International Brotherhood of Teamsters, Local 25 (No Employer)

National Labor Relations Board - Administrative Judge Opinions

Feb 20, 2014

01-CB-010882 (N.L.R.B. Feb. 20, 2014)

JD–09–14
Charlestown, MA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS LOCAL 25,
and Case 1–CB–010882
DENISE AVALLON, An Individual,
Douglas Callahan and Scott F. Burson, Esqs.,
for the General Counsel.
Michael A. Feinberg and Renee J. Bushey, Esqs.,
for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This supplemental proceeding was
tried before me in Boston, Massachusetts, on December 5-6, 2013. It followed issuance of a
Decision and Order, dated March 1, 2012 (358 NLRB No. 15) (the Decision and Order), in
which the National Labor Relations Board (the Board) affirmed Administrative Law Judge Mark
Rubin’s decision finding that the International Brotherhood of Teamsters, Local 25 (Local 25)
operated an illegal hiring hall by unlawfully failing and refusing to refer Denise Avallon for
employment from March 8, 2008 through August 24, 2011, in violation of Section 8(b)(1)(A)
and (2).1 The Board further ordered Local 25 to, among other things, make Avallon whole for
any loss of earnings and other benefits suffered as a result of its illegal conduct and consider her
for future employment referrals.2
Subsequent to the issuance of the Decision and Order, the parties stipulated on April 23,
2013 that Local 25 would not contest the propriety of the Decision and Order, but preserved
Local 25’s right to a hearing if the parties were unable to reach agreement on the issue of
backpay.3

1 GC Exh. 1(a).
2 On April 23, 2013, the Union and the General Counsel entered into a Stipulation conceding, in part,
the propriety of the Board’s March 1, 2012 Order, including the findings of fact and conclusions of law
underlying said Order, and providing for the issuance of a compliance specification and notice of hearing
to resolve any disputes concerning the amount of the make whole remedy due Avallon. (GC Exh. 1(c).)
3 GC Exh. 1(c).
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2
After failing to agree with the General Counsel as to the sum of money necessary to make
Avallon whole, Region 1 issued an amended compliance specification and notice of hearing on
June 27, 2013 seeking $47,320.91 in net backpay,4 $11,010.86 for pension fund contributions
and $1,060.21 for excess tax liability, for a total of $59,346.45.5 Local 25 stipulated as to the
accuracy of the backpay calculated in the amended compliance specification, but reserved the 5
right to contest whether the Region: (1) reasonably determined the applicable backpay period;
(2) correctly included pension fund contributions, and (3) properly imposed a Latino Express
remedy. Local 25 also preserved an affirmative defense that Avallon willfully incurred a loss of
income by failing to conduct a reasonable job search when substantially equivalent employment
was readily available.610
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Union, I make the following
FINDINGS OF FACT15
THE COMPLIANCE SPECIFICATION
A. The Backpay Period
20
The backpay period, as set forth in the compliance specification, begins on March 8,
2008, the date Avallon was placed on the referral list under the terms of Teamsters Local 25
Motion Pictures and Television Production Industry Referral Rules, dated December 16, 2007
(2007 Referral Rules). About 3 years later, those rules were replaced by Teamsters Local 25
Motion Pictures and Television Production Industry Referral Rules, dated February 24, 201125
(2011 Referral Rules). The 2011 Referral Rules required drivers to have commercial driver’s
licenses (CDL), but provided a 6-month grace period for “Casual List” drivers to obtain such
certification.
Given Avallon’s conceded failure and/or inability to obtain a CDL license, the Region 30
ended the backpay period at the conclusion of the grace period, August 24, 2011.7 The
undisputed net backpay breaks down as follows:
Year Quarter 1 Quarter 2 Quarter 3 Quarter 4
2008 $1,656.72 $10,062.39 $5,510.95 $6,307.47
2009 0 1,401.66 13,309.03 $7,072.99
2010 350.42 $350.42 350.42 0
2011 $350.42 $350.42 $247.60 0

