Arthur Briggs, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 789 (N.L.R.B. 1986)

ARTHUR BRIGGS, INC. 789
Arthur Briggs, Inc. and Knitgoods Workers' Union
Local 155, International Ladies' Garment
Workers' Union , AFL-CIO. Cases 2-CA-17519
and 2-CA-17825
30 September 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 13 August 1984 Administrative Law Judge
Howard Edelman issued the attached supplemental
decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the record and the at-
tached supplemental decision in light of the excep-
tions and briefs and has decided to affirm the
judge's rulings, findings,' and conclusions2 as
modified and to adopt the recommended Order as
modified.
The backpay period, which commenced on 2
January 1981 and ended on 17 May 1983, covered
10 calendar quarters. As Lynch willfully concealed
his earnings for the first two quarters of 1981, the
judge properly denied him backpay for that time.3
In calculating gross backpay, the judge correctly
gave Lynch credit for 9-hour workdays. However,
we agree with the Respondent that the judge im
properly used an 8- rather than a 9-hour basis in
making deductions for nonrenumerated holidays,
estimated absences, and snow closures. We there-
i Notwithstanding the Respondent's statement that it has not excepted
to any of the fudge's credibility findings, it is clear from its brief that in
fact it excepts to some of them 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.
2 The judge stated that the General Counsel rather than the Respond-
ent "produced"' as witnesses Donald Scott and Pauline Blanchard, the
manager and owner, respectively, of discriminatee Paul Lynch's principal
interim employer, and that Anderson Creswell, an investigator hired by
the Respondent, had a conversation with Lynch on 22 May 1981 instead
'of 20 May 1982. We find that these inadvertent errors do not affect the
outcome in this proceeding.
We agree with the judge's conclusion that the Respondent, based
merely on the testimony of Creswell concerning the foregoing conversa-
tion with Lynch, did not meet its burden of establishing that Lynch, in
fact, received more in interim earnings for the period of 1 July 1981
through 17 May 1983 than was alleged in the backpay specification. In so
doing, however, we find it unnecessary to pass on the judge's general ob-
servations concerning people's tendencies with respect to their discus-
sions of their income with strangers and his reliance on particular circum-
stances surrounding Creswell's conversation with Lynch
' See American Navigation Co., 268 NLRB 426 (1983); and Ad Art, Inc,
280 NLRB 985 (1986)
fore find that the calculations for nonworkdays
should be on the same basis as the workdays.
In view of the foregoing, we have recalculated
the gross and net backpay as follows
1981 Gross Backpay
First Quarter: 1 January 1981-31 March 1981
Weekly, 45 hours including overtime at time
and a half over 40 hours x $5.30 per hour =
$252 per week
$252 per week x 13 weeks = $3276
$3276 - $47.70 (plant closed New Year's
Day) = $3228.30 for the quarter
Second Quarter: 1 April 1981-30 June 1981
Weekly, 45 hours including overtime at time
and a half over 40 hours x $5.30 per hour =
$252 per week
$252 per week x 13 weeks = $3276 (plant
closed Memorial Day) = $3228.30 for the
quarter'
Third Quarter: 1 July 1981-30 September 1981
Weekly, 45 hours including overtime at time
and a half over 40 hours x $5.30 per hour =
$252 per week
$252 per week x 8.2 weeks = $2066
Effective 28 August 1981 there was a $.30-
per-hour increase.
Weekly, 45 hours including overtime at time
and a half over 40 hours x $5.60 per hour =
$266 per week ($53.20 per day)
$266 per week x 4.8 weeks = $1277
$2066 + $1277 = $3343
$3343 - $53.20 = $3289.80 for the quarter
(plant closed for Labor Day)
Fourth Quarter: 1 October 1981-31 December
1981
Weekly, 45 hours including, overtime at time
and a half over 40 hours x $5.60 per hour =
$266 per week ($53.20 per day)
$266 per week x 11 weeks = $2926
The Respondent's facility is closed the last 2
weeks in December. Employees are not paid
for this period.
