Daycon Products Company, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 16, 2014

05-CA-035687 (N.L.R.B. Jun. 16, 2014)

JD–34–14
Upper Marlboro, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DAYCON PRODUCTS COMPANY, INC.
and Case Nos. 05-CA-035687
05-CA-035738
05-CA-035965
05-CA-035994
DRIVERS, CHAUFFEURS AND HELPERS
LOCAL UNION NO. 639 a/w
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Daniel M. Heltzer, Esq., and Jason N. Usher, Esq.
for the General Counsel.
Paul Rosenberg, Esq., of New York, New York, and
Erica Berencsi, Esq., of Washington, D.C.
for the Respondent.
John R. Mooney, Esq., and Lauren Powell, Esq.,
of Washington, D.C. for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
Eric M. Fine, Administrative Law Judge. This supplemental proceeding was tried before
me in Washington, D.C. on September 30, December 11, 12, and 13, 2013; and January 7, 8,
and 9, 2014, pursuant to a compliance specification and notice of hearing issued on June 28,
2013. The compliance specification, as amended, alleges the amount of $1,161,367.53 in
backpay and benefits, plus interest, due under the terms of the Board’s decision and order
dated September 21, 2011 at 357 NLRB No. 92, which was enforced by the U.S. Court of
Appeals for the D.C. Circuit on November 6, 2012, at 494 Fed. App’x 97, without the need for
JD–34–14
2
oral argument; and rehearing en banc denied January 14, 2013.1
A. Background and global issues2
1. The granting of the General Counsel’s motion in limine5
This case involved the aftermath of a strike that began on April 26, 2010, emanating
from the Respondent’s unlawful declaration of impasse and imposition of new terms and
conditions of employment on that date. The judge, in the underlying unfair labor practice
proceeding, found that on July 2, 2010, the Union made an unconditional offer to return to work 10
for the unfair labor practice strikers to report on July 6, 2010. The Board in enforcing the judge’s
decision ordered at 357 NLRB No. 92, slip op. at 2 that Respondent:
(b) Make all striking employees whole for any loss of earnings and other benefits
suffered as a result of the refusal to reinstate them on July 6, 2010, in the manner set 15
forth in the remedy section of the judge’s decision as amended in this decision.
The Board went on to state at footnote 2, that “we modify the judge’s remedy to provide that the
unfair labor practice strikers shall be made whole for their losses, if any, from July 6, 2010, to
the date they receive valid offers of reinstatement in accordance with F. W. Woolworth Co., 90 20
NLRB 289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 36
NLRB No. 8 (2010).’
The Board’s order also provided that Respondent:25
(e) On request by the Union, rescind any or all of the changes in terms and conditions of
employment for its unit employees that were unilaterally implemented on April 2010,
when the company implemented its last bargaining offer.
30
Included in what was implemented as part of Respondent’s final offer were scheduled wage
increases to be given bargaining unit employees.
In its decision at 357 NLRB No. 92, slip op. at 1 fn. 1, the Board denied Respondent’s
motion to reopen the record stating: “The Respondent failed to furnish an adequate explanation 35

1 Respondent filed a petition for certiorari of the D.C. Circuit’s decision on June 13, 2013,
based on the decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). The Charging
Party asserts in its brief that, prior to filing its request for certiorari, Respondent first requested
the D.C. Circuit to rescind its mandate here based on Noel Canning, however, that request was
denied. Respondent asserts in its brief that its request for review to the Supreme Court is
based on the argument that the Board’s decision and order in the underlying unfair labor
practice case was invalid because the Board lacked a proper quorum upon issuing the same.
Respondent states the Supreme Court has held its petition in abeyance pending its decision in
the Noel Canning case. There was no request to me to delay this proceeding pending the
outcome of the Supreme Court litigation. Moreover, the backpay period began in July 2010 and
ended in 2012. Noting the likelihood of fading memories, and that the substantive issues had
already been before the Board and the D.C. Circuit, had such a request been made, it would
have been denied.
2 Each party filed a post-hearing brief, which I have considered. The General Counsel’s
unopposed motion to correct the transcripts and exhibits attached to their brief is granted.
JD–34–14
3
why the evidence it proffers was not submitted at the hearing or why the evidence would require
a different result.” The D.C. Circuit in enforcing the Board’s order stated, “We hold that the
Board’s findings are supported by substantial evidence in the record. Daycon also raises
procedural challenges to the Board’s denial of certain motions. As to these, we hold that the
Board did not abuse its discretion.” See, 494 Fed. App’x 97.5
In Respondent’s July 19, 2013, answer to the compliance specification, Respondent
challenged the backpay period alleged in the compliance specification for the individual strikers
stating, “the following statements and correspondence from officers of the Charging Party (the
“Union”) during the strike raise significant questions regarding the duration of the Union’s 10
purported unconditional offer to return to work.” Respondent cited July 23, 2010,
correspondence from the union president to counsel for Respondent, wherein Respondent
asserts the union president demanded that Respondent restore terms and conditions prior to
the declaration of impasse. Respondent also asserts that on October 1, 2010, the union
president wrote another letter to Respondent’s counsel where it was explained that the July 23, 15
2010, letter was a request to rescind the implemented terms and reinstate the strikers. It is also
asserted in the answer that on February 10, 2013,3 that the Union’s business agent repeatedly
testified at an evidentiary hearing in support of the Board’s petition for interim relief that the
Union viewed rescission and reinstatement as inextricably tied together. Respondent cited, in
its answer, Exh. B to Respondent’s motion to reopen record to the Board in the underlying case 20
as the source of this testimony. Respondent argues in its answer here that an unconditional
offer is not unconditional when contingent upon the restoration of terms that existed under an
expired agreement. Respondent argues in its answer that the cited documents “sheds
significant doubt on the duration of the Union’s purported unconditional offer to return to work.”
25
On September 11, 2013, counsel for the General Counsel filed a motion in limine
“seeking to preclude any and all evidence or argument by Respondent regarding the Union’s
unconditional offer to return to work because this issue has already been fully litigated by
Respondent.” Respondent filed a response brief, along with attachments on September 25,
2013. Respondent argued the judge’s February 15, 2011, decision does not contemplate in any 30
respect issues regarding the tolling of the backpay period. While Respondent in its answer to
the compliance specification asserts that Union Business Agent Webber provided testimony at a
10(j) proceeding on February 13, 2013, in its response to the General Counsel’s motion in
limine Respondent asserts that the 10(j) proceeding took place in February 2011, and that
Respondent subsequently filed a motion to reopen the record with the Board so that the new 35
evidence from the 10(j) proceeding would be considered. Respondent asserts in its response
brief to the motion in limine that Respondent argued in its motion to reopen the record that the
evidence from the 10(j) proceeding was incompatible with the Board and judge’s decision that
the Union remitted an unconditional offer to return to work. Respondent states the Board
denied the motion to reopen the record and the evidence was never considered. 40
Respondent now contends in its answer to the motion in limine that the backpay period
began on July 2, 2010, when the Union submitted an unconditional offer to return to work, and
that Respondent “has no intention of using compliance to resuscitate whether the July 2nd offer
was conditional. Instead, Daycon intends to introduce evidence that the backpay period must 45
be tolled as a result of the unconditional offer converting into a conditional offer at a distinct
point in time. The ALJ never broached the latter issue.”

3 I find the referenced 10(j) proceeding actually took place in 2011, and that any testimony
pertaining to it was given in that year. I find Respondent’s reference to 2013 was a typo and
should read 2011.
JD–34–14
4
However, in Respondent’s March 11, 2011, motion to reopen the record to the Board,
which was attached as an exhibit to Respondent’s answering brief to the General Counsel’s
motion in limine, Respondent citing the very same 10(j) transcripts that it attempted to put forth
in this compliance proceeding argued that Webber’s testimony there “viewed in the context with 5
Webber’s repeated admissions that in July the Union viewed (and still does view) rescission and
reinstatement to be inextricably tied together reveals that the offer to return to work was
anything but unconditional.” Respondent then argued that the admission of the 10(j) transcript
would warrant a finding “that the Union’s offer to return to work was not unconditional.”
10
At the compliance proceeding, I granted counsel for the General Counsel’s motion in
limine. In this regard, the judge in the underlying unfair labor practice proceeding fully litigated
and found the Union’s offer to return to work was an unconditional offer. In fact the judge’s
factual findings reveal Respondent treated it as such at the time it was made and thereafter,
although it reinstated the strikers as economic rather unfair labor practice strikers in 15
contravention of the judge’s and Board’s orders bringing about this compliance proceeding. In
fact, the judge stated in the remedy section of his decision at 357 NLRB No. 92, Jd., slip op at
13 that:
Having found that the Respondent has refused to offer reinstatement to some of the 20
unfair labor practice strikers after receiving the Union’s unconditional offer to return to
work, I recommend that Respondent be order to offer reinstatement to all unfair labor
practice strikers who have not already been offered reinstatement to their former
positions of employment or, if those positions no longer exist, to substantially equivalent
positions, and to make all the unfair labor practice strikers whole for the losses that they 25
suffered, if any, from July 6, 2010 to the date of reinstatement,…
Similarly, the Board stated at 357 NLRB No. 92, fn 2 that, “the unfair labor practice strikers shall
be made whole for their losses, if any from July 6, 2010, to the date they receive valid offers of
reinstatement…”30
Thus, contrary to Respondent’s position before me, I find that the duration of the
backpay period as it relates to the Union’s unconditional offer to return to work was fully litigated
at the underlying unfair labor practice proceeding. Therefore, I rejected at the hearing,
Respondent’s attempt to reargue it again at the compliance proceeding. See, Diversified 35
Enterprises, Inc., 358 NLRB No. 48 (2012), slip op. 2 holding that:
as the matter was fully litigated and resolved in the underlying proceeding, the
Respondent is barred from raising it again in the compliance stage of this proceeding.
See, e.g., Transport Service Co., 314 NLRB 458, 459 (1994); Laborers Local 135 40
(Bechtel Corp.), 311 NLRB 617, 621 (1993), enfd. 148 LRRM 2640 (3d Cir. 1995);
Baumgardner Co., 298 NLRB 26, 27-28 (1990), enfd. mem. 972 F.2d 1332 (3d Cir.
1992).
Here, Respondent is attempting to reintroduce the same correspondence and 10(j) 45
transcript that was either available to Respondent prior to the close of the underlying unfair labor
practice proceeding, or as to the 10(j) transcript rejected by the Board, as affirmed by the court
on appeal in Respondent’s failed attempt to reopen the record. In its motion to the Board to
reopen the record, Respondent attempted to argue the evidence somehow compromised the
Union’s unconditional offer for the employees to return to work. Having failed in that argument, 50
Respondent now attempts to take a different tack relying upon the same evidence. Respondent
JD–34–14
5
now argues that the Union made an unconditional offer to return to work in July 2010, but this
evidence shows that the offer was compromised at a later date, therefore somehow tolling the
strikers’ backpay. First, Respondent neglected to make this argument based on the same
evidence to the Board and the court when it attempted to reopen the record. Second, I find it to
be nothing more than an attempt to recast its initial argument, but weakened by the fact that the 5
initial argument failed. Third, I find the judge and the Board, as enforced by the court,
specifically found the duration of the backpay period as it relates to the unconditional offer to
return to work as set forth above, and that Respondent’s effort here is an attempt to re-litigate
that finding and therefore I adhere to my decision at the hearing granting the General Counsel’s
motion in limine.10
2. The discriminatees are entitled to receive wage increases Respondent
implemented during the backpay period as part of their backpay
Respondent argues in its answer to the compliance specification that wage increases 15
described in paragraph 3(f) of the specification should not be included in the backpay
calculations. It is argued that the Board’s Order provided that the wage increases Daycon
implemented be rescinded upon request. It is contended that a wage increase was the only
term Respondent implemented upon declaring impasse. It is asserted that the Union repeatedly
demanded that Respondent rescind the implemented wage increase. It is asserted including 20
the implemented wage increase into the backpay calculations ignores the Union’s rescission
request and violates the spirit of the Board’s order. Respondent cites letters from Union officials
dated July 23 and October 1, 2010, to Respondent’s counsel Jay Krupin as the Union’s
demands in support of Respondent’s theory. These letters, sent prior to the judge’s or Board’s
order in the underlying unfair labor practice case, state that the Union demands that 25
Respondent rescind the unilateral changes it made on April 23, 2010, and restore the terms and
conditions in effect prior to Respondent’s unlawful declaration of impasse. These letters were
part of an effort by the Union then to renew bargaining with Respondent on terms that existed
prior to its unfair labor practices.
30
In effect, Respondent, by this argument, is making a continued effort to rely on the
Union’s protests of its unfair labor practices, which at the time were made to restore bargaining,
to now give Respondent a basis to retaliate against the strikers. Respondent’s actions here are
a clear attempt to contravene the Board’s Order which issued on September 21, 2011,
subsequent to the cited Union protests. The Board’s Order provides: 35
(e) On request by the Union, rescind any or all of the changes in the terms and
conditions of employment for its unit employees that were unilaterally implemented on
April 23, 2010, when the company implemented its last offer.
40
Board orders are framed this way to allow the Union the option as to whether or not to request
the rescission of unilateral changes, some of which may be beneficial to unit employees. In this
regard, giving the Union the option to leave certain benefits in tact allows it to elect to prevent
the removal of those unilateral changes from further undermining the Union in the eyes of the
employees. Respondent cannot help but be aware of this, yet it continues to make these 45
arguments relying on the Union’s pre-Board Order efforts to restore bargaining, as part of a
continued effort by Respondent to eviscerate the Board’s Order.4 Respondent’s counsel

4 Respondent’s counsel clarified at the hearing that this dispute is over annual raises of
either $.40 or $.60 an hour depending on the employee’s seniority.
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admitted there has been no request by the Union to rescind the raises since the Board Order
issued.
Moreover, Respondent goes even further here. Respondent’s counsel stated at the
hearing that the disputed raises were given by Respondent to employees who chose to work 5
during the strike, and although it contends the Union requested the raises be rescinded,
Respondent admits it never rescinded the raises for the bargaining unit as a whole. Rather,
Respondent stated, at the hearing, that while it did not honor the Union’s purported request to
rescind the raises for all bargaining unit employees, that is those who did not go on strike, that it
was within the province of Respondent to rescind the raises for those who did go on strike10
because in Respondent’s view they chose not to take by raise because they went on strike
instead of working. Respondent’s counsel stated, “Whether we decide to pay the raises,
subsequently, was up to us.” This is kind of a unique interpretation by an employer that was
found to have violated the Act by making unilateral changes to construe the Board’s Order as
allowing it to make more unilateral changes. Moreover, it is Respondent’s self-serving 15
interpretation that employees went on strike because they were receiving a raise. Rather, it is
more likely that the employees determined to go on strike because Respondent had bypassed
their collective-bargaining representative and implemented its final offer.
The Union’s purported rescission of the wage increase requests were made during 20
bargaining in generic letters requesting that Respondent rescind its unilateral changes. These
requests were made for the bargaining unit as a whole, not just for the strikers. They were
made prior to the Board Order giving the Union options in terms of the remedies it sought for
Respondent’s unfair labor practices. Respondent’s selectively attempting to construe these
requests as a means of denying strikers their raises while granting those same raises to non-25
strikers reveals that Respondent is attempting to discriminate against employees for engaging in
the union activity of striking. Moreover, Respondent knows better, for it stated in its counsel’s
January 22, 2013, position statement to the Region as follows:
Rescission of Changes: The only change implemented` was a wage increase. To our 30
knowledge, the Union has not requested that this change be rescinded.
In fact, Respondent’s counsel admitted, at the hearing, that it gave the returning strikers
the disputed wage increases when they were recalled to work. So, the Respondent, despite
admitting that the Union demanded the wage increases be rescinded for the bargaining unit as a 35
whole during bargaining, gave those same wage increases to the bargaining unit employees
who worked during the strike, and gave those wage increases to the strikers when they were
recalled to work. Respondent contends that the only category of employees who should be
denied the wage increases are the strikers who it unlawfully failed to recall on July 6, 2010, for
the duration of their backpay period. As set forth above, the Respondent admits the Union 40
never requested that Respondent rescind the wage increases following the Board’s Order, and I
find Respondent’s argument lacks merit and further that it is an attempt to retaliate against the
strikers for engaging in the strike. Accordingly, I find that the strikers were entitled to the wage
increases, as found in the compliance specification, as amended, for the duration of their
backpay periods, as well as upon their reinstatement.545

5 At the outset of the hearing, the General Counsel introduced into evidence G.C. Exh. 3,
which contained the General Counsel’s final position with respect to the amounts of backpay
owed to each of the discriminatees covered by the compliance specification. When I make
reference to the amounts owed to the discriminatees as set forth by the amended compliance
specification, I am making reference to the amounts set forth in G.C. Exh. 3.
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3. The calculation of medical benefit claims
Respondent disputes, in its answer to the compliance specification, and in its brief, the
Region’s analysis concerning medical benefits for strikers during the backpay period. 5
Respondent argues in its answer that the backpay amounts in the compliance specification fail
to deduct employee contributions toward health insurance that the applicable collective-
bargaining agreement would have required been deducted from the strikers’ paychecks had
they continued working for Respondent in lieu of striking. Respondent sets for forth the bi-
weekly contribution amounts for employees who had single or family coverage immediately prior 10
to going on strike, and asserts these amounts should be deducted from the strikers’ backpay
whether or not they made claims against Respondent for medical expenses during their
backpay period. Respondent, in its brief, asserts that during quarters when employees accrued
medical expenses and were on strike, the backpay specification offsets the contribution
amounts employees would have paid had they continued working at Respondent during that 15
period. However, the Region did not deduct the contribution amounts from backpay for strikers
totals in quarters when no medical expenses were accrued.
Respondent cites NLRB v. Rice Lake Creamery Co., 365 F.2d 888 (D.C. Cir. 1966), for
the proposition that once the Respondent is required to reimburse any of the strikers for any 20
health insurance claims that exceed their normal premiums then the backpay specification
should offset employees’ normal premiums for all strikers even in quarters when health
insurance claims were not made, including those employees who made no claims for medical
expenses for the duration of the backpay period. Respondent argues that all but three of the
strikers participated in Respondent’s health insurance plan prior to striking. Respondent argues 25
the Region, in the backpay specification, only deducted employee plan contribution costs in
quarters when the claimants incurred medical expenses, but failed to deduct the plan costs in
quarters when they did not. Respondent argues this turns the concept of insurance upside
down.
30
In Rice Lake Creamery, 151 NLRB 1113, 1130-1131 (1965), as per the Board’s decision
in enforcing the trial examiner’s determination, medical claims of two employees were
disallowed, because their medical claims were less than what they would have paid to maintain
insurance coverage absent the discrimination, and medical claims of another employee were
reduced by premiums that would have been paid by that employee up to the point of the 35
medical expense loss. The trial examiner calculated the employee insurance premiums for 11
months prior to the time the employee accrued the medical expenses, and deducted that
amount from the employee’s medical claim. The trial examiner, as approved by the Board,
rejected the respondent’s claims that once one employee’s medical claim was approved that the
monthly premium should be deducted from the gross backpay computation for all 40
discriminatees, including those who made no claims for medical claims reimbursement. In
rejecting this claim for the remaining discriminatees, the trial examiner stated:
In its brief, the Respondent contends for the first time that if these claims for medical
and hospital expenses are allowed on the theory that the discriminatees “were covered 45
by insurance protection” during the backpay period, the “Respondent is entitled to be
reimbursed for the insurance risk to which it was exposed, and a fair value of such risk is
the employee contribution that would have been made had the employees been actually
covered.” Accordingly, contends the Respondent, “the amount of $7.24 per month
should be deducted from the gross backpay computation of all the strikers, including 50
those not making any claim for medical expense reimbursement.” In respect to this
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contention, the Respondent again misses the point of the Board's Order. Respondent is
required to reimburse Delore King for his medical and hospital expenses, not because
the Respondent furnished him with “insurance protection,” but because that was a loss
which he suffered as a result of the Respondent's discrimination for which he must be
made whole. The claims of Madaus and Shervey were disallowed, and that of King was 5
reduced, not because Respondent was exposed to an “insurance risk” and was
therefore entitled to premiums for furnishing insurance coverage, but because to the
extent that these discriminatees would have paid such premiums if reinstated when they
should have been, they had not suffered the amount of losses claimed by them. The
same rationale applies to the Respondent's contention in respect to the remaining 10
discriminatees. The Respondent has not maintained their insurance, had incurred no
expense for insurance coverage, and has been subjected to no claim on their behalf for
hospital or medical expense. Under these circumstances, to permit the Respondent to
benefit, although not an insurance carrier, by a setoff of premiums for insurance which
was not provided, would produce the obviously absurd and inequitable result of allowing 15
the tort feasor to benefit from his tort. Accordingly, the Respondent's contention, that
backpay for the discriminatees should be reduced by the amount of the premiums which
they would have paid for hospital and medical insurance if employed, is rejected.
The trial examiner further found that, even assuming arguendo that the respondent’s contention 20
had merit that:
to prove that it was entitled to the requested offset, the Respondent was required to
establish that no other like or substitute insurance was obtained and/or paid for during
the backpay period by the discriminatees, and that it alone was responsible for the 25
alleged “insurance risk” to which it was subject because of its act of discrimination. The
record is barren of any such proof. There is no evidence that the discriminatees did not
procure substitute hospital and medical insurance through other sources during the
backpay period.
30
However, in NLRB v. Rice Lake Creamery Co., supra at 893, the court disagreed with this
aspect of the Board’s decision stating:
The Company contends that the Board has unreasonably allocated all the risk of
employee medical expenses to it but has allowed it to deduct premiums only as a set-off 35
to actual claims. We agree that this is unreasonable. The Board has constituted the
Company the insurer without allowing it to deduct from an employee's salary the
equivalent of premium payments unless the employee makes a claim for medical
expenses, and only to the extent of the claim. Insurance by its nature is the allocation of
risk to minimize the burden on the individual. If the men are made whole as if uninsured 40
they pay no premiums but may make no claim for medical expenses. However, if they
are insured so they can make a claim for medical expenses, they should pay premiums
whether or not such expenses are actually incurred; otherwise they would be unjustly
enriched. If the Company is to be constituted an insurer it should be allowed to deduct
the premiums. It is only then that the employees are ‘made whole,’ that is, put in the 45
same situation as if they had not been deprived of their employment by an unfair labor
practice. The Company accordingly should be allowed to offset the amount of the
premiums against amounts due to all discriminatees if it is required to pay the claim of
an employee to the extent his expenses exceeded his premiums.
50
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In Sam Tanksley Trucking, 210 NLRB 656 (1974), in computing backpay for
discriminatee Terry, the judge, with Board approval, cited the court’s decision in NLRB v. Rice
Lake Creamery Co., supra. There, in calculating Terry’s reimbursement for medical expenses,
the judge included Terry’s premium cost for insurance for his entire backpay period, not just the
quarters where Terry or his family incurred medical expenses. However, neither the judge nor 5
the Board, required other employees who did not file a claim for medical benefits to deduct the
cost of medical premiums from their backpay amount.
In Cliffstar Transp. Co. 311 NLRB 152, 168 (1993), the following was stated by the judge
with Board approval:10
In Rice Lake Creamery, supra, 151 NLRB at 1130-1131, (a) medical claims of two
employees were simply disallowed, because their hospital and medical claims were less
than what they would have paid to maintain insurance coverage absent the
discrimination, and (b) medical claims of another employee were reduced by premiums 15
that would have been paid up to point the (seemingly, amount) of medical expense loss.
It was also noted, albeit arising in other context, the Board has held benefits received by
discriminatees through the substitute insurance is proper offset on a claim against an
employer for the same losses.
However, the employer there was not allowed by the Board to otherwise generally 20
recover on the employer's claimed exposure to a general insurance risk for all
employees, because discriminatees were deemed only being made whole for their
(individual) loss suffered as a result of the discrimination practiced against them. Thus,
a general setoff of the insurance premiums that would have been paid by all
discriminatees was not allowed where the employer had provided no insurance 25
generally. Although the court had there disagreed with the Board on this latter point,
holding the company should be allowed to offset the amounts due to all discriminatees, if
it is required to pay the claim of an employee to the extent his expenses exceed his
premiums, NLRB v. Rice Lake Creamery Co., supra, 365 F.2d at 893, the Board has
continued to approve only a make-whole addressment of medical expenses minus 30
premium payments, on an individual medical loss basis, e.g., Sam Tanksley Trucking,
supra, 210 NLRB at 660-662.
Thus, in Cliffstar, the Board continued its policy of not allowing a general set off to a
respondent employer of medical premiums for all discriminatees, but only allows a premium set 35
off for those who incurred medical claims, or losses in obtaining other insurance during the
backpay period. With due deference, to the court’s pronouncements in NLRB v. Rice Lake
Creamery, supra., I would recommend that the Board continue to adhere to this policy. It is
fundamental in backpay proceedings that any uncertainties are to resolved in favor of the
injured party, and his dependent against the wrong doer. See, Cliffstar Transportation Co.,40
supra., at 166; and Iron Workers Local 15, 298 NLRB 455 (1990). Here, Respondent created
the situation at hand by its unfair labor practices prompting the strike and by failing to recall all
striking employees immediately upon the Union’s unconditional offer for their return to work.
Upon the Union’s unconditional offer to return to work, there is no evidence that for those it did
not immediately recall, that Respondent notified them that they could reinstate their medical 45
insurance at that time by paying insurance premiums. Moreover, these employees were not
offered reinstatement so, even if they had been so notified, there was no basis to conclude that
they could afford the insurance premiums that they had previously paid while working for
Respondent. Thus, Respondent created a situation where the employees had lost their prior
insurance coverage, had lost their prior income, and would likely have to forgo medical 50
treatment during the backpay period that would have been available to them had Respondent
JD–34–14
10
offered them immediate reinstatement. To penalize the whole group for insurance coverage
that they were not given, because some found the means, or had sufficient need to obtain
medical treatment regardless of expense during the backpay period, serves to grant a bonus to
Respondent at the expense of the class of discriminatees, who as a whole were denied the use
of these benefits during the backpay period.5
In Rice Lake Creamery, supra., in calculating the amount of premiums to be deducted
from a discriminatee’s medical expenses, the trial examiner included all premiums that would
have been paid through the date of the claimed medical expense including those premiums that
would have been paid prior to the quarter in which the medical expense took place. In Sam 10
Tanksley Trucking, supra., in calculating Terry’s reimbursement for medical expenses, the judge
included Terry’s premium cost for insurance for his entire backpay period, not just the quarters
where Terry or his family incurred medical expenses, thus the deductions for premiums included
a broader period than just the quarters leading up to the incurred medical expenses. In the
instant case, the compliance officer in her calculations used a more limited period for premium 15
offset. In this regard, the compliance officer only deducted premiums for the quarter in which
the medical expenses occurred. The Respondent did not challenge this aspect of the
compliance officer’s calculation. Rather, Respondent made the legal argument that premiums
for all strikers should have been deducted for the length of the backpay period, regardless of
whether they made a claim for medical benefits, once one of their fellow strikers has made such 20
a claim. I have rejected Respondent’s theory as not consonant with Board law, with which I am
bound.
Moreover, I do not find the compliance officer’s approach as unreasonable given the
circumstances. See, Minette Mills, Inc., 316 NLRB 1009, 1010 (1995), and cases cited therein 25
for the proposition concerning gross backpay that “the General Counsel has discretion in
selecting a formula which will closely approximate the amount due. The Government need not
find the exact amount due nor adopt a different and equally valid formula which may yield a
somewhat different result.” While the current calculation involves medical insurance set offs I
find that similar principles of discretion should be applied. In this regard, certain employees 30
claimed medical expenses after the fact during particular quarters of their backpay period. For
times outside those quarters, as was for their fellow strikers, by their delay in recall Respondent
had removed access to their medical insurance and they would have had no reason to realize
they would have been reimbursed for medical expenses during those times. In fact, had they
been timely recalled, and knowingly put back on Respondent’s medical plan they may have 35
availed themselves to additional medical care under those benefits but for Respondent’s unfair
labor practices. Thus, I do not find limiting premium deductions to those quarters for which a
particular employee claimed a medical reimbursement and only for that employee as
unreasonable, as any ambiguity as to what would have transpired in terms of an individual’s
insurance usage should be shifted to Respondent which created it by its unlawful actions. This 40
also comports with traditional Board procedures of computing backpay, interim earnings, and
expenses by quarter.
B. The issues as to the individual strikers search for work
45
1. Stipulations
The parties reached a stipulation at the hearing via Jt. Exh. 1 that certain named
individuals engaged in an adequate search for work during the entirety of their backpay periods,
as defined in GC Exh. 3, and that the sole issues regarding those named individuals concerned 50
matters set forth in paragraphs 3(b) and 3(d) of Respondent’s amended answer filed on
JD–34–14
11
September 25, 2013. The issues raised in the listed paragraphs of Respondent’s amended
answer relate to wage increases implemented during the respective backpay periods and the
payment of health insurance premiums by strikers during their backpay period. As set forth
above, I have found in favor of the General Counsel’s position concerning these defenses raised
by Respondent. Accordingly, pursuant to the parties stipulation at the hearing, I find that the 5
backpay due for strikers Baker, Bratcher, Boone, Brown, Burton, Daniels, Day, Geris, Higgs,
Koger, Limerick, Mackall, Merritt, Phoenix, Posey, Redmond, Robinson, Scurry, Taylor, White,
and Windsor is set forth in the compliance specification, as amended, and stated in GC Exh. 3.6
2. Legal principles10
The remaining issues in this case largely involve the bonafides of the job search of a
discrete number of discriminatees. As such, the following cases provide a useful frame of
reference. In St. George Warehouse, 351 NLRB 961, 961 (2007), the Board majority stated:
15
The issue in this backpay proceeding is which party bears the burden of production
when a respondent contends that a discriminatee has failed to mitigate damages by
making a reasonable effort to find work.[FN3] It is well settled that backpay liability may be
mitigated if the discriminatee neglected to make reasonable efforts to find interim
work.[FN4] “The defense of willful loss of earnings is an affirmative defense, and the 20
employer bears the burden of proof.”[FN5]
We reaffirm that a respondent has the burden of persuasion as to the contention that
a discriminatee has failed to make a reasonable search for work. However, we reach a
different conclusion with respect to a part of the burden of going forward with evidence.
The contention that a discriminatee has failed to make a reasonable search for work 25

