Garrard Convalescent Home, Inc.

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garrard Convalescent Home , Incorporated and Na- tional Union of Hospital and Nursing Home Em- ployees, Local 1199H, Retail, Wholesale and De- partment Store Union, AFL-CIO. Case 9-CA-6534 September 18, 1975 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On October 12, 1972, the National Labor Rela- tions Board issued its Decision and Order directing that Respondent make whole certain employees for their losses resulting from Respondent's unfair labor practices in discharging them in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended.' On January 23, 1974, the United States Court of Appeals for the Sixth Circuit issued its judg- ment enforcing the Board's Order in full 2 On August 13, 1974, the Regional Director for Region 9 issued a Backpay Specification and Notice of Hearing to which Respondent filed an answer. On September 25, 1974, counsel for General Counsel moved for a Summary Judgment which was denied by direction of the Board on December 3, 1974. A hearing was held before Administrative Law Judge Milton Janus on April 17, 1975, at Cincinnati, Ohio, for the pur- pose of determining the amount of backpay due the discriminatees. On June 26, 1975, Administrative Law Judge Milton Janus issued the attached Supple- mental Decision in which he found that the discrimi- natees were entitled to backpay as set forth opposite their names in his recommended Order. 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 Na- tional Labor Relations Board has delegated its au- thority in this preceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the excep- tions 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 Re- lations Board adopts as its Order the recommended ' 199 NLRB 711 (1972) '489 F 2d 736 (C.A. 6, 1974) Order of the Administrative Law Judge and hereby orders that the Respondent, Garrard Convalescent Home, Incorporated, Covington, Kentucky, its offi- cers, agents, successors, and assigns, shall take the action set forth in said recommended Order. SUPPLEMENTAL DECISION STATEMENT OF THE CASE MILTON JANUS, Administrative Law Judge: On October 12, 1972, the Board issued its Decision and Order, 199 NLRB 711, directing Respondent, inter alia, to make whole three employees for their losses resulting from Respondent's unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. On January 23, 1974, the United States Court of Appeals for the Sixth Circuit issued its Judgment enforcing the Board's Order in full, 489 F.2d 736. A controversy having arisen over the amount of backpay due two of the discriminatees, Lula Hurry and Ethel Smith, the Regional Director for Region 9 issued a Backpay Spec- ification and Notice of Hearing on August 13, 1974.' On September 6, the Regional Director granted Respondent an extension of time within which to file an answer to the backpaj specification, and an answer was filed on Septem- ber 20. On September 25, 1974, counsel for the General Counsel in Region 9 filed with the Board a Motion for Summary Judgment with a supporting Memorandum, alleging that Respondent's answer raised no litigable issues and request- ing that its affirmative defenses be stricken because they failed to comport with the requirements of specificity and particularized pleadings, within the meaning of Section 102.54(b) and (c) of the Board's Rules and Regulations. On December 3, 1974, the Associate Executive Secre- tary, by direction of the Board, issued an Order which reads, in pertinent part, as follows: Upon due consideration, the Board is of the opinion that the Answer, to the extent that it disputes generally the accuracy of the backpay computations, a matter within the Respondent's knowledge, fails to comport with the requirements of specificity in Section 102.54 of the Board's Rules and Regulations and therefore is stricken., However, to the extent that the Answer dis- putes the amount of net interim earnings, it thereby raises substantial and material questions of fact con- cerning interim earnings which cannot be resolved without a hearing.2 Accordingly, ' See Interstate Equipment Co., Inc, 186 NLRB 121. 2 Net interim earnings are generally not matters within the knowl- edge of the Respondent, and a denial or dispute with respect thereto is sufficient under Section 102.54 of the Board's Rules and Regulations 1 No claim was made as to the third discriminatee , Judy Guy, since the Regional Director had determined that she had been unable to work during the entire backpay period. 2 The answer asserted that the computations of backpay due to Hurry and Smith were incorrectly computed, and that documentation concerning their net interim earnings had not been provided the Respondent. 220 NLRB No. 77 GARRARD CONVALESCENT HOME, INC. 451 IT IS HEREBY ORDERED that the Counsel for the Gener- al Counsel's Motion for Summary Judgment be, and it hereby is, denied. A hearing was held before me on April 17, 1975, at Cin- cinnati, Ohio. Upon the entire record in this proceeding, including my observation of the witnesses, and after due consideration of the General Counsel's oral argument and the brief filed by the Respondent, I make the following findings of fact and conclusions of law: Preliminary Matters At the opening of the hearing, the General Counsel made a motion to limit Respondent in the presentation of its case to evidence as to the claimants' net interim earn- ings only, on the ground that the Board's Order of Decem- ber 3, precluded examination of all other matters . Respon- dent conceded, in effect, that under the Board Order it could not litigate the measure of the claimants' average weekly earnings or the gross backpay each would have earned during the