$2926 - $159.60 (plant closed Thanksgiving
Day and an average of 2 days' absence at
$53.20 per day) = $2766.40
Gross earnings for 1981 = $12,512.80
6-percent annual bonus = $750.77
$2766.40 + $750.77 = $3517.17 for the
quarter
1982 Gross Backpay
First Quarter: 1 January 1982-31 March 1982
281 NLRB No. 114
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weekly, 45 hours including overtime at time
and a half over 40 hours x $5.60 per hour =
$266 per week
$266 per week x 6 weeks = $1596
Effective 11 February 1982 all employees
went on a 37-1/2-hour workweek and received
a $.40 increase.
Weekly, 45 hours including overtime at time
and a half over 37-1/2 hours x $6 per hour =
$292.50 per week ($58.50 per day)
$292.20 per week x 7 weeks = $2047.50
$1596 + $2047.50 = $3643.50
$3643.50 - $58.50 = $3585 for the quarter
(plant closed New Year's Day)
Second Quarter: 1 April 1982-30 June 1982
Weekly, 45 hours including overtime at time
and a half over 37-1/2 hours x $6 per hour =
$292.50 per week ($58.50 per day)
$292.50 per week x 13 weeks = $3802.50
$3802.50 - $117 (plant closed Good Friday
and Memorial Day) = $3685.50 for the quar-
ter
Third Quarter: 1 July 1982-30 September 1982
Effective 1 July 1982 there was a $ .20-per-
hour increase.
Weekly, 45 hours including overtime at time
and a half over 37-1/2 hours x $6.20 per hour
_ $302.25 per week ($60.45 per day)
$302.25 per week x 13 weeks = $3929.25
$3929.25 - $120.90 (plant closed Independ-
ence Day and Labor Day) = $3808.35 for the
quarter
Fourth Quarter: 1 October 1982-1 December
1982
Weekly, 45 hours including overtime at time
and a half over 37-1/2 hours x $6.20 per hour
_ $302.25 per week ($60.45 per day)
$302.25 per week x 11 weeks = $3324.75
As set forth above, the Respondent's facility
is closed the last 2 weeks in December.
$3324.75 - $181.35 (plant closed Thanksgiv-
ing Day and an average of 2 days' absence at
$60.45 per day) = $3143.40
Gross earnings for 1982 = $14,222.25
6-percent annual bonus = $853.33
$3143.40 + $853.33 = $3996.73 for the
quarter
1983 Gross Backpay
First Quarter: 1 January 1983-31 March 1983
Weekly, 45 hours including overtime at time
and a half over 37-1/2 hours x $6.20 per hour
_ $302.25 per week
$302.25 per week x .8 week = $242
Effective 6 January 1983 there was a $.10-
per-hour increase.
Weekly, 45 hours including overtime at time
and a half over 37-1/2 hours x $6.30 per hour
_ $307 per week ($61.40 per day)
$307 per week x 12.2 weeks = $3745
$242 + $3745 = $3987
$3987 - $184 .20 = $3802 . 80 for the quarter
(plant was closed 3 snow days)
Second Quarter : 1 April 1983-17 May 1983
Weekly, 45 hours including overtime at time
and a half over 37-1/2 hours x $6.30 per hour
_ $307 per week ($61.40 per day)
$307 per week x 4.6 weeks = $ 1412'
Net Backpay
Gross Interim Net
Backpay Earnings Earnings
1981
3d Qtr ........................... $3,289.80 $1820 $1,469.80
4th Qtr ......................... 3,517.17 1820 1,697.17
1982
1st Qtr ......................... 3,585.00 1820 1,765.00
2d Qtr ......................... 3,685.50 1820 1,865.50
3d Qtr ........................... 3,808.35 1820 1,988.35
4th Qtr .......................... 3,996.73 1820 2,176.73
1983
1st Qtr .......................... 3,802.80 1820 1,982.80
2d Qtr ........................... 1,412.00 896 516.00rn,n,n,s
$13,461.35
Accordingly, we find that the total backpay
owed Lynch by the Respondent is $13 .461.35 plus
interest.
ORDER
The National Labor Relations Board orders that
the Respondent, Arthur Briggs, Inc., its officers,
agents, successors, and assigns, shall pay to Paul
Lynch $13,461.35 plus interest thereon to be com-
puted in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977), less tax withholdings
required by Federal and state laws.
