Duroyd Manufacturing, Inc.

DUROYD MFG. 1 Duroyd Manufacturing, Inc. and Local 531, Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Cases 2-C.A-19172, 2-CA-19364, and 2-CA-19394 30 July 1987 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 12 March 1987 Administrative Law Judge Howard Edelman issued the attached decision. The Respondent and the General Counsel filed excep- tions and supporting briefs. 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Duroyd Manufacturing, Inc., Mt. Vernon, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I In adopting the judge's recommendation not to provide backpay to discriminatee Anthony Baker for the time period from 1 February 1984 to 28 February 1986, we agree with the judge, based on all the evidence, that Baker, on moving to Ohio, removed himself from the job market. Accordingly, we find it unnecessary to pass on the judges alternative ra- tionale that Baker incurred a willful loss of earnings by relocating to an area where the job prospects were significantly worse than in the New York City area. 8 We shall correct the judge's inadvertent arithmetic error in calculat- ing Baker's backpay. The correct figure for Baker's net backpay is $15,503.50 Polly Chill; Esq., for the General Counsel. Robert M..Ziskin, Esq., for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on July 24 and September 16, 1986, in New York, New York„ On September 19, 1985, the National Labor Relations Board issued its Decision and Order in the underlying, proceeding.' The decision ordered Duroyd Manufactur- ing, Inc. (Respondent) to reinstate and make whole em- ployees Anthony Baker and Walter Walag for the loss of ' 276 NLRB 144 (1985) wages suffered as the result of their unlawful discharge by Respondent. On February 21, 1986, the United States Court of Appeals for the Second Circuit issued a judg- ment enforcing the Board's Order. On May 30, 1986, a controversy having arisen over the amount of backpay due the above employees under the Board's Order as enforced, the Regional Director for Region 2 issued the instant backpay specification and notice of hearing. On August 27 the Region issued an amended specifica- tion setting forth certain additional interim earnings of the employees. The parties stipulated the amounts of gross backpay to Baker to be $307 a week from his discharge on Decem- ber 10, 1982, to February 28, 1986, and to Walag to be $312 per week from his discharge on October 27, 1982, to December 31, 1984, and $325 per week from January 1, 1985, until the present. A. Anthony Baker Respondent disputes Baker's backpay claim. Baker's credible and uncontradicted testimony estab- lished that sometime on or about January 1983 he ob- tained employment at Metropolis Metal Spinning in the Bronx. He worked at this job for about 8 weeks. He was thereafter laid off. During this period he earned $919. Following his layoff he filed for unemployment insur- ance. He began collecting unemployment insurance in April 1983 but as a condition to receiving such benefits he was required to seek work and to list those places each week at which he sought work. Baker testified he could not recall most of the employers with whom he sought work. He did recall seeking work at "Crump," a factory in Mount Vernon, and another factory where they made brooms and mops, also in Mount Vernon. Sometime between September and December 1983, he obtained employment as a janitor at a factory that made sweaters in the Bronx. He could not recall the name of this factory but testified that he worked there for about 2 weeks earning about $124 when he was laid off. During the same period he took odd jobs at an employment office, at a factory in the garment center, and as a dish- washer in a restaurant earning a total of about $397. He was unable to recall the names of these places where he worked. Baker had no record to substantiate these em- ployment claims. Respondent contends that Baker failed to make a rea- sonable search for work during the backpay period. A discriminatee is required to make a reasonable search for work in order to mitigate loss of income and the amount of backpay. Lizdale Knitting Mills, 232 NLRB 592, 599 (1977). The Board and the courts hold, however, that in seeking to mitigate loss of income a backpay claimant is "held . . . only to reasonable exertions in this regard not the highest standard of diligence. . . . The principle of mitigation of damages does not require success, it only requires an honest good faith effort." NLRB x Arduini Mfg. Co., 394 F.2d 420, 422-423 (1st Cir. 1968); NLRB v. Madison Courier, 472 F.2d 1307 (D.C. Cir. 1972). The Board and the courts also hold that the ,burden of proof is on the employer to show that the employee claimant 285 NLRB No. 1 f 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD failed to make such reasonable search NLRB v Midwest Hanger Co 550 F 2d 1101 (8th Cir 1977), or that he willfully incurred losses of income or was otherwise un available for work during the backpay period NLRB v Pugh & Bass Inc, 231 F 2d 588 (4th Cir 1956) NLRB v Miami Coca Cola Bottling Co 360 F 2d 569 (5th Cir 1966) Moreover, in applying these standards all doubts should be resolved in favor of the claimant rather than the respondent wrongdoer United Aircraft Corp 204 NLRB 1068 (1973) Baker was unable to recall most of the names of com panies where he applied for work or the names of some of the companies where he obtained short term employ ment and in some cases the exact wages he received from these miscellaneous jobs I attribute such inability to the fact that this search for work took place about 3 years ago and that he was probably paid in cash off the books at most of these short term jobs The Board has