 1968 and was one of the most senior part-time drivers. This failure to have the proper drivers license has not been shown to be relevant to any of the issues in this proceeding, save credibility. It is in- credible that an individual drove a bus for approximately 10 years without the proper license and it is equally in- credible that a company employed such an individual without knowing he did not have a proper license. Re- spondent did not claim to have knowledge of this failure during the backpay period or at any other time which would warrant tolling backpay. Respondent next asserts that after Louis left Rainbow's employ, he failed to engage in a reasonably diligent job search which would act as a bar to receipt of backpay. Louis applied for work at two gas stations and Freeman Security, as well as attempting to start his own business. Louis was unclear when he applied for jobs with other potential employers, including Hawaiian Holidays, Dia- mond Parking, American Express, Liberty House, McIn- erny, and B & C Trucking, while trying to start his own businesses, including a nursery business which would rent plants to various businesses, a lunch truck, and a used-car selling service called "Sell It Yourself." Re- spondent indicates that Louis had no experience in run- ning a business and his inept efforts to become self-em- ployed should not be construed as a diligent job search. As found in Heinrich Motors, 166 NLRB 783 at 783 (1967), "That self-employment is an adequate and proper way for the injured employee to attempt to mitigate loss of wages hardly requires citation." Louis' inexperience in running his own business does not alter established law Louis testified that he had partners in these endeavors. Respondent failed to ascertain who these partners were or whether they had the requisite experience to increases his chances of success Respondent thus has failed to bear its burden of proof. Respondent claims that Louis was placed on leave without pay from his job at the refuse department be- tween February and April 1977 because he was suffering from psychological stress. This claim is not a clear re- flection of the record. The records of the city and county of Honolulu indicate that Louis was placed on leave without pay because he failed to provide a chest X-ray. See Respondent's Exhibit H-21. It is noted that Louis continued working for Respondent during this time. There was no indication that he was suffering from psychological stress or other illness rendering him unfit 197 to drive a tour bus. The records of the city indicate that his failure was solely based on his not meeting medical requirements prescribed by the city. As deputy corpora- tion counsel for the city and county of Honolulu Char- lotte Duarte testified, at 659 of the transcript, the city stopped Louis from driving but this would not preclude him from driving on another job as long as the employer was not the city. Although Louis mentioned that he suf- fered from depression due to family problems and finan- cial difficulties, there was no showing that such depres- sion occurred during the two quarters of his backpay period or was of such quality and nature to preclude him from working for Respondent or any other employer. Louis subsequently returned to driving for the city and county of Honolulu. The record evidence does not show that he was unable to work at interim employment during the backpay period. Consequently, it is concluded that Respondent has failed to bear its burden that his ad- mitted psychological stress affected his availability for work during the backpay period. Respondent contends that backpay should not accrue for those days that Louis took sick leave, funeral leave, and vacation time. As to vacation time, there was no showing that he was unavailable for work with Respond- ent when he took vacation time from his full-time em- ployment with the city and county of Honolulu. The sick leave he took during February, March, and April, while still employed with Respondent, was not shown by Respondent to have impaired or prevented his working for them. The only interim earnings recorded during the backpay period were with Rainbow, and Rainbow would have all leave records indicating whether he did or did not work those days. During the backpay period when he was no longer employed by Rainbow, Louis took sick leave from the refuse department May 17-19 and on June 21 for an industrial injury. As indicated above, Re- spondent