FAIRCHILD, Circuit Judge.
The present proceeding arises out of a judgment of this court, entered March 11, 1971, finding respondent Nickey in civil contempt for disobeying a decree of this court entered May 4, 1965. Our 1965 decree enforced an N.L.R.B. order, and ordered respondent to cease and desist from discouraging union membership by discriminating in hiring, tenure or other conditions of employment or in[105]*105terfering with its employees in the exercise of their right to self-organization.
Our 1971 judgment, entered after a proceeding initiated before us by the Board, found that respondent, by discharging its employee Sergott on October 4, 1969, wilfully violated the 1965 decree and became guilty of contempt of this court and its decree. We provided, among other things, that respondent shall purge itself of said contempt by reinstating Sergott “and making him whole for all pay and benefits lost due to the discrimination against him, together with 6% interest thereon. . ” The discharge of Sergott was never the subject of an unfair labor practice proceeding before the Board.
Respondent reinstated Sergott March 24, 1971. Whether respondent then offered or tendered any amount of back pay is not clear, but in any event agreement on the amount necessary to comply with our 1971 judgment was not reached. The Board might then have asked this court to find that respondent had not purged itself so as to escape the penalties we prescribed in the event of respondent’s default. Resolution of the dispute over the amount to be paid would then, either upon petition by the Board, or by respondent, perhaps accompanied by a tender, have been a function of this court, doubtless performed through a special master appointed by us.
The Board, however (and apparently at all times with the acquiescence of respondent), proceeded to make an administrative determination of the amount of back pay required. The regional director issued a back pay specification, respondent answered, a hearing was held before a trial examiner, General Counsel filed exceptions, the Board reversed the examiner in part, and issued an order, 195 NLRB No. 76, requiring respondent to pay Sergott $20,606.09, less tax withholding, and plus interest. The Board seeks enforcement of this order by a further decree of this court.
The procedural problem is that the foundation for a determination of the amount of back pay in Sergott’s case is not a Board remedial order in a statutory unfair labor practice proceeding requiring respondent to reinstate Sergott and pay him back pay, but is an order of this court requiring respondent to do so in order to remedy an event which was never the subject of an unfair labor practice proceeding before the Board. As well be seen, we think there was no statutory authority for the back pay order entered by the Board, nor for the Board’s petition to this court for enforcement of that order, and that any legal stature which the Board’s back pay order has must be predicated upon the 1971 decree of this court, together with respondent’s acquiescence in, and failure to object up to the time of oral argument before this court to the form of procedure followed.
After oral argument, the parties supplied supplemental memoranda. The Board argues that our 1971 judgment “tracks closely the language of a typical Board order of reinstatement and back pay, and appears to contemplate, if necessary, the usual back pay proceedings before the Board.” In other words, it appears to be the Board’s position that the similarity of the function of determining the amount of back pay in this case to the function regularly performed by the Board in other instances is to be given controlling significance.
It is true that the Board’s authorization under 29 U.S.C. § 160(c) to “take affirmative action including reinstatement of employees with or without back pay” has been construed to include the conduct of proceedings to determine the amount of back pay following court enforcement of a Board order directing payment of back pay in general terms. See Nathanson v. National Labor Relations Board, 344 U.S. 25, 29, 73 S.Ct. 80, 83, 97 L.Ed. 23, 30 (1952); National Labor Relations Board v. Bird Mach. Co., 174 F.2d 404, 405 (1st Cir., 1949); Wallace Corporation v. National Labor Relations Board, 159 F.2d 952, 954 (4th Cir., 1947); National Labor [106]*106Rel. Board v. New York Merchandise Co., 134 F.2d 949 (2d Cir., 1943).