CHAIRMAN DOTSON, dissenting.
Again the Board is confronted with a backpay
claimant who has willfully concealed sizeable inter-
im earnings. My colleagues, while denying claim-
ant Paul Lynch backpay for the quarters encom-
passing the fraudulent conduct, nevertheless award
him substantial backpay for the remaining quarters.
For the reasons set forth in my separate opinion in
Ad Art, Inc., 280 NLRB 985 (1986), I would find
that where there has been such a willful conceal-
ment of interim earnings backpay cannot he ascer-
ARTHUR BRIGGS, INC.
tained with any reasonable certainty and award of
backpay is therefore highly speculative . According-
ly, an award for any quarter is inappropriate and
does not conform with our traditional status quo
ante approach in this area. Fraudulent deception
and willful concealment are not permissible on a
quarterly basis.
Gwynne A. Wilcox, Esq., for the General Counsel.
James J. Dean, Esq. (Putney, Twombly, Hall & Hirson),
for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on May 9 and 10, 1984, in New
York, New York.
On November 3, 1982, the National Labor Relations
Board issued its Decision and Order in the underlying
proceeding to the instant proceeding.' The decision or-
dered Arthur Briggs, Inc. (Respondent) to reinstate and
make whole Paul Lynch for the loss of wages he suf-
fered as the result of Respondent's unfair labor practices
in violation of Section 8(a)(1), (3), and (5) of the Act. On
March 8 , 1983, the United States Court of Appeals for
the Second Circuit entered a judgment enforcing in full
the reinstatement and backpay provisions of the Board's
Order.2
On January 31, 1984, a controversy having arisen over
the amount of backpay due Lynch under the Board's
Order as enforced, the Regional Director for Region 2
issued the instant backpay specification and notice of
hearing.
Gross Backpay
The parties stipulated that the backpay period com-
menced on January 2, 1981, and ended on May 17, 1983,
when Lynch was reinstated.
The parties also stipulated that during this backpay
period Lynch's gross backpay would have been his
actual total weekly earnings including overtime comput-
ed on a calendar quarterly basis.
During the course of the hearing the parties stipulated
that the applicable wage rates were as follows. From
January 1 through August 27, 1981, the applicable wage
rate was $5.30/hour. From August 28, 1981 , through
February 10, 1982 , the applicable wage rate was
$5.60/hour . From February 11 through June 30, 1982,
the applicable wage rate was $6/hour . From July 1,
1982 , through January 5, 1983, the applicable wage rate
was $6 .20/hour . From January 6, 1983, through May 17,
1983, the date Lynch was reinstated , the applicable wage
rate was $6.30/hour.
The parties further stipulated that Respondent paid its
employees an annual bonus totaling 6 percent of the total
yearly gross wages.
265 NLRB 299.
' This decision is unpublished . It was introduced in evidence by coun-
sel for the General Counsel (G.C. Exh. 1(c)).
791
Additionally the parties stipulated that Respondent an-
nually shut down its plant the last 2 weeks in December,
and that employees were not paid during this 2-week
period.
Counsel for the General Counsel computed the gross
backpay on the basis that throughout the backpay period
Lynch would have worked a 47-1/2-hour week includ-
ing 7-1/2 hours' overtime . The overtime rate of pay was
admittedly time and a half the applicable hourly pay
rate.
Counsel for Respondent admits that prior to the
Union 's strike in August 1980, which resulted in Re-
spondent's refusal to reinstate Lynch for alleged picket
line misconduct, Lynch was working 47- 1/2 hours per
week which included 7 - 1/2 hours' overtime . It is admit-
ted that during this period Lynch did not work Satur-
days . Counsel for Respondent contends that during the
backpay period beginning on January 2, 1981 , through
February 10, 1982, Lynch would have only worked 40
hours per week , and that beginning on February 11,
1982, and thereafter to date Lynch would have worked
only 37- 1/2 hours per week . It is admitted that when
Lynch returned to work on May 17, 1983 , he worked a
37-1/2-hour week from his reinstatement to date . In this
connection, David Goldstein , Respondent 's vice presi-
dent , credibly testified that on February 11, 1982, Re-
spondent reduced its standard pay week from 40 hours
to 37- 1/2 hours in order to eliminate Saturday overtime.
