The Lorge School

National Labor Relations Board - Board Decisions

Aug 19, 2010

355 N.L.R.B. 558 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 94
558
The Lorge School and Linda Cooperman. Case 2–
CA–37967
August 19, 2010
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On November 18, 2009, Administrative Law Judge
Joel P. Biblowitz issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the supplemental decision1
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,2 and

1 While the underlying decision in this case, The Lorge School, 352
NLRB 119 (2008), enfd. 305 Fed. Appx. 811 (2d Cir. 2009), was de-
cided by only two Board Members, the court’s order and mandate
upholding that decision became final prior to Supreme Court’s decision
in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010), holding
that a two-member group may not exercise delegated authority when
the membership of the group falls below three. In these circumstances,
we regard the matters finally resolved by the court of appeals as res
judicata in this proceeding. See Chicot County Drainage District v.
Baxter State Bank, 308 U.S. 371, 374–378 (1940); Nemaizer v. Baker,
793 F. 2d 58, 65 (2d Cir. 1986) (cited with approval in United Student
Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010)).
2 The Respondent has implicitly excepted to some of the judge’s
credibility findings. 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.
We agree with the judge that Linda Cooperman’s efforts at self-
employment were “a sincere and reasonable effort” to mitigate lost
earnings. Pursuit of self-employment can be an adequate and proper
way for a discriminatee to attempt to mitigate lost wages, even when it
is outside the field in which the discriminatee was previously em-
ployed. See, e.g., Weldun International, 340 NLRB 666, 682 (2003)
(finding that a machine repair worker engaged in a reasonable effort to
mitigate backpay when, after seeking and failing to find work in his
specialty, he started a food service business); Black Magic Resources,
Inc., 317 NLRB 721, 722 (1995) (finding that an unlawfully discharged
mine worker engaged in a reasonable effort to mitigate backpay by
pursuing unskilled laborer work on a self-employed basis). Cf. Re-
gional Import & Export Trucking Co., 318 NLRB 816, 817–818 (1995)
(awarding backpay to discharged trucker who opened restaurant that
never generated profit). We thus find distinguishable Aero Ambulance
Service, 349 NLRB 1314, 1316 (2007), where a Board majority tolled a
discriminatee’s backpay as of the date he chose to pursue different, and
lower-paying, lines of work (bartending and film-extra work), having
decided he was no longer interested in the EMT work he performed
prior to his discharge. Here, Cooperman pursued self-employment
(opening a gourmet food store and catering business) only after an
exhaustive but unsuccessful search for substantially similar employ-
ment in education administration, during which she applied for more
than 600 jobs over an 8-month period.
conclusions and to adopt the recommended Supplemental
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Supplemental Order of the administrative law
judge and orders that the Respondent, The Lorge School,
New York, New York, its officers, agents, successors,
and assigns, shall make Linda Cooperman whole by pay-
ing her $129,003.34, plus interest accrued to the date of
payment, as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), minus tax and withhold-
ings required by Federal and State laws.

Joane Wong, Esq. and Rita Lisko, Esq., for the General Coun-
sel.
Daniel Silverman, Esq. and Michael Silverman, Esq.
(Silverman & Silverman, LLP), for the Respondent.
Antonio Cavallaro, Esq. (New York State United Teachers), for
the Charging Party.
SUPPLEMENTAL DECISION
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on April 14, 2009, in New York, New York.
In its Decision and Order in the underlying case which issued
on February 19, 2008, the Board found that the Respondent
violated Section 8(a)(1) of the National Labor Relations Act
(the Act) by discharging Linda Cooperman on August 1, 2006,
and ordered the traditional reinstatement and backpay remedy.1
The United States Court of Appeals for the Second Circuit
issued its Judgment on January 9, 2009, enforcing the Board’s
Order in full.2
The compliance specification, which issued on February 13,
2009, alleges that the backpay period was from August 1, 2006,
the date of Cooperman’s discharge, to March 31, 2008, when
Respondent made an unconditional offer of reinstatement to
Cooperman. The compliance specification alleges net backpay
is owed of $129,003.34, plus interest.
In its answer to the compliance specification, Respondent
admits “that the backpay period is correctly set forth in the
Compliance Specification” and “admits that the gross backpay
is correctly set forth in the compliance specification.”3