It is the ordinary practice of the Board not to consider the amount of back pay until its general remedial order has been enforced by the court on its merits, in order to avoid unnecessary efforts if enforcement be denied. See N.L.R.B. v. Deena Artware, 361 U.S. 398, 411, 80 S.Ct. 441, 447-449, 4 L.Ed.2d 400, 409-410 (separate opinion) (1960); Nathanson, supra-, New York Merchandise Co., supra. The Board has promulgated rules establishing the procedures for back pay proceedings subsequent to court enforcement of its orders. 29 C.F.R. § 101.16.
Courts have approved this procedure on the theory that the order of the Board requiring reinstatement and back pay clearly contemplates further administrative determination on its part; that the initial order is analgous to an interlocutory judgment fixing liability but not determining damages; and that the enforcement decree is analogous to an affirmance of such interlocutory judgment on appeal. After enforcement, the prior administrative proceedings resume and the exact amount of back pay due is determined.1 If the supplemental Board order embodying this specific amount of back pay comes before the court again either for enforcement under § 10(e) or for review under § 10(f); an even more restricted judicial inquiry may be in order than is called for by the “substantial evidence test.” In reviewing the Board’s choice of a formula for computing back pay the Supreme Court has stated that the Board’s order “ ‘should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ ” [citations omitted] National L.R.B. v. Seven-up Bottling Co., 344 U.S. 344, 346-347, 73 S.Ct. 287, 289, 97 L. Ed. 377, 381-382 (1953).
The procedural stance of the instant case is quite different. Here, the Board did not commence another unfair labor practice predicated upon the discharge of Sergott, but chose, instead, to seek a judicial determination of the unlawfulness of his discharge in a contempt action.2 In such an original proceeding before the court of appeals or its master, the Board must prove, much like a prosecutor in a criminal action, except by clear and convincing evidence, that the respondent has failed to comply with the decree of the court. See, e.
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FAIRCHILD, Circuit Judge.
The present proceeding arises out of a judgment of this court, entered March 11, 1971, finding respondent Nickey in civil contempt for disobeying a decree of this court entered May 4, 1965. Our 1965 decree enforced an N.L.R.B. order, and ordered respondent to cease and desist from discouraging union membership by discriminating in hiring, tenure or other conditions of employment or in[105]*105terfering with its employees in the exercise of their right to self-organization.
Our 1971 judgment, entered after a proceeding initiated before us by the Board, found that respondent, by discharging its employee Sergott on October 4, 1969, wilfully violated the 1965 decree and became guilty of contempt of this court and its decree. We provided, among other things, that respondent shall purge itself of said contempt by reinstating Sergott “and making him whole for all pay and benefits lost due to the discrimination against him, together with 6% interest thereon. . ” The discharge of Sergott was never the subject of an unfair labor practice proceeding before the Board.
Respondent reinstated Sergott March 24, 1971. Whether respondent then offered or tendered any amount of back pay is not clear, but in any event agreement on the amount necessary to comply with our 1971 judgment was not reached. The Board might then have asked this court to find that respondent had not purged itself so as to escape the penalties we prescribed in the event of respondent’s default. Resolution of the dispute over the amount to be paid would then, either upon petition by the Board, or by respondent, perhaps accompanied by a tender, have been a function of this court, doubtless performed through a special master appointed by us.
The Board, however (and apparently at all times with the acquiescence of respondent), proceeded to make an administrative determination of the amount of back pay required. The regional director issued a back pay specification, respondent answered, a hearing was held before a trial examiner, General Counsel filed exceptions, the Board reversed the examiner in part, and issued an order, 195 NLRB No. 76, requiring respondent to pay Sergott $20,606.09, less tax withholding, and plus interest. The Board seeks enforcement of this order by a further decree of this court.
The procedural problem is that the foundation for a determination of the amount of back pay in Sergott’s case is not a Board remedial order in a statutory unfair labor practice proceeding requiring respondent to reinstate Sergott and pay him back pay, but is an order of this court requiring respondent to do so in order to remedy an event which was never the subject of an unfair labor practice proceeding before the Board. As well be seen, we think there was no statutory authority for the back pay order entered by the Board, nor for the Board’s petition to this court for enforcement of that order, and that any legal stature which the Board’s back pay order has must be predicated upon the 1971 decree of this court, together with respondent’s acquiescence in, and failure to object up to the time of oral argument before this court to the form of procedure followed.