4 Backpay consists of hourly wages, vacation rates and meal allowances. (GC Exh. 1(a), Exh. 1.)
5 In his brief, the General Counsel withdraws the claim for $13,935.10 in missed contributions to
Local 25’s health plan. (GC Exh. 1(d), (f) and (i).) In that respect, the testimony of Carol Blanchard,
executive director of Local 25’s health services and insurance plan, is disregarded. (Tr. 86–96.).
6 GC Exh. 1(f) at 4; Tr. 7-9.
7 The 2011 Referral Rules were unambiguous as to their effective date—February 24—and the
additional 6-month grace period beyond that date for members to obtain CDL licenses. (GC Exh. 2 at 6,
8; Tr. 27–28.) It is unclear, therefore, as to Local 25’s basis for sending out warning letters on July 27,
2011, essentially reducing the grace period by about 3 weeks. (GC Exh. 39.)
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3
B. Pension Fund Contributions
The amended compliance specification also included a sum for missed payments required
by the collective-bargaining agreement (CBA) during the backpay period to the New England 5
Teamsters & Trucking Industry Pension Fund (pension fund).8 The fund currently has $2.7
billion in assets and 72,000 plan participants.9
Avallon is vested in the pension fund and is eligible to receive monthly pension payments in
2023. Pension fund contributions are payable to vested members when they work at least 375 10
hours per calendar year. The financial health of the fund is predicated on employers contributing
to it pursuant to collective-bargaining agreements. Thus, the pension fund would be harmed to
the extent that it is ordered to provide Avallon with additional pension credit without receiving
the appropriate amount of contributions.10
15
Based on the projected gross backpay, Local 25 would have contributed $11,010.86 to
the pension fund on her behalf.11 In arriving at that amount, the Region relied on the average
hours worked by similarly situated “Casual List” employees referred by Local 25, multiplying
the hours by the applicable contribution rates, and calculating the following sums for each
quarter of the backpay period:1220
Year Quarter 1 Quarter 2 Quarter 3 Quarter 4
2008 $558.88 $2,199.16 $1,157.19 $1,382.94
2009 0 $307.32 3,115.56 1,721.34
2010 $85.28 $85.28 142.96 0
2011 93.73 $93.73 67.49 0
With respect to any omitted contributions to the pension fund, Local 25’s CBA with one
employer, the New England Motion Picture and Television Production Producers Association,
running from October 2008 to September 2013, specifies the enforcement remedy available to 25
Local 25; it is, however, silent as to whether the same remedy would be available to aggrieved
members against Local 25. Article 9(d) of that CBA stated, in pertinent part:
If the production company shall fail to make contributions to the Pension Fund by the
twentieth (20) day of the month following the month during which the Employees performed 30

8 GC Exh. 5 at 2; GC Exh. 6 at 3.
9 This finding is based on the credible and unrefuted testimony of Charles Langone, the pension
fund’s administrator. (Tr. 97.)
10 Local 25 concedes that it would be liable to reimburse the pension fund with contributions for
additional pension credit awarded to Avallon as the result of a backpay award. (Tr. 101-103; R. Exh. 1.)
11 Langone testified that Avallon would have accrued pension benefits for 2008 and 2009 totaling
$184 based on the work hours listed in the compliance specification, but nothing in 2010 since she would
not have met the annual “threshold” of at least 375 hours worked. (Tr. 99–100.) The actual pension
benefit, however, is irrelevant, as the compensable amount is Local 25’s contributions to the pension fund
on Avallon’s behalf pursuant to the collective-bargaining agreement. See, e.g., item 14 at p.2 of the
August 24, 2009 “Wichita” letter. (GC Exh. 6.)
12 GC Exh. 1(d), Exh. 1.
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4
work or received pay or were due pay within the scope of this collective bargaining
agreement . . . the Union shall have the right to . . . take whatever steps it deems necessary to
secure compliance with this Agreement . . . and the production company shall be
responsible to the Employees for losses resulting there from. Also, the production company
shall be liable to the Trustees for all costs of collecting the payments due together with 5
attorneys’ fees and such interest, liquidated damages or penalties which the Trustees may
assess or establish in their discretion.”13
C. Income Tax Reimbursement
10
Relying on the Board’s recent decision in Latino Express, Inc., 359 NLRB No. 44 (2012), the
amended compliance specification also included the sum of $1,060.21 to reimburse Avallon for the
additional income tax burden she will incur after receiving a lump sum backpay award. The
compensable amount consists of the excessive tax burden of $844.98 resulting from the backpay
award and, since that too would be treated as income, an additional $215.22 to cover the resulting tax 15
consequences of the reimbursement.14
AVALLON’S INABILITY TO OBTAIN INTERIM EMPLOYMENT
A. Avallon’s Experience and Qualifications Prior to the Backpay Period20
Avallon is 54 years old and resides with her husband, a welder, in North Attleboro,
Massachusetts. She has a high school diploma, approximately 2 years of college credits
accumulated over the course of 10 years, and has worked in a wide assortment of positions.
Avallon’s experience over the past 20 years includes customer service, clerical work, driving a 25
delivery truck for UPS and a mail truck for Brown University, driving motion picture personnel
in a 15-person van to and from film locations, photography, and as a leasing agent. She has never
possessed more than a standard driver’s license. Avallon is skilled at computer research and has
some knowledge of basic computer programs. She can lift as much as 50 pounds.15
30
Avallon’s hourly compensation over the past 20 years has fluctuated significantly. She
earned approximately $20 per hour, plus overtime, from 1997 to 2003 while transporting 15-
passenger van transporting crew members from their hotels to production locations. A full day
could last as much as 17 hours long, with overtime being paid after 65 hours per week. Although
sporadic, that work entitled Avallon to health benefits, pension fund contributions, and a $50 daily 35
meal allowance. The duration of work assignments ranged from 10 to 24 days. The most Avallon
worked in a given year was 8 months. During nonwork periods between end of summer 2003
and March 2004 she collected unemployment and performed part-time work picture taking at

