Burger Boy Food-O-Rama

BURGER BOY FOOD-O-RAMA B.B.S.A., Inc., d/b/a Burger Boy Food-O- Rama and United Store Employees Union, Local No. 347, Retail, Wholesale and Department Store Union , AFL-CIO. Case 9-CA-3242. May 24,1967 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On March 9, 1965, the National Labor Relations Board issued a Decision and Order in the above- entitled case,' finding, inter alia, that the Respondent had discriminatorily discharged Stephen N. Stogden in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, and directing that Respondent make whole the above-mentioned employee for any loss of earnings resulting from the discrimination. Thereafter, on March 11, 1966, the United States Court of Appeals for the Fourth Circuit entered its decree enforcing the aforesaid Board Order.2 On August 17, 1966, the Regional Director for the Board for Region 9 issued a backpay specification and notice of hearing. Upon appropriate notice issued by the Regional Director, a hearing was held on November 1, 1966, before Trial Examiner Lawrence A. Knapp for determination of the amounts of backpay due the claimant. On January 18, 1967, the Trial Examiner issued his supplemental Decision attached hereto, in which he found that the claimant was entitled to the amounts of backpay therein set forth. Thereafter, the Respondent filed exceptions to the Supplemental Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's supplemental Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER On the basis of the Trial Examiner's Supplemental Decision and the entire record in this case, the National Labor Relations Board hereby orders that the Respondent, B.B.S.A., Inc., Charleston, West Virginia, its officers, agents, successors, and assigns, shall pay to the employee involved in this proceeding as net backpay the 975 amount determined to be due by the Trial Examiner in his attached Supplemental Decision. 151 NLRB 477 2NR LB v BBSA ,Inc,357F2d881. TRIAL EXAMINER'S DECISION IN BACKPAY PROCEEDINGS LAURENCE A. KNAPP, Trial Examiner: This supplemental proceeding was heard before me at Charleston, West Virginia, on November 1, 1966. The question at issue is the amount of backpay due from Respondent to Stephen B. Stogden, a discharged employee of Respondent. On March 9, 1965, the Board issued its Decision and Order in which it found that Respondent had discharged Stogden in violation of Section 8(a)(3) and (1) of the Act, and ordered Respondent to offer reinstatement to Stogden and make him whole for any resulting loss of earnings (151 NLRB 477). On March 11, 1966, the United States Court of Appeals for the Fourth Circuit enforced the Board's Order (357 F.2d 881). With the parties presumably unable to resolve the question of the amount of backpay in the usual informal compliance proceedings which follow Board Orders or judicial enforcement decrees, on August 17, 1966, the General Counsel of the Board issued his Backpay Specification and Notice of Hearing thereon. The hearing, originally noticed for October 18, was later postponed to November 1, 1966. On August 26, 1966, purportedly on the basis of Rule 33 of the Federal Rules of Civil Procedure, Respondent served on Stogden (then an Air Force enlisted man stationed at Lowery Air Force Base in Colorado) certain written interrogatories designed to ascertain from Stogden what efforts he had made to find employment and from what sources over the applicable period as defined in the specification. Upon Stogden's failure to answer these interrogatories, Respondent , on September 16, 1966, moved to dismiss the proceeding, a motion to which the General Counsel filed a written opposition and which I denied at the hearing. On or prior to August 31, 1966, Respondent filed its "Motion For A More Definite Statement" addressed to the specification and calling for further information concerning (1) the names of all employers from whom Stogden sought employment and the corresponding dates; and (2) any periods during which Stogden sought no employment. This motion, to which the General Counsel filed a written opposition, was granted by Trial Examiner Charles W. Schneider on September 26, 1966. Thereafter, on October 27, 1966, the Board simultaneously (1) granted the application of the General Counsel for leave to appeal the order of Trial Examiner Schneider and (2) reversed his decision. At the hearing on November 1, 1966, Respondent not having as of that date filed an answer to the specification, counsel for the General Counsel moved on that ground for judgment on the pleadings or for summary judgment.' After hearing oral argument on this motion I ' In making this motion at the outset of the hearing, counsel for the General Counsel served a copy thereof upon counsel for Respondent While the motion was not specifically offered for the record, on my own motion I hereby direct that it be made part of the record herein as TX Exh. 1 164 NLRB No. 122 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reserved decision thereon and the hearing proceeded with the taking of testimony, which was solely that of Stogden, whom the General Counsel had brought to the hearing for that purpose. To some extent on Stogden's direct examination by counsel for the General Counsel, and quite exhaustively on cross-examination by counsel for Respondent, this examination dealt with the