Arlington Hotel Co., Inc.

ARLINGTON HOTEL CO 851 Arlington Hotel Company, Inc. and International Ladies' Garment Workers' Union, AFL-CIO. Cases 26-CA-8974 and 26-CA-9024 16 December 1987 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 12 December 1984 the Board issued its Deci- sion and Order in this Case finding, inter alia, that the Respondent had violated Section 8(a)(3) and (1) of the Act by implementing "a striker recall policy that restricted the recall of strikers to their pre- strike positions and resulted in the preferential hiring of new employees in jobs which, the parties stipulated, the unrecalled strikers were qualified to perform."' The Board ordered the Respondent, inter alia, to reinstate and make whole numerous strikers, including Frank Avant, Nathan Dendy, and Frank Jones. 2 On 4 March 1986 the United States Court of Appeals for the Eighth Circuit en- forced the Board's Order.3 On 20 October 1986 the United States Supreme Court denied the Respond- ent's writ of certiorari.4 Although initially there was disagreement over the backpay amounts owed the strikers, by the start of the hearing the parties had resolved their differ- ences over the amounts due for all but Avant, Dendy, and Jones. Regarding those three, on 27 May 1987 Judge Linton issued the attached supple- mental decision. Thereafter, the General Counsel filed exceptions and a supporting brief, the Charg- ing Party filed a statement in support of the Gener- al Counsel's exceptions, the Respondent filed cross- exceptions with a supporting brief and a response brief to the General Counsel's exceptions, and the General Counsel filed an answering brief to the Re- spondent's cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the judge's supple- mental decision and the record in light of the ex- ceptions, cross-exceptions, and briefs and has decid- ed to affirm the judge's rulings, findings, and con- clusions only to the extent consistent with this Sup- plemental Decision and Order. The judge concluded that discriminatee Frank Avant was entitled to backpay only for the four 1 273 NLRB 210 2 273 NLRB at 218-219 3 785 F 2d 249 4 107 S Ct 314 (mem op), 123 LRRM 2672 (1986) quarters from April 1981 through March 1982.5 In reaching this conclusion the judge agreed with the Respondent's contention that after March 1982 Avant failed to exercise reasonable diligence in his search for work. The General Counsel excepted to this conclusion arguing that Avant did not fail to exercise reasonable diligence in his search for work and, therefore, that Avant is entitled to backpay for the entire 68-month backpay period.6 We agree with the General Counsel.7 In deciding this case we emphasize that the Re- spondent has the burden of establishing that the discriminatee failed to exercise reasonable diligence in searching for work8 and that the applicable standard is one of reasonable diligence, not the highest diligence.9 At the beginning of the backpay period, Avant was about 50 years old, had a seventh grade educa- tion, and weighed approximately 300 pounds. When he first went to register at the Arkansas Em- ployment Security Division (ESD), a division em- ployee interviewed him and assessed his job pros- pects. The interviewer told Avant that with his qualifications it was unlikely the ESD would be able to find him a job. The record establishes that Avant filed employ- ment data sheets listing the employers he contacted and the number of contacts made during the fol- lowing periods: April 1981 through March 1983, October 1983 through September 1984, and Janu- ary 1985 through March 1985. The judge found that Avant's reasonable search ended in March 1982 based on the decline in the number of con- tacts Avant had with the potential employers after that time 10 The reports show, however, that for the last 3 months included in the judge's backpay period (i.e., January, February, and March 1982) for which time the judge implicitly found Avant had made a reasonable search, Avant's number of contacts were two, two, and one, respectively, and that these numbers do not appreciably differ from those in the months that followed. Thus, subse- quent to the judge's backpay termination month of March 1982 and through March 1983 the reports 5 The backpay for this period amounts to $10,687 6 This period extends from 26 March 1981 to 1 December 1986 and the backpay amounts to $69,748 ' The General Counsel also excepts to the judge's findings regarding discriminatee Nathan Dendy Those findings, however, are based on the credibility resolutions The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear pre- ponderance of all the relevant evidence convinces us that they are incor- rect 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 8 See Chem Fab Corp, 275 NLRB 21 (1985) 9 Ibid 10 A list of the contacts made during each month for which there was a report filed is contained in the attached judge's decision 287 NLRB No. 87 852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD show that Avant maintained a one-contact-per- month rate ; and during the other months in 1983, 1984, and 1985 for which reports were filed, Avant had one to three contacts per month . This evidence of the gradual fluctuation in the number of contacts made per month is insufficient to sustain the Re- spondent's burden of showing a lack of reasonable diligence, especially in view of the fact that the gradual decline in contacts from 1981 into 1982 and 1983 was accompanied by a ,gradual increase in the unemployment rate for Garland County, Arkansas, the location of the Respondent 's facility." The evidence also shows that Avant made no contacts for a 6-month period from April 1983 through September 1983 and for a 3-month period from October 1984 through December 1984. While Avant's testimony indicates that all the contacts he made prior to 31 March 198512 were listed in the reports he filed, indicating that the lack of reports is evidence of no contacts, "it does not necessarily follow that the discriminatee during that [period] has abandoned efforts to find suitable employment and in effect has withdrawn from the labor market." 13 As the Board has stated: A discriminatee who has otherwise made rea- sonable efforts to seek out new employment is not required in each specific quarter to repeat job applications which from her past efforts she knows are foredoomed to futility in order to protect her claim of backpay for that par- ticular quarter. Rather, the entire backpay period must be scrutinized to determine whether throughout that period there was, in the' light of all surrounding circumstances, a reasonable continuing search such as to fore- close a finding of willful loss.14 In this regard Avant 's employment data forms show he routinely had made , repeated contacts at several employers both before and after the months for which no reports were filed. Avant also testi- fied that he decided where to apply based on his 11 The annual averages of Arkansas labor force statistics were admit- ted into evidence as G C Exh 6 These averages show the following un- employment rate figures for Garland County 1981 -9 9 percent, 1982- 10 1 percent , 1983-10 4 percent , 1984-9 4 percent , 1985-8 9 percent Cf Alfred M Lewis Y NLRB, 681 F 2d 1154, 1156 (9th Cir 1982) (Re- spondent did not meet the burden of showing discrimmatee 's lack of rea- sonable effort when period of unemployment coincided with substantial unemployment in the relevant area ) 12 Although there are no reports for the period after 31 March 1985, the judge credited Avant 's testimony that he had made contacts with po- tential employers after 31 March 1985 at the same rate as he had prior to that date The judge figured that rate of contact to be approximately 18 contacts per month As with the periods when there were fewer than 1 8 contacts per month (see infra), the Respondent has failed to carry its burden and establish that 1 8 contacts per month for the period after 31 March 1985 is an indication that Avant lacked diligence in his search for work 13 Cornwell Co, 171 NLRB 342 , 343 (1968) 15 Ibid knowledge of the job market in the Hot Springs area. Thus, Avant may have known that the poten- tial employers he had been contacting were not hiring during the periods he failed to file employ- ment data reports. In these circumstances and keep- ing in mind that it is the Respondent 's burden to establish Avant's lack of diligence, the Respond- ent's failure to ascertain why Avant did not have any contacts during certain months in 1983 and 1984 leads to the conclusion that the Respondent has not carried its 'burden of proving a willful loss of earnings. 15 Moreover, the Respondent's supposed showing that numerous jobs were available is flawed. The Respondent introduced evidence-in the form of telephone directory yellow pages listing restaurants in the Hot Springs area-that it contended proved the existence of numerous job opportunities over- looked by Avant. But, as the judge commented: [A]lthough introducing evidence concerning the total number of restaurants, [the Respond- ent] did not show how many restaurants had cook positions substantially equivalent to the position Avant had enjoyed at AHC.