13 While it is undisputed that Board law requires statutory interest to be assessed on any retroactive
pension contributions, the Board also requires consideration of relevant documents in determining
whether to assess other costs as well. The evidence includes a provision enabling Local 25, on behalf of
the pension fund Trustees, to recoup any attorneys’ fees, interest, liquidated damages, or penalties from
the production company. There is no evidence in the record, however, contemplating a similar remedy
against Local 25. (GC Exh. 6.)
14 GC Exh. 1(i) at 4–6; GC Exh. 4.
15 Avallon testified that she had difficulty performing heavy lifting, but conceded that she can lift up
to 50 pounds. (Tr. 28–30, 116–119, 149–150, 155, 158, 194.)
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5
BJs, computer ordering products (included word and data processing), and scanning documents
for an insurance agency.16
From March 2004 to 2006, Avallon earned $11 per hour, amounting to $25,000 annually,
plus health benefits and a retirement plan, while working as a driver/mail clerk for Brown 5
University.17 In that capacity, she routinely carried and delivered mail to various campus offices,
but found it increasingly difficult to lift heavy bulk mail. On one occasion, Avallon’s supervisor
reassigned her to clerical, nonifting work in the office. As a result, Brown put her to work inside
for 2 weeks until the pain went away. In August 2006, Avallon left to work in real estate.18
10
From 2006 to 2008, Avallon worked 32 hours per week for Tri Town Realty in North
Attleboro as a leasing agent. In that capacity, she completed typewritten form leases and showed
available apartment rentals. That job also paid $11 per hour, but did not provide health or retirement
benefits.19 While working at Tri Town, Avallon periodically submitted applications for office work-
related positions at Brown University.2015
On February 6, 2008, while still working at Tri Town Realty, Avallon spoke with Mark
Harrington, Local 25’s secretary-treasurer about her desire to return to work as a driver on motion
picture jobs and to have her name placed on the regular employee list or the “Casual List.” Avallon’s
request was denied and she grieved that decision on March 6, 2008, stating that “[y]ou have refused 20
me work by not putting my name on the regular employee list or the “Casual List.”21 In response,
Local 25 added her to the “Casual List” as number 145 on March 11, 2008. In that position, Avallon
was eligible for work once the seniority list and the 144 members in front of her on the casual referral
list were exhausted.22 Avallon appealed that decision on March 19, 2008, requesting that she be
“restored to my former position on the Movie Seniority Referral list along with the other non CDL 25
holders of Local #25 who have been ‘Grandfathered In” and are now working on productions in an
around the Boston area.”23

16 Avallon’s testimony regarding her general employment history prior to the backpay period was
generally credible and unrefuted. (Tr. 31-34, 139–145.)
17 Local 25 stipulated that work paying $11 per hour is substantially equivalent to Local 25 work. (Tr.
34, 159.)
18 I was not convinced by Avallon’s statement that she was forced to leave the Brown job because of
the heavy lifting component of the work. She conceded that she was accommodated at one point by being
assigned to clerical work when she experienced back pain and never sought medical or other therapeutic
support. Avallon also conceded that she can lift up to 50 pounds. As such, I find it likely that she left to
take a more sedentary type of job as a real estate agent. (Tr. 34–36, 121, 146–148, 184–185.)
19 Avallon’s testimony about her employment at Tri Town was vague and inconsistent as to the period
she worked there. (Tr. 36, 159–162.)
20 Local 25 asserts that these 10 job applications are relevant to show a pattern as to why Avallon was
unable to get work during the backpay period and remains unemployed today. It also contends that she
was unqualified for these positions, but the General Counsel contends that Avallon was familiar with
word processing, including Adobe Acrobat, and knows how to generate Excel spreadsheets. (R. Exh. 2-
11; Tr. 157–158.) In any event, these applications provide little insight as they were job searches
performed during a period of time when Avallon was working prior to the commission of the unfair labor
practice on March 8, 2008.
21 R. Exh. 12.
22 GC Exh. 7.
23 R. Exh. 13.
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Sometime in early April 2008, while her appeal to be restored to the Regular Seniority List
was pending, Avallon gave 2 weeks notice and resigned from Tri Town Realty.24 She also obtained a
drivers’ certification from the Department of Transportation on March 4, 2008. At that point, she
expected to be called for driving jobs from the Casual List and wanted to be available if and when
that happened.25 On April 24, 2008, Avallon’s appeal was denied and she filed an unfair labor 5
practice charge the following day.26
B. Avallon’s Efforts to Find Interim Employment
Between March 2008 and August 2011, Avallon submitted 17 job applications, mostly 10
online and to nearby universities.27 She limited her job search to full-time jobs in northeastern
Rhode Island and southeastern Massachusetts that paid at least $10 per hour and provided health and
retirement benefits.28
Avallon’s initial application was to Brown University in April 2008 for a mail service 15
coordinator position.29 In May 2008, she submitted three more applications30 with Brown
University for positions as a secretary/receptionist position, office assistant, and administrative
assistant.31 From June to November 2008, Avallon submitted six applications for the following
openings: administrative assistant, financial assistant, office assistant, stockroom assistant, staff
assistant, and mail clerk.32 After submitting her November 5, 2008 application for the mail clerk 20