6 There were 33 discriminatees listed in the initial compliance specification. However, the
specification as amended at the hearing excluded Ellis Parran because the Region estimated he
was owed no backpay. The parties stipulated at the hearing that the dates of the backpay
period in terms of when a striker was reinstated or offered reinstatement are correct as listed in
paragraph 1 of the compliance specification, and/or as amended for certain named strikers in
G.C. Exh. 23 (a) with the addition of McFadden’s end date being adjusted to February 27, 2012.
In the case of striker Bridges the end date listed reflects his resignation from Respondent’s
employ. In the case of striker Higgs the end date listed is the result of a determination that he
was no longer able to work. The parties also stipulated that the regular hours and overtime
hours calculated by the compliance officer for the strikers gross backpay were correct. Since I
have concluded the strikers were entitled to the disputed wage increases I have concluded,
unless otherwise stated, that the compliance officer’s gross backpay calculations for each of the
strikers is correct. Respondent stated at the hearing it was also not disputing the claimed
medical expenses listed in the amended compliance specification, aside from its argument that
gross backpay should be reduced based upon certain medical insurance premiums that should
be attributed to the pool of strikers. As set forth above, I have rejected this argument and based
on the stipulations at the hearing, I have concluded that the medical expenses as set forth in the
amended compliance specification and listed in GC Exh. 3 are appropriate and correct.
Respondent also stipulated to the accuracy of the interims earnings calculated by the Region’s
compliance officer except for that relating to strikers: Bratcher, Higgs, Holder, Mackall, and
Mendez. However, by subsequently agreeing to Jt. Exh. 1, as set forth above, which was
inclusive of strikers Bratcher, Higgs, and Mackall, Respondent has removed those employees’
interim earnings from dispute. Respondent also stipulated that the compliance officer’s
calculations concerning 401(k) contributions as reflected in the amended compliance
specification and set forth in GC Exh. 3 are accurate.
JD–34–14
12
generally has two elements: (1) there were substantially equivalent jobs within the
relevant geographic area, and (2) the discriminatee unreasonably failed to apply for
these jobs. Current Board law places on the respondent-employer the burden of
production or going forward with evidence as to both elements of the defense. As to the
first element, we reaffirm that the respondent-employer has the burden of going forward 5
with the evidence. However, as to the second element, the burden of going forward with
the evidence is properly on the discriminatee and the General Counsel who advocates
on his behalf to show that the discriminatee took reasonable steps to seek those jobs.
They are in the best position to know of the discriminatee's search or his reasons for not
searching. Thus, following the principle that the burden of going forward should be 10
placed on the party who is the more likely repository of the evidence, we place this
burden on the discriminatee and the General Counsel.
In the instant case, the Respondent has met its burden as to the first element of the
defense by presenting sufficient evidence of comparable employment opportunities in
the relevant job market. The discriminatees and General Counsel have not met the 15
burden as to the second element because no evidence was presented concerning the
nature and extent of the discriminatees' job searches. Because existing Board law did
not impose such an obligation on the General Counsel, we remand the case to the judge
to reopen the record and permit the parties to produce evidence consistent with this
decision.20
The Board majority went on to state:
In support of its case, the Respondent called Donna Flannery, a vocational
employability specialist. Flannery conducted a labor market study in the New Jersey 25
area to determine the availability of jobs for warehousemen, forklift operators, and
similar occupations during the backpay period. Flannery examined published sources
such as the Dictionary of Occupational Titles, Occupational Employment Statistics,
Projections 2008, and New Jersey Employment and Population in the 21st Century, as
well as want ads in local newspapers. She also performed an analysis of the 30
transferability of job skills. Flannery concluded that a sufficient number of comparable
jobs were advertised as open and available during the backpay period for warehouse
workers and forklift operators. Flannery made the following observation:
It is also my opinion, based upon the information presented, that neither of these
two job seekers made a diligent effort to seek and obtain new employment. It 35
appears, from the information presented, that job efforts did not even consist of a
minimal amount of effort to locate employment. Minimally, the advertisements
could have been reviewed for openings. There were plenty of resources
available, at no cost, such as assistance in reviewing/composing cover letters
and resumes, and they could have sought openings through internet job sites, 40
explored industrial directories for companies with suitable openings, researched
magazines or publications in the warehouse industry for leads, and networked
through job fairs and open houses.
Flannery had not interviewed Tharp or Sides, and neither discriminatee was present at
the hearing. No one who had any knowledge of their actual efforts to find employment 45
testified. The General Counsel called no witnesses and relied solely on the amended
compliance specification.[FN8] Id. at 962
***
The Board's approach, set forth above, has not been universally accepted.[FN11]
Today, we modify the principles governing the issue of willful loss of earnings in one 50
respect only. When a respondent raises a job search defense to its backpay liability and
JD–34–14
13
produces evidence that there were substantially equivalent jobs in the relevant
geographic area available for the discriminatee during the backpay period, we will place
on the General Counsel the burden of producing evidence concerning the
discriminatee's job search. Id at 964.
***5
As noted, we make no change in the ultimate burden of persuasion on the issue of a
discriminatee's failure to mitigate; the burden remains on the respondent to prove that
the discriminatee did not mitigate his damages “by using reasonable diligence in seeking
alternate employment.” Mastro Plastics, supra at 175.[FN15] Id. at 964.
10
St. George Warehouse, supra was remanded by the Board to another judge who issued
a second supplemental decision which was affirmed by the Board and eventually enforced by
the third circuit. See, St. George Warehouse, 353 NLRB 497 (2008).7 In his opinion in the
second supplemental decision, the judge cited certain principles, in awarding full backpay to
both discriminatees, stating:15
To be entitled to backpay, a discriminatee must make reasonable efforts to secure
interim employment. The discriminatee must put forth an honest, good-faith effort to find
interim work; the law does not require that the search be successful. Doubts,
uncertainties, or ambiguities are resolved against the wrongdoing respondent. 20
Midwestern Personnel Services, 346 NLRB 624, 625 (2006) (citations omitted).
Even though a discriminatee must attempt to mitigate her loss of income, the
discriminatee is held only to a reasonable rather than to the highest standard of
diligence. Minette Mills, Inc., 316 NLRB 1009, 1010 (1995). The sufficiency of a
discriminatee's efforts to mitigate backpay are determined with respect to the backpay 25
period as a whole and not based on isolated portions of the backpay period. Grosvenor
Resort, 350 NLRB No. 86, slip op. at 2 (2007). Id. at 501.
***
The Board has stated that “registration with a state unemployment office is prima
facie evidence of a reasonable search for employment.” Avery Heights, 349 NLRB No. 30
8(1), slip op. at 6 (2007);8 Bauer Group, 337 NLRB 395, 399 (2002);9 Cassis
Management Corp., 336 NLRB 961, 968 (2001); Allegheny Graphics, 320 NLRB 1141,
1145 (1996). 10Accordingly, Sides' registration with the New Jersey unemployment office
without more establishes that he engaged in a reasonable search for work. Id. at 501.

7 The Board’s initial second supplemental decision was reversed by the court due to a lack
of a quorum at the Board, but when a quorum was achieved at the Board it approved its initial
second supplemental decision which was enforced. See, St. George Warehouse, 355 NLRB
474 (2010), enfd 645 F.3d 666 (3d Cir. 2011).
8 A review of the decision in Avery Heights, 349 NLRB 829 (2007), reveals that some of the
discriminatees merely kept records for their search to satisfy the demands of the state
unemployment agency, and there was no evidence in that decision that the state agency
otherwise aided those employees in their search for work.
9 In Bauer Group, supra at 399, the judge specifically noted that discriminatee Fulger
registered with the Florida Unemployment Commission and she had to submit weekly work
search reports to that government agency. The judge with Board approval concluded that
registration is prima face evidence of a reasonable search for employment citing Allegheny
Graphics, 320 NLRB 1141, 1145 (1996), enfd. 113 F.3d 845 (8th Cir. 1997).
10 See also, Plumbers Local 305 (Stone & Webster), 297 NLRB 57, 61 (1989) holding the
meeting of the requirements to remain eligible for unemployment benefits is sufficient to remain
eligible for backpay under the Act.; and Newport News Shipbuilding, 278 NLRB 1030 (1986),
JD–34–14
14
***
The fact that he limited his search to places he could travel to by public transportation
or by foot is reasonable and understandable. A discriminatee cannot be required to
purchase or lease a car or take a taxi if he is unable to afford those means of
transportation. The Board has recognized that the “individual circumstances” of the 5
discriminatee must be taken into consideration in determining whether he has exercised
reasonable diligence when searching for interim work. Such factors include “limited
transportation.” Grosvenor Resort, 350 NLRB No. 6, slip op. at 3 (2007) and “personal
limitations.” Mastro Plastics Corp., 136 NLRB 1342, 1359 (1962). Further, Sides
traveled by public transportation to work with the Respondent so his search for jobs with 10
that limitation is consistent with his obligation to obtain comparable work. Id at 501-502
Sides also asked his friends for sources of work and in fact obtained the two
temporary agency jobs, Labor Ready and J & J from his friends' suggestions. The fact
that he accepted work at these agencies, although he would have preferred full time
work demonstrates that he conscientiously sought to work. It is also significant to note 15
that he sought permanent employment and continued to seek such employment even
after he was hired by the temporary agencies. Allegheny, Graphics, 320 NLRB 1141,
1145 (1996). Id at 502.
The judge also stated that he considered the testimony of Respondent’s expert witness, 20
but did not find it persuasive. In this regard the judge stated:
The Board has generally given little weight to such evidence. “It avails a Respondent
nothing to introduce a batch of newspaper ads… Such advertisements of jobs in
newspapers generally are irrelevant, and are so here, because the evidence does not 25
show, for example, whether the jobs would have been available had [the discriminatees
applied, nor whether [the discriminatees] would have been hired had [they] applied.”
Bauer Group, 337 NLRB 395, 398 (2002); Groves Truck & Trailer, 294 NLRB 1, 5
(1989).11 Id. at 503-504
Flannery did not speak with Sides or Tharp and did not contact any of the employers 30
who advertised for help. In Parts Depot, Inc., 348 NLRB No. 9, slip op. at 1, fn. 6 (2006),
the Board stated that, on “numerous occasions [the Board] has refused to rely on expert
testimony, similar to that offered here, where the expert is only ‘referring to the
probability of job opportunities, not to a given individual's situation’ and he ‘forms his
opinions' about the claimant without having any personal knowledge of the latter's 35
personal circumstances.” See United States Can Co., 328 NLRB 334, 343 (1999); Food
& Commercial Workers Local 1357, 301 NLRB 617, 621 (1991). Id. at 504.12
In Midwestern Personnel Services, Inc., 346 NLRB 624, 625 (2006), enfd. 508 F.3d 418
(7th Cir. 2007) it was stated:40

holding that registering with a government employment office is prima facie evidence of a
reasonable search for employment.
11 In Airport Services Lines, 231 NLRB 1272, 1273 (1977), enfd. 589 F. 2d 1115 (D.C. Cir.
1978), the Board stated,“[T]he newspaper want ads did not establish that the jobs would have
been available if [discriminatee] applied or that [the discriminatee] would have been selected for
any available positions.” See also, Florence Printing Co., 158 NLRB 775, 777 (1966), enfd. 376
F.2d 216 (4th Cir. 1967), cert. den. 389 U.S. 840 (1967).
12 See also Murbro Parking, Inc., 276 NLRB 52, 57 (1985); and Delta Data Systems Corp.,
293 NLRB 736, 739 (1989).
JD–34–14
15
In support of its contention that certain discriminatees failed to mitigate their
backpay, the Respondent called an expert witness, Dr. Malcolm Cohen, to testify about
the conditions of the job market at the time in question. The Respondent also submitted
a report by Dr. Cohen that showed the number of trucking positions available annually in
Indiana and Kentucky. The Respondent and our dissenting colleague assert that this 5
evidence indicates that certain of the discriminatees failed to make a reasonable search
for interim employment. In agreement with the judge, we find that Dr. Cohen's report
and testimony were insufficient to meet the Respondent's burden of demonstrating that
the discriminatees failed to seek interim employment with reasonable diligence.
Dr. Cohen reviewed the “help wanted” section of four local newspapers, picked 10
one day from each quarter during the backpay period, and counted the number of
advertisements he deemed applicable to the discriminatees. However, he did not
include data as to the pool of applicants, nor analysis regarding the ability of the
discriminatees to secure the trucking positions he identified. In addition, Dr. Cohen's
findings focused on the number of trucking positions statewide, rather than in the 15
geographic area in which the discriminatees lived. With regard to the “help wanted” ads,
Dr. Cohen made no mention of whether the jobs would be comparable to the wages and
hours of the discriminatees' former positions. The Board has previously found that the
existence of “help wanted” advertisements does not serve to meet the Respondent's
burden of proving that the discriminatees failed to search for work with reasonable 20
diligence. Acme Bus Corp., 326 NLRB 1447, 1448-1449 (1998); Coronet Foods, Inc.,
322 NLRB 837, 842 (1997), enfd. in relevant part 158 F.3d 782 (4th Cir. 1998). For
these reasons, we find that this evidence has little probative value.
In United States Can Co., 328 NLRB 334, 337 (1999), enfd. 254 F.3d 626 (7th Cir. 25
2001), it was stated that:
It should be noted, however, that a backpay claimant is not held to the highest standard
of diligence in seeking interim employment, but is only required to have made
reasonable exertions. Thus, an employer does not satisfy its burden showing that no 30
mitigation took place because the claimant was unsuccessful in obtaining interim
employment, by showing an absence of a job application by the claimant during a
particular quarter or quarters of a backpay period, or by showing the claimant failed to
follow certain practices in his job search, e.g., reading and responding to job
advertisements in newspapers. S.E. Nichols of Ohio, 258 NLRB 1, 11 (1984). Finally, 35
any uncertainties or ambiguities must be resolved against the wrongdoer whose conduct
made such doubts possible. Teamsters Local 469 (Coastal Tank Lines), 323 NLRB No.
23 (1997).
In Kawasaki Motors, 282 NLRB 159, 160 (1986), enfd. 850 F.2d 524 (9th Cir. 1988), the 40
judge, with Board approval, took into account the stigma of an employee's discriminatory
discharge from the respondent employer in evaluating the bonafides of his job search. It was
stated in JI Shiang, Inc., 357 NLRB No. 108, slip op. 2, “When a respondent argues that a
discriminatee has willfully avoided or failed to retain substantially equivalent work, it must
adduce evidence demonstrating that the discriminatee voluntarily quit interim employment or 45
lost interim work through deliberate or gross misconduct. Baker Electrics, 351 NLRB 515, 565
(2007), citing Minette Mills, 316 NLRB 1009, 1010 (1995); Basin Frozen Foods, 320 NLRB
1072, 1077 (1996).” In Newport News Shipbuilding, 278 NLRB 1030, 1030 fn. 1(1986) the
Board stated:
50
JD–34–14
16
We adopt the judge's finding that claimant Price's backpay should not be reduced based
on her discharge for cause from various interim employment. In so doing, we do not
agree with the judge's rationale to the extent that he finds that a discharge for cause
from interim employment cannot be a basis for reducing backpay. We conclude,
however, that the Respondent has not established on the facts here that the conduct for 5
which Price was discharged from interim employment was such willful or gross
misconduct as to constitute a willful loss of earnings. See generally Sylvan Manor Health
Care Center, 270 NLRB 72, 75 (1984), and cases cited therein.
In Amshu Associates, Inc., 234 NLRB 791, 794 (1978), it was held that a discriminatee 10
made reasonably diligent search to secure work including reading want ads and responding by
telephone, consulting superintendents, friends, relatives, and the local union, registering with
state unemployment office, and making other inquiries. The Board has held that, in seeking
interim employment, a discriminatee need only follow his regular method for obtaining work. See
Tualatin Electric, Inc., 331 NLRB 36 (2000), enfd. 253 F.3d 714 (D.C. Cir. 2001) (discriminatees 15
satisfied their obligation to mitigate when they followed their normal pattern of seeking
employment through the union's hiring hall). Long periods of unemployment or
underemployment do not necessarily equate to a showing of lack of reasonable diligence.
McKenzie Engineering, 336 NLRB 336, 344 (2001), enfd. 373 F.3d 888 (8th Cir. 2004).
20
3. The testimony of the Region’s compliance officer
Heather Keough has been the compliance officer for Region 5 since December 2011,
and she served as the acting compliance officer for six months prior to that time. Keough
performed the calculations and drafted the compliance specification in the current case. Keough 25
testified that: As part of the Region’s compliance investigation, the Region sent questionnaires
to each of the discriminatees, the initial one being sent in March or April 2013. The Region sent
out the questionnaires at that time because they had received a court judgment enforcing the
Board’s Order. The mailing included a cover letter explaining the contents of the packet which
included questionnaires for each quarter of the backpay period. Keough testified the Region did 30
not follow its regular procedures in sending the questionnaires out to the discriminatees in this
case. She testified they are ordinarily sent to the discriminatees on a quarterly basis once the
complaint issues. Keough could not explain the delay of the mailing in this case.
Keough identified a sample questionnaire that was sent to the discriminatees which 35
showed that, among other information sought, the discriminatees were asked to report to the
Region their search for work efforts per quarter for each quarter of the backpay period. Keough
testified, based on her experience as a compliance officer, the Region’s questionnaire can
confuse certain recipients, which in this case resulted in her sending duplicate questionnaires to
some of the discriminatees if their questionnaire came back with portions blank, or if she did not 40
understand the response. She testified she would conduct a brief phone interview with the
discriminatee if their initial questionnaire raised questions and in some cases send them another
questionnaire.
Keough testified she sent the packet of questionnaires for the multiple quarters of the 45
backpay period all at once to each of the discriminatees in one mailing. Keough testified
about a dozen of the discriminatees checked the strike duty box in the unavailable to work
section of the questionnaire. She testified she phoned those individuals to verify whether
they were available for work while performing strike duties; or whether they meant they were
unavailable for work that quarter because of the strike duties. Keough testified she learned 50
that some of them checked the strike duty box as being unavailable for work during a
JD–34–14
17
particular quarter, but were actually searching for work. She testified she concluded that
when the strike duty box was checked, it did not mean the individuals were unavailable for
work so she did not reduce or toll their gross back pay for those quarters. Keough testified
the backpay period began on July 6, 2010, for all discriminatees because that was the first
day of missed employment as a result of the refusal to reinstate. She testified the length of 5
the backpay period varied for the discriminatees depending on their recall dates by
Respondent, or when they declined reinstatement or resigned their position at Respondent.
Keough testified that in addition to the questionnaires and other records provided to
the Region by the discriminatees such as notes, tax records, W-2’s, and paystubs, she 10
obtained earning records from the Social Security Administration for certain employees, as
well as employment records from the Maryland Department of Labor, Licensing, and
Regulation ( D L L R ) as aides in calculating interim earnings. She testified she subtracted
strike benefits the employees received from the Union on a quarterly basis from the
employees’ gross backpay in a manner akin to reductions for interim earnings. Keough 15
testified the reports from the Maryland DLLR showed the period of time during the backpay
period when the discriminatees received unemployment. Keough testified the Region relied
on the receipt of unemployment benefits as their primary consideration in determining that
the discriminatees had performed a reasonable search for work at least for the periods that
they received the benefits. Keough testified it was her understanding that in order to receive 20
Maryland unemployment benefits; a claimant has to be available for work and searching for
work for each week that they receive benefits. She testified that, at the time of her
testimony, she thought a claimant had to call in weekly to the Maryland DLLR to certify that
they met those requirements. She testified that she thought that, during the backpay period
for the discriminatees, they had to call in bi-weekly to certify that they were available for work 25
and searching for work.13
Keough testified when the Region sends the questionnaires there is a deadline provided
in the cover letter for their return. She testified sometimes in an effort to meet the deadline, a
discriminatee will send the questionnaire back incomplete in terms of their search for 30
employment in that they will not write anything for fear of writing something that may be
inaccurate. She testified once the discriminatee is informed the Region needs the information to
the best of their recollection then the Region will receive additional information.
Respondent stipulated that the Region’s interim earnings information was accurate for 35
the strikers, except for Trevor Holder and Adalberto Mendez. Keough testified Holder did not
have any earnings from interim employment, during his backpay period, but that he did receive
striker benefits from the Union. Keough testified she reached that conclusion based on Holder’s
representations to the Region that he did not receive any interim earnings, which was confirmed
by reports received from the Maryland DLLR. Keough testified Mendez did not have any 40
earnings from interim employment until the fourth quarter of 2012. So for nearly all of the
backpay period, the Region subtracted only the striker benefits he received. In the fourth
quarter of 2012, he reported that he worked two exhibition shows, and those earnings were also
reported on the Maryland DLLR report. I have found Keough’s calculations for Holder and
Mendez’ interim earnings to be correct. 45

