Kentucky River Medical Center

National Labor Relations Board - Board Decisions

Feb 29, 2008

352 N.L.R.B. 194 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 33
194
Jackson Hospital Corporation, d/b/a Kentucky River
Medical Center and United Steelworkers and
Anita Turner. Cases 9–CA–37734, 9–CA–
37795–1, –2, 9–CA–37796, 9–CA–37875, 9–CA–
38084–1, –2, 9–CA–38237, and 9–CA–38468
February 29, 2008
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On February 22, 2007, Administrative Law Judge
Margaret G. Brakebusch issued the attached supplemen-
tal decision.1 The Respondent filed exceptions and a
supporting brief, and the General Counsel filed a cross-
exception and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exception, and briefs, and has decided to affirm the
judge’s rulings,2 findings,3 and conclusions and to adopt
the recommended Order as modified.4

1 In the underlying proceeding, Kentucky River Medical Center, 340
NLRB 536 (2003), enfd. No. 04-1019 (unpublished) (D.C. Cir. June 3,
2005), the Board found the Respondent had committed multiple viola-
tion of Sec. 8(a)(1), (3), and (5), including the four discharges for
which backpay is at issue here.
2 On two occasions during the hearing, the Respondent moved to
amend its answer and the judge denied those motions. We adopt those
rulings for the reasons stated by the judge, and because in any case, as a
practical matter, the Respondent was in no way restricted from contest-
ing the allegations in the compliance specification. We also adopt the
judge’s rulings quashing in part the Respondent’s subpoenas for docu-
ments in the possession of the discriminatees, for the reasons the judge
explained. Aladdin Gaming, LLC, 345 NLRB 585, 587 (2005) (“[T]he
Board affirms an evidentiary ruling of an administrative law judge
unless it constitutes an abuse of discretion.”), enfd. No. 05-75515, 2008
WL 216935 (D.C. Cir. Jan. 28, 2008).
3 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The Respondent does not dispute the General Counsel’s method for
initially calculating backpay. However, the Respondent excepts to the
judge’s finding that the backpay period should be tolled for discrimina-
tees Miller and Richie as of August 5, 2005—when the Respondent’s
unconditional offers of reinstatement to them expired—rather than as of
July 19, 2005, the date the Respondent made those offers. We adopt
the judge’s finding, for the reasons she stated.
The General Counsel cross-excepts with respect to Miller, pointing
out that although she unreasonably quit from interim employment with
Central Kentucky Blood Center on February 15, 2002, that employer
subsequently closed down. The judge credited Miller’s testimony that
the shutdown occurred sometime in July 2004, but inadvertently failed
to consider that fact in calculating Miller’s backpay. We therefore treat
the interim employer as having closed on July 31, 2004, and have re-
calculated Miller’s backpay award accordingly. We also correct sev-
eral small arithmetical errors in the judge’s calculation of backpay for
Miller and Richie. Specifically, the correct amount of Miller’s net
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Jackson Hospital Corpora-
tion, d/b/a Kentucky River Medical Center, Jackson,
Kentuckyits officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following awards for discriminatees
Debra Miller and Maxine Ritchie, respectively:
“Debra Miller $39,854
Maxine Ritchie 88,524”
Julius U. Emetu II, Esq., for the General Counsel.
Don T. Carmody, Esq., Bryan T. Carmody, Esq., and Sam
Braunstein, Esq., for the Respondent.
Randy Pidcock, District Organizing Coordinator, for the
Charging Party.1
SUPPLEMENTAL DECISION AND ORDER
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge. A
Decision and Order of the National Labor Relations Board
issued on September 30, 2003, finding, among other things, that
Jackson Hospital Corporation, d/b/a Kentucky River Medical
Center, herein Respondent, discriminatorily discharged eight
employees in violation of Section 8(a)(3) of the National Labor
Relations Act. The Decision and Order further provided that
the unlawfully terminated employees be reinstated and made
whole for any loss of earnings or other benefits, computed on a
quarterly basis, from the date of their discharges until the dates
of the Respondent’s offers of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest, as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). On June 3, 2005, the
United States Court of Appeals for the District of Columbia
Circuit (the court), entered its judgment enforcing the Board’s
Order.
A controversy having arisen over backpay due, the Regional
Director for Region 9 of the National Labor Relations Board
(the Board), issued a compliance specification and notice of

backpay for the third quarter of 2001 is $447, and the correct amount of
net backpay for the fourth quarter of 2003, and the first two quarters of
2004 is $1008 each. The correct amount of Ritchie’s net backpay,
subtracting her total interim earnings from her gross backpay, is
$88,524.
4 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
1 Upon the Charging Party Union’s unopposed motion at hearing, the
name of the Union was changed for the record from United Steelwork-
ers of America to “United Steelworkers.”
KENTUCKY RIVER MEDICAL CENTER 195
hearing on August 18, 2006. While the Board’s Order, as en-
forced by the court, required reinstatement and a make whole
remedy for all eight discriminatees, the compliance specifica-
tion dealt only with backpay for Eileene Jewell (Jewell); Debra
Miller (Miller); Lois Noble (Noble), and Maxine Ritchie
(Ritchie).2 Because Respondent has failed to reinstate the re-
maining three discriminatees, the appropriate backpay amount
cannot be fully litigated. The Regional Director has reserved
the right to issue a compliance specification to determine the
correct amount owed to the remaining discriminatees once the
issues regarding their reinstatement have been resolved and the
backpay is tolled.
A hearing was held before me on multiple dates commencing
October 18 and concluding on November 28, 2006.3 The par-
ties were given full opportunity to participate, produce evi-
dence, examine and cross-examine witnesses, argue orally, and
file briefs. Upon the entire record, including my observation of
the demeanor of the witnesses, I find the following
I. PRELIMINARY AND PROCEDURAL MATTERS
A. Tthe General Counsel’s Motion for Partial
Summary Judgment
Section 102.56(b) of the Board’s Rules and Regulations state
in relevant part:
(b) Contents of answer to specification.—The answer
shall specifically admit, deny, or explain each and every
allegation of the specification, unless the respondent is
without knowledge, in which case the respondent shall so
state, such statement operating as a denial. Denials shall
fairly meet the substance of the allegations of the specifi-
cation at issue. When a respondent intends to deny only a
part of an allegation, the respondent shall specify so much
of it as is true and shall deny only the remainder. As to all
matters within the knowledge of the respondent, including
but not limited to, the various factors entering into the
computation of gross backpay, a general denial shall not
suffice. As to such matters, if the respondent disputes ei-
ther the accuracy of the figures in the specification or the
premises on which they are based, the answer shall spe-
cifically state the basis for such disagreement, setting forth
in detail the respondent’s position as to the applicable
premises and furnishing the appropriate supporting fig-
ures.
At the opening of the hearing, counsel for the General Coun-
sel moved for partial summary judgment with respect to para-
graphs 1 through 4 of the compliance specification. Counsel
for the General Counsel asserted that in its answer, Respondent
had not complied with the Board’s Casehandling Manual, Part

2 The compliance specification did not include any backpay owed
for discriminatee Laotta Sizemore because her interim earnings exceed
her gross backpay.
3 The hearing began on October 18, 2006, and continued through the
next day. On October 19, 2006, the case was continued to allow Re-
spondent additional time to subpoena necessary witnesses. The hearing
resumed and concluded on November 28, 2006.
III,4 that requires a respondent to specifically state the basis for
a denial and to furnish alternative figures and amounts.
Section 10652.2 of the Board’s Casehandling Manual, Part
III, Compliance Manual, provides in pertinent part:
Section 102.56(b) of the Board’s Rules and Regulations pro-
vides that if the respondent disputes the accuracy of the back-
pay amount or the premises on which it is based as alleged in
the compliance specification, its answer to the compliance
specification shall specifically state the basis of the disagree-
ment, setting forth in detail the respondent’s position as to ap-
plicable premises and furnishing appropriate alternative fig-
ures and amounts. General denials by the respondent to alle-
gations regarding the calculation of backpay are not sufficient
and do not comply with the requirements of Section 102.56(b)
and (c) of the Rules and Regulations. Pursuant to a motion
for summary judgment, the administrative law judge or the
Board may deem these allegations to be admitted as true.
Accordingly, the General Counsel moved that Respondent be
precluded from offering any evidence to attack the gross back-
pay computation for “appendix A,” sections one through four.
The General Counsel further clarified that while Respondent
could offer evidence on interim earnings, Respondent should be
precluded from offering evidence concerning gross backpay.
Section 1 of the compliance specification alleges that the
backpay period for each discriminatee begins on the date of the
discriminatee’s discharge as set forth in the Board’s Order and
in appendix A of the compliance specification and ends on
August 5, 2005, the response date for Respondent’s valid offer
of reinstatement. In its answer, Respondent denies the allega-
tions set forth in paragraph 1 of the specification relative to the
definition of the “backpay period” and avers that the “backpay”
period for each discriminatee ends on July 19, 2005, the date of
Respondent’s offer of reinstatement to each respective dis-
criminatee.
Section 2 of the compliance specification alleges that gross
backpay, interim earnings, and net backpay are computed on a
quarterly basis with 13 weeks in a full calendar year. The
specification further alleges that partial calendar quarters are
based on the date of the discriminatee’s discharge or the date
the discriminatee’s backpay tolled as set forth in appendix A.
In the answer to section 2, Respondent admits the allegations
relative to the specification’s definitions of “gross backpay,
interim earnings, and net backpay” being “computed on a quar-
terly basis,” and relative to “13 weeks in a full calendar quar-
ter” and relative to “partial calendar quarters [being] based on
the date of the discriminatee’s discharge or the date of the dis-
criminatee’s backpay [being] tolled.” Respondent thereafter
adds: “except denies the allegations that the foregoing are ‘as
set forth in Appendix A.’”
Section 3 of the specification alleges that gross backpay are
wages that discriminatees would have earned during the back-
pay period but for Respondent’s unlawful discrimination
against them. The specification further avers that quarterly
gross backpay is based upon the weekly average of the wages

