A.P.A. Warehouses

National Labor Relations Board - Board Decisions

Jun 8, 1992

307 N.L.R.B. 838 (N.L.R.B. 1992)

838
307 NLRB No. 134
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party (UAW) asserts that the Respondent’s excep-
tions do not conform to the Board’s Rules and Regulations, and
therefore should not be considered by the Board. We find that the
Respondent’s exceptions sufficiently conform to the Board’s Rules
and Regulations to warrant consideration.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We do not rely on the judge’s unqualified statement that ‘‘employ-
ees are not required to lower their sights or to accept employment
of a lesser nature.’’ We also correct the judge’s citation of NLRB
v. Arduini Mfg. Co., 394 F.2d 420, 422–423 (1st Cir. 1968).
1 A.P.A. Warehouses, 291 NLRB 627 (1988).
A.P.A. Warehouses, Inc./Sea-Jet Trucking Corp-
oration/Affiliated Terminals Incorporated/Sea-
Jet Industries, Incorporated/Sea-Jet Trucking
and A.P.A. Warehouses, Incorporated and
Local 348, Warehouse Production Sales &
Service Employees Union and The Inter-
national Union of United Automobile and Agri-
cultural Implement Workers of America, AFL–
CIO. Cases 29–CA–13151, 29–CA–13150, 29–
CA–13199, 29–CA–13232, 29–CA–13280, and
29–CA–13291
June 8, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 25, 1992, Administrative Law Robert
T. Snyder issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The Charg-
ing Party (UAW) filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, A.P.A. Warehouses,
Inc./Sea-Jet Trucking Corporation/Affiliated Terminals
Incorporated/Sea-Jet Industries, Incorporated/Sea-Jet
Trucking and A.P.A. Warehouses, Incorporated,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Katie Parvin, Esq. and April M. Wexler, Esq., for the Gen-
eral Counsel.
Gary C. Cooke, Esq. (Horowitz & Pollack, P.C.), of South
Orange, New Jersey, for the Respondent.
Nicholas Fish, Esq. and Eugene Eisner, Esq. (Eisner, Levy,
Pollack & Ratner, P.C.), of New York, New York, for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. On No-
vember 10, 1988, the National Labor Relations Board issued
a Decision and Order,1 concluding that the Respondent un-
lawfully denied reinstatement to employee Augusto Diaz for
his strike-related activities in violation of Section 8(a)(1) and
(3) of the Act. In pertinent part, the Board ordered Respond-
ent to offer Diaz immediate, full, and unconditional reinstate-
ment to his former position of employment or, if that posi-
tion no longer exists, to a substantially equivalent one, and
to discharge employees hired since the discrimination against
him in order to make room for him. The Board also ordered
Respondent to make Diaz whole for any loss of wages or
benefits which he may have suffered as a consequence of the
discrimination against him.
On May 25, 1990, the United States Court of Appeals for
the Second Circuit entered its judgment against Respondent
enforcing the Board Order.
As the parties were unable to agree upon the amount of
backpay due to Diaz, the Regional Director for Region 29,
pursuant to authority duly conferred upon, issued a backpay
specification on August 29, 1990. Respondent filed timely
amended answer thereto on October 29, 1990. Upon due no-
tice, a hearing was held in Brooklyn, New York, on April
11 and 12, 1991, on the issues raised by the pleadings. All
parties were afforded a full opportunity to be heard, to intro-
duce evidence, and to examine and cross-examine witnesses.
Posthearing briefs filed by the General Counsel and the Re-
spondent have been carefully considered.
On consideration of the entire record herein and on my ob-
servation of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
I. RELEVANT UNDERLYING FACTS AND THE ELEMENTS
OF THE BACKPAY SPECIFICATION
The Respondent consists of a number of interrelated cor-
porations which were found to constitute a single employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. The unfair labor practice proceeding
dealt with a labor dispute involving Respondent’s warehouse
operation and its warehouse employees. The Charging Union
had initiated an unfair labor practice strike against Respond-
ent which was engaged in by a complement of more than
100 of its warehouse employees, including Diaz. Upon the
Union’s unconditional offer to return to work, made on be-
half of the striking employees on March 17, 1988, Respond-
ent offered to reinstate all the strikers except for Diaz. The
Board affirmed Administrative Law Judge Green’s credibility
resolution that Respondent’s owner, Abie Moscowitz, had in-
formed Diaz during the strike that he would never work
again for the Respondent and concluded that Diaz’s response
that Moscowitz was ‘‘like Hitler’’ was insufficient to warrant
his disqualification from reinstatement as it did not reason-
839A.P.A. WAREHOUSES
2 268 NLRB 1044 (1984).