13 The Union in its brief cites Md. Code Ann., Lab & Empl. Sec. 8-903 requiring an
unemployment claimant in order to be eligible for benefits to be able to work, available to work,
and actively seeking work. The Union cites the Maryland DLLR Division of Unemployment
Insurance Website as instructing claimants that they must make at least two job contacts per
week, and include in their records certain information documenting their job search.
JD–34–14
18
4. The testimony of Respondent’s witnesses and other witnesses concerning the
availability of interim employment during the backpay period
John Duberg was called as a witness by Respondent. He testified he is a senior5
consultant with Sage Policy Group, Incorporated in Baltimore, Maryland. He testified the
majority of the work he has done in the past 30 years involved the quantitative analyses of labor
markets. He testified he is not a vocational expert that he considered himself to be a
quantitative analyst. Duberg testified that he is an economist, but he did not have a degree in
economics. Rather he has a degree in political science and a master’s degree in urban regional 10
planning. Duberg testified that, part of his job, is to study labor data in industries. Duberg
testified he was present to testify about job openings in the period of time between 2010 and
2012. During the course of his testimony, Respondent never sought to qualify Duberg as an
expert witness. Duberg also testified he had no contact with any of the workers at Respondent,
nor did he look at the resume of any of the discriminatees. He did not know their ages, or their 15
prior employment history. He testified he had no personal knowledge of the discriminatees’ life
circumstances. For the reasons set forth below, I did not find Duberg’s testimony to be very
helpful concerning the outcome of this case.
Respondent offered a chart Duberg had created entitled, “Employment Forecast by 20
Sector: Washington DC Metropolitan Area” for the years 2010 to 2012. Duberg testified it was a
forecast or estimate of net new jobs that were created in the Washington, D.C. metropolitan
area in all non-farm sectors of the economy. The chart was extrapolated from a forecast for the
period of 2010 to 2030 contained in a document entitled “Housing the Region’s Future
Workforce.” Thus, Duberg merely took the numbers from a chart contained in the underlying 25
document, and by simple division used that to predict how many jobs were in various categories
some of which he testified related to the discriminatees’ background for the time period of 2010
to 2012. Duberg’s initial calculations were off for this and a number of other charts he prepared
because he calculated the wrong number of total years in the underlying chart, using 20 years
instead of a 21 years for the denominator in making his estimate. Moreover, I do not find simple 30
division pertaining to a long term prediction of jobs over a 21 year span would accurately reflect
the individual nuances of area growth for any particularly year. For example, Duberg testified
the country was in a severe recession from 2007 to 2009. He testified after the recession ended
unemployment has only come down slowly over time.14 Thus, while a prediction of the future as
to what will take place over the course of the next 21 years may have its usefulness for long 35
term housing planning, I do not find it can said to accurately depict job vacancies for any given
year or years during that 21 year period. Finally, the Washington D.C. Metropolitan area in the
chart, as demonstrated by the underlying study from which it was taken, covered the District of
Columbia, five counties in Maryland including Frederick, 10 jurisdictions in northern Virginia and
even one in West Virginia. Duberg testified that northern Virginia is a particularly dynamic area. 40
Thus, even if I were to place reliance on Duberg’s chart, which I do not, there is no way to tell
from the number of jobs it shows the number that the discriminatees would have been qualified
for, or even more tellingly would have been within their commuting distance.

14 In this regard, the General Counsel introduced data from U.S. Bureau of Labor Statistics
showing unemployment in the District of Columbia in July 2010 at 10.3 percent; in July 2011 it
was at 10.7 percent; in June 2012 it was at 9.2 percent; and in November 2012, it was at 8.2
percent. In Prince George’s County where Respondent is located in July 2010 unemployment
was at 8 percent; July 2011 it was at 7.6 percent; in July 2012 it was at 7.2 percent; and in
November 2012 it was at 6.6 percent.
JD–34–14
19
Duberg also identified a chart entitled, “Openings for Selected Transportation and
Material Moving Occupations in Maryland: 2010-2012.” He testified the chart represents data
from the Maryland DLLR on certain occupations within the transportation and material
moving industries. Duberg testified the occupational titles listed in the chart were consistent
with the kinds of work that was being handled by Respondent. The chart contained numbers 5
of net new jobs, which Duberg testified were jobs that were created that previously did not
exist. There is another column in the chart entitled openings which the chart describes as
vacancies due to death, retirement and someone leaving the state. Duberg testified the
source for the chart was based on projections covering the years 2010 to 2020. He testified this
is the best forecast for occupations in Maryland. It's provided by the Maryland DLLR, which 10
works with the U.S. Department of Labor to create the data. Thus, here again Respondent
presented a chart based on estimates over a much longer period of time, and extrapolated data
from the chart with the simple division, without taking into account the actual employment
circumstances of any given year. When asked if the underlying 2010 to 2020 forecast is a
reliable indicator, Duberg testified, “It usually is, yes. It is almost -- any forecast, it's guaranteed 15
to be wrong because every forecast is wrong, but it is the generally accepted standard for
looking at the future.”15 Duberg created another chart using a similar process entitled, “Opening
for Selected Installation, Maintenance, and Repair Occupations in Maryland: 2010-2012.”
Duberg testified he did not actually go over the employees in dispute in this proceeding to see if
they were qualified for any of these jobs listed in either of the above charts. He testified that he 20
did not do that for the prior exhibit either. Duberg made a similar chart for openings for
“Selected Retail Sales and Related Occupations in Maryland: 2010-2012.” He testified he made
this chart because the information he reviewed from employees of Respondent in their search
for work they made a number of applications to retail businesses. Duberg testified the retail
sales on the chart could include high-caliber clothing stores and stores like Best Buy or 25
technical stores. Duberg did not do an analysis of the types of retail jobs the discriminatees
applied as a percentage of the number of jobs listed in his chart. Duberg’s testimony
concerning the applicability of the jobs listed in his charts was that the discriminatees may have
qualified for all, some, or none of them. The charts also applied to the entire state of Maryland,
and there is no way to tell from these particular charts if the described jobs are in the commuting 30
range of the discriminatees. Thus, Duberg’s charts are extrapolations from long term
projections, which he admits are usually wrong. They do not take into account the nuances of
the economy at the time of the backpay period, the commuting distance of any of the jobs even
if I were to give the charts any weight, nor do they demonstrate whether an individual
discriminatee may have been qualified for any, or what number of the jobs listed. I do not find 35
these charts as particularly useful in evaluating an individual employee’s job search.
Respondent also tendered a series of charts created by Duberg entitled “Selected Top
Demand Jobs Requiring a High School Diploma or Less:” specifying openings for 2010 to 2012
for Prince George’s County, Montgomery County, Anne Arundel County, and one chart for three 40

15 For the category “driver/sales workers” listed in Duberg’s chart, Duberg testified the
occupational title describes a position but it does not go into qualifications. He testified a CDL
license would not necessarily be a requirement for someone in this category. Duberg testified
he did not have personal knowledge of all the requirements and criteria that might apply to
positions that would fall under that occupational title. Duberg testified the occupational
qualifications that would be required for each of the positions under driver/sales workers vary
by employer. Duberg testified in a similar fashion for the occupational category “Truck
Drivers, Heavy and Tractor-Trailer.” As for all the jobs listed, Duberg testified the
discriminatees might qualify for some or all of the jobs, that he did not meet with or review the
qualifications of the individual employee or the potential employer.
JD–34–14
20
counties in southern Maryland. Duberg testified Respondent is located in Upper Marlboro in
Prince George’s County, Maryland, and the majority of the workers live in Prince George's
County. The number of jobs listed in each category were not actual available jobs, but rather
were just estimates extrapolated from projections for the period of 2008 to 2018. The number of
jobs listed in Duberg’s initial charts had to be downgraded with new charts because Respondent 5
conceded that the number of jobs in the initial charts submitted by Duberg were incorrectly
calculated. Here again, the job numbers listed were projections, as opposed to actual jobs, and
they did not take into account commuting distance, or backgrounds of the actual discriminatees.
Thus, I do not give much weight to Duberg’s charts or his testimony concerning the 10
availability of jobs for the discriminatees. He did not meet with the discriminatees, review their
qualifications, age, or take into account their life circumstances in terms of their availability to
commute. The charts he created were based on projections which he admitted were not likely
to be accurate, as opposed to actual jobs and most of them covered a broad geographic area
beyond Respondent’s location. As set forth above, the Board has given little weight to such 15
opinion testimony. See, St. George Warehouse, Inc., 353 NLRB supra at 503-504; Bauer
Group, 337 NLRB 395, 398 (2002); Groves Truck & Trailer, 294 NLRB 1, 5 (1989); United
States Can Co., 328 NLRB 334, 343 (1999); Food & Commercial Workers Local 1357, 301
NLRB 617, 621 (1991); and Midwestern Personnel Services, Inc., 346 NLRB 624, 625 (2006),
enfd. 508 F.3d 418 (7th Cir. 2007).20
Duberg testified concerning an internet website known as the Wayback Machine. He
testified it is an archive of some information that has been available through the internet over
time. Duberg testified the data is compiled from snapshots of websites and it has a variety of
websites, including several that relate to trucking and trucking related positions. Duberg testified 25
that unlike newspapers, a lot of what the internet does is ephemeral; it is not maintained in
archives by common job listers. However, the Wayback Machine website does have some
snapshots of historic job listings that were provided through different websites. Amelia Tolbert
works for Respondent’s law firm as a litigation paralegal. Tolbert testified she was given an
assignment on September 29, 2013, to use the Wayback Machine website to search for job 30
postings that had happened between July 2010 to December 2012 that dealt with trucking and
warehouse jobs around the PG County area. There was around a 20 mile geographical limit.
Tolbert testified she went onto Google and found websites that had postings for the relevant
jobs, and then she took the website address of her search, and placed it into the Wayback
Machine website. Tolbert thereafter produced a compilation of her search result from her 35
Wayback Machine assignment. Tolbert testified she could not recall exactly what search terms
she used in her initial Google website search stating “it was probably something like trucking
jobs PG County or trucking jobs Maryland, something like that.” Tolbert could not recall if she
searched PG County or Maryland, stating “I might have done both. I can’t remember.” When
asked if she searched for Montgomery County, Tolbert replied, “whatever I searched for, I 40
searched for everything like around an area within 20 miles.”
As set forth above, Tolbert could not recall the specifics of the search she made as to
terms or location. There was no independent verification that the website posting purportedly
picked up by the Wayback Machine were actually posted; that the discriminatees would have 45
had access to the postings if they existed; or that they qualified for the jobs, or would have been
hired if they applied. The Board has rejected the use of newspaper help wanted ads to
establish that a discriminatee failed to perform a proper job search, and I find the use of the
Wayback Machine site here is even more attenuated then usage of newspaper ads. See, Acme
Bus Corp., 326 NLRB 1447, 1448-1449 (1998); Coronet Foods, Inc., 322 NLRB 837, 842 50
(1997), enfd. in relevant part 158 F.3d 782 (4th Cir. 1998); Airport Services Lines, 231 NLRB
JD–34–14
21
1272, 1273 (1977); and Florence Printing Co., 158 NLRB 775, 777 (1966), enfd. 376 F.2d 216
(4th Cir. 1967), cert. den. 389 U.S. 840 (1967). Accordingly, I place no reliance on
Respondent’s Wayback Machine exhibit in evaluating the bonafides of the job search of the
discriminatees.
5
Ralph Palmigiano works for Respondent as a recruiter. Palmigiano testified the
Maryland Workforce Exchange is a website he frequently uses for his work. Palmigiano
identified documents he downloaded from the Maryland Workforce Exchange website
containing job descriptions for “heavy and tractor-trailer truck drivers;” for “light truck or
delivery services drivers;” and for “laborers and freight, stock and material movers, hand.” 10
While Palmigiano testified the documents were downloaded from the Maryland Workforce
Exchange the documents revealed their source was the U.S. Department of Labor Bureau of
Labor Statistics. The documents made predictions for the period of 2010 to 2020 for job
growth of each of the positions listed. Palmigiano testified he thought Respondent’s CDL
driver position corresponded with the definition in the first job description. Palmigiano 15
testified Respondent’s warehouseman position would correspond to the Maryland Workforce
Exchange position of laborers, freight and stock, material movers. I did not find the referenced
materials to be particularly helpful, in that like Duberg’s charts they were based on estimates of
growth over a lengthy year period, which Duberg admitted were not accurate. Moreover, the
tables Palmigiano introduced did not identify any specific jobs that existed during the backpay 20
period that were within commuting distance of the discriminatees, nor did they establish they
would have been qualified or been hired if they applied to any such jobs, the existence of which
from the tables was merely surmise.
Palmigiano generated another series of reports which he testified he downloaded from25
the Maryland Workforce Exchange. It included “required education level on jobs advertised
online for Transportation and Material Moving Occupations,” with separate charts for the years
2010, 2011, and 2012, the education level and location for each of the years. For example, for
2011 for Prince Georges County with a high school diploma or equivalent it showed 258 job
openings. The table did not show what other requirements or licensing may have been 30
necessary for these jobs, or specify what the jobs were. It did not show the specific location of
the jobs within the county. Palmigiano could not specify which advertisements any of the jobs
were actually listed under stating he merely downloaded the tables from the Maryland
government site. These charts based on unidentified online advertisements, for non specific
jobs, with a location of the entire county, in my view for the reasons previously stated do not 35
help to evaluate whether the discriminatees performed a proper job search.
While I do not place great reliance on the testimony of Respondent’s witnesses in
terms of establishing viable jobs for the discriminatees during the backpay period, I do
find that Respondent has met its burden of establishing there were jobs to which the 40
discriminatees could have applied for. In this regard, I note that Respondent was
located in Prince Georges County, Maryland, not far from the D.C. border, and this is a
highly populated area. So, it is unlikely to say that during a two year period there were
no jobs in this area for which the discriminatees could have applied. Second the
testimony of the discriminatees relating to their job searches demonstrates that there 45
were jobs to apply to, whether or not the discriminatees would have been successful in
their application. Moreover, it was the compliance officer’s view that given the education
and skill level of the discriminatees that entry level retail and food service jobs would
appropriately be included in the purview of their job search. Here, several employees
testified they applied to or inquired about multiple jobs within the backpay period. Some 50
obtained interim employment for portions of the backpay period, and some testified they
JD–34–14
22
were able to find listings for multiple truck driver and/or warehouse jobs even though
they may not have been successful in obtaining those jobs.
For example discriminatee Daniel Wiggins testified that during July 2010 he used
the Washington Post for his job search efforts and he followed a few leads obtained from 5
there. Wiggins testified he looked in the warehousing and truck driving section in the
classifieds. He testified he also applied for some things that he had never done before.
In addition to the Washington Post, Wiggins looked in the local paper called the Gazette
and he also looked in the Baltimore Sun and the City Paper. Wiggins testified he applied
to quite a few jobs in July 2010. Wiggins testified he used Monster.com as part of his job 10
search in July 2010. He testified he sent numerous resumes to all types of employers
through Monster. He estimated that he sent around 20 resumes on the site in July 2010.
Wiggins testified another site he used was Indeed.com. He estimated that he forwarded
15 to 20 resumes or applications through Indeed in July 2010. Wiggins testified
concerning his search on Monster, Indeed, the Washington Post, and the Baltimore Sun 15
that they had jobs listed and there were a number of jobs to apply to. Wiggins testified
he reviewed an employment guide which lists employers, education, and certifications.
Wiggins testified he applied to quite a few jobs out of the employment guide. He testified
he filled out a lot of applications online for trucking jobs. Wiggins testified he also used
the site Job Search USA as a job search engine. 20
Similarly, Derrall Bridges testified he applied to over 70 jobs on government sites during
his backpay period. Bridges testified he would go on the Prince Georges County government
site and search for truck driving jobs and maintenance jobs. Bridges testified he also used
Monster.com. during the backpay period. He estimated he went on Monster around once a 25
week. He testified he started using the site in July 2010. He testified he applied to two or three
jobs a month during the backpay period through the use of the Monster site and other websites.
Thus, the other discriminatees, who testified, all testified they found jobs to apply to
during the backpay period, and as Respondent points out in its brief as reflected in Keough’s 30
summaries some of the discriminatees found interim employment at various points during their
backpay period. I therefore find Respondent has met its burden that there were at least some
available jobs during the backpay period within commuting distance, for which the
discriminatees may have qualified, and that the burden has shifted to the General Counsel to
establish that each of the discriminatees made a reasonable job search in order to qualify for 35
backpay. I find the ultimate burden still lies with Respondent to demonstrate that search was
not adequate for each challenged discriminatee. The fact that there may have been jobs to
apply to has no relationship in terms of the likelihood of success of an individual discriminatee,
whose application may have been impacted by such factors as age, past experience, commute,
length of their employment at Respondent, and having to explain that they were on strike as a 40
reason they were seeking work.
5. The job search of the disputed discriminatees
a. Daniel Wiggins45
Wiggins was not working for Respondent at the time of his testimony. Wiggins backpay
period ran from July 6, 2010 to April 8, 2012.16 He collected state unemployment benefits from