four calendar quarters involved in the backpay period.3 However, it claimed the right to litigate the question whether the claimants had made a diligent search for work to mitigate their loss of earnings during the backpay period. Over the General Counsel's objections, I permitted Respondent to examine the claimants as to their efforts to find new employment, even though the Board's Order mentioned only the amount of net interim earnings as raising a question of fact to be resolved at a hearing. It seemed to me from footnote 2 of the Order , quoted above, that its intent was to allow Respondent to litigate those matters which were not within its knowledge prior to the hearing and which could be developed only through the testimony of the claimants. As the claimants were present at the hearing, under subpoena by the Respondent, I con- sidered it unduly restrictive of Respondent's right to an exact determination of what it owed, to limit its examina- tion to the claimants' actual interim earnings, and to disre- gard the loss of potential earnings caused by a lack of dili- gence in seeking other employment .4 Finally, I ruled at the hearing that Respondent could not introduce evidence as to its insolvency or inability to satis- 3 Both claimants were wrongfully discharged on August 16, 1971, and were offered reinstatement on June 2, 1972. 4 In his closing argument, the General Counsel relied on two cases for the proposition that a respondent whose answer to a backpay specification does not specifically plead a claimant's willful loss of earnings as a defense Is precluded from litigating it at the hearing. In The Carter-Jones Lumber Com- pany, 198 NLRB 1036 (1972), the Administrative Law Judge so held, but also noted that in fact the respondent had been permitted to cross-examine the backpay claimant regarding the matter , and had failed to prove that the claimant had shown any lack of diligence in seeking other employment. In Southland Manufacturing Corp., 193 NLRB 1036, fn. 3 (1971), the Board also referred to respondent's failure specifically to plead a willful loss of earnings in its answer, but noted that such failure was particularly prejudicial since the General Counsel and charging party were thereby denied advance no- tice alerting them to have the backpay claimants available to testify on their search for employment . Here, on the contrary, the backpay claimants were available to testify at the hearing, and the General Counsel knew before the hearing opened that Respondent intended to offer evidence in mitigation of its liability. fy any backpay claim. Obviously, the only purpose of a backpay proceeding is to fix the amounts due those against whom Respondent has discriminated. Thereafter, the rela- tive priorities between backpay claimants and other cred- itors can be determined in some forum with jurisdiction over insolvency matters. The Claimants' Search for Work Hurry and Smith, the two backpay claimants, had been employed as nurses aides at Respondent's nursing home in Covington, Kentucky. At the time of her discharge, Hurry lived in Covington and was able to walk to work. Smith then lived in Alexandria, Kentucky, and her husband, who also worked in Covington, was able to drive her to her job. Covington is just across the Ohio River from Cincinnati, and within its metropolitan area. Alexandria is a few miles from Covington. The backpay specification shows no net interim earnings for Hurry for the last two quarters of 1971, while her earn- ings for the first two quarters of 1972 are just slightly less than what she would have earned from Respondent. Her employment in 1972 was with the Baptist Convalescent Center, Newport, Kentucky, and she got there by riding with a friend. Hurry did not own a car in 1971 and 1972. As for Smith, her only interim earnings during the four quarters of her backpay period occurred in the last quarter of 1971, when she earned $125 while working irregularly for Heringer's Restaurant in Newport, Kentucky, doing miscellaneous cleaning work. There is no evidence as to how Smith got from her home in Alexandria to Newport for the 14 days or so that she worked there. She testified that she did not have a driver's license, so presumably she used public transportation or relied on someone to drive her. Respondent argues generally that neither Hurry nor Smith made. a reasonable effort to seek work during the times each was totally unemployed. It points out that both were experienced nurses aides, that there are a number of nursing or convalescent homes and hospitals in the North- ern Kentucky area where they lived, and an even larger number of such establishments in Cincinnati. It argues that the backpay claimants did not make a sufficient effort to find work for which they were qualified, noting that neither had ever phoned or personally visited such institutions in Cincinnati to inquire about employment there. The testimony shows that there is bus service between Covington and Cincinnati, as well as bus service from the downtown terminal to all parts of the city. Both claimants admitted that they had not applied to nursing homes or hospitals in Cincinnati, explaining it by the fact that they were unfamiliar with the city, and that it was expensive to use public transportation, since there are two fares each way. Neither has been to Cincinnati more than a few times in her life. Considering that they were middle aged women who have lived most of their lives in small communities, I can understand their reluctance about using public trans- portation with its expense, the travel time involved, and the possibility that they might have to work late shifts when such service might be infrequent or unavailable. It is true that daily