Park General Clinic

PARK GENERAL CLINIC Richard M. Brown, D.C., and Donald R. Janower, D.O., a Co-Partnership d/b/a Park General Clinic and Local 79, Service Employees International Union, AFL-CIO. Case 7-CA-11533 October 18, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On July 15, 1977, Administrative Law Judge Ralph Winkler issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Supplemental Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Richard M. Brown, D.O., and Donald R. Janower, D.O., a Co- Partnership d/b/a Park General Clinic, Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. SUPPLEMENTAL DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: In a Decision and Order issued on June 17, 1975, the Board issued a conventional reinstatement and backpay order upon finding that Respondent had discriminatorily dis- charged Mrs. Joan Stein in 1974 (218 NLRB 540). The Court of Appeals for the Sixth Circuit on December 20, 1976, enforced the Board's Order (546 F.2d 690). Hearing was held in this supplemental matter on May 16, 1977, upon a backpay specification issued by the Regional Director for Region 7 on February 24, 1977,1 and Respondent's answer. Upon the entire record, including my observation of the demeanor of witnesses and upon consideration of briefs, I make the following: FINDINGS AND CONCLUSIONS Mrs. Stein was unlawfully discharged on October 28, 1974, and Respondent offered her reinstatement on January 10, 1977. In the third quarter of calendar year 1975, Mrs. Stein obtained permanent employment else- where with earnings exceeding her alleged backpay and the parties agree, in effect, that the material backpay period runs from October 28, 1974, until the indicated quarter of 1975. Respondent contends that Mrs. Stein did not make reasonable efforts to obtain interim employment during the backpay period and that she thus should be denied monetary relief for having purportedly failed to mitigate Respondent's backpay liability. The parties also disagree as to the basis upon which backpay, if any, should be computed. The burden of proving willful losses is on the tortfeasor, and the unlawfully discharged employee is merely required to make reasonable efforts to mitigate his loss of earnings. N.LR.B. v. Midwest Hanger Co., 550 F.2d 1101, 1105 (C.A. 8, 1977); J. H. Rutter-Rex Manufacturing Co., Inc. v. N.LR.B., 396 U.S. 258 (1969); N.LR.B. v. Mastro Plastics Corp., 354 F.2d 170, 174, fn. 3 (C.A. 2, 1965); N.LRB. v. NHE/Freeway, Inc., 545 F.2d 592, 593 (C.A. 7, 1976). Also applicable here is the principle that "A back pay award is only an approximation, necessitated by the employer's wrongful conduct." Bagel Bakers Council of Greater New York v. N.LR.B., 555 F.2d 304 (C.A. 2, 1977). Stein's Efforts To Obtain Interim Employment Stein was employed as a medical assistant by Respon- dent. Immediately upon her discharge in 1974, she registered for unemployment compensation (which she received) and sought employment at the Michigan Em- ployment Security Commission (MESC). She reported there every 2 weeks during the entire backpay period, on which occasions, as required by the Commission's rules for compensation purposes, she apparently satisfied MESC concerning her jobseeking efforts. The Commission, mean- while, did not refer Stein to any employment during the backpay period. In addition to reporting biweekly to MESC, Mrs. Stein checked the help wanted columns in local newspapers and she responded to some advertisements and made applica- tion to potential employers. In preparation for the May 1977 hearing in this matter, Stein made out a list of such applications as best she could remember and she truthfully testified in effect that the list was not necessarily complete because of the lapse of time since her discharge in 1974. Among specific items she recalled were some inquiries or applications for employment in November and December 1974, February, April, May, and June 1975, and possibly in January 1975. And in August 1975, as indicated above, Stein accepted employment with a private physician and I The specification was amended at the heanng. 233 NLRB No. 16 53 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereupon relieved Respondent of further accruals of its backpay liability. On the occasions of applying for work, Mrs. Stein advised prospective employers of her troubles with Re- spondent and that her discharge was the subject of unfair labor practice proceedings, and Respondent asserts that this information had a chilling effect on potential employ- ers. Whatever the effect might have been, and I shall not speculate on the matter, I am convinced that she volun- teered such information, not to scare off the employers, but to be honest with them and also because such potential employers would, in all likelihood, acquire the information in checking her employment record with Respondent, her last employer. Respondent adduced in evidence certain help wanted ads from a local newspaper and contended that they support its contention that Mrs. Stein would have found employment in her field had she really tried to obtain it, as she testified. There were, in fact, many such ads, but a substantial number of the listed jobs either required additional skills she did not have, or were duplications