1 The Lorge School, 352 NLRB 119 (2008).
2 305 Fed. Appx. 811 (2d Cir. 2009).
3 These admissions provide a sufficient and dispositive basis on
which to reject the claim in Respondent’s brief (R. Br. at 1 fn. 1) that it
was wrongly barred at trial from adducing evidence showing that “the
backpay period should be cut short because [subsequent to her unlawful
discharge] Cooperman would have quit or have been terminated due to
pedagogic differences and/or racial comments.”
Sec. 102.56(b) of the Board’s Rules and Regulations sets forth what
must be included in an answer to a compliance specification. It states,
in pertinent part:
As to all matters within the knowledge of the respondent, including
but not limited to the various factors entering into the computation of
gross backpay, a general denial shall not suffice. As to such matters, if
the respondent disputes either the accuracy of the figures in the speci-
fication or the premises on which they are based, the answer shall spe-
cifically state the basis for such disagreement, setting forth in detail the
LORGE SCHOOL 559
Respondent denies the balance of the allegations contained
in the specification, alleging that Cooperman did not satisfy her
obligation to search for comparable employment and should
therefore be disqualified from receiving any backpay. In this
regard, Respondent contends that Cooperman did not maintain
an adequate record of her search for interim employment and,
more specifically, did not satisfy the requirement to mitigate
damages by not applying for any teaching positions or tutoring
positions. Further, Respondent contends that Cooperman’s
efforts at self-employment did not constitute a legitimate miti-
gation effort.
Factual Findings
As set forth in more detail in the underlying decision in this
matter, on August 1, 2006, Cooperman was unlawfully termi-
nated from The Lorge School, a private school in New York
City for children with developmental disabilities.
Cooperman had begun work at the school just 3 weeks ear-
lier after being hired as the school’s instructional supervisor.
During most of the 3 weeks, Cooperman worked with the out-
going instructional supervisor to learn the responsibilities of her
new job. The instructional supervisor was responsible for all
aspects of curriculum and instruction, and for mentoring,
evaluating, and hiring teachers, and teachers’ assistants. As
instructional supervisor, Cooperman was responsible for sched-
uling classes, assigning teachers and generally overseeing in-
struction and assessment of students. Prior to working at The
Lorge School, Cooperman worked as a teacher of mathematics,
English, and science and, most recently, as an assistant to a
principal at an elementary school. In that last position, she
functioned as principal within the school, but did not hold that
title. Cooperman has the educational background and has ob-
tained the necessary certifications and licenses required by New
York State to apply for any position in a school district, includ-
ing school administrator positions such as assistant principal or
principal, and districtwide positions such as assistant superin-
tendant or superintendent.
Cooperman testified that after her termination she began
looking for new work immediately. Indeed, as early as August
1, the day of her termination, Cooperman’s daughter began
emailing potential job leads to Cooperman. Primarily, Coop-