- Neither did Respondent show the wage rates for cooks at other restaurants. Nor did Respondent show how many cooks were hired in Hot Springs, at what salary, nor how many applicants there were. 16 An argument similar to the 'Respondent's, wherein an employer sought to carry its burden based on a showing of the mere existence of establishments in the general category of the , one from which a dis- criminatee was discharged , was rejected by the Board in its decision , affirmed by the court of ap- peals, in Nickey Chevrolet Sales, 195 NLRB 395, 396 (1972), enfd. 493 F.2d 103 , 108 (7th Cir. 1974), cert. denied 419 U.S 834. There the Board, over- ruling a trial examiner's finding of lack of reasona- ble diligence on the part of an unlawfully dis- charged automobile salesman, held that the mere showing that there were 500 automobile dealer- ships in the Chicago area and that the salesman had failed to apply to most of them did not carry the respondent's burden of showing lack of reasonable diligence in the absence of any evidence that those dealerships actually had jobs to offer. The Respondent here relies on American Bottling Co., 116 NLRB 1303 (1956), to conclude that it need not show that jobs were available or that Avant would have been selected for available posi- 15 Rainbow Coaches, 280 NLRB 166, 191 (1986) (respondent did not carry burden where it did not ascertain why discrimmatees failed to apply for any jobs during months encompassed in backpay period) 16 JD sec 11,A,3, par 4 ARLINGTON HOTEL CO 853 tions.17 However, we would view American Bot- tling Co., when read in light of its facts, as holding that job availability and likelihood of selection for available positions is irrelevant only when a discri- minatee makes no application for work with any private employer in the face of numerous, substan- tially equivalent job opportunities. In such circum- stances, the discriminatee has not exercised reason- able diligence in his search for work. Such is not the case here. The credited findings are that Avant did make approximately 128 contacts and applica- tions for employment over a 68-month period, or an average of approximately 2 contacts per month. In light of these facts, we cannot conclude that the Respondent has carried its burden merely by estab- lishing the existence of potential employers. Although evidence of advertisements for cook jobs is somewhat more probative of job opportuni- ties, we similarly are unable to conclude that the evidence the Respondent offered in this regard was sufficient to carry its burden of showing that Avant lacked reasonable diligence in his job search. The evidence shows a net total of six positions18 that were advertised in the first quarter of 1982 for which Avant, judging solely from the ads them- selves, was qualified. A comparison of Avant's em- ployment data reports for this same period estab- lishes that Avant in fact applied for at least one of the advertised positions 19 and most likely had an application on file for another.20 Indeed, Avant's employment data reports for the period indicate he had five contacts with potential employers.21 In 17 The judge also appears to rely on American Bottling Co for this proposition by concluding that without regard to the availability of posi- tions or whether Avant would have been hired for available positions, Avant's search after March 1982 "falls below the Board's standard of rea- sonable diligence " 1B This figure eliminates the positions that the advertisements indicate would require Avant to work a different shift from the one he worked at the Respondent's facility (e g , those requiring the applicant to work day and night shifts or 12 to 8 p in ) In this regard the evidence is unclear as to exactly what shift Avant worked prior to the strike, but because any uncertainty in the evidence is resolved against the Respondent as wrong- doer (see infra), we see no reason to disturb the judge's assessment that Avant worked the day shift prior to the strike in calculating the net number of advertisements, we also have eliminated jobs that fail to list the name of the facility that has the opening since this prevents a check against the employment data reports that Avant filed for the period in- volved 19 The Downtowner Restaurant advertised for a cook on 12 February 1982 and Avant's employment data reports show he contacted the Downtowner Restaurant on 13 February 1982 20 Avant contacted the Holiday Inn East on 5 January 1982 and an advertisement for the Holiday Inn-Lake Hamilton appeared on 13 Febru- ary 1982 The record gives no indication whether these two names refer to the same facility 21 The record also indicates that an advertisement for jobs at the new Sheraton appeared in the local newspaper on 23 July 1984 Avant's testi- mony reveals that he did not contact the Sheraton until after 31 March 1985 Avant's employment data reports for July 1984 show, however, that he contacted three potential employers that month and that he con- tacted at least one of these employers (Coy's Steak House) as a result of its newspaper ad Thus, Avant 's failure to respond to the Sheraton adver- tisement in a timely manner is not sufficient evidence to carry the Re- light of these other contacts and as the existence of these advertisements did not establish that the jobs would have been available had Avant applied or that he would have been selected for any available position, they are not sufficient to carry the Re- spondent's burden of showing that Avant's search for work manifested a lack of reasonable dili- gence.22 Moreover, as stated previously, in assess- ing Avant's diligence in searching for work we must look at the backpay period in its entirety, not only at one isolated period. Finally, the Respondent asserts that Avant's backpay should have been terminated or at least re- duced based on Avant's refusal to accept an offer of employment as a cook at the Park Hotel in June 1981.23 The Respondent argues that the judge erred in comparing the pay of the cook's position at the Park Hotel ($3.35 per hour-minimum wage) to Avant's prestrike pay ($7.50 per hour) and by concluding, implicitly, that the two positions were not substantially equivalent. The Respondent notes that the Board had found in the underlying unfair labor practice case24 that Avant's prestrike posi- tion of garde-manager was eliminated for legitimate business reasons. Further, the unfair labor practice that entitled Avant to backpay was the Respond- ent's failure to offer Avant reinstatement to a cook's position that paid $4 to $4.50 per hour. Thus, the Respondent argues that the Park Hotel cook's position paying the minimum wage of $3.35 per hour must be compared to the cook's position at the Respondent's facility paying $4 to $4.50 per hour when determining substantial equivalency. The Respondent concludes that such a comparison shows the two positions to be substantially equiva- lent. While we agree that the Park Hotel cook's position must be compared to the cook's position at the Respondent's facility for the purpose of decid- ing the substantial equivalency question, we do not agree with the Respondent's conclusion concerning the result of such a comparison. spondent's burden Also, to the extent the Respondent is attempting to undermine Avant's testimony that as part of his search for work he re- viewed the want ads, the fact Avant contacted Coy's Steak House as a result of its ad reinforces Avant's claim In any event , Avant's testimony indicates that reviewing the want ads was merely one aspect of his search for work 22 See O K Machine & Tool Corp, 279 NLRB 474, 479 (1986) See also Airports Service Lines, 231 NLRB 1272, 1273 (1977), enfd 589 F 2d I I l5 (D C Cir 1978) (Respondent did not carry its burden of establishing the affirmative defense of lack of reasonable diligence where the discrimma- tee made a reasonable search for employment and newspaper cant ads did not establish that the jobs would have been available if the discrimm- atee had applied or that she would have been selected for any available position) 23 This was the only job offered to Avant from the time he went out on strike to the time of his reinstatement with the Respondent in Decem- ber 1986 24 273 NLRB at 218-219 854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As stated, the Park Hotel cook position paid the minimum wage of $3.35 per hour while the Re- spondent's cook position paid between $4 and $4.50 per hour. Since it is well established that,any un- certainty in the evidence ^is resolved against the Re- spondent as the wrongdoer'25 we will assume that the cook's, pay at the Respondent's facility was $4.50 per hour. The difference between a position paying $4.50 per hour and one paying $3.35 per hour is a reduction in pay amounting to just over 25 percent.26 Further, the $3.35 per hour pay for the Park Hotel position represents the Federal min- imum wage for that period, which translates into an entry level skill factor for the position. The evi- dence shows and the Respondent admits, however, that Avant was experienced in kitchen work and the higher pay of the Respondent's 'cook position reflects that higher level of skill and experience: Based on