3 The specification lists that period as being the 6 months prior to
the commencement of the strike.
ably tend to coerce or intimidate employees in the exercise
of the rights protected by the Act under the Clear Pine
Mouldings2 test.
During the instant proceeding, it was established that Diaz
had been one of seven or eight employee leaders of the strike
and that Moscowitz had also told Diaz that Diaz would have
to beg to him to get his job back.
With respect to the backpay period, the specification be-
gins the period on March 17, 1988, the date of Respondent’s
discriminatory refusal to reinstate him, and continues it to the
present, in the absence of a valid offer of reinstatement.
However, no claim for backpay is made after August 29,
1990, when the specification issued.
In computing Diaz’ gross backpay, the specification uti-
lizes as an appropriate measure of what Diaz would have
earned during the backpay period, his hourly rate of pay
multiplied by his average number of weekly hours, adjusted
for overtime, computed on a calender quarterly basis. As
Diaz’ hourly rate of pay, the specification used the figure of
$8.12 per hour which Diaz had received during the 6 months
preceding the commencement of the strike. In an amended
specification approved and received in evidence at the open-
ing of the hearing, claim is made that effective July 10,
1989, Diaz would have received an increase in his hourly
rate to $8.50 per hour which would have continued through
the backpay period.
The specification lists Diaz’ average number of weekly
hours during the backpay period as 38.35. To this is added
a figure of 5.25 hours, representing Diaz’ average weekly
overtime. A figure of 46.23 adjusted hours per week is then
derived by totalling Diaz’ regular hours and his overtime
hours adjusted for time and a half overtime pay. The gross
backpay resulting from multiplying Diaz’ 46.23 adjusted
hours per week by his rate of pay both before and after July
10, 1989, was computed on a calendar quarterly basis for
each quarter from March 17, 1988, through August 29, 1990,
the figures for the first and last quarters representing only the
portion of those two quarters for which a claim could be val-
idly asserted.
The specification also contains interim earnings, computed
on a quarterly basis, which it is admitted Diaz earned during
the backpay period. Finally, the specification includes Diaz’
net backpay, also computed on a calender quarterly basis, the
total of which, as computed, is set forth as the sum, which
if paid by Respondent, plus interest accrued to the date of
payment, minus withholdings required by Federal and state
laws, will discharge its obligation to make Diaz whole.
II. RESPONDENT’S CONTENTIONS
Respondent’s amended answer to the backpay specification
denies Diaz was not validly offered reinstatement. Respond-
ent would limit backpay from March 17, 1988, to June 29,
1990, when it sent Diaz a letter offering him a return to
work in a comparable position at his former rate of pay be-
cause it did not have available the exact position Diaz had
formerly held.
As to the formula used for computation of gross backpay,
Respondent disputed the amount of hours Diaz would have
worked since the conclusion of the strike, but failed to com-
ply with Section 102.5(b) of the Board’s Rules and Regula-
tions which requires that ‘‘if Respondent disputes either the
accuracy of the figures in the specification or the premises
on which they are based, the answer shall specifically state
the basis for such disagreement and setting forth in detail the
Respondent’s position as to the applicable premises and fur-
nishing the appropriate supporting figures.’’ As a con-
sequence, the General Counsel’s motion to preclude Re-
spondent from adducing testimony in support of an alternate
formula for computing gross backpay was granted during the
second day of hearing.
In determining that Diaz’ work hours during the backpay
period should be adjusted an average of 5.25 hours per week
overtime, Board Compliance Officer Richard Epifanio testi-
fied that he examined the Respondent’s records for a rep-
resentative period prior to the discrimination3 relating to the
employees in the department including floormen in which
Diaz had been employed. In this connection it is noteworthy
that unrebutted testimony showed that at the time of the
hearing floorman Miguel Aurich was working 4 hours over-
time a week and that most of the other floormen worked
overtime, depending on the job. Only Aurich, who started in
1977, and one other employee, had more seniority than Diaz,
as floormen. Diaz had started in 1980.