After oral argument, the parties supplied supplemental memoranda. The Board argues that our 1971 judgment “tracks closely the language of a typical Board order of reinstatement and back pay, and appears to contemplate, if necessary, the usual back pay proceedings before the Board.” In other words, it appears to be the Board’s position that the similarity of the function of determining the amount of back pay in this case to the function regularly performed by the Board in other instances is to be given controlling significance.
It is true that the Board’s authorization under 29 U.S.C. § 160(c) to “take affirmative action including reinstatement of employees with or without back pay” has been construed to include the conduct of proceedings to determine the amount of back pay following court enforcement of a Board order directing payment of back pay in general terms. See Nathanson v. National Labor Relations Board, 344 U.S. 25, 29, 73 S.Ct. 80, 83, 97 L.Ed. 23, 30 (1952); National Labor Relations Board v. Bird Mach. Co., 174 F.2d 404, 405 (1st Cir., 1949); Wallace Corporation v. National Labor Relations Board, 159 F.2d 952, 954 (4th Cir., 1947); National Labor [106]*106Rel. Board v. New York Merchandise Co., 134 F.2d 949 (2d Cir., 1943).
It is the ordinary practice of the Board not to consider the amount of back pay until its general remedial order has been enforced by the court on its merits, in order to avoid unnecessary efforts if enforcement be denied. See N.L.R.B. v. Deena Artware, 361 U.S. 398, 411, 80 S.Ct. 441, 447-449, 4 L.Ed.2d 400, 409-410 (separate opinion) (1960); Nathanson, supra-, New York Merchandise Co., supra. The Board has promulgated rules establishing the procedures for back pay proceedings subsequent to court enforcement of its orders. 29 C.F.R. § 101.16.
Courts have approved this procedure on the theory that the order of the Board requiring reinstatement and back pay clearly contemplates further administrative determination on its part; that the initial order is analgous to an interlocutory judgment fixing liability but not determining damages; and that the enforcement decree is analogous to an affirmance of such interlocutory judgment on appeal. After enforcement, the prior administrative proceedings resume and the exact amount of back pay due is determined.1 If the supplemental Board order embodying this specific amount of back pay comes before the court again either for enforcement under § 10(e) or for review under § 10(f); an even more restricted judicial inquiry may be in order than is called for by the “substantial evidence test.” In reviewing the Board’s choice of a formula for computing back pay the Supreme Court has stated that the Board’s order “ ‘should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ ” [citations omitted] National L.R.B. v. Seven-up Bottling Co., 344 U.S. 344, 346-347, 73 S.Ct. 287, 289, 97 L. Ed. 377, 381-382 (1953).
The procedural stance of the instant case is quite different. Here, the Board did not commence another unfair labor practice predicated upon the discharge of Sergott, but chose, instead, to seek a judicial determination of the unlawfulness of his discharge in a contempt action.2 In such an original proceeding before the court of appeals or its master, the Board must prove, much like a prosecutor in a criminal action, except by clear and convincing evidence, that the respondent has failed to comply with the decree of the court. See, e. g., N.L.R.B. v. Laney & Duke Storage Warehouse Co., 424 F.2d 109, 112 (5th Cir., 1970); Alamo Express, Inc., supra. In contrast, at an enforcement proceeding the Board defends its order as supported by the record made before the Board.
