Local 3, International Brotherhood Of Electrical Workers (R. H. Macy & Co., Inc.)

990 DECISIONS OF NATIONAL • LABOR RELATIONS BOARD Local 3, International Brotherhood of Electrical Workers (R. H. Macy & Co., Inc.) and Eban Nevarez. Case 2-CB-8728 28 June 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 31 January 1985 Administrative Law Judge Joel P. Biblowitz issued the attached supplemental decision.' The Respondent filed exceptions and a supporting • brief, and the General Counsel filed a brief in answer to the Respondent's exceptions. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consist- ent with this Supplemental Decision and Order. The issue raised here is whether the discrimina- tee, Eban Nevarez, made a diligent search for in- terim employment during the 4-month period that he was out of work, entitling him to an award of backpay. The judge found that although Nevarez did not "overly exert himself in his search for alter- nate employment," he did exercise adequate dili- gence. The judge therefore recommended that the Respondent be ordered to pay Nevarez the amount set forth in the backpay specification. We disagree with the judge's finding. It has long been held that a respondent- may miti- gate its backpay liability by showing that a discri- minatee "willfully incurred" a loss of earnings by a "clearly unjustifiable refusal to take desirable new employment."2 However, this is an affirmative de- fense and the burden is on the respondent to show that the discriminatee "neglected to make reasona- ble efforts to find interim work."3 Contrary to the judge, we find that the Respondent met its burden in this case. As indicated, as a result of the Respondent's un- lawful conduct, Nevarez was discharged from his maintenance electrician's job with Macy's on 9 Jan- uary.4 On 11 May, Nevarez was reinstated by i In the underlying proceeding in this case (266 NLRB 858), the Board found that the Respondent had unlawfully caused R H Macy & Co , Inc (Macy's) to discharge Eban Nevarez from his position as mainte- nance electrician on 9 January 1981, and ordered the Respondent to make Nevarez whole for any loss of earnings incurred by him as a result of the Respondent's unlawful conduct The United States Court of Ap- peals for the Second Circuit subsequently enforced the Board's Order in an unpublished judgment issued 30 May 1984 2 Aircraft & Helicopter Leasing, 227 NLRB 644, 646 (1976), citing Phelps Dodge Corp. v NLRB, 313 U S 177, 199-200 (1941) 3 Id citing NLRB v Arduini Mfg Co, 394 F 2d 420, 422-423 (1st Cir 1968) 4 All dates are in 1981 unless otherwise indicated Macy's to his former job. Nevarez -did not work at all during the entire 4-month period. Although the Respondent gave him two or three job referrals, Nevarez admits that he turned them all down be- cause he wanted only to return to his job at Macy's. Indeed, of the several job opportunities to which the Respondent referred him, the record in- dicates that Nevarez visited only two locations. At one location-the New York city `Department of Sanitation-Nevarez spoke to a shop steward con- cerning possible employment as 'a' maintenance equipment helper. Nevarez did not fill out a job ap- plication, but left only his name and telephone number with the steward. Nevarez was never called for the job. At the other location-American Bank Note Company-Nevarez also did not fill out an.employment application, but left only his name and telephone number with a security guard at the entrance to pass on to the shop steward in charge.5 Although the job to which the Respondent re- ferred him at the American Bank Note Company purportedly paid less than what he had been earn- ing at Macy's, Nevarez testified that he would have accepted the position had it been offered to him. However, despite his alleged interest in em- ployment with that company, Nevarez made no subsequent effort to contact the shop steward. We cannot find that the two perfunctory visits to job locations by Nevarez in this case constitutes a rea- sonable effort to find suitable interim employment, particularly in light of Nevarez' failure to follow up on any of the other jobs to which the Respond- ent referred him. Nor do we agree with the judge's conclusion that Nevarez' search for employment in the "help wanted" ads of the New York Post newspaper demonstrated his willingness and good-faith effort to find interim work. Although Nevarez testified that he found several job listings for maintenance electrician, the classification which he held at Macy's, he admits that he did not call or visit the employers in question to inquire about the positions because he believed them to be nonunion jobs, and that he was prohibited by the Respondent's bylaws from working for a nonunion