16 Wiggins failed Respondent’s drug test upon Respondent’s offer of reinstatement. Wiggins
credibly testified that he did not fail any drug tests with interim employers or prospective interim
JD–34–14
23
July 3, 2010 until October 9, 2010. Wiggins was born in 1979. Wiggins graduated high school
and then went to the Fork Union Military Academy postgraduate program. He graduated and
then went to Bowie State. He left college during his junior year without obtaining a degree.
Wiggins testified that, prior to working for Respondent, he was a truck driver and he held his
Class A CDL license since 2002. Wiggins testified that before he was a truck driver he worked 5
in warehouses, drove a forklift, picked orders, and did things of that nature. Wiggins testified
that, after he obtained his CDL, he became a truck driver and has been a truck driver ever since.
Wiggins was hired by Respondent in September 2007. He worked for Respondent as a delivery
driver for which he had to have a CDL. Wiggins testified his Class A CDL license allows him to
operate vehicles with trailers, and heavier vehicles than drivers with a Class B CDL. 10
Wiggins testified he received unemployment benefits during his backpay period.
Wiggins testified he stopped receiving unemployment because he started working at S.
Freedman & Sons, and he never applied for unemployment again. Wiggins testified that, during
his backpay period he lived in District Heights, Maryland; and Beltsville, Maryland. He testified 15
that he also had to move near Emporia, Virginia, where he lived from about December 10, 2010
until June 2011.
Wiggins testified he received the Region’s backpay questionnaire concerning his search
for work, around a week prior to when the Region said he needed to submit it, because it was 20
sent to the wrong address. Wiggins estimated he received it in March 2013. On the
questionnaire, Wiggins checked unable to work from April 16 to September 30, 2010, and he
checked the same for October 1, 2010 to October 5, 2010. On both occasions, he checked the
strike duty box. However, Wiggins denied that by checking the strike duty box that he was
saying he was not available to look for jobs. He testified, “Actually I didn't really understand 25
truthfully what the form wanted. I filled it out to the best of my understanding.” He explained “I
just felt kind of pressured to try to get it back.” Wiggins testified that during his backpay period
there was no time he was unable to work and that if he had been offered a job he would have
been able to take it. I credit Wiggins’ explanation concerning his confusion as to the
requirements of questionnaire and find he was available to work throughout his backpay period, 30
noting he reported on the questionnaire that he secured employment from October 6 to
December 5, 2010 with S. Freedman & Sons. Wiggins testified he worked there for 3 months
and then was terminated.
Wiggins testified he began working at S. Freedman & Sons, based on a referral by the 35
Union. He testified he was still searching jobs while he worked there because S. Freedman &
Sons, “treated us kind of indifferent because we were a part of the strike.” Wiggins testified he
had been on interviews when they asked him his last employer and he mentioned Respondent
and the reason he was no longer at that job that “it did not look good on me.”
40
Wiggins testified, when asked, concerning his employment for S. Freedman & Sons, that
he was not terminated for gross misconduct. Wiggins credibly testified as follows: Wiggins was
discharged during his 90 probation period due to an argument with the dispatcher. The
argument was in the morning and it concerned the way Wiggins’ truck was loaded. In this
regard, a hand truck had been placed on the top of the back of materials in his truck and when 45
he lifted the back door the hand truck almost fell on his head. Wiggins went out on the road with
the truck. When Wiggins returned to the facility he was told he did not call back in a timely
fashion and they walked him off the premises stating he was in his 90 days and they terminated

employers during his backpay period, and Respondent has not raised this as a defense to his
backpay in its post-hearing brief, which if it had would have been rejected.
JD–34–14
24
him. He explained in his testimony that they called him a couple of times while he was out of
the truck making deliveries. Wiggins testified the hand truck should not have been loaded the
way it was and it was dangerous. He testified he arrived at the facility at 5 a.m. and it was dark
and difficult to see. He testified when he opened the lift gate, he could not have something at
the top ready to fall on his head. Wiggins testified concerning his termination at S. Freedman 5
that there was no physical confrontation and he did not curse. I have credited Wiggins’
testimony concerning his termination at S. Freedman & Sons, noting that it was put forth with
good recall and not disputed. I find that Wiggins made a reasonable protest during his
probationary period there about conduct by the employer that he legitimately thought
jeopardized his safety. 10
Respondent argues in its brief that Wiggins backpay should be terminated due to his
discharge from S. Freedman and Sons. I reject this defense as I do not find that Respondent
has established that Wiggins was discharged from interim employment for conduct of such an
aggravated nature as to constitute willful or gross misconduct that terminates Respondent’s 15
backpay liability. See, JI Shiang, Inc., 357 NLRB No. 108, Baker Electrics, 351 NLRB 515, 565
(2007); Minette Mills, 316 NLRB 1009, 1010 (1995); Basin Frozen Foods, 320 NLRB 1072, 1077
(1996); Newport News Shipbuilding, 278 NLRB 1030, 1030 fn. 1(1986); and Sylvan Manor
Health Care Center, 270 NLRB 72, 75 (1984).
20
Wiggins did not know if the Union had a hiring hall. Wiggins testified the Union did state
while they were on strike that they could go to the union hall on certain days and they had some
individuals looking for forklift operators. However, Wiggins testified, “But it was numerous times
that I went down there, and no one was there at six in the morning.” Wiggins testified he went
there at 6:00 a.m. because that was when the Union stated men would be out there looking for 25
workers. Wiggins testified he used such websites as Monster and Indeed in his job search and
that he went to Aerotek Staffing and Randstad to help secure employment. Wiggins testified he
went to numerous places and he applied to a lot more jobs than he listed on the Region’s
questionnaire. Wiggins testified he also looked at classified ads in the Washington Post.
30
Wiggins testified that during July 2010, he used the Washington Post for his search
efforts and he went on a few leads from there. He testified that he reviewed the Post classifieds
at least 30 to 40 times in July 2010. Wiggins testified he also did numerous searches online and
sent resumes out. Wiggins testified as soon as the strike started he was on a constant job
search. Wiggins testified he looked in the warehousing and truck driving section in the Post 35
classifieds, and he applied to some non related jobs. In addition to the Post, Wiggins reviewed
the classifieds in a local paper called the Gazette, in the Baltimore Sun and the City Paper.
Wiggins would also swap information about leads with men on the strike line. Wiggins testified
he applied to quite a few jobs in July 2010. Wiggins testified he also reviewed an employment
guide and he applied to quite a few jobs out of the employment guide. He testified he filled out a 40
lot of applications online for trucking jobs.
Wiggins testified that in addition to what he included in the questionnaire he contacted
DPI, a cold storage warehouse, in July 2010 seeking employment as a Class A CDL driver.
Wiggins testified he went on the road test and interview for DPI but never heard back from them. 45
Wiggins testified that in July 2010 he also went to McCardle for a driver job and he filled out an
application there. Wiggins testified he also filled out an application at Rexel and they sent him a
letter stating the position had been filled, and he later reapplied to Rexel.
JD–34–14
25
Wiggins testified he used Monster.com as part of his job search in July 2010, and
throughout the backpay period. He testified he has a resume registered on the Monster site,
and he sent numerous resumes to all types of employers through Monster. He estimated that
he sent around 20 resumes on the site in July 2010, and that in July 2010 he visited Monster
almost every day. Wiggins testified another site he used was Indeed.com. He testified in July 5
2010 through Indeed he sent a resume to Daycon and to quite a few other companies. He
estimated that he forwarded 15 to 20 resumes or applications through Indeed in July 2010.
Wiggins testified he also used the site Job Search USA.
Wiggins testified that Vulcan Concrete is located in Savage, Maryland. Wiggins testified 10
he went to their place of business and filled out an application. He estimated this took place in
July or August 2010 and that he went there at least four or five times badgering them about
hiring him. Wiggins testified he applied to Aggregate Industries because his wife used to work
there. He testified he went there quite a few times, was told somebody was going to call him,
but he never heard from them. Wiggins testified he started visiting them in July 2010 and 15
stopped around the second week of September 2010.
Wiggins testified he applied with DC Metro for a driver job in 2010 before he worked at S.
Freedman, and that he contacted Metro after he worked there. He testified he contacted them
quite a bit. Wiggins testified he also applied at the MTA in August 2010 and that he was 20
seeking a job as a bus driver. Wiggins never heard back from them. He testified his CDL does
not qualify him to drive a bus but he could take a passenger endorsement and take an extra test
so he could operate that vehicle.
Following July 2010, during the remainder of the backpay period, Wiggins continued to 25
read the Washington Post and Baltimore Sun in his search for work. He also continued to look
at the City Paper. While living outside the DC and Baltimore Metropolitan areas he was not able
to get the DC City Paper or the Baltimore City paper. He testified he was able to review the
Washington Post and he looked at it 3 to 4 times a week. Wiggins testified he used
Monster.com, Indeed.com and Jobsearch USA throughout the back pay period. Wiggins 30
testified he used Monster.com virtually every day; Indeed.com every day or every other day; and
Job Search USA 2 to 3 times a week.
Wiggins moved to the Emporia, Virginia area in December 2010 and remained there until
June 2011. He testified Emporia, Virginia has two main warehouses, and that along with fast 35
food that is the gist of their local employment market. Wiggins testified that adults work at
McDonald’s because the employment situation there is very bad. Wiggins testified he had no
choice but to move to the Emporia area because otherwise he would be out on the street. He
testified he moved in with his mother and he did not want to move there. While living near
Emporia, Wiggins sought work in Richmond and St. Petersburg, Virginia. 40
Wiggins testified Richmond is about 60 miles from Emporia. While living in Virginia,
Wiggins applied at Canada Dry because he had worked there previously. He applied to BFI
which is a trash company, Waste Management. He applied to Allied Automotive Group, which is
a car hauling company, which his father and brother worked for. Wiggins testified that Allied 45
Automotive had been purchased and they are now called Jack Cooper. Wiggins testified he
applied to numerous other jobs through Monster because Monster brings up jobs in Richmond.
Wiggins testified that he made the job contact for BFI in February or March 2011; that he applied
to Canada Dry in December 2010; and that he could not recall when he applied to Waste
Management but testified it was in Richmond. Wiggins also applied to a Waste 50
JD–34–14
26
Management facility in Linthicum, Maryland. He contacted them in December 2010,
prior to moving to the Emporia area.
For the period January 1 through March 31, 2011, Wiggins listed four places on the
Region’s questionnaire where he sought for work. The first being Rexel which delivers 5
electrical supplies. During the period of April 1 to June 30, 2011, there are five employers listed
on Wiggins’ questionnaire, including Respondent. Wiggins testified he applied to Respondent
numerous times while he was on strike. Wiggins testified that the jobs listed on the
questionnaire do not include all of the jobs he applied to. Wiggins testified,” I applied to way
more jobs than that.” Wiggins testified he listed what he could recall on the questionnaire, 10
explaining he received it two and one half years after the fact, and that he felt pressured to get it
in on time. Wiggins moved to Beltsville, Maryland in June 2011, when he received a loan from a
family member and stayed with a family member. Wiggins testified he did not pay rent at the
time because he could not afford to. Wiggins still resided in Beltsville at his cousin’s home at
the time of his testimony. Wiggins applied for a job with UPS before he returned to Maryland in 15
June 2011, and he started working there around the beginning of November 2011
Wiggins testified after he returned to the DC area, he was looking for jobs in the D.C.
area. However, he went on a job interview in Georgia for McLane in February 2011, but he did
not receive the job. Wiggins testified for his Monster.com search he was using the D.C., 20
Maryland, and Virginia area. Wiggins testified he did not limit the search to specific parts of
Maryland and Virginia. He testified he got access to McLane in Georgia job through his search
on Indeed.
Wiggins testified that he also searched for work by word of mouth speaking to different 25
coworkers on the strike line, friends and family members. He testified his uncle works for UPS.
He testified that was how he thought about going to UPS because you have to work in the
warehouse there before you are able to be a driver, if a position is available. Wiggins testified
that when he was in Emporia, Virginia, he applied to 15 to 20 jobs from family referrals.
30
Wiggins stopped working at S. Freedman on December 5, 2010. He started working at
UPS in November 2011. Wiggins testified that when he returned to Maryland in June 2011,
he signed up with Randstad Staffing Agency, and they placed him in a warehouse. He testified
he was working for Randstad at the same time he worked for UPS, and that he was working day
and night. He testified he was working part time in the warehouse for UPS and that he never 35
received a full time position at UPS. Wiggins back pay period ended April 8, 2012. Wiggins
testified, at the hearing, that he worked for Randstad during the backpay period. He testified
they sent him to a medical facility warehouse in Savage, Maryland where he was pulling orders.
He testified this was a five day a week job, which lasted 6 to 8 weeks. Wiggins testified at the
hearing that he also worked for Aerotek Staffing prior to April 2012 at a cold storage warehouse 40
in Savage, Maryland.
Wiggins questionnaire returned to the Region around March 2013, states he was
working for UPS from November 18, 2011 to September 2012. It states he worked for
Randstad from April 20 to May 6, 2012, and again from August 26 to November 30, 2012. It 45
states he worked for Aerotek Staffing from July 15 to August 15, 2012. Wiggins Social Security
records show he earned $1,075.94 for UPS in 2011; and $5,708.67 in 2012. Wiggins Maryland
DLLR records show he worked for UPS in the fourth quarter of 2011; and during the first three
quarters of 2012. Wiggins Social Security records only show earnings from Randstad in 2012 in
the amount of $5,042.07; and his Maryland DLLR records show he worked there from the 50
second to fourth quarters in 2012. Wiggins Social Security records only show he worked for
JD–34–14
27
Aerotek in 2012, with earnings in the amount of $574.56; and his Maryland DLLR records only
show he worked there in the third quarter of 2012.
Respondent contends that Wiggins backpay should be forfeited because Wiggins
willfully concealed interim earnings which were revealed during his testimony at the hearing. 5
Wiggins testified at the hearing in 2014 about events that took place in 2011. He volunteered at
the hearing that he worked for Aerotek and Randstad in 2011, although he reported that he did
not work for those employers until 2012 outside his backpay period in his questionnaire which
was tendered to the Region around March 2013. Wiggins memory at the hearing was
admittedly vague about certain events occurring years earlier, and because he volunteered that 10
he worked for those employers in 2011 at the hearing, I do not find that he intentionally
concealed his employment with them as Respondent contends. Moreover, Wiggins Social
Security reports and Maryland government records confirm the questionnaire that Wiggins filed
with the Region that he did not actually work for either of those employers until 2012 as he
reported in questionnaire. In fact, the questionnaire was fairly specific as to the times he 15
worked for those employers, and since it was confirmed by government records I find it is more
accurate than what Wiggins recalled at a later date at the hearing. Accordingly, I find the record
establishes that Wiggins did not willfully conceal interim employment and he only worked for
Aerotek and Randstad outside of his backpay period. Therefore, I find his backpay claim as
reflected by the amended compliance specification should not be reduced based on this 20
argument and I reject Respondent’s defense.
Respondent also argues that Wiggins forfeited backpay when he moved to Emporia,
Virginia from December 2010 to June 2011, since Wiggins admitted there was not a good job
market in that area. I also reject this argument. When he moved near Emporia, Wiggins lived 25
with his mother. However, he credibly testified he did not move there for family reasons, but
rather he was strapped for cash from lack of work thereby providing him with no alternative
place to live. Moreover, while the Emporia job market was low, Wiggins did not limit his job
search to Emporia but also looked for work in Richmond and St. Petersburg which by their size
had a bigger job market, and he continued his internet search for work while he was in Emporia 30
for jobs outside of that region including the D.C. metro area. So, I do not find that Wiggins
absented himself from Prince Georges County out of choice, or that it impeded his job search in
a way to justify Respondent’s argument, which I reject.
I sum, I find Wiggins made a reasonable search for work during his backpay period35
which resulted in his obtaining some interim employment during that time. I reject Respondent’s
defenses and find he is entitled to backpay as provided for in the compliance specification as
amended, as set forth in GC Exh. 3.
b. Horace Griffin, Jr.40
Griffin was born in 1961, and has a high school education. Griffin’s backpay period
ended June 10, 2012. He collected unemployment benefits from July 3, 2010 to December 31,
2011. He was hired by Respondent in 1994. Thus, at the start of the strike Griffin was 49 years
old, had a high school education, and had been working for Respondent for about 16 years.45
At the time of his testimony Griffin had been recalled by Respondent on June 12, 2012,
and was employed by Respondent. Griffin testified when he first started at Respondent he was
in utility. He switched to a position in the warehouse about a year and a half after he began
working there. As a utility person he labeled boxes and bottles, and filled bottles with product. 50
As a warehouseman he was a forklift operator and he pulled orders. He testified he has a
JD–34–14
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license to operate a forklift and he has had that license close to 18 years with a break in time
because there was no class to renew it. Griffin testified his forklift license had expired at the
time he went out on strike, but he was operating a forklift long before he went on strike. Griffin
testified Respondent gave the class for which he obtained his license. Prior to working for
Respondent in 1994, Griffin worked for a period of time as a driver, although he did not have a 5
CDL license. Griffin testified he has not had a regular driver’s license since around 1986 or
87. Griffin testified that during the backpay period he traveled by public transportation. He
testified he currently commutes to work by public transportation.
On the Region’s questionnaire for the period of July to September 2010, Griffin checked 10
the strike duty box as being unable to work. However, Griffin testified he was able to work. He
testified, “That was a mistake because I didn't quite understand it.” Despite checking the
strike duty box Griffin listed seven employers during the period of July 5 to September 22,
2010 from which he sought work. Griffin listed multiple inquiries per quarter as reported by
the compliance officer and his questionnaire through December 2011.15
Griffin testified he did not work for the 2 years he was on strike. Griffin testified he was
looking and applying to places but he was not getting any response. Griffin testified the only
places he did not write down on the Region’s questionnaire were repeated contacts. Griffin
testified he heard the Union had a hiring hall and he did not apply there. Griffin testified there 20
was a fee at the hiring hall and he did not pay the fee. Griffin testified he did not apply there
because he did not have a forklift license and he heard the hiring hall was dealing with forklifts
so there was no need for him to apply. He testified a couple of friends went to the hiring hall and
were not hired so there were no jobs.
25
Griffin testified he has a computer but he does not use it as he is not computer inclined.
Griffin testified he found out about jobs by going to the jobs, or asking friends or someone who
worked at a place. Griffin testified he used the Washington Post. He testified he checked the
Post every day or every other day looking at the classified section for labor or maintenance jobs
stating that is what he feels comfortable with and is what he can do.30
Griffin testified he talked to someone who worked at Dollar Tree Store during the
backpay period several times seeking employment. He testified he spoke to them three times
every two weeks or so. He asked if they were hiring or when they thought they would be hiring.
Griffin estimated the last conversation with someone from Dollar Tree was around a month 35
before he was called back to work at Respondent. Griffin testified that during the backpay
period he had a conversation with someone working at a place called Cameron’s. Griffin
testified that he had the same conversation with people at Cameron's as he did at other places.
He testified he would go about a job, and ask if they were hiring now or at any time.
40
In his questionnaire for the quarter January 1 through March 31, 2012, Griffin only listed
that he had applied to three employers all in January. However, Griffin testified he applied to
employers he had previously applied to during that period but did not list them. Griffin testified
he did not list those on the questionnaire because they were repeated places. Griffin testified
that during this period he applied to Wal-Mart and Forman Mills, but he did not list them. 45
Concerning the period of February 2012 until he returned to work in June 2012, when asked if
he looked for work during that time, Griffin testified, “Yes. I wasn't motivated like I was at the
very beginning because I just -- basically I'm more going to give up, you know, because wasn’t
nothing happening. And I just put it in and then nothing comes out.” “I just -- about ready to
cash out basically. I was going to resign. But I gave it a little more time, and then I got called 50
back.” Griffin testified that during that period he went to places he previously went to including
JD–34–14
29
Wal-Mart, Save-A-Lot, and Shoppers. He testified there were no other places he could
remember. It was just those three places. He testified he went to those places several times,
each around four times during the five month period. Griffin testified that when he went to
places, he just talked to someone in the store, and that he did not ask for an application. Griffin
testified that from the whole time he was on strike he only filed “maybe one or two” applications. 5
He testified it was mostly talking to individuals at the locations.
In St. George Warehouse, 351 NLRB 961, 963 (2007), it was stated that:
Longstanding remedial principles establish that backpay is not available to a 10
discriminatee who has failed to seek interim employment and thus incurred a willful loss
of earnings. See, e.g., Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941); NLRB v.
Mastro Plastics Corp., 354 F.2d at 175.[FN10] In this regard, the NLRB Casehandling
Manual (Part Three) Compliance Section 10558.1 (2007) provides, in pertinent part:
A discriminatee must make reasonable efforts during the backpay period to seek 15
and to hold interim employment. This is known as the discriminatee's obligation
to mitigate. A discriminatee is not due backpay for any period within the backpay
period during which it is determined that he or she failed to make a reasonable
effort to mitigate….
In determining the amount of backpay due, the Board tolls backpay during any 20
portion of the backpay period in which a discriminatee failed to mitigate. See id.
Respondent contends that Griffin did not make an adequate search throughout the
backpay period. I find that Respondent’s assertion is not justified. Griffin, at the time the strike
began was 49 years old with a high school education. He had no proven usable computer 25
skills, and he had spent the past 16 years prior to the strike working for Respondent. He did not
have a driver’s license and was limited in his search to the use of public transportation. He
testified he reviewed the Washington Post classifieds to aide his search and his questionnaire
reveals that he made multiple job inquiries at locations appropriate for his skills and education
level. This is supported by the fact that he applied for and qualified for the receipt of state 30
unemployment benefits for the period of July 3, 2010 to December 31, 2011. In January 2012,
he listed three employers as part of his job search and a fourth employer was picked up by the
compliance officer in her summary.
However, Griffin failed to list any employers in his questionnaire from February through 35
June 10, 2012. He admitted he was frustrated in his search at that time, and I did not find his
testimony convincing that he did not list employers that he applied to during that period that he
had previously listed in his questionnaire, nor his claim that he went to three employers he
named during his testimony around four times each during that period. In this regard, he had
previously listed repeat employers more than once in his questionnaire, but gave no explanation 40
for his failure to do so during February through June 10, 2012. I find that Griffin ceased actively
applying for work beginning in the period of February 2012 through his reinstatement with
Respondent.
As testified by Keough, backpay is calculated on a quarterly basis. Griffin’s 45
questionnaire shows he contacted three employers in the first quarter of 2012, and the
Keough’s records demonstrate the he possibly contacted a fourth employer during this quarter.
Given the fact that Griffin’s backpay period ran from July 6, 2010, I am not willing to disqualify
Griffin from backpay for the first quarter of 2012, since he did made search efforts during that
quarter, and it is reasonable given the length of his backpay period with no success that his 50
efforts tailed off during that quarter. On the other hand, I find that Griffin and the General
JD–34–14
30
Counsel have not demonstrated he continued his search for work into the second quarter of
2012, and therefore I find that he is not entitled backpay for that period. Based on the forgoing,
I do not find that Griffin conducted a reasonable search for work for the second quarter of 2012,
and I am denying the amended compliance specification’s claims for him for that quarter only. I
find Griffin is entitled to backpay as set forth in the amended compliance specification as 5
detailed in GC Exh. 3 for the period of the third quarter in 2010 to and including the first quarter
of 2012.
c. Adalberto Mendez
10
Mendez was born in 1981 and has a high school education. He lived in Hyattsville,
Maryland during the course of his backpay period. He last had a driver’s license in 2001. He
never had a CDL license. Mendez began working for Respondent in 2007, started out as a
forklift driver, and he was working for Respondent as a forklift driver on the night shift at the time
of the hearing. Mendez backpay period ran from July 6, 2010 until November 12, 2012, when 15
he was reinstated by Respondent. Mendez prior employers included: Turbo Haul where he was
a navigator and assistant driver; and BMA, Inc. where he worked in shipping and receiving and
as a forklift driver. Mendez was in the Marines from 1999 to 2003 where he worked a forklift in
a warehouse. He testified that practically all of his jobs were in a warehouse. Mendez testified
that as a warehouse worker, he picks orders and loads trucks. Mendez operates a forklift and a 20
ride on jack. Mendez testified he rode a bus to commute to Respondent and his wife picked
him up at night. Mendez testified it takes him two hours to commute to Respondent by bus,
and it is a 40 minute drive.
Mendez received unemployment from July 3, 2010 until December 31, 2011. Mendez 25
testified he had to look for work because unemployment required him to look a minimum of
three times a week, and he submitted at least three applications a week. When asked if it
mattered what type of job he applied for he testified, “I needed work. I had to change my
career like you said. I needed something. I mean, I mean I had to look for whatever was
available.” Mendez testified he had to telecert to the unemployment office on a weekly basis 30
that he was available for work and that he had applied for work that week. Mendez testified he
did not have to tell unemployment where he applied.
Mendez identified the Region’s questionnaire after having his memory refreshed.
Mendez failed to list any employers that he contacted during the backpay period for the quarter 35
July 1 through September 30, 2010, in the Region’s questionnaire. Keough testified that
Mendez' search for work in the third quarter of 2010 was not sufficient, according to the Board
standards. She testified that he could not come up with a single contact that he made during
that quarter, so the Region tolled his backpay for that quarter.
40
Beginning with the quarter October 1 through December 31, 2010, Mendez began
checking the strike duty box on the Region’s questionnaire. However, he listed no dates for
which he was unable to work in that section of the questionnaire. Mendez credibly testified, “I
never was unable to work. I was always able to work.” He testified he checked the strike
duty box but that, “I must have misread the question.” The questionnaire he supplied reveals 45
he was in fact searching for work during the quarters where the strike duty box was checked.
When questioned about his search for work for the quarter October 1 through December 31,
2010, Mendez testified the list on the questionnaire included restaurants. There were nine
contacts listed, which were enough to fill up the supplied page in the Region’s questionnaire
with all reported dates of contact listed in November 2010.50
JD–34–14
31
For the period of January 1 through March 31, 2011, the questionnaire showed four of
the nine employment contacts were restaurants located in the same mall. The remaining
contacts were other establishments in the mall such as Macy’s and Old Navy. Mendez
testified he went to the mall near his home and handed in applications to the listed places.
He initially testified these were all the places he applied to. All nine places reported in 5
Mendez’ questionnaire in this quarter were listed to have been contacted on one of three
dates in January. For the quarter April 1 through June 30, 2011, Mendez again listed nine
places he applied to, and the reported dates were only in the April. They were all stores or
restaurants in what Mendez labeled as the Prince Georges Mall. Mendez testified this was his
job search from what he could remember and all the places listed were in the same mall as the 10
places he listed in the prior quarter.
For the quarter July 1 through September 20, 2011, Mendez listed nine places in the
questionnaire where he sought employment all with a reported July contact date. One of the
places he applied to was Burger King and he testified he applied to flip burgers. Mendez 15
testified that he had flipped burgers before while working in the mess hall for the Marines.
Mendez also listed Kentucky Fried stating he was applying to sell chicken. He testified he
was applying for work but, “They didn't have no work at the time.” When asked if he looked
for any jobs in August or September, 2011, Mendez replied, “I don't remember, sir.” However,
Mendez also testified he applied to three jobs a week in August and September, but he did 20
not list them on the questionnaire as the jobs he listed were the only ones he could
remember at that time. When asked if he was saying he applied for other jobs during that time,
Mendez testified, “ Of course. Yes, sir. I don't remember.”
For the period of October 1 through December 31, 2011, Mendez listed nine stores all in 25
a mall Bethesda, Maryland. He had three different dates recorded all in November for visiting
that mall. Included in the places he applied was Kay Jewelers, although he admitted he had no
experience selling jewelry. He testified from what he could remember he went to that mall to
apply for jobs.
30
For the period January 1 through March 31, 2012, Mendez listed nine places on the
questionnaire all applied to in January 2012, some located in Maryland and some in Washington
D.C. Mendez testified he stopped receiving unemployment compensation around December
2011. For the period of April 1 to June 30, 2012, Mendez listed nine locations on his
questionnaire most of which were in Hyattsville, Maryland with inquiry dates beginning on April 35
11 and ending on May 2, 2012. Places Mendez listed on the questionnaire included Marshall’s
which was located near Mendez’ home. He also applied to a gentleman’s club hoping to get a
job as a bouncer. During the period of July 1 through September 30, 2012, Mendez listed nine
potential employers on his questionnaire all reportedly at the same address in Arlington, Virginia
for which he stated in the questionnaire that he applied to all on July 13, 2012. He testified all of 40
the places were in the same mall. He testified for July 1 to September 30, if he remembered he
looked for jobs only one day. The jobs included a Gap store, a Kay Jewelers, a hat store, a
game store, another clothing store. Mendez returned to Respondent in November 2012. He
listed nine jobs that he applied to in his questionnaire all on October 10, 2012, at a mall in
Wheaton, Maryland. Mendez testified he applied to other places in October and November on 45
other days, but these were the jobs he remembered. Mendez testified that he thought he was at
the mall on October 10, but that he did not remember the exact date.
Concerning his responses on the questionnaire, Mendez testified he was not just looking
for jobs at malls that he “was looking for jobs everywhere. Friend's warehouses. I was50
looking other places, but these were the only ones I could kind of remember I mean. It
JD–34–14
32
happened a long time ago. I just got this a little while ago. This is what I could remember.”
Mendez testified he used to work for Turbo Haul and Alex Aparicio was a manager there.
Turbo Haul is a bulk trash pickup company. Mendez testified he spoke to Aparicio about
once a month or every other month during the period of October 2010 through November
2012 asking if he had any work for Mendez. Mendez testified he never submitted an application 5
at Turbo Haul.
Mendez testified Jaime Chavez is a friend who told Mendez about a steamfitter
apprenticeship program for Local 602. Mendez testified he took the test two years in a row to
join the program. Mendez testified he thought he spoke to Chavez about the apprenticeship 10
program before the start of the strike. Mendez testified he thought he took the first test in
December before he went on strike. The test included algebra and some measurements.
Mendez testified he did not pass the test the first time he took it. He testified he passed the
test the second time he took it, which was while he was on strike but he still did not get into
the program. Mendez testified he studied for a couple of weeks before taking the test. He 15
thought he took the second test around December 2010.
Mendez testified his wife works at furniture rental place called Select Rentals and
Mendez asked her if they had any openings for a driver. He testified they have drivers, a n d
a warehouse, and they also put up tents at the mall in D.C. Mendez testified he was asking 20
her about a job for two to three times a week for three years. Mendez testified he never filed
an application with Select Rental, rather he just asked his wife, an accountant there, if they
had openings. Mendez estimated that he talked to his brother Eric Mendez about a job on a
weekly basis during the backpay period. He testified his brother works at a General Electric
warehouse in Laurel. He testified he also talked with a construction company in Laurel about 25
once a month during the backpay period soliciting work. Mendez testified he also applied for
forklift jobs during the backpay period at some warehouses in Hyattsville and some on Route 1,
the names of which he could not recall.
Mendez testified that the Union had a hiring hall. He testified he checked in with them to 30
see if they were posting jobs. Mendez estimated this was around two years prior to his
testimony, which took place in January 2014. Mendez testified he took a forklift class there. He
testified the class was actually at the convention center. He testified you had to call in every
morning which he did. He testified you call in and if they have work they will let you know where
to go. Mendez testified he filled out paper work for this process. Mendez testified he did not 35
recall the year but he thought he worked an Army trade show for about 20 hours of work and
another show for the Marine Corps Marathon. The compliance officer’s summary for Mendez
showed he worked two trade shows in November 2012.
As stated in St. George Warehouse, 353 NLRB 497 (2008), a discriminatee, to be 40
entitled to backpay must make reasonable efforts to secure interim employment. Doubts,
uncertainties, or ambiguities are resolved against the wrongdoing respondent. A discriminatee
is held only to a reasonable rather than to the highest standard of diligence. The Board has
stated that registration with a state unemployment office is prima facie evidence of a reasonable
search for employment. The fact that a discriminatee is limited to search to places he could 45
travel to by public transportation or by foot is reasonable and understandable. It was stated that
the Board has recognized that the individual circumstances of the discriminate such as limited
transportation must be taken into consideration in determining whether he has exercised
reasonable diligence when searching for interim work. The fact that a discriminate commuted to
a respondent by public transportation impacts on his ability to obtain comparable work and his 50
search must be evaluated on that basis. Checking with friends is a valid part of a
JD–34–14
33
discriminatee’s job search. As was stated in United States Can Co., 328 NLRB 334, 337
(1999), enfd. 254 F.3d 626 (7th Cir. 2001), an employer does not satisfy its burden showing that
no mitigation took place because the claimant was unsuccessful in obtaining interim
employment, or by showing the claimant failed to follow certain practices in his job search such
as reading and responding to job advertisements in newspapers. Moreover, poor recall as to 5
the specifics of a job search years later can be readily understandable and does not
automatically disqualify a discriminatee from receiving backpay.
Here, Mendez had a high school education, did not have a driver’s license, and did not
use a computer. He commuted to Respondent by public transportation. Mendez applied for 10
and received unemployment from July 6, 2010 to December 31, 2011. He credibly testified that
is was his understanding that he had to make three job inquiries a week, and report to
unemployment on a weekly basis in order to maintain his benefits. Thus, he did not receive the
Region’s questionnaire, according to Keough until around March 2013, it is understandable that
he had limited recall concerning his job contacts by the time he received the questionnaire. Yet, 15
he filled in the questionnaire for every quarter but the first with nine jobs that he had applied to,
which was all the room provided for in the questionnaire page. Given the fact that he did not
drive, only had a high school education, and did not have a computer, I find it was reasonable
for him to search for work at restaurants, and retail establishments in area malls where he could
inquire at multi-establishments with one trip. However, during the backpay period, he also 20
credibly testified he sought work by applying to some warehouses and described where they
were located. He sought work through the Union as a fork lift operator, took and passed a
Steamfitter’s apprentice exam which required study, contacted a prior employer on a regular
basis seeking work, and contacted family including a brother who worked in a warehouse
seeking work on a regular basis. 25
While Respondent argues that he should not be credited that he asked his wife about a
job as a driver when he did not have a license, his application with Respondent as per
Respondent’s records had him seeking work as a driver with Respondent although he did not
have a license at that time. I do not find it to be unbelievable that he sought a driver job at the 30
place his wife worked with the idea of obtaining a license if offered a position. Regardless, his
testimony reveals he made other contacts during the backpay for warehouse work and for other
work appropriate for his skill, education, lack of computer skills, and lack of a driver’s license,
and I find he is entitled to full backpay as computed in the compliance specification as amended
and set forth in GC Exh. 3. Similarly, Respondent’s argument that Mendez never applied for a 35
Steamfitter’s position fails, as he testified he passed the exam but was not admitted to the
program. Finally, contacting his prior employer without submitting an application is not the
grave sin Respondent purports it to be. There was no evidence that in these conversations
Mendez was told there was work available or that an application would help his cause. The
repeated contacts with his prior supervisor were sufficient to inform that he was interested in 40
employment if a job was available. As to his interim earnings, Mendez testified he worked two
trade shows and the compliance officer was aware of this in her calculations of his backpay. I
do not find Respondent has established the compliance officer’s calculations were incorrect.
d. Robert Brice45
Brice was employed by Respondent at the time of his testimony. His job classification is
utility where he either goes out on trucks or does maintenance around the facility. He has
been working for Respondent since 2008. Prior to Respondent, Brice worked for Snow
Valley where he pulled orders and made deliveries in a warehouse. Brice backpay period was 50
July 6, 2010 to February 5, 2012. Brice collected unemployment from July 3, 2010 until January
JD–34–14
34
21, 2012. Brice was born in 1970 making him around 40 years old at the time of the strike. He
has a high school education and a driver’s license. Brice does not operate a forklift for
Respondent, but he had done so for his prior employer. He testified he was available to work
the entire backpay period. Brice testified he does not have very good computer skills.
Concerning his receipt of unemployment benefits during the strike, Brice testified he had to 5
show them he was applying for jobs. Brice testified, “I can't remember exactly what the
qualification was for how many jobs I had to look for.” Brice testified he had to call into
unemployment to confirm he was searching for work.
Brice consistently checked the strike duty box under the unable to work section 10
throughout the Region’s questionnaire. However, Brice testified, “I looked for a job but I was
out on strike.” When asked why he checked the strike duty box, Brice testified “I
misunderstood the question actually.” Despite his checking the strike duty box, Brice also
listed employers where he sought work throughout the questionnaire, and I have credited his
testimony that he misunderstood the question as to why he checked the box.15
On his questionnaire for the period of July 1 through September 30, 2010, Brice listed
four places where he sought work, three of which were warehouses, and the fourth was Sam’s
Club. Two were listed in the month of July, one in August, and one in September. However,
Brice testified when asked if from August to September he did not apply anywhere “No, I20
looked for jobs the whole time.”
For the period October 1 through December 31, 2010, Brice again only wrote four jobs
on his questionnaire, two with October dates, one in November and one in December. Two of
the four jobs were listed as warehouses and a third was a storage place. In fact, Brice only 25
listed four potential employers per quarter throughout his questionnaire. Brice testified he
applied to more than four places for each quarter. Brice explained he only wrote down four
places per quarter stating that he had to provide daycare for his children, since due to financial
reasons he had to pull his children out of day care. Brice testified his family responsibilities
placed a limit on his note taking concerning his job search. He testified he would call jobs and 30
ask if they were hiring, and they would say no. Brice testified “I mean when I was going looking
for jobs, I knew I had to keep a record of some jobs that I went to look for. So I would write
down, you know, on a sheet of paper, and a lot of stuff got lost and misplaced.”
Brice testified he would both call and go to places to find work. He testified he learned 35
about a lot of the places from his phone using the internet. Brice testified he went on different
job search sites, and warehouse sites on the internet. He testified you can just type in
warehouses, and a lot of warehouse jobs come up. Brice testified, “There were a lot of jobs
posted. But not a lot was hiring.” Brice testified, “I would go on my phone, type in warehouse,
and then jobs would come up where they were hiring for warehouses or where they were 40
supposed to be hiring for warehouses. Whether I was qualified or not, I don't know.” Brice
testified that he applied to some of these jobs stating he called the ones further away because “I
didn't have money for my car to drive out certain places all the time. So, yes, I would call and
ask them if they were hiring. A lot of them say no.” Brice testified, “I would ask if they were
hiring, and they would be asking where I be from, what would I be applying for, and I would be 45
like either a driver or maintenance or warehouse. And then sometimes the lady was like, no,
we're not hiring, and the ones I did apply for, they never returned my call.” Brice testified he did
not have a CDL, and he was applying to drive a commercial van. He testified when he drove for
Snow Valley, he drove a commercial van. Concerning his internet search, Brice testified he
typed in warehouse jobs, and there would be a listing of area warehouses. Brice testified, 50
“Whether they're hiring or not, I don't know, but I would call them looking for employment.”
JD–34–14
35
Brice testified the ones he kept a record of he listed on his questionnaire. Brice testified that
during his backpay period he was doing online searches for work three to five times a week.
Brice lives in Upper Marlboro. While Brice questionnaire does not list a job in Upper
Marlboro until October 2011, Brice testified that was not true that he just did not write them 5
down. Brice testified he applied for a lot of jobs in Upper Marlboro. Brice testified, “I just would
go and show up there and ask them if they were hiring.” Brice named places where he applied
in Upper Marlboro to include: Amstel Light; Foot Locker, Giant, the Highway Administration, and
a lot of little places. Brice testified he applied, “Everywhere, everywhere and anywhere I could.”
When Brice was asked why he did not list these places on his questionnaire, he testified, “It's 10
not that I didn't remember. I guess I just didn't put them down.” “I didn't know I had to put a
certain amount down.” Brice testified he submitted an application to Foot Locker, although they
were not hiring. Brice testified that not too many places that he went to were hiring, and the
ones that were you needed a CDL to be a driver. Brice testified he went to Amstel Light around
July or August 2010 and filled out an application. He received a letter that they were not hiring.15
Brice testified that, some months into the strike, he talked to Webber about whether
there were Teamster represented places that were hiring. Brice testified Webber told him there
was “like a wait chain or something that you had to go through.” Brice testified Green
Decking is a company that installs decking and fences. He testified that he spoke to Steve 20
Green several times during the backpay period. Brice asked Green if he had any projects
coming up, and needed help, but at that time business was slow. Brice testified Green said he
would get back to Brice if a job came up. Brice estimated these conversations took place
around July or August in 2010 or 2011. Brice did not record these conversations in his
questionnaire because he considered Green to be a friend and therefore did not feel the 25
conversations were part of his formal job search.
Brice testified the Highway Administration is in Upper Marlboro. He testified when he
contacted them they were on a hiring freeze, and they would tell him to call back every 3 to
4 months to see if the freeze had lifted. Brice testified he contacted the Highway 30
Administration several times. He thought the first time was before the strike started, and then
after the strike began. Brice went there two or three times. Brice testified he called the
Highway Administration about every 3 months or so, from the beginning of the strike with the
last time shortly after he went back to work for Respondent.
35
Brice estimated that, during his backpay period, he visited the Forestville Mall once
every 2 or 3 months, and inquired at stores to see if they were hiring. Brice testified he checked
with about seven stores per visit. At the mall, Brice filled out applications at stores such as Foot
Locker, Down Town, Locker Room, and Shoe City. Brice testified he went to Food Lion to
shop, and he saw the manager on a regular basis and Brice would inquire if they were hiring. 40
Brice estimated these conversations began around November 2010, and he continued to make
these inquiries with the manager about four or five times a month. Brice also went to Wal-Mart
during the backpay period in an effort to fill out an application, but their computer was down.
Brice testified that, during the backpay period in 2010, he asked a friend who worked at a Wawa
if they were hiring. Brice also inquired about a job with an Ace Hardware store, but he did not 45
fill out an application because there were not hiring. He testified he filled out an application at a
Shoppers during the backpay period but never received a response.
I have concluded Brice job search was sufficient to substantiate the Region’s backpay
claim as set forth in the amended compliance specification. Brice backpay period was July 6, 50
2010 to February 5, 2012, and he collected unemployment from July 3, 2010 until January 21,
JD–34–14
36
2012. Thus, he received unemployment benefits through most of his backpay period. While
Brice could not recall the specifics, he testified he called in to unemployment to confirm that he
was searching for work and to show them he was applying for jobs. As set forth above, this
creates a presumption that he was looking for work during the time he received unemployment.
While Respondent contends there was something nefarious about Brice listing four jobs per 5
quarter in the Region’s questionnaire, I do not find this to be unusual or lacking in credibility on
the part of Brice who I have found to have testified in a credible way.
First, Brice, who only has a high school education, did not receive the Region’s
questionnaire until over a year after his backpay period ended. While he testified he knew he 10
had to document his search, which was why he kept some records, there was no showing he
was instructed on how detailed the documentation need be, until over a year after the fact.
Brice testified a lot of his search was performed by internet searches on his phone. The places
he listed in his questionnaire included a large percentage of warehouse and similar
employment. He credibly explained that, during the backpay period, he had a lot of additional 15
childcare responsibilities due to his lack of funds, which was a direct result of Respondent’s
unfair labor practices, as a reason he did not keep more detailed information concerning his job
search. I do not find merit to Respondent’s assertion that Brice should have done a search of
the web histories on his phone to more completely document his search. First, Brice credibly
testified he had limited computer skills, and there was no showing that Brice had the 20
wherewithal to make such a search, or that the phone would have maintained such histories or
for how long. I also do not find it unusual that Brice was able to supplement the information in
the questionnaires pertaining to his job search with his testimony at the hearing. I think in this
case, the questioning of Brice brought out more specifics of his search by allowing him, as a
layperson, to better understand how to more completely report what actually occurred. 25
Accordingly, I find Brice’ job search, as he credibly described above, was a reasonable search
under the Board’s standards and was sufficient to justify his backpay as set forth in the
amended compliance specification as set forth in GC Exh. 3.
e. Ronnie McFadden30
McFadden’s backpay period ran from July 6, 2010 to February 27, 2012. He collected
unemployment from July 6, 2010 to February 10, 2012. McFadden was employed by
Respondent at the time of his testimony and he began working there in 1994. He started for
Respondent on the night shift at the warehouse and at the time of the hearing he was working 35
day shift at the warehouse. Prior to working for Respondent, McFadden worked for Schwartz
Brothers as a warehouseman, where he was eventually promoted to a supervisory position.
McFadden was born in 1958, making him around 52 at the start of the backpay period. He has
a high school diploma.
40
McFadden lived in the Hyattsville, Maryland vicinity during the backpay period.
McFadden has a driver’s license. McFadden has a forklift license which he received from
Respondent. McFadden testified each company gives its own forklift exam so the license he
obtained at Respondent was not transferrable to other companies. McFadden graduated high
school in 1976 or 1977 and then he started working for Schwartz Brothers shortly thereafter. 45
McFadden testified all his professional experience has been in warehousing. McFadden has
been driving a forklift since the 1970’s. McFadden testified he started off at Respondent as an
assistant supervisor, then a foreman, and then a lead person. McFadden was a lead person
JD–34–14
37
until the start of the strike, but he was not recalled by Respondent as a lead person.17
McFadden had no interim earnings during the course of the strike.
McFadden testified unemployment had a requirement that he had to apply for work
every week in order to qualify for benefits. McFadden estimated that unemployment required 5
that he apply to three or four jobs per week. McFadden testified he had to list the names of
the employers he applied to on the unemployment website. He testified he applied to four
places a week during the backpay period and he reported those to unemployment. He
testified that some of the job listings he filed with unemployment he recorded on a separate
sheet of paper and some he did not. He testified he did not write them all down due to time 10
constraints. McFadden testified he provided the list of jobs he wrote down on the Region’s
questionnaire.
McFadden testified he received the Region’s questionnaire in 2013. McFadden filled the
nine item employer contact page for each quarter of his questionnaire with the names of nine 15
employers, listing the date of contact, and the name and address for the employer contacted.
For the period of July 1, 2010, through September 30, 2010, for the employers he listed on the
questionnaire McFadden testified he submitted applications on line. He testified that he
reported these nine applications to the unemployment agency. McFadden listed nine items for
the period October 1 through December 31, 2010. McFadden testified the nine items were 20
jobs he looked for on the internet and he filed an online application for them.
For the period of January 1 through March 31, 2011 there are again nine items listed
on the questionnaire. The third item listed was called Afghan Bakery to which McFadden
testified he was applying to be a supervisor at the bakery. He testified he had never worked in a 25
bakery. The next item listed is Fashion Accessories, to which he also testified he was applying
to be a supervisor. McFadden testified he has been a warehouse supervisor with employees
under him so he was applying for supervisory positions. McFadden testified “I applied the
supervisor position at them places.” He testified Fashion Accessories does not have a
warehouse it is a retail store. McFadden did not have any retail experience. McFadden testified 30
the next one D.C. Water and Sewer Authority, he was also applying for a supervisory position.
He testified, “I'm going to supervise employees. I have a supervisor qualification.” He testified
he had never worked in sewage. There is also a Mexican Grill listed to which McFadden
testified he applied for a supervisory position. McFadden testified he has cooking
experience, but has never supervised workers who were cooking. There is another 35
restaurant listed in this quarter to which McFadden testified he had never worked in a
restaurant. McFadden explained, “I'm a pretty good cook. I do different things. I do mine out
of books and stuff. And I'm a very good cook, an excellent cook.” He testified, “You don't
need professional cooking experience to be a cook, ma'am.” McFadden admitted he had not
worked in the industries listed for this quarter. He testified he had supervisory experience 40
when he worked for Schwartz Brothers. When asked why he thought his supervisory
experience would translate to other entities, McFadden testified, “during that time I was trying
to find a job so I could take care of my family and stuff. And most issues, anywhere I could
apply and any one will accept me, I would take it, during that time.” McFadden testified he
applied for some supervisor jobs because they were advertising for a supervisor positions, and 45
to him that related to how many employees the supervisor had under them that you are qualified
to supervise, and since he had experience as a supervisor he applied.