respondent’s position as to the applicable premises and furnishing the
appropriate supporting figures.
Sec. 102.56(c) of the Board’s Rules and Regulations explains that
If the respondent files an answer to the specification but fails to deny
any allegation of the specification in the manner required by para-
graph (b) of this section and the failure so to deny is not adequately
explained, such allegation shall be deemed to be admitted to be true,
and may be so found by the Board without the taking of evidence
supporting such allegation, and the respondent shall be precluded from
introducing evidence controverting the allegation.
As referenced, Respondent’s answer does not raise the issue that the
backpay period would have been “cut short” or claim that, as a result of
cutting the backpay period, the alleged gross backpay calculations are
inaccurate. To the contrary, Respondent’s answer affirmatively and
unequivocally admits the correctness of the backpay period and gross
backpay pled by the Government. The answer, which Respondent
never sought to amend before, during, or after trial, is binding on Re-
spondent.
erman looked for work by filling out an online job application
for the New York City public schools and applied for certifi-
cates of eligibility for the type of jobs she was seeking, which
included placement eligibility as a principal or an assistant
principal at elementary, intermediate, and junior and senior
high schools. In addition, she obtained a certificate of eligibil-
ity to be a principal supervisor of mathematics. These certifi-
cates were mailed to her in August and enabled her to access
the New York City (NYC) online application process for posi-
tions falling within her certification, and allowed reviewers of
her applications to access her resume and other qualifications
materials. A separate application process placed her in an as-
sistant principal pool, and if a school was looking for an assis-
tant principal it could review the pool and their qualifications
and invite pool members to an interview process called a “C–30
process.” Cooperman went to many C–30 interviews through
this process.
In total, Cooperman estimated that through the online pool
process, she applied for at least 640 positions during the back-
pay period, a figure she derived from her application to an av-
erage of 40 jobs, twice a month, during the course of the 8
months after her discharge. Cooperman described how on the
1st and 15th of each month, she would log into the New York
education department web site and review jobs for which she
was eligible to apply. Initially, Cooperman applied for assistant
principal and principal positions in the Bronx and Manhattan
and tried to limit her commute to 1–1/2 hours, but within that
radius she applied for all principal and assistant principal open-
ings. She would send the school her application and essays and
she did this “over and over again.” Within a few months, after
having no success, Cooperman expanded her search to include
applying for jobs in Queens and Brooklyn as well.
In addition, Cooperman applied to between 5 and 10 posi-
tions that were listed on a job posting service called BOCES
(Board of Cooperative Educational Services) that listed posi-
tions in suburban areas of New York City. Cooperman also
applied for jobs she found in the New York Times want ads.
Cooperman testified that every Sunday she would search the
section where health and education jobs were posted. These
jobs did not involve prequalification in order to apply. She
would mail a form letter (conforming the letter to the details of
the principal or assistant principal job listed in the BOCES or
NYT ad) along with her administrator’s certificate or license,
and a resume, to the prospective employer.
As a result of her online applications, Cooperman testified,
and submitted to the Region, a list of 18 positions for which she
interviewed. In addition, there were additional interviews that
Cooperman recalled that were not on the list given to the Re-
gion. In some instances, Cooperman was called for second
interviews, but in no case was she selected for the position.
Cooperman also applied for substitute teacher positions in
several school districts and a position as a permanent substitute
in one district, jobs that would pay a daily rate. She was not
successful in this job search either.
Frustrated with her lack of success in finding a position in
education, in early 2007 Cooperman looking into business op-
portunities that culminated in her and her husband’s establish-
ment of a gourmet natural food store and catering business in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560
Scarsdale. This enterprise, “Church Avenue Poultry Market,”
was incorporated in June 2007, space was leased in September
2007, and the store opened in April 2008. In addition to selling
take out food and offering catering, the venture offered cooking
classes, and education in healthy lifestyles.
Beginning in the spring of 2007, Cooperman devoted her
time to creating this business. She undertook responsibility for
investigating the prospects for and preparing to open this busi-
ness. Cooperman developed a business plan, looked for prop-
erty, investigated architects, interviewed architects, applied for
licenses an permits, began working with a store designer, met
with culinary schools, interviewed employees, contractors, and
purchased equipment. Cooperman supervised the construction
and renovation of the facility. Cooperman developed brochures
for the store offerings and advertisements, and placed ads.
Analysis
1. Principles
A finding by the Board that an unfair labor practice was
committed is presumptive proof that some backpay is owed.
Minette Mills, Inc., 316 NLRB 1009, 1010–1011 (1995); Ar-
lington Hotel Co., 287 NLRB 851, 855 (1987), enfd. in part
876 F.2d 678 (8th Cir. 1989); NLRB v. Mastro Plastics Corp.,
354 F.2d. 170, 178 (2d Cir. 1965), cert. denied 384 U.S. 972
(1966).
The General Counsel’s burden in a backpay proceeding is
limited to showing the gross backpay due each discriminatee.
J.H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223, 230–231 (5th
Cir.) cert. denied 414 U.S. 822 (1973). The General Counsel
has discretion in selecting a formula that will closely approxi-
mate backpay. He has the burden of establishing only that the
gross backpay amounts contained in a compliance specification
are reasonable and not an arbitrary approximation. Perform-
ance Friction Corp., 335 NLRB 1117 (2001); Mastell Trailer
Corp., 273 NLRB 1190 (1984). Any formula which approxi-
mates what the discriminatees would have earned had they not
been discriminated against is acceptable if not unreasonable or
arbitrary in the circumstances. La Favorita, Inc., 313 NLRB
902, 903 (1994), enfd. mem. 48 F.3d 1232 (10th Cir. 1995).
Any uncertainty about how much backpay should be awarded
to a discriminatee is resolved in his or her favor and against the
respondent whose violation caused the uncertainty. Alaska
Pulp Corp., 326 NLRB 522, 523 and cases cited at fn. 8 (1998),
enfd. in part 231 F.3d 1156 (9th Cir. 2000); Intermountain Ru-
ral Electric Assn., 317 NLRB 588, 590–591 (1995), enfd. mem.
83 F.3d 432 (10th Cir. 1996).4
In this case, as noted, supra, the Respondent has admitted