these considerations, we conclude that the Park Hotel cook position, which would have required a 25-percent reduction in pay and which paid, the Federal minimum wage representing an equivalent minimal skill level, was not substantially equivalent to the cook position at the Respondent's facility., , _ , Moreover, assuming arguendo that discriminatees are required to "lower their sights" and take what- ever job is-available to reduce a respondent's back- pay obligation, they would only be required to do so after a reasonable period has passed.27 Here, the Park Hotel job offer was made in June 1981, about 3 months after the Respondent's employees ended their strike and, more importantly, less than 2 months - after the discrimination against Avant oc- curred. Under these circumstances, we do not find that Avant in June 1981 would have been required to "lower his sights" and. accept the Park Hotel job.28 Although Avant would not have been re- quired to "lower his sights" at the time of the Park Hotel job offer, we conclude that his refusal to accept that offer' does not evidence a willful loss of employment requiring the termination of or a re- duction in his backpay.29 2s Rainbow Coaches, supra at 180 fn 9 26 Cf Waukegan-North Chicago Transit Co, 235 NLRB 802 fn 4 (1978) (Board found discriminatee not required to accept employment that would reduce discriminatee's pay by approximately 33 percent) 27 See Rainbow Coaches, supra at 191 28 We note that the judge found that by the time Avant contacted the Lakewood Convalescent Home much later in the backpay period he was willing to accept the Federal minimum wage 2,0 The Respondent stipulated to the accuracy of the backpay period and gross backpay calculations contained in the backpay specification for each period of time during which the Respondent 's defense of willful loss of employment or lack of reasonable diligence failed As we have found that the Respondent has not carried its burden under these affirmative de- fenses for any period in dispute, we shall adopt the calculations and time periods contained in the backpay specification Accordingly, we find that the Respondent has not carried its burden of establishing that discrimin- atee Avant willfully incurred a loss of employment either by failing to exercise reasonable diligence in his search for work or by refusing the Park Hotel's offer of employment.30 ORDER The National Labor Relations Board orders that the Respondent,, Arlington Hotel Company, Inc., Hot Springs, Arkansas, its officers, agents, succes- sors, and assigns, shall make whole the employees named below by paying them the sums indicated, plus interest ,accrued to the date of payment, less the tax withholdings required by law. Interest shall be computed in the manner prescribed in New Ho- rizons for the Retarded.3 i Frank Avant $69, 748 Nathan Dendy 2, 484 Frank Jones 4, 070 3° For the reasons stated by the judge, Chairman Dotson finds that dis- crimmatee Avant did not engage in a reasonable job search after March 1982 and that he is therefore entitled to backpay only for the period from April 1981 to March 1982 In all other respects he joins his colleagues in adopting the judge's findings concerning discrimmatees Dendy and Jones 31 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) Bruce E. Buchanan, Esq., for the General Counsel. Russell Gunter, Esq. and Lester C. Nail, Esq. (House, Wallace & Jewell), of Little Rock, Arkansas, for the Respondent. Chad Farris, Esq. - (Youngdahl & Youngdahl), of Little Rock, Arkansas, for the Charging'Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. This is .a backpay proceeding; involving three discrirrimatees• Frank Avant, Nathan Dendy, and Frank Jones. Al- though finding that Jones is entitled to full backpay of $4070, I further find that Avant's backpay should be lim- ited to $10,687 and Dendy's to $2484 This case was tried before me on 23 February 1987 in Little Rock, Arkansas, pursuant to the 29 December 1986 backpay specification (BPS) issued by the Regional Director for Region 26 of,the National Labor Relations Board. Arlington Hotel Company, Inc. (Respondent or AHC) is a resort hotel in Hot Springs, Arkansas. On 12 March 1981 some 66 employees out of approximately 250 hotel employees went out on a 4-day economic strike Most of the strikers were recalled to their former jobs at the end of the strike. Regarding those not recalled, litigation ARLINGTON HOTEL CO ensued with a trial in December 1981 before Administra- tive Law Judge Robert A Gritta. In his decision of 9 August 1982, Judge Gritta principally found against AHC, and AHC filed exceptions with the Board. Adopting Judge Gritta's decision in all respects materi- al here, the Board, on 12 December 1984, held that AHC violated Section 8(a)(1) and (3) of the Act by implement- ing a striker recall policy that restricted the recall of economic strikers to their prestrike positions and resulted in the preferential hiring of new employees in jobs that the parties stipulated, the unrecalled strikers were quali- fied to perform Arlington Hotel Co., 273 NLRB 210 (1984). The Board ordered AHC to reinstate and make whole more than 20 strikers, including Frank Avant, Nathan Dendy, and Frank Jones. Id at 218-219 The Eighth Cir- cuit enforced' and the Supreme Court denied certiorari.' When the parties could not agree on the amount of backpay due to 16 of the strikers, the Regional Director (hereafter included in the term of General Counsel), on 29 December 1986, issued the BPS alleging the amounts of backpay due under the Board's order to the 16, in- cluding Frank Avant, Nathan Dendy, and Frank Jones. At the beginning of the hearing (and in a prehearing conference call) the parties announced agreement regard- ing all but Avant, Dendy, and Jones (1:7). Concerning those three the General Counsel seeks backpay plus in- terest in the following sums under the BPS, as amended at the hearing (1 8-9). Frank Avant $69,748 Nathan Dendy 11,054 Frank Jones 4,070 AHC defends on the following grounds. First, no backpay is due Avant because he incurred a willful loss of earnings during the entire backpay period Second, Respondent asserts that Dendy is entitled to no backpay because he rejected a reinstatement offer by attaching preconditions to his acceptance Regarding Jones, Re- spondent asserts that he suffered from poor health which prevented him from accepting any job other than the one to which he subsequently was reinstated; therefore, no backpay is due him On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT 1. APPLICABLE LEGAL PRINCIPLES The applicable legal principles are well settled by nu- merous cases. In summary they are as follows First, when loss of employment is caused by a violation of the Act, a finding by the Board that an unfair labor practice was committed is presumptive proof that some backpay is owed. Lord Jim's, 277 NLRB 1514 (1986); Laborers ' 785 F 2d 249 (8th Cir 1986) 2 107 S Ct 314, 123 LRRM 2672 (Oct 20, 1986) The parties also stip- ulated (1 7) References to the single volume transcript of testimony are by volume and page 855 Local 38 (Hancock-Northwest), 268 NLRB 167, 168 (1983), enfd in pertinent part 748 F.2d 1001 (5th Cir. 1984). Second, in a backpay proceeding the General Counsel has the burden of showing the amount of gross backpay due Third, the burden of establishing facts, that would reduce the amount of gross backpay, such as in- terim earnings or a willful loss of interim earnings, falls on the Respondent Fourth, if a discriminatee incurred any reasonable and necessary expenses in earning interim income, it is the General Counsel's burden to establish the amounts of those expenses. Chem Fab Corp:, 275 NLRB 21 (1985) Although it is the Respondent's burden to establish a discriminatee's interim earnings, if any, it is the General Counsel's voluntary policy to assist in gathering informa- tion on this topic and including that data in the BPS 3 NLRB Casehandling Manual, Burden of Proof, Secs. 10656.6 and 10737.2 (1984). The General Counsel did that here. Respecting the gross backpay formula, it is further well established that any formula that approximates what a discriminatee would have earned had he not been dis- criminated against is acceptable if it is not unreasonable or arbitrary in the circumstances. Moreover, any doubts, uncertainties, or ambiguities are resolved against the Re- spondent who is the wrongdoer Chem Fab, supra. Concerning Respondent's burden to demonstrate af- firmatively that a discriminatee failed to make reasonable efforts to find interim work, it is well established that the discriminatee is held only to a reasonable assertion in this regard and not to a standard of the highest diligence. Nor is success the measure of the sufficiency of the dis- criminatee's search for interim employment, for the law requires only an honest and good-faith effort And in de- termining the reasonableness of the effort, the discrimina- tee's skills, experience, qualifications, age, and the labor conditions in the area are factors to be considered. Chem Fab 'at 21-22, Laborers Local 38, supra at 169. The em- ployer's burden does not include the severe test of show- ing whether the discriminatee would have found suitable employment had he exercised a good-faith effort Ameri- can Bottling Co., 116 NLRB 1303, 1307 (1956). Because the obligation to exercise reasonable diligence in seeking substantially equivalent employment is found- ed on the healthy public policy of promoting production and employment, a discriminatee is not entitled to sit idle, awaiting reimbursement for lost wages IBEW Local 401 (Stone and Webster Engineering Corp.), 266 NLRB 870, 875 (1983) To hold otherwise would run contrary to the remedial purposes of the Act, encourage idleness, and reward slothfulness. But interim work means comparable work-substan- tially equivalent employment Thus, it is well established that a discriminatee's obligation to mitigate an employ- er's backpay liability requires only that the discriminatee accept substantially equivalent employment. NLRB v. Miami Coca-Cola Botting Co., 360 F 2d 569, 575 (5th Cir. 1966); Electrical Workers IBEW Local 401, supra; Wauke- gan-North Chicago Transit Co., 235 NLRB 802 fn. 4 (1978). 