The Board relies on the procedure followed by this court in N.L.R.B. v. My Store, Inc., 468 F.2d 1146 (7th Cir., 1972), cert. denied 410 U.S. 910, 93 S.Ct. 965, 35 L.Ed.2d 271. There this court gave effect to the Board’s back pay determination as an appropriate administrative proceeding within the Board’s province. The Board had ordered reinstatement and back pay to a class of employees in an unfair labor practice proceeding; this court enforced; later this court found the employer in contempt for failure to make proper offers of reinstatement ; after reinstatement, the court found the purgative terms of the contempt order had been satisfied, and remanded to the Board to determine back [107]*107pay. Although the sequence of the proceedings is indeed similar to that in the instant case, we think there is a significant difference. In My Store, the back pay determination, although following a contempt adjudication, was a continuation of the original unfair labor practice proceeding, and a filling out of the Board’s original remedial order.
Respondent’s obligation to pay back pay to Sergott arose solely from the order of this court, and not from an order of the Board. If the Board, after an appropriate unfair labor practice proceeding, had ordered respondent to pay back pay to Sergott, the Board would, as held in the decisions above cited, have had authority to determine the amount in a further proceeding. Absent such underlying Board order, we think there was no authority for the Board’s determination of the amount of back pay. The determination would be a nullity, and, unhappily, a waste of effort unless respondent’s acquiescence makes possible a degree of salvage.
If the Board had been proceeding within its authority, the test on judicial review would be whether its findings were “supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e). Under the present circumstances, that test does not apply, because the statute did not confer the authority to make the determination, nor do we think that respondent’s acquiescence could do so.
Respondent does, however, suggest in argument that the Board’s determination could be treated as that of a special master and adopted by this court except where clearly erroneous.
It is, of course, improbable that we would have appointed the Board, or one of its examiners, our special master, in view of the Board’s status as a litigant, albeit one not seeking the vindication of a private interest. The Board relies on the part of our contempt order requiring the “preserving [by respondent] and making available to the Board all records and books necessary to analyze the amount of backpay due, and to determine whether Sergott has been properly reinstated.” This language required disclosure of information to the Board, but could hardly imply an appointment of the Board as special master.
Nevertheless, in accord with the interest of judicial and administrative economy, we shall proceed, at least in approximation, to follow respondent’s suggestion, and resolve the matter upon the record made, according no greater weight either to the decision of the examiner or of the Board than that to which findings of a special master would be entitled.
Sergott was discharged October 4, 1969 and reinstated March 24, 1971. The Board proposed a formula for determining his cash earnings during the interim: a percentage of the actual earnings during the interim of three other salesmen. The percentage was derived from a comparison over a previous 4% year period. There is no issue with respect to this formula. There is no evidence that he received other earnings during the interim. The examiner concluded, and the Board agreed, that Ser-gott’s efforts to find other employment were reasonable from October 5, 1969 to April 30, 1970, while registered with and reporting to the state employment office. Respondent takes no issue with the decisions concerning this period.
The examiner concluded that Sergott’s efforts after April 30, when he was no longer reporting to the employment office, could not be deemed reasonable. The Board reversed this part of the examiner’s decision, on the basis that respondent had failed to sustain its burden of establishing that Sergott wilfully incurred a loss of earnings.
The failure of a discriminatorily discharged employee to make a reasonable search for interim employment substantially equivalent to his prior position constitutes an affirmative defense to back pay liability; the burden of proof is on the employer. N.L.R.B. v. Madison Courier, Inc., 153 U.S.App.D.C. 232, 472 F.2d 1307, 1318 (1972); N.L.R.B. v. Reynolds, 399 F.2d 668, 669 (6th [108]*108Cir., 1968); N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 575 (5th Cir., 1966); N.L.R.B. v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir., 1963).