In further determining that Diaz would have received an
increase in pay from $8.12 to $8.50 an hour effective July
10, 1989, Epifanio also testified that on a recent examination
of Respondent’s more current records of employees in Diaz’
department he discovered that many of the employees re-
ceived wage increases for the week of July 10, 1989. Re-
spondent’s records confirmed that 7 of 10 floormen received
raises at the beginning of the third quarter of 1989. In deter-
mining the precise amount of Diaz’ projected wage increase
Epifanio took as his guide the only other departmental em-
ployee, Miguel Aurich, who was receiving the same hourly
rate as Diaz prior to the strike, $8.12. Aurich’s wage in-
creased to $8.50.
In following the procedures outlined above in reasonably
determining what Diaz’ average overtime hours and wage
rates would have been during the backpay period the General
Counsel was complying with the commands of the Act and
its rules. As the cases make clear, the gross backpay com-
putation need be no more than an approximation of the ac-
tual loss of earnings so long as it is not unreasonable or arbi-
trary under the circumstances. Mastell Trailer Corp., 273
NLRB 1190 (1984); Iron Workers Local 378 (Judson Steel),
227 NLRB 692 (1977); Bagel Bakers Council v. NLRB, 555
F.2d 304 (2d Cir. 1977).
Respondent’s amended answer also contested the accuracy
of Diaz’ interim earnings itemized in the specification as
well as the adequacy of his search for work, claiming further
that Diaz provided false and/or misleading information re-
garding his search for work. It is well to note here that the
burden is on the Respondent to establish facts which would
mitigate its liability, such as wilfull loss of earnings and the
amount of interim earnings to be deducted from any backpay
award. NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th
Cir. 1963); NLRB v. Mooney Aircraft, 366 F.2d 809, 813
(5th Cir. 1966).
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE FACTS, ANALYSIS, AND CONCLUSIONS
REGARDING RESPONDENT’S OFFER OF EMPLOYMENT
AND DIAZ’ SHORT-LIVED RETURN TO WORK
Diaz testified that at the beginning of July 1990 he re-
ceived a letter from Respondent to come back to work.
When he reported for work early in the morning of July 16,
1990, he spoke to the general manager who described two
vacancies in unloading trailers and receiving. Diaz’ response
was that this was not his job and he would not take it. Be-
fore finally rejecting the offer he spoke by phone with union
counsel who spoke in turn with the manager. As a result
Diaz accepted the receiving job. His rate of pay was the
same he had earlier received, $8.12 an hour.
Diaz worked for 4 days and then left Respondent’s em-
ployment after he was injured when he was struck by a box
he was unloading, hurt his lower back, and was treated as
a day patient at a hospital near his home. He reported his
experiences on the job to a Board agent and did not return.
To date, he has never received an offer to return to his origi-
nal, prestrike position as floorman.
Diaz described the work of his old job of floorman as pre-
paring orders, receiving goods through the elevator and
stacking them with the use of a mechanical hi-low truck
which he drove and operated while seated. Lighter freight he
moved by hand. In receiving he was unloading trailers all
day, carrying boxes manually, some heavy ones weighing in
excess of 35 to 40 pounds included, from the trailer to skids
which he then moved manually with a handjack to positions
on the platform. Diaz credibly described the major dif-
ferences between the two jobs as the requirements of contin-
uous unloading and the manual lifting of heavy boxes in re-
ceiving. Previously, as a floorman, Diaz prepared orders and
did paperwork a portion of each day and moved and stacked
heavier freight while seated at the hi-low machine.
In addition to the more onerous physical aspects of the
new job offered Diaz, it is also apparent that while Diaz re-
ceived his old rate of $8.12 in receiving, while employed
there he was the only employee earning anywhere near that
rate; the majority of the more than 20 employees in that de-
partment were earning between $4 and $4.50 per hour, only
3 had a rate in the $6-an-hour range and only 3 had rates
in the $5-an-hour range. In contrast, of the eight floormen
employed as of the week of April 11, 1991, during the hear-
ing, six were being paid $8 or more an hour and none were
making $4.50 or less. The receiving department was viewed
by Respondent as employing mainly entry level employees
while the floormen department employed much higher rated
employees. In fact, only six other hourly rated employees
outside the floormen department, in order preparation, and
elevator operators, earned more than floormen, $9 an hour or
more, in April 1991.