Respondent no longer wanted to remain open on Satur-
day. However , Respondent at this time (as set forth
above) raised its pay rate from $5.60/hour to $6/hour so
that its employees would not suffer a reduction in pay.
Goldstein further testified that during the backpay
period , from January 1, 1981 , through December 23,
1982 , Lynch's replacement was a presser named Sam Un-
gazzi . From January 1 until May 17, 1983, when Lynch
was reinstated , Goldstein employed two employees who
performed the same work as Ungazzi.
Goldstein , reviewing his payroll records, testified as to
the hours worked by Ungazzi each week of his employ.
His testimony established that Ungazzi invariably
worked a 45-hour, 5-day week including overtime.3
Goldstein also testified that after Ungazzi left on Decem-
ber 23 , 1982, the two employees hired to take his place
worked a combined totaled of 45 hours per 5-day week
until May 17, 1983, when Lynch was reinstated.
Goldstein " testified that the overtime hours worked by
Ungazzi and his replacements resulted from work assign-
ments in addition to the usual duties of the presser.
These additional work assignments included oiling the
automatic knitting machines and warming them up and
organizing the yams, which required keeping a written
inventory of about 25 different color yarns normally
used by Respondent . Goldstein testified that when
0 Goldstein's testimony established that there were some weeks when
Ungazzi worked less than a 5-day week due to absence necessitated by
school exams. However , on these weeks Ungazzi could have worked 45
hours had he been available . On other occasions Ungazzi worked in
excess of 45 hours but over a 6-day week. In view of Lynch's refusal to
work on Saturday , such overtime would not have been offered to him by
Respondent.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lynch was employed by him prior to January 1, 1981,
he never assigned, him these additional duties. Similarly,
following his reinstatement on May 17, 1983, he was not
assigned these additional duties.
However, Goldstein admitted that Lynch was fully ca-
pable of performing these additional duties. There is no
testimony or other evidence to establish that Lynch
would not have been assigned such additional duties had
he remained in Respondent's employ during the backpay
period. Accordingly, I conclude that Lynch would have
worked the same hours and performed the same duties as
his replacements during the backpay period.
Goldstein additionally testified that in 1981 Respond-
ent's plant closed four holidays (New Year's Day, Me-
morial Day, Labor Day, and Thanksgiving), and in 1982
closed six holidays (New Year's Day, Good Friday, Me-
morial Day, Fourth of July, Labor Day, and Thanksgiv-
ing). Additionally, in 1983 Respondent closed its facility
three snow days (February 7, 14, and 21). Goldstein fur-
ther testified that Lynch averaged 2 days' absence each
year. Although Goldstein failed to testify that employees
were not paid for holidays, absences, or snow days clo-
sures, Respondent's answer indicates that this is so and
thus places the issue in dispute. It is the General Coun-
sel's sole burden to establish gross backpay. Kansas Re-
fined Helium Co., 252 NLRB 1156 (1980), enfd. 683 F.2d
1296 (10th Cir. 1982). It is therefore the General Coun-
sel's burden to establish employees were paid for, holi-
days, absences, and snow day closures. Counsel for the
General Counsel submitted no evidence to this effect,
and therefore did not meet this burden.
Accordingly, based on the backpay specification, Re-
spondent's answer, the stipulations received during the
course of the hearing, and the evidence adduced, I find
the gross backpay as follows
1981 Gross Backpay
First Quarter: January 1, 1981-March 31, 1981
Weekly, 45 hours including overtime at time and
a half over 40 hours x $5.30 per hour = $252 per
week
$252 per week x 13 weeks = $3276
$3276 - $42.40 (plant closed New Year's Day) _
$3233.60 for the quarter
Second Quarter: April 1, 1981-June 30, 1981
Weekly, 45 hours including overtime at time and
a half over 40 hours x $5.30 per hour = $252 per
week
$252 per week x 13 weeks = $3276 - $42.40
(plant closed Memorial Day)
quarter
_ $3233.60 for the
Third Quarter: July 1, 1981-September 30, 1981
Weekly, 45 hours including overtime at time and
a half over 40 hours x $5.30 per hour = $252 per
week
$252 per week x 8.2 weeks = $2066
Effective August 28, 1981, there was a $.30-per-
hour increase.