4 Sec. 10652.2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD196
earned by each discriminatee while employed by Respondent
during calendar year 2000, plus subsequent wage increases, as
set forth in appendix A. In the answer, Respondent admits the
allegations of the specification relative to the definition of
“gross backpay” and relative to “quarterly gross backpay [be-
ing] based upon the weekly average of the wages earned by
each discriminatee while employed by [Kentucky River] during
the calendar year 2000, plus subsequent wage increases.” Re-
spondent thereafter adds: “except denies the allegations that the
foregoing are ‘as set forth in Appendix A.’”
Section 4 of the specification alleges that wage increases for
each discriminatee during the backpay period are a percentage
increase in the quarterly gross backpay based on the increases
in hourly wages granted by Respondent during the backpay
period, as set forth in appendix A. The Respondent admits the
allegations of the specification with respect to the definition of
wage increases; however, Respondent adds a denial that the
allegations are as set forth in appendix A.
Analysis and Conclusions
In order to avoid summary judgment, a respondent’s answer
to the compliance specification must be “sufficiently specific to
raise a litigable issue of fact.” Aneco, Inc., 330 NLRB 969, 971
(2000). It is also well settled, however, that a respondent may
properly cure defects in its answer before a hearing either by an
amended answer or a response to a Notice to Show Cause.
Mining Specialists, Inc., 330 NLRB 99, 101 fn. 12 (1999); Ellis
Electric, 321 NLRB 1205, 1206 (1996); Vibra-Screw, Inc., 308
NLRB 151, 152 (1992).
Section 10652.2 of the Compliance Manual provides that in
the event the answer is defective, the Region should file a mo-
tion at the compliance hearing that the administrative law judge
deem allegations not properly answered be admitted without
taking evidence in support of the allegations and precluding the
respondent from offering evidence to controvert them. The
section also provides:
Before filing either a motion with the Board or with the ad-
ministrative law judge, the trial attorney should advise the re-
spondent in writing that the answer is deficient and, following
the procedures in Section 10652.1, allow the respondent a pe-
riod of time, typically not to exceed 1 week, to file an
amended answer.
There is no dispute that prior to counsel for the General
Counsel’s motion for partial summary judgment, there was no
notice to Respondent that its answer was deficient and there
was no notice to Respondent that the Region intended to seek a
Motion for Summary Judgment because of any perceived defi-
ciency. At the beginning of the hearing, counsel for the Gen-
eral Counsel also amended paragraphs 5 and 6 of the compli-
ance specification to conform to the Compliance Manual and to
conform to the definitions in Respondent’s answer.
By the admissions contained in paragraphs 2 through 4 of the
answer, Respondent does not dispute the General Counsel’s
process for computing gross backpay, including the provision
for wage increases. In paragraph 1 of the answer, however,
Respondent denies the backpay period and asserts that backpay
for the discriminatees is tolled on July 19, 2005, rather than
August 5, 2005, as alleged in the compliance specification.
Thus, Respondent’s answer appears to admit all the pertinent
allegations contained in paragraphs 1 through 4 of the com-
plaint, with the exception of the specific date for the tolling of
backpay. Despite the admissions as described, Respondent
inserts a conclusionary phrase: “except denies the allegations
that the foregoing are ‘as set forth in appendix A’” at the end of
paragraphs 1 through 4.
The Respondent’s answer to the compliance specification,
considered in isolation, is arguably deficient because of Re-
spondent’s insertion of the blanket denial following the admis-
sion of all other terms in paragraphs 2 through 4. Thus, Re-
spondent has generally failed, as required by the Board’s rules,
to reveal with sufficient specificity, the basis on which the Re-
spondent disagrees with the specification’s allegations. The
inserted denial phrase provides no specificity and appears to be
conclusionary only. In determining whether a respondent has
satisfied the Board’s requirements, the Board will construe the
pleadings “in the light most favorable” to the nonmoving party.
Eldeco, Inc., 336 NLRB 899, 900 (2001). Accordingly, in light
of the Board’s tendency to construe pleadings in this manner
and inasmuch as Respondent was not given notice of the defi-
ciency of the answer, I denied the General Counsel’s motion for
partial summary judgment. I further note that while an answer
may be insufficient as to matters within a respondent’s knowl-
edge and control, it is sufficient as to issues of interim earnings.
Everman Electric Co., 334 NLRB No. 6, slip op at 3, (2001)
(not reported in Board volumes); Dews Construction Corp.,
246 NLRB 945, 946–947 (1979). While the denials in Respon-
dent’s answer in paragraph 2 through 4 may unclearly fail to
refer to interim earnings, it is apparent that it is interim earnings
and net backpay rather than the gross backpay that are in dis-
pute with respect to these three paragraphs. With respect to
paragraph 1 of the answer, Respondent specifically denies the
date of the tolling of the backpay period and submits the alter-
native date. Such specificity is sufficient to raise a litigable
issue of fact regarding the closing date of the backpay period
and thus defeat a motion for summary judgment. See Aneco,
Inc., 330 NLRB 969, 971 (2000).
Finally, I note that even though I denied counsel for the
General Counsel’s motion for partial summary judgment, Re-
spondent did not present or attempt to present evidence to rebut
the computation of the gross backpay as defined in paragraphs
2 and 3 of the compliance specification or the computation of
wage increases as outlined in paragraph 4 of the compliance
specification. Respondent’s only evidence concerning the cor-
rect date for the tolling of the backpay period as alleged in
paragraph 1 of the compliance specification and paragraph 1 of
the answer was the submission of Respondent’s written offers
of reinstatement to the discriminatees. These documents were
submitted into evidence as a joint exhibit by the General Coun-
sel and Respondent. Accordingly, the record as a whole sup-
ports the denial of counsel for the General Counsel’s motion for
partial summary judgment.
B. Respondent’s Motions to Amend the Answer
Following counsel for the General Counsel’s motion for par-
tial summary judgment and my ruling thereon, and following
KENTUCKY RIVER MEDICAL CENTER 197
the testimony of Eileene Jewell, Respondent moved to amend
the answer5 to allege a “lack of knowledge” with respect to
compliance specification paragraphs 1, 2, 3, 5, and 6. Respon-
dent argues that by asserting “lack of knowledge” with respect
to the allegations in the enumerated paragraphs, Respondent
has satisfied the obligation of Section 102.56(b) of the Board’s
Rules and Regulations. Additionally, having heard Jewell’s
testimony, Respondent further moved to amend its answer to
conform to her testimony and to amend the answer to allege
that there is no net backpay for Jewell and that Jewel’s backpay
period ended upon her initial termination.
Section 102.56(e) of the Board’s Rules and Regulations pro-
vides: “Following the amendment of the specification by the
Regional Director, any respondent affected by the amendment
may amend its answer thereto.” Counsel for the General Coun-
sel opposed Respondent’s motion to amend, asserting that there
had been no amendment to the compliance specification requir-
ing a corresponding amendment to the answer. The only
amendment to the compliance specification simply revised the
specification definitions to conform to those definitions in-
cluded in Respondent’s answer. I agreed, finding that the Gen-
eral Counsel’s amendment added nothing that required a corre-
sponding amendment to the Respondent’s answer.
It is well settled that a respondent in a compliance proceed-
ing may properly cure defects in its answer before a hearing
either by an amended answer or a response to a Notice to Show
Cause. MFP Fire Protection, Inc., 337 NLRB 984, 985 (2002);
Ellis Electric, 321 NLRB 1205, 1206 (1996). In this instance,
however, Respondent did not seek to amend its answer prior to
the hearing. Respondent sought to do so only after my denying
the General Counsel’s motion for partial summary judgment
and after hearing Jewell’s testimony. Accordingly, inasmuch
as there was no amendment to the compliance specification that
included any additional allegations, and in light of the fact that
the motion to amend the answer was made after Jewell’s testi-
mony, there was no basis to grant Respondent’s initial motion
to amend the answer.
On November 20, 2006, and during a hiatus in the hearing
proceeding, Respondent filed a second amended answer to
amended compliance specification. In the amended answer,
Respondent adds a new paragraph asserting that the Board is
without statutory jurisdiction to issue the relief sought in the
specification for the benefit of discriminatee Ritchie. Respon-
dent asserts that at all times material, Ritchie was a “supervi-
sor” within the meaning of Section 2(11) of the Act, within the
standard adopted by the Board in Oakwood Healthcare, Inc.,
348 NLRB 686 (2006).

5 In denying counsel for the General Counsel’s motion for partial
summary judgment, I offered both Respondent and the General Counsel
the opportunity to further brief the issue if they desired to do so. Re-
spondent asserted that the motion to amend its answer was offered to
protect its interest in the event that counsel for the General Counsel
offered additional and persuasive argument that might lead to a reversal
of my earlier ruling denying the motion for partial summary judgment.
Counsel for the General Counsel, however, explained that while the
Region did not concur with the basis for my ruling, the Region did not
plan to brief the matter.
In brief, Respondent argues that in its September 29, 2006
decision, the Board adopted definitions for the terms “assign,”
“responsibility to direct,” and “independent judgment” as those
terms are used in Section 2(11) of the Act. Respondent asserts
that while Ritchie’s supervisory status could not have been
argued in the underlying unfair labor practice proceeding,
Ritchie’s responsibilities could now arguably meet the Board’s
new standard for determining supervisory status.
Certainly, the Board’s usual practice is to apply new policies
and standards retroactively “to all pending cases in whatever
stage.” SNE Enterprises, 344 NLRB 673, 673 (2005); Aramark
School Services, 337 NLRB 1063 fn. 1 (2002). The Board has
also found, however, that it will apply an arguably new rule
retroactively to the parties in the case in which the new rule is
announced and to parties in other cases pending at the time, so
long as this does not work as a “manifest injustice.” SNE En-
terprises, Inc., above at 674. In determining whether retroac-
tive application will produce manifest injustice, the Board looks
to: (1) the reliance of the parties on preexisting law;6 (2) the
effect of retroactivity on accomplishment of the purposes of the
underlying law which the decision refines; and (3) any particu-
lar injustice to the losing party under retroactive application of
the change of law. Pattern Makers (Michigan Model Mfgrs.),
310 NLRB 929, 931 (1993). See also NLRB v. Bufco Corp.,
899 F.2d 608 (7th Cir. 1990).
The courts have also applied a balancing of interests in ana-
lyzing the retroactivity of a policy, standard, or rule. “In con-
sidering the equities, courts generally balance the interests of
the parties, taking into account such factors as the degree of
hardship they will experience, their justifiable reliance on past
practices, and the statutory interest in a retroactive application
of the new rule.” Consolidated Freightways v. NLRB, 892 F.2d
1052, 1058 (D.C. Cir. 1989). In an even earlier case, the D.C.
Circuit Court of Appeals identified factors for consideration as:
(1) whether the particular case is one of first impression; (2)
whether the new rule represents an abrupt departure from well-
established practice or merely attempts to fill a void in an un-
settled area of law; (3) the extent to which the party against
whom the new rule is applied relied on the former rule; (4) the
degree of the burden which a retroactive order imposes on a
party; and (5) the statutory interest in applying a new rule de-
spite the reliance of a party on the old standard. Retail Whole-
sale Union, 466 F.2d 380, 390 (D.C. Cir. 1972).
On September 30, 2003, the Board issued its decision in the
underlying unfair labor practice matter, requiring full rein-
statement and a make-whole remedy for Ritchie. It is undis-
puted that Ritchie’s supervisory status was not in issue prior to
the Board’s decision. The original charge, the resulting com-
plaint, and the Government’s proof presented to the administra-
tive law judge were premised upon Ritchie’s status as a non-
supervisory employee. The extent to which the charging par-
ties and the Government relied upon her nonsupervisory status
is readily apparent. Accordingly, in light of the factors consid-