failed to show whether occasional sick days were or were not already included in the gross backpay calculations. Respondent has the obligation to prove mitigation and must initially show whether such sick leave is a proper offset under the circumstances of this case and not a double counting. It has failed to do so. Louis' forms were returned to the NLRB blank, failing to mention some job applications he later testified about. This action does not show a failure to conduct a reason- ably diligent job search. Respondent had all the informa- tion available to it prior to its examination of Louis and there was no claim at the time of such examination that further time was needed in order to prepare its case. Louis exhibited confusion as a witness, admitting at the time that the documents were submitted to him for com- pletion that he suffered from a depression which impact- ed adversely on his ability to complete them accurately, and there were several patent errors in the portions he did fill out, including the claim that he worked for Rain- bow through September 1977. This confusion does not constitute a basis for offsets. Louis applied to tour-related companies such as American Express and Hawaiian Hos- pitality. He also sought jobs in related fields such as driv- ing trucks for two department stores. He also consulted the want ads in the newspapers and checked job avail- 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ability at the State Employment Service. It was only after July 1, 1977, that there was no showing of any ef- forts to continue searching for part-time employment in addition to his full-time job at the refuse department with the city and county of Honolulu . There is no evidence indicating that these representations are false or other- wise unusable. It is found that Louis made reasonable ef- forts to mitigate his loss of income during the backpay period. Aircraft & Helicopter Leasing Co., 227 NLRB 644 and 646 (1976). Accordingly, it is concluded that Louis is entitled to total net backpay of $2952. 17, exclusive of interest. i. Ronald Sai Sai was a part-time employee of Respondent working full time for the Fire Department. Net backpay is claimed from February 12, 1977, to October 18, 1980, in the amount of $15,995.25. Following his unlawful dis- charge, Sai sought employment at several bus companies including Polynesian Adventure and Polynesian Hospi- tality. Eventually, in March 1977, he was hired as dis- patch manager at Charley's. Sai resigned this position in June 1977 and became an ordinary dispatcher. Shortly thereafter he resigned employment at Charley's without having another job available. Respondent asserts that Sai's resignation as dispatch manager and eventual departure from Charley's consti- tutes a willful loss of earnings of a nature which would terminate their backpay obligations. Respondent does not dispute Sai's assertion that while working as dispatch manager for Charley's he had to work more than 40 hours a week, greater than the 20 hours a week he usual- ly had to work for Respondent. There is no basis to dis- credit Sai's assertion that he had to work much longer hours as dispatch manager than he did as a part-time driver for Rainbow. Also uncontroverted is Sai's asser- tion that dispatchers earn much less than bus drivers. As noted in the discussion of claimant Kaaiai, quitting an in- terim position does not necessarily constitute a willful loss of earning. The issue is whether Sai's actions were for justifiable personal or other reasons. Shell Oil Co., 218 NLRB 87 (1975). When an employee has a "moonlighting" job, a second job from which he is discriminatorily discharged, it is found that having to work an additional 40 hours or more a week at the interim job engendered too difficult a pattern of life and was "unsuitable" interim employment. See Lozano Enterprises, 152 NLRB 258 (1965); John S. Barnes Corp., 205 NLRB 585 (1973); Winn-Dixie Stores, 170 NLRB 1734, 1744 (1968); Artim Transportation System, 193 NLRB 179, 183 (1971). See also Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197-200 (1941). Once Sai became an ordinary dispatcher, the job had such limited remuneration that he was justified in quit- ting to seek employment other than as dispatch manager. See Shell Oil Co., supra, 218 NLRB at 90. See further NLRB v. Madison Courier, 505 F.2d 391 at 397-398 (D.C. Cir. 1974). Respondent has failed to show that the dispatcher's job at