efforts Stogden made after his discharge to find other employment. Following the taking of this testimony, I recessed the hearing to permit Respondent to conduct an investigation concerning Stogden's testimony, on condition that Respondent's counsel advise me, by November 14, 1966, whether as a result of that investigation Respondent desired to adduce any countering testimony. By letter dated November 11, 1966, counsel for Respondent advised me that the investigation made did not put Respondent in a position to disprove Stogden's testimony as to his efforts to find other employment, and moved that the hearing be closed, which I thereupon ordered.2 Following the hearing herein, briefs were filed by the General Counsel and Respondent. Upon the entire record in the proceeding, I make the following findings of fact and conclusions. FINDINGS OF FACT AND CONCLUSIONS Respondent operates a restaurant at St. Albans, West Virginia (a municipality near Charleston), where Stogden was employed prior to this discharge on July 1, 1964. Stogden, then age 16, was a high school student, and the great majority of the other employees at this restaurant were also students. Prior to his discharge, Stogden's hours of work began at 5 p.m. and normally extended until about 1 a.m., with later quitting times on occasion. He worked the same hourly schedule following his reinstatement by Respondent on May 18, 1966. In respect of the backpay period-July 2, 1964, throught May 17, 1966-the Backpay Specification issued by the General Counsel sets forth, by quarters, the amounts of gross backpay Stogden would have received from Respondent had he not been discharged and deductions therefrom representing Stogden' s earnings from other employment. On this customary basis, the specification arrives at the sum of $3,090 (plus interest and minus any required withholdings) as the amount of backpay due Stogden. Respondent does not attack the General Counsel's calculations of what Stogden's earnings with Respondent would have been during the backpay period. Its only contgtion, based upon Stogden's testimony at the hearing, is that throughout the backpay period as a whole, and during certain more specific periods in particular, Stogden did not make sufficient efforts to obtain other employment and that, accordingly, Stogden is entitled to no or to a reduced amount of backpay. I reject Respondent's contentions, upon which it has the burden of proof, in their entirety. In approaching my findings of fact concerning Stogden's efforts to obtain other employment, certain circumstances of overall significance should be mentioned. At the time of his discharge, Stogden was a lad of 16 years of age, becoming 17 in October 1964, and 18 in October 1965. On the basis of his testimony, and the absence of any countering proof by Respondent, I find that a principal source of employment in and around St. Albans for students such as Stogden consisted, in addition to Respondent, of a number of supermarkets, which provided hours of employment compatible with school hour schedules. In connection with the question of the reasonableness of the efforts Stogden did make, Respondent offered no testimony designed to show the existence in the vicinity of any sources of actual or potential employment for a person in Stogden's position which he should have explored but did not. Finally, both on the basis of his testimony and his impressive demeanor. I am satisfied that Stogden, both because of financial need springing from his family circumstances and because of his own inner motivations, is the kind of person who was determined to provide so far as possible for his own support, and that his efforts to find other employment were, consistently with his schooling and other legitimate goals, imbued with his spirit; put in reverse, there is nothing in the testimony or in Stogden's demeanor suggesting any disposition on his part to rest idle or otherwise to saddle Respondent with any willful loss of earnings. I turn now to the facts concerning the employment efforts Stogden made. Beginning immediately following his discharge in July 1964, and extending until early 1966, Stogden, by repeated personal visits and written applications where indicated, made extensive and recurring efforts to obtain employment at St. Albans' supermarkets operated by 2 The motion of the General Counsel for judgment on the pleadings or for summary judgment is hereby denied. Sec. 102.54(c) of the Board's Rules, relied upon by the General Counsel, provides that if a respondent fails to answer a Backpay Specification within the 15-day period specified in Rule 102.54(a), the Board "may" find the specification to be true and enter such order as may be appropriate. But this is permissive language, conveying an authority discretionary in nature , and hence one to be exercised or not in the light of the pertinent surrounding circumstances presented in the case at hand Cf. Star Wholesale Meats, 133 NLRB 1416, 1417; Mastro Plastics Corporation, 136 NLRB 1342, 1343. In the instant case, the information needed by Respondent to prepare its answer, and otherwise prepare its case for the hearing, on the issue of the sufficiency of Stogden's efforts to find other appropriate employment , could only, at least in its preliminary form, be obtained by Respondent in advance of the heanng from Stogden himself, or