concurring in part and dissenting in part.
I agree with much of the court’s opinion, but I would decide two of the questions presented differently.
The first such question is this: Larry Elmore having been lawfully discharged for cause in March of 1987, was it within the power of the Board to require that he be reinstated? The court’s answer is “yes.” Mine would be “no.”
For more than two years prior to his discharge, Larry Elmore had been employed by respondent Ryder as a full-time, non-probationary, over-the-road truckdri-ver. This position — the one that Ryder had been ordered to offer him — was the same position in which Elmore had been employed by Diesel Recon Company prior to the unfair labor practice.
It is true that the Board’s original order, as the Board construed it, required an offer of reinstatement without prejudice to the seniority rights Elmore had acquired at Diesel Recon. The Board decided that El-more’s seniority rights had been prejudiced, and I cannot quarrel with that decision. If his compensation had been adversely affected, therefore, I have no doubt that Elmore would have been entitled to be made whole. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 399-400, 102 S.Ct. 1127, 1135-1136, 71 L.Ed.2d 234 (1982) (affirming an award of retroactive seniority in a Title VII context).
It is undisputed, however, that Elmore’s compensation was not adversely affected by the loss of seniority. Ryder’s failure to comply with the proviso on seniority resulted in nothing more than damnum absque injuria. And even if Elmore’s compensation had suffered — a situation that could always have been corrected retroactively, of course — it would still have been a fact that the job Elmore held was the job to which Ryder had been ordered to reinstate him. See Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982), which clearly reflects an understanding that the identity of a particular job remains the same whether or not the job comes with retroactive seniority.
The employment that Ryder offered to Larry Elmore late in 1985 or early 1986 did not carry a guaranty of life tenure. Mr. Elmore’s employment was terminated for cause on March 18, 1987, and the validity of the discharge was subsequently upheld in proceedings before the Board. The fact that there was just cause for the discharge is thus no longer open to question.
The Board has broad discretion to devise remedies that will effectuate the policies of the National Labor Relations Act, to be sure, but the Board has no discretion to do that which the Act says it shall not do. Section 10(c) of the Act says, in the plainest of English, that “[n]o order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged ... if such individual was suspended or discharged for cause.” 29 U.S.C. § 160(c). It is indisputable that Larry Elmore was discharged “for cause” from his position as a full-time, non-probationary, over-the-road truckdriver. If § 10(c) means what it says, therefore, no order of the Board may require Elmore’s reinstatement to that position.
David R. Webb Co. v. NLRB, 888 F.2d 501 (7th Cir.1989), cert. denied, 495 U.S. 956, 110 S.Ct. 2560, 109 L.Ed.2d 743 (1990), does not suggest a contrary conclusion. The three employees involved in that case were hired as “dryer-feeders” following a strike. Prior to the strike one of the employees had been a “labeler,” one a “flitch cleaner and handler,” and one a “truck driver, fork-lift operator and storeroom clerk.” Id. at 502 n. 3. The dryer-feeder position was a different job, and a lower level one. Id. The Court of Appeals held that the employees’ lawful discharge from the dryer-feeder jobs did not bar the NLRB from directing that they be reinstated to their pre-strike positions. It would have been otherwise, however, if the employees had been dryer-feeders before the strike: “Had the Board ordered reinstatement to the dryer-feeder position, [29 U.S.C.] *718§ 160(c) would effectively prohibit such reinstatement.” Id. at 510.
In the case at bar, as we have seen, Larry Elmore was employed as an over-the-road truckdriver both before and after Ryder committed the unfair labor practice. Section 160(c) thus effectively prohibited the Board from ordering Elmore’s reinstatement to that position after he had been fired for cause.
The second question on which the majority and I part company is whether Ryder’s backpay liability to employee Carl Briscoe should have been tolled when Briscoe stopped seeking employment in the trucking business and went into an unrelated (and less lucrative) line of work. I would answer this question in the affirmative.
“The general rule in labor cases is that ‘an employee must at least make reasonable efforts to find new employment which is substantially equivalent to the position [[he] lost] ... and is suitable to a person of his background and experience.’ ” NLRB v. Westin Hotel, 758 F.2d 1126, 1130 (6th Cir.1985), quoting NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1318 (D.C.Cir.1972), as quoted in Heheman v. E.W. Scripps Co., 661 F.2d 1115, 1125 (6th Cir.1981), cert. denied, 456 U.S. 991, 102 S.Ct. 2272, 73 L.Ed.2d 1286 (1982). “The reasonableness of the effort to find substantially equivalent employment should be evaluated in light of the individual’s background and experience and the relevant job market.” Westin, id.
The record in the case at bar establishes that although help-wanted advertisements for truckdrivers were plentiful during the period with which we are concerned, Mr. Briscoe made no effort at all to find a job as a truckdriver. Briscoe’s own testimony shows that he had no interest in getting back into trucking unless he could have his old job; he simply was not looking for substantially equivalent work.
Where, as here, the evidence leaves no room for doubt that an employee has willfully failed to seek substantially equivalent employment in mitigation of his losses, and the Board has awarded backpay without taking this circumstance into account, the proper course is to have the Board recompute its award. NLRB v. Seligman and Associates, Inc., 808 F.2d 1155, 1168 (6th Cir.1986), cert. denied, 484 U.S. 1026, 108 S.Ct. 750, 98 L.Ed.2d 763 (1988). I find nothing to the contrary in NLRB v. Fugazy Continental Corp., 817 F.2d 979 (2d Cir.1987).