Charley's was substantially equivalent employment. See NLRB v. Mastro Plastics Corp., 354 F.2d 170 at 174 fn. 3 (2d Cir. 1965), and McCann Steel Co. v. NLRB, 570 F.2d 652 (6th Cir. 1978). After leaving Charley's in the second quarter of 1978, Sai secured a job at a trucking firm, Ray's Express. He worked there from June 14, 1978, to January 31, 1980. This job ended because of lack of work. The record is unclear whether he was laid off or was never recalled due to lack of work. There was no showing that he quit Ray's Express, only that business exigencies ended the need for his services. Respondent argues that certain comments made by Sai during its taking of his deposition indicated that he did not want to work after February 1, 1980. To place the deposition statements in context, they are quoted as follows: Q. Do you know where [a picket] worked? Was he a driver for Hawaiian Scenic? A. No. Q. Did you get the feeling he was a guy who maybe did some movie jobs, or was a friend of Rut- ledge's, was an old long-time member of the Union? A. Yes. I think he was working for Hawaii Five- 0. Q. Now, after you've worked for Charley's and Ray's Express, what brought about the fact that you stopped working, apparently stopped working, parttime? A. I'm rich. I don't need any more money. I just got a big raise.20 Q. Is that the real reason, or you just got tired of working two jobs? A. Yes, I got tired of working two jobs. See Respondent's Exhibit 1-17, pages 19-20. The deposition was taken on August 7, 1979, a time when Sai was working for Ray's Express, and he contin- ued working for that employer part time until the end of January 1980. This fact gives credence to his testimony that his answer was an attempt at sarcasm. He admitted- ly was tired of working two jobs, but needed the income as demonstrated by continuing his "moonlighting" work. His intent in making this comment was not explored in the deposition. Considering his previous reference to Hawaii Five-O and Respondent's knowledge that he was working two jobs at the time the questions were asked, it is concluded that Sai's characterization of the comment as sarcasm is the most credible interpretation. After Sai stopped working at Ray's in January 1980, he did not work part time for any other employer until the end of that year. He sought employment with Poly- nesian Adventure Tours, Polynesian Hospitality, and Citywide Transportation or Trucking, either after he left Ray's or while he was working at Ray's. It is found that seeking part-time employment at only two companies during an 8- to 9-month period does not show reasonable diligence; and therefore he should not be awarded any backpay for the second, third, and fourth quarters of 1980. Respondent next asserts that it should not have to pay for those days when Sai was on vacation or sick leave or was disabled. In 1977 Sai took sick leave on January 9, 20 There was no showing that he got a big raise or a raise of such a nature and quality as to give credence to this particular statement RAINBOW COACHES February 14, March 31, August 13, October 17 and 19, and December 17. In 1978 Sai took sick leave from his fireman's job on February 4, March 21, April 8, May 3, and October 30 and was disabled because of oral surgery May 20-29. In 1979 he took sick leave from his fireman's job on January 8 and 10, May 18, June 19, and July 16 and 29. He also hurt his back and was off from his Fire Department job from March 3 to 29. Since it is found that he was not entitled to backpay after he left Ray's Express, his leave record for the rest of 1980 is not perti- nent. As found above, an occasional day of sick leave from full-time employment has not been shown by Respondent to warrant an offset since such occasional illnesses might have been already factored into the calculation of gross backpay. A different situation obtains regarding the back injury. Unfortunately Respondent did not ask Sai any de- tails about the nature and extent of the back injury nor was any representative of the Fire Department or the city and county of Honolulu asked any questions about what the Fire Department's policy is regarding placing individuals on leave for injuries so that one could equate inability to perform duties as a fireman with an inability to perform duties as a tour bus or truckdriver. This fail- ure is Respondent's and all doubts must be resolved in favor of the claimant. Similarly, the oral surgery that warranted his taking sick