4 “This does not mean, however, that the Board will always approve
the General Counsel’s backpay formula even if it is reasonably de-
signed to arrive at the approximate amount of backpay due.” Alaska
Pulp Corp., 326 NLRB at 523. The objective is to reconstruct as accu-
rately as possible what employment and earnings the discriminatee
would have had during the backpay period had there been no unlawful
action. American Mfg. Co. of Texas, 167 NLRB 520 (1967). The
Board may borrow elements from the suggested formula of each party
to account for conditions described in the evidence and thereby meet its
objective of accurately reconstructing backpay amounts. Hill Trans-
portation Co., 102 NLRB 1015 (1953).
that the General Counsel’s gross backpay allegations are accu-
rate. I find that the General Counsel has met his initial burden
of establishing the reasonableness of the gross backpay
amounts contained in the compliance specification. Based on
the evidence, these amounts are the most accurate estimate of
gross backpay that would have been paid to Cooperman had
there been no unlawful action to remove her. They are based
on a backpay period (also admitted to be accurate by the Re-
spondent) covering the time of discharge to the time an offer of
reinstatement was made by The Lorge School to Cooperman.
The lost wages are based on the Cooperman’s wages at the time
of discharge, supplemented by the increase provided to all ad-
ministrators at the school during this period. All of this is un-
disputed.
Respondent’s challenge to Cooperman’s backpay centers on
her efforts to mitigate her losses. A discriminatee is entitled to
backpay if he makes a “reasonably diligent effort to obtain
substantially equivalent employment.” Moran Printing Inc.,
330 NLRB 376 (1999). In seeking to mitigate loss of income, a
backpay claimant is held only to reasonable exertions, not the
highest standard for diligence. Kentucky River Medical Center,
352 NLRB 194, 200 (2008), enfd. 557 F.3d 301 (6th Cir. 2009).
The Board has repeatedly adopted the statement, set forth in
1849 Sedgwick Realty LLC, 337 NLRB 245, 254 (2001), and
other cases, that:

A good faith effort requires conduct consistent with an incli-
nation to work and to be self-supporting and that such inclina-
tion is best evidenced not by a purely mechanical examination
of the number or kind of applications for work which have
been made, but rather by the sincerity and reasonableness of
the efforts made by an individual in his circumstances to re-
lieve his unemployment.

Consistent with this, it is well settled that “the test for miti-
gation is not measured by an individual’s success in gaining
employment, bur rather by the efforts made to seek work.”
Essex Valley Visiting Nurses Assn., 352 NLRB 427, 429
(2008); Fabi Fashions, 291 NLRB 586, 587 (1988). Whether a
claimant’s search for employment has been reasonable is
evaluated in light of all of the circumstances. See Pope Con-
crete Products, 312 NLRB 1171 (1993), enf. mem. 67 F.3d 300
(6th Cir. 1995); Cornwell Co., 171 NLRB 342, 343 (1968). It
is measured over the backpay period as a whole, not isolated
portions thereof. First Transit Inc., 350 NLRB 825 fn. 8
(2007); Wright Electric, 334 NLRB 1031 (2001), enfd. 39 Fed.
Appx. 476 (8th Cir. 2002). Any doubt or uncertainty in the
evidence must be resolved in favor of the innocent employee
claimant and not the respondent wrongdoer. Kentucky River
Medical Center, 352 NLRB at 200; NLRB v. NHE/Freeway,
Inc., 545 F.2d 592, 594 (7th Cir. 1976); NLRB v. Miami Coca-
Cola Bottling Co., 360 F.2d 569, 572–573 (5th Cir. 1966). The
employer does not meet its burden of showing an inadequate
job search by presenting evidence of lack of employee success
in obtaining interim employment or of low interim earnings.
Food & Commercial Workers Local 1357, 301 NLRB 617, 621
(1991).
LORGE SCHOOL 561
2. Respondent’s challenge to Cooperman’s mitigation efforts
a. Cooperman’s search for a new job
Respondent challenges Cooperman’s mitigation efforts and
contends that gross backpay should be reduced because of un-
satisfactory mitigation efforts. I reject Respondent’s argu-
ments. Cooperman’s testimony, and the record as a whole,
establish that her job search efforts were more than adequate to
satisfy her duty to attempt to mitigate her losses.5
First, much of Respondent’s attack on Cooperman’s mitiga-
tion efforts is, at bottom, an attack on the credibility of Coop-
erman’s testimony, an attack which I find entirely unpersua-
sive, and at times, far fetched. Cooperman impressed me as an
honest witness, who honestly recounted an extensive and sin-
cere effort to look for work after her discharge. Her testimony
was uncontradicted, and I credit it.
Respondent declares Cooperman’s testimony that she was
not counseled by the General Counsel after her discharge about
“obligations to look for work” and “document” her job search
to be “incredible,” but it is not. Respondent’s professed shock
reflects misunderstanding of Board practice and realities. In-
deed, Cooperman did not file her charge until November 2006,
and so her testimony that “I didn’t have any communication
with the Labor Board until maybe around the December time
frame” is entirely plausible. In any event, the record reflects
that in March 2008, the Region’s compliance officer wrote
asking for information about her job search, which Cooperman
provided. Her letter to the compliance officer was consistent
with her testimony at trial. As Cooperman testified, she did not
need to be told to look for work. In the wake of her discharge,
she had an immediate financial incentive to look for work.
Nor am I impressed by Respondent’s attack on Cooperman
and the General Counsel, for not providing more “documen-
tary” evidence of her job search. Cooperman plausibly and
credibly explained that her job search was primarily conducted
online, that she did not make a habit of printing out copies of
letters she wrote and online applications that composed the gist
of her search. In fact, she did provide some documentary sup-
port for her testimony, but it is important to point out that there
is no requirement that a discriminatee keep original source
documentation of her job search efforts.6 It is not required that
a discriminatee corroborate her testimony. Heinrich Motors v.