6 In Loehmann’s Plaza, 305 NLRB 663, 672 (1991), supplemented
by 316 NLRB 109 (1995), the Board considered whether the parties
had “settled expectations” as to the consequences of the conduct in
issue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD198
ered by the Board and the courts, it is apparent that in this in-
stance the inequity of applying the Board’s new analysis for
determining supervisory status far outweighs the interests of its
application in this case. Therefore, even if Respondent’s late-
filed amendment to add an additional affirmative defense were
permissible, there is no equitable basis to entertain such retro-
active application of the Board’s new standard for determining
supervisory status.
Despite the inequity of retroactive applicability as discussed
above, Respondent’s amendment is otherwise untimely. As
discussed above, Section 102.56(e) of the Board’s Rules and
Regulations provides for a respondent’s amendment to its an-
swer when the respondent is affected by the Regional Direc-
tor’s amendment to the compliance specification. The Rules,
however, do not provide for an amendment to insert an addi-
tional affirmative defense. It is well settled that issues litigated
and decided in an unfair labor practice proceeding may not be
relitigated in the ensuing backpay proceeding. IMAC Energy,
Inc., 322 NLRB 892, 894 (1997); Transport Service Co., 314
NLRB 458, 459 (1994). Furthermore, matters litigated in an
unfair labor practice case cannot be relitigated under the guise
of avoiding backpay. EDP Medical Computer Systems, 293
NLRB 857, 858 (1989).
Respondent argues that because a question concerning Board
statutory authority may be raised at any time, its amendment is
timely. Respondent requests the reopening of the record to
receive “evidence of Ritchie’s ‘supervisory’ status at all times
to the Compliance Specification.” The Board, however, has not
found that a respondent has carte blanche to assert supervisory
status at any juncture in the proceedings. In its decision in
Yesterday’s Children, Inc., 321 NLRB 766 fn. 1 (1996),7 the
Board found that the judge properly denied the respondent’s
motion to amend its answer and to supplement the record and
its brief to allege that a charge nurse was a supervisor or man-
ager rather than an employee. It is significant that the judge’s
decision issued on June 30, 1994. The respondent, however,
based its motion upon the Supreme Court’s May 23, 1994 deci-
sion8 that specifically involved the standard for determining the
supervisory status for nurses.
Based upon the above, I find no basis for Respondent’s mo-
tion to amend its answer as asserted or to reopen the record to
receive evidence of Ritchie’s supervisory status. In its recent
decision in T. Steele Construction Inc., 348 NLRB 812 fn. 1
(2006), the Board denied the respondent’s motion to amend its
answer in light of the Supreme Court’s decision in NLRB v.
Kentucky River Community Care, 532 U.S. 706, (2001), and the
Board’s decision in Oakwood Healthcare, Inc., 348 NLRB 686
(2006).
C. Respondent’s Subpoenas Duces Tecum
On August 18, 2006, the Regional Director for Region 9 is-
sued the compliance specification and notice of hearing in this

7 While the Board’s Order was vacated in part, the First Circuit
Court of Appeals did not find that the Board had abused its discretion
in denying the respondent’s motion to amend the pleadings in light of
the recent Supreme Court decision. Yesterday Children’s, Inc. v.
NLRB, 115 F.3d 36 (1st Cir. 1997).
8 NLRB v. Health Care & Retirement Corp., 511 U.S. 71 (1994).
matter and set the hearing for October 18, 2006. On Friday,
October 13, 2006, Respondent served a subpoena duces tecum
on Miller at 4:29 p.m. On Saturday, October 14, 2006, Respon-
dent served subpoenas on Jewell, Noble, and Ritchie.9 The
subpoenas requested the production of a number of documents
including: (1) Federal, State, and local income tax documents;
(2) documents reflecting efforts to obtain interim employment;
(3) documents relating to self-employment; (4) documents re-
lating to retirement or termination from interim employment;
(5) documents relating to medical or other disability for which
the discriminatees were unavailable for interim employment;
(6) correspondence with the Union, the Board, the State unem-
ployment office, and/or the Respondent; and (7) documents
showing education received during the backpay period. Addi-
tionally, each subpoena duces tecum requested the production
of (1) bank and other financial institution documents showing
deposits and withdrawals from checking and savings accounts
during the backpay period; (2) documents reflecting indebted-
ness and liabilities, including, but not limited to mortgage and
lease commitments during the backpay period; and (3) any and
all documents relating to any financial commitments, including
formal agreements and/or court orders, with respect to any
dependents.
On the first day of trial and only 4 to 5 days following the
weekend receipt of the respective subpoenas, the Charging
Party Union, on behalf of each discriminatee, moved to quash
the subpoenas. The Charging Party Union asserted that the
subpoenas were overly broad in their scope and the production
of the requested documents was also overly burdensome to the
discriminatees. The Charging Party Union further asserted that
the documents sought by the subpoenas were especially irrele-
vant in view of the fact that all of the discriminatees were pre-
sent and willing to testify under oath regarding the compliance
issue to be litigated in the proceeding. Counsel for the General
Counsel concurred with the Charging Party’s argument in sup-
port of its motion and further asserted that the Respondent’s
request for such documents relating to the discriminatees’
mortgage and child support obligations was purely harassment.
The Charging Party Union also asserted that certain of the sub-
poenaed documents related to joint checking accounts and by
their very nature did not relate to the discriminatees’ interim
earnings. Respondent, however, asserted that the documents
were relevant because production of the requested information
might lead to the need to subpoena additional documents to test
the accuracy of the reported interim earnings.
I denied the petition to quash with respect to the request for
the production of all documents relating to interim earnings,
search for work, supplemental education, and the requested
correspondence as described above. Certainly, the majority of
these documents related to information that the discriminatees
provided to the Region to prepare the compliance specification.
I granted the petition to quash the subpoena with respect to
Respondent’s request for the production of documents pertain-

9 Because Respondent served the subpoenas over the weekend be-
fore the hearing, it is likely that neither Board nor union personnel were
readily available to the discriminatees for assistance or clarification.
KENTUCKY RIVER MEDICAL CENTER 199
ing to the discriminatees’ financial obligations, liabilities, and
net worth.
Respondent asserts that it is “not only entitled to request and
produce evidence of a discriminatee’s ‘off the record’ interim
earnings, it is also entitled to inquire into a discriminatee’s
living expenses during the backpay period, in order to deter-
mine whether the individual’s expenses and standard of living
are beyond the amount of gross interim earnings disclosed.” In
support of this argument, Respondent cites NLRB v. Overseas
Motors, Inc., 818 F.2d 517 (6th Cir. 1987). In Overseas Mo-
tors, Inc., the court found that the administrative law judge
erred in prohibiting the respondent from cross-examining the
discriminatee regarding the discriminatee’s expenditures and
the source of almost $100,000 spent on living expenses and
overseas trips. While the discriminatee asserted that he had
interim earnings from only part-time work at an auto repair
shop and from auto repair work at his home, he kept no records
of his self-employment income. Although the discriminatee
alleged that he had no income from a wine-importing business,
he admitted that he was registered as a salesman for the com-
pany with the State of Michigan and that he had taken four trips
to Yugoslavia. Under those circumstances, the court found that
the administrative law judge erred in precluding inquiry into the
discriminatees’ expenses. The circumstances in the Overseas
Motors, Inc. case are certainly distinguishable from those in the
instant case. All of the discriminatees provided releases for full
disclosure from the Social Security Administration for informa-
tion on all interim earnings. The Respondent has demonstrated
no evidence that any of the discriminatees had unreported10
income or had fraudulently concealed interim earnings during
the relevant backpay period. Respondent’s desire to probe into
the discriminatees’ net worth in hopes of unearthing relevant
information is “pure conjecture” and clearly only a “fishing
expedition” that would not justify its subpoena. U.S. ex rel.
Vuitton et Fils S.A. v. Karen Bags, Inc., 600 F.Supp. 667
(1985).
As the Board recently observed in its decision in Parts De-
pot, Inc., 348 NLRB 152 fn. 6 (2006), the Board’s Rules11 pro-
vide, in pertinent part, that a judge should “regulate the course
of the hearing” and “take any other action necessary.” In that
case, the respondent filed exceptions to the administrative law
judge’s failure to allow it to subpoena certain records from the
backpay claimants and from the Immigration and Naturaliza-
tion Service. The Board found that the administrative law
judge acted within his broad discretion in balancing burden-
some against probity and by imposing a reasonable limitation
on the respondent’s ability to cross-examine claimants. While
noting that the respondent was free to question the backpay
claimants about their searches for work, the actual employment
obtained, and their interim earnings, the Board also determined
that the respondent was properly precluded from burdening the

10 As discussed further in this decision, Respondent asserts that
Miller’s income from her trucking company should be counted as in-
terim earnings. Although the Region takes the position that funds
received from the trucking company are not interim earnings, these
funds were not hidden and were reported to the Internal Revenue Ser-
vice as required.
11 Sec. 102.35.
record with cumulative and superfluous questions and inquiry
that amounted to nothing more than a fishing expedition.
Clearly, the information sought in paragraphs 5, 6, and 7 of
the respective subpoenas sought documents which dealt with
the discriminatees’ net worth and personal liabilities. Respon-
dent maintains that such documents are relevant because they
reflect the financial demands and burdens imposed upon the
discriminatees during the relevant time period. The subpoena
is properly quashed in part, however, as there is an absence of
either claimed or apparent relevancy. Respondent’s a mere
hope of possibly finding a “smoking gun” is nothing more than
a fishing expedition, rather than a request for the valid produc-
tion of reasonably anticipated probative evidence.
D. Lack of Discovery
During the course of the hearing, Respondent argued that be-
cause of the unavailability of pretrial discovery, Respondent
was denied due process. The record also reflects, however, that
the hearing was adjourned for 39 days to allow the Respondent
the opportunity to subpoena witnesses and documents neces-
sary for the presentation of its case.
Additionally, it is well settled that parties to judicial or quasi-
judicial proceedings are not entitled to discovery as a matter of
a constitutional right. Starr v. Commissioner of Internal Reve-
nue, 226 F.2d 721, 722 (7th Cir. 1955), cert. denied 350 U.S.
993 (1956). Furthermore, the Administrative Procedure Act
does not confer a right to discovery in Federal administrative
proceedings. Frilette v. Kimberlin, 508 F.2d 205, 208 (3d Cir.
en banc 1974), cert. denied 421 U.S. 980 (1975). Moreover,
the National Labor Relations Act does not specifically author-
ize or require the Board to adopt discovery procedures. NLRB
v. Interboro Contractors, Inc., 432 F.2d 854, 858 (2d Cir.
1970), cert. denied 402 U.S. 915 (1971); NLRB v. Globe Wire-
less, Ltd., 193 F.2d 748, 751 (9th Cir. 1951). Accordingly,
there is no basis in fact or law to support a finding that Respon-
dent was denied due process.
E. The Correct Date for Tolling Respondent’s
Backpay Obligation
The compliance specification designates August 5, 2005, as
the date when backpay tolls for Miller and Ritchie. Backpay is
tolled earlier for Jewell and Noble, inasmuch as Jewell retired
in March 2003 and Noble became unavailable for work in De-
cember 2004. In its answer, Respondent asserts, however, that
backpay is tolled for Miller and Ritchie on July 19, 2005; the
date of Respondent’s unconditional offer of reinstatement.
There is no dispute that the offer of reinstatement letters sent to
Jewell, Noble, Miller, and Ritchie are dated July 19, 2005.12
Each letter gives the discriminatee a deadline of August 5,
2005, to accept the offer.
Generally, the Board finds that backpay is tolled on the date
of actual reinstatement, on the date of rejection, or in the case
of discriminatees who do not reply, on the date of the last op-