24 Avallon’s testimony was vague and inconsistent as to when she gave notice to Tri Town, but there
is no doubt that it occurred after she was placed on the casual list. (Tr. 174–176.)
25 Avallon’s assertion that there were ongoing movie productions and she expected to be contacted for
work is corroborated by Judge Rubin’s findings that others listed before and after her on the casual list
were referred for driving work in 2008 and 2009. (Tr. 41, 175–177, 181; GC Exh. 1(a) at 5-6.)
26 R. Exh. 14-15.
27 The credibility of Avallon’s efforts to find employment during portions of the backpay period was
undermined by her failure to comply with a subpoena to produce notes allegedly generated by her and job
rejection letters allegedly received. (GC Exh. 8.) Under the circumstances, I give no weight to a
typewritten list that she generated for the hearing, and allegedly relied on to refresh her recollection, as to
what was allegedly reflected in the missing notes. (Tr. 43, 50–52, 190–191.)
28 Avallon’s testimony that she did daily computer searches for interim employment was not credible,
given the lack of specificity and corroboration. For similar reasons, I also did not credit her assertion that
she networked with family and friends or spoke with someone at the unemployment office, who was
unhelpful, even though he offered her use of their computer databases. She also mistakenly referred to
southern Rhode Island instead of its northeastern portion, which is where Brown University and
Providence are located. (Tr. 56–60, 189, 203.)
29 GC Exh. 9.
30 I found Avallon’s explanation credible that discrepancies on the latter applications as to why she
left her previous position were attributable to a simple failure to update her information on the form. (GC
Exh. 8, 10–12(a), 32; Tr. 204–205.)
31 I do not credit the conflicting testimony of Rhonda Jellenik, Local 25’s vocational expert, as to
whether Avallon applied for office jobs for which she was unqualified. As previously noted, Avallon
knew how to use several computer programs, including Microsoft Office and Excel. (Tr. 231, 269–270.)
32 The first five of those job applications indicated that the applicant had “No Interest to Interview.”
However, the cross-examination merely established that such an entry meant that Avallon was not
contacted by Brown University. With respect to her application for the mail clerk position, that opening
was cancelled due to a hiring freeze. (GC Exh. 32; Tr. 151–152.)
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position, however, Avallon was informed by Brown University personnel that the college was in
the midst of a hiring freeze. The general hiring freeze lasted until about September 2010.33
Avallon did not apply for any positions anywhere between November 2008 and June
2009.34 When she renewed her effort to find employment, she did so sparingly.35 On June 24, 5
2009, while Brown University’s general hiring freeze was still in effect, she applied for a parking
officer position.36 On September 9, 2009, she applied for a position as a special program
coordinator.37
In 2010, Avallon applied to three positions.38 On February 3, 2010, she reapplied to the 10
parking officer position.39 On August 25, 2010, Avallon applied for an administrative assistant
position.40 On June 30, 2010, she applied for a library assistant position at the Boyden Library in
Foxborough, Massachusetts. The position entailed basic computer operation, answering
telephones, and other clerical tasks.41
15
In 2011, Avallon applied to only two positions.42 On March 1, 2011, Avallon applied for
a laundry/housekeeping supervisor position and coordinator of plants and therapeutic animals at

33 Avallon conceded being informed of the hiring freeze when she applied in November 2008. (GC
Exh. 33; Tr. 111–112, 186–188.)
34 Given Jellenik’s testimony that there were thousands of jobs available that fell within Avallon’s
qualifications and experience in Massachusetts, I did not credit Avallon’s sweeping assertion that “there
was nothing out there.” (Tr. 189.) Avallon may have been justified in limiting her search to jobs within a
60-mile range. (Tr. 203.) However, I did not find credible her assertion that she focused solely on
openings that had offered health, retirement, meal or vacation plans comparable to Local 25’s (83–84).
On cross-examination, she conceded that she never considered benefits offered at the places that she did
apply to in 2010 and 2011. (Tr. 120, 199–207.)
35 I credit Jellenik’s testimony that Avallon’s job search efforts were virtually nonexistent. In
her opinion, Avallon needed to send out at 5 to 10 resumes to different employers per week and attend
job fairs and career center for interviews. For example, Avallon never applied to hospitals, who were
major employers during the backpay period. (Tr. 234–236)
36 GC Exh. 21–21(a); Tr. 66.
37 The job opening, entailing the coordination of all aspects of the Year of India Program, involving
lectures, art, conferences and outreach, was geared to applicants with event planning experience. (GC
Exh. 22–22(a).)
38 I did not credit Avallon’s vague and uncorroborated testimony, supposedly refreshed by the
dubious notes (GC Exh. 8), that she applied by email in 2010 for positions at Norfolk Power Equipment,
Whole Foods, and Natural Distributors, an unspecified child care agency, an unspecified furniture
company, and temporary employment agency . (Tr. 70–75.)
39 GC Exh. GC Exh. 24–24(a).
40 GC Exh. 25(a).
41 GC Exh. 26–27; Tr. 68–69.
42 Again, I did not credit Avallon’s vague and uncorroborated testimony that she applied by email for
certain openings. As such, I do not find that she applied in 2011 to a veterinary practice, Wheaten College
and Sports Cars Unlimited. (Tr. 78–80.)
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Madonna Manor, a skilled nursing facility in North Attleboro.43 She also applied in or around
May 2011 to Wheaten College for a mailroom position.44
C. The Availability of Substantially Equivalent Jobs45
5
Based on Avallon’s employment history as a van driver, delivery driver, and leasing
agent, she had transferrable skills to customer service representative, retail clerk, receptionist,
information clerk, food preparation worker, counter clerk, cafeteria attendant, hostess, rental
clerk, sales representative, telemarketer, account collector, and courier. Although paying
considerably less per hour than driving in the movie industry, the hourly wages are comparable 10
when considering that work in these areas is general steady work and not intermittent.46
Avallon’s residence in North Attleboro is located in Southeastern Massachusetts, near the
border between Massachusetts and Rhode Island; her home is considerably closer to Providence,
Rhode Island than Boston, which was about a 35-mile commute.47 The following job vacancies 15
existed during the backpay period in the Greater Boston and Southeastern Massachusetts areas in
the transportation and warehousing:48 2008-2nd Quarter: 1,015; 2008-4th Quarter: 943; 2009-2nd
Quarter: 738; 2009-4th Quarter: 884; 2010-2nd Quarter: 1,024.49
In addition, the following job openings existed during the backpay period in the Greater 20
Boston and Southeastern Massachusetts areas in food service, sales and office/administrative