5 I note that this is not a case, such as in St. George Warehouse, 351
NLRB 961 (2007), where the General Counsel failed to advance evi-
dence of the discriminatee’s job search. In other words, in this case the
General Counsel does not merely rely upon the Respondent’s failure to
affirmatively meet its burden of proving the inadequacy of the dis-
criminatee’s job search efforts. Here, the General Counsel, through
Cooperman, produced substantial and uncontradicted evidence of Co-
operman’s job search.
6 Employees are not disqualified from backpay “because of their
poor record-keeping.” Allegheny Graphics, 320 NLRB 1141, 1145
(1996), enfd. 113 F.3d 845 (8th Cir. 1997). The Board has ruled a
discriminatee’s inability to recall the names of places they searched for
work or to maintain records of such after a long period of time does not
establish a failure to mitigate damages. Midwestern Personnel Ser-
vices, 346 NLRB 624, 627–628 (2006) (citing U.S. Can Co., 328
NLRB 334, 356 (1999)), enfd. 508 F.3d 418 (7th Cir. 2007); Cassis
Mgt. Corp., 336 NLRB 961, 965 (2001), and cases cited therein.
NLRB, 403 F.2d 145, 149 (2d Cir. 1968). Corroboration can be
of assistance if there is a dispute, but here, Cooperman’s testi-
mony is not only creditable but uncontradicted.
Respondent also takes issue with the quality of Cooperman’s
job search. But I doubt that any discriminatee could satisfy the
exacting test articulated by Respondent.
Cooperman’s duty was to make a reasonable and honest,
good-faith effort to find work. Respondent ignores all that she
did to look for work, and complains about what she did not do.
For instance, Respondent asserts that it was unreasonable and
“arbitrary” for Cooperman to limit her job search, in the first
few months of her unemployment, to Manhattan, the Bronx,
and suburban counties north of New York City. After failing to
land a new job, Cooperman broadened her search to Brooklyn
and Queens in a few months. This seems like a perfectly rea-
sonable effort from Cooperman. There were jobs available in
the geographic area in which she looked, and she applied to
them. The geographic area is not unduly limited: it encom-
passes millions of people, and scores of jobs. And when she
was not successful in the first months of her job search she
broadened the search. It is not Cooperman’s job search that is
arbitrary. Rather, it would be arbitrary and unreasonable to
permit a respondent to limit backpay because, in hindsight, a
perfectly reasonable job search was not fruitful. After all, in
hindsight, one can always surmise that an unsuccessful job
search should have encompassed a broader geographic area.
But Manhattan, the Bronx, and the northern suburban counties
of New York City is not an unduly circumscribed job search.7
Respondent takes issue with Cooperman’s failure to apply
for teaching or tutoring positions. With the exception of apply-
ing for some substitute teaching work, Cooperman focused her
job search on principal and assistant principal positions. Board
precedent is clear that “the discriminatee is equally not required
to accept employment which is not at least the same or better
than the work from which he had been discriminatorily dis-
charged.” Fugazy Continental Corp., 276 NLRB 1334, 1336
(1985), enfd. 817 F.2d 979 (2d Cir. 1987). In other words, “it
is well established that a discriminatee’s obligation to mitigate
an employer’s backpay liability requires only that the discrimi-
natee accept substantially equivalent employment.” Minette
Mills, Inc., 316 NLRB 1009, 1010 (1995). Clearly, teaching
and tutoring, were not “substantially equivalent” in terms of
pay8 or duties to the administrative and supervisorial responsi-