12 Although Noble received an unconditional offer of reinstatement
dated July 19, 2005, Respondent also argues in brief that Noble was
offered reinstatement in or about February 2002. As discussed more
fully below, the 2002 offer was not a valid and unconditional offer of
reinstatement and did not toll Noble’s backpay.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD200
portunity for the discriminatee to accept the offer of reinstate-
ment. Cliffstar Transportation Co., 311 NLRB 152, 154–155
(1993); American Mfg. Co. of Texas, 167 NLRB 520, 521
(1967). In this instance, it is appropriate that backpay is tolled
for Miller and Ritchie on August 5, 2005,13 as set forth in the
compliance specification.
II. APPLICABLE LEGAL PRINCIPLES AND AUTHORITY
It is settled law that a finding by the Board that an unfair la-
bor practice was committed is presumptive proof that some
backpay is owed. Minette Mills, Inc., 316 NLRB 1009, 1010–
1011 (1995); Arlington Hotel Co., 287 NLRB 851, 855 (1987),
enfd. 876 F.2d 678 (8th 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 in a backpay pro-
ceeding is limited to showing the gross backpay due each dis-
criminatee. J. H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223,
230–231 (5th Cir. 1973), cert. denied 414 U.S. 822 (1973). The
General Counsel has discretion in selecting a formula that will
closely approximate backpay. The Region has the burden of
establishing only that the gross backpay amounts contained in a
backpay specification are reasonable and not an arbitrary ap-
proximation. Performance Friction Corp., 335 NLRB 1117
(2001); Mastell Trailer Corp., 273 NLRB 1190, 1190 (1984).
In its decision in Alaska Pulp Corp., 326 NLRB 522, 523
(1998), the Board stated: “If, due to the variables involved, it is
impossible to reconstruct with certainty what would have hap-
pened in the absence of a respondent’s unfair labor practices,
we will resolve the uncertainty against the respondent whose
wrongdoing created the uncertainty.” It should be noted that
with the exception of the disputed date for the tolling of back-
pay, Respondent does not challenge the formula or the calcula-
tions used to arrive at the gross backpay as set forth in the com-
pliance specification. Accordingly, I find the General Coun-
sel’s gross backpay formula appropriate and sufficient for rec-
ommendation to the Board.
Once the General Counsel has established gross backpay, the
burden is on the Respondent to establish facts that reduce the
amount due for gross backpay. Atlantic Limousine, 328 NLRB
257, 258 (1999); Florida Tile Co., 310 NLRB 609 (1993); Ha-
cienda Hotel & Casino, 279 NLRB 601, 603 (1986). This bur-
den cannot be satisfied, however, by conclusionary or self-
serving statements. W. C. Nabors, 134 NLRB 1078, 1088
(1961), enfd. as modified on other grounds 323 F.2d 686 (5th
Cir. 1963), cert. denied 376 U.S. 911 (1964).
A discriminatee is entitled to backpay if he makes a “rea-
sonably diligent effort to obtain substantially equivalent em-
ployment.” Moran Printing, 330 NLRB 376 (1999). In seek-
ing to mitigate loss of income, a backpay claimant is held only
to reasonable exertions, not the highest standard for diligence.
The principle of mitigation does not require success; it only
requires an honest, good faith effort. Fabi Fashions, 291
NLRB 586, 587 (1988); NLRB v. Arduni Mfg. Co., 394 F.2d

13 Miller’s personal tax record for 2005, submitted by Respondent,
reflects earnings at Respondent’s facility during the 2005 calendar year.
There is no evidence, however, to establish that Miller returned to work
or accepted the offer of reinstatement prior to August 5, 2005.
420, 422–423 (1st Cir. 1968); NLRB v. Madison, 472 F.2d
1307, 1319 (D.C. Cir. 1972).
It is well established that any doubt or uncertainty in the evi-
dence must be resolved in favor of the innocent employee
claimant and not the respondent wrongdoer. NLRB v.
NHE/Freeway, Inc., 545 F.2d 592, 594 (7th Cir. 1976); NLRB
v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 572–573 (5th
Cir. 1966).
III. FINDINGS AND CONCLUSIONS CONCERNING INDIVIDUAL
DISCRIMINATEES
Based on the entire record, including the Board’s Decision
and Order, as affirmed; the testimony of witnesses and my ob-
servation of their demeanor, and record documents, I make the
following findings of fact and conclusions of law.
A. Eileene Jewell
At the time of her discharge from Respondent’s facility on
August 17, 2000, Eileene Jewell was 60 years old and worked
as a surgical technician. Her duties included sterilizing surgical
instruments, working with the laundry to insure that a sufficient
number of scrubs were available, and keeping the surgical area
and instruments clean. Prior to working as a surgical techni-
cian, Jewell worked on the hospital floor as an aide. Her work
as an aide involved such duties as assisting patients, serving
lunch trays, and changing bed linens.
She recalled that following her discharge, both the Region’s
compliance officer and the Union’s representative told her that
she would be expected to look for and to find employment. She
applied for State unemployment insurance shortly after her
discharge in August 2000, and received unemployment benefits
until March 2001. She recalled that during the time that she
received unemployment benefits, she visited the unemployment
office in Jackson, Kentucky, and she periodically telephoned
the agency. Following her discharge, Jewell primarily searched
for work in her hometown community of Beattyville and Lee
County, Kentucky. While she did not keep a log of her con-
tacts, she applied for work at the Lee County Library, the Save-
a-lot grocery store, and the local Dollar General Store. She
recalled that she contacted individuals who worked as sitters for
the elderly and sick to explore possible job openings. She read
the newspaper and searched the want ads for possible employ-
ment. Jewell testified that there was not work available in her
community that was comparable to the work that she performed
at Respondent’s facility. She explained that there were no hos-
pitals in Lee County and the nearest hospital was approximately
30 miles away in Irving, Kentucky. That facility, however, did
not have a surgical unit. She acknowledged that she did not
check with any of the local physicians’ offices to inquire about
possible employment. She explained that there were only three
physicians in practice in Beattyville and she was familiar with
the staff working for each doctor. The staffing for the three
doctors had remained essentially unchanged for a substantial
period of time. Jewell testified that while she also contacted
the Presbyterian Missionary Group in Owsley County concern-
ing possible employment, she conceded that she did not search
much farther than the Beattyville area. Jewell’s husband died
during the final days of the underlying unfair labor practice
KENTUCKY RIVER MEDICAL CENTER 201
hearing. She remembered that she had been really frightened
during her job search because she was alone with no income.
Jewell explained that because of her age and her inexperience,
work opportunities were limited in her hometown. In early
2001, Jewell began working part time at Rite-Aid in Beatty-
ville, Kentucky, as a pharmacy technician. She continued that
employment throughout 2002. Jewell also reported $856 in-
come in 2001, and $664 income in 2002, for selling herbal
medications as self-employment. Jewell explained that her
employment with Rite-Aid ended when two employees were
transferred from the Jackson, Kentucky store into the Beatty-
ville store. Jewell was then asked to transfer to the West Lib-
erty, Kentucky store; which was approximately 70 miles from
her home. Although Jewell asked to work at a closer store in
McKee, Kentucky, she was only given the option to transfer to
the West Liberty store. She explained that as she was only
making $7 an hour, it did not seem feasible to drive the requi-
site 70 miles each way to work only a half shift for part-time
employment. Jewell recalled that she had also asked if she
could transfer from the pharmacy department to any other posi-
tion in the store. Her request was denied. After her work
ended with Rite-Aid, she no longer had sufficient contacts to
continue her self-employment in selling the herbal medications.
In December 2000, Jewell cashed her 401(k) termination dis-
tribution check. The resulting distribution of $4,702.03 was
deposited into her bank account. During the backpay period,
she used funds from this distribution to meet monthly expenses
when necessary.
Compliance Supervisor John Grove testified that Jewell’s
backpay period runs from her date of discharge until March 23,
2003, when she retired and ceased to seek active employment.
Following her husband’s death in 2001 and prior to March,
2003, she received Social Security widow’s benefits. In March
2003, Jewell filed for, and began receiving retirement benefits
based upon her own social security contributions.
1. Respondent’s proof concerning interim earnings
When this matter resumed on November 28, 2006, Respon-
dent presented the testimony of Rite-Aid Regional Human Re-
source Manager Roy Terry (Terry). Through Terry’s testi-
mony, Respondent introduced a document from Jewell’s per-
sonnel file identified as a “termination form.” The document
references a termination date of November 8, 2002, and the
termination code is designated as “PERSNL.” Terry testified
that the form is an electronic e-form that Rite-Aid uses to iden-
tify the basis for an employee’s termination. Terry admitted
that he was not familiar with the circumstances of Jewell’s
leaving the company. He asserted, however, that generally a
“personal” code indicates a voluntary resignation by the em-
ployee. Terry also identified a second electronic e-form con-
taining handwritten portions that had been contained in Jewell’s
personnel file. The form contains a section categorized as
“Availability Information,” with the typewritten instruction:
“Please list this employee’s daily availability.” The form fur-
ther contains a section showing the number of hours that the
employee can work weekly with the notation: “We recommend
that you set the minimum hours for all part-time employees to
zero.” There is a handwritten note setting Jewell’s minimum
hours at “0” and maximum hours at “24.” Despite the notation
of maximum availability for 24 hours, the form also contains
the specific hours and days of availability for Jewell. These
hours are shown to be a total of 31. Terry testified that he had
no knowledge as to who completed the handwritten portion of
this form. Terry acknowledged that he had not hired Jewell and
he had no personal knowledge of her employment situation. He
admitted that the form did not reflect whether Jewell was a full-
time or part-time employee. He further admitted that he was
unaware of any “personal” reason for Jewell’s leaving Rite
Aid’s employment.
2. Conclusions concerning Jewell’s backpay
Jewell’s backpay period covers the time between her unlaw-
ful discharge on August 17, 2000, and March 2003, when she
retired. During this total backpay period, there are two separate
periods when Jewell was unemployed. The personnel docu-
ment from Rite-Aid reflects that she was employed at Rite-Aid
from May 30, 2001, until November 8, 2002. Thus, an analysis
of her search for work is geared primarily to the period of time
between August 17, 2000, and May 30, 2001, and the period of
time from November 8, 2002, until the end of March 2003.
In assessing a discriminatee’s search for interim employ-
ment, a respondent must affirmatively establish that a discrimi-
natee failed to make a reasonably diligent search for equivalent
interim employment. In assessing the search for work, the
Board has found that a discriminatee’s efforts need not comport
with the highest standards of diligence, but merely demonstrate
a good faith effort. See Lundy Packing Co., 286 NLRB 141
(1987). In NLRB v. Arduni Mfg. Corp., 394 F.2d 420 (1st Cir.
1968), the employer was able to establish that a discriminatee
could not show that he had looked for jobs where he could use
his specific skills and he was unable to explain gaps in his job-
search chronology. Additionally, the discriminatee only went
to the employment security office to check on his unemploy-
ment benefits. The court even commented on the fact that the
discriminatee’s records were sketchy and his testimony was at
times implausible and inconsistent. Despite indications that the
discriminatee failed to do all that he could have done to miti-
gate his loss of pay, the court nevertheless held that the NLRB
could find that a reasonable search was conducted. Although
Jewell did not have an extensive recollection of where she
searched for work and did not keep records of her search for
work, I find no evidence that she neglected to make an honest
good-faith effort. NLRB v. Cashman Auto Co., 223 F.2d 832,
836 (1st Cir. 1955).
Additionally, in determining the reasonableness of Jewell’s
effort, I have also considered her skills and qualifications, her
age, and the labor conditions in her area. Mastro Plastics
Corp., 136 NLRB 1342, 1359 (1962). At the time of her dis-
charge from Respondent’s facility, Jewell was 60 years old and
worked as a surgical technician. Respondent’s CEO, Okey
David Bevins (Bevins), identified a map showing the hospitals
and other health care providers within an eight county regional
area. Bevins explained that the map depicted the health care
facilities where there was a concentration of physicians render-
ing primary care. He identified these facilities as primary care
certified clinics or rural health clinics. Bevins acknowledged
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD202
that while the hospitals would have surgical technicians on
staff, the clinics would not.14 In his testimony, Bevins did not
discuss any hospital facilities that were in the surrounding area
of Respondent’s facility. Respondent’s map, however, reflects
no other hospitals included in the areas designated as a primary
service area or a secondary service area for Respondent’s facil-
ity. Appalachian Regional Healthcare (ARH), in Hazard, Ken-
tucky, is the only hospital shown to be in a tertiary service area.
All the remaining hospitals on the map are in geographic loca-
tions outside the primary, secondary, and tertiary service areas
for Respondent’s facility. Additionally, there is no record evi-
dence that contradicts Jewell’s testimony concerning the dis-
tance between her home and any other area hospitals. It is ap-
parent therefore that Jewell’s opportunity to find interim em-
ployment was affected by not only her age, but also the avail-
ability of comparable work as a surgical technician in her geo-
graphic area.
Jewell acknowledged that she did not keep a written record
of where she searched for work prior to finding employment
with Rite-Aid or following her employment with Rite-Aid. The
fact that she could not recall the names and dates of all the es-
tablishments she had contacted during her search for work does
not invalidate the conclusion that she made a reasonable exer-
tion to find employment. Airport Park Hotel, 306 NLRB 857,
861 (1992), enfd. 13 F.3d 1347 (9th Cir. 1994); Blue Note, 296
NLRB 997, 999 (1989). Additionally, I note that the Board has
held that employees are not automatically disqualified from
backpay because of their poor recordkeeping or uncertainty as
to memory. Pat Izzi Trucking Co., 162 NLRB 242, 245 (1966),
enfd. 395 F.2d 241 (1st Cir. 1968).
Respondent argues that because Jewell quit her employment
with Rite-Aid, she is not entitled to any backpay following her
employment with Rite-Aid. In support of this argument, Re-
spondent relies upon Terry’s testimony. While Terry identified
a form from Jewell’s personnel file that reflected that there was
a personal reason for her termination from Rite-Aid, he had no
personal knowledge of the circumstances of Jewell’s employ-
ment. While he also identified a document that purported to
show that Jewell was available for 31 hours each week, he also
admitted that he did not know whether she had been hired as a
full-time or part-time employee and he did not know who had
completed the information on the personnel documents. He
acknowledged, however, that the hours shown on the document
would normally be considered part-time employment with Rite-
Aid. Thus, neither the personnel file documents nor Terry’s
testimony rebuts Jewell’s testimony that she was only hired as a
part-time employee for Rite-Aid. Additionally, the document
purporting to show that Jewell voluntarily left her employment
with Rite-Aid does not rebut Jewell’s testimony. Jewell ac-
knowledged that she left employment with Rite-Aid and she
credibly explained her basis for doing so.
Certainly, under established Board policy, a claimant is
deemed to have willfully incurred loss of income by voluntarily
relinquishing interim employment “without compelling or justi-