856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. THE INDIVIDUAL CASES A. Frank Avant 1. Introduction Subject to its defense of willful loss of earnings, Re- spondent admits the correctness of the allegations in the BPS regarding Frank Avant's gross backpay period and regarding the gross backpay computations (1:9; G.C. Exh. 2). Respondent puts it thus (Br at 2-3)- There is no credibility dispute with Frank Avant. The Respondent accepts his testimony and does not contest his credibility. The issue, therefore, is whether Avant's attempts at finding a job were rea- sonably diligent. The Arlington does not contest that Avant made the attempts he says he made, but [contends that] the attempts he made do not amount to a reasonably diligent search Although the Board 's standard for a reasonably diligent search is admittedly not very high, Avant failed to meet even the Board's low standard for conducting a reason- ably diligent search. As I shall summarize in more detail, Avant's backpay period begins 26 March 1981 and ends on 1 December 1986. Avant was out of work the entire time-68 months! Thus, Avant's interim earnings are zero, and the General Counsel seeks backpay totaling $69,748 plus in- terest. 2. Evidence At 56 years of age, Frank Avant has spent most of his working life as a cook either at AHC or other restau- rants in Hot Springs. He last attended school in the sev- enth grade (1:40, 98). Avant's cooking skill and experience covers most areas of a commercial kitchen, including that of fry cook. For example, he is skilled at cutting , preparing, and cooking fish, chicken, beef, and other meats, and barbeque He is skilled at preparing hors d'oeuvres , fruit, and cheese plates. Although he can bake such items as cornbread and rolls, he is not skilled as a baker ( 1:50-52, 82, 84). At the time of the strike Avant was cooking and also doing the work of garde-manger (1 47). As Judge Gritta describes in the underlying decision, a garde-manger "traditionally is in charge of cold production in the kitchen, including salads, hors d'oeuvres, cold hors d'oeuvres, canapes, and some cold meats such as corned beef and turkey , also makes decorative pieces for buffets, aspics, ice carvings, cheese mirrors, and cheese trays." 273 NLRB at 213. However, Avant never did ice carv- ings (1:50) Respondent offered in our case a page from the Dic- tionary of Occupational Titles (R. Exh. 7). It describes the function of a garde-manger in terms apparently more ex- pansive (including possible supervisory duties) than the facts actually characterize Avant . Thomas H. Strickland, a certified vocational expert and Respondent's expert witness in this case , testified that he understands Avant's description of his duties to fit within the garde-manger classification (1:116).3 I note that Judge Gritta found that Respondent had bestowed the garde -manger title on Avant more as an honor than as a classification or as a description of his function. 273 NLRB at 218. It is not a decisive point in our case. On 16 March 1981, during the strike, Respondent de- cided to abolish the position of garde-manager. Econom- ic conditions caused this decision At the end of the strike Avant was not recalled even though Respondent thereafter hired several cooks Judge Gritta describes the essential details in the earlier case 273 NLRB 214, 218. When he learned AHC was not going to recall him, Avant filed for unemployment benefits with the Arkan- sas Employment Security Division (ESD) (1:55) Docu- ments in evidence reflect that he did so on 18 March 1981 and that he continued to register several times there later in 1981 (R. Exh 1) These documents are employment data sheets that Avant received from Region 26 during most, but not all, of the backpay period on a quarterly basis Avant testi- fied that he received no report forms from Region 26 after March 1985 (1.55, 58, 60-63.) There is a similar gap of 6 months in 1983. Avant recorded nearly all his job search interviews on the forms he submitted to Region 26. For the periods he submitted no reports, he continued his search with the same frequency as before and, with two exceptions, the same employers previously listed (1.61-65, 68-69). There were two other employers with whom he sought employment These were the Sheraton Hotel and the Lakewood Convalescent Home. He does not recall when he visited them except that it was after 31 March 1985 (1:66-67). The quarterly reports Avant submitted to Region 26 reflect that he visited 18 different employers, plus the Arkansas EDS, in the 39 months covered by a report. If we count the EDS itself, plus the Sheraton, the Lake- wood Convalescent Home, and even his inquiry about the Hilton Hotel, Avant contacted 22 different places during the 68-month backpay period. For the 39 months expressly covered by a report filed by him, Avant made 72 contracts with employers and the EDS. I exclude the partial month of March 1981 and, thus, Avant's initial registration with the EDS. The 72 contracts during the 39 months computes to an aver- age of about 1.8461538 contacts per month. As Avant's attempts during the 29 months not covered by recorded listings were with the same frequency as that shown in the recorded contacts (giving Avant the benefit of any doubt), multiplication of the monthly aver- age of 1.846538 by 68 months yields an extrapolated 125.53845 total contacts. Increasing the total contacts by the visits to the Shera- ton Hotel, Lakewood Convalescent, and an inquiry at the ESD about the Hilton Hotel in Hot Springs, pro- 3 Sequestration of witnesses was invoked Respondent designated its general manager , Horst Fischer , to remain , and also moved to exempt Strickland (19-10) Over the General Counsel's objection, I permitted Strickland to remain in the hearing room in order to hear the evidence and be able to offer opinion testimony I chose this option rather then extending the hearing by excluding Strickland and, thus, causing Re- spondent to have to propound to him complicated and time-consuming hypothetical questions (1 12-13) ARLINGTON HOTEL CO duces a grand total of 128.53845 contacts. That averages, over the 68 months, to 1.8461536 contacts per month, or 22.153843 per year. If we exclude holidays and a' vaca- tion, and simply choose to make the numbers easier, per- haps it can be said that Avant averaged approximately two contacts per month over the 68-month backpay period. Seeing the visits or contacts arranged in the form of a chart (as Respondent provided in its brieff) or a list aids in visualizing the data. The following list reflects the evi- dence regarding Avant's contacts beginning with April 1981, the first full month of the backpay period All are restaurants (or have a kitchen as in the case of the reha- bilitation center), and most of the employers apparently adjoin motels (1:110.) 1981 April (1) Ark. EDS (1) EDS May (2) Grand Central Rest. (3) Royal Vista Inn June (1) EDS July Aug (2) Grand Central (4) Park Hotel (5) Holiday Inn East (1) EDS (2) Grand Central (6) Traveilier Rest. (7) Stage Coach (3) Royal Vista (1) EDS (8) Round Table Rest. (6) Travelier (7), Stage Coach (9) Ramada Inn September '(1) EDS (10) Avanelle Rest. (11) Majestic Hotel (9) Ramada Inn October (12) Quality Inn (10) Avanelle (5) Holiday Inn East November (12) Quality Inn December (10) Avanelle (5) Holiday Inn East (12) Quality Inn, (10) Avanelle (5) Holiday Inn East 1982 January (5) Holiday Inn East (12) Quality Inn February (13) Downtowner (12) Quality Inn March (11) Majestic April (10) Avanelle ° Respondent 's chart reflects three minor errors Mollie's is shown in November 1981 rather than November 1982 Hamilton House is shown in January 1982 rather than August 1982 , and Holiday Inn South should be shown in July 1982 In addition, Avant's visits to the Arkansas ESD are not shown May (8) Round Table June (11) Majestic July (14) Holiday Inn South August (15) Hamilton House September (12) Quality Inn October (12) Quality Inn November (16) Mollie's Rest. December (15) Hamilton House 1983 857 (3) Royal Vista (10) Avanelle (2) Grand Central , (No report filed.) (No report filed.) (No report filed ) (No report filed ) (No report filed.) (No report filed.) (17) Anthony Motel (10) Avanelle (8) Round Table 1984 January (13) Downtowner February (12) Quality Inn March - (3) Royal Vista April (18) Coy's Steak House May (19) Rehabilitation Center June (2) Grand Center July (18) Coy's (19) Rehabilitation Center (3) Royal Vista August (18) Coy's (19) Rehabilitation Center (3) Royal Vista September (18) Coy's (19) Rehabilitation Center (3) Royal Vista October (No report filed.) November (No report filed.) December (No report filed.) 