Lloyd's Ornamental and Steel Fabricators, Inc.

LLOYD'S ORNAMENTAL & STEEL FABRICATORS 217 Lloyd's Ornamental and Steel Fabricators, Inc. and District No. 9, International Association of Ma- chinlsts and Aerospace Workers, AFL-CIO. Case 14-CA-6427 3 Respondent's request for oral argument is hereby denied as the record, exceptions, and brief adequately present the issues and the positions of the parties June 7, 1974 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 26, 1974, Administrative Law Judge Arnold Ordman issued the attached Supplemental Decision in this backpay proceeding.' Thereafter, the 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 pecision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions of the Adminis- trative Law Judge and to adopt his recommended Order.3 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 Respondent, Lloyd's Ornamental and Steel Fabricators, Inc., Piedmont, Missouri, its officers, agents, successors, and assigns, shall make the employees involved in this proceeding whole by payment of the amounts set forth by the Administra- tive Law Judge in the attached Supplemental Decision, plus interest less any deductions required by state and Federal law. 1 On June 9, 1972, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding (197 NLRB 367) finding, inter a/a, that Respondent had discriminatorily discharged seven employees in violation of Sec. 8(a)(3) and (1) of the Act and directing that Respondent offer them immediate reinstatement and make them whole for any loss of earnings suffered by reason of the discrimination against them. On September 17, 1973, the Board's Order was enforced by the United States Court of Appeals for the Eighth Circuit in an unpublished Order of Affirmance (docketed as No. 73- 1080). 2 Respondent in effect has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 211 NLRB No. 34 SUPPLEMENTAL DECISION STATEMENT OF THE CASE ARNOLD ORDMAN, Administrative Law Judge: On June 9, 1972, the Board issued its Decision and Order i directing Respondent Lloyd's Ornamental and Steel Fabricators, Inc., to make whole Charles Brinkley, Herbert Jones, Stanley McFadden, Jim Sanders, George Sheets, Ralph Thompson, and Jerry Warren for loss of pay resulting from Respondent's unlawful discrimination against them. On September 17, 1973, the United States Court of Appeals for the Eighth Circuit, in an unpublished Order of Affir- mance,2 enforced the Board's Order. Controversy having arisen over the amounts due the named individuals under the terms of the Board's Order, the Regional Director for Region 14, on December 7, 1973, issued a Backpay Specification and Notice of Hearing. On January 4, 1974, and on January 10, 1974, respectively, Respondent filed its answer and amended answer to the backpay specification controverting certain allegations in the latter document. A hearing was held before me in Greenville, Missouri, on January 15, 1974, and, subsequent thereto, briefs were filed by counsel for General Counsel and by Respondent. A motion by Respondent to allow the late filing of its brief-a matter of a few days-is hereby granted for the reasons therein stated. Both briefs have been carefully considered. Upon the entire record in this case and upon my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. THE MATTERS.IN CONTROVERSY The backpay specification sets forth a detailed break- down of the gross backpay each of the seven named employees would have earned from Respondent absent the unlawful discrimination, sets forth also the net interim earnings of these employees, and concludes with the net backpay alleged to be due each individual to make him whole as required by the Board's Order.3 As to two of the seven employees, Stanley McFadden and Jim Sanders, Respondent admits all pertinent allega- tions of the backpay specification including the net backpay due. Accordingly, I find that Stanley McFadden 1 197 NLRB 367. 2 Docketed as No. 73-1080 3 At the opening of the hearing, counsel for General Counsel moved to amend the backpay specification in certain particulars So far as relevant here the effect of the motion to amend was to decrease the amount of net backpay alleged to be due George Sheets from $3,362 to $3,297 and to increase the amount of net backpay alleged to be due Ralph Thompson from $395.20 to $417.70 Respondent, reserving the defenses alleged in its answers, did not oppose the motion to amend and the motion was granted 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is entitled to net backpay in the amount of $36.60 and Jim Sanders in the amount of $282.95. As to the remaining five employees, Respondent, in its answers to the backpay specification, pleads that each of the five failed to make an adequate job search. In addition, with specific reference to George Sheets, Respondent pleads that Sheets failed or refused to work even though work was available to him and further failed to report earnings received by him during the specified backpay period. Finally, Respondent pleads that the expenses specified in regard to George Sheets, Ralph Thompson, and Jerry Warren were in excess of those actually incurred in the course of their search for interim employment. The merits of the individual claim as to these five employees are considered hereunder. II. THE INDIVIDUAL CLAIMS A. Charles Brinkley The amount of net backpay alleged to be due Charles Brinkley to make him whole is $934.12. Respondent admits all relevant allegations of the backpay specification with respect to Brinkley but challenges the amount alleged to be due on the sole ground that Brinkley failed to make an adequate search for employment during the backpay period. Extensive citation of authorities is unnecessary to verify the well-settled principle that the burden of proving willful loss of earnings, whether by inadequate job search or by other