7 Notably, and contrary to Respondent’s claims, Cooperman’s failure
to obtain interim employment, despite her efforts, does not provide
evidence of the inadequacy of her job search. NLRB v. Cashman Auto
Co. and Red Cab Co., 223 F.2d 832, 836 (1st Cir. 1955) (“‘Success’ is
not the measure of the sufficiency of [the discriminatee’s] search for
interim employment; the law “only requires an honest good faith ef-
fort”); Midwestern Personnel Services, supra at 627 (2006); NLRB v.
Miami Coca-Cola Bottling Co., 360 F.2d 569, 575–576 (5th Cir. 1966)
(respondent cannot meet its burden of proof merely by presenting evi-
dence of lack of employee success in obtaining interim employment or
of so-called “incredibly low earnings).
8 Cooperman testified that she contacted the New York City public
schools and was told that with her level of experience she would earn
around $55–$65,000 annually as a teacher. This was less than the
$75,000 per year she was earning at the time of her discharge. I have
no doubt that had Cooperman sought and obtained interim employment
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 562
bilities involved in the instructional supervisor position from
which Cooperman was unlawfully terminated. While a dis-
criminatee, generally speaking, is not obligated to seek the
same type of interim employment as that from which she was
discharged, and while “instructional supervisor” does not ap-
pear to be a widely-used job title or position, it is notable that
Respondent suggests nothing more equivalent to the instruc-
tional supervisor—which involved responsibility for scheduling
classes, assigning teachers, and generally overseeing instruction
and assessment of students—than an assistant principal or a
principal position.9 Cooperman met the threshold requirements
for those administrative positions, was qualified and certified
for them, and her applications were accepted based on her ex-
perience and credentials. In many cases, she was called for
interviews. Until April 2007, when Cooperman stopped seek-
ing interim positions and focused on developing her own busi-
ness, she was continually finding many assistant principal and
principal openings to apply for. Although unsuccessful, this
was not an unreasonable search for her to make. Based on the
record, these positions appear “substantially” equivalent to the
position she was fired from—which is not something Cooper-
man must prove, but the fact of which further undermines Re-
spondent’s complaint about Cooperman’s job search.10
b. Cooperman’s self-employment
It is well settled under Board precedent that self-employment
is an adequate and proper way for a discriminatee to attempt to
mitigate loss of wages. Cassis Management Corp., 336 NLRB
961, 968–969 (2001); Black Magic Resources, Inc., 317 NLRB
721, 722 (1995); Fugazy Continental Corp., 276 NLRB at 1334
(citing Heinrich Motors, 166 NLRB 783 (1967), enfd. 403 F.2d
145 (2d Cir. 1968)). There is no requirement that the self-
employment be a financial success. “The fact that a self-
employed discriminatee is not successful in his business does
not demonstrate that he was not engaged in full-time self-
employment because ‘the principle of mitigation of damages
does not require success; it only requires an honest good faith
effort.’” Aircraft & Helicopter Leasing, 227 NLRB at 646,
646–647 (1976), enfd. 570 F.2d 351 (9th Cir. 1978), quoting
Heinrich Motors, Inc., 166 NLRB at 784.