from the General Counsel to the extent that he possessed it as obtained , in turn, from Stogden Respondent's efforts to obtain such information from these two sources, made promptly after issuance of the specification, were unavailing. Hence, even though these recourses must be deemed not legally within Respondent 's procedure rights, as a practical matter the information could not become and did not become available to Respondent until the General Counsel produced Stogden for examination by Respondent at the heanng. In these circumstances, and in view of the failure of the General Counsel to establish any prejudice resulting from Respondent 's failure to answer within the 15-day period , and because the issue referred to was speedily litigated on the merits , I conclude that it would not be in the interests of justice to grant the General Counsel's motion. This disposition of the General Counsel's motion renders it unnecessary for me to pass on the contention of Respondent, advanced at the hearing, that there should be considered applicable Rule 12 of the Federal Rules of Civil Procedure, under which , if applicable , Respondent's time to answer would have been automatically extended until 10 days after the Board denied Respondent's motion for a more definite statement, a time Respondent actually met By letter postmarked November 5, 1966, Respondent filed its answer with the Trial Examiner and, presumably on the same date, mailed its answer to the General Counsel and the Charging Party In the light of my ruling on the General Counsel's motion , I accept Respondent 's answer for filing and hereby direct that it be made part of the record herein as Resp Exh. 1 BURGER BOY FOOD-O-RAMA 971 Kroger, A & P, and at least one other ("Evans") company. During parts of this period, as their potentials, e.g., a new A & P store, appeared to warrant, Stogden appeared at one or another of these stores several times a month. In addition, he sought employment: from the Charleston Gazette in the fall of 1964; through what appears to have been a sort of informal employment service operated by the municipal authorities of St. Albans in early 1965; from the Neighborhood Youth Corps in, apparently, early 1965; from a bank and grocery stores in California during a 3- week visit there during August 1965; through the State employment service in September 1965; from the telephone company, a bank, and one or another department store in nearby Charleston in late 1965 (and continuing into early 1966 in the case of the telephone company); at the FMC Company (apparently an industrial concern) in late 1965; from (with repeated visits in two instances) three nongrocery stores in St. Albans in late 1965; and had inquiries made on his behalf at two other companies in the vicinity in late 1965. During this period he also read the newspaper "want ads" with considerable frequency and responded by telephone in instances when he thought some suitable possibility might be uncovered. At some point or points of time not dated in the record, he also wrote the United States Civil Service Commission responsive to some notice he saw in the post office and likewise made employment inquiries at automobile service stations . During the above-described period it should be borne in mind that Stogden was a high school student during the 1964-65 school year and was a student at the nearby West Virginia State College from September 1965 until January 1966.3 In late January 1966, at the end of the first semester, Stogden dropped out of West Virginia State College, one reason being his inability to find employment providing him with sufficient funds to meet his college expenses and his other needs. At the same time, moved by what he described as the "intention" to enlist in the Air Force, he made corresponding approaches to a recruitment officer who, without any then actual enlistment by Stogden, put Stogden down on a list "to go out in late March or early April." This intention to enlist was, however, a conditional one; i.e., as I read his testimony his preference still was for a position which would permit him to return to college and meet his necessary schooling and at least some living expenses, or one, such as at the telephone company which he was then still pursuing, which through the acquisition of a skill or otherwise would be advantageous to him in later life. To this end, he continued in the early part of 1966 to read the "want ad" columns and made what he estimated as from 5 to 15 telephone calls in instances he thought might be promising, even though the "ads" themselves were unclear as to the work involved.4 During this period also, the efforts being made through his father to obtain employment for him at the McJunkin Company were, so far as he knew, still active and he also discussed (unsuccessfully) with his father-in-law'the possibilities of working in the latter's floor finishing business. He was unable to work due to illness from April 13 to May 12 and returned to work for Respondent, pusuant to the latter's offer of reinstatement, on May 18, 1966. He entered the Air Force in early July 1966. In its brief, Respondent appears to advance the broad contention that Stogden failed throughout the backpay period to seek employment actively, but this contention obviously is unsupportable in the light of my prior findings. Respondent