Heinrich Motors, Inc. petitions for review of a supplemental back pay order of the National Labor Relations Board directing it to pay $4129.52 to Anthony Cira, an employee who the Board found had been discriminatorily discharged in violation of section 8(a) (3) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(a) (3). The Board cross-petitions for enforcement of its order.
The central issue in this case is whether the Board was correct in determining, contrary to the conclusions of the trial examiner, thаt Cira’s post-discharge activities did not amount to a “wilful loss of earnings” such as would be a defense to the Company in the back pay proceeding. We agree that the Company did not sustain its burden of showing a wilful loss and accordingly we grant the Board’s cross-рetition for enforcement.
On July 23, 1965, the NLRB issued a decision and order,
At the back pay hearing Cira testified that for several years prior to his еmployment with the Company he had conducted a used car sales business. After he was hired by the Company, in February, 1964, to work as a mechanic in the night shift, he continued to operate his used car business on a part time basis. After his discharge on April 18, 1964, Cira continued the used car business on a full time basis, allegedly expanding it by adding a general auto repair service. This expansion included posting a sign on the premises and soliciting repair work among local factory workers. In September, 1964, he learned that he would have to vacate the lot on which the business was located because it had been sold. He then made arrangements to take over the management of a gasoline service station, terminated his business on October 15, and commenced operating the gasoline station. On September 11,1965, the company offered him reinstatement; he declined and continued to operate the service station.
Cira also testified that shortly after his discharge he registered with the New York State Employment Service. Two weeks later he received a message that the employment service had called him; but he failed to return the call. The record does not disclose the purpose of the call.
At the hearing Cira’s financial statements covering the baсk pay period were introduced. These statements show that Cira made no profit from the used car business, and that he made some profit at the service station but less than he would have made at the Company except for the third quarter of 1965.
During the heаring, the Company sought to secure the testimony of Hyman Dishner, the compliance officer in the Board’s Regional Office. According to the Company, Dishner would have testified that Cira told him, prior to September 11, 1965, that he did not desire reinstatement with the Company. The trial examiner, however, quashed a subpoena served upon Dishner and would not permit him to testify.
After the hearing, the trial examiner concluded that Cira had wilfully contributed to his loss of earnings during the back pay period by not seeking equivalent employment with due diligence and had withdrawn himself from the labor market by committing himself to the management of the service station. She therefore recommended that back pay be denied. She also stated that she had erred in quashing the Dishner subpoena, finding that the Company shоuld have *148 been allowed to question Mr. Dishner concerning any statements Cira might have made regarding his desire not to be reinstated. In view of her finding that Cira was chargeable with a wilful loss of earnings, however, the issue had become moot and hence she concluded that it was not necessary to reopen the hearing.
On review, the Board rejected the trial examiner’s findings and recommendations, concluding that the Company had failed to sustain its burden of showing that Cira wilfully incurred a loss of earnings. Accordingly, the Board ordеred back pay for the entire back pay period. The Board also concluded that the Dishner subpoena had been properly quashed and that any statements Cira might have made concerning his reinstatement were irrelevant to the issue of hоw much back pay was due.
Under § 10(c) of the National Labor Relations Act, as amended, the Board is empowered “to take such affirmative action [against one who has committed an unfair labor practice] including reinstatement of employees with or without back pay, as will effectuate the policies” of the Act. The general rule in back pay cases is that a wrongfully discharged employee is entitled to the difference between what he would have earned but for the wrongful discharge аnd his actual interim earnings from the time of discharge until he is offered reinstatement. Back pay can be reduced, however, if a “wilful loss of earnings,” such as a failure diligently to seek other employment, is shown. N.L.R.B. v. Cashman Auto Co.,
It is indisputable that self-employment is an adequate and proper way for the injured employee to attempt to mitigate his loss of wages. Cashman Auto Co.,
Likewise, that Cira may have spent less than full time at the used car business while searching for another source of business in Seрtember and October of. 1964, after he had been informed that his lot had been sold, does not negate his having engaged in full-time self-employment. The time spent by an entrepreneur in seeking business opportunities is in these circumstances necessarily a part of his self-employment. Cf. Cornell v. T. V. Development Corp.,
Nor does Cira’s failure to operate his used car business at a profit, or to increаse its revenues after his discharge, support a finding that he did
*149
not devote his full time to the business. As was stated in N.L.R.B. v. Cashman Auto Co., supra,
The trial examiner apparently placed considerable weight upon Cira’s failure to return the telephone call from the state employment service. The Board has held, however, that a person is not required to look for other employment while he is reasonably engaged in self-employment. See East Texas Steel Castings Co.,
Finally, the trial examiner’s inference that Cira’s full time operation of the gasоline station demonstrated a withdrawal from the labor market is inconsistent with the settled view, discussed above, that full time self-employment represents no more of a removal from the labor market than any other employment. Cira’s management of the serviсe station, while it indicates his diligence in seeking to mitigate his loss, did not extinguish the Company’s duty to offer reinstatement, which it did not fulfill until almost a year after he began to operate the station. Cira might well have gone back to work for the Company had an offer been made before the last quarter of 1965, when his gas station earnings for the first time reached the level of his Company pay. The Board therefore properly found that the Company had not established a withdrawal from the labor market. To hold otherwise would be to deny any recovery to the employee who successfully cuts his losses by finding other employment, while granting it to those who are less successful.
An evaluation of the entire record indicates an honest and diligent effort by the employee, Cira,
to
mitigatе his losses by turning to self-employment as a mechanic. He first put out a sign at his used car lot stating that he was in the car repair business. When he learned that he would have to terminate this business he spent part of his time negotiating for the management of a gasolinе station and thereafter worked full time managing that station. We conclude that the Board was clearly justified in finding, contrary to the trial examiner, that the Company failed to sustain its burden of showing a willful loss of earnings. See N.L.R.B. v. St. John’s Associates, Inc.,
We also find that the Boаrd’s action in disregarding any testimony Dishner might have given regarding Cira’s statement that he did not desire to be reinstated was proper. Such statements obviously teach nothing about the adequacy of post-discharge efforts to obtain gainful employment. The Board wаs therefore correct in concluding that the proffered testimony was irrelevant to the issue of a willful loss of earnings.
The testimony was clearly relevant and admissible on the issue of
*150
whether or not Cira had willfully removed himself from the labor market and thereby waived reinstatement. The law recognizes no general privilege for communications between a discharged employee and a Board compliance officer and the Board has no power to create such a privilege. N.L.R.B. v. Capitol Fish Co.,
However, we do not think that a remand is called for. The Board had before it all that the respondent company claimed Dishner would have said, and it specifically held that it was entitled to little or no weight. Viewing the record as a whole we are satisfied that the Board was not clearly in error in so doing. Statements such as Cira’s remarks to Dishner are of little value in determining whether there hаs been a withdrawal from the labor market or a waiver of reinstatement when they are made before the Company has offered reinstatement. As the Board pointed out in its decision, such statements:
“may reflect only a momentary state of mind that is subjeсt to change; prior to an offer of reinstatement, such statements are in the nature of answers to a hypothetical question; and the discriminatee’s expression may have been made in the heat of dissatisfaction with his treatment by [the employer].”
Mоreover, there is no indication that the Company knew that Cira did not desire reinstatement or that it relied upon the alleged statement in delaying its reinstatement offer. The reinstatement requirement has the dual purpose of protecting the discharged employee and demonstrating the Company’s good faith to its other employees. Local 833 U.A.W., etc. (Kohler Co.) v. N.L.R.B.,
The Company’s petition for review is therefore denied and the Board’s cross-petition for enforcement granted.