as a teacher, at wages substantially less than she earned as an instruc-
tional supervisor at Lorge, that Respondent would have argued that she
had failed to seek substantially equivalent work and that this should be
held against her.
9 Avon Convalescent Center, 219 NLRB 1210, 1215 (1975), enfd. in
relevant part 549 F.2d 1080 (6th Cir. 1977); EL Plastics Corp., 314
NLRB 1056, 1058 (1994); De Jana Industries, 305 NLRB 845, 846 fn.
6 (1991).
10 Respondent is wrong to claim that Cooperman’s application for
substitute teaching positions establishes that teaching jobs are “substan-
tially equivalent” to her position at The Lorge School. To satisfy her
duty to mitigate, an employee is required to accept only substantially
equivalent employment, but may look for and accept work more
broadly. Fugazy Continental Corp., 276 NLRB at 1336. Seeking a
position, such as a substitute teaching position, does not show, or even
suggest, that it is substantially equivalent to the instructional supervi-
sors job or that there was a duty to broadly seek teaching positions
instead of the administrative positions on which Cooperman focused
her efforts.
After April 30, 2007, Cooperman stopped actively looking
for work (although she continued to go on a few interviews
generated from her previous job search) and began actively
working towards the opening of a gourmet food store and cater-
ing business. This business was incorporated in June 2007, and
a lease signed in September 2007. The store opened in May
2008, but never earned any income for Cooperman.
Respondent objects to this effort by Cooperman. Respon-
dent complains that Cooperman’s effort to open a business in
something she had no prior experience in should invalidate the
enterprise as a legitimate effort at mitigation. But I am un-
aware (and Respondent points to none) of any obligation that a
discriminatee remain in the same field or limit self-employment
to a retail business with which the discriminatee has prior ex-
perience. The principle of mitigation requires an honest and
good-faith effort consistent with an inclination to work and be
self-sufficient. Based on Cooperman’s testimony about the
efforts and time she put into the creation and establishment of
this business, it certainly appears to be a legitimate effort at
self-employment, even if ultimately unsuccessful.
Respondent also complains about the length of time it took
Cooperman to establish her business. Essentially, from May
2007 until her retail business opened its doors, in May 2008,
Cooperman devoted herself to establishing her business from
scratch; she was not actively searching for other paid employ-
ment during this time. A year is a long time, and Respondent
objects to having to pay backpay for Cooperman during this
period. But Respondent’s indignation is not buttressed with
any evidence that the year it took to launch the food store and
catering business was longer than Cooperman reasonably
needed. It is not buttressed with any evidence that Cooperman
did not devote herself fulltime to the task of conceiving, devel-
oping, and establishing the new business. Without such evi-
dence, Respondent’s contention cannot prevail.
Cooperman described a comprehensive effort to develop a
business plan, search for a suitable commercial location, rent
space, interview and hire architects, and design the business.
Once a building was found and space rented, Cooperman was
intimately involved in every aspect of hiring, and designing
menus and readying the business for opening. Cooperman is
under no obligation to further corroborate this credited testi-
mony. The burden is on Respondent to contradict it. Heinrich
Motors v. NLRB, 403 F.2d 145, 149 (2d Cir. 1968). Based on
the evidence, I am in no position to conclude that a year is an
inordinate amount of time for Cooperman to spend planning
and developing the business before its doors actually opened.
Respondent offers no evidence to support the claim that it is an
inordinate amount of time. It certainly is not self-evident that
Cooperman took too long to start her business or was not, as her
testimony suggests, actively engaged in the development of the
business for that year. Given this, and given that it is Respon-
dent’s burden to establish the unreasonableness of Cooperman’s
efforts, and given the maxim that any doubts must be resolved in
favor of the discriminatee and against the wrongdoer, there is no
grounds to limit Cooperman’s backpay based on the length of
time she spent conceiving and establishing her business.
After all, the touchstone, for measuring mitigation efforts is
“[a] good faith effort” demonstrated by “conduct consistent
LORGE SCHOOL 563
with an inclination to work and to be self supporting.” This is
“best evidenced not by a purely mechanical examination of the
number or kind of applications for work which have been
made, but rather by the sincerity and reasonableness of the
efforts made by an individual in his circumstances to relieve his
unemployment.” Henrich Motors, supra. Under this standard,
it is difficult to say, and in this case entirely unproven, that
Cooperman’s launching of her food store was anything other
than a sincere and reasonable effort to relieve unemployment.
It is consistent with an inclination to work and to be self sup-
porting. That fact that, in the end, it made no money for Coop-
erman, does not undermine the reasonableness or sincerity of
the effort, and does not warrant reduction in backpay—either
for the period spent putting the business together or the time
spent operating the business. Sioux Falls Stock Yards Co., 236
NLRB 543, 564 (1978) (“it is not a defense to Robinson’s con-
tinuing efforts to build his own business during the backpay
period that he did not make more money in his business or that
some of his time was spent in acquiring additional skills and
equipment. It therefore is found that Robinson should be made
whole in accordance with the specification”); Heinrich Motors.,
166 NLRB at 784 (“The time spent by an entrepreneur in seek-
ing business opportunities is in these circumstances necessarily
related to his self-employment.”) and fn. 10, citing Cornell v.