The fact which the employer must prove has been described by the Supreme Court as “losses which [the employee] willfully incurred” and “clearly unjustifiable refusal to take desirable new employment.” Phelps Dodge Corp. v. National Labor Rel. Bd., 313 U.S. 177, 198, 200, 61 S.Ct. 845, 854, 85 L.Ed. 1271 (1941). Additional specifications have been widely accepted by the Board and Courts of Appeals: “fails diligently to search for alternative work”, N.L.R.B. v. Mastro Plastics Corp., 354 F.2d 170, 174, n. 3 (2d Cir., 1965), cert. denied 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682; “Failure ... to make a reasonable search for interim work”, N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 575 (5th Cir., 1966); and failure to make an “honest good faith effort”, N.L.R.B. v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir., 1955), followed in Golay & Co. v. N.L.R.B., 447 F.2d 290 (7th Cir., 1971).
The facts appearing in the record are as follows: At the time of discharge, Sergott was 44 years old and had been employed as a salesman by Chevrolet and Cadillac dealers for 18 years. Ser-gott registered with the state employment agency and reported 29 times up to April 30, 1970. Apparently these did not produce referrals. During the same period he called on 20 car dealers and made some 20 follow up telephone calls. After April 30 and before reinstatement, he made new contacts with four dealers and his total contacts with these dealers and some of those contacted earlier were 72, including a number of phone calls. Sergott testified he directed his later efforts toward those who initially encouraged him. He received no offers except from two dealers who conditioned further consideration on his resignation from the union.
The examiner did not discredit Ser-gott’s testimony, only noting that in his judgment, “many of the contacts made by Sergott were window dressing.”
Respondent proved only that there are more than five hundred new and used car dealers in the metropolitan area of Chicago. It offered no testimony as to business conditions during the period or other evidence tending to show that jobs were available for a salesman notwithstanding known union associations, or that the lack of opportunity with the dealers to whom Sergott applied was not representative. Sergott testified that “economically things were a bit slow at this time.”
We think that the examiner, in ultimate effect, imposed on Sergott the burden of proving that his efforts were reasonable. Given the efforts Sergott was shown to have made, and in the absence of proof bearing at least generally on the availability of suitable employment in the area, we conclude the respondent did not discharge its burden of proof. Accordingly, we consider the examiner’s adverse finding clearly erroneous, and find that Sergott’s efforts were reasonable.
A second element of back pay was the value of the use of a demonstrator which would have been available to Ser-gott if employed by respondent. The examiner fixed a value per month, and the only challenge by respondent is that the Board has extended the figure over the whole interim.
A third element of back pay was the value of prizes in various sales contests sponsored by General Motors in which Sergott would have participated if employed.
Sergott testified without dispute that in the year preceding his discharge he received prizes worth $675. If that period were deemed representative of the interim, an allowance of $168.75 for each quarter would be appropriate. This was the figure used by the Board.
The examiner noted that when the General Counsel worked out a formula for cash earnings he had considered that a period of 4% years, or 19 quarters, should be used for comparison [109]*109of Sergott and the other salesmen. The examiner felt that a justification must be shown for selecting a different period as representative of prizes received. Since there was no evidence of the prizes received in any but the last year, the examiner pro rated the $675 over the 19 quarters, allowing $35.52 per quarter to compensate for loss of prizes.
Respondent offered no testimony to show that the one year period was not reasonably representative. Under these circumstances we consider the examiner’s finding clearly erroneous and adopt the finding of the Board.
For reasons already indicated, "we treat the Board’s application for enforcement of its back pay order as a petition that we judicially determine the amount of back pay which respondent must pay Sergott in order to purge itself of contempt under our 1971 judgment. We adopt the findings of the Board as our own, consistently with the foregoing opinion.
Accordingly,
It is ordered and adjudged by the Court that within 20 days from the date this order is filed and entered, respondent shall pay to Harold Sergott, as the amount required under paragraph 2(b) of our judgment of March 11, 1971, $20,606.09, less any tax withholding required by the laws of the United States and the State of Illinois, plus interest thereon at the rate of 6 percent per an-num in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, and
'It is further ordered and adjudged that in default of payment by such time, respondent shall be subject to the fine, and its officers and agents shall be subject to attachment, as provided in paragraph (1) of said judgment.