Niagara Falls Sightseeing By Sheridan, Inc.

NIAGARA FALLS SIGHTSEEING Niagara Falls Sightseeing by Sheridan, Inc. and Mi- chael A. Pinkowski. Case 3-CA-10597 31 March 1986 DECISION AND ORDER BY MEMBERS DENNIS, BABSON, AND STEPHENS On 6 November 1985 Administrative Law Judge Michael O. Miller issued the attached supplemental decision setting forth the backpay he found due pursuant to an unpublished 2 November 1982 Order in this proceeding. The Respondent filed ex- ceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and has decided to affirm the judge's rulings, findings,' and conclu- sions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Niagara Falls Sightseeing by Sheridan, Inc., North Tona- wanda, New York, its officers, agents, successors, and assigns, shall pay Michael A . Pinkowski $5020.68 backpay, plus interest as provided in Flor- ida Steel Corp., 231 NLRB 651 (1977),2 and ac- crued to the date of payment, minus tax withhold- ing required by law. ' 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 Cit. 1951) We have carefully examined the record and find no basis for reversing the findings 2 See generally Isis Plumbing Co, 138 NLRB 716 (1962). SUPPLEMENTAL DECISION-BACKPAY MICHAEL O. MILLER, Administrative Law Judge. I heard this matter on 17 and 18 June 1985 at Buffalo, New York, pursuant to a backpay specification and notice of hearing which the Acting Regional Director for Region 3 of the National Labor Relations Board (the Board) issued on 30 November 1984 and an answer filed by Niagara Falls Sightseeing by Sheridan, Inc. (Respond- ent) on 11 December 1984. The General Counsel and Respondent filed briefs, which I have considered, along with the entire record. I. BACKGROUND Michael A. Pinkowski, then a college student, began working for Respondent as a tour guide in May 1981. He 35 was one of about 100 hired . The work was seasonal, run- ning from approximately Memorial Day through Labor Day. It paid $3.35 per hour (minimum wage) plus what- ever tips the employee could garner . Respondent dis- charged Pinkowski on 21 July 1981. He filed an unfair labor practice charge, a complaint subsequently issued, and a hearing was held before Administrative Law Judge James M. Fitzpatrick in May and July 1982. Judge Fitz- patrick's decision, JD-447-82, issued on 30 September 1982. On 2 November 1982 the Board's Order issued (un- published), adopting the judge 's decision . In relevant part, the Board found that Respondent had discharged Pinkowski for reasons violative of Section 8(a)(1) of the National Labor Relations Act (the Act) and directed that it offer him reinstatement and make him whole for any loss of earnings he suffered as a result of Respondent's unfair labor practices. II. ISSUES PRESENTED The following issues of Respondent's compliance with the Board's Order give rise to this hearing: (1) What effect, if any, should Pinkowski's alleged fal- sification of his employment application have on his enti- tlement to backpay? i (2) Whether Respondent made a valid offer of rein- statement to Pinkowski between the 1982 and 1983 sea- sons, such that his entitlement to backpay for subsequent seasons was cut off? (3) Whether Pinkowski is entitled to backpay for sea- sons beyond 1982? (4) Whether Pinkowski made sufficient efforts to secure other employment and mitigate his losses? (5) Whether the backpay specification exaggerates the amount of tips Pinkowski earned while employed and would have earned had his employment continued? The backpay claimed for Pinkowski for 1981 through 1983 was calculated on the basis of the average number of weeks and hours worked by comparable employees, multiplied by the sum of the hourly wage rate paid by Respondent and the average hourly tips claimed by Pin- kowski. This formula was not in dispute before me. Re- spondent, in its answer, generally denies the appropriate- ness of this formula but offers no alternative. The Gener- al Counsel's motion to strike this general denial was granted by Judge Green. I find, as alleged, that Pinkows- ki's backpay is properly calculated on the basis of 140.92 hours lost in third quarter 1981, 104.5 hours lost in second quarter 1983, and 220.7 hours lost in third quarter 1983. The hours allegedly lost in 1982 have been omitted from this discussion as no net backpay was sought for that year. At the hearing, the General Counsel amended the backpay specification to include a claim for backpay for second and third quarters 1984. For this period, the ad- justed hours were determined by averaging the hours claimed for the same quarters in 1982 and 1983. Al- though given an opportunity to do so , Respondent did ' The General Counsel's motion to strike this defense, on the basis of prior and full litigation, was denied by Order of Judge Raymond P Green on 19 