leave from his fire department job from May 20 to 29, 1978, was not shown to be equally disabling from en- gaging in activities such as a tour bus or truck driver. No questions were asked about the nature of the surgery or what standards the fire department has for safe job performance or any other points of comparison to permit the inference Respondent now seeks to draw without any record evidence. Respondent failed to indicate whether these injuries were unrelated to either his part-time or full-time em- ployment. The record is devoid of any evidence regard- ing how the back injury occurred or what led to the needed dental work. Disabilities incurred during and in the course of interim employment are not proper offsets. Accordingly, it is found that such periods of disability were not shown to be proper offsets against gross back- pay. The various vacation days from the fire department when it was not shown that Sai was unavailable for in- terim employment will not be offsets. Sai stated that be- tween 1977 and 1980 he engaged in fishing trips every 2 months on a friend's boat. There was no indication that this activity differed from when he was employed at Re- spondent and therefore not already considered in the computation of backpay. Those trips, however, when it was clearly shown that Sai was off the island of Oahu and not available for work, such as a trip that he took to the island of Molokai from September 2 to 5 and to the contiguous 48 States, thence to Canada, from September 5 to 15, returning to the State of Hawaii from September 18 to 29 to bury his father, are found to have been peri- ods of time when he was not looking for work and as unavailable for interim employment. These vacations are offsets. Sai was not available for employment from Sep- tember 2 to October 1977 which requires a one-third re- 199 duction in his gross backpay for that quarter, in the amount of $569.63. Respondent, while examining Sai, again raised the issue of lack of pretrial discovery. Respondent also re- newed its request for subpoena enforcement against the State Employment Service to discern the basis for his de- parture from Charley's. Respondent was informed that a representative of Charley's was present at the trial as well as the claimant. Charley's may have had firsthand documentation and knowledge of the matter, and failure to question them did not raise an issue sufficient to war- rant a modification of the ruling regarding the enforce- ment of the subpoena against the State. Respondent also noted, in an offer of proof on page 918 of the transcript, that it received copies of Sai's bank statements and copies of his mortgage statements and checking account from two different institutions as well as material from a credit union. Again, it is difficult to discern what, if any, information Respondent was unable to get from the banks to warrant its request for reopening the proceed- ing. In sum, it is concluded that Sai is entitled to a total net backpay of $11,182.34, plus interest, as set forth in Ap- pendix I. j. Henry Sanford Sanford's backpay period runs from February 1, 1977, to October 18, 1980. The commencement and termina- tion dates of the backpay period are not in dispute. San- ford was a full-time employee with Respondent. He was Rainbow's most senior tour bus operator. Sanford ap- plied for employment with Gray Line and was hired as a part-time driver. Sanford also applied for work with Re- spondent but was told he would only be hired on a part- time basis. Gray Line was also known as Hawaii Transportation. Sanford applied at Gray Line because he was unem- ployed, 54 years' old with a son in college, and was a tour bus driver since 1967. Respondent contends that by taking the first employment opportunity offered, a part- time job, and not looking for a full-time position thereaf- ter, Sanford willfully incurred a loss of income and failed to make a diligent search for alternative employment. Applying the standard announced in Aircraft & Helicopter Leasing Co., 227 NLRB 644 at 646 (1976), it was shown that Sanford sought work within a reasonable period of time of his discriminatory discharge and accepted a part- time job when no full-time position was offered by Re- spondent or other potential employers. Respondent only offered him part-time work. The claimant was not shown to be trained to perform any other work but that of op- erating a tour bus and was of an age and had family obli- gations