14 Although Bevins testified that possibly orthopedic clinics might
need surgical technicians, he identified none by name and demonstrated
no specific knowledge of such job opportunities.
fying means.” Knickerbocker Plastic Co., 32 NLRB 1209,
1212 (1961). A claimant, however, is under no obligation to
retain nonequivalent employment, once secured, regardless of
the conditions under which the employee is required to work.
Churchill’s Supermarkets, 301 NLRB 722, 725 (1991). In fact,
the Board has found that a skilled employee was justified in
quitting an unskilled job that was paying less than half his for-
mer weekly wages. Lozano Enterprises, 152 NLRB 258
(1965). While the Board expects an employee to retain an in-
terim job, exceptions have been found when the interim em-
ployment was unprestigious, annoying, or certain to create
unacceptable disruption to the discriminatee’s private life.
Shell Oil Co., 218 NLRB 87, 89 (1975). In Tualatin Electric
Inc., 331 NLRB 36, 40 (2000), a discriminatee’s backpay was
not reduced when he voluntarily quit an interim job that re-
quired him to drive an additional 40 miles without the opportu-
nity for overtime pay that had been available when he worked
for the respondent employer. Because the interim employment
was not found to be substantially equivalent to the position
from which he had been unlawfully discharged, his resignation
was not found to be willful loss of interim earnings. In the
instant case, Jewell had only been able to find interim employ-
ment in a part-time position with considerably less pay15 than
she had received in her job at Respondent’s facility. While
Terry testified that a Rite-Aid document reflects that Jewell left
her interim employment because of a “personal” reason, he
does not dispute her testimony that if she had continued her
employment with Rite-Aid, she would have been required to
transfer to another store, requiring her to drive 70 miles from
her home for part-time employment. Accordingly, inasmuch as
Jewell’s job with Rite-Aid was not substantially equivalent to
the position from which she was unlawfully terminated, her
backpay should not be reduced because she was forced to cease
her employment with Rite Aid. Additionally, Terry did not
rebut Jewell’s testimony that she asked to work at the McKee
Kentucky store or to work in other positions within the Beatty-
ville store when her position was eliminated as a pharmacy
technician in the Beattyville store.
Additionally, I do not find that Jewell’s backpay should be
reduced because she initially accepted a part-time position.
There is no evidence that Jewell rejected full-time employment
in lieu of part-time employment. Moreover, Jewell should not
be penalized because she accepted part-time employment rather
than waiting for a full-time employment offer. See United
Supermarkets, Inc., 287 NLRB 394, 398 (1987); Lundy Pack-
ing Co., 286 NLRB 141, 144 (1987). Respondent also argues
that during her employment with Rite-Aid, Jewell did not make
any effort to locate another part-time job. Although Respon-
dent presented Rite-Aid’s regional human resource manager,
there was no evidence that Rite-Aid offered Jewell any work
other than part-time work. Additionally, Respondent presented
no evidence to show that any other part-time jobs were avail-
able to Jewell or even known to Jewell. Accordingly, inasmuch

15 At the time that she left her employment with Rite-Aid, her quar-
terly interim earnings were $1778 as compared to $5427 that she would
have received for the same period had she continued her employment
with Respondent.
KENTUCKY RIVER MEDICAL CENTER 203
as there was no record evidence that Jewell was offered or re-
fused to accept additional part-time employment, there is no
evidence that Jewell failed to make a reasonable effort to miti-
gate her losses. Be-Lo Stores, 336 NLRB 950, 950 fn. 1
(2001); U.S. Can Co., 328 NLRB 334, 338 (1999), enfd. 254
F.3d 626 (7th Cir. 2001). Furthermore, even though Jewell
accepted interim employment earning less than she had made at
Respondent’s facility, she was under no duty to continue to
search for a more lucrative job or to search for the most lucra-
tive interim employment. F. E. Hazard, Ltd., 303 NLRB 839
(1991); Fugazy Continental Corp., 276 NLRB 1334, 1338
(1985), enfd. 817 F.2d 979 (2d Cir. 1987).
Appendix A of the compliance specification establishes
Jewell’s gross backpay at $54,621. With interim earnings of
$13,029, the resulting net backpay for Jewell is $41,592. For
the reasons explained above and based upon the entire record,16
I find that Jewell is entitled to backpay in the amount of
$41,592.
B. Lois Noble
Prior to her termination from Respondent’s facility on Au-
gust 28, 2000, Noble worked as a phlebotomist. This work
entailed drawing blood from patients in the emergency room as
well as in the hospital. A license or certification was not re-
quired for her work. Prior to working at Respondent’s facility,
she was employed as a phlebotomist at the University of Ken-
tucky Clinic in Lexington, Kentucky. Noble testified that fol-
lowing her termination from Respondent’s facility, it was her
understanding that she was required to look for work and to
find work. Noble also explained that because she had a child
and responsibilities, she needed to find work. She began her
search for work in September 2000. Noble applied with the
State Unemployment Office in Hazard, Kentucky, and in Jack-
son, Kentucky. She checked all the State agency’s openings for
phlebotomists. Noble testified that from the time that she was
discharged until she found employment in 2002, she checked
the job listings at one of the State Unemployment Offices at
least once a week. She recalled that she contacted the hospital
in Hazard as well as several of the medical clinics, including
the Central Kentucky Blood Bank in Hazard, Kentucky, and the
University of Kentucky. She additionally contacted the hospi-
tal in Winchester, Kentucky; which is located approximately 90
minutes away from her home. She also contacted friends who
worked in her same medical field. In addition to her applica-
tions for work as a phlebotomist, Noble additionally applied for
work at all the Dollar General Stores, Big Lots Stores, grocery
stores, and fast food restaurants in her area. She also recalled
that while she submitted an application to the Hazard Hotel to
work as a maid, she was not offered work.
In May 2002, Noble became certified as a certified nurse’s
aid. In order to receive her certification, she attended weekly
training classes on Saturdays for approximately 3 months.

16 I found Jewell to be a totally credible witness. She did not appear
to embellish her search for work or to minimize any apparent weak-
nesses in her attempts to find interim employment. As discussed
above, her explanation for leaving Rite-Aid was uncontradicted. Over-
all, there is no credible record evidence that disputes or contradicts
Jewell’s testimony.
Noble began working at the Hazard Nursing Home, Inc. in June
2002, and continued her employment until December 2004.
While working at the nursing home, Noble worked 30 to 40
hours or more each week. In January 2005, Nobel became a
full-time student in a licensed practical nursing program and
has remained in that program.
1. Conclusions concerning Noble’s backpay
Bevin testified that primary care clinics, home health agen-
cies, and some physician’s offices would need the services of a
phlebotomist. While Bevin estimated that there might be 35 or
40 facilities that would be able to use the services of a phle-
botomist, he did not identify specific facilities or their prox-
imity to Noble’s residence. Although he recalled that one of
the clinic physicians was looking for a nurse17approximately a
year prior to the hearing, he did not demonstrate any knowledge
of whether there were specific openings for phlebotomists or
whether phlebotomists were hired at any of the clinics at the
time that Noble was looking for employment. He opined that
“phlebotomists are constantly in demand in hospitals in the
area.” He did not, however, identify the specific hospitals nor
indicate their proximity18 to Noble.
Noble’s testimony regarding her search for interim employ-
ment was not contradicted. She credibly testified concerning
her attempts to secure interim employment. Her lack of success
in obtaining interim employment after her unlawful termination
and prior to her full-time employment in 2002, does not im-
peach her testimony nor relieve Respondent of its burden of
proving facts to mitigate liability. Respondent has the burden
of establishing the amount of any interim earnings that are to be
deducted from the backpay amount due, and has the burden of
establishing any claim of willful loss of earnings. NLRB v.
Mooney Aircraft, 366 F.2d 809, 812–813 (5th Cir. 1966). With
respect to a discriminatee’s search for interim employment, a
respondent must affirmatively establish that the discriminatee
failed to make a reasonably diligent search for equivalent in-
terim employment. In evaluating the search for interim em-
ployment, the Board has found that a discriminatee’s efforts
need not comport with the highest standards of diligence but
merely demonstrate a good-faith effort. Basin Frozen Foods,
Inc., 320 NLRB 1072, 1074 (1996); Canova v. NLRB, 708 F.2d
1498, 1506 (9th Cir. 1983). In posthearing brief, Respondent
cites the Board’s decision in American Bottling Co., 116 NLRB
1303, 1307 (1956), for the principle that a discriminatee’s reg-
istering with the state unemployment agency should not be
given conclusive weight in determining the adequacy of a dis-
criminatee’s search for work. In keeping with its earlier deci-
sion in Southern Silk Mills, 116 NLRB 769 (1956), the Board in
American Bottling Co. went on to point out, however, that reg-
istering with the state agency is a factor to be given such weight
as it may be entitled under all the circumstances of the case. In
the instant case, Noble credibly testified that she not only