17 Counsel for the General Counsel stated McFadden’s status on recall was not an issue in
this proceeding.
JD–34–14
38
For the period of April 1 through June 30, 2011, there are again nine items listed, while it
is not listed on this page, McFadden testified Pepsi-Cola, was warehouse. The rest were not
warehouses. As to the rest, McFadden testified they all, except one, had an opening for a
supervisory position and he applied for a supervisory position at each one. He testified he had
no specific experience in the industry as a supervisor. During this period, McFadden listed 5
Bowie Police Station, where he testified he was not applying for a supervisory position. He
testified that was a position where he would be working the phone for emergency calls.
McFadden testified in that job they were training someone to be a call person.
Concerning the period July 1 through September 30, 2011, one item listed was Adidas 10
North America. McFadden testified he did not have any experience with shoes or any retail
experience. As to the other items listed, McFadden testified he could not recall what Zeds,
Shine Masters, Clean and Safe, Seven Plus, or Cash for Washington do. He testified this was
so long ago. As to Seven Plus, McFadden testified it just popped up on the internet. “I applied
for a job.” For the quarter October 1 through December 31, 2011, McFadden testified he did 15
not know what Soft Brush Studio does. He testified, “All I did, if they had an ad on the
internet, then I applied for the job.” He testified he did not apply for supervisory positions for
all these that “I just applied for -- some jobs I applied for just to see if I can get the job.
McFadden had difficulty recalling the specifics of the listed employers. When asked if any
were warehouses, McFadden testified, “I just went online. I just applied on there. It got to a20
point that I went online applying for jobs just to see if I can get anything at the at this time.”
McFadden testified that to his knowledge none of the nine jobs listed were warehouse jobs.
He testified it could have been but he did not recall.
McFadden testified that when he went on strike at the beginning he was looking for some 25
warehouse jobs. McFadden, upon reviewing the list of jobs for the quarter July 1 to September
30, 2010, at first, identified five of the nine jobs as being warehouse jobs. For the quarter
October 1 through December 31, 2010, he identified two out of the nine jobs listed as being
warehouse jobs. However, when he was later asked the same question he testified that only
one job in the July 1 to September 30, 2010, quarter was a warehouse job, and that there were 30
no warehouse jobs listed in the October 1 through December 31, 2010, quarter. In the quarter
July 1 through September 30, 2010, as listed on his questionnaire, the employers included:
Acme Movers & Storage, Washington Archives, Allstate Professional Movers, Acorn Self
Storage, and Mac Arthur Liquors Warehouse.
35
McFadden, upon clarification of the question, testified as to the nine jobs he listed for the
quarter January 1, 2011 to March 31, 2011, that eight were not warehouse jobs, and one he
could not recall. For the period April 1 through June 30, 2011, McFadden testified that eight
were not warehouse jobs, and that one was. For the period July 1 to September 30, 2011,
McFadden testified that none of the nine jobs listed were warehouse jobs. For the period 40
October 1 through December 31, 2011, and January 1, 2012 to March 31, 2012, none of the
jobs listed were warehouse jobs.
McFadden testified all of the places he listed in the Region’s questionnaire he submitted
applications to them on line. He testified he did not receive an interview from any of the places 45
he listed in the questionnaire, and he did not receive an interview for the time he was out work.
McFadden testified he received no response from any of the companies, and when asked if he
was certain that his applications went through he responded, “I am not a genius with a
computer, ….” McFadden applied for jobs on line using a website called Hotjobs.com.
McFadden went to that site, and then he filled out job applications on line. McFadden testified 50
that in July 2010 and throughout the backpay period he went on the site at least three to four
JD–34–14
39
times a week. McFadden testified he has a computer and Smartphone which provide him with
internet access. He testified he has no professional experience with computers or any training
on their use. McFadden testified, “I still don't have a lot of experience with a computer.”
McFadden testified his son introduced him to the Hotjobs website, and his son told him what to
fill out. McFadden testified, “I am not a genius with a computer. Because if you're going to ask 5
me how did I look for a job on the computer, not experienced, but with my son's help –“.
McFadden testified that in addition to the items listed in his questionnaire there were
other places where he applied, such as going into a store and if he saw they were be hiring he
would apply. He testified he did not list them in the Region’s questionnaire because it was so 10
long ago he forgot what stores he went to. McFadden testified the stores were located in Prince
Georges County. He estimated he went to stores seeking work about 40 times during the
backpay period, and if they had a hiring sign up he would go in and apply for the job.
McFadden testified that he read the classified job section in Washington Post every 15
Sunday during the backpay period. He applied for jobs he qualified for, and even some he did
not that he learned about from looking at the paper’s classifieds. McFadden followed a similar
process in looking and applying for jobs listed in the PG Gazette. McFadden testified there were
jobs posted every Sunday in the Washington Post that he felt qualified for. He testified there
were jobs posted every Wednesday in the Gazette for which he thought he was qualified which 20
is why he applied. McFadden testified the jobs he applied to from the Post and Gazette were
different from the ones he listed in his questionnaire. The jobs he listed in the questionnaire he
found in Hotjobs.com
Respondent argues that despite having no culinary or sales experience, McFadden 25
repeatedly contacted restaurants and retail establishments which were supposedly recruiting
supervisors. Respondent cites Big Three Industrial Gas, 263 NLRB 1189, 1219 (1982), for the
proposition that an employer is not obliged to subsidize a venture where a discriminatee
voluntarily absences himself from the comparable labor market. The referenced page cite in Big
Three refers to discriminatee Wylie, a millwright-helper, who did not register with the state 30
unemployment agency and admittedly did not pursue job leads suggested by the union’s
representative. During the backpay period he took a low paying job as an equipment handler
with a friend’s band. He held this job for a year and one half and explained he was just doing
something he enjoyed. The judge, as approved by the Board, found that Wylie’s backpay was
tolled in all quarters in which he willfully failed to engage in a good faith search for work for 35
employment comparable to that which he performed for the respondent. There, an official for
the state unemployment office testified there was a relative abundance of laborer, maintenance,
and helper type jobs during Wylie’s backpay period.
Here, Respondent argues that McFadden’s claims that he conducted an online job are 40
unsubstantiated, and that his testimony vacillated as to the nature of that search. Respondent
argues his testimony that he applied to such places as Threads and Soft Brush Studios on the
internet is nonsensical that he did not know what positions he was applying for. Respondent
argues that McFadden utterly failed to search for jobs commensurate with positions he had held
for the last 30 years, and that his backpay must be tolled in its entirety.45
I do not find Respondent’s arguments persuasive, in Big Three Industrial the cited
discriminatee failed to register with the state unemployment agency, failed to follow direct
referrals for work from his union representative, absented himself from the labor market for a
year and one half to travel with a friend’s band for very low wages because he enjoyed it, and 50
JD–34–14
40
then left an area with plentiful jobs to an area with much lower job availability for personal
reasons unrelated to his search for work.
With respect to McFadden, at the time of the strike he was in his 50’s, had only a high
school education, and spent his whole working career in a warehouse mainly operating a forklift. 5
He had very few computer skills, in what has become a high tech society. He had worked for
Respondent since 1994, a period of about 16 years at the time of the strike, and would have to
explain why he was no longer employed there to any potential employer, or it would have
created questions by reading his resume. Unlike the cited discriminatee in Big Three, he
applied for and received unemployment benefits, and his testimony reveals he met the state’s 10
requirements in documenting his job search to that agency for benefits. While his testimony did
vacillate in certain respects, I attribute this more to the passage of time rather than an intent to
deceive. He credibly testified that he kept a partial record of the employers he contacted on line
that he filed with the state, and that he recorded those on his questionnaire. The detail of the
address, date of contact, and name of the company over about a two year period serves to 15
confirm that he conducted the internet job search as he testified. I find the nature of his job
search, of which Respondent complains was limited by his admittedly poor computer skills in
developing better search inquiries, as well as a frustration in obtaining warehouse work as he
testified. While he only listed one warehouse in the first quarter of his search there were also
moving and storage companies listed which appear to be related work. Since, he was at a low 20
skill and educational level at Respondent, I do not find that his applying to jobs in other fields
with low skill levels removed him from applying for comparable work. The frustrating nature of
his search was revealed by such testimony that he was looking for any place that would take
him. His reliance on his supervisory experience to obtain work as a supervisor in other arenas
was an attempt to market the skills he had. McFadden credibly testified his internet job search 25
was through the aid of his son, and was augmented by pursuing classified ads in newspapers
and by multiple direct visits to stores.
As set forth above, I do not find that Respondent has established that, during the
relevant time period there was a robust labor market for someone at McFadden’s age, skill and 30
educational level. Rather, here Respondent unlawfully failed to recall a long term older
employee, with a limited education and skill set, and those qualities defined the nature of his job
search. I find that Respondent, not the employee should suffer the consequences of its actions,
and I find McFadden is entitled to full backpay as set forth in the compliance specification, as
amended and set forth in GC Exh. 3.1835
f. Trevor Holder
At the time of his testimony, Holder was working for Respondent as a warehouse
person. Holder’s backpay period ran from July 6, 2010 to March 12, 2012. He collected 40
unemployment from July 17, 2010 until March 3, 2012. Holder was born in 1966, and he
graduated high school in Guyana. Holder began working for Respondent in 2003, and he
became warehousemen there in 2009. Holder has only held two jobs since living in the United
States, the first was with Track Auto where he was a fork lift operator and loaded trucks for
about 12 years. The second was with Respondent. Holder lived in District Heights, Maryland 45