means, lies upon the wrongdoer, here the Respon- dent. See Mastro Plastics Corporation, et al., 136 NLRB 1342, 1346 (1962), and cases there cited at fn. 11. Respondent did not discharge this burden. True,. Respon- dent did produce numerous witnesses who testified that work opportunities were available in the area where Respondent's operations were located. But none of these witnesses was asked whether Brinkley had or had not applied to them for employment during the backpay period. Nor did Respondent make any inquiries as to whether Brinkley was qualified for whatever jobs might have been available or as to other relevant considerations. Significantly, Respondent did not call Brinkley as a witness to explore these matters, although Brinkley had been made available to Respondent for that or other purposes by counsel for General Counsel.4 Under the circumstances the most that can be said for Respondent is that it has shown that employment opportunities existed for which Brinkley may or may not have applied and for which Brinkley may or may not have been qualified or found acceptable for hire. In this uncertain state of the record, the familiar principle comes into play that the uncertainty must be resolved against the wrongdoer who has the burden of proof and whose conduct created the uncertain situation. N.L.R.B. v. Miami Coca Cola Bottling Co., 360 F.2d 569, 572-573 (C.A. 5, 1966). 4 Early in the course of the hearing, counsel for General Counsel announced that, pursuant to agency policy, he had issued subpenas to the five employees whose backpay was in issue so that they would be available to Respondent for examination and that he had so advised Respondent a week earlier. Of the five employees, Thompson was excused from being I conclude that Respondent has not established its affirmative defense and find that the amount of net backpay due Brinkley is, as alleged in the backpay specification, $934.12. B. Herbert Jones The only period for which backpay is claimed for Herbert Jones is for the third calendar quarter of 1971. During the ensuing periods, Jones had substantial interim earnings. The amount alleged as due to make Jones whole is $492.86. As with Brinkley, Respondent's sole defense is that Jones failed to make an adequate job search. Here again Respondent relies on the evidence that work opportunities were available. Again, no inquiries were made as to whether Jones had or had not applied for such jobs, whether he had been accepted or rejected for such jobs, and whether he was qualified or available for such jobs. Respondent did not call upon Jones to testify although he, like Brinkley, was made available to Respon- dent for that purpose. Moreover, the record establishes that Jones in fact did find employment during substantial parts of the backpay period and that his earnings from that interim employment mitigated to a considerable extent the losses for which Respondent would otherwise have been responsible. Accordingly, I conclude and find that Respondent has not sustained its affirmative defense with respect to Jones and that Herbert Jones is entitled to be made whole in the amount of $492.86. C. George Sheets The amount of net backpay required to make ,George Sheets whole was originally alleged in the backpay specification to be $3,362.60. As already noted, that amount was reduced by amendment made at the opening of the hearing to $3,297 (fn. 3, supra ). It subsequently appeared through evidence adduced from George Sheets by counsel for General Counsel on direct examination, and it is now conceded, that because of inadvertent error, the item of expenses for Sheets for the third calendar quarter of 1972 was overstated. Correction of that error resulted in an increase of Sheets' interim earnings for that period by $356.27 with the result that the net backpay alleged to be due Sheets for the entire backpay period now totals only $2,940.73.5 Respondent, as previously noted, vigorously urges defenses to its liability vis-a-vis Sheets. To recapitulate, Respondent pleads that Sheets did not make an adequate search for interim employment, that he failed and refused to work even though work was available to him, that he further failed to report earnings which he received during the backpay period, and that the expenses allegedly incurred by him during that period were overstated. As indicated above, error was conceded in two instances present for reasons which will appear when his situation is discussed. 5 The figure cited in this regard by counsel for General Counsel in his brief to me (br. 9, 10) is $2,910.73. My own calculations indicate that the figure cited in the text is correct. LLOYD'S ORNAMENTAL & STEEL FABRICATORS 219 and the correction of that error is reflected in the reduction of the net backpay claim to $2,940.73. In Sheets' case, as in the cases of Brinkley and Jones, Respondent relies on the evidence it adduced of available job opportunities in the area to establish that Sheets did not make an adequate search for employment and/or that he failed and refused to work even though work was available to him. In all, Respondent produced as witnesses more than a dozen employers or representatives of employers in the immediately surrounding area who testified that they had jobs available, ranging in number from I to 63, during the backpay period. In the case of Sheets, moreover, Respondent did make specific inquiry of most of these witnesses as to whether Sheets had applied to them for employment during the backpay period. Of those questioned in this regard, all but one testified that Sheets did not apply or that there was no recollection that he had applied. One responded that Sheets did apply but was not hired. Respondent urges on the basis of this evidence the propriety of an inference that, if Sheets had made an adequate search for interim employment, he would have found