1985 (10) Avanelle (10) Avanelle (3) Royal Vista (5) Holiday Inn East (3) Royal Vista (5) Holiday Inn East (no further reports filed for 1985.) 1986 January through November (No reports filed.) On a yearly basis Avant's recorded figures show that 1981 was his most active year with an average of 3.44 contacts per month. His average dropped to 1 17 in 1982, and to 1.00 for 1983. He increased his average to 1.67 858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contacts in 1984 and to 2.00 for the first quarter of 1985, his last reported period. As I described earlier, for the purposes of this deci- sion, I shall use the average of two contacts per month by Avant during the 68-month backpay period. Avant was offered a job only once, by the Park Hotel in Hot Springs in June 1981 , and he declined the offer. He rejected it because the offer was for minimum wage only (1.107-108) When Avant went on strike, he was earning $300 a week ($7.50 an hour on a 40-hour basis) at AHC ( 1:97), or more than double the Federal mini- mum hourly rate of $3.35 By the time he went to the Lakewood Convalescent Home, much later in the back- pay period, Avant was willing to accept even the Feder- al minimum. Despite his application to work at Lake- wood Convalescent for that sum , Avant never heard from that employer (1.106-107). During the backpay period Avant frequently read the "Help Wanted" advertisements in the Hot Springs Senti- nel-Recorded, and he checked the telephone yellow pages, for potential employment sources (1.64,71, 74, 77). The evidence reflects that Avant apparently did not see some of the ads However, he did respond several times to help wanted ads for cooks ( 1.64, 69, 101-102). In addi- tion to his own reading of these two sources, plus his own knowledge of Hot Springs, Avant followed up on all leads suggested by friends ( 1.99-100) Despite his ef- forts, the only job he received was that extended by the Park Hotel early in the backpay period (1 107). Some of Avant's efforts to find work were untimely. For example, the Sheraton's resort hotel on Lake Hamil- ton placed a large want ad in the 23 July 1984 issue of the Sentinel-Record The want ad announced that appli- cations were being accepted , at a downtown location, for " 100 jobs" in 24 classifications , including cooks (R. Exh. 4). As Avant did not go to the Sheraton until after 31 March 1985 ( 1:66, 67), he apparently did not see Shera- ton's July 1984 want ad He also was late in checking with the state employ- ment (EDS) office concerning a new Hilton hotel in Hot Springs, for he was told by the Arkansas EDS that the Hilton already had filled the job openings ( 1:66). And he concedes that he did not see an ad for a fry cook by a Western Sizzlin Steak House in the Sentinel-Record issue of 30 January 1982 (1.84). I observe, however, that the Western Sizzlin notice advised that the applicant must be willing to work either the day or night shift (R. Exh. 3). If, as seems to be the case, Avant worked days at AHC, a job opening conditioned on a willingness to work the night shift is not substantially equivalent employment. Teamsters Local 164, 274 NLRB 909, 913 (1985). Over objections by the General Counsel and the Charging Party, Respondent introduced copies of tele- phone yellow pages covering the backpay period (1:90- 96; R. Exhs . 2, 5). The March 1982 edition lists roughly 130 restaurants of all types , from a Dairy Queen to a few plush (as indicated by the ads) restaurants such as the Hamilton House and Respondent 's own.5 AHC's 1982 ad even provided a toll free 800 number AHC dropped the 800 number in later editions , and also reduced the size of its ad space. The succeeding issues of the yellow pages reflect increases in the numbers, with the August 1986- 1987 edition listing approximately 150 restaurants. Respondent 's general manager , Horst Fischer, testified that he hopes AHC is the most prestigious hotel in Hot Springs . Many years ago, he testified , it ranked as one of the finest, if not the grandest, in the United States. With 490 rooms, AHC hosts the annual convention of the Ar- kansas Bar Association (1:247-249). In light of the pay difference between Avant' s approximately $7 50 an hour in March 1981 , and the $3.35 offer he encountered at the much smaller Park Hotel in June 1981, it seems doubtful whether many of the restaurants in Hot Springs pay wage rates close to the $300 a week Avant had been earning at AHC. In any event, Respondent failed to show the wage rates of any of the 130 to 150 restaurants in Hot Springs or adduce any other evidence that would assist in showing whether the jobs as cooks there were substantially equivalent to the position Avant held at AHC. Respondent also failed to show how many appli- cants there were for the advertised jobs or the wage rates paid to the successful applicants Early February to mid -April is the horseracing season in Hot Springs (1:100-101, 243) During the racing season there are many additional temporary jobs (1:101).6 AHC itself hires around 120 temporary employ- ees for the racing season (1:245). During the summer months hotels at nearby Lake Hamilton hire employees temporarily (1:246-247). Although Avant is aware that some of those hired as temporary employees are retained as regular employees , he testified that he looked only for "steady" employment (1:106-107). I understand Avant to use "steady" in the sense of regular , full-time employ- ment. Strickland , the certified vocational expert called by Respondent, testified that there is a direct correlation be- tween a successful job hunt and the number of employer contacts made by the job seeker The job seeker must maintain a certain degree of "intensity" in, his search (1.148). Translating this concept into a numbers formula, Strickland testified that ideally the applicant should make 10 employer contacts a week, with a minimus of 5 to 6 contacts, including contacts of new employers or recon- tacts (even if just a telephone call) with employers previ- ously visited (1:149). In Strickland's professional opinion, Avant did not un- dertake an intensive job search effort. " By `intensive,' I mean geared to obtain employment " (1-149). Nor were Avant's efforts, in Strickland's opinion, reasonable. On this point I overruled the General Counsel 's objection that the question calls for a legal conclusion (1:150). Rule 702, FRE, permits opinion testimony when that opinion testimony will assist the trier of fact to determine a fact in issue, and , under FRE 704, opinion testimony "is not objectionable because it embraces an ultimate issue to be decided by the trier of fact " 5 The count can vary slightly depending on whether one counts each location a single employer may list 8 The evidence fails to show how many, if any, of these are for cooks ARLINGTON HOTEL CO 859 Following my ruling on the point, Strickland testified (1.151): By Mr. Gunter. (Resuming) Q. In your opinion, were Mr. Avant's attempts, were those attempts a reasonable attempt to find employment given his skill and job availability? A No, sir, they were not Q Were those, in your opinion ; were those at- tempts, the attempts that would be made in your ex- perience , by a person who is attempting to be dili- gent in finding employment? A. No, sir. I again overruled the General Counsel 's objection and motion to strike ( 1:151). Finally, Strickland testified that as far as the number of employer contacts , "it would be my opinion that his [Avant's] job search was not really geared to finding employment " (1'.152) On cross-examination by the General Counsel , Strick- land conceded that he had not reviewed the unemploy- ment rate of Garland County (in which Hot Springs is situated) because, he testified, in his work unemployment is presumed and is simply an obstacle that must be over- come (1.156-157, 172). Garland County's unemployment rate during the backpay period averaged 9 68 percent (G.C. Exhs. 6, 7) Strickland also admitted , on cross-examination by the Charging Party, that a middle age or older person prob- ably has a tougher time finding employment., Although the applicant's educational level had a positive effect as a general proposition, the applicant's skill level is a more important factor (1.173-174). ,At least to some extent Strickland's opinions were based on employment or job opportunity ;data for areas outside Hot Springs and even Garland County.' Indeed, some of his data extended to Russellville, Arkansas (R. Exh. 10). As an Arkansas map reflects , Russellville would involve a daily one-way trip for Avant of 73 miles-146 miles roundtrip . Strickland testified that he did not check a map to determine that distance ( 1.158- 159). Whether a one-way commuting distance of 60 miles would be unreasonable , he testified , would depend on the standards under Worker's Compensation (1:171-172). Avant testified that he had to change his way of living during the backpay period . At the beginning he weighed over 300 pounds, and he lost over 100 pounds by 1 De- cember 1986. During that period he lived off his savings and his wife's earnings ( 1:98-99). 