employer. Nevarez' explanation for not following up on these job op- portunities is unpersuasive. In this regard, as found by the judge, there is nothing in the Respondent's constitution or bylaws which restricts the Respond- ent's members from working for a nonunion em- ployer. Nevarez, who apparently has been a member of the Respondent for almost 20 years and 5 Nevarez testified that, for security reasons, he was not allowed into the building and, consequently, tried unsuccessfully to have the steward paged 275 NLRB No. 142 ELECTRICAL WORKERS IBEW LOCAL 3 (MACY & CO.) 991 admits having had a copy of the Respondent's bylaws, chose not to read the bylaws or to ask the Respondent about any alleged restriction. Indeed, even assuming Nevarez had been correct about the existence of a, restriction on nonunion jobs, his ac- tions concerning the job ads show that he did not exercise even a minimal amount of diligence in his purported search for interim employment. Thus, he stated that he "assumed" that the electrician jobs were nonunion and made no effort to call the em- ployers in question to determine if such was the case. Nevarez -also- " asserted 'that he principally looked for ads for drivers or superintendents. By his own admission, however, Nevarez had neither the qualifications nor the proper license to obtain a driving job.-Further, there is nothing in the record to indicate that Nevarez called or visited employ- ers in pursuit of a superintendent's position. In fact, Nevarez conceded that despite having found sever- al job listings in the newspaper, he made no more than three calls to employers during the entire backpay period. On the strength of the evidence before us, we cannot agree with the judge that Nevarez demon- strated adequate diligence in his. search for interim employment. Thus, the record reveals that Nevarez flatly declined the several job, referrals given him by the Respondent because , he wanted only to return to Macy's, visited- only two employers during the entire' 4 months that he was unem- ployed, sought jobs for which he knew he was not qualified, made only three telephone calls concern- .ing jobs, *and refused to follow through on several job opportunities he found'listed in the newspaper advertisements on the mere assumptions that the employers were nonunion. Under these -circum- stances, we find that the Respondent has met it burden of showing that Nevarez did not make a reasonably diligent effort to find employment during the backpay period and that, in failing to do so, he incurred , a willful loss of earnings during that period.6 Accordingly- we find that he is not entitled to receive any backpay for the 4 months that he remained unemployed and shall order that the backpay specification be dismissed. ORDER The-backpay specification is dismissed. 6 In light of this decision, -we find it unnecessary to pass on the Re- 'spondent's`additional contentions that backpay liability should be tolled because Nevarez did not visit, and refused to accept an offer of employ- ment with, Sperry, Rand Corporation, to which the Respondent referred him, because he did not wish to commute to Long Island, and because he stated to the Respondent that he would not accept a lower paying job, a night-shift job, or a I- to 2-week temporary job Similarly, we find it un- necessary to reach the Respondent's contention that Nevarez received unemployment insurance payments which should be deducted for any award-of backpay to him. SUPPLEMENTAL DECISION JOEL P. BIBLOWITZ, Administrative Law Judge. This proceeding was initiated by the Regional Director for Region 2 of the Board by issuance of a backpay specifi- cation and notice of hearing dated July 24, 1984. Re- spondent filed a timely answer to the specification. The case was heard by me on October 31 and November 15, 1984, in New York, New York. In -the underlying case, - the General Counsel alleged that Local 3, International Brotherhood of Electrical Workers (Respondent) violated Section 8(b)(1)(A) and (2) of the Act by improperly causing R. H. Macy & Co., Inc. (the Company) to discharge Eban Nevarez for non- payment of dues, and that the Company violated Section 8(a)(l) and (3) of the Act by discharging Nevarez, pursu- ant to this request, without investigating the situation. On April 29, 1982, Administrative Law Judge Edwin H. Bennett issued a decision in which he dismissed the con- solidated complaint against both Respondent and the Union, in its entirety. On May 23, 1983, the Board (266 NLRB 858) issued its Decision and Order wherein it agreed with Judge Bennett that the Company did not violate the Act, but also found that Respondent, by caus- ing Nevarez' discharge, violated Section 8(b)(1)(A) and (2) of the Act. This decision and order was enforced in full