Concourse Porsche Audi, Inc.

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concourse Porsche Audi, Inc. and Flora H. Fuller. Case 14-CA-6767 FINDINGS OF FACT,2 CONCLUSIONS, AND REASONS THEREFOR June 12, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLS AND MEMBERS FANNING AND JENKINS On February 25, 1974, Administrative Law Judge Lowell Goerlich issued the attached Supplemental Decision 1 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 Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative 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 Respondent, Concourse Porsche Audi, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order. ' The Administrative Law Judge titled his Decision a "Decision in Backpay Proceeding." DECISION IN BACKPAY PROCEEDING LOWELL GOERLICH, Administrative Law Judge: On October 24, 1973, a Backpay Specification and Notice of Hearing was issued alleging that a controversy had arisen over the amount of backpay due under the terms of the Board's Order herein.' On January 8, 1974, the matter came on for hearing at St. Louis, Missouri, on the backpay specification and answer of the Respondent, Concourse Porsche Audi, Inc. Each party was afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. 1 201 NLRB 181. 2 The facts found herein are based upon the record as a whole and the observation of the witnesses. 3 According to these reports she contacted at least four employers a week. 4 The business manager of Tom Casavely Ford stated that he did not observe the name of Fuller on any of the Automobile Dealers Association's weekly bulletins. The business manager of Central Volkswagen said that he had contacted the Automobile Dealers Association in May 1972 and the The parties stipulated that, in the event the General Counsel prevailed, the discriminatee, Flora H. Fuller, should be awarded $4,986.40 as backpay for the backpay period commencing on April 10, 1972, and ending January 24, 1973. The Respondent claims that this amount is not owing because the discriminatee did not fulfill her obligation under the law to mitigate damages. The burden of proof in this respect was on the Respondent. "Once the General Counsel has shown the gross amount of backpay due, the burden is on the employer to establish facts to negative or mitigate liability to a given employee. And finally, `any uncertainty is resolved against the wrongdoer whose conduct made certainty impossible.' " Fibreboard Paper Products Corporation, 180 NLRB 142, 147. See also N.L.R.B. v. Mooney Aircraft, Inc., 366 F.2d 809 (C.A. 5). Discriminatee Fuller, while working for the Respondent, was employed as a biller. As a biller she prepared the necessary papers for automobile purchasers so that they could "obtain license plates and pay sales tax, that sort of thing." She had worked as a biller since 1957. When Fuller was discharged by the Respondent she registered with the Missouri Employment Agency, Mis- souri Division of Employment Security, 23 Crestwood Plaza, St. Louis, Missouri. At the time she lived approxi- mately 7 or 8 miles from the Respondent's establishment in Affton, Missouri, which lies south of St. Louis in South County. Her travel time between her home and the Respondent's establishment was about 15 minutes. Her hours of work were 8:30 a.m. to 5 p.m. Fuller reported periodically to the Employment Agency office and furnished it with the names of employers from whom she had requested employment.3 Additionally she lodged an application for employment with the Automo- bile Dealers Association which is utilized by St. Louis automobile dealers as a source for job applicants.4 Fuller also searched for employment by contacting a substantial number of automobile dealers by phone, and by submit- ting applications for employment, and by responding to advertisements for help. For this purpose she utilized the yellow pages of the phone directory, made inquiries, and reviewed the help-wanted advertisements in the South County Journal, a weekly neighborhood paper,5 and the Sunday St. Louis Post-Dispatch. She did not subscribe to a daily newspaper. The most distant automobile dealership from her home to which she applied for employment was Fairway Dodge, about 15 miles from her home. Fuller also visited the counselor at the Missouri Division of Employment Security on four or five occasions, but was name of Fuller was not given him . This testimony is not considered persuasive proof that Fuller did not apply with the Automobile Dealers Association. Persuasive proof in this regard would have been the records of the association or testimony from its personnel which was not produced by the Respondent to rebut Fuller's testimony. Moreover, Fuller testified that she did receive a response after she commenced employment with Classic Cars. 5 This weekly carried advertisements primarily for the South City and South County area. 211 NLRB No. 41 CONCOURSE PORSCHE AUDI never sent out for a job interview. She contacted Placke Toyota, De Brecht Imports,6 and Signal Dodge in person in July and August 1972. She made written applications with Arundel Manufacturing and Howard Bohlman, C.P.A. She also