In light of all of the foregoing, it is not only surprising
but incredible that Respondent’s comptroller, Harold Pretter,
would deny the suggestion made to him by union counsel,
that a floorman’s job was a highly desirable job at the ware-
house.
While the General Counsel has established that the receiv-
ing job which Diaz was offered was not identical to his
former position, Diaz was privileged to reject the offer be-
cause it did not comply with the Board’s reinstatement order
only if Diaz’ former position ‘‘no longer exists.’’ The deter-
mination as to the continued existence of Diaz’ former posi-
tion hinges on an analysis of whether the position continued
to be employed in Respondent’s warehouse operation and
which employees continued to occupy that position at the
time Respondent made its offer. If, e.g., employees newly
hired since Diaz was discriminatorily denied reinstatement
were working as floormen when Respondent made its late
June 1990 offer, in compliance with the language of the
Board’s Order, Respondent was obliged to discharge one of
these employees to make room for Diaz. If, also, employees
initially assigned to other lessor positions were reassigned
and promoted to positions as floormen for the first time after
Diaz was discriminated against, Respondent would have been
similarly obliged to release or reassign such employees to
make way for Diaz. In such a situation, the promoted em-
ployee would be deemed as hired for the position since the
discrimination as surely as if he had been newly hired from
the outside.
The evidence shows that Respondent continued to employ
floormen in department 48 throughout the backpay period
and that some of them were first paid as floormen after Re-
spondent’s March 17, 1988 discriminatory refusal to reinstate
Diaz. Thus, Porfirio Amigon was first paid as a floorman on
January 5, 1990, at an hourly rate of $6.50. Eduardo Torres
did not receive his first paycheck for work performed as a
floorman until June 15, 1990, at an hourly rate of $5.75.
Even if Respondent’s claim that Eduardo Torres used the
name of Artenio Torres when originally hired on January 16,
1986, and until he had received his U.S. Immigration Service
authorization for employment as a resident alien and social
security number in June 1990, under the alias of Artenio
Torres, he did not receive his first paycheck as a floorman
until October 7, 1988, at an hourly rate of $5.50. Trinidad
Torres, who had been hired August 11, 1986, first received
pay as a floorman for the week ending April 22, 1988, at
the rate of $6 an hour. By April 11, 1991, he was being paid
$8.25 an hour.
With respect to both Amigon and Torres, Respondent
claims they were employed as floormen helpers and not as
floormen. Well prior to July 1990 to at least until the hear-
ings in April 1990, Respondent employed nine employees in
the floormen department 48, three of whom were designated
as floormen helpers and six as floormen. Floormen appar-
ently are assigned to different floors of the six-story ware-
house and on three of the floors work with a helper. The evi-
dence disclosed that the physical duties performed by
floormen and helpers are interchangeable except that
floormen receive orders and deal with the paperwork and on
those floors where a helper is assigned will divide up the
work of moving and stacking the merchandise with the help-
er. It further appears that helpers are paid less than the
floormen, in a range of $5 or more as a starting rate to as
much as $6.50 or $7 an hour, while floormen are paid $7
an hour and up.
Respondent’s claim with respect to the two classifications
of floormen positions did not excuse its failure and refusal
to offer a floorman position to Diaz, who would have been
reinstated to his former position by an assignment to a
floorman classification, whether as floorman or helper, at his
old rate. Since, however, Respondent did have at the end of
June 1990 at least one floorman position which was then
filled by an employee, Trinidad Torres, who had been reas-
signed to the position after Diaz’ discrimination occurred,
841A.P.A. WAREHOUSES
4 Diaz’ testimony that he made between $100 and $200 per week
in the last half of 1988 is in error, as noted by Respondent in its
brief. The correct figures are derived from Diaz’ 1988 Federal tax
return which show a gross income from his cab business of $11,700.
Over the 26-week period involved Diaz averaged $411 in gross col-
lections.
5 Diaz explained that he had forwarded them to the Board and
counsel for the General Counsel represented that they were not in
her file.