3. Discussion and Conclusions Did Frank Avant make a 'good-faith effort to find sub- stantially equivalent employment? Vocational expert Thomas H. Strickland says he did not. But Strickland's opinion is flawed to some extent because it rests in part on employment data extending 73 miles from Hot Springs to Russellville, Arkansas. I would find that dis- tance to be unreasonable for daily commuting. Big Three Industrial Gas, 263 NLRB 1189, 1211 fn 77 (1982) (50 miles one way unreasonable), WHLI Radio, 233 NLRB 326 (1977) (35 miles one way unreasonable); Nickey Chevrolet. Sales, 160 NLRB 1279, 1280 (1966) (50 to 55 miles one way unreasonable) Strickland testified that six employer contacts a week would be the minimum to constitute an "intensive" search., Although Strickland defined that to mean a search geared to obtaining employment, it seems that the 6 to 10 contacts a week converts, in terms of a legal standard, to a high degree of diligence in the circum- stances of this case Even if, as I find, the 6 to 10 contacts a week would require a greater degree of diligence by Avant than that required by the law, the real question is whether the ef- forts he did put forth may be classified as reasonably dili- gent Even in his best year, 1981, Avant contacted just 11 different employer, plus the EDS, with an average of only 3 44 contacts per month-something less than a vig- orous effort. One of the problems in assessing the reason- ableness of Avant's efforts is that AHC, although intro- ducing evidence concerning the total number of restau- rants, did not show how many restaurants had cook posi- tions substantially equivalent to the position Avant had enjoyed at AHC. Neither did Respondent show the wage rates for cooks at other restaurants Nor did Re- spondent show how many cooks were hired in Hot Springs, at what salary, nor how many applicants there were Except for the Park Hotel, none of the potential em- ployers"offered Avant a job In 1981 Avant would have been about 50 Age can make a difference, an adverse one, as Respondent's own vocational expert confirms. To paraphrase Judge Ricci's Board-approved words from Woonsocket Health Centre, 263 NLRB 1367, 1373 (1982), when an employer commits an unfair labor practice by failing to recall a 50-year old man with a seventh grade education from a recently concluded strike, the employer runs the risk the 50-year old man may not be able to find a substantially equivalent job as easily as a younger person. Indeed, the Arkansas ESD sent Avant to few places, if any. The ESD representative told him that with Avant's qualifications he could not find Avant a job. Avant does not know what the representative meant (1.108-109). Respondent argues that if Avant is entitled to any backpay at all (and it contends that none is justified), it should be limited to either (1) full backpay until June 1981 when he declined the Park Hotel's job offer, for a backpay total of $3,094, or (2) full backpay to June 1981 and thereafter the difference between what he would have earned at the Park Hotel and that outlined in the BPS, through the first quarter of 1982, and no backpay thereafter in light of his failure to be reasonably diligent in searching for work, yielding a backpay total of $58638 (Br. at 17). In its second suggested formula, Respondent would close the backpay period as of 31 March 1982 on the ' I overruled the General Counsel's objection to opinion testimony based in part on employment data for areas outside Hot Springs (1 144) 8 Respondent's computations are based on a 12-week quarter rather than a quarter of 13 weeks (Br App B) 860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD basis, apparently, that beginning in March 1982 Avant's employer contacts dropped to one per month until July 1984 (when they again increased to about two a month). A third possible alternative, not suggested by Re- spondent, would be a percentage formula similar to the concept , utilized in comparative negligence cases. If Avant's efforts were found to be less than reasonable, rather than being denied all backpay,. Avant would be awarded a percentage for the period his efforts were deemed short of reasonable. Thus, if his efforts were found to be 50 percent of a reasonable standard for, say, 1983, then he would be,awarded 50 percent of the back- pay otherwise due for that year. As it now stands, the prevailing rule -results in an award of all or nothing. Clearly Avant did not exercise the diligence in seeking work that he might have. But he is not,required to exer- cise a high degree of, diligence. Avant registered immedi- ately with the Arkansas ESD and began contacting the larger motels for work as a cook in their restaurants Eventually he contacted about three establishments ap- parently not connected with a hotel or motel: Hamilton House, Mollie's, and Coy's Steak House. There are many other restaurants in Hot Springs, but the record does not disclose whether any of them had cook positions substan- tially equivalent to that Avant held at AHC. For his part Avant could give no reason why he did not contact more of the restaurants (1:109-110) - , , Avant visited some 20 , restaurants, or commercial kitchens, not counting the ESD or his inquiry about the Hilton Among the 110 to 130 other restaurants in Hot Springs, there may be several that have substantially equivalent jobs to that which Avant enjoyed at AHC. Was it Respondent's burden to offer evidence that among these other restaurants a significant number had jobs substantially equivalent to that Avant enjoyed at AHC? Or was it the General Counsel's burden to show that Avant went to several (or many) only to learn that the cook positions paid barely more than the Federal minimum wage9 In- American Bottling Co., 116 NLRB 1303 (1956), dis- criminatee Pedro Alvarez registered, and thereafter re- ported, only at the Texas Employment Commission Ruling that such a limited effort did not rise to the level of reasonable diligence, the Board wrote, 116 NLRB at 1307, "This being so, with such diligence lacking, the circumstance- of a scarcity 'of work and the possibility that none would have been found even with the use of diligence is irrelevant." After the first quarter of 1982 Avant's efforts dropped off to one contact a month through much of the remain- der of the, backpay period. In the first year of the back- pay period (through March 1982) Avant visited 12 em- ployers plus reporting to the EDS. Over the next 4 years and 8 months he managed to contact only 8 more em- ployers, plus inquiring at the ESD about the Hilton. As I have summarized, Avant contacted most of these em- ployers several times. ' Without regard to whether the jobs at the other res- taurants in the Hot Springs area were substantially equiv- alent, whether there were any vacancies, 'or whether Avant would have been hired if there had been vacan- cies, I find that Frank Avant's job search after March 1982 falls below the Board's standard of reasonable dili- gence. Accordingly, I find that Avant's backpay is limit- ed to the four quarters of April 1981 through March 1982 and the sum of $10,687, plus interest. B Nathan Dendy 1. Introduction The'BPS alleges that Nathan Dendy's backpay period begins 28 March 1981 and ends 1 March 1985 At the be- ginning of the hearing the parties stipulated as follows (1 9; G.C. Exh. 2)• Concerning Nathan Dendy, Respondent admits that if his backpay period is from April 8, 1981, to March 1, 1985, then the gross backpay computa- tions as set forth in' Appendix B' and reflected in Appendix H-5 of the Backpay Specification are cor- rect. The issue in Dendy's case centers on when the back- pay period ended . The General Counsel says it ended 1 March 1985 . Respondent contends that it closed 5 Febru- ary 1982 when Dendy placed unacceptable conditions on' Respondent's offer to return to part -time work at AHC. Resolution of the question turns on what was said in a conversation between' Dendy and Head Bellman Joe Langford in February 19.82 Needless to say, there is a' credibility dispute. Before the March 1981 strike at AHC, Dendy only moonlighted there as a part-time bellman His regular, full-time job was, and is, at Weyerhaeuser Company, where he has worked for 15 years (1:175-177, 180-181). There is a dispute, however, concerning whether Dendy worked at the Arlington before the strike on an "as needed," or flexible, basis (Respondent's position), or whether he worked there on a weekend schedule, which he supplemented at other times when his Weyerhaeuser schedule permitted (the General Counsel's position). I shall address that dispute shortly 2. Evidence When the strike ended, Dendy and the other strikers made an unconditional offer to return to work Arlington Hotel, 273 NLRB 210, 211. Dendy testified before me that when he