concurring and dissenting.
I concur in that portion of the opinion holding that Thomas met his obligation to mitigate his lost wages. I cannot agree, however, that backpay should be paid at the rate for a flanker rather than at the higher rate for a hacksaw operator. The record shows that in July of 1976 Tama discriminated against Thomas by denying him the opportunity to work at the higher rate; the backpay award should make Thomas whole for this lost opportunity.
When Thomas returned to work at Tama in 1978, he worked as a hacksaw operator for three weeks. Then, for unspecified reasons, he returned to his job as a flanker. It is completely speculative to assert that a decision in 1978 not to continue in a job demonstrates that the employee would have made the same decision in 1976. The employer has the burden of establishing mitigation as to backpay, and in the present case Tama has advanced only a speculative theory in an attempt to defeat Thomas’s claim. I would defer to the Board’s expertise in fashioning the appropriate remedy.