applied for a job with the Professional Equities Company where she was interviewed but she did not obtain the job. On January 24, 1972, Fuller obtained a part-time job with Classic Cars, a distance of about 7 or 8 miles from her home. Fuller had phoned the office manager of Classic Cars, whom she had helped to obtain employment there, to inquire whether she knew of any job openings. Later Fuller was offered part-time work at Classic. In May, June, and July 1972, advertisements for a biller were carried in the Sunday editions of the St. Louis Post- Dispatch for Tom Casavely Ford located in the north outskirts of St. Louis. Fuller did not see these advertise- ments and did not apply for the job. On June 11, 1972, an advertisement appeared in the Sunday edition of the St. Louis Post-Dispatch in which McKelver-Kessler Oldsmobile sought a biller. The hours were from 12:45 p.m. to 8:30 p.m. The agency was located 15 miles north of the center of St. Louis, a 45-minute drive from the Crestwood Shopping Center? located in South County. Fuller did not see the advertisement and did not apply for a job there. Ray Rixman, Inc., advertised for an automotive biller in the St. Louis Post-Dispatch on April 9, 10, and 11, 1972. Ray Rixman, Inc., was located in northeast St. Louis about 25 miles from the Crestwood Shopping Center, about a 45- minute drive. Fuller did not learn of the advertisement and made no application there. In November 1972 Merollis Chevrolet, by its business manager, contacted Fuller and offered her a job as a biller. Fuller refused the job because it was too far to drive to work and the hours, 9 a.m. to 6 p.m., made it too late for her returning home.8 Fuller said that in accepting a job offer she must consider the needs of her family. The agency was located about 25 or 30 miles from Fuller's home. On October 29 and 31, 1972, Kribs Ford, Inc. advertised for a biller in the St. Louis Dispatch. The work location was in extreme South County. The job was filled on November 17, 1972. Fuller did not see the advertisement and did not apply for the job. On August 27 and September 3, 1972, Anthony Chevro- let, Inc., advertised for a biller in the St. Louis Post- Dispatch. The agency is located in the area in which Fuller lived. Fuller did not see the advertisement and did not contact Anthony Chevrolet because "it was termed a bad place to work."9 The job was filled by an inexperienced girl on September 5 or 6, 1972. Central Volkswagen's advertisement for a biller ap- peared in the St. Louis Post-Dispatch on April 23, 24, and 6 Fuller lodged an application with De Brecht advertised for a biller in the St. Louis Post-Dispatch on August 27, 1972. Apparently De Brecht rejected Fuller's application. Nevertheless, it is significant that De Brecht was not called for testimony by the Respondent. 7 Fuller resided 1-1/2 to 2 miles from the Crestwood Shopping Center. B Fuller thought the call was in January. However, it is unnecessary to resolve the conflict since Fuller would not have accepted the job in any case. 9 Fuller testified: . friends of mine ... have worked at the Chevrolet dealership, and they have all quit because they were unable to get 361 25 and July 30, 1972. Fuller did not see these advertise- ments. Central Volkswagen was located in the area in which Fuller lived. Fuller said that she did not apply there because "I didn't know they had an ad running in the first place, and again I didn't care to go to Central Volkswagen. I didn't want to go to that neighborhood ... It's not a very good neighborhood, and I also know of a couple of people that worked there, and I believe that they worked until 6 o'clock which again would make it quite late for my getting home, but I did not know they had an ad running." Fuller limited her job search to prospective employers whose places of business were within a distance of 10 to 15 miles from her home (Fairway Dodge, to whom she applied for work, was about 15 miles away) 10 and whose hours of employment did not require her to work beyond 5 p.m.11 Thus Fuller "disregarded any automobile agency that didn't work from 8 to 5 and was not 10 miles or so or 12 miles from [her] house." Upon the basis of the credited facts, Fuller made a diligent search for alternative work, for she canvassed a substantial number of prospective employers, answered advertisements, registered with and reported periodically to the Missouri Employment Agency, and registered with St. Louis Automobile Dealers Association. See Nickey Chevrolet Sales, Inc., 195 NLRB 395. Nevertheless, there were biller's jobs available in greater St. Louis and in South County where Fuller lived. Had she applied for any one of them, it seems reasonable that she would have been employed because she possessed the necessary qualifica- tions for such jobs and qualified applicants for such jobs were few. Continued employment in any one of these jobs would have mitigated the Respondent's backpay liability resulting from its unfair labor practices. The Supreme Court has said, "it seems fair that deductions should be made not only for actual earnings by the worker but also for losses which he willingly incurred." (Emphasis supplied.) Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 198. The Court further opined that appropriate weight must be given to the "unjustifiable refusal to take desirable new employment." Id., 199 (emphasis supplied). Considering the exigencies, hazards and physical de- mands attendant upon automobile driving through a congested metropolitan area by a female worker, Fuller's refusal to drive to North St. Louis and distances of over 15 miles can not be reckoned "unjustifiable," especially in view of the fact that when she worked for the Respondent she traveled only 8 or 10 miles to her job.12 Moreover, a job which would have required Fuller to abandon her family for the period of a late work assignment, a job which would have taken her to a "not a very good neighborhood," and a job which would have exposed her along with the office manager " 10 Fuller testified that she was not "willing to drive 25 or 30 miles to a job," but that she would have "probably" driven 15 miles. 11 Fuller testified, "I also maintain a home and have a family I have to consider their needs along with my employment. My employment is because I enjoy working, it is not because I necessarily have to. So, therefore I like to work in the area, close to my home." 12 A discnminatee is not necessarily obligated to accept employment which is located an unreasonable distance from his home. N.L R B v Madison Courier, Inc., 472 F.2d 1307 (C.A.D.C.). 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to a "bad place to work" cannot be deemed "desirable" jobs.13 The duty to mitigate, which springs from "not so much the minimization of damages as the healthy policy of promoting production and employment," (id., 200) does not demand or compel a wronged female employee to work under bad management, to work in a precarious neighborhood, to drive unreasonable distances to the job or to work late hours where none of these burdens obtained to the job from which she was separated.14 Thus Fuller would have been justified in refusing employment with these prospective employers and her failure to apply for work with them did not constitute a willful loss of earnings. As between the wronged employee and the wrongdoing employer, "fairness" is with the employee's claim under the circumstances of this case. In N.L.R.B. v. Madison Courier, Inc., 472 F.2d 1307, 1316 (C.A.D.C.), the court said: The purpose of requiring that the employer make the discriminatee whole in such a case [a discriminatory discharge] has a two-fold objective. First, the back pay remedy reimburses the innocent employee for the actual losses which he has suffered as a direct result of the employer's improper conduct; second, the order furthers the public interest advanced by the deterrence of such illegal acts. While the need for achievement of the private reimbursement objective is obvious, courts have generally placed greater stress on the less apparent goal of furthering public policy." [Emphasis supplied.] That the Respondent be allowed mitigation, as urged, would conflict with the advancement of the public interest, because the heavy burden placed upon the discriminatee requiring her to mitigate the backpay liability insisted upon by the Respondent would remove the deterrence envi- sioned by the Act. Indeed, if the earliest date were taken the Respondent would go almost scot free. Moreover, it would be the innocent employee who would be punished, and not the Respondent deterred; for the Respondent could have reasonably foreseen that any employee it wrongfully discharged would react the same way under similar circumstances. The employer ought not to be excused so easily from the mandates of the public interest. The fact that Fuller did find a job is proof of her efforts and the fact that she did work is proof of her desire. Burnup and Sims, Inc., 157 NLRB 366, 373. Accordingly, it is found that the backpay due Fuller from the Respondent is the stipulated sum, $4,986.40. Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record before the Administrative Law Judge, and pursuant to Section 10(c) of the Act, it is recommended that the Board issue the following: ORDER 15 Respondent, Concourse Porsche Audi, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall make Flora H. Fuller whole by payment to her of $4,986.40, together with interest at the rate of 6 percent per annum commencing January 24, 1973, and continuing until the amount is paid in full, but minus tax withholdings required by Federal and state laws. 13 A discriminatee need not seek or accept employment which is "dangerous, distasteful or essentially different" from thejob from which he was discharged. Florence Printing Co. v. N.L.R.B., 376 F.2d 216, 221 (C.A. 4); Mooresville Cotton Mills v. N.L.R.B., 110 F.2d 179, 181 (C.A. 4). 14 It is plausible to believe that the Respondent, at the time it discharged Fuller, could have reasonably foreseen that she would not have accepted any job with these conditions. 15 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 recommended Order herein shall, as provided in Sec. 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.