such employment. However, that issue need not be resolved here because the evidence adduced by Respondent does not stand alone. Sheets did testify and was subjected to searching examina- tion and cross-examination by counsel for General Counsel and by counsel for Respondent, respectively. Preliminarily, his testimony, corroborating the data set forth in the backpay specification, established that Sheets did seek and find interim employment during the backpay period. In addition, Sheets was able to recall with specificity the names of seven employers among those to whom he had applied for employment in addition to the places where he had actually found employment. Sheets did not confine his search to the immediate area where he had been employed but testified that he also sought employment in the area of Poplar Bluff and St. Louis. In addition, on the very day he was laid off, Sheets registered with the unemployment office in his home community. Sheets testified from memory. He kept no records relating to his search for work. That testimony remained unshaken despite thorough cross-examination and im- pressed me as being candid and sincere. I credit that testimony.6 In addition, Sheets also credibly testified that as to several enterprises where he thought work might be available, such as supermarkets or a mobile home sales agency, which Respondent relied upon, inter alia for its showing of available work, he did not apply because he felt he lacked the skills required for such jobs. Taking all the circumstances into account, I find that Respondent has not sustained the burden placed by law upon the wrongdoing employer to establish that Sheets did not make an adequate search for work. Indeed, although such a finding is not required in this frame of reference, I would find that the record affirmatively establishes that Sheets did make an adequate search for work. See Southern Household Products Company, Inc., 203 NLRB No. 138 (1973). Brief mention should be made here of Sheets' venture into self-employment in the logging business. This oc- curred toward the end of the backpay period. The rule is well established that self-employment does not constitute a withdrawal from the labor market, is not the equivalent of a willful loss of earnings, and is to be treated as other interim employment. Heinrich Motors, Inc., 166 NLRB 783, 784-785 (1967), and authorities there cited. Indeed, as the record shows, Sheets even showed a profit in this regard which is credited against the net backpay due him. Sheets candidly acknowledged that had he had better equipment and more experience, the venture would undoubtedly have been more profitable. But as the Court of Appeals for the First Circuit long ago declared in a similar factual context, "the principle of mitigation of damages does not require success; it only requires an honest good faith effort ...." N.L.R.B. v. Cashman Auto Body et al., 233 F.2d 833, 836 (C.A. 1, 1955); see also Heinrich Motors, supra at 784. Here, as in Cashman Auto, the record, on the basis of Sheets' credited testimony, adequately warrants a finding of "honest good faith effort." Turning now to Respondent's contention that Sheets failed to report earnings which he received during the backpay period, the discrepancy in that regard has been remedied, as already described, by the motion to amend made at the opening of the hearing and by the testimony volunteered by Sheets during his direct examination by counsel for General Counsel of the inadvertent error made in the expenses allocable to the logging venture during the third calendar quarter of 1972.7 The record is devoid of evidence showing failure to report interim earnings in any other respect. I find that Respondent has failed to sustain this defense also. Remaining for consideration is Respondent's defense that Sheets overstated his expenses incurred during the backpay period. The expenses involved consist of $606.23 incurred in the logging venture and a total of $31 incurred in the course of Sheets' efforts to obtain and hold interim employment. Sheets kept no records relating to the latter expenditures, but the record facts, corroborated by Sheets' credited testimony, demonstrate that the mileage traveled by Sheets relating to his efforts in obtaining interim employment is more than adequate, even on a conservative estimate, to justify the $31 claimed. As to the logging venture expenses, the records which Sheets did keep in connection with the logging business and the credible testimony furnished by Sheets in that regard fully support the expenses claimed.8 8 There is conflict in the testimony here only as to one item. Robert Woods, president of Sweezy Lumber and Hardware Company where Sheets testified that he had applied for work , stated that the firm had hired three people during the backpay period and that Sheets had not applied for work during that period . On cross-examination, Woods became less certain and stated merely that he could not recall that Sheets, whom he knew only by sight before he came to the instant hearing, had applied for ajob. In all the circumstances I credit Sheets' testimony that he did apply to Sweezy Lumber and Hardware Company for work. 7 Actually, Sheets had correctly reported his logging expenses as being $1,127.06. When he discovered that the only relevant expenses were those incurred during the third calendar quarter of 1972, he immediately provided the lesser figure which was the amount expended during that quarter. 