T.V. Development Corp., 215 N.E. 2d 349, 352 (NY 1966)
(“where at the time of trial the plaintiff’s self-employment had
amounted principally—if not solely—to his efforts to become
self-employed: ‘. . . the proof shows that the plaintiff was bor-
rowing funds to form a corporation for the purpose of going
into the electronic business. At the time of trial, the corporation
had no bank account; it owned no assets; and the plaintiff re-
ceived no employment income after his discharge, but did re-
ceive $600 in unemployment insurance payments’”), pet. for
review denied 403 F.2d 145 (2d Cir. 1968).
3. Respondent’s challenge to the underlying Board Order
In its answer to the compliance specification, but not at the
trial, and not in its posttrial brief, Respondent contended, as an
affirmative defense, that “[t]he specification was issued prior to
a valid Board Order since the two Board Members do not con-
stitute a quorum under Section 3(b) of the Act.”
I reject this defense, for several reasons. And, in doing so, I
do not reach the issue of whether an affirmative defense, raised
in an answer, is waived by the failure to ever mention the de-
fense again. As referenced, the defense was not mentioned by
Respondent at trial, it is not mentioned in Respondent’s post-
trial brief. Under these circumstances, a strong argument that
Respondent has abandoned this defense may be made.
But the waiver problems are more profound than that. Re-
spondent’s defense is an attack on the jurisdiction of the Board
to issue its underlying decision and order in this matter. That
order was a final Board order requiring Respondent to offer
reinstatement to Cooperman and make her whole for losses
resulting from her discharge. Respondent could have, but did
not, present this jurisdictional issue to the Board during the
litigation that resulted in the Board’s order. Respondent could
have, but did not, attempt to raise this issue to the court of ap-
peals during the litigation that resulted in the Court’s enforce-
ment of the Board’s order. Accordingly, with the Board’s order
judicially-enforced, the issue of the Board’s authority to issue
that order is settled by the doctrine of res judicata.
Respondent contends in its answer that “[b]ecause this is a
matter of the authority of the Board, Respondent is not pre-
cluded from raising the issue at this stage of the proceeding.”
This contention is without force under the circumstances.
Whether raised or not, the Board’s authority to issue its order
was, at least implicitly, before the Second Circuit Court of Ap-
peals when it ordered enforcement of the Board’s order in this
case. Stoll v. Gottlieb, 305 U.S. 165, 171–172 (1938) (“Every
court in rendering a judgment tacitly, if not expressly, deter-
mines its jurisdiction over the parties and the subject matter”).
The Board’s order is judicially enforced and these supplemen-
tary proceedings to determine what is owed under the Board’s
judicially-enforced order are not a forum for attacks on the
validity of the underlying order. That the question is one of the
Board’s authority to act—in other words, of jurisdiction—
makes no difference. “It has long been the rule that principles
of res judicata apply to jurisdictional determinations—both
subject matter and personal.” INS Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694 fn. 9 (1982).
“A party that has had an opportunity to litigate the question of
subject-matter jurisdiction may not . . . reopen that question in a
collateral attack upon an adverse judgment.” Id.; see United
States v. Bigford, 365 F.3d 859, 865 (10th Cir. 2004) (“as long
as a party had an opportunity to litigate the jurisdictional issue,
it is not subject to collateral attack.”); Weininger v. Castro, 462
F.Supp. 457, 472 (S.D.N.Y. 2006) (“The same preclusive effect
occurs where a party had an opportunity to litigate jurisdiction
but chose not to do so: “A party that has had an opportunity to
litigate the question of subject-matter jurisdiction may not …
reopen that question in a collateral attack upon an adverse
judgment”); Corbett v. MacDonald Moving Services, 124 F.3d
82, 88–89 (2d Cir. 1997); Nemaizer v. Baker, 793 F.2d 58, 65
(2d Cir. 1986) (“Even if a court does not expressly rule on mat-
ters relating to its exercise of jurisdiction, if the parties could
have challenged the court’s power to hear a case, then res judi-
cata principles serve to bar them from later challenging it col-
laterally”) (court’s emphasis). The issue is settled as to this
party in this matter.
Finally, even if I were to reach the merits of Respondent’s
jurisdictional contention, I would not accept it. The Board has
clearly and repeatedly taken the view, since December 31,
2007, when the expiration of Board members’ terms left only
two sitting members of the Board, that it has the authority to
issue decisions and orders in unfair labor practice and represen-
tation cases. See, e.g., Regency Grande Nursing & Rehabilita-
tion Center, 354 NLRB No. 93, slip op. at 1 fn. 1 (2009), and
many other recent decisions. I am, of course, bound by Board
precedent. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984) (“It
is for the Board, not the judge, to determine whether that prece-
dent should be varied”). Los Angeles New Hospital, 244 NLRB
960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981) (ad-
ministrative law judge bound to apply established Board prece-
dent that neither the Board nor the United States Supreme
Court has reversed). Board precedent clearly requires rejection
of Respondent’s contention.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
SUPPLEMENTAL ORDER
IT IS HEREBY ORDERED that the Respondent, The Lorge

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
School, New York, New York, its officers agents, successors,
and assigns, shall

Satisfy the obligation to make discriminatee Linda Cooper-
man whole the following by paying her $129,003.34, with in-
terest thereon to be added, accrued to the date of payment
computed in the manner described in New Horizons for the
Retarded, 283 NLRB 1173 (1987), minus tax and withhold-
ings required by Federal and State laws.