While conceding that the May 16, 1975, order is not a paradigm of clarity, we disagree with McCann's interpretation of it. We read that order as simply denying the NLRB's motion for entry of supplemental judgment and no more, thus leaving operative the prior remand to the NLRB. It is the law of this case that Hindsley was illegally discharged and that he is due some amount of back pay. NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968); NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. den. 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 420 n. 12, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).
Overseas Motors, 818 F.2d at 521. Once gross pay — the amount of money that the employee would have earned had the employer not violated the National Labor Relations Act, see id. at 521 — has been established, "the burden is on the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability," id. (quoting NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968)). "[T]he Board's conclusion as to whether an [employer has met this burden] will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board's findings."
The failure of a discriminatorily discharged employee to make a reasonable search for interim employment substantially equivalent to his prior position constitutes an affirmative defense to back pay liability; the burden of proof is on the employer. N.L.R.B. v. Madison Courier, Inc., 153 U.S.App.D.C. 232, 472 F.2d 1307, 1318 (1972); N.L. R.B. v. Reynolds, 399 F.2d 668, 669 (6th Cir., 1968); N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 575 (5th Cir., 1966); N.L.R.B. v. Brown Root, Inc., 311 F.2d 447, 454 (8th Cir., 1963). The fact which the employer must prove has been described by the Supreme Court as "losses which [the employee] willfully incurred" and "clearly unjustifiable refusal to take desirable new employment."
Though the NLRB bears the burden of demonstrating the gross amount of backpay owed to a discriminatee, "the burden is upon the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability." Overseas Motors, 818 F.2d at 521 (quoting NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968)). The Board's conclusion that an employer has not met this burden "will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board's findings."
Once gross back pay—“the amount of money that the employee would have earned had the employer not violated the National Labor Relations Act”—has been established, “the burden is on the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability.” Id. (quoting NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir.1968)). “[T]he Board's conclusion as to whether an [employer has met this burden] will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board's findings.”
" However, "the defense of wilful loss of earnings is an affirmative defense, and . . . the burden is on the employer to prove the defense." NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968). As Akron did not raise this issue before the Board, it is waived.
Once he has done so, "the burden is upon the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability." NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968) (emphasis added; citations omitted); see also S.E. Nichols, 704 F.2d at 924. However, we do find Overseas' argument that the ALJ impermissibly restricted the cross-examination of Mitkovski regarding his interim earnings to be valid. Mitkovski admitted that he did auto repair work at his home during the back pay period.
In addition, it is beyond peradventure that the defense of willful loss of earnings is an affirmative defense, with the burden of proof resting upon the employer. McCann Steel v. NLRB, 570 F.2d 652, 655 n. 4 (6th Cir. 1978); NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968). Further, a wrongfully-discharged employee is only required to make a reasonable effort to mitigate damages, and is not held to the highest standard of diligence.
Once a claimant establishes a prima facie case and presents evidence on the issue of damages, the burden of producing sufficient evidence to establish the amount of interim earnings or lack of diligence shifts to the defendant. See, e.g., NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968); McCann Steel Co. v. NLRB, 570 F.2d 652, 655 n. 4 (6th Cir. 1978); Marks, 633 F.2d at 1125; Sandia Corp., 639 F.2d at 627; Taylor v. Philips Industries, Inc., 593 F.2d 783, 787 (7th Cir. 1979); Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir. 1978); Equal Employment Opportunity Commission v. Lee Way Motor Freight, Inc., 625 F.2d 918, 937 (10th Cir. 1979); Sangster v. United Airlines, Inc., 633 F.2d 864, 868 (9th Cir. 1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2048, 68 L.Ed.2d 350 (1981). The Defendant may satisfy his burden only if he establishes that: 1) there were substantially equivalent positions which were available; and 2) the claimant failed to use reasonable care and diligence in seeking such positions.
Moss Planing Mill Co., 103 N.L.R.B. 414 enforcing National Labor Relations Bd. v. Moss Planing Mill Co., 206 F.2d 557 (4th Cir. 1953). See also National Labor Rel. Board v. Moss Planing Mill Co., 224 F.2d 702 (4th Cir. 1955); National Labor Relations Bd. v. Moss Planing Mill Co., 256 F.2d 653 (4th Cir. 1958); Charles T. Reynolds, Sr., 155 N.L.R.B. 384, 386 n. 1 (1965), enforcing N.L.R.B. v. Reynolds, 399 F.2d 668 (6th Cir. 1968); American manufacturing Co., 167 N.L.R.B. 520, 522-23 (1967); M.F.A. Milling Co., 170 N.L.R.B. 1079, 1079-80 (1968), enforcing Local Union 676, AFL-CIO v. N.L.R.B., 463 F.2d 953 (D.C. Cir. 1972); Becton-Dickinson Co., 189 N.L.R.B. 787 (1971). The periods involved ranged from one month in American Manufacturing Co. to eleven months in Charles T. Reynolds, Sr. Although we have cited the court decisions enforcing these orders, the opinions did not discuss the fact that the backpay remedies covered periods of disability attributed to unfair labor practices.