April 1985 279 NLRB No. 7 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not contest the General Counsel's formula for this period. Respondent did not concede that Pinkowski was entitled to any backpay in 1984. I conclude that what- ever backpay Pinkowski is entitled to for 1984 is proper- ly calculated on the basis of 127.4375 hours lost in second quarter 1984 and 259.265 hours lost in third quar- ter of that year. 111. DISCUSSION OF THE ISSUES A. The Alleged Falsification of the Employment Application Because of the international character of the Niagara Falls tourist industry, Respondent seeks to hire at least some bilingual tour guides. Bilingual ability is rewarded with a 50-cent-per-hour bonus paid on all tours requiring that skill and between 20 and 30 percent of the guides hired are bilingual. Respondent's job application form asks for fluency in foreign languages . It also includes a verification of the statements made by the applicant and provides "that, if employed, falsified statements on this application shall be grounds for dismissal." When Pinkowski submitted his application on 1 April 1981, he wrote that he spoke, read, and wrote German fluently. However, he told his interviewer, David Lacki, Respondent's operations manager, that he had not used the German language since high school , that he was not as fluent as he once had been, and that he was not really proficient in German. Lacki made a notation on the ap- plication which, to the extent that it is legible, appears to state, "No proficiency." Lacki initially decided against hiring Pinkowski. Pinkowski's sister Teresa, who had been a tour guide for Respondent for the prior 2 years, persuaded Lacki to change his mind.2 According to information Pinkowski had received from Respondent's dispatcher, he was not listed as a bi- lingual guide in Respondent's dispatch materials.3 Pin- kowski worked from 25 May until 21 July without being asked to lead a tour requiring fluency in German. None- theless, Respondent claims that it considered him to be an employee who had claimed foreign language profi- ciency. It further claims that he would have been dis- charged for falsifying his application at the point in time when he would have been assigned a German language tour and his lack of proficiency became known. On brief, Respondent argued that Pinkowski, by falsifying his ap- plication, had perpetrated a fraud on Respondent which the Board should not countenance by awarding him any backpay. Based on the record facts, I must reject Respondent's contentions that Pinkowski either defrauded Respondent or would have been discharged for falsifying his applica- tion. Any false impression his written application may 2 This testimony, drawn from the officially noticed record of the initial heanng and from the testimony before me , stands uncontradicted. Lacki was Respondent's witness in the initial hearing but was not asked about his interview of Pinkowski He was not called in the backpay proceeding S Respondent's "payroll" records for 1981 list the language abilities of some employees No foreign language skill is listed on those records for Pmkowski The General Counsel contended that the records were actual- ly the rosters of drivers used by the dispatchers Although they appear to be rosters, Guido claimed they were payroll records have given was fully corrected by oral communications with his interviewer. That interviewer, a high-ranking member of Respondent's managerial hierarchy, hired Pinkowski notwithstanding the exaggerations contained in the application and notwithstanding the interviewer's knowledge that Pinkowski could not serve as a bilingual tour guide. Respondent thus knew of the exaggeration and, to the extent that it might have provided grounds for discharge, condoned it.4 Moreover, Pinkowski worked for 2 full months without being directed to con- duct a tour in the German language. This fact tends to support Pinkowski's contention that Respondent did not consider him to be bilingual ; it also tends to establish the improbability that, even if he was so considered, he would have been assigned a German language tour at any particular time and would thus have revealed his al- leged "falsification." The alleged falsification, I must conclude, provides no basis for either denying or tolling backpay. B. Alleged Offers of Reinstatement The backpay specification asserts that Respondent never offered reinstatement to Pinkowski. Respondent denies this claim and affirmatively stated in its answer that "reinstatement was verbally offered to Pinkowski in late December of 1982, or in early January of 1983." Eugene Guido, Respondent's president, initially testified that he directed an employee, Torchia, to call Pinkowski with an offer of reinstatement some time in April 