by an unpublished judgment of the United States Court of appeals for the Second Circuit on May 30, 1984. The Board Order provides that Respondent make whole Nevarez for any loss 'of pay he may have suffered by reason of the discrimination against him by payment of a sum equal to that which he would have earned from the date' of his discharge to the date of his reinstatement, plus interest. The backpay specification lists his gross weekly wages as $429.98 and' the period that he was out of work due to the discrimination as from January 9 through May 8, 1981, which is 17.4 weeks or a total of $7482 gross backpay. - It is alleged that there were no in- tenm earnings and that the net backpay is also $7482. Respondent's answer to the backpay specification alleges, inter alia, that Nevarez is not entitled to backpay because he neither sought nor accepted employment during this period. On the entire record, including my observation of the demeanor of the witnesses and the briefs received from the parties, I make the following FINDINGS OF FACT Prior "to- his discharge by the Company, "Nevarez had been employed by the Company as the sole electrician maintenance man in "the store. He worked the 8 a.m. to 4 p.m. shift during that' entire period. The parties agreed that Nevarei first day ofuiiemployment was January 9, 1981, and he,. returned .,to the Company's, employ on Monday, May 1.1,^ 1981, although Respondent reserved its position, that Nevarei= could have returned to the Company's employ. earlier: "There wa§ • no - evidence to that effect, other than Nevarez' testimony that he' was called by the Company to return to work about 4 days prior to May 11, 1981. The parties are also in agreement 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Nevarez' weekly salary with the Company was $429.98. Nevarez had no interim earnings during his 17 weeks of unemployment. He testified that during this period he attempted to find other employment by looking through the newspaper want ads section. In addition, Respondent sent him to a number of job locations, but he refused these jobs because they were lower paying than he had earned at the Company; the location was inconvenient; the job was on a night shift or it was a temporary job. These categories will be discussed separately. Frank Montemagno, employed by Respondent as a delegate, offered Nevarez two or three jobs, which he refused because "I want to go back to Macy's." In addi- tion, shortly after February 2, 1981, Montemagno told Nevarez that the Company did not want him back, and asked him if he would accept another job at a lower rate of pay; Nevarez said that the would not. In addition, Ne- varez told Montemagno that since he had been employed during days at the Company he would not accept night employment, and would not accept temporary employ- ment for a week or two. Nevarez testified that between January. 9 and early May 1981 he looked at the want ads in the New York Post for possible employment opportunities. He testified that he could not accept electrician jobs because he as- sumed that they were nonunion-jobs, that Respondent does not allow its members to take nonunion electrician jobs, and that he could be expelled from Respondent if he did so. Nevarez further testified that although he does not remember who told him this, it occurred about 15 or 20 years earlier, and he believes that Montemagno was in the room at the time. In addition, Respondent's rules and bylaws do not allow members to work for nonunion em- ployers. Respondent's constitution and bylaws were received in evidence. George Schuck Jr., 'Respondent's president, testified in that regard. He testified as follows: The pro- vision: "No member shall work for less than the prevail- ing rate of wages for his work" refers to the law that the prevailing wage rate must be paid in public construction work; the provision: "No member of this local shall be permitted to do contracting" refers to a member entering into an agreement to perform electrical work on his own. Another provision makes it an offense for a member ". . . working for any individual or company declared in difficulty with a local union or the IBEW in accordance with this constitution." This provision means that members are not to cross IBEW sanctioned picket lines. Schuck testified that other - than this Respondent placed no restrictions on Nevarez' attempt to find work in early 1981. In fact, he could have worked as a mainte- nance electrician for a nonunion employer without incur- ring any penalty from Respondent. - Nevarez testified that in looking through the New York Post want ads he saw one or two ads for electri- cians and he called some, but he could not remember them. However; he principally looked for ads for drivers or