43 I did not credit Avallon’s testimony that she might have previously applied to Madonna Manor in
2010. (GC Exh. 29-30; Tr. 67, 75–77.)
44 GC Exh. 31.
45 Jellenik’s sweeping assertion that Avellon should have obtained interim employment within three
months was vague and unsubstantiated. (Tr. 238–240.) Accordingly, I gave it no weight.
46 Local 25 provided expert testimony by Jellenik regarding the availability of substantially equivalent
jobs and Avallon’s qualifications to perform them. Her report, as well as the job surveys that she relied
upon, were previously provided to the General Counsel, who had no objection to its receipt in evidence.
Accordingly, I credit her testimony regarding applicable state and Federal employment statistics. (R. Exh.
17; Tr. 208–209, 214–219.)
47Jellenik did not provide statistics relating to available employment in Rhode Island, but conceded
that its unemployment rate was consistently higher than Massachusetts’ rate during the backpay period.
(256–258)
48 I relied on Jellenik’s statistics of job vacancies in these areas, which were within reasonable
commuting distance of Avallon’s home, but not those in Northeastern Massachusetts. (R. Exh. 17 at 2.). I
also did not rely on statewide estimates of 10,000 to 15,000 available transportation jobs 20,000 office
jobs since they would have included jobs that were not within reasonable commuting distance to
Avellon’s residence. (Tr. 220–225, 229–330; R. Exh. 17 at 16–17.)
49 The Massachusetts Workforce Development surveys for transportation jobs were issued twice a
year in 2008 and 2009, once in 2010 and not issued in 2011. (R. Exh. 17 at 2; Tr. 221.) In the absence of
evidence from the General Counsel indicating that those statistics were inaccurate or unreliable, I credit
them as illustrative of transportation employment opportunities during 2008, 2009 and 2010.
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support: 2008-2nd quarter: 15,509; 2008-4th quarter: 13,509; 2009-2nd quarter: 9,856; 2009-4th
quarter: 16,928; 2010-2nd quarter: 17,445.50
Legal Analysis
5
BACKPAY
The prior determination that Local 25 committed an unfair labor practice is presumptive
proof that Avallon is owed a certain amount of backpay. Minette Mills, Inc., 316 NLRB 1009,
1010–1011 (1995); Arlington Hotel Co., 287 NLRB 851, 855 (1987), enfd. 876 F.2d 678 (8th 10
Cir. 1989); NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. denied 384
U.S. 972 (1966). The General Counsel's burden was, therefore, limited to showing the gross
backpay due Avallon. J. H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223, 230–231 (5th Cir.
1973), cert. denied 414 U.S. 822 (1973). In that regard, the General Counsel need show only that
the gross backpay amounts contained in the compliance specification were reasonable and not an 15
arbitrary approximation. Performance Friction Corp., 335 NLRB 1117 (2001); Mastell Trailer
Corp., 273 NLRB 1190, 1190 (1984). Local 25 does not contest the reasonableness of the
compliance specification and, therefore, its calculations will be relied upon as the amount of
gross backpay that would have been earned by Avallon as a driver in the movie industry during
the backpay period.20
As the General Counsel established gross backpay, the burden shifted to Local 25 to
establish facts warranting a reduction of the amount due for gross backpay. Atlantic Limousine,
328 NLRB 257, 258 (1999); Florida Tile Co., 310 NLRB 609 (1993); Hacienda Hotel & Casino,
279 NLRB 601, 603 (1986). This burden can only be met, however, by a showing that: (1) there 25
were substantially equivalent jobs within the relevant geographic area; and (2) the discriminatee
unreasonably failed to apply for these jobs. St. George Warehouse, 351 NLRB 961, 961 (2007),
affd. and enfd., 645 F.3d 666 (3d Cir. 2011).
A. The Backpay Period30
Local 25’s initial contention in attempting to reduce gross backpay is to shorten the
backpay period. The compliance specification alleges that the backpay period commenced on
March 8, 2008 and ended on August 24, 2011, at the end of the 6-month grace period provided in
the updated 2011 Referral Rules. Local 25 does not dispute the commencement date, but 35
contends that the backpay period ended March 24, 2011, since Avallon failed to obtain a CDL
license during the 6-month grace period under the 2011 Referral Rules.
It is well established that where there are uncertainties or ambiguities, doubts should be
resolved in favor of the wronged party rather than the wrongdoer. United Aircraft Corporation, 40
204 NLRB 1068, 1068 (1973). In United Aircraft Corporation, the Board held that the backpay
claimant should receive the benefit of any doubt rather than the Respondent, the wrongdoer