then addresses this contention to particular portions of the backpay period. Thus it asserts that the efforts Stogden made from January to mid-April 1966 were "so slight as to be disregarded." But the searches then actively being made at the telephone company, the McJunkin Company, and through the "want ad" columns cannot be viewed as slight, particularly in the light of the prolonged and extensive efforts Stogden had theretofore been steadily but unsuccessfully making at other possible sources of employment in the vicinity. Respondent stresses Stogden's testimony that he did not during this period "personally" make other searches than the ones above mentioned, and his further testimony that at this time he was not seeking a job such as he had had at Burger Boy (Respondent). But the notable lack of success that had attended Stogden's many and immediately preceding efforts at the supermarkets and elsewhere rendered it unnecessary that Stogden "personally" visit all those employers during the early 1966 period in question. And there is no suggestion from Respondent of other sources Stogden might well have contacted.5 Respondent further contends that while Stogden was receiving 15 hours of work from the Neighborhood Youth Corps from march to May 1965, he failed to seek other employment. But this assertion is factually incorrect as my prior findings, and, indeed, Respondent's own related factual summary, show.' Respondent advances similar criticisms relative to Stogden's efforts in other portions of 3 The employment he obtained during this period consisted of a newspaper delivery route (from which he netted about $7 per week) over the period of September 1964 to January 1965, 15 hours' employment per week from March to May and 32 hours per week from June to August 1965 from the Neighborhood Youth Corps, 3 days' work in October 1964 and a month's work in December 1965 at one or another Kroger supermarket ' The record does not establish what happened in all these instances, but in some Stogden was informed he lacked the necessary experience and in one, selling books or magazines, he lacked the automobile necessary for the position ' I attach no adverse significance to Stogden's testimony that during January to March 1966 he was not interested in the Burger Boy type of lob, since there is no proof or indication that there was any such type of opening to pursue, and because his surrounding testimony shows that all he meant was that he preferred the Air Force to the Burger Boy type of work from a long term viewpoint and not that he was not interested in or would have rejected such work while awaiting the outcome of the Air Force possibility Indeed, when offered reinstatement later in May, he accepted the Burger Boy work, at which I presume he remained for some period prior to entering the Air Force in July 6 It is thus unnecessary to consider whether, in view of the fact that Stogden was then still in high school, he had some choice in the matter and may not have been obliged to seek employment entailing the longer same hours or the greater earnings characteristic of his)ob with Respondent. 978 DECISIONS OF NATIONAL the backpay period but they are not supported but are refuted by the findings of fact hereinabove made.7 I conclude, therefore, that Respondent has failed to carry the burden of establishing that Stogden failed to make reasonable efforts to obtain suitable employment or that he incurred any willful losses of earnings. Accordingly, I find and conclude that Stephen B. Stogden is entitled to backpay in the sum of $3,090 with interest thereon and subject to the deductions as prescribed in the following Recommended Order. Upon the foregoing findings of fact and conclusions, I recommend that the National Labor Relations Board issue the following: ' As one of these contentions, Respondent points to Stogden's class schedule in college during the months of September 1965 to January 1966, and, referring to evening classes Stogden attended on 2 nights a week, argues that Stogden was pro tanto unavailable for work But it does not follow that work he was then seeking, such as at the supermarkets, would have collided with these nighttime classes or, if there had been such a conflict, that Stogden would not have chosen or been able to abandon these night classes Moreover, it appears to me that as a college student, LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, B.B.S.A., Inc., d/b/a Burger Boy Food-O-Rama, its officers , agents, successors, and assigns, shall pay to Stephen B. Stogden the sum of $3,090, with interest thereon at the rate of 6 percent per annum, computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. From the foregoing amount there shall be deducted social security, income tax withholding, and such other deductions as may be required by the laws of the United States or the State of West Virginia. Stogden would have had the right to place college instruction hours over those of work to the extent that any actual collision between the two were to have confronted him But there is no evidence that he, in fact, placed any such limitation upon the job canvassing in which he was then engaged Respondent likewise questions whether Stogden seriously sought work during the California visit in August 1965, but it adduced no supporting evidence from Stogden or otherwise