went to ' the hotel and asked for his job back, General Manager Horst Fischer replied that'his job had been taken Fischer inquired whether Dendy would accept another job if offered, and Dendy said he would as long as the job did not interfere with his position at Weyerhaeuser (1.262-263). Head Bellman Langford testified that within a couple of weeks after the March 1981 strike ended (or about late March to early April 1981) Fischer instructed him to recall Dendy (1:202, 219). Pursuant to Fischer's instruc- tion, Langford telephoned Dendy and asked him to come back to work According to Langford, Dendy came to the Arlington where a brief discussion ensued (1.204). ' ,In the hotel conversation, Langford testified, Langford asked Dendy if he would come back to work. "Yes," ARLINGTON HOTEL CO Dendy said, "But I can only work weekends." Langford replied that the job would not be available to Dendy if he was available to work weekends only. That ended the conversation, and Dendy never returned to work (1.205- 206) Dendy testified that about February 1982 he tele- phoned Langford and asked when he was going to be called back to work Langford said he would come by and talk to him about that. (1:182-184, 266-267.) Around 7 p in that day Langford came to Dendy's home and stated that Respondent had a current, job (opening) on the bell stand, but that it was a rotating job. He asked if Dendy would be able to work rotating shifts, for AHC was "requiring all of us" to work rotating shifts. Dendy replied that he could not work a rotating shift, for that would interfere with his swing shift job (at Weyer- haeuser), unless the' rotating shift was on the weekends Saying he would see if he could work it in, Langford re- turned to his car and left Dendy never heard from him afterwards (1.184, 197, 264-268.) At the time, and for several years before that, Dendy had been working the 2 to 10 p m. shift at Weyerhaeuser, Monday through Friday (1.181, 197). About 3 to 4 years ago, which would be after the Langford conversation, Dendy changed to the day shift at Weyerhaeuser (1.176) 9 Langford does not expressly deny having a conversa- tion with Dendy at the latter's home ' Langford's timing of the conversation (about early April 1981) apparently is off base, for on 8 December 1986 he wrote a "To Whom It May Concern" memorandum outlining his job- offer conversation with Dendy (G C. Exh 4). In that 1986 memo Langford places the starting date for the job offer as 5 February 1982. In his testimony Langford did not address the subject of the starting date set forth in his memo Payroll clerk Wanda Benson does address the date. Benson identified an exhibit that includes a W-4 form and an AHC "Payroll Entry Card" for Nathan L. Dendy and bearing his apparent signature (1224-225; R Exh. 11) The parties stipulated that the signatures on the forms are Dendy's (1.239) Although Dendy agrees that the signature is his (1 263), he testified that he cannot recall signing the card or the circumstances in which he signed, other than he knows it was not done when Lang- ford came to his home. Although Dendy cannot recall whether he went to the hotel after his home conversa- tion with Langford, he denies having any conversation at the hotel with Langford (1.263-264). Benson testified that Dendy would have signed the forms (W-2 and payroll entry card) for Langford and that Langford would have forwarded them to her (1.238) When she did not receive a timesheet on Dendy, 9 At one point Dendy responded in the affirmative to the question of whether he had changed shifts "prior to" the Langford conversation (1 184-185) At another he did not correct a question that included a statement that the change before the Langford conversation (1 197) 1 do not think Dendy understood Dendy is specific that Langford's offer of rotating shifts, if not confined to weekends, would interfere with his swing shift, 2 to 10 p in , at Weyerhaeuser (1 185, 197, 265, 267) For our case it is immaterial which shift he worked at Weyerhaeuser because ro- tating shifts at the hotel during the week would interfere with whatever shift he worked at Weyerhaeuser 861 Benson asked Langford why not and he informed her it was because Dendy never came to work So she in- scribed "Never came to work " on the payroll entry card. (1 225-226.) I find that on Friday , 5 February 1982, Dendy filled out the time forms at the Arlington Although that could have been after the home conversation described by Dendy, it seems a bit more consistent with Langford's version that the disputed conversation occurred at the hotel Langford did not cover Dendy's signing of the forms (W-2 and payroll entry card) in his testimony, and that would indicate that Langford does not recall, or never knew , the circumstances of the signing. The General Counsel simply argues that the "never came to work" remark on the payroll form is irrelevant because the job offer was invalid . (Br at 19 fn. 21) That begs the question , for if Langford 's version is credited the job offer was valid. The question is whose version is to be credited In that respect the dated forms are rele- vant I find their existence more consistent with Lang- ford 's version than with Dendy's That brings us to the subsidiary dispute concerning the nature of Dendy's work schedule before the March 1981 strike When he was hired in March 1980 Respondent wrote "Extra Help" on Dendy's payroll data card 10 (R. Exh 11) That inscription does not assist in resolving whether Dendy was subject to call on an "as needed" basis or, whether he worked a weekend schedule that he supplemented as his Weyerhaeuser schedule permitted. Langford testified that it was the former ( 1.201, 219) It was the latter, Dendy testified , explaining that he nor- mally reported Friday nights for the 11 p.m. to 7 am graveyard shift, and then he usually worked the swing shift, 3 to 11 p.m., on Saturdays and Sundays. (1:177- 180, 188, 198) Dendy would advise AHC whenever he had an upcoming vacation or holiday at Weyerhaeuser and request work at the hotel during those occasions He would work those extra occasions. (1.261, 265-266.) The head bellman before the strike was Macio Butler Lang- ford, then a bell captain, succeeded Butler on the latter's death in October 1981 It is the head bellman (Butler before October 1981) who does the scheduling . ( 1.200, 218) To impeach Dendy's version Respondent introduced several timesheets for different payroll periods before the strike (R. Exh 12 ) I rejected those pages not showing a contradiction (1.231, 233-234, 253 , R Exh. 13 ) That is, I particularly rejected those pages showing work on weekends 11 The timesheets reflect that at various times Dendy worked one or more shifts at the hotel other than on weekends. Dendy credibly explained how that could be. For example, the employees at Weyerhaeuser went on strike from early March through June 1980 During the 10 Actually , Dendy was rehired in March 1980 He first started at AHC in 1966 working part-time in the mornings as a lobby porter He worked in that position until 1980 when he temporarily quit because of a divorce proceeding (1 176-177) I I A few of the pages in the reflected exhibit (R Exh 13) should be in the received exhibit (R Exh 12) since they reflect hours worked on a weekday Because of the view I take of this subject , that discrepancy is immaterial 862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD weeks he was on strike from his Weyerhaeuser job, Dendy worked many weekday shifts at AHC, as the timesheets reflect (1:181, 260) I find nothing in the time- sheets inconsistent with Dendy's testimony. Langford testified that Respondent has no part-time employees who work only weekends, and that he simply wanted Dendy to be flexible as he was before the strike at AHC (1 201, 205). Conceding that he knows of no one at AHC who works weekends only, Dendy testified that he at no point, in the February 1982 conversation, told Langford that he would work only weekends or not work a shift during the week when that shift would not interfere with his job at Weyerhaeuser. (1:198-199, 268- 269.) Dendy testified that he understood rotation of shifts to mean days one week, swing the next, graveyard after that, and back through the cycle repeatedly. At the same time he testified that in the past he worked whatever shift on the weekends that he was needed. (1 198, 265.) Dendy's real concern with the reference to rotating shifts was not with any rotation on weekends, but a rota- tion that would progress into the weekdays. He ex- pressed that concern, under his version, when he told Langford that he could rotate on the weekends but not during the weekdays. (1.267) According to Dendy, Langford, saying he would see if he could work it in, re- turned to his car and left Dendy never heard from him again During his testimony Langford never specifically denied telling Dendy, whether at the hotel or at Dendy's home, that the job offer was for a rotating shift basis. 