commuting from the suburbs into a large city is commonplace for millions of people, but for those who 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have worked in communities comparable in size to those they live in, it can be excessively burdensome. I therefore hold that Hurry and Smith were not obligated to try to mitigate Respondent's backpay liability by looking for work in nursing homes or hospitals in Cincinnati. Furthermore, the testimony of the administrator of the Garrard Home that he was familiar with the labor market in the area's nursing homes, and that they had a high turn- over rate in 1971 and 1972, does not prove that the claim- ants would have found jobs if they had applied, or that the terms, conditions, or location of available employment were such that they would have failed in their duty to miti- gate their losses had they refused such jobs .5 Respondent also asserts that Hurry failed to look for work for some time in 1971 because she had no one to take care of her preschool age child. Hurry testified that she had sought employment after her discharge in August 1971 at two hospitals in Covington and at some manufacturing plants in the Northern Kentucky area, before she eventu- ally found work at the Baptist Convalescent Center, New- port, Kentucky, in the first quarter of 1972. She said that while she worked for Respondent, her aunt had taken care of her youngest child, and had done the same service for her when she went back to work in 1972. At some unspeci- fied time in 1971, her aunt had applied for a disability benefit. Respondent assumes that the aunt was unable to care for Hurry's child in 1971, but I am not satisfied that that is what Hurry's testimony amounts to. After saying that her aunt had taken care of the child while she was working for the Baptist Convalescent Center in 1972, she was asked by Respondent's counsel if there was a period of time when her aunt was unable to do so, and she admitted that there was such a time. However, from her answer to the next question, it appears that it may have been in 1972 that her aunt was disabled. In any event, in view of the fact that Hurry had applied for work at more than four or five places whose names she could recall, in the last two quar- ters of 1971, I am not satisfied that Respondent has borne its burden of proving that her failure to find work during that period was caused solely by any difficulty she may have had in finding someone to take care of her child. I therefore find that the net backpay claimed in the backpay specification for Hurry, amounting to $1400.65, is the amount due her. Smith testified that she had applied for work at a nursing home, a restaurant (other than the one where she worked temporarily in December 1971), the company where her husband worked, and a few clothing manufacturing plants. She applied at some of these places shortly after her dis- charge in August 1971. She admitted that after her tempo- rary job at Heringer's Restaurant ended in December 1971, she did not look for work until May 1972, when she ap- plied at Dunlap's (not otherwise identified) and at another firm. It may well be that Smith was confused about dates and 3 Dorn's Transportation Company, Inc, 181 NLRB 403, 404 (1970). the sequence of events, since she testified that she had not looked much for work after being let go at Heringer's be- cause right after that she had gotten an offer of reinstate- ment from Respondent. In fact, as shown by the backpay specification and by the testimony, she was laid off at Heringer's in December 1971, and was not offered rein- statement by Respondent until early in June 1972. If the General Counsel had seen fit to question Smith, after her examination by Respondent, her confused recollection might have been set straight, but the General Counsel pre- ferred to stand firm on his position that all evidence re- garding due diligence in seeking work should have been rejected. The result is that Smith's testimony now shows that she did not apply for work from January through April 1972. An unexplained failure to look for work during the 4 months after her temporary job at Heringer's ended, shows an unreasonable lack of diligence, in my opinion, in mitigating her loss of income .6 I shall therefore recommend that Smith's net backpay for the first quarter of 1972, in the amount of $804.70 be disallowed, and that her net backpay for the second quarter of 1972 be reduced by $247.60 (her weekly rate of $61.90 for each week of April). In summary, I find the backpay due Smith to be $137.74, computed as follows: Qtrs. Gross Backpay Net Interim Earnings Net Back a 1971 -3 $408. 54 none $408.54 1971-4 804.70 $125.00 679.70 1972-1 none none none 1972-2 309. 50 none 309.50 $15 22.74 $125.00 $1397.74 ORDER7 Upon the basis of the foregoing findings and conclu- sions, it is ordered that Garrard Convalescent Home, In- corporated, its officers, agents, successors and assigns shall pay to the employees involved in this proceeding, as net backpay, the amounts set forth opposite their names: Lula Hurry $1,400.65 Ethel Smith $1,397.74 Interest is to be added at the rate of 6 percent per annum on the respective amounts of backpay, computed quarterly, and the net backpay awards are to be reduced by such tax withholdings as are required by Federal and State laws. 6 Cornwell Company, Inc, 171 NLRB 342, 344 (June Hopper) ( 1968). 7 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board the findings, conclusions, and Supplemental Order herein shall, as provided in Section 102.48 of the Rules and Regulations be adopted by the Board and become its findings, conclusions and Supplemental Order, and all objections thereto shall be deemed waived for all purposes.