17 He also recalled that one of the clinics hired three of Respondent’s
nurses during the 2 years prior to the 2006 hearing.
18 As discussed above, Respondent’s map of the area surrounding
Respondent’s facility indicates no hospitals in Respondent’s primary or
secondary service area and only one hospital in Respondent’s tertiary
service area. R. Exh. 13.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD204
searched for work with the state agency, she looked for work,
even outside her field of training. Noble’s regular inquiry with
the unemployment agency is not indicative of a lack of motiva-
tion for seeking work elsewhere and does not establish that she
used it as a substitute for a diligent search for work otherwise.
It is not enough for a respondent to present evidence of low
or no interim earnings; rather a respondent must affirmatively
demonstrate that the discriminatee neglected to make reason-
able efforts to find interim employment. Westin Hotel, 267
NLRB 244 (1983), enfd. 758 F.2d 1126 (6th Cir. 1985); Smyth
Mfg. Co., 277 NLRB 680 (1985). Respondent asserts that No-
ble should have been able to find interim employment during
the period between her discharge on August 28, 2000, and
when she began her employment with the Hazard Nursing
Home, Inc. Suspicion and surmise, however, have not been
found to be any more of a valid basis in a backpay hearing than
in an unfair labor practice hearing. See Laidlaw Corp., 207
NLRB 591, 594 (1973), enfd. 507 F.2d 1381 (7th Cir. 1974),
cert. denied 422 U.S. 1042 (1975). Additionally, the Board has
long held that when there are uncertainties or ambiguities,
doubt should be resolved in favor of the wronged party rather
than the wrongdoer. United Aircraft Corp., 204 NLRB 1068
(1973). To conclude otherwise would effectively penalize No-
ble for Respondent’s unlawful termination.
Noble had no interim earnings from August 28, 2000 until
June 2002. Based upon her total record testimony, there is no
basis to find that her lack of success is indicative of a willful
loss of earnings or an unreasonable search for work. In deter-
mining whether an individual claimant made a reasonable
search, the Board looks to whether the record as a whole estab-
lishes that the employee has diligently sought other employ-
ment during the entire backpay period. Black Magic Re-
sources, Inc., 317 NLRB 721 (1995); Saginaw Aggregates, 198
NLRB 598 (1972). The Board has found that the “sufficiency
of a discriminatee’s efforts to mitigate backpay are determined
with respect to the backpay period as a whole and not based on
isolated portions of the backpay period.” Wright Electric, Inc.,
334 NLRB 1031, 1031 (2001); Electrical Workers Local 3
(Fischbach & Moore), 315 NLRB 1266, 1266 (1995); I.T.O.
Corp. of Baltimore, 265 NLRB 1322 (1982). Noble credibly
testified that prior to obtaining employment with Hazard Nurs-
ing Home, Inc. she not only tried to find work as a phleboto-
mist, but she also tried to find work in unrelated fields. She
credibly testified that she tried to find a job as a maid and also
applied at retail and fast food establishments. It is apparent that
after finding no success in her chosen field or in any other jobs,
she entered a training program to become a certified nursing
assistant. Because she took the initiative to train herself and to
learn new skills, she was able to secure interim employment.
Thus, looking at Noble’s backpay period as a whole and not
simply at the isolated period prior to May 2002, the record
supports a finding that Noble engaged in a diligent search and
effort to secure interim employment. Kawasaki Motors Mfg.
Corp., 850 F.2d 524, 528 (9th Cir. 1988); Colorado Forge, 285
NLRB 530, 538 (1987).
2. Respondent’s 2002 offer of reinstatement
On February 19, 2002, Respondent’s CEO Bevins sent a let-
ter to Noble, offering interim or temporary reinstatement.
Bevins explained in the letter that Respondent was offering
temporary reinstatement during the time that Respondent ap-
pealed the judge’s finding that Noble had been unlawfully ter-
minated. Bevins further explained that if she returned to work
and Respondent prevailed in its appeal, Respondent would
again terminate her employment. Bevins also explained that by
declining his offer of temporary reinstatement, Noble did not
forfeit her right to “fight” her termination through the legal
process. Noble testified that she declined the job because she
needed a job that was more stable and not temporary.
Respondent argues that Noble’s rejection of Respondent’s
February 2002 offer released Respondent from any backpay
obligation from the date the offer was rejected. Respondent
cites Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 238–239
(1982), in support of its argument that an employee’s rejection
of an employer’s “valid offer of reinstatement” tolls the em-
ployer’s backpay obligation. Respondent acknowledges, how-
ever, that research revealed no cases in which an employee’s
rejection of an offer of interim employment made pursuant to
an 10(j) injunction is considered within the context of tolling an
employer’s backpay obligations.
Certainly, Respondent’s 2002 letter to Noble does not consti-
tute a valid offer of reinstatement. It is well settled that an offer
of employment must be specific, unequivocal, and uncondi-
tional to toll backpay and satisfy a respondent’s remedial obli-
gation. Midwestern Personnel Services, 346 NLRB 624
(2006); L.A. Water Treatment, 263 NLRB 244, 246–247
(1982); Standard Aggregate Corp., 213 NLRB 154 (1974).
Even the very wording of Respondent’s letter reflects that No-
ble was free to reject the offer of temporary employment and
that such rejection would not prejudice her later reinstatement
upon court order. Thus, despite Respondent’s assurances to
Noble that she was free to reject the offer of interim employ-
ment, Respondent now seeks to rely upon that rejection as a
basis for tolling its backpay obligation. Contrary to Respon-
dent’s argument, I do not find that Respondent tolled its back-
pay obligation by offering temporary reinstatement to Noble in
February 2002.
Appendix A of the compliance specification includes a total
of $77,242 for Noble’s gross backpay. During the course of the
hearing, it became apparent that the Region had erroneously
included $934 in her interim earnings. When Noble clarified in
her testimony that this income was received in 2000 prior to her
employment with Respondent, counsel for the General Counsel
moved to amend the compliance specification to correct the
error. With the amendment to the specification, Noble’s total
interim earnings were corrected to $36,974. For the reasons
that I have stated above, I do not find a basis to further reduce
the backpay beyond the interim earnings described above.
Accordingly, I find that the appropriate backpay owed to Noble
is $40,268.
C. Debra Miller
Prior to her discharge from Respondent’s facility on August
21, 2000, Debra Miller worked as a phlebotomist. In this posi-
KENTUCKY RIVER MEDICAL CENTER 205
tion, she collected blood samples from hospital patients and
prepared the accompanying paperwork. Miller testified that she
began looking for interim employment within days of her dis-
charge. She asserted that she looked for laboratory and medical
positions by reviewing newspapers and the internet. She testi-
fied that she also applied for work at the surrounding hospitals.
In approximately January 2001, she obtained interim employ-
ment with the Central Kentucky Blood Center (CKBC). The
compliance specification documents that no backpay is owed
from February 15 until April 15, 2002, because Miller was
unavailable for work during that time. Miller testified that
during this time she resigned from her job with CKBC in order
to enter nursing school.19 Miller testified that even though she
had planned to attend nursing school, her daughter underwent
surgery and she remained at home to care for her daughter dur-
ing the recuperative period. After her daughter’s condition
improved, it was too late to enter the nursing program and she
began a new search for work. Miller testified that the 2 months
that she spent caring for her daughter were the only 2 months
that she was unavailable for work during the backpay period.
For approximately 3 months in 2003, Miller worked as a
laboratory assistant for the Appalachian Regional Healthcare
(ARH) facility in Hazard, Kentucky. She explained that while
her duties at ARH were similar to those performed at Respon-
dent’s facility, the duties were broader in scope. After working
for 3 months for ARH, Miller returned to employment with the
CKBC. She explained that she did so in order to increase her
earnings. Miller continued to work for CKBC until 2004, when
the facility closed.
Miller testified that following her loss of employment with
CKBC, she continued to search for work by researching the
internet and the weekly newspapers. She talked with friends
about job openings and applied at fast-food restaurants. She
explained that she did not resubmit an application to the ARH
in Hazard because the facility did not have openings in the
laboratory at that time. She asserted that she went to the hospi-
tal and spoke with individuals who worked in the laboratory
and determined that there were no jobs open. When she ini-
tially applied for work with ARH, she had submitted an appli-
cation to work as a nurse’s aid as well as to work in the labora-
tory. She testified that she had not submitted a new application
because she assumed her applications were still on file with
ARH. She acknowledged that while she had spoken with indi-
viduals in the laboratory, she had not contacted anyone in
ARH’s human resources office.
1. Miller’s trucking company
Miller also owned and operated a trucking company from
1997 until approximately December 2004. Miller testified that
prior to 1997 her mother-in-law had owned three trucks and
had an arrangement with Pine Branch Coal to haul coal. When
her mother-in-law became disabled, Miller took possession of

19 Respondent submitted into evidence a letter purporting to be
Miller’s typewritten letter of resignation. Miller acknowledged that
while she did not recall preparing the letter, her name was included at
the bottom of the document. The letter does not reference her intention
to enter nursing school and confirms that February 15, 2002, would be
her last day of employment.
the three trucks and signed an agreement with Pine Branch
Coal to continue the coal deliveries. Prior to 2004, the trucking
company employed three drivers for the three trucks. Miller
testified that she discontinued the trucking operation in 2004
because it was no longer profitable. She maintains that al-
though she was president and sole owner of Debbie Miller
Trucking Inc., she did no “actual” or “physical” work. She
asserted that her certified public accountant handled all the
bookkeeping and her mechanics maintained the trucks. She
contends that writing payroll checks once every 2 weeks was
her only job. There was no record evidence that rebutted
Miller’s testimony that she did the very same work for the
trucking company both before and after her discharge from
Respondent’s facility.
2. Conclusions concerning Miller’s backpay
a. Whether Miller’s income from the trucking company
reduces her gross backpay
There is no dispute that during a portion of the backpay pe-
riod, Miller received money from the trucking company that
was designated as salary. In 2000, she received both a salary
and a $32,000 dividend20 from the trucking company. During
the remainder of the backpay period, she continued to pay per-
sonal expenses from the trucking company’s funds and the
expenses were counted for tax purposes as loans to Miller as a
corporate officer. As of September 30, 2003, Miller owed a
total of $56,390.57 for loans from the trucking company. In
preparing the compliance specification, the Region did not
include either the salary or the loans that Miller received from
the trucking company as interim earnings based upon the fact
that Miller’s duties and hours of work did not increase, de-
crease, or change after she was unlawfully terminated from
Respondent’s facility. Counsel for the General Counsel asserts
that Miller’s salary and loans from the trucking company were
based upon her personal needs and tax considerations, rather
than based upon work that she performed for the trucking com-
pany. Respondent, however, asserts that any salary or loans
paid out to Miller from the trucking company during the back-
pay period are interim earnings and should be applied to offset
Respondent’s backpay liability.
b. Miller’s corporate and personal tax records
Respondent subpoenaed and subsequently submitted into evi-
dence Miller’s personal tax records as well as the corporate tax
records for Debbie Miller Trucking, Inc during the backpay pe-
riod. It should be noted that Miller’s personal tax records are
based upon the calendar year and the corporate tax records for
Debbie Miller Trucking, Inc. are based upon the fiscal year.
Accordingly, because the records are based upon two separate
periods of time, there is some disparity in computations and
amounts. Overall, the records appear to be essentially consistent.
To analyze the records in light of Respondent’s arguments, it
is essential to first look at the records for the fiscal and calendar