Weekly, 45 hours including overtime at time and
a half over 40 hours x $5.60 per hour = $266 per
week ($53.20 per day)
$266 per week x 4.8 weeks = $1277
$2066 + $1277 = $3343
$3343 - $44.80 (plant closed for Labor Day)-
$3233.60 for the quarter
Fourth Quarter: October 1, 1981-December 31, 1981
Weekly, 45 hours including overtime at time and
a half over 40 hours x $5.60 per hour = $266 per
week
$266 per week x 11 weeks = $2926
Respondent's facility is closed the last 2 weeks in
December. Employees are not paid for this period.
$2926 - $134.40 (plant closed Thanksgiving Day
and an average of 2 days' absence at $44.80 per
day) = $2791.60
$2971.60 + 750 (6-percent annual bonus) _
$3541.60 for the quarter
1982 Gross Backpay
First Quarter: January 1, 1982-March 31, 1982
Weekly, 45 hours including overtime at time and
a half over 40 hours x $5.60 per hour = $266 per
week
$266 per week x 6 weeks = $1596
Effective February 11, 1982, all employees went
on a 37-1/2-hour workweek and received a $.40 in-
crease.
Weekly, 45 hours including overtime at time and
a half over 37-1/2 hours x $6 per hour = $292.50
per week
$292.50 per week x 7 weeks = $2047.50
$1596 + $2047.50 = $3643.50
$3643.50 - $45 (plant closed New Year's Day)
$3598.50 for the quarter
Second Quarter: April 1, 1982-June 30, 1982
Weekly, 45 hours including overtime at time and
a half over 37-1/2 hours x $6 per hour = $292.50
per week
$292.50 per week x 13 weeks = $3802.50
$3802.50 - $90 (plant closed Good Friday and
Memorial Day) = $3712.50 for the quarter
Third Quarter: July 1, 1982-September 30, 1982
Effective July 1, 1982, there was a $.20 per-hour
increase.
Weekly, 45 hours including overtime at time and
a half over 37-1/2 hours x $6.20 per hour
$302.25 per week
$302.25 per week x 13 weeks = $3929.25
$3929.25 - $93 (plant closed Independence Day
and Labor Day) = $3836.25 for the quarter
ARTHUR BRIGGS , INC. 793
Fourth Quarter: October 1 , 1982-December 1, 1982
Weekly, 45 hours including overtime at time and
a half over 37-1/2 hours x $6.20 per hour =
$302.25 per week
$302.25 per week x 11 weeks = $3324.75
As set forth above , Respondent's facility is closed
the last 2 weeks in December.
$3324.75 - $139.50 (plant closed Thanksgiving
Day and an average of 2 days' absence at $46.50 per
day) = $3185.25
$318.25 + $860.50 (6-percent annual bonus) _
$4045 .75 for the quarter
1983 Gross Backpay
First Quarter: January 1, 1983-March 31, 1983
Weekly, 45 hours including overtime at time and
a half over 37-1/2 hours x $6.20 per hour =
$302.25 per week
$302.25 per week x .8 week = $242
Effective January 6, 1983 , there was a $.10-per-
hour increase.