which necessitated the speedy procurement of work. There was no showing that he refused to take any other positions or that any other jobs were offered to him that would have provided greater earnings. The record in this case establishes that Gray Line made the distinction between full-time and part-time drivers in cer- tain nonsalaned benefits and gave full-time drivers a 40- hour guarantee of work, but there was no showing that by assuming this position Sanford knowingly or willfully 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed to mitigate loss of income. On the contrary, he knew there was a potential to work his way up in senior- ity and become a full-time employee , thus gaining secure employment with sufficient remuneration to meet family and other obligations. The backpay specification, Appendix J, clearly indi- cates that after 1977, Sanford's course of action did real- ize interim earnings almost equal to the income he would have received if he had not been unlawfully discharged by Respondent . There was no indication that embarking on a different course of action would have provided greater mitigation. The record does not show willful in- currence of loss of earnings, a clearly unjustifiable refusal to take desirable new employment or other actions that could be described as not constituting a reasonable effort to mitigate loss of income. Respondent next notes that Sanford had experienced layoffs during his employment with Gray Line and that, because he did not seek other employment during such periods of layoff, it was a willful failure to mitigate. San- ford testified that he did not seek other employment be- cause he was still working for Gray Line. There was no showing that during these periods of layoff there were other jobs available or offered that he refused to accept. There was no evidence adduced regarding the nature of the layoff, what type of information he received, or whether he had any knowledge that the layoff would be other than of short duration. Respondent did call a rep- resentative of Gray Line who appeared and testified, but no evidence regarding what type of information, if any, the claimant received about the layoffs was adduced. One layoff lasted from July to September 22, 1977, and then he was again laid off December 4 and may have been recalled December 12, 1977. There was no evidence that the economic downturn impacting Gray Line was not also decreasing the need of other bus com- panies for employees or that it would be fruitful or rea- sonable for him to seek employment elsewhere. There is no evidence he should have known the layoff would be so long. Given the nature of the tour bus industry in Hawaii as reflected in this record, it appears that there were fairly regular periods of layoff of short duration. The summer and fall of 1977 may have been such a period. There was no indication Sanford could not rea- sonably anticipate quick reinstatement nor of any other factor that should have caused him to seek other em- ployment. Whether Sanford would have lowered his in- terim earnings by seeking employment elsewhere and losing the seniority he had established at Gray Line was not a matter placed in evidence. Accordingly, it cannot be found that his failure to seek other employment, given the nature of the tour bus industry, his age, and his lack of job skills other than as a tour bus operator can be con- strued as a willful loss of earnings or an unreasonable failure to mitigate such loss. On the contrary, Sanford's ability to earn almost the same income after the first year by working for Gray Line that he would have earned had he not been unlawfully discharged tends to support his decisions regarding the most reasonable manner of mitigation. As noted above, claimants' obligation to make a rea- sonable search for similar employment cannot be applied without consideration of the total circumstances involved in each proceeding and the particular attributes of each claimant. We consider a claimant's actions in seeking em- ployment years after these decisions are made in an his- torical context that can only be inferred from the record evidence. In this case, those employees who readily found full-time employment as tour bus drivers with other companies had Japanese language skills . There was no showing Sanford was similarly skilled . It is undis- puted that the tour bus companies hired on the basis of personal recommendation or word of mouth. There was no