20 Miller does not deny that she took money from the corporation to
pay personal expenses during the 2000 tax year. On the advice of her
accountant, Miller counted the payment of these expenses as a dividend
from the company.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD206
year 2001. The corporate tax records for the fiscal year ending
in September 2001, reflect an outstanding loan amount of
$27,321.13 to Miller as the sole corporate officer. During the
same tax year, Miller received a salary from the trucking com-
pany in the amount of $19,000. During the tax year ending in
September 2002, Miller received no salary from the trucking
company. She did, however, receive additional loans from the
company in the amount of $21,010.61. For the tax year ending
September 2003, Miller received no salary from the trucking
company. She received additional loans from the company
totaling $8,058.83. Thus, as of September 2003, Miller’s unre-
imbursed loans from the trucking company amounted to a total
of $56,390.57. Respondent argues that the salary and loans to
Miller during the backpay period were the equivalent of interim
earnings that should offset Respondent’s backpay liability.
Miller does not dispute that she pulled money from the
trucking company to pay personal expenses during the entire
backpay period. The tax records for the fiscal year ending in
September 2000 demonstrate, however, that she had this same
practice prior to her August 2000 discharge. The corporate tax
records for the trucking company for the fiscal year ending in
September 2000 reflect that Miller was paid $28,800 in salary.
It is significant that the tax year ended 40 days after Miller’s
discharge from Respondent’s facility. Thus, the majority of the
fiscal tax year ending on September 30, 2000, covered the time
period prior to Miller’s termination and prior to the beginning
of her backpay period. The records reflect that from October 1,
1999, through September 30, 2000, Miller received a desig-
nated salary amount every 2 weeks. During approximately
one-half of the pay periods reported in the 2000 fiscal tax year,
Miller received $1049.62 per pay period. During other pay
periods, Miller received lesser amounts averaging $764.12.
Miller does not dispute that during this same fiscal tax year, she
additionally took $32,000 from the trucking company to pay
personal expenses. The $32,000 was considered to be a divi-
dend and declared as income on Miller’s personal income taxes
for the calendar year 2000. In reviewing the cash disburse-
ments throughout the 2000 fiscal tax year, it is apparent that
Miller had a practice of using the trucking company funds for
her personal use long before her discharge and certainly as
early as October 1999. A review of the cash disbursement for
the corporation reflect payments to clothing stores, doctors,
food stores, and pharmacies throughout the fiscal year.21 Thus,
whether the money received from the trucking company was