18 Respondent did not articulate in its brief any reason why McFadden was not entitled to the
night shift differential during the backpay period, and since he held a night shift position prior to
the start of the strike, I have concluded as testified to by the compliance officer that he was
entitled to the differential in his backpay calculation.
JD–34–14
41
during the backpay period. Holder has a driver’s license. As a warehouse person, he loads
trucks, and is a forklift operator.
Holder filled out two NLRB questionnaires concerning his job search. He could not recall
why he received two questionnaires, or which one he filled out first. In one questionnaire, which 5
for purposes of reference I will label questionnaire A, for the period of July 1 to September 30,
2010, Holder stated he was unable to work because he “could not find a job.” He listed five
employers for his job search for that period, one of which was a staffing company. In the other
questionnaire, referred to as questionnaire B, Holder listed no employers for his job search
during that period. Holder testified the five jobs he listed in questionnaire A for the period July 1 10
through September 30, 2010, included all of the jobs he tried to get during that time, including
jobs he may have seen in the newspaper.
In questionnaire A, for the period of October 1 through December 31, 2010, Holder again
stated he was unable to work because he could not find a job.19 Holder testified at the hearing 15
he was able to work during all of the backpay quarters, but he “didn't get work.” Holder testified
he was looking for work. In questionnaire B for the quarter October 1 through December 31,
2010, Holder recorded three jobs for his job search, one a warehouse, and another at Cort
Furniture. For the same period in questionnaire A, he had no jobs listed. Holder testified that
during this period he reported to the state unemployment agency how he was looking for 20
work. He initially testified that during this period he applied to three or four jobs a day, and
when asked why he only listed three jobs on the questionnaire he answered, “I don’t know.”
Holder testified the state unemployment agency sent him a book to record his job search, but
he misplaced the book. Holder testified to receive unemployment he had to apply every two
weeks. He then testified he applied for jobs “like three, about three a week, two a week.” He 25
then testified, he applied for, “a couple of jobs a week. At least I think it’s three or four jobs, I
can’t remember.” He testified he thought it was three or four jobs a week.
For the period of January 1 through March 31, 2011, in questionnaire B Holder listed two
companies for his job search. In questionnaire B for the period of April 1 through June 30,30
2011, Holder listed three jobs including Giant Food Warehouse. For this period in questionnaire
A, Holder wrote, “I did not have extra cash to make copies at Staples so I only have copies for
a few weeks. Most weeks I sent the original job search record without making any copies
because I could not afford it. But I did try hard to find a job because we have five children.”
Holder testified unemployment sent him a document to submit to unemployment to document 35
his job search. He testified he sent the original to unemployment, but did not make a copy for
his records.
For the period July 1 through September 30, 2011, on questionnaire B, Holder listed
three jobs. The job listing page for questionnaire A was blank. For the period October 140
through December 31, 2011, Holder listed eight employers as part of his search on
questionnaire A. Holder testified he applied to the eight places listed during December 12
through 14, 2011. However, he testified he also applied to employers in October through
November 2011, stating, “I apply, yeah. Different place I go to, different warehouses around
my way.” He testified he applied to a tile warehouse during that time period. He testified he 45
did not make a written record of these jobs. Holder, as reflected in questionnaire A for this
period applied to three different Lowes locations, for which he testified to do warehouse work.

19 Holder made the same statement for every quarter in questionnaire A through the quarter
ending in March 2012.
JD–34–14
42
For the period January 1 through March 31, 2012, Holder listed four employers on
questionnaire A, showing the contacts took place between January 10 and 13, 2012.
During the backpay period, Holder testified he reviewed the Washington Post on a
weekly basis as part of his job search. He testified, “I go to look for job, look under word job, 5
and they've got opening, call and see if they're hiring. I use my house phone. I don't have a
computer.” He testified he did not know how to use a computer. He testified he would look for
jobs in the paper, and if there was nothing in the paper, he had his kids to “search on the
Internet, and they will help me.” Holder testified he had a one year old child, that he only had
one car, and when his wife came home from work, she would take over the child care and he10
would go where they had an opening, including Giant and Safeway and “different places.”
Holder testified that he talked to about eight or nine friends during the backpay period
concerning his search for work. He testified “about every week, every weekends I talk to them
and I ask them and I got to hear I need a job, and they would tell me, come up here, go15
there, and I would go but they're not hiring.” Holder did not recall the places he went to as a
result of those conversations. Holder was not employed during his backpay period, and he
could not recall if he had any job interviews.
Holder was in his mid-40’s during the backpay period. He had a high school education, 20
which he obtained in another country. He did not have a cell phone, and he did not use a
computer. He had a driver’s license but his access to a vehicle was limited by his wife’s work
schedule, and his job search time was limited because of child care duties he had to assume
due to loss of income.
25
Respondent argues Holder’s testimony and assertions of a job search over all lack
credibility because of the inconsistent questionnaires he provided to the Region, the paucity of
employers listed for the search in those questionnaires, as well as certain admissions he
purportedly made that certain employers listed on the questionnaires were the only employers
he filed with unemployment. Respondent cites Moran Printing, Inc., 330 NLRB 376, 381 (1990), 30
where discriminatee Dixon was disqualified for backpay for certain inconsistencies in Dixon’s
presentation. However, with respect to Dixon, his testimonial inconsistency was only a factor
included in several reasons for which the judge denied him backpay. The judge noted Dixon’s
testimony concerning his job search was contradictory between a deposition given at a court
proceeding and an NLRB compliance proceeding two weeks later, and that both varied from a 35
more detailed list concerning his job search that he had submitted to the NLRB. The judge
found that he did not begin his job search until about nine months after his discharge. The
judge noted that Dixon’s admitted delay in seeking employment, failure to keep current in the
union’s out of work book, and his failure to call newspaper ads for the job he claimed to be
seeking were among several factors, along with his unreliability as a witness, that established 40
that he did not make a diligent search for work.
In the instant case, Keough’s testimony reveals that the Region’s questionnaire was not
sent to the discriminatees until around March 2013, which was a full year after Holder was
reinstated with Respondent. Keough also testified that discriminatees who returned 45
questionnaires that raised questions were contacted and sent another questionnaire. While
Holder could not recall the circumstances in which he received the second questionnaire it is
likely the result of the process Keough described. The Region’s delay in sending the
discriminatees the questionnaires cannot fall upon the discriminatees, who had already been
unlawfully denied reinstatement. Moreover, Respondent cannot be held harmless due to its 50
desire for continued litigation, rather than offering the discriminatees immediate reinstatement as
JD–34–14
43
required by the underlying decision here. Rather, there was no showing that until around March
2013, that Holder was informed by anyone that he had to keep additional records of his job
search other than those for which he submitted to unemployment. Thus, while I do not overlook
the inconsistencies in the two questionnaires, or the small amount of jobs listed, I do not find
that sufficient to discredit Holder’s testimony that he engaged in a consistent job search to meet 5
what he perceived to be his bi-weekly reporting requirements to unemployment. Holder credibly
testified that due to his extreme financial circumstances he did not keep copies of the filings he
made with unemployment. In this regard, at the time he tendered those documents to
unemployment he was given no reason to otherwise maintain copies.
10
Respondent also points to a couple of points in Holder’s testimony where Respondent
contends he admitted that the employers listed on the NLRB questionnaires for a given period
were the only employers Holder submitted to unemployment. Yet, at one point in response to
Respondent’s questioning Holder testified that was not the case, that he was applying to
multiple employers a week, yet Respondent persisted in this line of questioning. While Holder 15
did state with more particularity that the five employers listed for the initial quarter in his backpay
period were the only employers he filed with unemployment, I find his response there to be more
of the same, and have credited his testimony that over the backpay period he was aware of a
search requirement for unemployment, and that he engaged in a consistent enough search over
the backpay period to meet those requirements.20 20
This conclusion is confirmed by the fact that Holder was able to recall, during his
testimony, some of the employers he contacted for the Region’s questionnaire for each quarter
of the backpay period, and by his credible testimony that he read the Washington Post on a
weekly basis and applied to job opportunities listed there as part of his job search, and well as 25
by his credited testimony that he reached out to multiple friends in an effort to gain employment.
Accordingly, I find Holder is entitled to the backpay amount as set forth in the amended backpay
specification, as set forth in GC Exh. 3. Respondent submitted no evidence to establish that
compliance specification was inaccurate concerning interim earnings by Holder.
30
g. John Smith
Smith was born in 1949, making him in his 60’s during the course of the strike. Smith
has a GED high school equivalency degree. He served in the military from 1969 to 1971. Smith
lived in Hyattsville, Maryland during his backpay period. Smith has a driver’s license. Smith 35
was working for Respondent at the time of his testimony as a warehouse worker. He was hired
by Respondent in 1994. At the warehouse, Smith operates a forklift, pulls merchandise and his
primary responsibility is shipping things to customers in different parts of the country. Smith
loads items but part of his responsibility is to select the best means to ship items such as FedEx
or a commercial trucking company. Smith testified his work is different than the other 40
warehouse people in that he pulls the order to be shipped, wraps it, weighs it, and then uses the
computer to determine the most efficient, according to weight, way to ship it. He testified none
of the other warehouse workers do this. Smith testified he is not a lead person. Smith worked