1983. Torchia allegedly reported back to Guido that the call had been made and that he had learned from someone in Pinkowski's family that Pinkowski had or expected to have a job at Griffiss Air Force Base and was not inter- ested in employment with Respondent. This testimony is not credible as Pinkowski was no longer employed at the base in April 1983 and was not eligible for future em- ployment there. Guido subsequently testified that two such calls were made, the first in December or January as claimed in Respondent's answer and the second in April. Pinkowski denies receiving any offer of reinstate- ment from Respondent. He denies that any member of his family informed him of any such offers.5 His sister Teresa corroborated his testimony that no offer was re- ceived by anyone in their family, at any time. When it was pointed out to Guido that the compliance instructions direct that offers of reinstatement be made in writing, with a copy to be served on the Board's compli- ance officer, Guido testified that he "probably" sent such a letter in April or May 1983. Richard Friend, the com- pliance officer, searched the Board's files and found no copy of any written offer of reinstatement. In Respond- ent's brief, counsel made no reference to any written offer of reinstatement. * See Davis & Burton Contractors, 261 NLRB 728 (1982), and cases cited therein 5 Respondent sought at hearing to construct an admission that there had been such a communication from Pinkowski's affirmative answer to counsel's question, "Are you aware of any communication that might have been made with members of your household concerning that?" Pin- kowski's subsequent answers, firmly asserting that there had been no such communications, convince me that Pinkowski neither intended nor made such an admission NIAGARA FALLS SIGHTSEEING 37 As was stated in NLRB v. Brown & Root, 311 F.2d 447, 454 (8th Cir . 1963), the burden is on a respondent "to establish facts which would negate, the existence of liability to a given employee or which •would mitigate that liability." Thus, the burden of proving that an offer of reinstatement was made is on Respondent . Respond- ent's evidence falls short of meeting that burden. Re- spondent's evidence, that Guido merely instructed an- other individual to call Pinkowski's home and was subse- quently informed that such a call had been placed to someone in Pinkowski's family, even if credited, is insuf- ficient to overcome Pinkowski's credible testimony that he was never informed of any offer of reinstatement. One, or even two, calls to a discriminatee's family with no effort being made to communicate directly with the discriminatee either orally or in writing, is not the "good-faith recall effort" the Board requires of a re- spondent to remedy its wrong . Reeves Rubber, 252 NLRB 134 (1980). Moreover, even assuming that Tor- chia made the call or calls, as claimed by Guido, Re- spondent bore the risk that its message would not be communicated to Pinkowski . It could have chosen more conventional and reliable methods of communication, in- cluding requesting his current address or telephone number to ensure a direct contact . Carter's Rentals, 250 NLRB 344 (1980)(Paulino). Finally, in light of Guido's shifting responses , in his answer and on the witness stand, concerning the alleged oral and written offers of reinstatement, and the hearsay nature of the report that a call had been made, I cannot credit him with respect to any of the alleged offers of reinstatement. Accordingly, I find that Respondent made no valid offer of reinstatement to Pinkowski (until the final day of this hearing)." C. Seasons Beyond 1982 As noted, the job from which Pinkowski was dis- charged was seasonal . He was discharged during the 1981 season . Absent that discharge, would he have been reemployed in 1982?7 1983? 1984? Testimony of both Teresa Pinkowski Fritschi and Guido establishes that at least some of Respondent's tour guides work two or more seasons. There is nothing in this record to sustain Respondent's burden of establishing that Pinkowski would not have sought reemployment and been reemployed each year after 1981 (at least until he graduated from college and embarked on his full-time working career). No such conclusion is warranted from the employment he had during the summer of 1982. Pin- kowski was never offered reinstatement for the 1982 season; by failing to offer him such employment, Re- spondent made it impossible for a trier of fact to deter- mine whether Pinkowski would have returned to Re- spondent in 1982 . Even assuming that he would not have done so, nothing in this record establishes that a tour guide might not return to Respondent 's employ after 6 On 18 June 1985, on the record, Respondent offered Pinkowski rein- statement as a tour