Weekly, 45 hours including overtime at time and
a half over 37- 1/2 hours x $6.30 per hour = $307
per week
$307 per week x 12.2 weeks = $3745
$242 + $3745 = $3987
$3987 - $141.75 (plant was closed 3 snow days)
_ $3845 .25 for the quarter
Second Quarter : April 1 , 1983-May 17, 1983
Weekly , 45 hours including overtime at time and
a half over 37-1/2 hours x $6.30 per hour = $307
per week
$307 per week x 4.6 weeks = $1412 for the quar-
ter until Lynch was reinstated on May 17 , 1983.4
Gross Backpay Summary
1981-$13,307.00
1982-$15,193.00
1983-$ 5,257.25
Total Gross Backpay-$33,757.25
The Search for Work
Respondent contends that Lynch failed to make a rea-
sonable search for work during the backpay period. A
discriminatee is required to make a reasonable search for
work in order to mitigate loss of income and the amount
of backpay. Lizdale Knitting Mills, 232 NLRB 592, 599
(1977). The Board and the courts hold, however, that in
seeking to mitigate loss of income a backpay claimant is
"held . . . only to reasonable exertions in this regard, not
the highest standard of diligence ." The principle of miti-
gation of damages does not "require success; it only re-
quires an honest , good-faith effort." NLRB v. Arduini
Mfg. Co., 394 F.2d 420, 422-423 (1st Cir . 1968); NLRB v
Madison Courier , 472 F.2d 1307 (D.C. Cir. 1972). The
Board and the courts also hold that the burden of proof
is on the employer to show that the employee claimant
failed to make such reasonable search (NLRB v. Midwest
Hanger Co ., 550 F.2d 1108 (8th Cir. 1977)), or that he
willfully incurred losses of income or was otherwise un-
available for work during the backpay period. NLRB v.
Pugh & Barr Inc ., 231 F.2d 588 (4th Cir. 1956); NLRB v.
Miami Coca -Cola Bottling Co., 360 F.2d 569 (5th Cir.
1966). Moreover, in applying these standards , all doubts
should be resolved in favor of the claimant rather than
the respondent wrongdoer . United Aircraft Corp., 204
NLRB 1068 (1973).
What constitutes a good -faith search for work depends
on the facts of each case . In this regard the Board has
stated:
[I]n broad terms a good -faith effort requires con-
duct consistent with an inclination to work and to
be self-supporting and . . . such inclination 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 indi-
vidual in his circumstances to relieve his unemploy-
ment . Circumstances include the economic climate
in which the individual operates , his skill and quali-
fications, his age, and his personal limitations.
Hickman Garment Co., 196 NLRB 428, 432 (1972).
Applying the above rational to the instant case, Lynch
credibly and without contradiction testified that he
began looking for work in September 1980, during the
union strike against Respondent , and prior to the begin-
ning of the backpay period, which began on January 2,
1981 . During the period between September 1980 and
June 1981 , Lynch testified, he attempted to obtain em-
ployment as a "presser" by reviewing daily the help-
wanted advertisements in the New York Post and New
York Daily News and calling those employers, which
advertised jobs for which he was qualified. He similarly
reviewed the Bronx yellow pages and telephoned on a
weekly basis those employers , which numbered about
seven, who might reasonably employ a presser. Lynch
also contacted Willard Aldrich, the Union' s organization
director, by phone, or in person, approximately once a
week seeking employment as a presser . Aldrich, who im-
pressed me as a credible witness, corroborated Lynch's
testimony . Moreover, Aldrich testified that he was gen-
erally aware of available pressing jobs in the area . In this
connection, Lynch and Aldrich testified that during this
period he referred Lynch to several potential jobs in-
cluding Cal Craft in Manhattan , Jana Knitting and
Drummond Industries in Maspeth, Queens, and Paris
Knitting in Maspeth where Lynch was ultimately suc-
cessful in obtaining employment as a presser in May
1981 .5 Additionally, Lynch went to the New York State
* At various times during the gross backpay calculations , figures were
rounded off to the nearest dollar to facilitate computation.
6 His employment at Pans Knitting lasted a period of 3 weeks and is
discussed in detail below.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unemployment Office every week and the New York
State Employment Office every month.
Lynch was unable to recall the names of those compa-
nies he called in response to newspaper advertisements
or through the Bronx yellow pages. However, since this
search for work took place over 3 years ago, I do not
find this unreasonable, nor sufficient evidence to establish
Respondent's burden that Lynch did not reasonably
search for work as he has testified. The Board has re-
peatedly held that it is not unusual or suspicuous that
claimants cannot remember the names of employers or
employer representatives to who they spoke or the times
they visited such prospective employers. Amshu Associ-
ates, 234 NLRB 791, 792 fn. 7 (1978); United Aircraft
Corp., supra; Lizdale Knitting Mills, supra; Neely's Car
Clinic, 255 NLRB 1420 (1981). Additionally, Respondent
has failed to established that Lynch was unavailable for
work for any time during this period.