20 Holder’s testimony at the hearing did vacillate as to the frequency of his applications, at
one point stating it was three or four jobs a day, and then changing it to between two to four jobs
a week. I do not find this was part of an intent to deceive on Holder’s part, rather it was
attributed to poor recollection in 2014 as to events that took place over a 2 year period from
2010 to 2012. I have credited Holder that he was aware of a bi-weekly reporting requirement of
his job search with the state unemployment agency, and he generated a sufficient job search
throughout the backpay period to meet that requirement.
JD–34–14
44
for a temporary staffing agency called America’s Labor, prior to working at Respondent. The
referrals there included construction, warehouse work and labor work. Smith’s backpay period
ran from July 6, 2010 to February 12, 2012. He collected unemployment benefits from July 3,
2010 to January 21, 2012, as reflected by the compliance officer’s summary.
5
Smith testified that while he was on strike he had to inform the state unemployment
agency of whether he was searching for work in order to qualify for benefits. Smith testified
unemployment did not ask where he applied in his search for work, but rather he was just asked
if he was looking. He testified there was a check mark he had to make on the computer on the
state’s website. Smith testified he had to check if he was or was not looking for work, but he did 10
not have to report on the website where he looked. Smith could not recall whether he was
asked on the website how many employers he sought work with.
Smith identified the questionnaire he received from the NLRB concerning his job search,
and he thought he received it in 2013. For the quarter July 1 through September 30, 2010, 15
Smith listed nine employers for his job search on the questionnaire, which he testified he
applied to during the quarter. Included in the nine items listed for this quarter, Smith testified he
applied to Sheraton Silver Spring on line, that he learned by talking to someone on the strike
line that they were looking for busboys. Smith listed three jobs that he applied for in August
2010 on the questionnaire, but testified he was quite sure he applied to additional jobs in 20
August, but he did not recall what they were. Smith testified that he listed the three on the
questionnaire ”Because I had these here wrote down.” Smith testified he had not made a
record of any of the other jobs he inquired about during that month.
For the quarter October 1 through December 31, 2010, Smith listed nine employers for 25
his job search on the questionnaire. The fourth employer listed was S. Freedman and Sons.
Smith testified he went there because a few of the drivers from the labor dispute were hired
there, and he wanted to inquire if they were hiring warehousemen. For the period January 1
through March 31, 2011, Smith listed nine employers on his questionnaire. He testified he
applied to the Washington Post as someone to insert advertisements and coupons in the 30
newspapers. One of the employers listed was UPS Freight. Smith listed three jobs in January
2011, and when asked if there were other places he applied to that month, he testified,
“Chances are, there are.” When asked if he could recall what they were he testified, “Not
back then, I don't. But knowing what my objective was --To find employment. I couldn't recall
them off the top of my head.”35
Smith’s questionnaire that was placed in evidence skipped the quarters April 1 through
June 30, 2011, and July 1 through September 30, 2011, and Smith could not recall whether he
received from, or submitted a questionnaire to the NLRB relating to those quarters. However,
Smith identified a separate document in his handwriting which he testified he submitted to the 40
NLRB listing 16 jobs running from February 3, 2011 to July 15, 2011. Smith testified he applied
to the jobs listed, and that there were other jobs he applied to during this period. He testified he
could not name the other jobs. It appeared from a date stamp on the list that Smith faxed this
sheet of jobs to the Region on September 20, 2013. Smith testified he had the sheet faxed in
to the Region’s resident office, and that it was around the September 20, 2013, date recorded 45
as the faxed date on the document. He testified he remembered these jobs at that time,
“Because I had them wrote down. I would write them down, to be honest, as I felt like it.” The
timing of the September 20, 2013, fax can be presumed to be in relation to the trial in this case,
the first day of which took place on September 30, 2013.
50
JD–34–14
45
In Smith’s questionnaire for the period October 1 through December 31, 2011, he listed
eight employers, the last of which was Kay Jewelers to which he applied as a salesperson.
Smith admitted he has no sales experience. Smith also applied as a house sitter for a home for
troubled teenagers during this quarter. Smith’s last entry in the questionnaire was dated
November 2011. He returned to work at Respondent the first week of February 2012.5
Smith testified that during the strike he applied to other companies the Union represents.
He testified the Union operates a program where you have to pay a fee and you call in each day
to work at different convention centers. Smith testified he enrolled in that program. Smith
testified you get up early in the morning and call in around 4 or 5 a.m. and he was seeking work 10
as a forklift operator. Smith testified he had to be available and they would contact him by
phone if they had work for him. Smith testified he could not recall when he started the program,
but he called every morning until he returned for work for Respondent. Smith later estimated it
was around 6 to 9 months before he returned to work at Respondent that he began his daily
calls to the Union for referrals. Smith testified when he called in to the Union for referrals he did 15
not have a valid forklift operator’s license so he was not given any work. Smith testified, “I never
gave up, but I got on the list to take the forklift operator's exam. And before it came up, I got
called back to work.” Smith testified he had to sign up for the forklift operator's exam and once
enough people were enrolled in the class they notified him of when and where the class would
be. Smith estimated he initiated interest in the forklift operator’s exam about 2 or 3 months 20
before he was recalled to work at Respondent. He testified the cost of the class was covered by
his initial payment to join the program.
Smith testified that, during his backpay period, he read the Washington Post 6 days a
week and he reviewed the paper’s classified job section. Smith also testified he has a computer 25
with internet access. He testified he used a website called Jobs.com about once every 7 to 10
days as part of his job search. He testified he would check off what he was interested in and
send them an online application then wait to hear back. He testified when he registered for the
site, he would receive emails about jobs from the site and he would check his emails. Smith
testified he used Monster.com and a Washington Post online site as part of his job search and 30
those sites followed similar procedures. Smith testified he used Monster.com two or three times
a month during the backpay period. He testified he would check to see what listings they had
under warehouseman, and then apply for the ones he was interested in. Smith testified he used
the Washington Post site two or three times a month. Smith testified his first choice on the sites
was warehouseman, and his second choice would be anything that was labor intensive such as 35
construction, janitorial work, and things such as a delivery driver. Smith testified he did not need
any help performing his job search on the computer. Smith testified concerning Monster.com
that there were more than 10 jobs that he found he was interested in, but he could not say if
there were more than 20. Smith testified he received some emails from the Jobs.com site, but
he could not say if it was more than 10 during the backpay period. Smith testified that a lot of 40
the places concerning the emails wanted to charge him to get work, and that he did not submit
application to those places. Smith testified he did submit applications to places he found on
Monster.com but he could not recall the names of those places.
Respondent contends in its brief that the documents Smith supplied to the Region 45
showed no job contacts during the months of August, September, December 2011, and January
2012. Respondent also questions Smith’s assertion that he looked for additional jobs to the
ones he listed, but did not feel like writing them down. Respondent takes issue with two of the
jobs Smith applied to at the end of his backpay period, one as a jewelry sales person and
another as a caregiver for troubled teenagers. Respondent questions the veracity of Smith’s 50
search stating it was done only to be sufficient to qualify for unemployment. Respondent
JD–34–14
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argues, “The only remotely credible portion of J. Smith’s testimony concerned his usage of a dial
in number the Union provided for job seekers.” However, Respondent argues this evidence
alone does not establish the reasonableness of an employee’s search for interim employment.
Respondent cites Moran Printing, 330 NLRB 376 fn. 2 (1999), where an employee as part of his
search for work failed to sign the union’s out of work book each month causing his name to be 5
dropped further and further down the referral list. In fact, the Board noted the employee signed
the book in January and did not sign again until May.
In the instant case, Smith credibly testified that towards the end of his back pay period
Smith called into the Union’s referral hall for which he had to pay a registration fee, on a daily 10
basis for a period of 6 to 9 months at the hours of 4 or 5 a.m. in the hope of obtaining day work
as a forklift operator. Despite his lack of success in his efforts, Smith signed up for the Union’s
fork lift exam to further his efforts to get forklift work, but was recalled to Respondent before
taking the exam. Thus, the months at the end of his backpay period where he did not
specifically name an employer were supplemented by Smith’s efforts at the Union’s hiring hall, 15
as well his credible testimony concerning his efforts made through regularly reading the Post’s
classified ads as well as his independent efforts on the internet as to his job search. The fact
that Smith did not record his job search efforts in as much detail as Respondent would require,
or could not recall certain inquiries he made in 2010 to February 2012, during his testimony in
2014, does not serve as a basis to disqualify him from his backpay or otherwise suggest that his 20
job search was not reasonable or in earnest.
The questionnaire Smith submitted to the Region is missing certain pages covering two
backpay quarters. Keough testified the questionnaire was only first issued around March 2013
to Smith. Keough testified she resent questionnaires to discriminatees when there was 25
something unclear or unusual about their response, but she was never asked to explain why the
two quarters were missing from Smith’s questionnaire, or why the Region failed to follow up
pertaining to the apparently missing pages until shortly before the date this proceeding opened.
Smith, who filed a detailed response on the remainder of the questionnaire for each quarter
listing nine items per quarter, could only state he could not recall whether he originally tendered 30
information relating to the missing quarters when he filed his questionnaire with the Region. I
have concluded that since this is a backpay proceeding and that ambiguities are to be construed
in favor of the discriminatee, despite the unusual circumstances here, I assign fault to the
Region’s compliance efforts and not that of Smith. First, although Keough became compliance
officer in 2011, the questionnaires were not sent to the discriminatees until 2013, that is after 35
their backpay period had ended, creating difficulties in recall and in their record keeping. With
respect to Smith, while I have concluded that no pages from his questionnaire were purposefully
withheld by him, or intentionally lost by the Region, it appears that from Keough’s testimony
when they were found to be missing Smith should have been contacted earlier on to have the
requested information resubmitted. Since, I lay this at the hands of the Region, which Keough 40
testified was handling another large case during her early period on the job, I cannot place the
blame on Smith. Moreover, the job list Smith submitted covering some of the gaps in the
missing questionnaire pages, has been further supplemented by Smith’s credible testimony
concerning his job search. I have therefore credited the contents of his supplemental list, which
for the most part is consistent with the content of his questionnaire which also contains the 45
specific address of the employers listed. I also find Smith’s seeking some jobs that Respondent
takes issue with came as a result of his willingness to accept any work due to the lack of his
success in finding a job.
I therefore find that Smith, who was in his 60’s at the time of the strike, who had been 50
working for Respondent for around 16 years as a warehouse employee when the strike began,
JD–34–14
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and who only had a high school equivalency degree made a reasonable job search during the
backpay period given his age, education, and skill level. I find that he is entitled to full backpay
as set forth in the amended compliance specification, and as designated in GC Exh. 3.
h. Glenn Smith5
Smith was born in 1955, making him in his mid-50’s at the time of the strike. Smith’s
education level was the 12th grade. During his backpay period, which ran from July 6, 2010 to
November 12, 2012, Smith lived in Capitol Heights, Maryland. He collected unemployment
benefits from July 3, 2010 to December 31, 2011. At the time of the hearing, Smith worked for 10
Respondent in its warehouse. Smith has been an employee of Respondent since 1996 and
began working as a warehouse employee in February 2004. Smith testified that as a
warehouseman at Respondent, his duties include checking in and stocking merchandise, driving
a fork lift, and performing similar work. Prior to working in Respondent’s warehouse, Smith
worked for Respondent in manufacturing where he filled some of the liquid produc t in 15
bo t t les and labeled the product. Prior to working for Respondent, Smith worked at Sears
from 1983 to 1996, where he held a position of store engineer, during which Smith rerouted
wires, drilled holes, changed bulbs, and made sure the boiler room was working properly. Smith
learned the job at Sears through on-the-job training. Prior to 1983, Smith worked as a clerk at
F.L. Watkins, a hardware store, where Smith ran the cash register and waited on customers. 20
Smith learned this job through on-the-job training.
Smith testified he was told by the state unemployment agency that he had to search for
a job to receive benefits. He could not recall if he was told how many jobs he had to apply to.
He testified he had to call in every other Friday to telecert that he was looking for employment. 25
He testified unemployment did not ask anything else specific by phone. Smith testified
unemployment gave him a book to record his job search and he filled out the book, but no
longer had it in his possession at the time of the hearing. Smith testified he wrote down the jobs
he applied to as part of his records for unemployment. Smith testified his unemployment ended
because his 86 weeks of benefits expired.30
Smith identified the questionnaire he submitted to the Regional office. He testified he
sent it back in one mailing. Smith testified he checked the unavailable to work strike duty box in
the questionnaire due to a misunderstanding, and that by checking the box he was not stating
he was unavailable for work. I credit Smith’s explanation because although he checked the box 35
he attached detailed sheets throughout the questionnaire listing employers he had contacted
seeking work.
Smith testified some of the jobs he applied to were retail jobs. He testified that, as his
questionnaire shows, on October 2, 2012, he went to the Arundel Mills with an all day walk 40
looking for work. He testified he inquired about a job at a casino that was being built there, and
in his view that would not have been a retail position. Smith testified there were no other places
at Arundel Mills that were not retail. Smith was questioned about some of the other jobs he
applied to as listed on his questionnaire. Smith listed Ron the Plumber. Smith testified he
inquired about this job with a friend who had worked with Smith at Sears. Smith testified he is 45
not a plumber but to be a plumber’s helper he did not need a lot of experience. Smith also
applied with TruGreen, which he testified was a chemical company laying fertilizer on grass.
Smith’s job search included, KFC and Rite Aid. He testified at the latter he was applying for any
job, nothing specific. He testified to the same concerning his application for Walgreens. Smith
submitted an application for Radio Shack. Smith testified that, during his backpay period, he 50
received one interview for a liquor store restaurant establishment, but he did not get the job.
JD–34–14
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For the period July 1 through September 30, 2010, concerning the jobs listed on his
questionnaire, Smith testified that Capital Brick was the only one listed he thought was a
warehouse job. He testified he submitted an application there. Smith also applied to Marshalls
during this period, which he assumed was a retail establishment. He testified to his recollection, 5
he was applying for a stockroom or sales job there.
The job listing page was missing for the January 1 through March 31, 2011, quarter in
Smith’s questionnaire. However, Smith was shown the compliance officer’s summary of the
job’s he applied to during that quarter and credibly confirmed that he applied to or inquired 10
about the jobs listed in the summary. I therefore conclude that he submitted the job listing page
for that quarter to the Region with his original questionnaire and it was somehow misplaced.21
More specifically, Smith testified he submitted applications to Pier One Imports, Big Lots, K-
Mart, Wendy’s, CVS, and Sherwin Williams, and that he submitted on line applications to Home
Depot and Wal-Mart, and he made an inquiry with Macy’s but they were not receiving 15
applications. Smith testified that none of the jobs he applied to in that quarter were warehouse
jobs. He testified he thought K-Mart, Macy’s and Wal-Mart were retail establishments. Smith
testified he had never worked retail before this period. Smith testified one of the jobs listed,
Wendy’s, was in the food service industry, and he had never previously worked for a food
service employer. Smith testified, “I would have tried Wendy's if I could have got a job there. I 20
mean, you know, I was putting applications in, you know.”
Smith listed nine employers on his questionnaire for the period April 1 through June 30,
2011. He testified none of the listed jobs were warehouse jobs. Smith testified Sears and
Dollar Tree were retail establishments. Smith testified Sears is a relatively large store, so he 25
was hoping to get something there. Smith testified he applied at Ross hoping to get a job in the
stockroom or sales floor. Smith testified that “Some of these I'm looking at a little different than
others. I'm not going in there with one specific intention to go, to work someplace.” Smith
testified he did not see any of the jobs listed in advance advertising for employees, and he did
not have any reason to believe the places were hiring before he visited them. Smith testified he 30
just drove to the locations.
For the period July 1 through September 30, 2011, Smith listed nine jobs. He testified
that Bob Hall’s was the only warehouse listed. Smith testified he did not see any retail jobs on
the list from his definition of retail. However, Smith testified he was applying for a sales job at 35
Dollar General. Smith testified that on the list Rips was a restaurant, and KFC was food service.
He testified he was applying for a sales job at Advance Auto and Staples. He did not know what
those jobs were paying. Smith testified he asked about Bob Hall’s wages, which he thought
was a union job, and they were paying around $13 or $14. At the time of his testimony, Smith
was making $19.27 an hour at Respondent. Smith testified he did not see any 40
advertisements that any of the nine stores were hiring before visiting them.
For the period, October 1 through December 30, 2011, Smith l is ted n ine jobs.
He test i f ied Southern States sells things for the outdoors such as mulch, and yard
ornaments. He testified he applied there to probably to work in their smal l warehouse. 45
Smith testified he did not consider any of the nine employers to be warehouses with the

21 Similarly, Smith’s questionnaire was missing pages for the quarter October 1 to
December 31, 2010. However, the compliance officer’s summary of Smith’s job search
contained the names, date of contact, and address for nine employers Smith had contacted
during this period.
JD–34–14
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possible exception of Southern States. Smith testified he saw a hiring advertisement for Wawa
on their front door, and he thought it was possible he believed Southern States was hiring
before he inquired, but those were the only two of the nine listed that he thought were hiring
before he inquired. Smith testified Walgreens and Goodyear Tires, among his list, were around
30 miles from his home and that he applied to each in person. Smith testified he submitted a 5
paper application to Walgreens but Goodyear was not hiring for any job he was qualified for.
Included in the list, were Davidsonville Country Market, High's Store, and Ace Hardware
which were about 15 miles from Smith’s home. Smith testified he applied to each in person
on different days although they were all located in Davidsonville.
10
For the period January 1 through March 31, 2012, Smith listed nine employers on his
questionnaire. He testified that, at the time, the only one he heard was hiring before he
contacted them was Nordstrom’s, and he was seeking a warehouse job there. Smith named
Thomas Somerville Company as another employer on the list where he was seeking a
warehouse job. Smith applied to Goodyear during this quarter and he had previously applied to 15
Goodyear at another location. Smith testified he applied to Goodyear during this quarter trying
to get a job on the sales floor. Smith explained, “when you're unemployed you're willing to work
anywhere. You'll just go to places and put applications in and inquire when you're unemployed.
It's compounded by necessity. You're just going to do it.” He testified the procedure for his job
search during this quarter was to go into a place, ask if they were hiring, and submit an 20
application if they were hiring. For the period April 1 through June 30, 2012, Smith listed nine
employers on the questionnaire. He testified out of the nine that Long Fence and Marlo
Furniture were warehouse jobs. Smith testified he submitted an application to Marlo.
For the quarter July 1 through September 30, 2012, Smith listed nine employers. Smith 25
testified that Marshalls was a stocking job, that Verizon might have been a warehouse job. For
the quarter, October 1 through December 31, 2012, Smith listed four employers and an all day
walk at the Arundel Mills Mall in search of a job. Smith testified that one of the employer’s listed
had a small warehouse. He testified that the day he was at the mall he entered two or three
employers seeking employment, and also inquired about employment with a casino that was 30
being built.
Smith testified he worked at Wal-Mart for 8 and ½ months during his backpay period.
Smith worked for Wal-Mart from February 11 to November 2, 2012. Smith testified he worked in
receiving in the stockroom at Wal-Mart. Smith testified the reasons he did not list Wal-Mart as 35
an employer on his questionnaire was because it was not an ideal job there, and he continued
to look for work. Smith testified he was working full-time at Wal-Mart earning $8.40 an hour. He
testified he got the job at Wal-Mart after his unemployment ended.
Respondent argues that the locations Smith submitted to the Region primarily list retail 40
establishments and restaurants in different shopping centers. Respondent asserts he admitted
that he only applied to six warehouses during the backpay period. Respondent contends
Smith’s employment at Wal-Mart after his unemployment lapsed does not legitimize what it
contends to be his deficient job search as he needed a job when his benefits lapsed.
45
I do not find Respondent’s arguments persuasive. Smith was in his mid-50’s at the time
of the strike, had a high school level education, and have been working for Respondent for
around 16 years before the strike began, splitting his time in manufacturing where he labeled
product and filled bottles with liquids, and then he moved to Respondent’s warehouse where he
stocked items and operated a forklift. Smith’s work at Respondent did not depict someone with 50
a high skill level. There was also no evidence that Smith had a high skill level in operating a
JD–34–14
50
computer, although he testified he applied to a couple of jobs on line. Thus, his seeking
employment by going door to door, while criticized by Respondent, was commensurate with his
demonstrated education and skill levels, and I have concluded the detail he recorded his search
along with his recollection and candor show his search was earnest and made in good faith.
5
Moreover, while Smith described such establishments as Sears as retail when
questioned by Respondent, he had a prior history of working at Sears performing maintenance
work. He testified he applied to warehouses, scattered through his search, and some of the
larger described “retail” establishments had non-sales functions such as working in their stock
rooms. In fact, Smith obtained such a job at Wal-Mart toward the end of his backpay period. 10
Respondent criticizes this job stating he only found it when his unemployment benefits ended.
Yet, if Smith had the ability to find a better job when his benefits ran out he surely would have
because he credibly testified he continued his job search while working at Wal-Mart. Moreover,
Smith’s working at Wal-Mart when his unemployment benefits ran out serves to confirm the
bonafides of his job search when he applied to similar venues when he was receiving benefits. 15
Finally, while Smith testified he had not previously performed retail work, this perception was not
correct as he had previously worked at a clerk in a hardware store, where he ran a cash register
and waited on customers. So, I find Smith’s job search was reasonable, made in good faith,
and that the establishments he applied to or to where he sought employment were
commensurate with his education, and prior experience. I also note while Smith was earning a 20
higher wage rate at Respondent than the job he found at Wal-Mart, this was not unexpected
since he had worked for Respondent for 16 years, and in view of his skill level finding a job with
the same pay when he first started out at a new employer was an unreasonable expectation.
Respondent, by it argument, is trying to take advantage of the loyalty Smith displayed to
Respondent as a long term employee. Smith’s loss of income can be directly attributed to 25
Respondent’s unfair labor practices, not to Smith’s search. Accordingly, I find he is entitled to
the backpay set forth in the compliance specification, as amended, and recorded in GC Exh. 3.
(i.) Michael Renteria
30
Renteria was born in 1961, making him in his late 40’s early 50’s during the backpay
period. Renteria completed the eleventh grade and obtained a GED. He then attended a 14
month vocational school for small engine repair from which he received a certificate.
Renteria’s resume attached to his application for employment at Respondent showed he had
previously worked at such places as Sears repairing lawn and riding mowers and other small 35
engine equipment; that he had worked at Home Depot performing sales and customer service in
the lawn and garden department, and he performed some off site engine repairs there.
Renteria was working for Respondent at the time of his testimony and he has been a
repair shop technician there since about 1999. Renteria’s backpay period ran from July 6, 2010 40
to November 12, 2012. He collected unemployment benefits from July 3, 2010 until December
31, 2011. Renteria testified that beginning in July 2010, he was living in Upper Marlboro, but he
also spent a lot of time in Chesapeake Beach with his girlfriend. Renteria testified his address
was in Upper Marlboro, but he primarily stayed in Chesapeake Beach. Renteria moved to
College Park, Maryland in October 2010. In October or November 2011, he moved to Arnold, 45
Maryland where he continued to live until the time of his testimony. Renteria testified that from
April 2010 to March 2011, he did not have a driver’s license, and that he got his license back in
the spring of 2011.
Renteria testified that while he was on strike, in order to receive unemployment, he had 50
to report to unemployment that he was applying for work, but not where he was applying.
JD–34–14
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Renteria testified that he received a packet from unemployment which told him to keep records
of the places he applied. Renteria testified he kept those records by writing it down. He testified
he owned a computer but at the time his printer was not working. He testified he kept
handwritten notes for the jobs he applied to on the internet.
5
Renteria testified he received a questionnaire from the NLRB sometime in 2013. For the
period July 2010 through September 30, 2010, the first employer Renteria listed in his
questionnaire was in July 2010 for Lanham Cycle and Turf located in Upper Marlboro. Of the
eight places Renteria listed in this quarter, six were in Upper Marlboro. Renteria testified that
not all of the places he inquired with for employment were listed on the Region’s questionnaire. 10
He testified when he received the questionnaire from the Region he was pressed for time for its
return, and he could not recall everything from two or three years earlier. Renteria testified he
had written down most of the items from his search, and he placed the employers on the
questionnaire that he had kept a written record of. Renteria testified he was writing down places
he contacted in 2012, but he could not locate them all. He testified that “after unemployment15
ran out, I had no real reason to keep records.” He credibly testified no one told him he might
need the records some day, and “I was sure I wouldn't need them.”
Renteria testified that as far as he was aware the Union did not operate a hiring all.
He testified the Union does find people jobs. Renteria testified Webber suggested that he 20
contact S. Freedman and Sons, and Ferguson Supply. Renteria testified he contacted those
places early in the strike. Renteria testified he did not record S. Freedman in the questionnaire
because he was pressed for time as there was a deadline to return the questionnaire. Renteria
also testified that he applied to S. Freedman between April and July 2010, prior to his filing for
unemployment and he did not document things at that time. He testified he applied for a repair 25
shop technician job at S. Freedman, and he knew the person running the operation there.
Renteria testified he was assured the person would get back to him if they were hiring. Renteria
testified he also talked to that individual on a weekly basis during the backpay period. Renteria
testified he applied to Ferguson through a temp company called Crosby Temp Services.
Renteria testified he did not record this on his questionnaire. Renteria testified he applied to 30
Ferguson in 2011 while he was living in College Park.
Renteria testified that for the period October 1 to December 31, 2010, most of the eight
places listed in the questionnaire were in College Park, Maryland. One of the places Renteria
applied to during this period was AMF Bowling where he was applying as a pin setter35
mechanic. He also applied to The Bamboo Eatery, where he applied to be a cook. Renteria
testified he had a friend who was a manager there. Renteria also applied to Mom's Organic
Market where he applied for whatever was available. Renteria did not know whether these
places were hiring, but walked in and asked. He testified he was told at Mom’s Organic Market
to submit an application on line, which he did. Renteria testified he did not submit an application 40
to the Bamboo Eatery because they said they were not hiring. Renteria also, during this quarter,
applied to Orndorff Spade Roofing, which is a roofing contractor. He testified they did not
have an opening, but he filled out an application there.
During the quarter January 1 through March 31, 2011, Renteria listed nine employers on 45
the questionnaire. The first was Beltway Plaza Shell where Renteria testified he was applying
to work as a mechanic. He testified he is not an ASE certified mechanic, but that he had
worked on cars his whole life. Renteria testified he never worked on cars at Respondent, but
prior to Respondent he had worked at Taylor Rental as a mechanic and that he worked there on
cars and trucks as he worked on their fleet vehicles, as well as on compressors, generators, 50
tampers, backhoes, and Bobcats. Renteria testified he was there for a little over a year.
JD–34–14
52
Renteria applied to CBW Furniture in Laurel, Maryland during this period. In February 2011,
Renteria applied online to Home Depot in Silver Spring. He testified he did not know if they
were hiring there, but he planned to travel there by bus if hired. Renteria testified he had
business cards at the time and he left Advance and Precision Small Engine a business card
during this period. Renteria listed Comfort Inn during this period as an employer he contacted. 5
He testified he obtained an application there, but he did not know if they were actually hiring.
Renteria explained, “I just cold knocked. I was desperate. I needed a job. I would just go
places in my daily travels and see if they were hiring, ask around, go online, read the paper.”
During the quarter April 1 through June 30, 2011, Renteria listed such places as Lindsay 10
Food, testifying he had never previously worked in a food store. He also listed the Tropical
Lagoon stating it was an aquarium and a friend of his was the owner. Renteria had previously
worked at an aquarium in 1988. During this quarter, Renteria listed Jungs Auto Service where
he testified he was applying to be an auto mechanic. Renteria also listed Rising Sun Motors,
Giant Foods and Beltway Hardware. He testified he did not know if the latter two places were 15
hiring in advance of his inquiry. He testified based on his inquiry Beltway Hardware was not
hiring, and that he did not receive an application there. Renteria listed nine employers
contacted in this section of his questionnaire, including three for June 2011. In a subsequent
section of his questionnaire he listed two additional employers that he contacted in June 2011,
they were Maryland Tractor and E & M Machinery.20
For the quarter July 1, 2011 through September 3 0 , 2011, Renteria applied for work at
Noodles and Company and he testified he was looking for a job as a cook, a dishwasher, or
anything. He testified, “Things were getting tough, yeah.” He applied to New York Deli to
work as a cook, to A-1 Pawn Shop to work in a pawn shop. He applied to a campground, 25
where he was seeking maintenance or grounds keeping work. When asked if he had ever
worked for a campground, Renteria replied, “Of course not. But I was willing to work
anywhere at that point.” Renteria testified he was looking for jobs around where he lived
because “I was short on money and that's why my -- I was coming back to my area because
I didn't have a lot of money for gas to go look for jobs.” He testified at Hard Times Café he 30
was applying to be a cook, a bartender, or anything. He admitted to having no bartending
experience. Renteria testified he filled out an application at Hard Times Café. Renteria listed
five employers for this quarter.
During the quarter October 1 through December 31, 2011, Renteria listed eight places 35
where he applied. The first three places listed were Severn Lawn and Power, 84 Lumber, and
the Bike Doctor. The fourth place was Arnold Farms, which Renteria testified was a nursery,
and involved landscaping materials. Renteria testified he was looking to sell grounds keeping
material. He testified he had experience selling grounds keeping material from when he worked
at Home Depot. The next section in Renteria’s questionnaire showed employer contacts from 40
January through April 2012. Renteria listed nine contacts during that period, the last of which
was Jack’s Lawn Mower Repair. He testified he called and they said they were not hiring, at
which point he did not ask to be sent an application. Renteria listed Gary’s Garden which he
testified was another landscaping company. Harbor Freight was listed, which Renteria testified
sold power tools and hand tools. Tractor Supply sold outdoor goods. Renteria testified he was 45
applying to be a mechanic there as he thought they fix tractors.
For the quarter on the questionnaire marked April 1 through June 30, 2012, Renteria
listed contacts for May 2012 and June 2011, of which he listed two for each month. The second
item listed is Ferndale Nursery, which Renteria at first testified was a garden center. However, 50
upon having his memory refreshed showing the employer was a daycare center, Renteria
JD–34–14
53
testified, “I think I called them assuming that this was a, you know, a nursery.” He testified he
thought when he called they told him it was a daycare center, and he did not pursue it.
For the quarter July the 1 through September 30, 2012, Renteria listed four places on
his questionnaire. One of the listings was Fishpaws Market. Renteria testified he was applying 5
to do anything there in that it is a liquor store/deli located near his home. Renteria testified that
during his inquiry they did not offer an application and he did not ask for one. For the quarter,
October through December 31, 2012, Renteria only listed one employer and the contact was in
October 2012. Renteria wrote in that section of the questionnaire “went back to work 11-2012,”
and “Some job contacts done by internet and some by person to person.”10
In his questionnaire for the period July 1 to September 30, 2010, Renteria identified two
employers that he believed performed mechanic work, which he defined as his field which he
stated would be mainly small and medium sized engines. The two employers listed were
Lanham Cycle and Turf and Marlboro Mower and they worked on small engines. For the period 15
October 1 through December 31, 2010, Renteria identified AMF Bowling, C & D Auto Service,
and Orndorff Spade Roofing as falling into the mechanic work category. He testified the roofing
company worked on pumps and things of that nature, and the auto service worked on cars. For
the period January 1 through March 31, 2011, Renteria testified Precision Small Engines
performed mechanic work. For the period April 1 through June 30, 2011, Renteria identified 20
three employers on his questionnaire which he believed performed mechanic work, they were
Jungs Auto Service, Rising Sun Motors, and B. P. For the period October 1 through December
31, 2011, Renteria identified two employers that he believed performed mechanic work, they
were Bike Doctor and Severna Lawn and Power. For the period January 1 through April
2012, Renteria identified three companies that he believed performed mechanic work, they 25
were Bay Area Tire, Tractor Supply, and Jack's Lawn Mower. He testified he thought the
latter two worked on any type of lawn and garden tractor. He testified that each also could
have worked on regular lawn mowers. Other entries in his questionnaire that he thought
performed mechanic work were Sears, Maryland Tractor, and E & M Machinery.
30
Renteria testified he read the Washington Post employment section frequently in July
2010 as they would share it on the picket line. He testified after July, he did not read the Post as
much, but reviewed the help wanted ads on Craig’s list on line. He testified he continued to
review the Post on an occasional basis estimating it was 5 to 10 times a month. Renteria
testified he probably visited the employment section on Craig’s list on a daily basis in July 2010 35
and through the remainder of his backpay period. He testified he sent resumes to employers
he found on Craig’s list. Renteria testified, while on Craig’s list, he decided which jobs to apply
to based on the job description. He testified he was looking for work as a mechanic. He
testified that the applied to positions that he did not list on his questionnaire. He testified he
went on a interviews, that he did not list on the questionnaire because he was pressed for time 40
in preparing the questionnaire. Renteria testified he applied to a vacuum cleaner place in Glen
Burnie, which he thought he would be repairing them from the Craig’s list ad, but when he
arrived he learned it was door to door sales. Renteria testified he went on that interview in
February or March 2012. Renteria testified, “I've applied quite a few places on Craig’s list.”
Renteria testified he also went on an interview around the fall of 2011 in Glendale, Maryland to a 45
core hole cutting place where he interviewed to be a mechanic. Renteria then testified, “I've
been to quite a few interviews.” He testified that he went on an interview at a bowling alley in
Gaithersburg, when he was living in College Park for a pin setter mechanic job. Renteria
testified he also had applied for that position for a bowling alley in College Park. Renteria
estimated that he went on five or six interviews, but he could not describe all of them.50
JD–34–14
54
Renteria was in his early 50’s throughout most of the back pay period. He had a high
school education which he completed by way of a GED exam. He had a 14 month tech
certificate in small engine repair, a service he provided for Respondent for about 10 years prior
to going on strike. In addition, to his small engine repair background, Renteria had, from
employment prior to Respondent, a background as a car and truck mechanic, and retail 5
experience in sales and service of landscaping equipment at Home Depot, and experience in
working for an aquarium. Renteria’s job search consisted of following up on suggestions from
his union representative, reading and responding to ads in the Washington Post, and to ads on
line from Craig’s list, which he credibly testified he consulted on a daily basis. He also, as
finances for gas would permit, drove directly to potential employers and inquired within as to 10
whether they were hiring, for those that were or otherwise indicated a willingness to accept an
application he submitted one.
Respondent argues that Renteria’s job search included less than one technical job a
month. However, Renteria identified 17 jobs listed on his questionnaire that he defined as 15
involving mechanic work, and although he had a certificate in small engine repair, he testified in
his prior job he worked as a mechanic for automobiles and trucks, and he included such places
for those requiring mechanic work in his computations. He also described additional jobs that
were not listed in his questionnaire for which he applied and for some of which he interviewed
for which his mechanical skills and background were appropriate. Renteria also had some retail 20
skills having worked at the lawn and garden department at Home Depot, and having previously
worked at an aquarium for which he applied for work during his backpay period. Given his skills,
limited resources, age, and background, I find that Renteria’s search for work was more than
reasonable. I do not find that he mistakenly applied to a daycare center which had the title of
nursery undermines the bonafides of his search as Respondent contends. Rather, Renteria had 25
a background in lawn and garden care from his experience at Home Depot and his applying to a
day care center thinking that it was a lawn and garden care nursery underscores the thorough
nature of his search.
Respondent also argues Renteria’s failure to submit an application to every place where 30
he inquired about employment demonstrates that his job search lacked sincerity. First, he had
to travel to a lot of these places to apply which demonstrates effort, for those that stated they
were hiring or allowed him to submit an application he did. For those that stated they were not
hiring he did not. That approach was eminently reasonable as it is standard Board law that
someone is not required to engage in a futile act. Finally, that Renteria failed to document his 35
questionnaire as well in beginning in the second quarter of 2012 does not in my view undermine
the validity of his search. Renteria’s unemployment ended at the end of 2011, and he credibly
testified no one informed him that he had to maintain job search records thereafter, and he did
not keep possession of his notes of that search. Having not received the Region’s
questionnaire until the earliest, as per the testimony of the compliance officer, until the spring of 40
2013, Renteria had no reason to maintain job search records in 2012 after the fact. Moreover,
he applied to S. Freedman and Sons earlier on during the strike and credibly testified he kept
contact with their small engine department on a weekly basis throughout the backpay period,
that he continued to follow the want ads in the Washington Post, and in particular on Craig’s list
on a daily basis throughout the backpay period, and he continued to respond to those ads. 45
Based on Renteria’s credited testimony I have no reason to conclude he lessoned his job
search in 2012, particularly when his unemployment benefits had expired. I therefore conclude
his job search was substantial and reasonable throughout the backpay period and he is entitled
to backpay and benefits as defined in the compliance specification, as amended, as set forth in
GC Exh. 3.50
JD–34–14
55
j. Derrall Bridges
Bridges, at the time of his testimony, worked for another employer as a warehouseman.
Bridges began working for Respondent in 2004. He was a driver the whole time he was at
Respondent. Bridges resigned from Respondent in December 2011, prior to his being recalled 5
to work. He testified he resigned in order to withdraw his 401(k) contribution because he was a
single parent and had to pay bills. Bridges worked as a driver prior to working for Respondent.
Bridges backpay period ran from July 6, 2010 to December 12, 2011. Bridges collected
unemployment benefits from July 3, 2010 to January 14, 2012. Bridges had a class B CDL
license throughout his backpay period, which he testified also served as a standard issue 10
driver’s license. Bridges did not have a car during his backpay period.
Bridges was born in 1971, graduated high school, and attended some classes at a
community college but has not received an associate’s degree. Bridges lived in Landover,
Maryland during his backpay period. Bridges left his apartment and moved in with his mother 15
around February 2012, and at that time he obtained a P.O. box. Bridges submitted three
questionnaires to the Region. Bridge’s recall as to the circumstances of how, when and why he
received each of the questionnaires was poor, as was his recall as to the order of their receipt.
While he testified he may have received one of the questionnaires in 2010, I do not credit this
time estimate. Rather, I find that as Keough testified the questionnaires were not mailed until the 20
spring of 2013.
As to the questionnaire labeled R. Exh. 60, Bridges checked the strike duty box on this
questionnaire. On this questionnaire Bridges wrote strike line as his employer, and he left every
page calling for a list of employer contacts, during his backpay period, blank. Bridges submitted 25
another questionnaire to the Region entered into evidence as R. Exh. 61, where on the first
page of quarter July 1 through September 30, 2010, he stated he was unable to work from April
26 to December 12, 2011 checking the box strike duty. In this questionnaire, Bridges also failed
to list any employers contacted for his job search during his backpay period.
30
Bridges identified a third NLRB questionnaire which was entered in evidence as R. Exh.
62. In this questionnaire, for the quarter July 1 through September 30, 2010, he wrote
“searching for work and” followed by an arrow to the strike duty box. Bridges testified that for
the first month or so of the strike they were on the strike line, and he described this period as
April to May, 2010. He testified after that they, including him, started looking for work. He 35
testified that he checked the strike duty box because it was his obligation to participate in the
strike, but “as the months rolled on, I seek work. I try to find work.” Bridges explained he did not
put searching for work on the first two questionnaires because “I didn't understand these
documents. I was confused. I mean when it came to me it was in the past tense, and I just
didn't know what to put down because just like you see, you see three different documents. 40
And I guarantee you if I had another one, I probably would have wrote something else
different on it.” Unlike the other two questionnaires, in R. Exh. 62, Bridges listed names, dates,
and addresses of employers as part of his job search.
Bridges testified that he received unemployment benefits during the backpay period, and 45
he had to inform the unemployment agency that he was looking for work. He testified he had to
list the places he looked for work to unemployment on questionnaires they provided him.
Bridges testified he received a bi-weekly check from unemployment, and that every 2 weeks
unemployment sent him a questionnaire concerning his job search, which he had to fill out and
send back in. Bridges testified he started receiving these questionnaires from unemployment 50
about 6 months to a year after he went on strike. Bridges testified he had to start filling in the
JD–34–14
56
unemployment questionnaires after federal unemployment funds kicked in. Bridges testified that
to his recollection the extension kicked in because he was on unemployment for so long, “That's
when we started having to do continuous job searches.” He testified that before that time, he
did not have to report his job searches to unemployment, “But I was looking for work.” When
asked why he did not list those same employers on the NLRB questionnaires he testified the 5
unemployment questionnaires came way before the NLRB questionnaires did so the time frame
was different.
For the quarter July 1 through September 30, 2010, Bridges listed five employer contacts
in R. Exh. 62.22 He testified he made on line applications for all five listed jobs. Bridges testified 10
the five places listed were some of the places where he sought work, “but there was plenty of
other places. I mean, I actually looked for a lot of work.” Bridges explained that he applied to
a lot of other places but he did not list them on the Region’s questionnaire because he might
not have been home when he applied. Bridges testified the employers listed on the
questionnaire were, “what I know I did on the computer.” Bridges testified that four of the five 15
positions he listed on his questionnaire for this quarter were driver positions, and the fifth was for
working at a warehouse.
For the quarter October 1 through December 31, 2010, Bridges again listed five
employer contacts. Bridges testified these were not the only jobs he applied to during that 20
quarter. Bridges testified he knew he submitted an application on line for all of the jobs he
had listed in the questionnaire for this quarter. He had good recall as to the specifics of
several of his contacts listed for this quarter. For the quarter January 1 through March 31,
2011, Bridges listed four places on the Region’s questionnaire. Two of the jobs listed in this
quarter on the questionnaire contained February and March 2010 dates for the dates of inquiry. 25
Bridges could not recall whether he applied for those jobs in 2010 or 2011. For April 1 through
June 30, 2011, Bridges listed four employers. He testified he went to three of the places and
one he applied on line.
For the period July 1 through September 30, 2011, on the Region’s questionnaire 30
Bridges listed five employers in his search for work. One of the employers listed was Capstone
Logistics, which Bridges thought was a trucking company. Bridges thought the jobs listed were
sent to him from a website called Logistics.com. He named two other websites Monster or
Jobs.com where he testified they sent him by email daily and weekly truck driver and
warehouse jobs. He testified he had filled out a profile sheet of what type of jobs he was 35
interested in within a certain mile radius. Bridges testified he received emails that listed “a
bunch of different jobs” that he had to siphon through for any that were applicable to him. On
his questionnaire for the period of October 1 through December 31, 2011, Bridges listed five
employers. Bridge’s testified he was available to work throughout his whole backpay period.
40
Bridges testified he applied to over 70 jobs on government sites, but he could not get
them to print out. Bridges testified that he used the Prince George's County government jobs
and parking planning websites. He testified he used a site a lot located at governmentjobs.com.
Bridges testified he would go on the Prince Georges County government site and search for
truck driving jobs and maintenance jobs. Bridges testified the government advertised jobs, but 45