50 I excluded job openings listed for the Northeastern Massachusetts category. (R. Exh. 17 at 13–15.)
Moreover, with respect to the listings of openings at 45 companies at unspecified locations between
March 2008 and February 2011, I considered only the hourly wage rates to the extent that they
demonstrated the substantially equivalent nature of such work. (Id. at 15–16.)
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responsible for the existence of any uncertainty and against whom any uncertainty must be
resolved. Id. Further, in Stagehands Referral Serv., where the Respondent disputed the close of
the backpay period chosen by the General Counsel, the Board emphasized the remedial purpose
of the Act and adopted the General Counsel’s end date for the backpay period. Stagehands
Referral Serv., 354 NLRB 83, 89 (2009) (refusing to shorten the backpay period pursuant to a 5
subsequent union referral for only two days because it would not further the remedial purposes
of the Act).
A plain interpretation of the 2011 Referral Rules provides that Avallon’s eligibility for
work referrals ended on August 24, not March 24, 2011, Indeed, Local 25 waited until almost 6 10
months after the 2011 Referral Rules went into effect before reminding applicable members that
the 6-month grace period was approaching and warning that they risked revocation of eligibility
if they failed to obtain a CDL license. Local 25’s contention that Avallon should not be afforded
the benefit of a grace period because she failed to obtain a CDL license is unfounded. Avallon
continued to have the right to be referred work from Local 25’s hiring hall during that period of 15
time regardless of whether or not she obtained a CDL license.
Moreover, since it is unclear as to whether Avallon undertook a good faith effort to
obtain a CDL license during the grace period, any doubt or uncertainty in the evidence must be
resolved in her favor. NLRB v. NHE/Freeway. Inc., 545 F.2d 592, 594 (7th Cir. 1976) (resolving 20
doubt in favor of the discriminatees where there was uncontradicted and corroborated evidence
that discriminatees sought work at numerous institutions during the backpay period, but some of
those institutions had no record of the applications being filed); NLRB v. Miami Coca-Cola
Bottling Co., 360 F.2d 569, 572-573 (5th Cir. 1966) (resolving uncertainty against employer
whose unlawful discrimination made it impossible to determine whether the discharged 25
employee would have earned a monetary safety award, which was included in the backpay).
Accordingly, the backpay period is determined to have commenced on March 8, 2008 and ended
on August 24, 2011.
B. The Availability of Substantially Equivalent Jobs30
Local 25’s initial burden is to prove the availability of substantially equivalent jobs
available within the relevant geographic area for someone with the discriminatee’s qualifications.
St. George Warehouse, supra at 963.
35
Local 25 met its burden by of proving that vacancies existed for substantially equivalent
jobs existed in 2008, 2009 and 2010 in the Greater Boston and Southeastern Massachusetts
areas.51 Southeastern Massachusetts was in the immediate proximity of Avallon’s residence,
while the Greater Boston area involved commuting distances of approximately 40 miles. Local
25 did not, however, produce reliable evidence that such opportunities existed in 2011. Its 40
vocational expert opined that suitable job vacancies existed in the Greater Boston and
Southeastern Massachusetts areas at all times between 2008 and 2011, but provided only
statistics from 2008 through 2010. Therefore, Local 25 failed to carry its burden of proof that
there were substantially equivalent jobs within the appropriate geographic areas in 2011. See