guide Pinkowski was given I week to respond, the record does not show his response The General Counsel seeks no backpay for the 1982 season as Pin- kowski earned more from his interim employment than he would have earned from Respondent skipping one season . Pinkowski made extensive efforts to find summer employment in 1983 ; it is probable that he would have accepted a job offer from Respondent if one had been forthcoming . I therefore conclude that Re- spondent has not sustained its burden of establishing that Pinkowski would not have worked for it during the 1983 season even if he had not been discharged in 1981. Pinkowski graduated from college in May 1984. He embarked on his chosen full-time career in late August of that same year. Respondent argues that Pinkowski would not have sought tour guide work from it between grad- uation and the start of his career. This assertion is based on mere speculation . Indeed, the only credible evidence, that offered by Pinkowski, establishes that Pinkowski sought interim employment for this period . I cannot assume that he would not have accepted a job from Re- spondent had one been offered. The burden is on Re- spondent and has not been met. Accordingly, I must conclude that Pinkowski is enti- tled to backpay for the summer seasons of 1983 and 1984, as alleged in the amended backpay specification. D. Pinkowski's Efforts to Mitigate His Losses A discriminatee bears the obligation of making reason- able efforts to secure interim employment . However, it is the respondent's burden to prove that he failed to do so. Respondent contended at hearing that Pinkowski failed to adequately seek other employment ; it has not sus- tained its burden of proof. Pinkowski was discharged in midsummer 1981. The records of his work search efforts, as supported by his testimony, establish that he began seeking other jobs shortly after that discharge . He applied for at least five different jobs during the month of August 1981. That effort was not unreasonable, particularly as he was seek- ing summer employment when the summer was more than half over, in a job market which even Respondent's counsel acknowledged suffered from high unemploy- ment. Pinkowski continued to seek employment through the fall of 1981 and finally secured employment at Griffiss Air Force Base. He held that employment until about January 1983. Pinkowski diligently attempted to find a job for the summer of 1983. His work search record, corroborated by both his testimony and some rejection letters, reveals at least 20 applications made, to a wide range of employ- ers, from March through May." He accepted employ- ment, selling securities on commission, with First Inves- tors Corporation in June . Though he persevered through the season, his earnings never exceeded the $210 he ex- pended for licenses and training. He also sought addition- al part-time work during that summer, without success. He had no interim earnings for the second and third quarters 1983. His choice of a job for those quarters may not been the wisest he could have made, but it was not so unreasonable to warrant denial of backpay, particular- 8 I deem it irrelevant that some of these employers may have consid- ered his application as being for permanent rather than summer employ- ment 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly in light of the extensive unsuccessful job search which preceded it and his continuing effort to secure other em- ployment while remaining on that job. From the time of his graduation on 21 May 1984 until he began his career employment with IBM in August, Pinkowski sought both permanent and interim employ- ment. He registered with the student employment service at his school and applied for work with a brokerage firm and as a bartender and salesclerk. Though unsuccessful, his efforts were not unreasonable and overcome Re- spondent's naked assertion that Pinkowski engaged in no active or significant efforts to find alternative employ- ment. He denied that he took any vacation time between his graduation and the start of his employment with IBM. Pinkowski impressed me as a diligent and credible young man; I will not infer that he willingly suffered un- employment merely because his search for employment was unsuccessful or because other young people graduat- ing college may take vacations before entering the per- manent work arena. E. Does the Specification Exaggerate Pinkowski's Tips Tips are an important aspect of the earnings of Re- spondent's tour guides. When hired, those guides are told that they can expect to earn tips and that their tips should improve as they become more proficient. Indeed, it is unlikely that Respondent would have been able to hire the quality of young person it sought if they could not expect to make substantially