superintendents, although he could not obtain a driv- ers' job because he did not possess the required license. During this period he made, at the most, three telephone calls looking for employment (although he could not recollect the names of these employers) and, other than as discussed, infra, did not personally visit any employers to request a job. Nevarez lived two or three blocks . from the Company and that was one reason he was anxious to return to the Company's employ. Some time during the 17-week period of unemployment, Nevarez received an offer of employment from the Sperry Rand Corporation in Great Neck, Nassau County, New York, which ,herdid,, not accept. During a court hearing involving Nevarez and Respondent, Nevarez testified that he refused this job offer because: "I don't have transportation." At. the in- stant hearing, Nevarez testified that it was either the lack of transportation or some other reason that caused him to refuse that job. I During this period, Nevarez traveled to two jobsites- a Sanitation Department job in Queens and "I'he Mint" (American Bank Note Company; which prints paper cur- rency) in the Bronx. Some time -during the period of his unemployment, Respondent sent him to Queens where the -New York City Sanitation Department had a job available as a helper in the maintenance of equipment. When he arrived there he spoke to the shop steward on the job for about a half hour. He told Nevarez about the job, and Nevarez said that he was willing to accept the job. Nevarez gave him his name and telephone number, but does not remember whether he filled out a job appli- cation. The steward took his name and said that he would call him, but he never did. Nevarez was asked whether he ever called an office of the Sanitation De- partment to express his interest in this job, he testified: "Well, my only knowledge of that job was through the local so I can't call like any Sanitation Department." Q. So after your went down to those premises of the Sanitation Department did you ever make an- other phone call to those premises . . . . _ A. Yes, I called back. I- called back .- I could never reach the guy again. I` called them. In February 1981, Nevarez met with -Respondent's at- torney Norman Rothfeld, who asked him if there was any job that he was. interested in. Nevarez told him that he was interested in a job at the-Mint, where about 10 of - Respondent's members were employed. Rothfeld told him to visit the premises immediately to determine if any jobs were available. Nevarez went to the Mint, which was about 3 miles from his home. The premises are heav- ily secured because - of the nature of its operation. Ne- varez-spoke to a security guard at one of the entrances to, the plant and asked to speak to Respondent's shop steward. He was told that they would page; him. The guard told Nevarez that he did not answer the-page, and Nevarez left his telephone number for the guard to give to, Respondent's shop -steward and, left the premises. He never returned or obtained employment there. On February 12, .198 1, Respondent sent Nevarez to a job at One Liberty Plaza in New York City, which job ' The Long Island Railroad travels to Great Neck about 10 minutes from the Sperry Rand plant.-This train commute would have been about 1-1/2 to 2 hours for Nevarez. - ELECTRICAL WORKERS IBEW LOCAL 3 (MACY & CO.) 993 he refused. He testified that he believes that he refused that job because it was a night-shift job. On March 9, 1981, Respondent called him to report to a job at Rocke- feller Center. He testified that he did not go to the refer- ral and believes the reason is that his unemployment hearing was taking place that day. He did not go at the conclusion of his hearing or at any subsequent time. Analysis Tlie' applicabtle" general legal principles in backpay cases were well stated in Aircraft & Helicopter Leasing, 227 NLRB 644, 646 (1976): An employer may mitigate his backpay liability by showing that a discriminatee "willfully incurred" loss by "clearly unjustifiable refusal to take desira- ble new employment." (Phelps-Dodge Corporation v. N.LR.B., 313 U.S. 177, 199-200 (1941)), but this is an affirmative defense and the burden is on the em- ployer to prove the necessary facts. N.L.R.B. v. Mooney Aircraft Inc., 366 F.2d 809, 813 (C.A. 5, 1966). The employer does not meet that burden by presenting evidence of lack of employee success in obtaining interim employment or of low interim earnings; rather the employer must affirmatively demonstrate that the employee "neglected to make reasonable efforts to fmd interim work." N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 575-576 (C.A. 5, 1966). Moreover, although a discriminatee must make "reasonable efforts to miti- gate [his] loss of income . . . [he] is held . . . only to reasonable assertion in this regard , not the high- est standard of diligence." N.L.R.B. v. Arduini Manufacturing Co., 394 F.2d 420, 422-423 (C.A. 1, 1968). Success is not the measure of the sufficiency of the discriminatee's search for interim employ- ment; the law `only requires "an honest good faith effort." N.L.R.B. v. Cashman Auto Company, 223 F.2d 832, 836 (C.A. 1, 1955). As Administrative Law Judge David P. McDonald stated in Flite Chief Inc., 258 NLRB 1124, 1128 (1981): In determining whether an individual claimant has made a reasonable search for employment, the test is whether the record as a whole establishes that the employee had diligently sought other employment during the entire backpay period. Saginaw Aggre- gates, Inc., 198 NLRB 598 (1972); Nickey Chevrolet Sales, Inc., 195 NLRB 395, 398 (1972). Any uncer- tainty in the evidence is resolved against Respond- ent as the-wrongdoer. N.L.R.B. v. Miami Coca-Cola Bottling Company, [360 F.2d 569, 575-576 (5th Cir. 1966)]; Southern Household Products Company, Inc., 203 NLRB 881 (1973). The test is whether "the employee has diligently sought other employment during the entire backpay period" and this determination is based on the "record as a whole. - On the basis of the record as a whole I find that Re- spondent has not met its burden of establishing that Ne- varez willfully incurred loss by a clearly unjustifiable re- fusal to accept desirable employment. Phelps Dodge, supra. Although the record establishes that Nevarez did not overexert himself in his search for alternate employ- ment, he did look through the want ads and call a few employers to inquire about job possibilities. In addition, he went to the Sanitation Department depot in Queens and the Mint in the Bronx in search of employment. Considering all the circumstances herein, this was ade- quate diligence. Respondent also defends that Nevarez' refusal to accept a lower paying job, a night-shift job, a I- to 2- week temporary job, or a job requiring him to travel to Long Island should preclude his receiving backpay. Elec- trical Workers IBEW Local 401 (Stone & Webster), 266 NLRB 870, 875 (1983), stated that "the backpay determi- nation must not ignore the balance that must be struck between allowing `a skilled and healthy worker to remain -idly unemployed . . . [and] . . . encouraging him to obtain a job, comparable to his regular job in working conditions and wages,"' citing NLRB v. Madison Courier, 505 F.2d 391, 397 (D.C. Cir. 1974). In Teamsters Local 559 (Mashkin Freight), 257 NLRB 24 (1981), the Board found that backpay was not tolled when the discrimina- tee refused an offer of employment with a wage rate at one-third less than he had previously earned. In the situ- ation here, in answer to a question from Montemagno, Nevarez said that he would not accept a lower paying job than he had with the Company; nothing was said about how much lower paid. Because the burden of es- tablishing disqualification is on the wrongdoer, I fmd that Nevarez' answer here is not enough to toll the back- pay. Nevarez clearly had a "cushy" job at the Company. He was the sole electrical maintenance employee there, worked the day shift, and lived a few blocks away. Re- spondent would toll his backpay because he refused to accept night-shift employment. However, as was stated in Richard W. Kaase Co., 162 NLRB 1320, 1332 (1967), when an employee has adjusted to a job he (or she) is comfortable in, and a party chooses to sever that rela- tionship, it is not reasonable to require the employee to change his mode of living, ""all for the purpose of reduc- ing [Respondent's] backpay liability and thus accommo- dating the wrongdoer." NHE/Freeway, Inc., 218 NLRB 259 (1975), stated that in appraising the discriminatee's conduct, any doubt "is to be resolved to the discrimina- tee's, not the wrongdoer's, benefit." Respondent would also toll its backpay liability be- cause Nevarez did not accept the Sperry Rand job in Great Neck; Long Island, New York. However, the commute on public transportation to this job would be between 1-1/2 and 2 hours each way; about a half hour to 45 minutes by car. As stated above, the wrongdoer cannot force the discriminatee to alter his-life style, by commuting for 3 or 4 hours a day (where he had, previ- ously walked 5 minutes to work) or buying a car, in order to reduce its, backpay liability. WHLI Radio, 233 NLRB 326 (1977). Accordingly, I shall award Nevarez backpay as set forth in the calculation set forth in the backpay specifica- 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion : $5074 for the first quarter of 1981 and $2408 for the [Recommended Order omitted from publication] second quarter of 1981, for a total of $7482 plus interest. I