Respondent’s refusal to reinstate Diaz to that position con-
stituted a failure to offer reinstatement in accordance with the
Board’s Order and Diaz’ backpay period thus continued to
run after June 1990 to at least the April 1991 hearing.
IV. THE FACTS, ANALYSIS AND CONCLUSIONS
REGARDING DIAZ’ EFFORTS TO MITIGATE HIS
BACKPAY CLAIM
The backpay specification, as amended, lists interim earn-
ings of varying amounts in each quarter of the backpay pe-
riod, except for the 2-week period in the first quarter, and
the full second quarter of 1988. During this period Diaz was
interviewed at the Board’s Regional Office on a number of
occasions. He also sought work on his own, without success,
in particular during the second quarter, registered for and
collected unemployment insurance and reported to the state
unemployment office every other week in connection with
his job search.
Diaz, in his testimony, and as corroborated by a written
statement he submitted to the Board, listed the names of at
least seven employers, among others he could not recall,
where he sought work during this period. He also reviewed
regularly help-wanted advertisements which appeared in sev-
eral hispanic newspapers without finding any job vacancies.
After this unsuccessful search, starting in the third quarter
of 1988, and continuing through the fourth quarter of 1989,
Diaz had earnings as a self-employed taxi cab driver. He
used his own used 1982 model automobile, worked alone
grossing on average more than $400 over a 35- to 42-hour
workweek.4 In order to generate business he utilized a car
service to take calls from customers and to contact him by
two-way radio. Diaz’ net earnings from this work totaled
$5200 over the last two quarters of 1988 after deducting the
various expenses needed to generate the income. Those ex-
penses included the purchase of gasoline, insurance, car re-
pairs, and the weekly fee charged by the car service. Begin-
ning in 1989, Diaz switched from one car service to another,
but because of additional automotive repair charges, as well
as a break-in of his auto on the street, which resulted in lost
worktime and the decision to use another used auto, Diaz’
net earnings were substantially reduced. As a result of the
lost time and all of his expenses, including, among others,
a $200-base fee paid to the new car service, gasoline expense
of $3500 and car repairs totaling $1488, Diaz’ gross earnings
of $13,000, netted him $3650 and less than $1000 per quar-
ter in 1989.
Starting in December 1989, Diaz ceased his cab-driving
operation, and sought employment again, contacting friends,
visiting companies, and reading help-wanted ads in news-
papers. In March 1990, Diaz secured a position as assistant
with a company he had visited first in May 1988 at the sug-
gestion of a friend. Benny’s Kitchens, located in Queens,
New York City, that renovates kitchens and installs new tile
floors. The earnings Diaz reported from this work, for the
first and second quarters of 1990, at the rate of $135 per
week could not be supported by any earnings statements as
he was paid in cash off the books. Toward the close of the
backpay period Diaz secured limited earnings for the short
period he worked again for Respondent in the receiving de-
partment.
Diaz’ claimed net backpay also reflects some limited com-
pensations he received from the Union in 1988 to make up
for wages lost when he attended a prehearing conference and
multiple hearings on behalf of the Union in connection with
this matter. The General Counsel also successfully moved to
reduce Diaz’ gross earnings by $1100 for the third quarter
of 1989 to reflect his removal from the labor market during
a trip he made to Honduras, his native country, which ex-
ceeded by 2.8 weeks the paid vacation plus Labor Day Holi-
day he received while previously employed by Respondent.
Respondent’s contention on the basis of this evidence, that
Diaz failed to mitigate his backpay claim, is simply not sup-
portable as a matter of law. Respondent has not met its bur-
den of showing a willful loss of earnings by eliciting on
Diaz’ cross-examination that he could not produce the paid
receipts for his automotive expenses incurred in 1988 and
19895 which were itemized on the copies of his 1988 and
1989 Federal income tax return, and did not have any
records of his cash earnings from Benny’s Kitchen. Neither
Diaz nor the General Counsel’s failure to produce the under-
lying records should nullify the sufficiency of the evidence
presented. Poor recordkeeping should not disqualify a back-
pay claimant. Kansas Refined Helium Co., 252 NLRB 1156,
1159 (1980). Neither should he be prejudiced because docu-
ments have been lost, especially where a ‘‘reasonable ap-
proximation’’ of interim earnings may be arrived at. Id. at
1159.