more than the $3.35 per hour which Respondent paid. The General Counsel seeks backpay for Pinkowski at the rate of $6.79 per hour, calculated on the basis of $3.35 per hour in wages plus $3.44 per hour in tips. The tip rate is based on a record which Pinkowski maintained in a daily calendar from 25 May through 26 June 1981. It was not kept thereafter, according to Pinkowski , because he misplaced the record book about 26 June and did not recover it until after his discharge. Recorded in the book is a brief description of each day's activities, beginning with his training and routing tours on 25 through 27 May, and continuing with the nature of the tours, number of people taken, tips received, and days off, for each day thereafter. The tips range from a low of $4 for a two-person "Adventure" tour on the evening of 25 June to $64 for a "Secrets of Niagara" VIP tour on 26 June. The hourly average tip rate reflected by this log, $3.44 per hour, is essentially corroborated by Teresa Fritschi. She testified that tips amount to about one-half of a guide's earnings. She also testified that, with some experience, a guide should receive tips of $1 to $5 per tourist. Respondent essentially argues that Pinkowski could not have earned the tips he claims, that its tour guides, particularly new ones, do not receive such substantial gratuities. Guido, testifying on the basis of his general knowledge of the business and on his conversation with several employees in a social setting immediately prior to hearing, but without direct observation of the tip earn- ings of his employees, suggested that a new guide would not earn more than $1 or $2 per couple or family group in a tour. More experienced guides, those who had learned the ropes, he estimated, might receive $2 or $3 per party. A tip for six foreign tourists totaling $25, such as was claimed by Pinkowski for his first tour, averaging over $4 per person, would have been "spectacular." Re- spondent adduced no other evidence on the tip rate and made no effort to show that Pinkowski's daily record book was inaccurate in any other particulars (such as the nature or number of the tours shown on any given date) such as might indicate that the record was fabricated.9 I am satisfied that Pinkowski's tip record provides the most reliable and accurate method for determining his average hourly tip rate. The log appears on its face and by its nature to be genuine; if it were contrived, there would have been no reason for Pinkowski to stop re- cording the tips and trips as of 26 June when his employ- ment continued for another month. Moreover, Pinkow- ski's explanation of the loss of the book, and his testimo- ny, generally, had a ring of truth to it, warranting that it be credited. Guido's opinion that such tips were improb- able, and his speculations about what guides earned in tips are not sufficient to counter the probative record which Pinkowski kept. Moreover, to the extent that there is uncertainty in the amount of tips which Pin- kowski would have earned, that uncertainty must be re- solved in favor of Pinkowski, the discriminatee, rather than Respondent, the wrongdoer. Sioux Falls Stock Yards Co., 236 NLRB 543, 551 (1978), and cases cited therein at fn. 49. I therefore find that the General Counsel properly cal- culated Pinkowski's loss at the rate of $3.35 per hour (wages) plus $3.44 per hour (tips) totaling $6.79 per hour. Conclusions Based on all of the foregoing, I find and conclude that Michael Pinkowski suffered backpay losses in the follow- ing amounts as a result of Respondent's unlawful termi- nation of him on 21 July 1981: 1981, Quarter 3 $ 956.84 1982, Quarter 2 2.30 1982, Quarter 3 2.30 1983, Quarter 2 709.56 1983, Quarter 3 1496.56 1984, Quarter 2 865.31 1984, Quarter 3 90.41 Total net backpay $5,020.68 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed1O 9 Respondent alluded to a form posted by Respondent for guides to declare their tip earnings for tax purposes. Guido "didn't think" that Ptn- kowski had recorded any tips on this form but had never examined either the form or the payroll records to determine if Pmkowski or any other guides had made any record of their tips Respondent did not offer any of these forms or any other payroll records to establish what other guides claimed by way of tips 10 If no exceptions are filed as provided by 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 NIAGARA FALLS SIGHTSEEING 39 ORDER The Respondent, Niagara Falls Sightseeing by Sheri- dan, Inc., North Tonawanda, New York, its officers, agents, successors, and assigns, shall make Michael A. Pinkowski whole by the payment to him of $5,020.68, as the net backpay due as a result of Respondent's unfair labor practice, plus interest as provided in Florida Steel Corp., 231 NLRB 6:51 (1977).