It is admitted that from at least June 2, 1981, until May
17, 1983, Lynch worked 5 days a week on a full-time
basis as a barber at the Cross Bronx Expressway Barber
Shop. Lynch testified without contradiction that from
June 2, 1981, and thereafter he continued his search as a
presser, notwithstanding his full-time employment as a
barber. In this connection Lynch testified that he contin-
ued to read the want ads in the News and Post on a
daily basis and contact possible leads by telephone, with-
out success. He also periodically called appropriate em-
ployers listed in the Bronx yellow pages, and he contin-
ued his weekly contacts with Union Official Aldrich, all
without success. Aldrich corroborated that Lynch made
such weekly contacts. Aldrich additionally testified that
during the entire backpay period jobs as pressers were
extremely scarce in the industry because the pay is very
high, second only to "cutters," and employees working
such jobs do not leave them. In view of this testimony, I
do not find it unusual or suspicious that notwithstanding
Lynch's efforts he was unsuccessful in fording a job as a
presser.
Respondent's counsel contended through cross- exami-
nation of Lynch that during his full-time employment at
the Cross Bronx Expressway Barber Shop Lynch exclu-
sively used the telephone in an attempt to secure work as
a presser , which somehow diminished his ability to
search for work. As Lynch pointed out in his testimony,
"When you come to work, you can't walk off and look
for a job, if you're working, can you?" Moreover, I see
no reason why a search for work using the telephone as
the means of contacting a prospective employer is not
adequate. On the contrary, one can contact far more pro-
spective employers using a telephone than by traveling
all over the city looking for work.
Respondent additionally attempted to establish that
Lynch reasonably failed to search for work by produc-
ing two newspaper ads in the New York Daily' News
and New York Post dated May 22 and August 1, 1982,
which- advertised pressing jobs in Queens and Manhattan,
respectively, and establishing through Lynch's testimony
that he did not contact either of these two employers.
However, the Board has held that the existance of such
ads does not establish that such jobs would have been
available, or the claimant would have been selected had
he applied. Airports Service Lines, 231 NLRB 1272, 1273
(1977). Moreover, that a claimant fails to exhaust every
job possibility does not disqualify him from a backpay
award. The test is whether, all factors considered, the
claimant made a good-faith effort to obtain work. Miami
Coca-Cola Bottling Co., supra; Mastro Plastics Corp., 136
NLRB 1342, 1359 (1962). I conclude the fact that Lynch
failed to respond to the News and Post ads described
above does not discredit his testimony that he reviewed
ads published by the News and Post as a means to search
for work and responded to appropriate ads.
Based on a consideration of the evidence described
above, I conclude that Respondent has failed to establish
that from January 2, 1981, until reinstatement by Re-
spondent on May 17, 1983, Lynch failed to make a rea-
sonable search for work as a presser or he was unavail-
able for such work. I further conclude that notwithstand-
ing his job at the barber shop Lynch at all times during
this period did make a reasonable search for pressing
work.
The Paris Knitting Job
Sometime during the beginning of May 1981, pursuant
to a lead furnished by Aldrich, Lynch obtained a job as
presser at Paris Knitting Mills where he earned $6 per
hour for a 35-hour week or $210 per week. Lynch testi-
fied he was terminated from his job at Paris Knitting
Mills 3 weeks later when his boss called him into his
office and told him he could not use him anymore. On
cross-examination, counsel for Respondent attempted to
establish an inconsistency in Lynch's testimony by show-
ing that in a pretrial affidavit taken in connection with
this backpay proceeding, Lynch stated,' "[T]he owner
fired me because he said I couldn't do the work." Rather
than being inconsistent, I ford such statements entirely
consistent. It is clear to me that based on both Lynch's
testimony and his affidavit, he ws terminated because the
owner was dissatisfied with Lynch's work. In this con-
nection, Lynch testified that the Paris pressing operation
was different from that of Respondent. In any event, it is
clear, whether one relies on Lyt