showing that Sanford had sufficient contacts or rec- ommendations to procure other employment . Also, there was no sufficient description of the operations of Gray Line compared to the other tour bus companies operat- ing in Hawaii that indicated there was a reasonable po- tential that further searches for employment would have resulted in greater mitigation. Once Sanford found a potentially long-term position with opportunity to become a full-time driver, layoffs prioi to attainment of senior full-time positions does not require he leave that position and obtain a new job, pos- sibly with lower seniority and lower pay. There was no evidence about the working conditions at Gray Line which could be considered relevant in determining the reasonableness of his job search . His job search did result in the expeditious acquisition of employment. See NLRB v. Tama Meat Packing Corp., 634 F.2d 1071, 1073 (8th Cir. 1980). The decision in Tama Meat Packing Corp., 244 NLRB 1052 (1979), also refused to speculate about a claimant's particular actions. Respondent has the obliga- tion to reduce, if not eliminate, the need for such specu- lation and has failed to do so in this case. It is concluded that Sanford made an honest and good-faith effort to obtain suitable interim employment given his background and experience. Respondent further argues that Sanford's leave record at Gray Line indicates that he was unavailable for work on a number of days due to illness or vacations. Re- spondent failed to show that these were proper offsets against gross backpay since Sanford, as a full-time em- ployee of Rainbow, was entitled to vacation leave as well as sick pay. Sanford was compensated for a broken wrist that temporarily disabled him. This was apparently an industrial accident. There was no showing that Re- spondent would not have similarly compensated him nor that it should be considered a proper offset. The only offset allowable for Workers' Compensation payments is where temporary disability payments are given as a substitute for lost wages under applicable state law. There are differences among the States . Respondent did not contend that under Hawaiian law compensation was given as a substitute for lost wages. The record is unclear in this proceeding on whether the benefits or payments received by Sanford are deductible insofar as they constitute payment for wages lost by a discrimina- tee during a backpay period rather than a reparation for physical damage suffered, thus a collateral benefit unre- lated to wages and excluded from computation of interim earnings. Respondent did not ask for any time to investi- gate the matter even though the testimony about this RAINBOW COACHES injury was given prior to the 6-week recess in the pro- ceeding. Sanford was incapacitated from September 20 to Octo- ber 2, 1980. There was no showing by Respondent that if he remained in its employ he would not have been com- pensated as a full-time employee for this period of inca- pacitation. Since this could have been a benefit he would have received from Respondent, it is not properly con- sidered as an offset to gross backpay. See Canova Moving & Storage Co., 261 NLRB 639 at 640 (1982). Because Re- spondent failed to bear its burden of proving mitigation, all doubts must be resolved in favor of the claimant; these offsets will not be allowed. It is concluded that Sanford should receive total net backpay of $10,279.23, plus interest. THE REMEDY For the reasons described above, I find that Respond- ent's obligations to the discriminatees herein will be dis- charged by the payment to them of the respective amounts set forth in the appendices annexed hereto. Such amounts shall be payable, plus interest on those sums, in the manner provided in F. W. Woolworth Co., 90 NLRB 201 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962).21 Respondent, Rainbow Coaches, Inc., Honolulu, Hawaii, its officers, agents, successors, and assigns, shall make the employees involved in this proceeding whole by payment to them of the following amounts, together with interest as set forth in the remedy section of this de- cision, and continue until the amounts are paid in full, but minus tax withholdings required by Federal and state laws: Simeon Agao, Jr. $7,321.18 Michael Akamine 1 ,663.18 Miles Fonseca 18,421.76 Yukio Iho 1,687.57 Lane Kaaiai 14,963.76 Eric Kama 9,166.14 Ralph Kaui 17,251.24 James Louis 2,952.17 Ronald Sai 11,182.34 Henry Sanford 10,279.23 Paul Uwata -0- 21 If no exceptions are filed as provided by Sec. 102 46 of the Board's Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- poses APPENDIX A Claimant: Simeon Agao Jr. Year i Qtr. Gross Backpay Interim Earnings Deductible Expenses Net Interim Earnings Net Backpay 1977 .............................................................................. I $2,491.52 1$822.37 2$15.00 $807.37 $1,684.15 II 3,810.56 33,492.58 0 3,492.58 317.98 III 3,810.56 33,094.02 0 3,094.02 716.54 IV 3,810.56 32,543.68 0 2,543 68 1,266.88 1978 ........................................................................... 