51 It is insignificant that Local 25’s did not interview Avallon or consult any employer regarding her
prospects for any job opening. St.George’s Warehouse, 351 NLRB at 962.
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Acosta v. Acosta, 725 F.3d 868 (8th Cir. 2013) (unsupported expert opinion must be excluded),
citing FRE 702(d) (requiring that expert opinion be based on sufficient facts or data); Burgard v.
Super Valu Holdings, Inc., 113 F.3d 1245 (10th Cir. 1997) (rejecting vocational expert’s opinion
as conclusory and unsupported by any evidence of the number and types of suitable and
equivalent jobs in the appropriate geographic area).5
C. Avallon’s Efforts to Find Interim Employment
Local 25 also contends that Avallon unreasonably resigned from her job at Tri Town in
April 2008 and then failed to undertake a good-faith search for interim work. The General 10
Counsel contends that Avallon registered at Local 25’s hiring hall and reasonably expected to be
called back to work in the movie industry. Given the sporadic nature of such work, she then
undertook a search for suitable work by applying to job openings in southeastern
Massachusetts.52
15
It is undisputed that Avallon voluntarily resigned from Tri Town in April 2008 in order to
make herself available for a return to anticipated work as a driver for the movie industry. Under
the circumstances, the burden shifted back to the General Counsel to show that Avallon’s
decision to resign from Tri Town was reasonable and does not warrant an offset to gross
backpay. First Transit, Inc., 350 NLRB 825, 826-827 (2007) (discriminatee’s resignation from 20
interim employment was unreasonable when he resigned solely due to a pay cut); Grosvenor
Resort, 350 NLRB 1197, 1201 (2007) (discriminatee’s resignation from interim job after
coworker embarrassed her in front of customers was unreasonable). As previously noted, that
burden was satisfied by Judge Rubin’s decision that there were ongoing movie productions at the
time and other Local 25 members listed before and after her on the Casual List were referred for 25
driving work in 2008 and 2009.
Local 25’s also advances several arguments as to why an offset to backpay is warranted
for the remainder of the backpay period. First, Local 25 argues that Avallon failed to undertake a
reasonably diligent search for interim employment after leaving Tri Town because she was being 30
supported by her husband and did not need to work. Further, Local 25 asserts that it was not
reasonable for Avallon to focus almost exclusively on positions with universities, submit so few
applications over the backpay period.
A discriminatee is entitled to backpay if he or she makes a reasonably diligent effort to 35
obtain substantially equivalent employment. The Lorge Sch. & Linda Cooperman, 355 NLRB
558, 560 (2010) (discriminatee applied to over 600 jobs during an 8-month job search); Flannery
Motors, Inc., 330 NLRB 994, 995 (2000) (discriminatees sought substantially equivalent
mechanic positions and had no duty to search for more lucrative employment). Such a search
need not consist of a specific method that the respondent thinks would have been more 40
successful. United States Can Co., 328 NLRB 334 (1999), enfd. 254 F.3d 626 (7th Cir. 2001);
Continental Insurance Co., 289 NLRB 961 (1982). A discriminatee need not seek employment

52 I reject Local 25’s contention that Avallon’s unsuccessful job applications in 2006 to 2008, while
still employed, created a pattern that is probative of her being unqualified for positions that she applied to
during the backpay period.
JD–09–14
12
“which involves conditions that are substantially more onerous than [her] previous position,”
such as traveling distances substantially further from one’s home. St. George Warehouse, Inc.,
645 F.3d 666, 673 (3d Cir. 2011). However, while the Board’s analysis of the effort to find
interim work does not depend upon a purely mechanical examination of the number or kind of
applications generated, a discriminatee’s search for work must be more than sporadic. Moran 5
Printing, Inc., 330 NLRB 376 (1999).
Avallon submitted 17 job applications between March 2008 and August 2011, a period of
about three and a half years. She submitted the applications mostly online and to nearby
universities. Avallon also limited her job search to full-time jobs in northeastern Rhode Island 10
and southeastern Massachusetts that paid at least $10 per hour and provided health and
retirement benefits. Her job efforts essentially break down into three periods of time.
From April 2008 to November 2008, Avallon conducted a reasonable search for
employment by submitting 10 job applications. She was qualified for those openings based on 15
her skills and qualifications in customer service, clerical work, driving commercial vehicles,
photography, real estate leasing, and basic computer operation and research. See In Re J.J.
Cassone Bakery, Inc., 356 NLRB No. 122 (2011) (citing Mastro Plastics, 136 NLRB 1342, 1359
(1962)) (employees made reasonable efforts to find interim employment based on their skills,
qualifications, ages and labor conditions in the area). Avallon reasonably limited the scope of her 20
job search to northeastern Rhode Island and southeastern Massachusetts where her home is
considerably closer to Providence, Rhode Island than Boston, which was about a 35 mile
commute. She was not obligated to search for work in northeastern Massachusetts, which
involved substantially more onerous travel than her previous position. See, e.g., N.L.R.B. v. St.
George Warehouse, Inc., 645 F.3d at 673 (discriminatee was not obligated to look for jobs 25
substantially further than his former employer was from his home); NLRB v. Westin Hotel, 758
F.2d 1126, 1130 (6th Cir. 1985) (employee acted reasonably in choosing not to apply for
available positions twenty-five miles away from home, where her previous employer was
located, because she did not have adequate transportation).
30
From November 2008 to June 2009, however, Avallon failed to submit any job
applications. Her situation is similar to the one in Glenns Trucking Co., Inc., 344 NLRB 377
(2005). There, the Board held that the discriminatee failed to exercise reasonable diligence in
searching for interim employment where the discriminatee went nearly a year with no evidence
of any job search efforts, and tolled his backpay accordingly.35
From June 2009 to May 2011, Avallon’s job search was sporadic and she submitted only
7 job applications. Board analysis of a job effort does not depend upon a purely mechanical
examination of the number or kind of applications for work made by a discriminatee. Mastro
Plastics Corp. supra at 1359. However, Avallon’s inactivity during this period of time was 40
similar to the one portrayed in Moran Printing, where the Board held that the discriminatee
failed to exercise reasonable diligence in seeking interim employment by merely signing the
hiring hall’s out-of-work book and having his union representative sign his unemployment
forms. Moran Printing, Inc. supra at 376-377.
45
Moreover, this situation is distinguishable from cases where discriminatees were found
justified in relying on job referrals from a union hiring hall. See Big Three Indus. Gas & Equip.
JD–09–14
13
Co., 263 N.L.R.B. 1189, 1198 (1982) (discriminatee relied on union hiring hall and obtained
regular interim employment which required roughly the same degree of skill). In Midwestern
Pers. Servs., Inc., 508 F.3d 418, 423-424 (7th Cir. 2007), the Seventh Circuit affirmed the
Board’s backpay award where the discriminatee secured six jobs through the hiring hall list,
found work on his own and registered with the state unemployment agency. In this case, 5
however, Avallon recognized as far back as March 2008 that she would not be able to rely on her
referral work from Local 25 and would need to look for alternative work.
In conclusion, Avallon did not undertake a reasonable job search in 2009, 2010, and
2011; her job search in 2011, however, is irrelevant since Local 25 failed to meet its burden of 10
demonstrating the availability of substantially equivalent employment during that period of time.
D. Net Backpay
Based on the foregoing, Avallon is entitled to backpay for the four quarters of 2008 based 15
on her demonstrated efforts during that time to obtain interim employment. Moreover, due to
Local 25’s failure to demonstrate the existence of available interim employment at any time in
2011, Avallon is entitled to backpay for the first three quarters of 2011. Backpay is tolled for all
of the claimed quarters in 2009 and 2010. Accordingly, Avallon is owed $24,485.97 in net
backpay based on the following amounts payable per quarter:20
Year Quarter 1 Quarter 2 Quarter 3 Quarter 4
2008 $1,656.72 $10,062.39 $5,510.95 $6,307.47
2009 0 0 0 0
2010 0 0 0 0
2011 $350.42 $350.42 $247.60 0
PENSION FUND CONTRIBUTIONS
The compliance specification included the sum of $11,010.86 in payments owed to the 25
pension fund on Avallon’s behalf during the backpay period. Local 25 did not contest the
accuracy of that gross calculation, which was based on the number of hours worked during the
backpay period by comparable employees multiplied by the applicable contribution rates.53
Moreover, it concedes that Avallon has an economic interest in the future of the pension fund
and is entitled to have contributions made to the fund on her behalf, but only to the extent that 30
she is found to have used reasonable diligence in her job search.
Based on the compensable sum of net backpay owed Avallon, Local 25 is obligated to
make whole the pension fund by contributing the corresponding amount of pension contribution,
$5,553.12.54 That amount is based on the following contributions per compensable quarter: 35

