Seligman & Associates, Inc.

676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Seligman & Associates, Inc. and its Wholly Owned Division, Scott Management Company and Local 79, Service Employees International Union, AFL-CIO and David Younce. Cases 7- CA-13576, 7-CA-13752 (1-4), 7-CA-14086, and 7-CA-13948 July 29, 1988 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On December 14, 1984, the Board issued its Sup- plemental Decision and Order in this proceeding,1 requiring the Respondent, inter alia, to pay back- pay to unlawfully discharged discriminatees David and Susan Younce. On a petition for enforcement, the United States Court of Appeals for the Sixth Circuit denied enforcement in relevant part.2 The court found that the Younces had willfully failed to mitigate their losses because they "had deliberately refused to seek comparable and equivalent employ- ment opportunities [in their former work as apart- ment caretakers] and that such work was in fact available at all relevant times."3 In this regard, the court relied on uncontroverted evidence from the Respondent that apartment caretaker couple posi- tions comparable to the Younces' former employ- ment were available in the Detroit area monthly throughout the entire 6-1/2-year period covered by the backpay specification. Although the Younces had occasionally succeeded in obtaining other in- terim jobs while seeking a change in lifestyle, the court reasoned that a wrongdoing employer does not have to underwrite such activity indefinitely when comparable and equivalent job opportunities were so clearly available. Accordingly, the court remanded this proceed- ing to the Board for recomputation of the backpay award, taking into account the court's willful loss finding. The court left to the Board the determina- tion of "what would have been a reasonable time for the Younces to wait after rejecting the [invalid] offer of alternative employment made by Selig- man" on November 11, 1976.4 Subsequent to the ' 273 NLRB 1216. 2 NLRB Y. Seligman & Associates, 808 F.2d 1155 (6th Cir. 1986), cert. denied (Jan. 19, 1988). a Id. at 1165. 4 Id. at 1168. court's remand, both the General Counsel and the Respondent have filed statements of position. The Respondent has also filed a response to the General Counsel's statement. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Having accepted the court's remand, and having duly considered the parties' statements of position, we accept the court's opinion as the law of the case. Contrary to the General Counsel, we view the court's finding of willful loss of earnings as comprehensive of the entire postdischarge period rather than just the time from the Younces' Octo- ber 7, 1975 discharge until the spring of 1978, when they moved away from the Detroit, Michi- gan area of their former employment. It is clear from the court's opinion that the court was cogni- zant of evidence both that the Younces secured nu- merous interim jobs and that they made some in- quiries about caretaking jobs after moving from up- state Michigan to Wisconsin in the summer of 1980. Consequently, although the court is not ex- plicit on this point, we find that its decision to re- compute the Younces' backpay award limits us to determining that initial period in which it may have been reasonable for the Younces to explore alternatives to their former profession and after which no further backpay is appropriate in light of their failure to seek available caretaking jobs. The Respondent contends that the Younces are not entitled to any backpay because they have al- ready received the equivalent of 6 weeks' gross backpay by remaining in their apartment for 6 months after their unlawful discharge without paying rent. The General Counsel has made no specific alternative contention concerning the defi- nition of an initial reasonable period for the Younces to have refrained from seeking available caretaking positions. Under the particular circum- stances of this case, including the law of the case as decided by the court, we find merit in the Re- spondent's view that 6 weeks encompassed what- ever period the Younces could reasonably have al- lowed to pass before initiating a search for caretak- ing positions. Accordingly, we find that David and Susan Younce are not entitled to any further back- pay s 5 The Respondent remains obligated, however, to remedy its unlawful discharge of the Younces by making a valid offer of reinstatement. Its failure to do so may result in backpay liability beyond the period covered by the backpay specification of this ligitation. 290 NLRB No. 80 SELIGMAN & ASSOCIATES 677 ORDER tions Board modifies its previous order so that no On the basis of the opinion of the United States further backpay shall be due to discriminatees Court of Appeals for the Sixth Circuit and the David and Susan Younce for the period covered entire record in this case, the National Labor Rela- by the backpay specification.