1 3,810.56 33,949.05 0 3,949.05 0 II 3,897.08 33,112.96 0 3,112.96 784.12 III 3,933.33 33,276.55 0 3,276.55 656.78 IV 4,003.50 34,073.07 0 4,073.07 0 1979 ...................................................................... 1 4,061.46 34,024.48 0 4,024.48 36.98 II 4,097.51 34,554.95 0 4,554.95 0 III 4,155.19 34,975.34 0 4,975.34 0 IV 4,155.19 33,467.56 0 3,467.56 678.63 1980...... I 4,456.72 34,656.16 0 4,456.16 0 II 4,625.92 34,178.55 0 4,178.55 447.37 III 4,625.92 34,175.09 0 4,175.09 450.83 IV 1,067.52 3795.60 0 795.60 271.92 1 Robert's Hawaii Tours, Inc.; Royal VSP Services. 2 Mileage, telephone calls. 3 Robert's Hawaii Tours, Inc. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Claimant: Michael Akamine APPENDIX B 6 Charley's Tours & Transportation, Inc., Casual construction work. 7 Casual construction work. APPENDIX D Year Qtr. Gross Interim Net Backpay Earnings Backpay Claimant: Yukio Iho 1977 .................. I $2,326.62 1$776.48 $1,550.14 II 3,558.36 14,763.96 0 Year Qtr. Gross Interim Net Backpay Earnings Backpay III 3,558.36 13,445.32 113.04 IV 3,558.36 14,192.62 0 1978 .................. I 3,558.36 14,779.60 0 1977 .................. I $2,465. 85 1$825.48 $1,640.37 II 3,640.92 14,839.10 0 II 3,771.30 14,440.62 0 III 3,675.48 15,616.18 0 III 3,771.30 13,724.10 47.20 IV 3,785.76 15,454.17 0 IV 3,771.30 14,460.16 0 1979 .................. I 3,789.76 14,820.46 0 1978 .................. I 3,771.30 14,693.52 0 II 3,827.16 15,656.70 0 II 3,858.66 14,262.10 0 III 3,887.00 16, 111.56 0 III 3,895.30 15,308.68 0 IV 3,887.00 15.397.78 0 IV 4,019.92 15,739.16 0 1980 .................. I 4,174.52 16,629.90 0 1979 .................. I 4,024.80 14,846.96 0 II 4,335.76 15,833.70 0 II 4061.20 15,685.50 0 III 4,335.76 16,214.40 0 III 4,119.44 169403.90 0 IV 1,000.56 21,243.80 0 IV 4,119.44 15,480.70 0 Total Net Backpay ............................................ $1,663.18 1980................. I 4,424.10 16,538.14 0 II 4,595.11 15,898.70 0 1 Robert's Hawaii Tours, Inc. III 4,595.11 16,403.40 0 THIRD AMENDED APPENDIX C IV 1.060.41 11,269.69 0 Claimant: Miles Fonseca Year Qtr. Gross Interim Net Backpay Earnings Backpay 1977 .................. I $1,067.26 1$652.93 $414.33 II 1,632.38 2483.45 1,148.93 III 1,632.38 2298.00 1,334.38 IV 1,632. 38 2216.00 1,416.38 1978 .................. I 1,632.38 4577.15 1,055.23 II 1,670.92 2666.25 1,004.67 III 1,682.70 4795.20 887.50 IV 1,701.96 4513.13 1,188.83 1979 .................. 1 1,701.96 5360.86 1,341.10 II 1,701.96 547.90 1,654.06 III 1,701.96 6473.19 1,228.77 IV 1,701.96 7416.66 1,285.30 1980 .................. 1 1,771.28 7416.66 1,354.62 II 1,840.93 7416.66 1,424.27 III 1,840.93 7416.66 1,424.27 IV 283.22 764.10 21912 Subtotal ........................................................... $18,381.76 Union dues .................................................................. 40.00 TOTAL NET BACKPAY ............................. $18,421.76 1 Rainbow Coaches, Charley's Tours & Transportation. 2 Charley's Tours & Transportation, Inc. 2 Greyhound. 4 Greyhound, Charley's Tours & Transportation, Inc. 5 Charley's Tours & Transportation. Total Net Backpay ............................................ $1,687.57 1 Robert's Hawaii Tours, Inc. AMENDED APPENDIX E Claimant: Lane Kaniai Year Qtr. Gross Interim Net Backpay Earnings Backpay 1977 ................. I $993.48 $0 $993.48 II 1,519.44 0 1,519.44 III 1,519.44 0 1,519.44 IV 1,519.44 0 1,519.44 1978 .................. I 1,519.44 0 1,519.44 II 1,557.72 0 1,557.72 III 1,569.39 0 1,569.39 IV 1,588.47 0 1,588.47 1979 .................. I 1,588.47 0 1,588.47 II 1,588.47 0 1,588.47 III 0 0 0 IV 0 0 0 1980 .................. I 0 0 0 II 0 0 0 III 0 0 0 IV 0 0 0 Total Net Backpay ............................................ $14,963.76 RAINBOW COACHES 203 SECOND AMENDED APPENDIX F SECOND AMENDED APPENDIX F-Continued Claimant: Eric Kama Claimant: Eric Kama Year Qtr. Gross Interim Net Backpay Earnings Backpay 1977 .................. I $1,233.01 $0 $1,233.01 II 1,885.78 '474.40 1,411.38 III 1,885.78 0 0 IV 1,885.78 0 0 Gross Interim Net Backpay Earnings Backpay II 2,143.18 21,094.26 1,048.92 III 2, 143.18 21,273.23 869.95 IV 412.15 '119.53 292.62 1978 .................. I 1,885.78 '286.08 1,500.70 Subtotal .............................................................. $8,966.14 II 1,933.42 0 0 III 1,947.95 0 0 Union dues ..................................................................... 200.00 V 1,971.71 1564.21 1,407.50 Total Net Back 1979 ............ 1,971.71 11,034. 51 883.98 paY ............................................ $9,166.14 II 1,971.71 11,305.48 666.23 III 1,971.71 11,897.80 91.91 V 1,971.71 1229.28 1,672.43 ' Charley's Tours & Transportation, Inc. 1980 ............. I 2,057.28 21,061.47 995.81 2 Charley's Tours & Transportation, Inc.; Robert' s Hawaii 21,094.26 Tours, Inc. 1,048.92 21,273.23 869.95 AMENDED APPENDIX G Claimant: Ralph Kaui Year Qe>: Gross Backpay Interim Earnings Decuctible Expenses Net Interim Earnings Net Backpay 1977 ................................................................................. I $2,554.34 '$1,633.46 2$34.50 $ 1,598.96 $955.38 II 3,906.63 93,144.48 437.50 3,106.98 799.65 III 3.906.63 91,431.13 437.50 1,393.63 2,513.00 IV 3,906.63 63,293.51 437.50 3,256.01 650.62 1978 ................................................................................ I 3,906.63 65,144.70 439.00 5,105.70 0 II 3,997.11 62,342.42 439.00 2,303.42 0 III 4,035.09 7787.96 439.00 748.96 1,941.23 IV 4,164.12 74,729.77 439.00 4,690.77 0 1979 ................................................................................. I 4,169.23 65,335.21 439.00 5,296.21 0 II 4,206.93 63,846.90 439.00 3,807.90 399.03 III 4,267,25 64,277.98 439.00 4,238.98 399.03 IV 4,267.25 84,891.87 439.00 4,825.87 0 1980 ................................................................................. 1 4,582.91 82,826.47 48.00 2,778.47 1,804.44 II 4,760.08 81,589.31 448.00 1,541.31 3,218.77 III 4,760.08 9542.32 448.00 494.32 4,265.76 IV 915.40 8255.31 4800 243.31 672.09 Total Net Backpay ................................................................................................................................................................ $17,251.24 ' VSP Tours, Interisland Resorts. 2 Union dues, mileage. ' Interisland Resorts. 4 Union dues. 6 Interisland Resorts, ARA Services. 6 ARA Services. 7 ARA Services, Columbia Pictures. 8 ARA Services, Hawaiian Secic Tours. Hawaiian Secic Tours. Year Qtr. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMENDED APPENDIX H Claimant: James Louis Year Qtr. Gross Interim Net Backpay Earnings Backpay 1977 .................. I $ 1,653.76 '$1,137. 37 $516.39 II 2,529.28 193.50 2,435.78 Total Net Backpay .......................................... $2,952.17 ' Rainbow Coaches. SECOND AMENDED APPENDIX I Claimant: Ronald Sai Year Qtr. Gross Interim Net Backpay Earnings Backpay 1977 .................. I $1.116.22 '$331.76 $804.46 II 1,707.16 12,250.00 0 III 1,707. 16 1140.25 997.34 4569.53 IV 1,707.16 1354.87 1,352.29 1978 .................. I 1 ,707.16 1371.95 1,335.21 II 1,750.24 2269.30 1,480.94 III 1,763.35 9425.25 1,338.10 IV 1,784.77 91,400.00 384.77 1979 .................. I 1 ,784.77 9777.00 1,007.77 II 1,784.77 91,565.38 219.39 III 1,784.77 91,585.50 199.27 IV 1,784.77 91,288.00 496.77 1980 .................. I 1,862.28 9306.25 1,556.03 II 0 0 0 III 0 0 0 IV 0 0 0 ' Charley's Tours & Transportation, Inc. 9 Charley's Tours & Transportation, Inc.; Ray's Express. 9 Ray's Express. 4 Offset for unavailability. AMENDED APPENDIX J Claimant : Henry Sanford Year Qtr. Gross Interim Net Backpay Earnings Backpay 1977 .................. I $2,622.34 '$1,230.03 $1,392.31 II 4,010.63 12,703.09 1,307.54 III 4,010.63 1317.92 3,692.71 IV 4,010.63 12,669.61 3,692.71 1978 .................. I 4,010.63 13, 964.81 45.82 II 4,101 .11 13,192.37 908.74 III 4,139.09 14,570.98 0 IV 4,268.12 13,450.50 817.62 1979 ................. 1 4,273.23 13,875.78 397.45 II 4,310.93 14,413.87 0 III 4,371.25 16, 296.27 0 IV 4,371.25 15,236.39 0 1980 .................. I 4,686.91 15,140.43 0 II 4,864.08 15,535.84 0 III 4,864.08 14, 918.52 0 IV 929.40 1553.38 376.02 Total Net Backpay ........................................... $10,279.23 ' Grey Line. Total Net Backpay ............................................ $11,182.34