8 Respondent in its brief (p. 6) vehemently protests the expenditure of $150 for the purchase of a skid mule and harness. Actually, as Sheets testified, the $150 covered the purchase of a skid mule, two sets of harness, (Continued) 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I conclude and find that George Sheets is entitled to be made whole in the amount of $2,940.73.9 D. Ralph Thompson The amount of net backpay alleged to be due Ralph Thompson in the backpay specification as amended is' $417.70. Respondent initially defended as to Ralph Thompson on two grounds: (1) that his expenses were overstated; and (2) that he failed to make an adequate job search. In the course of the hearing, Respondent elected to admit that the expenses alleged with respect to Thompson were correct and relied only upon the defense of an inadequate job search. Thompson was not asked to testify. The data set forth in the backpay specification, admitted by Respondent, reveal that not only did Thompson seek interim employment but that he found such employment and derived substantial earnings therefrom. As in the cases of Charles Brinkley and Herbert Jones, Respondent made no inquiries as to whether Thompson, during the periods he was not working, had or had not applied for employ- ment to the various employers who testified that they had jobs available. Under these circumstances, Respondent plainly failed to sustain the burden placed upon him under well-settled authority to establish that Thompson had incurred a willful loss of earnings by making an inadequate search for employment. Accordingly, I conclude and find that Ralph Thompson is entitled to be made whole in the amount of $417.70. E. Jerry Warren The amount alleged in the backpay specification to make Jerry Warren whole for lost earnings is $247.83. The defense as to Jerry Warren is that he overstated his expenses and that he failed to make an adequate search for employment. The background facts disclosed by the record and admitted by Respondent reveal that Warren had interim employment during each of the three calendar quarters comprising the backpay period applicable to him. In the latter two quarters,'his earnings were so substantial as to exceed by a considerable amount what he would have earned from Respondent so that no liability is imposed upon Respondent for these two quarters. The liability sought to be imposed upon Respondent in this regard derives solely from the excess of the gross earnings Warren would admittedly have derived from employment with Respondent during the first calendar quarter listed over his net interim earnings for that quarter. Warren testified as a witness for General Counsel and was extensively cross-examined by counsel for Respon- dent. It appeared that the $94 incurred as expenses in the first calendar quarter of his backpay period derived from the cost of round trips between St. Louis and Williamsville, and single tree and skin tongs . I find no basis in the record for discrediting the accuracy of this figure nor any basis , inter alga, for Respondent's assertion (br. p. 6) that "Mr. Sheets obviously let the mule starve to death...." 9 The record is not wholly clear as to whether the $100 which is listed in where Warren maintained his home, to check out job' opportunities. These trips were made before and during his, employment at Multiplex Display Fixture Co. at St. Louis. During his employment with Multiplex, Warren lived with his aunt in St. Louis. During the period Warren had worked for Respondent, Warren drove to work in a carpool with three others, but in St. Louis he drove his own car to work with a consequent increase in his cost of travel. In addition, Warren reimbursed his aunt for his living expenses at her home in St. Louis, whereas in Williamsville, Warren lived with his parents at no cost to him. Warren also testified in some detail as to his efforts to find work both in the Williamsville area where he had his home and in the St. Louis area where he did find jobs. Warren's testimony both as to the expenses he incurred and as to his job-seeking efforts was virtually unshaken despite rigorous cross-examination and no countervailing evidence was introduced. I credit Warren's testimony. So far as appears, the only evidence upon which Respondent relies to establish its affirmative defense that Warren did not make an adequate search for work was the showing, previously adverted to, that a number of employers in the Piedmont area had jobs available. Warren candidly acknowledged that he had not sought jobs in the Piedmont area which was some 18 miles from Williamsville where Warren lived with his parents. Yet his testimony that he did seek employment both in the Williamsville area and in St. Louis, in the latter place with considerable success, is uncontradicted. In sum, I find that the evidence submitted amply supports the expenses claimed as to Jerry Warren. I find further that Respondent has not sustained its affirmative defense that Warren did not make an adequate search for interim employment. It follows and I find that Respondent is obligated to make Jerry Warren whole in the amount of $247.83 as alleged in the backpay specification. RECOMMENDED ORDER On the basis of the foregoing findings of fact , conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that Respondent Lloyd's Ornamental and Steel Fabricators, Inc., its officers, agents, successors, and assigns, shall pay to the employees involved in this proceeding the amounts set forth opposite their names: Charles Brinkley $934.12 Herbert Jones 492.86 Stanley McFadden 36.60 Jim Sanders 282.95 George Sheets 2,940.73 Ralph Thompson 417.70 Jerry Warren 247.83 the backpay specification as being earned in the fourth calendar of 1971 was earned in that quarter or in the first quarter of 1972. In either event the final figure here found to be due would not be affected and the question raised need not be resolved. LLOYD'S ORNAMENTAL & STEEL FABRICATORS 221 Each of the foregoing sums shall accrue interest at the (1962). There shall be deducted from such sums any taxes rate of 6 percent per annum, computed in the manner set or such other amounts as may be required by law. forth in Isis Plumbing & Heating Co., 138 NLRB 716