21 As examples of corporate cash disbursements for apparent per-
sonal expenses, R. Exh. 10 reflects that cash disbursements were made
to Food City on the following dates: 10–8–99, 10–19–99, 10–30–99,
11–10–99, 11–17–99, 11–29–99, 12–31–99, 1–3–00, 1–30–00, 2–18–
00, 2–26–00, 3–2–00, 3–11–00, 3–28–00, 4–8–00, 4–19–00, 4–23–00,
5–16–00, 8–5–00, 9–2–00, 9–9–00, 9–18–00, 9–27–00, and 9–23–00.
Cash disbursements were made to Rite-Aid on the following dates: 11–
3–99, 11–24–99, 12–3–99, 12–31–99, 3–1–00, 3–10–00, 3–17–00, 4–
4–00, 4–19–00, 6–1–00, 7–2–00, 7–9–00, 9–9–00, and 9–11–00. Cash
disbursements were also made to J.C. Penney on 10–11–99, 11–2–99,
12–6–99, 2–1–00, 3–3–00, 4–4–00, 5–15–00, 6–14–00 and 8–5–00. R.
Exh. 10 also reflects cash disbursements to three doctors, Fashion Bug,
Wal-Mart, and numerous other entities that appear to be personal ex-
penses.
salary or loans; she also received this money prior to her dis-
charge and supplemented her earnings from Respondent. Addi-
tionally, Miller testified, without contradiction, that following
her discharge from Respondent’s facility, the work that she
performed with the trucking company did not increase and she
remained available to look for other employment.
c. Respondent’s argument concerning taxable income
In an effort to reduce its backpay liability owed to Miller,
Respondent devoted a good deal of time and attention in the
hearing as well as in its brief to the money that Miller received
from the trucking company. Respondent, in fact, devoted a
large portion of its brief to its discussion of the Internal Reve-
nue Code and how the Code defines taxable income. Respon-
dent asserts “Inasmuch as tax returns filed for federal income
tax purposes is a reasonable basis for establishing the compen-
sation of an individual, whether in the form of wages, net earn-
ings from self-employment or otherwise, an understanding of
certain federal income tax principals” as set forth in the Internal
Revenue Code “is essential.” Thereafter in its brief, Respon-
dent provides an extensive discussion of “taxable income” un-
der the Internal Revenue Code and as analyzed by the Internal
Revenue Service and reviewing courts. In summary, Respon-
dent maintains that because Miller’s salary and dividends from
the trucking company constitute taxable income, they are in-
terim earnings that reduce gross backpay.
The Board, however, does not treat “taxable income” as syn-
onymous with interim earnings. An early example of the
Board’s view is found in Florence Printing Co., 158 NLRB
775, 781–782 (1966), enfd. 376 F.2d 216 (4th Cir. 1967), cert.
denied 389 U.S. 840 (1967). In that case, the respondent em-
ployer argued that because a discriminatee’s strike benefits are
taxable as “gross income” under the Internal Revenue Code,
such benefits should therefore be regarded as earned income
equivalent to interim wages and deductible from gross backpay.
In rejecting the employer’s argument, the judge (whose deci-
sion was affirmed by the Board) explained that the respondent’s
argument ignored the well-known fact that “gross income” for
Federal income tax purposes is a purely statutory invention
designed solely for the purpose of raising revenue and has no
relationship to the definition of “gross income” under statutes
that are wholly unrelated to Federal tax law; i.e., the National
Labor Relations Act. The judge noted that the question was not
whether the strike benefits were gross income for Federal in-
come tax purposes, but whether they constituted earnings under
the “backpay” provisions of the National Labor Relations Act,
and thus would be used as a setoff against gross backpay.
In the Florence Printing Co. decision, the judge looked to
the Board’s earlier decision in National Motor Bearing Co., 5
NLRB 409, 438 (1938), enfd. as modified 105 F.2d 652 (9th
Cir. 1939) where the Board explained: “In all cases in which
back pay is awarded, we will, in accordance with our usual
practice, order the deduction of all sums earned since the dis-
charges, which would not have been earned if the employee had
been working for the respondent.” (Emphasis added.) In find-
ing that the strike benefits did not constitute earnings, the judge
also considered Black’s Law Dictionary and its definition of
“earnings” as: “the reward for personal services, whether in
KENTUCKY RIVER MEDICAL CENTER 207
money or chattels, the fruit or reward of labor; the gains of a
person derived from his services or labor without the aid of
capital; money or property gained or merited by labor, service,
or the performance of something; that which is gained or mer-
ited by labor, services, or performance.” Ibid at 782. Accord-
ingly, while Miller’s salary, loans, or dividend from the truck-
ing company may constitute taxable income, such tax status is
not sufficient to transform the income into interim earnings for
backpay purposes.
d. Respondent’s argument that Miller was self-employed
Respondent asserts that as an officer of Debbie Miller Truck-
ing, Inc., Miller took funds from the company in the form of
salary and dividends and used those funds for her personal
expenses. Respondent maintains that because Miller treated the
company as her own “pocket book,” the company should be
treated as a self-employment business that generated interim
earnings during the backpay period.
I do not, however, find significance in how Miller utilized
the assets of the trucking company. Primarily, there is no dis-
pute that Debbie Miller Trucking, Inc. existed prior to Miller’s
unlawful discharge. She testified, without dispute, that her
duties as president of that company did not change after her
discharge. What changed, however, was the fact that because
she no longer had income from Respondent, she used more
trucking company assets and income to pay her own personal
debts and obligations.
Additionally, the law is well settled that earnings or profits
during the period of discrimination from a business or job
which a discriminatee held during his or her employment with
the respondent are not deductible from gross backpay as interim
earnings. Rice Lake Creamery Co., 151 NLRB 1113 fn. 4
(1965). Furthermore, I note that while Miller’s backpay period
ran from her August 21, 2000 discharge until August 5, 2005,
there were only five quarters in which she is deemed to have no
interim earnings. Thus, any income derived from Debbie
Miller Trucking, Inc. was supplemental to her interim employ-
ment with Central Kentucky Blood Center, Inc., and Appala-
chian Regional Healthcare (ARH). The Board and courts have
consistently held that second job earnings normally are not
considered as interim earnings to be deducted from gross back-
pay, particularly when the claimant held the second job prior to
discharge. NLRB v. Ferguson Electric Co., 242 F.3d 426, 433
(2d Cir. 2001); U.S. Telefactors Corp., 300 NLRB 720, 722
(1990); Calson Tower Geriatric Center, 281 NLRB 399, 402
(1986).
Any income that Miller derived from Debbie Miller Truck-
ing, Inc. was clearly supplemental earnings. It is well estab-
lished that supplemental earnings from “moonlighting” jobs
constitute an exception to the general rule regarding interim
deductions and such supplemental earnings are not properly
deducted if the employee had the moonlighting job prior to his
or her unlawful discharge. Birch Run Welding & Fabricating,
Inc., 286 NLRB 1316, 1318 (1987), enfd. 860 F.2d 1080 (6th
Cir. 1988); Miami Coca-Cola Bottling Co., 151 NLRB 1701,
1710 (1965), enfd. 360 F.2d 569, 573 (5th Cir. 1966). The
burden is on Respondent to prove that Miller would not have
been able to work at her supplemental job prior to her illegal
termination. Daniel Construction Co., 276 NLRB 1093, 1100
(1985). Miller’s testimony that she performed the same duties
for the trucking company before and after her unlawful dis-
charge is unrebutted. Respondent has not shown that Miller did
not receive supplemental earnings from the trucking company
prior to her discharge. Respondent’s own exhibits, in fact, es-
tablish that Miller received supplemental earnings from the
trucking company prior to her discharge from Respondent’s
facility. Accordingly, whether or not Miller received money
from the trucking company as either salary or loans after her
termination does not change the undisputed evidence that this
income was supplemental and existed prior to her discharge.
Had Miller “earned” a larger income from the trucking com-
pany because of her nonemployment with Respondent, such an
increase would be counted as part of her interim earnings. See
Rice Lake Creamery Co., 151 NLRB 1113 fn. 4 (1965). As
discussed above, however, any income from the trucking com-
pany during the backpay period was either supplemental in-
come comparable to the income that she had received prior to
her discharge or a loan from the trucking business that had no
correlation to earnings. Just as the Board recognized in the
Florence Printing Co. decision, the resources taken from the
trucking company were not “earnings.” While Miller’s unlaw-
ful termination may have prompted her to deplete more of the
trucking company’s assets, the income was clearly not interim
earnings that would reduce Respondent’s backpay liability.
e. Respondent’s argument that Miller concealed records
In response to Respondent’s subpoena, Miller produced her
corporate tax records for the tax years ending in 2000, 2001,
2002, and 2003. She testified that the tax return for the tax year
ending in 2004 had not been filed as yet. In its brief, Respon-
dent argues that because Debbie Miller Trucking, Inc. was op-
erational during 2004, it follows logically that Miller “likewise
received some income from that source during 2004.” Respon-
dent further argues that because Miller has failed to produce
financial records concerning the trucking company’s income
during 2004, she is intentionally concealing her 2004 earnings.
As discussed in detail above, I do not find that Miller derived
income from the trucking company that constituted interim
earnings during any portion of the backpay period. Whatever
income that Miller may have received from the trucking com-
pany in 2004 would no doubt be consistent with what she re-
ceived in 2000, 2001, 2002, and 2003. Furthermore, inasmuch
as Miller produced all of the income records for the other 4
years in the backpay period, there is no basis to conclude that
she is intentionally concealing this information or that she
failed to file the corporate tax return in order to conceal interim
earnings. Accordingly, I find no merit to Respondent’s argu-
ment.
f. Miller’s voluntary resignation from an interim employer
Respondent asserts that Miller forfeited her right to backpay
when she voluntarily resigned from Central Kentucky Blood
Center (CKBC) during the first quarter of 2002. Miller testified
that she resigned from the CKBC in February 2002, because
she intended to attend nursing school. She asserted that before
she could begin classes, her daughter became ill and it was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD208
necessary for her to remain at home to care for her daughter.
She maintained that when her daughter’s condition improved, it
was too late for her to apply for nursing school. Miller denied
that she left her position for any reason other than to attend
nursing school.
Respondent submitted into evidence a typewritten letter di-
rected to CKBC containing the following:
I am officially resigning from the company. I feel at
this time that it is just to[o] stressful for me. I am resign-
ing of my own free will. This is a decision i feel i have to
make at this time. I have really given my decision a lot of
thought so i regret to inform you that February 15 2002
will be my last day of employment.
While not signed, the letter ends “sincerely Debra A.
Miller.” When shown the letter, Miller testified: “I don’t re-
member writing it. I could have, but I don’t remember writing
it.” Respondent also submitted into evidence the handwritten
employment application that Miller completed on February 18,
2003, for CKBC. In listing her prior employers, Miller in-
cluded her earlier employment period with CKBC. Miller in-
cludes “stress” as the reason for leaving her prior employment
with CKBC.
As documented in Miller’s February 18, 2003 application to
CKBC and as reflected in her testimony, it appears that Miller’s
next employment was with ARH in Hazard, Kentucky. She
held this position for 3 months before returning to work with
CKBC. Her earnings when she returned to CKBC as well as
with ARH were less than what she earned during her initial
period of interim employment with CKBC.
Based upon the record evidence, it appears that Miller quit
her employment with CKBC in February 2002 for personal
reasons. While Miller does not remember writing the alleged
letter of resignation, she does not deny writing the letter. Addi-
tionally, Miller does not deny that when she reapplied to CKBC
in February 2003, she identifies “stress” as her reason for her
prior resignation. When a discriminatee quits interim employ-
ment, the burden shifts to the General Counsel to show that the
decision to quit was reasonable. Taylor Machine Products,
Inc., 338 NLRB 831, 835 (2003). Inasmuch as Miller main-
tained that she resigned her employment with CKBC to enter
nursing school, there was no record evidence concerning the
cause of any stress for Miller or to justify the need for her to
resign because of the stress. Additionally, there was no evi-
dence to corroborate her plans to attend school or to dispute the
purported letter to CKBC or her 2003 employment application
to CKBC. Overall, the record evidence does not demonstrate
that Miller’s quitting her interim employment in February 2002
was reasonable.
Using the offset formula set out in Knickerbocker Plastic
Co., 132 NLRB 1209, 1212–1215 (1961), it is appropriate to
use the earnings that she would have earned at CKBC from the
time of her quitting through the remainder of her backpay pe-
riod as interim earning deductions from her gross backpay. The
Board has also set out a formula for determining the appropri-
ate deduction when a backpay claimant has additional reduced
interim earnings following a voluntary resignation from interim
employment. Using the Board’s analysis in Sorenson Lighted
Controls, 297 NLRB 282, 283 (1989), the earnings that Miller
received at the time that she resigned from CKBC should be
used as the correct amount of interim earnings for the remain-
der of the backpay period. Accordingly, for each quarter be-
ginning with the first quarter of 2002, a quarterly deduction of
$4561 should be used to offset Miller’s gross backpay.
For the reasons stated above, I compute the net backpay due
Debra Miller, excluding interest, as follows:
Quarter
Gross
Backpay
Interim
Earnings
Net
Backpay
3/2000 $2,234 $2,234
4/2000 4,915 4,915
1/2001 4,915 $4,561 355
2/2001 4,980 4,561 419
3/2001 5,008 4,561 448
4/2001 5,083 4,561 522
1/2002 2,737 4,561 —
2/2002 4,379 4,561 182
3/2002 5,195 4,561 634
4/2002 5,289 4,561 728
1/2003 5,289 4,561 728
2/2003 5,362 4,561 801
3/2003 5,469 4,561 908
4/2003 5,569 4,561 1,098
1/2004 5,569 4,561 1,098
2/2004 5,569 4,561 1,098
3/2004 5,862 4,561 1,301
4/2004 5,862 4,561 1,301
1/2005 5,862 4,561 1,301
2/2005 5,963 4,561 1,402
3/2005 2,293 4,561 —
Accordingly, the total net backpay for Miller, excluding in-
terest, is $21,473.
D. Maxine Ritchie
Prior to her termination from Respondent’s facility, Maxine
Ritchie worked as a registered nurse in the intensive care unit
of the hospital. Her duties involved total care for the hospital
patients. Ritchie testified that following her termination in
August 28, 2000, she looked for employment anywhere that she
thought there might be a job opening. She searched the news-
papers and the internet. She also visited hospitals and clinics in
her area and reviewed employment bulletin boards. Other than
employment in the medical field, Ritchie applied to work as a
substitute teacher. Ritchie estimated that within a week to 2
KENTUCKY RIVER MEDICAL CENTER 209
weeks following her termination on August 28, 2002, she sub-
mitted an application for employment with ARH in Hazard,
Kentucky. In April 2001, Ritchie was hired by ARH. She ini-
tially worked for ARH as a home health nurse. During the time
that she worked as a home health nurse, Ritchie was permitted
to drive a company vehicle to visit her patients in their homes.
After approximately 7 months of employment with ARH, she
changed to a position as a psychiatric nurse. From April 2001,
Ritchie worked continuously as a full-time employee at ARH
until May 2003. Ritchie testified that in May 2003, ARH
closed its psychiatric unit and ARH changed her position to
home health nurse. The company vehicle that she had driven
when she was first employed with ARH was no longer avail-
able to her. Ritchie testified that in order to fulfill her duties as
a home health nurse, she would have needed a four-wheel drive
vehicle for her work. While neither counsel inquired further
about this requirement, I take judicial notice that Hazard, Ken-
tucky, is located in the midst of the Appalachian Mountains. It
is reasonable that a four-wheel drive vehicle would be required
for mountain driving in certain weather conditions. Ritchie did
not own such a vehicle. To use her own vehicle in her work
would have also required her to purchase additional insurance
to cover her for approximately $300,000. Ritchie explained
that her husband had been injured in a mining accident and she
could not afford to purchase the vehicle or the increased insur-
ance coverage for the vehicle.
Following her loss of work with ARH, Ritchie found em-
ployment with the Kentucky River District Health Department
on May 17, 2003. Her initial position was asthma coordinator.
She has continued this interim employment with this same em-
ployer and currently holds the position of tobacco coordinator.
Ritchie recalled that in approximately 2004, she was also em-
ployed by ARH for PRN22 work on evenings and weekends
during a period of 7 to 8 months. During 2004, and while
working at the Kentucky River District Health Department,
Ritchie was also employed by Hazard Community College as a
part-time evening instructor.
1. Conclusions concerning Ritchie’s backpay
Following Ritchie’s unlawful discharge on August 28, 2000,
Ritchie found interim employment in April 2001. Thereafter,
she continued to work without significant interruption for the
remainder of the backpay period. During at least two quarters
of the backpay period, Ritchie’s interim employment earnings
exceeded her gross backpay amount and no net backpay ac-
crued for these periods. Additionally, because of the amount of
her interim earnings for two other quarters, her net backpay
amounted to only $118 for the entire quarter. Therefore,
throughout 2002, Ritchie’s interim earnings were substantial
enough to virtually extinguish Respondent’s backpay liability
for that period of time.

22 While the term “PRN” was not defined for the record, Ritchie’s
additional work for ARH appeared to be part-time work as needed at
the hospital.
Ritchie testified, without dispute, that when ARH eliminated
her job in the psychiatric unit and moved her to home health,
she was unable to accept the job. She explained that she did
not have the vehicle and could not afford the required car insur-
ance that would have been necessary for her to perform the
work in home health. The Board has long held that a claimant
is not required to accept or retain interim employment that is
substantially more onerous, is unsuitable, or threatens to be-
come so. See Parts Depot, Inc., 348 NLRB 152, 165 (2006).
Thus, her resignation from ARH did not constitute a willful loss
of employment, as the acceptance of the job in home health
would have created a substantially onerous condition of em-
ployment. Sorenson Lighted Controls, 297 NLRB 282, 282
(1989). A claimant is certainly entitled to quit interim em-
ployment to search for work in a less onerous job. Ryder Sys-
tem, Inc., 302 NLRB 608, 621 at fn. 11 (1991). Additionally, it
should be noted that even though she had to resign from ARH,
she almost immediately found employment with the Kentucky
River District Health Department. While she received less pay
for her work with Kentucky River District Health Department
over the next 2 years, the Board has also found that a claimant
who accepts a job at a lower rate of pay than the job from
which he was illegally discharged is under no duty to continue
to search for work. Champa Linen Service Co., 222 NLRB
940, 942 (1976). I also note that despite the fact that her earn-
ings were less with Kentucky River District Health Department,
she also tried to supplement her income by working part-time
with ARH and by part-time teaching with Hazard Community
College.
Accordingly, the total record evidence demonstrates that
Ritchie not only made a diligent search for work throughout the
entire backpay period, she may have even exceeded expecta-
tions for diminishing Respondent’s backpay liability. Accord-
ingly, Respondent has failed to meet its burden of showing that
Ritchie did not properly mitigate damages. The compliance
specification includes $232,247 as Ritchie’s total gross back-
pay. Her interim earnings are shown to be $143,723. There-
fore, the correct amount of net backpay for Ritchie, excluding
interest, is $88,876.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended23
ORDER
It is hereby ordered that the Respondent Jackson Hospital
Corporation, d/b/a Kentucky River Medical Center, Jackson,
Kentucky, its officers, agents, successors, and assigns, shall pay
the individuals named below the indicated amounts of total
gross backpay and other applicable reimbursable sums, with
interest thereon accrued to the date of payment computed in the

23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD210
manner described in New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax and withholdings required by
Federal and State laws.
Eileene Jewell $41,592
Debra Miller 21,473
Lois Noble 40,268
Maxine Ritchie 88,876