Midwest Motel Management Corp.

MIDWEST MOTEL MANAGEMENT 421 Midwest Motel Management Corp . of Birmingham and Curtis L. Lewis Jr. Case 10-CA-17099 31 January 1986 SUPPLEMENTAL DECISION AND ORDER By MEMBERS DENNIS, JOHANSEN, AND BABSON On 3 July 1985 Administrative Law Judge Phil- lip P. McLeod issued the attached supplemental de- cision. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and brief and has decided to affirm the judge' s rulings, findings,' and conclusions2 and to adopt the rec- ommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the. administrative law judge and orders that the Respondent, Midwest Motel Corp. of Birmingham, Birmingham, Ala- bama, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Decision and Order' finding, inter alia, that Respondent unlawfully discharged Curtis L. Lewis Jr. in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. To remedy this unfair labor practice, the Board di- rected Respondent to reinstate Lewis and to make him whole for any loss of pay or other benefits he may' have suffered by reason of the discrimination against him. The parties being unable to agree on the amount of backpay due under the terms of the Board's Decision and Order, the Regional Director for Region 10 issued a backpay specification dated 29 March 1985. Respondent filed an answer admitting certain allegations and denying others. A trial was held before me on 1 May 1985, in Birming- ham, Alabama. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. At the trial, the General Counsel amended the backpay specification to include certain ad- ditional interim earnings which had not been a part of the earlier specification. Respondent amended its answer to the backpay specification to admit that the backpay period is appropriately defined in the original backpay specification. At the close of the trial, both General Counsel and Respondent presented oral argument. Addi- tionally, following the close of the trial, the General Counsel filed a timely brief with me. The oral arguments of both parties as well as the brief filed by the General Counsel have been considered in reaching my decision herein. On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 The Respondent contends that at the hearing the judge erroneously concluded that the amount of Lewis' interim earnings was not at issue and prevented it from eliciting evidence on that question. Contrary to the judge, the Respondent's general dental of the backpay specification con- cerning the amount of interim earnings is sufficient to raise that issue. Ricks Construction Co., 272 NLRB 424 (1984); Dews Construction Corp., 246 NLRB 945 (1979). We, however, find no prejudice from the judge's rulings at the hearing or his discussion of this issue in his decision. Both the judge and the Respondent's counsel asked Lewis whether there were any other interim earnings which Lewis denied, and the Respondent did not attempt to present any additional evidence on this issue or to make an offer of proof. Accordingly, we adopt the judge's findings with respect to interim earnings. Virginia L. Jordan, Esq., for the General Counsel. Roger Lee, Esq., of Birmingham, Alabama, for the Re- spondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE PHILIP P. McLEOD, Administrative Law Judge. On 7 May 1982, the National Labor Relations Board issued a I. POSITIONS OF THE PARTIES In its answer to the backpay specification and at the trial herein, Respondent has not taken issue with, and does not contest, the formula used by the General Coun- sel to determine gross backpay. Indeed, at the opening of the trial, both parties agreed that the only issue in this proceeding is whether Lewis made a sufficient search for work during some of the quarters for which backpay is claimed. II. APPLICABLE LEGAL PRINCIPLES The legal principles applicable to this case are clear. The Supreme Court stated long ago in Phelps Dodge Corp. v. NLRB, 313-U.S. 177, 197 (1941): - Making the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces. A Board backpay order, the Supreme Court has stated, "should 'stand unless it can be shown that it is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act." NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346, 347 (1953). The Supreme Court has also recognized that "the com- 1 261 NLRB 719 (1982). 278 NLRB No. 60 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD putation of the amount due may not be a simple matter. ... Congress made the relation of remedy to policy an administrative matter, subject to limited judicial review, and chose the Board as its agent for the purpose." Nath- anson V. NLRB, 344 U.S. 25, 29-30 (1952). In exercising the broad discretion granted to it, the Board, with court approval, has consistently applied the principle stated in New. England Tank Industries, 147 NLRB 598, 601 (1964): While the general burden is on the General Counsel to establish for each discriminatee the loss of pay which has resulted from Respondent's established discriminatory conduct, i.e., the gross backpay over the backpay period, the burden of proof is on Re- spondent to show diminution of that amount wheth- er such diminution results from- the claimant's will- ful `loss of earnings, or from the unavailability of a job at Respondent's operation for some reason un- connected with the discrimination.2 Thus, it is the burden of the General Counsel to establish the reasonableness and accuracy of its calculation of the gross backpay amount. That is not an issue in this case. The burden of proof with respect to its affirmative de- fenses rests on Respondent as it was the original wrong- doer. Concerning Respondent's burden to demonstrate affirmatively that a discriminatee has failed to make a reasonable effort to find interim employment, it is well established that the discriminatee is held only to a rea- sonable exertion in this regard and not to the standard of highest diligence. Further, success is not a measure of the sufficiency of the discriminatee's search for interim employment, for the law requires only an honest and good-faith effort. In determining the reasonableness of this effort, the discriminatee's skills, experience, qualifica- tions, and age, and the labor conditions in the