of other ads, or were at locations not conveniently accessible to her, or could not accommodate her short work schedule. (Mrs. Stein has several children, and she worked only 12 hours weekly in Respondent's employ.) Although Mrs. Stein probably could have expended greater efforts in seeking other employment, the question is not that but whether Respondent has established that she failed to make a good-faith effort along those lines, considering her skills, her salary, and the needs of her family situation while in Respondent's employ and also considering that she is the wronged individual in this case. I am satisfied that Stein did not willfully incur a loss of earnings and I conclude, therefore, that Respondent has not established her disentitlement to be made whole for earnings she lost as a result of her unlawful discharge by Respondent. Backpay Rate Mrs. Stein began her employment with Respondent in 1970, and she voluntarily left in July 1974 for reasons of pregnancy. Her hourly rate in 1974 was $3.85. Although she actually worked approximately 12 hours weekly, she received pay for 15 hours. The Employer added I hour's pay to accommodate her babysitting needs - she has several children - and the Board's decision in the original case mentions but does not resolve the confusion attending the other 2 hours, one possibility being that this extra payment was made through a bookkeeping error (218 NLRB at 541, 546 F.2d at 691). In any event, Mrs. Stein returned to Respondent's employ in October 1974, at which time Respondent apparently told her that she would continue receiving the $3.85 rate but that she would no longer receive moneys for unworked time. Mrs. Stein protested this wage situation, claiming at the time that Respondent was reducing her wages so far as take-home pay was concerned, and Respondent finally offered "as a compromise" to give Stein an hourly rate of $3.94 and to pay her only for hours actually worked. As discussed in the Board's decision (218 NLRB at 542), $3.94 was the highest hourly rate paid at the time to any of Respondent's medical assistants, and this rate was received by one Rosemary Mazglad. These foregoing matters antedate the union involvement which constituted the basis for the Board's finding, sustained by the court, that Respondent had discriminatorily fired Stein on October 28, 1974. Mazglad had been at the $3.94 rate since December 1973 and was raised to $4.20 an hour in December 1974. The General Counsel contends that Stein's backpay should be computed at a $4.20 rate from December 1974 because Respondent, in giving Stein a $3.94 rate in October 1974, had geared her rate to Mazglad's hourly rate. This contention involves consideration of Respondent's practice of reviewing employees' wages. Under this practice, the wages and job performance of employees making less than $4 hourly are reviewed after 6 months, and the usual hourly increase - if granted - is 10 or 15 cents; employees earning more than $4 are reviewed after I year, and the usual increase is 25 cents. Respondent urges that it gave Stein a 10-cent raise to $3.94 when she returned to work in October 1974, and that under its wage review procedures she was not eligible for wage reconsideration until at least 6 months later. The General Counsel contends, on the other hand, that her $3.94 rate was in fact a reduction - not an increase - in view of the circumstance that before leaving in July 1974 she had been receiving 15 hours' pay for 12 hours' work, albeit at a $3.85 rate. Whether the $3.94 rate be deemed an increase or a reduction in October 1974, I am satisfied and find that Respondent regarded it as an increase at the time and that Respondent would have continued to treat the matter as such for wage review purposes had Stein remained on the job. I thus accept Respondent's contention that Stein's backpay should be computed at $3.94 an hour and not recomputed at $4.20 an hour in December 1974, and I also conclude that beginning on April 21, 1975, this rate should be increased to $4.09 in view of the wage review procedure. Backpay Computations Except for the wage rate matter discussed above, there is no dispute concerning the backpay items alleged in the General Counsel's specification as amended. The record thus establishes the following compilation: 54 PARK GENERAL CLINIC Hrs. & Wage Rate Backnav Bonus SickDav Net Gross Interim Baknoav Earniner Net Racknav j__ - - --.-- ,, v----y 1974-4 114.84 $452.47 $31.50 $483.97 0 $483.97 at $3.94 1975-1 165.88 653.57 0 653.57 0 653.57 at $3.94 1975-2 38.28 150.82 0 672.70 0 672.70 at $3.94; 127.60 521.88 at $4.09 1975-3 165.88 678.45 0 678.45 $300.65 377.80 at $4.09 Total: $2,188.04 Upon the foregoing findings, conclusions, and the entire record, I issue the following recommended: SUPPLEMENTAL ORDER Respondent, its officers, agents, successors, and assigns, shall make Joan Stein whole by paying her the sum of 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and the recommended Order herein shall, as provided in Sec. $2,188.04, with interest at 6 percent per annum computed on the basis of calendar quarters, and less tax witholdings required under Federal and state laws.2 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 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