repeatedly held that it is not unusual or suspicious that claimants cannot remember the names of employers or employer representatives to whom they spoke, or the times they visited such prospective employers Amsher Associates, 234 NLRB 791, 792 at fn 7 (1978) United Air craft Corp, 204 NLRB 1068 (1973) Lizdale Knitting Mills, 232 NLRB 592, 599 (1977), Neely s Car Clinic 255 NLRB 1420 (1981) Accordingly I conclude that for the period of January 1, 1983 through January 31, 1984 Respondent was unable to establish that Baker failed to make a good faith search for work I also conclude the interim earnings re ported and set forth in the specification for such period were accurate Respondent did establish on cross examination that sometime during the last 2 weeks in December 1982 Baker answered the telephone and typed some letters for a woman whose name he could not remember who was running a business out of her home He also was unable to recall how much money he received for this 2 week period This employment was not listed in his interim earnings There is insufficient evidence for me to con elude such omission was a fraudulent concealment The job was a short term job obviously not a high paying one Undoubtedly payment was made off the books in cash In view of his other efforts to obtain work and his reported interim earnings, and the remoteness in time of this job I conclude his failure to recall this job was mad vertent Cf American Navigation Co 268 NLRB 426 (1983) However, he did receive some payment during this 2 week period and as there is no evidence to estab lish even an estimated amount, and since the backpay period starts December 10 1982, I shall disallow back pay for this quarter The credible testimony of Baker establishes that in the beginning of February 1984, he went to Stubensville Ohio to visit his parents This visit lasted about a month During this period of time he did not look for work He returned to New York and did not look for work but rather prepared to move to Stubensville permanently His father was dying of cancer and he was returning to care for his invalid mother In April 1984 Baker returned to Stubensville where he resides to date In connection with his decision to return to Stubensville, Baker testified that Well, my dad asked me to come back to take care of my mother That s why I went back to stay I was going there to stay job or no job My mother is 76 and an invalid and I was going to stay regard less of a job That Baker intended to reside in Stubensville permanent ly is further evidenced by his waiver of reinstatement signed on February 28 1986 which tolled his backpay Moreover Baker admitted that at the time of his move and continuing to date Stubensville is a steel industry city that suffers severe unemployment Baker candidly acknowledged that there were no jobs to be had in Stu bensville ° I conclude that from February 1 1984 until February 28, 1986 when he was offered reinstatement by Re spondent and waived such offer, Baker is not entitled to backpay By permanently moving to Stubensville he re moved himself from the job market In any event he in curred a willful loss by relocating to an area where the job prospects were significantly less than in the New York City area Midwest Hanger Co 221 NLRB 911 921 (1975), Knickerbocker Plastic Co 132 NLRB 1209, 1216 (1961) B Walter Walag Respondent contends that from the period when Walag was terminated, on October 29, 1982 until his re instatement on June 4 1984, he did not search for work Walag credibly testified that following his discharge until his reinstatement on June 4 1984, he made numer ous attempts to obtain employment He was unable to re member most of the names of the companies he contact ed or the dates when contacted but credibly testified that he answered many newspaper ads and made fre quent periodic contacts with Local 531, International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America the collective bargaining repre sentative of Respondents employees in an attempt to obtain job leads Walag s reports of work seeking activi ties submitted to the New York State Department of Labor for the period of November 1982 through June 1983 generally support this testimony Although at one point in his testimony he testified during cross examina tion that his search for work was limited to those places set forth in his New York State Department of Labor re ports a full review of his direct and cross examination establishes that during the entire period of his unemploy ment he made numerous attempts to find work but the only specific places he could recall were those places set forth in the above reports As set forth above it is not unusual or suspicious that a claimant cannot remember the names of employers they contacted or the dates of such contact Amsher Associates United Aircraft Corp Linzdale Knitting Mills Neely s Car Clinic supra The facts establish that Walag s search for work was not particularly fruitful In this respect during Walag s period of unemployment until his reinstatement on June 4 1984, he was only able to earn $215 as interim earn DUROYD MFG 3 ings However an employees success is not the measure of a discrimmatee s search for work the Board requires only a good faith effort NLRB v Cashman Auto Co 223 F 2d 832 836 (1st Cir 1955) Respondent established that Local 532 does not oper ate a hiring hall and contends that Walag s contacts with Local 531 cannot be considered as part of his search for work I do not agree Notwithstanding that the Local does not run a hiring hall I find it reasonable to con elude that a contact with the Local would be a logical contact as part of a search for work Although not oper ating a hiring hall the Local might well know of job op portunities in the area and be willing to suggest them to Walag even though he was not a member of Local 531 I conclude that during the period October 29 1982 to June 4 1984 when Walag was reinstated he did make a good faith search for work In any event Respondent has in my opinion failed to establish its burden of show ing that Walag did not make such good faith search for work NLRB v Midwest Hanger Co supra I further conclude the interim earnings set forth in the amended specification for Walag for this period are accurate On October 29 1982 when Walag was discharged he was employed by Respondent as a lathe operator on the day shift At this time he was earning $240 per week plus an average of $72 per week overtime pay for a total weekly wage of $312 On June 4 1984 Walag was reinstated to the night shift and given the job of cutting down gun barrels He earned a salary of $276 per week and was assigned no overtime during this shift He was assigned to work the day shift on November 15 1985 as a lathe operator at the same rate of pay he would have earned had he not been unlawfully discharged but was assigned no over time Respondents president John Pimentel testified that Walag was not reinstated to his prior job as a lathe oper ator on the day shift because there was no work avail able for a qualified lathe operator However Respondent produced no documentary evidence i e payroll records to support such assertion Under these circumstances I do not credit Pimentel s testimony The law is well set tied that reinstatement requires the employee be returned to his former or substantially equivalent position of em ployment on the same shift and at the same rate of pay including overtime he would have received had he not been unlawfully discharged US Mineral Products Co 276 NLRB 140 (1985) I therefore conclude that Respondent failed to rein state Walag on June 4 1984 to his former or substantial ly equivalent position of employment as required Pimentel testified that Walag was assigned no overtime work during his tenure on the night shift and thereafter on the day shift because there was no overtime work available for him However at another point Pimentel testified that Walag was not assigned overtime because he never requested it as did other employees At still an other point Pimentel testified that Walag was not as signed overtime because on one occasion on September 24 1984 during his tenure on the night shift he failed to meet required production standards Production records establish that for a 3 month period (April 13 through July 19 1985) Walag was the only em ployee of eight employees in his department project not to be assigned regular overtime These records further establish that for the same period Walag was virtually the only production employee regularly employed by Respondent on the day and night shifts who was not regularly assigned overtime In view of Pimentel s shifting explanations for not as signing Walag overtime work since his reinstatement and the production records that establish overtime work was available to all employees but Walag I conclude Re spondent s failure to assign him such overtime work was intentional and willful I therefore conclude that by reinstating Walag to a position on the night shift and thereafter by failing to assign to him available overtime work to date Respond ent failed to reinstate Walag and make him whole for the period of June 4 1984 until November 15 1985 as set forth in the specification CONCLUSIONS AND RECOMMENDED ORDER BACKPAY-ANTHONY BAKER Period Gross Interim Net Backpay Earnings Backpay Backpay-Anthony Baker 1982 4th Qtr $921 00 0 1983 1st Qtr 399100 $919 $307200 2d Qtr 399100 0 399100 3d Qtr 399100 0 399100 4th Qtr 399100 521 347000 1984 1st Qtr (4 1/2 wks) 1 381 50 402 979 50 Total Net Backpay $1151250 Backpay-Walter Walag 1982 4th Qtr $2 808 $215 $2 593 1983 1st Qtr 4 056 0 4 056 2d Qtr 4 056 0 4 056 3d Qtr 4 056 0 4 056 4th Qtr 4 056 0 4 056 1984 1st Qtr 4 056 0 4 056 2d Qtr 4 056 1 104 2 952 3d Qtr 4 056 3 219 837 4th Qtr 4 056 3 091 965 1985 1st Qtr 4 225 3 493 732 2d Qtr 4 225 3 567 658 3d Qtr 4 225 3 329 896 4th Qtr 4 225 3 250 975 Ea ings of repo ted Plu nterest 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Period Gross Interim Net If this Order is enforced by a judgment of a United States court of appeals the words in the notice readin Backpay Earnings Backpay , g " d O d f h N i l l 1986 r Poste by er o t e ona Labor Re at ations Board" shall read "Posted Pursuant to a Judgment of the 1st Qtr 4,225 3,250 975 United States Court of Appeals Enforcing an Order of 2d Qtr 4,225 3,250 975 the National Labor Relations Board."2 _ 3d Qtr (through 8/24/86) 2,600 2,000 600 ORDER Total Net The Respondent, Duroyd Manufacturing, Inc , Mt Backpay $33,438 Vernon, New York, its officers, agents, successors, and assigns, shall Total Net Backpay = $33,438 plus such additional back- pay that Walag would have received from August 24, 1986, until Respondent assigns him overtime in a nondis- criminatory manner , plus interest Respondent shall be required to make available to Region 2, all books and records necessary to determine such appropriate additional, backpay due On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 I Pay to Anthony Baker $11,512.50, together with in- terest as set forth in Isis Plumbing Co, 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). 2 Pay to Walter Walag $33,438 plus such additional backpay that Walag would have received from August 24, 1986, until Respondent assigns him overtime in a non- discriminatory manner plus interest. t If no exception are filed as provided by Sec 102 46 of the Board's Rule, and Regulation, 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