22 As set forth above, Bridges only listed employer contacts on one of the three
questionnaires tendered to the Regional office, and it is those employer references that are
being discussed here and below. Bridges testified he has moved and a lot of paper work was
shuffled in further explanation of why he provided this information on this questionnaire and not
on the others.
JD–34–14
57
he just had an interview for a job he applied to 2 years earlier indicating how slow they were to
respond.
Bridges testified he used the PG County Park and Planning website every month of his
backpay period and he would visit the site around once a week. Bridges testified he had his 5
resume and application on two sites the PG County site and the park and planning site. Bridges
testified he posted his resume in park and planning in July 2010. Bridges estimated he
submitted around four applications a month through this process in the park and planning site
during his backpay period stating, “Because I know to this day now I had like 70 of them in
there.” Bridges testified governmentjobs.com is the PG County site. He testified checked this 10
site at least once a week during the back pay period. Bridges posted a resume on this site in
July 2010. He estimated that he applied for two jobs a month on this site. Bridges testified
he took tests for a couple of jobs he applied to on this site. He testified he took an operator
test for dispatching 911 calls. He thought he took the test in November 2011, but he did not
qualify for the job.15
Bridges testified logistics.com is a website for drivers. It lists any type of driver job, Class
A, B, C, flatbed, and the area the jobs are located. Bridges testified he received emails once or
twice a week from this site. He testified, “I could apply to a couple of them, but most of those
are Class A and I didn't have a Class A. I had a Class B.” Bridges testified he used 20
Monster.com. during the backpay period. He estimated he went on Monster around once a
week. He testified he started using the site in July 2010. He testified he applied to two or three
jobs a month during the backpay period through the use of the Monster site. Bridges also used
a site called Jobs.com during the backpay period. Bridges explained that when he testified he
applied to two or three jobs a month that was from the use of multiple websites. Bridges 25
testified that during his backpay period he reviewed a magazine called the Pennysaver, which
contained help wanted ads once a week. He testified he reviewed the Washington Post job
section at least twice a week.
I find that the General Counsel has established that Bridges is entitled to the backpay set 30
forth in the amended compliance specification as set forth in GC Exh. 3. While he filled out
three of the Region’s questionnaires, and two were blank concerning a list of employers, I have
credited Bridges testimony that he moved after the Region issued the questionnaire, and that
his having received the questionnaire over a year after his backpay period ended confused him
in terms of how to respond to the questions it posed. Regardless, he testified in a credible 35
fashion concerning the questionnaire where he listed jobs and I find that he actually applied or
otherwise contacted the jobs listed. Bridges also credibly testified that he did not list all of the
jobs he applied to on the questionnaire, due to the nature of his application process, ability to
print certain online applications, and due to his record keeping ability in general. He credibly
testified that the employer contacts he listed in the questionnaire were supplemented throughout 40
the backpay period through a multitude of applications he had made on government and other
websites, by contacts he made through newspaper classified ads, and by going door to door
when he saw help wanted signs. While Respondent did not concede the adequacy of Bridges’
job search at the hearing, it failed to contest Bridges’ job search in its post-hearing brief. To the
contrary, it relied on Bridges’ job search to demonstrate there were available jobs during the 45
backpay period, further demonstrating the thoroughness of Bridges’ search.
k. Gregory Mingle
Mingle was not called to testified. Mingle’s backpay period ran from July 6, 2010 50
through June 13, 2012. Mingle collected unemployment benefits from October 9, 2010 through
JD–34–14
58
June 30, 2012. Mingle was born in 1954, making him in his late 50’s during the backpay period.
According to Keough’s summary, Mingle obtained interim employment with the Washington
Redskins from June through December 2010, and Keough also listed that Mingle had some
slight earnings from the UPS during the fourth quarter of 2010. Earnings from these employers,
as well as striker benefits were applied as interim earnings in calculating Mingle’s backpay for 5
the third and fourth quarters of 2010.
Keough made a summary showing the reported search for work by the discriminatees.
However, she listed no employer contacts for Mingle. Keough testified there was no written
record of Mingle applying for work until June 2012, when he returned to Respondent’s employ. 10
Keough testified the Region did not disqualify Mingle for backpay because he orally represented
to us that he made job contacts, but he had difficulty recalling specifics, and he did not submit
anything in writing to the Region. She testified he estimated making several contacts per week.
Keough testified she did not recall Mingle remembered any of these contacts, and he provided
nothing in writing listing them to the Region. Thus, for all four quarters in 2011 and the first two 15
quarters in 2012, Keough admitted Mingle was not able to name one employer he contacted
documenting his search for work. None of the other witnesses recollection was a poor as
Keough testified Mingle portrayed his to be. Moreover, the General Counsel elected not to call
him as a witnesses to at least explain the method of his purported job search, i.e., newspapers,
word of mouth, door to door, internet, as had been done for other discriminatees. The only 20
evidence the Region presented concerning Mingle’s search for work in 2011 and 2012 was in
essence Keough’s hearsay explanation that he said he was looking for work.
Keough failed to explain why she found Mingle’s undocumented search sufficient for a
year and one half period, when based on similar circumstances, she disqualified Mendez for 25
backpay for the third quarter of 2010. Concerning Mendez, Keough testified that Mendez’
search for work in the third quarter of 2010 was not sufficient, according to the Board standards.
She testified that he could not come up with a single contact that he made during that quarter,
so the Region tolled his backpay for that quarter. While the Region tolled Mendez backpay for
the third quarter of 2010, the Region’s records reveal that Mendez collected unemployment from 30
July 3, 2010 to December 31, 2011. Thus, Mendez could not name a contacted employer for
the first quarter of the backpay period, during a time he was receiving unemployment and he
was disqualified for that quarter, while Mingle could not name an employer for all of 2011 and
the first half of 2012 and Keough testified the Region concluded he should not be disqualified.
35
Respondent argues in its brief that Mingle’s backpay should be tolled effective January
1, 2011. I agree with Respondent’s position. The General Counsel argues, citing St. George
Warehouse, 351 NLRB 961, 964 (2007), that in certain circumstances it may not be necessary
to have a discriminatee testify for them to receive backpay. There, the Board stated the usual
method for the General Counsel to meet their burden concerning a discriminatee’s job search is 40
to call the discriminatee as a witness. However, in certain unusual circumstances, such as the
death of the discriminatee, they may not be available to testify. The Board stated in those
circumstances where the General Counsel does not produce the discriminatee, the General
Counsel may satisfy his burden by providing other competent evidence as to the discriminatee’s
job search such as documentary evidence, or the testimony of someone familiar with the 45
discriminatee’s job search. Here, no reason was advanced in the General Counsel’s brief for
the General Counsel’s failure to call Mingle, Mingle failed to respond to the Region’s request to
document his job search in that he did not return the Region’s questionnaire, and the
compliance officer did not witness any of Mingle’s job search activities but only could relate what
he vaguely reported to her.50
JD–34–14
59
While Mingle did collect unemployment during the quarters at issue during the backpay
period, I do find this standing alone, sufficient to establish that he made a reasonable job search
during 2011 and the first two quarters of 2012. In this regard, the employees who testified gave
varying accounts of the unemployment procedures they followed to obtain benefits, and I was
able to observe their testimony as to how they complied with those procedures and how it 5
related to their overall job search. Here, Mingle provided no such testimony. Accordingly, I find
that the General Counsel has not established that Mingle made a reasonable job search during
the four quarters of 2011, and the first two quarters of 2012, and I deny him backpay during the
specified time periods. I find he is owed backpay for the fourth quarter of 2010, as set forth in
the amended compliance specification, as designated in GC Exh. 3.10
On these findings and conclusions, and on the entire record, I issue the following
recommended23

23 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and
Regulations, the findings, conclusions, and recommended 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.
JD–34–14
60
ORDER
The Respondent, its officers, agents, successors and assigns, shall pay the claimants
the amounts specified after their names below, plus interest accrued to the date of payment, as
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as 5
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), minus tax withholdings
required by Federal and State laws.
Erin Baker $20,395.01
David Boone $68,797.0210
Clarence Bratcher $67,596.11
Robert Brice $31,909.70
Derrall Bridges $47,519.20
Eugene Brown $27,943.60
Lynette Burton $60,339.2015
Rawle “Ron” Daniels $82,388.27
John Day $2,712.00
Thomas Geris III $4,796.39
Horace Griffin, Jr. $51,689.42
Daniel Higgs $7,542.5020
Trevor Holder $52,750.93
Darren Koger $7,578.19
David Limerick $16,925.63
Diarra Mackall $18,102.62
Ronnie McFadden $66,767.1925
Adalberto Mendez $55,464.06
John Merritt $7,368.43
Gregory Mingle $4,394.00
Alvin Phoenix $27,223.85
William Posey $8,922.2330
Robert Redmond $6,971.45
Michael Renteria $77,116.00
Howard Robinson $12,071.21
Victor Scurry $20,601.31
Glenn Smith $59,361.4835
John Smith $47,893.04
Brenda Taylor $47,968.83
Justin White $7,662.83
Daniel Wiggins $68,744.08
Dale Windsor $28,077.2840
Total = $1,115,593.06
Dated, Washington, D.C. Monday, June 16, 2014.
45
_______________________
Eric M. Fine
Administrative Law Judge
JD–34 –14
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DAYCON PRODUCTS COMPANY, INC.
and Case Nos. 5-CA-35687
5-CA-35738
5-CA-35965
5-CA-35994
DRIVERS, CHAUFFEURS AND HELPERS
LOCAL UNION NO. 639 a/w
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Daniel M. Heltzer, Esq., and Jason N. Usher, Esq.
for the General Counsel.
Paul Rosenberg, Esq., of New York, New York, and
Erica Berencsi, Esq., of Washington, D.C.
for the Respondent.
John R. Mooney, Esq., and Lauren Powell, Esq.,
of Washington, D.C. for the Charging Party.
Table of Contents
Supplemental Decision 1
Statement of the Case 1
A. Background and global issues 2
1. The granting of the General Counsel’s motion
in limine 2
2. The discriminates are entitled to receive wage increases
Respondent Implemented during the backpay period as
as part of their backpay 5
3. The calculation of medical benefit claims 7
B. The issues as to the individual strikers search for work 10
1. Stipulations 10
2. Legal principles 11
3. The testimony of the Region’s compliance officer 16
4. The testimony of Respondent’s witnesses and other
witnesses concerning the availability of interim
employment during the backpay period. 18
5. The job search of the disputed discriminates 22
a. Daniel Wiggins 22
b. Horace Griffin, Jr. 27
c. Adalberto Mendez 30
d. Robert Brice 33
e. Ronnie McFadden 36
f. Trevor Holder 40
g. John Smith 43
JD–34 –14
h. Glenn Smith 47
i. Michale Renteria 50
j. Derrall Bridges 55
k. Gregory Mingle 57
Order 60