3. Discussion and conclusions The disputed February 1982 conversation between Dendy and Langford occurred 5 years before they testi- fied here. I would think it unusual if they enjoyed per- fect recall of that event. Perhaps the passage of time ex- plains why neither witness offered a satisfactory story on the first telling. Langford's initial efforts were conclu- sionary, and Dendy's incomplete Resolving the dispute is difficult And, unfortunately, the prophet does not grant me, for even a moment, the power to "probe the mind and test the heart." (Jer. 17.10.) The first question is where did the conversation be- tween Dendy and Langford occur. It seems strange that Langford would go to Dendy's home to discuss business. There is no evidence that Langford chose to do so as a personal convenience to himself. For example, there is no evidence that Langford passes near Dendy's home as Langford returns home after work. Nor is there any evi- dence that Langford had ever made social visits to Dendy's home so that a visit on this occasion might not seem so unusual . I consider this aspect a negative factor adverse to the General Counsel. The strongest factor seems to be the forms Dendy signed on 5 February 1982. Langford apparently recalled nothing about the forms or he would have described giving them to Dendy for signing, in accordance with Respondent's procedure, when Dendy arrived at the hotel Nevertheless, Dendy could offer no explanation for the existence of his signature on these forms I am persuaded that the disputed conversation oc- curred at the hotel. That does not necessarily mean that Langford's version of the contents of the conversation is to be credited. Langford's version leaves a nagging question. If Lang- ford simply asked Dendy whether he would come back to work, would Dendy not assume it would be as before? Why would Dendy, after answering yes, inject the issue of weekends only? Dendy is a man of boundless energy, and he has demonstrated this by many years of working 40 hours a week for Weyerhaeuser followed by working another 16 hours or more most every weekend at the hotel As the poet would phrase it "while his compan- ions slept," Dendy "was toiling upward in the night." Longfellow, The Ladder of St. Augustine, st. 10 (1850). There is no record evidence of any reason for Dendy to limit his availability to the weekends. Respondent of- fered no evidence of a change in Dendy's lifestyle by which Dendy no longer was willing to work at AHC during the week when he had a holiday, vacation time, or other time off from his full-time job at Weyerhaeuser. In short, I view this factor (Dendy's supposed injection of weekends only) as detracting from the credibility of Langford's version. On the other hand, Dendy's testimony raises a couple of questions According to Dendy, Langford said that they all are now required to work rotating shifts. Neither party offered any evidence to support or refute Dendy's testimony on this point If at some point since March 1981 Respondent adopted a policy that bellmen (and per- haps others) had to rotate shifts, evidence of that change would corroborate Dendy's version Evidence of no change would detract from Dendy's version The Gener- al Counsel had the most to gain by offering corroborat- ing evidence, and the most to lose by failing (or being unable) to do so. I consider the lack of corroborating evidence a factor that detracts from Dendy's version Another question raised by Dendy's version is the fol- lowup factor. According to Dendy, Langford said he would see if he could accommodate Dendy's needs When Dendy did not hear from Langford, a normal re- action would be for Dendy to call Langford to inquire. As there is no evidence that Dendy called, I infer he did not call I count that as a negative Although the forms are objective evidence, they offer less help than they could because they are not accompa- nied by any testimony of Dendy or Langford describing the circumstances in which Dendy signed. Even if I try to resolve the dispute on the basis that Dendy was hon- estly mistaken on the location of the conversation, I have to speculate on why the forms were signed Would Langford have given him the forms to sign even though, according to Dendy, Langford would have to check on whether Dendy could be accommodated? Perhaps yes if Langford gave him the forms as soon as Dendy arrived. But that becomes speculation rather than a permissible inference from established facts. How do the forms fit with Langford's version? The same questions arise Did they get signed because Lang- ford gave them to Dendy at the start of their conversa- tion? That is a possible explanation, but is it a likely one? ARLINGTON HOTEL CO 863 The forms reflect that Dendy was to begin work that very day, Friday , 5 February 1982. Again, he could have signed when he first arrived at Langford 's office. But if the conversation occurred first, with Langford informing him that there would be no job for weekends only, it seems unlikely that Dendy would have signed and then arose and left Yet he could have. He could have signed reluctantly , changed his mind, got up and left. The problem with trying to use the forms as the key to resolving the conversation is that the process involves too much speculation The forms are useful in determin- ing the date and location of the conversation , but not in clarifying the contents directly In the final analysis, particularly with the location of the conversation being at the hotel, and the existence of the signed forms, Langford's version is more credible than Dendy's. I therefore find that Dendy's backpay period ended on 5 February 1982 and that his backpay award should be $2484 , plus interest 12 C. Frank Jones 1. Introduction The parties stipulated that if Frank Jones ' backpay period is from 25 March 1981 to 4 February 1982, then the gross backpay computations are correct (1:9; G C Exh. 2). Although Respondent raised several defenses or argu- ments concerning Jones, it apparently has settled on one-that Jones is not entitled to any backpay because he was properly recalled to the only position he would have accepted (Br. at 2). Respondent confines its argu- ment regarding Jones to three sentences of its brief (Br. at 20)• Frank Jones was only available for part-time em- ployment, and only as a bellman . Jones was not physically able to perform any other position than part-time bellman . Jones was offered the first avail- able part-time bellman position; therefore , he is not entitled to any backpay. 2. Evidence and conclusions Resident Officer Thomas H Smith Jr credibly testi- fied that he calculated Jones' backpay to begin 25 March 1981 because on that date Respondent hired a part-time busman named Duggan (1.19, 27) It appears that the ending date of 4 February 1982 is established by Jones' recall on that date to his part-time bellman position (120, 31) At transcript pages 115 to 116 of the underlying case the parties stipulated that all the discriminatees, with normal instructions and orientation, would have been qualified to perform several jobs, including that of bus- person, or bus (G.C Exh. 5). The thrust of the Board's underlying decision is that Respondent should have re- called the discrimmatees to the first available position that they were qualified to perform Jones, by stipulation , was qualified to perform the bus position Respondent failed to offer him a part -time bus position when one opened on 25 March 1982 . 1 find that the General Counsel correctly sets that date as the begin- ning point of the backpay period. Respondent argues that Jones was not physically able to perform any position other than bellman It points to no evidence supporting this argument . Jones did not tes- tify. Head Bellman Langford testified that Jones is over 65 years of age and suffers health problems (1:212) Langford concedes , however, that Jones is a good worker and that his health problems did not impair his ability to perform his bellman job (1 222) Respondent's argument is without merit Respondent's argument also is without merit to the extent it is based on a position it expressed at the hearing concerning no intent by Jones to work at any job besides bellman This position is based on Lanford's testimony that Jones never expressed any interest to Langford in working at any job besides that of bellman ( 1 216, 222). That issue was foreclosed by the underlying decision when Judge Gritta wrote , 273 NLRB at 215: Further, I reject Respondent 's reliance on the fail- ure of any striker to express an interest in a job other than his or her own prestrike job Respondent's raising of this issue again before me is im- proper. I find that the backpay due Frank Jones is correctly set forth in the BPS in the sum of $4070, 13 plus interest. CONCLUSIONS OF LAW 1. Because Frank Avant failed to exercise reasonable diligence beginning April 1982 in searching for substan- tially equivalent employment , his backpay period ends on 31 March 1982. 2. Because Nathan Dendy set conditions on accepting a job recall offer extended to him on 5 February 1982, his backpay period ends on that date 3. Frank Jones is entitled to the full amount of back- pay, plus interest, set forth in the backpay specification, as amended. [Recommended Order omitted from publication.] 12 1 would compute the backpay due for the first quartet of 1982 as $113 ($338 divided by 3) 13 As rounded to the nearest dollar