Neither is Respondent’s burden satisfied by the argument
made in its brief that by continuing a relationship with the
new car service through all of 1989 that produced a substan-
tially lessor financial return than the one with the original car
service in 1988, Diaz somehow willfully sustained losses.
Diaz’ fair explanations regarding the difficulties he experi-
enced over the year in maintaining a workable business vehi-
cle free from breakdowns and vandalism leading directly to
his ultimate decision to abandon self-employment by the end
of the year and seek paid employment were adequate to es-
tablish the bona fides of Diaz’ mitigation efforts during that
period. Respondent’s argument amounts to no more than
mere speculation after the fact and does not constitute the af-
firmative demonstration required of it that by engaging in the
cab service enterprise Diaz was ignoring actual or potential
sources of employment available to him. See NLRB v. Inland
Empire Meat Co., 692 F.2d 764 (9th Cir. 1982).
Respondent neither called timely any witness nor offered
any independent evidence seeking to support its claims of
willfulness or lack of reasonable efforts to find interim work.
Diaz’ own efforts to seek interim employment establish a
diligent search for work. He identified the seven employers
he could recall which he visited in his initial job search over
a 2-month period in 1988. And he credibly described the re-
sults of such efforts. In its brief, Respondent disputes the ad-
dress of one of the employers, asserts the lack of a listing
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
7 Under New Horizons, interest on and after January 1, 1987 shall
be computed at the ‘‘short-term Federal rate’’ for the underpayment
of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. In-
terest on amounts accrued prior to January 1, 1987 shall be com-
puted in accordance with Florida Steel Corp., 231 NLRB 651
(1977).
of another in the local telephone directory and claims that
two others have been closed ‘‘for several years.’’ Diaz was
not confronted with any of these claims, and the assertion of
these contentions as facts outside the record cannot be given
any credence. Even if true, however, they do not impeach
Diaz’ recital regarding his visits to these employers 3 years
before. Taken together with his regular review of newspaper
job ads, consultations with friends, and unemployment serv-
ice interviews Diaz met the test required of him to mitigate
his loss of income. Coupled further with his unsparing efforts
thereafter to operate a taxi service, an enterprise to which he
turned when his initial job search proved unsuccessful, and
his later successful procurement of employment in the first
two quarters of 1990 when the taxi service failed, Diaz pre-
sents a claimant who met the reasonable standard of dili-
gence required of him. NLRB v. Arduini Mfg. Co., 384 F.2d
420, 422–423 (1st Cir. 1968); Cornwell Co., 171 NLRB 342,
343 (1968).
Diaz’ acceptance of a lower paying job with Benny’s
Kitchen in early 1990 also met this standard. While employ-
ees are not required to lower their sights or to accept em-
ployment of a lessor nature, Diaz’ acceptance of the lower
paying job of assistant with the kitchen renovation firm,
given the circumstances of his recently failed business and
a continuing inability to find equivalent work relieved him
of the duty to continue an unsuccessful search. Sioux Falls
Stock Yards, 236 NLRB 543, 551 (1978); Champa Linen
Service, 222 NLRB 940, 942 (1976); Firestone Synthetic Fi-
bers Co., 207 NLRB 810, 815 (1973).
In view of the foregoing, Respondent’s reliance in its brief
upon American Pacific Concrete Pipe Co., 290 NLRB 623
(1988), which in diction notes that the discrediting of a
discriminatee’s testimony about his interim earnings can nul-
lify a backpay claim, is inapposite and unavailing. Neither
may Respondent rely on American Navigation Co., 268
NLRB 426 (1983), which held that willful concealment of
interim employment will disqualify a claimant from receiving
backpay in the quarters in which such concealment took
place. On the record before me, Respondent has dismally
failed to show such concealment or similar fraud or deceit.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
A.P.A. Warehouses, Inc./Sea-Jet Trucking Corporation/
Affiliated Terminals Incorporated/Sea-Jet Industries,
Incorporated/Sea-Jet Trucking and A.P.A. Warehouses, In-
corporated, Brooklyn, New York, their officers, agents, suc-
cessors, and assigns, shall pay to Augusto Diaz the sum of
$35,723.84, the backpay provided for herein, with interest
thereon, to be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1172 (1987),7 less tax
withholdings required by state and Federal laws.