53 Local 25 produced evidence as to the additional monthly pension benefit to Avallon, but the
compensable amount at issue is the contributions owed to the pension fund simultaneous with the
payment of backpay pursuant to the CBA.
54 As previously noted, the record is devoid of evidence authorizing, on behalf of the pension fund,
the imposition of liquidated damages, attorneys fees (not applicable here), and monetary penalties.
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Year Quarter 1 Quarter 2 Quarter 3 Quarter 4
2008 $558.88 $2,199.16 $1,157.19 $1,382.94
2009 0 0 0 0
2010 0 0 0 0
2011 $93.73 $93.73 $67.49 0
INCOME TAX REIMBURSEMENT
Pursuant to its decision in Latino Express, Inc., 359 NLRB No. 44 (2012), the Board
requires that respondents reimburse discriminatees for the adverse income tax consequences 5
incurred by a lump-sum backpay award covering more than 1 year and to file a report with the
Social Security Administration allocating the backpay award to the appropriate calendar quarters.
The compliance specification includes an additional sum for the specific adverse tax
consequence and Local 25 does not dispute the reasonableness of that gross calculation. It does 10
contend, however, that Latino Express is inapplicable if Avallon’s backpay award does not
exceed 1 year. As previously noted, Avallon is entitled to backpay for 2008 and 2011.
Accordingly, Avallon will be compensated for the adverse tax consequences of the lump-sum
award of $24,485.97. The amount payable is the extent to which the Federal and State tax for
that award exceeds the aggregate amount of taxes had the backpay been received incrementally 15
each year. In addition, Avallon shall be reimbursed for the incremental tax resulting from the
payment of the excess taxes on her behalf. For purposes of making such tax calculations, Exhibit
4 to the amended compliance specification is revised as follows:
Year Taxable Income
(Backpay)
Filing Status Federal
Tax
State Tax
2008 $23,537.53 Married Filing Jointly/Widower $2,728.13 $1,247.49
2011 948.44 Married Filing Jointly/Widower 94.84 50.27
Taxes Paid $2,822.97 $1,297.27
2008-2012 $24,485.97
20
CONCLUSION
Based on the findings and analysis set forth above, and on the entire record, I issue the
following recommended supplemental55
25
ORDER
Respondent, the International Brotherhood of Teamsters, Local 25, its officers, agents,
successors and assigns, shall make whole discriminatee Denise Avallon by paying her
$24,485.97 in net backpay and an additional sum for the excess income taxes resulting from such 30
award, plus interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8

55 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–09–14
15
(2010), accrued to the date of payment, and minus tax withholding required by Federal and State
law. In addition, Local 25 shall make whole the New England Teamsters & Trucking Industry
Pension Fund by contributing $5,553.12 on Avallon’s behalf.
Dated, Washington, D.C. February 20, 2014.5
____________________________
Michael A. Rosas10
Administrative Law Judge