area are factors to be considered. Laredo Packing Co., 271 NLRB 553 (1983); Pipeline Local No. 38 (Hancock-Northwest), 268 NLRB 167 (1983). III. THE EVIDENCE Curtis L. Lewis Jr. was the only witness who testified in this proceeding. Lewis testified credibly that on 15 June 1981, 3 days after his illegal discharge, he registered for work with the Alabama State Employment Service. On the application, Lewis listed his skills as general maintenance, appliance repair, electrical helper, carpen- ter helper, and hotel-motel-apartment complex repair. Lewis stated that he would be willing to take any job that became available. Lewis testified without contradic- tion that he continued to contact the state employment service two to three times a week until 31 December 1982, the end of his backpay period. Lewis testified credibly that in addition to checking regularly with the Alabama State Employment Service, Lewis checked help wanted advertisements in the Wednesday and Sunday newspapers, talked to friends and relatives about employment possibilities, checked with former employers, and went to various hotels, motels, apartment complexes, and restaurants seeking work. Apparently in order to continue drawing unemploy- ment compensation, Lewis was instructed by someone at the Alabama State Employment Service to keep a record of his search for work. Forms were provided to Lewis by that office for that purpose. At the trial herein, Lewis produced records which he maintained reflecting his search for work during the 5-month period from June through October 1981 and the 3-month period from March through May 1982. The main thrust of Respond- ent's argument is that records are not available for the entire backpay period documenting Lewis' entire search for work. From this, Respondent would have me con- clude that during the periods for which there are no doc- uments, Lewis made no search for work. I reject Re- spondent's argument for the following reasons. The Board does not require a discriminatee to docu- ment his search for work. Nevertheless, Lewis testified credibly that various records which he kept contempora- neous with his_ search for work were destroyed in a fire at his home. Lewis explained that during his search for work, he frequently made notes of the employers and the dates of contact with them on envelopes and other scrap pieces of paper. These he assembled from time to time, and the information was then transferred to the forms provided him by the Alabama State Employment Serv- ice. I credit Lewis that some of these forms and notes containing the names and dates of other employers whom he contacted were destroyed in the fire at his house. Respondent would have me discredit Lewis' uncontra- dicted testimony regarding the destruction of these forms and notes based on another part of Lewis' testimony which at first blush appears exaggerated. At one point, Lewis testified that during the backpay period which lasted approximately 18 months, he sought work with as many as 3,000 employers. There is little doubt that Lewis exaggerated the actual number. Looking at Lewis' testi- mony, however, it becomes clear that Lewis was exag- gerating for purposes of comparison only. The exaggera- tion is so obvious that I do not believe for one moment Lewis ever intended to be taken literally. Respondent's counsel asked Lewis if his best estimate of the number of places where he sought work was 10 or 110 or 3010. Lewis responded, "It was the last figure." The following exchange then took place between Lewis and Respond- ent's counsel: Q. Three thousand places? A. That's-3 Q. Could it have been 15,000 places? A. I wasn't keeping, you know, actual numbers. Q. I know you don't have an actual log of these places, but-4 A. But I went to places that I saw for a job; that's the places I went to. Q. But you think it's closer to 3000 than 10? A. It felt that way. [Emphasis added.] 3 The witness is interrupted. z Citations within quote omitted for sake of brevity. 4 Counsel is interrupted. MIDWEST MOTEL MANAGEMENT 423 It is clear from his testimony that Lewis does not claim to have sought work with 3000 employers. Rather, Lewis is saying that as compared to 10 it "felt" more like 3000. In other words, Lewis was simply asserting in an informal way that he was continually searching for work. Lewis' position is supported rather than under- mined by the available documents, which evidence a very substantial search for work. 'Indeed, for the 8 months for which records are available, Lewis contacted approximately 50 separate employers in his search for work. He reported back a second, and even a third, time to several of these employers. Moreover, Lewis' testimo- ny is uncontradicted and straightforward that he contin- ued to contact the Alabama State Employment Service approximately twice a week during the entire backpay period. Based on my observation of Lewis and a careful analy- sis of the record as a whole, I find that Lewis made a sincere and reasonable effort under the circumstances to find interim employment to mitigate loss of income re- sulting from his discriminatory discharge by Respondent. Respondent has failed to sustain its burden of proving that Lewis incurred a willful loss of earnings. Accord- ingly, I find that backpay is due Lewis in the amount claimed by General Counsel. CONCLUSIONS OF LAW 1. The gross backpay formula used by the General Counsel for Curtis L. Lewis Jr. is reasonable and appro- priate. 2. Respondent, Midwest Motel Management Corp. of Birmingham, has failed to establish that Curtis L. Lewis Jr. incurred a willful loss of earnings during his backpay period. On the foregoing findings of fact and conclusions of law, I issue the following recommended5 ORDER The Respondent, Midwest Motel Management Corp. of Birmingham, Birmingham, Alabama, its officers, agents, successors, and assigns, shall satisfy its obligation to make whole Curtis L. Lewis Jr. by payment to him of $12,181, plus interest thereon accrued to the date of pay- ment computed in the mariner prescribed in Florida Steel Corp., 231 NLRB 651 (1977), minus any tax withholdings required by Federal and state laws. 5 If no exceptions are filed as provided in Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses