Twistex, Inc.

46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Twistex, Inc and National Association of Govern ment Employees (SEIU/AFL-CIO) Case 1- CA-23472 September 28 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 15, 1988 Administrative Law Judge Michael 0 Miller issued the attached supplemental decision The General Counsel and the Respondent filed exceptions 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 supplemental deci sion and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings 1 and conclusions and to adopt the recom mended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Twister Inc, South Grafton, Massachusetts, its officers agents successors and assigns shall pay as net backpay to Tina Potter the sum of $3508 and to Sandra A Poulin the sum of $5294 with interest less tax withholdings required by Federal or state law We agree with the judge that discnmmatee Tina Potter is entitled to backpay for the fourth quarter of 1985 through the third quarter of 1986 In doing so we note that the judge incorrectly stated that Potter could not recall whether she applied for work from April through August 1986 The record reveals however that although she could not recall the specific details of her job search for that period Potter testified that she continued her job search until she began casual employment at the doe tor s office in September 1986 The judge found that the Respondent sustained its burden of proving Potter incurred a willful loss of earnings commencing in October 1986 In her exceptions the General Counsel claims that Potter did not cease looking for work after September 1986 but rather that she applied for positions with two different employers in late 1986 and early 1987 Con trary to the General Counsels position although Potter originally cited those dates shortly thereafter she corrected her testimony and testified that those particular job contacts had been made in January 1986 SUPPLEMENTAL DECISION MICHAEL 0 MILLER Administrative Law Judge I heard this matter on January 13 1988 in Boston Massa chusetts pursuant to a backpay specification and notice of hearing issued by the Regional Director for Region 1 of the National Labor Relations Board on October 30 1987 and an answer filed by Twistex Inc (Respondent) on November 7 1987 as those documents were amended at hearing The General Counsel and Respondent have filed briefs which have been carefully considered along with the testimony and my observations of the witnesses and their demeanor and the exhibits I BACKGROUND Tina Potter and Sandra Poulin were employees of Twistex working part time on flexible schedules until they were laid off on October 11 1985 and not recalled thereafter The Board affirming the rulings findings and conclusions of Administrative Law Judge Richard Beddow held that they had been laid off and thereafter denied recall in violation of Section 8(a)(3) and (1) of the Act because they had engaged in union and other pro tected concerted activities It ordered that they be of fered reinstatement to their former or substantially equiv alent part time positions and be made whole for the losses incurred as a result of the discrimination against them with interest 1 Respondent offered Potter and Poulin unconditional reinstatement on May 7 1987 which they declined A dispute having arisen over the amount of backpay due them this backpay specification issued and the matter came to a hearing before me II THE ISSUE The sole issue in this matter is whether Tina Potter and Sandra Poulin made adequate and reasonable searches for interim employment and thereby met their obligations to mitigate backpay losses during the period between their discharges and Respondents offer of rein statement 2 III INTERIM EMPLOYMENT AND JOB SEARCHES A Tina Potter Tina Potter is a high school graduate living with her parents in a small town (Northbridge Massachusetts) That community offered no public transportation and until sometime after the end of the backpay period she had no car of her own When employed by Respondent she commuted to work with the other discriminatee Sandra Poulin Within about a mile of her home were between 5 and 10 possible employers In the period immediately after her layoff Potter un successfully applied for work with other knitting mills Scotts Stanley and Felter Co She secured employment with Hospital Data a company located in the same building as Respondent and worked there from Novem ber until late December 1985 She lost that job when Re spondent in a separate unfair labor practice caused Hos pital Data to terminate her In January and/or February 1986 she made applications to work at The Bag Outlet and Polyfoam both located in a complex of stores and businesses within a mile of her home She also applied for work together with Poulin at Standard Yarn in 1 283 NLRB 660 (1987) 2 At hearing the General Counsel amended the specification to correct the interim earnings and to conform the wage rates to those specified by Respondent in its answer Respondent amended its answer to delete all affirmative defenses other than its contention that the discnmmatees had failed to diligently seek interim employment to mitigate backpay 291 NLRB No 8 TWISTEX INC Worcester Massachusetts In March 1986 she sought work from Respondent and around that time applied at the Beaumont Nursing Home which was similarly close to where she lived It was her recollection that she had filed an application with the nursing home 3 They did not call her Potter had no recollection of where or whether she might have applied for work in April June July and August 1986 In May she again sought recall by Twistex as she had done on perhaps four or five occasions during 1986 In September 1986 Potter began to work on a casual basis as a doctor s receptionist in the same office where her mother worked She had no set hours and was paid about $5 per hour She continued this arrangement through April 1987 working in some months and not in others earning a total of about $500 4 It appears that Potter did not seek other employment between Septem ber 1986 and May 1987 when Respondents offer of rein statement brought the backpay period to a close Throughout the backpay period local and area news papers carried help wanted advertisements Although Potter claimed to have checked the help wanted ads about twice a month during 1986 and about once a month in 1987 she did not follow up on any of those ads Most if not all would have required that she have transportation Although the Beaumont Nursing Home advertised weekend work for high school students in late July 1986 Potter s alleged application to Beaumont was not filed in response to any such ad but only because it was close to home Potter registered with the State Un employment Office but received no job referrals from that agency She was unfamiliar with and did not seek work from any private employment agencies B Sandra Poulin Like Potter Poulin worked part time mornings when she was discriminatorily laid off The schedule suited her needs because she had two children to get off to school and wanted to be home for them when they returned in midafternoon On her layoff she registered with the state unemployment office However no job opportunities were referred to her Between her layoff and the end of 1985 she applied for work at Energy Concepts Tull Products and Mr Christmas Respondent continued to advertise for em ployees after the layoff and she repeatedly sought recall by Respondent In January 1986 she took a full time job at Standard Yarn she quit after 2 days Although it was a knitting mill like Respondent the yarn was different and the work and the hours were too much for Poulin In that same month she also applied for work at Crown Uni form Within a few days of leaving Standard Yarn she began full time employment at David Clark in Worces s Respondents motion to reopen the record put into question her ap plication at the Beaumont Nursing Home * Because of the sporadic nature of this employment the absence of any records and thus the necessity to approximate her earnings the com pliance officer chose to include all of this income as having been earned in the first quarter of 1987 47 ter doing fine assembly work with a microscope She kept that job for about 3 1/2 weeks earning $300 and left because the hours were too long and because she was going to be terminated After leaving David Clark she applied for work at Millbrook Distributors Stanley Woolens Bernat Yarn TBV Valve Buck Brothers and allegedly Robinson Thread 5 Like Potter she continued to seek recall by Respondent She moved in with her mother in March and became divorced in July From April through August 1986 Poulin claims to have checked newspaper advertisements for jobs and made applications without success After August she concentrated on seeking part time work because of her children In September 1986 Poulin began to work for Coyne Industries a uniform supplier She quit after 3 days be cause the work aggravated a back condition scoliosis Thereafter she continued to seek jobs with flexible hours In November she remarried taking on additional child rearing responsibilities with four stepchildren in cluding one with a handicap In January 1987 she worked for 1 week at a nursing home Park Hill Manor but quit because of her unhappi ness at the working conditions the lifting required and time conflicts with her child rearing responsibilities Thereafter in January and February she attempted to enter a CETA training program and made application to Worcester Knitting Mills Come Play Products and al legedly again at Robinson Thread She also sought housekeeping work and applied at another nursing home She could not recall the name of the nursing home but described its location Vale Street In April 1987 she ap plied at Parker Metal Edmonton Thread ABC Valve and Package Steel buildings IV DISCUSSION AND ANALYSIS A Respondents Motion to Reopen the Record On March 2 1988 counsel for Respondent filed a motion to reopen the record and take further evidence 6 Respondent asserted that it could adduce evidence from the director of personnel at Robinson Thread to the effect that Sandra Poulin did not apply for work with that company in 1986 or 1987 and that the personnel manager and others at Beaumont Nursing Home had no record of Tina Potter making application for work in 1986 or 1987 Both employers it was alleged were seek ing help at those times Respondent further asserted in items three through six of its motion that the business complex located within 1 mile of Potter s home housed six employers at least two of which had advertised for help on one or more occasions in 1986 while others also sought help continually Respondent asserted that all of the above was first brought to its attention by the tes timony of the discriminatees at the hearing 5 Respondents motion to reopen the record questioned whether she had applied at Robinson Thread B At the end of the hearing I had closed the record subject to a motion to reopen in the event that disclosures at the hearing gave rise to relevant and material evidence Respondent s motion is made a part of the record 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel opposed Respondents motion Inasmuch as Potter and Poulin had made applications by phone or door to door appearances as well as by filing formal applications the absence of an application on file with a particular employer would not be probative of whether they had actually applied the General Counsel contended Even if Respondents new evidence estab lished that each of the discriminatees had not made one of the applications she had claimed it was argued such evidence would at best establish a mistake in recollection that would not substantially impact on her credibility Fi nally with respect to the assertions regarding jobs avail able near Potter s home the General Counsel argued that such evidence was available before the heanng Based on my review of the record and the arguments of counsel I must conclude that no valid purpose would be served by reopening the hearing Potter testified (Tr 30) that she submitted a written application to the Beau mont Nursing Home Poulin similarly testified that she made several applications to Robinson Thread without specifying if those were written or merely oral Even if the new witnesses would testify as Respondent suggests such testimony would have little impact on the record It might be as the General Counsel suggests that no records of their applications were retained it might be that the two discriminatees were mistaken concerning their alleged applications to these employers In either case there would be no evidence to contradict the re mainder of their testimony concerning their job searches 7 In like vein I must agree with the General Counsel concerning the evidence Respondent seeks to adduce concerning employers at the Coz Chemical Com plex allegedly located near Potter s home I note that Potter testified to applying at two of the six employers whom Respondent contends are located there More over Respondent could have adduced this evidence at the hearing in line with other evidence of available em ployment which it did adduce at that time Accordingly Respondents motion to reopen the record is denied B General Principles Pursuant to the Board s Order and relevant precedent the discriminatees are entitled to backpay for the wages lost by reason of Respondents discrimination less inter im earnings and any losses willfully incurred by a clear ly unjustifiable refusal to take new employment Willful loss is an affirmative defense the burden of proving which falls on the employer Rainbow Tours 280 NLRB 166 (1986) and cases cited Low earnings and lack of 7 Respondents reliance on NLRB v Elias Bros Big Boy 327 F 2d 421 (6th Cir 1964) and NLRB Y Otsego Ski Club-Hidden Valley 542 F 2d 18 (6th Cir 1976) in arguing that the discriminatees uncorroborated testi mony is insufficient to establish their efforts to secure work is misplaced In those initial unfair labor practice cases the burden of proof was on the General Counsel and the courts held that it was not reasonable for the administrative law judges to credit individual witnesses for the General Counsel whose uncorroborated testimony was contradicted by others In backpay cases the burden of proving that the discriminatees failed to make reasonable searches for interim employment rests on the respondent (Terpening Trucking Co 283 NLRB 444 (1987)) and cases cited therein and the evidence Respondent now seeks to offer would only arguably contradict the testimony of the discnmmatees success in securing interim employment do not of them selves sustain that burden Clear Pine Mouldings 268 NLRB 1044 1059 ( 1984) Neither does the fact that a discriminatee may have failed to seek interim employ ment in any given quarter the entire backpay period must be scrutinized to determine whether throughout that period there was in light of all circumstances a rea sonable continuing search such as to foreclose a finding of willful loss Cornwell Co 171 NLRB 342 343 (1968) The discriminatee is expected to make only reasonable exertions to secure interim employment and is not held to the highest standards of diligence Rainbow Tours supra The employees skills and qualifications [her] age and labor conditions of the area are factors to be consid ered Clear Pine supra Mastro Plastics Corp 136 NLRB 1342 1359 ( 1962) Similarly to be considered is a discriminatee s lack of transportation International Trail er Co 150 NLRB 1205 1220 (1965) A discriminatee is entitled to seek interim employment to a similar shift or with similar hours to the job from which she was discri minatonly discharged an interim job which will not ob ligate her to change her lifestyle or which will fail to ac commodate personal or family needs met by the onginal employment Waukegan North Chicago Transit Co 235 NLRB 802 fn 4 ( 1978) Richard W Kaase Co 162 NLRB 1320 1332 (1967) (employee Anna Lutch) An employee who accepts and then quits interim employ ment which is not substantially equivalent to that from which she was discriminatorily terminated is not deemed to have willfully sustained a loss of earnings American Mfg Co 167 NLRB 520 526 (1967) Moreover where there has been a passage of considerable time between the discharge and the backpay hearing it must be ex pected that the discriminatees may have difficulty recall ing the details of their job searches and their failure to recall those searches in detail will not sustain the em ployer s burden of proof Terpening Trucking supra Fi nally it is also well established that any uncertainty in the evidence is to be resolved against a respondent as wrongdoer Clear Pine Mouldings supra and cases cited C Application of Principles to the Facts In the instant case Potter and Poulin were discrimina tonly laid off not discharged Respondent continued to seek help after laying them off and they repeatedly sought to be recalled by Respondent Their efforts and Respondents job openings continued from their layoffs in October 1985 until at least May and June 1986 Thus whether the discrimination is deemed to have been of a continuing nature until June 1986 as contended by the General Counsel or not I find that both made reasona ble efforts to return to work as they would have expect ed to do in a layoff situation through June 1986 Moreover Tina Potter actively sought interim em ployment during this period She actually obtained em ployment shortly after her layoff with Hospital Data and lost that job only because of Respondent s additional unfair labor practice After losing that job she resumed her job search seeking employment at several local em ployers which she could reach without transportation TWISTEX INC and at others to which she might have been able to secure rides Most of the jobs advertised in the local press however would have required that she have a means of transportation or offered hours different than the job she held with Respondent She was not obligated to seek such substantially different employment Considering her job search efforts the work that she did obtain and her registration with the state unemploy ment office I am satisfied that Tina Potter exercised rea sonable diligence to secure interim employment from the time of her layoff until at least June 1986 Moreover while she could recall no details of her job search from June until August 1986 she did take employment albeit casual at a doctors office in September This consid ered together with her prior efforts is sufficient to estab lish that she made reasonable efforts to secure interim employment until that time despite the absence of specif is details and even if she failed to actively look for work in the third quarter of 1986 (Terpening supra Cornwell Co supra) Accordingly I conclude that Tina Potter is entitled to backpay through the end of the the third quarter of 1986 September 30 1986 However in September 1986 she began to work on a casual basis for about $5 per hour for a doctor in whose office her mother also worked Between September 1986 and May 1987 she worked only about 100 hours at the doctor s office working in some months and not at all in others and did not seek any other employment Clearly the limited nature of her employment with the doctor left her sufficient time to seek other employment and I find that it was not reasonable for her to cease all efforts to secure more nearly comparable interim employment for this period of about 8 months Accordingly I find that Respondent has sustained its burden of proving Pot ter s willful loss of earnings from October 1986 until the offer of reinstatement in May 1987 and recommend that she be denied backpay for that period Sandra Poulin actively sought work from the time of her layoff until the end of December 1985 and accepted two jobs neither of which were comparable in hours or duties to the job from which she was laid off in early 1986 She left those jobs because of the differences be tween them and her former employment (and because she would have lost the second at David Clark involun tarily had she not quit) and continued her job search In September she again accepted noncomparable employ ment and quit when it aggravated a preexisting physical condition As noted above quitting such noncomparable employment and for such reasons as she gave is not deemed a willful loss of earnings American Mfg supra She resumed her job search and accepted another job in January 1987 Again the job was not comparable to her prior job with Respondent and for various legitimate reasons she quit She resumed her search for work which like Respondents would have accommodated her family responsibilities but was not successful 49 Considering all the above including the jobs which she accepted her registration with the state unemploy ment office her efforts to secure work that was compa rable in hours with that from which she was laid off and her background I am convinced that Sandra Poulin did not willfully fail to seek interim employment or to miti gate Respondents backpay liability Her efforts to find such interim employment throughout the backpay period while not maximal were reasonable D Conclusions Based on all the foregoing I find and conclude that the discriminatees suffered backpay losses in the follow ing amounts (as set forth more completely in the amend ed backpay specification) as a result of the Respondent s discriminatory layoffs of them on October 11 1985 Tina Potter 4th Quarter 1985 $ 538 1st Quarter 1986 990 2d Quarter 1986 990 3d Quarter 1986 990 Total Sandra A Poulin $3508 4th Quarter 1985 $ 505 1st Quarter 1986 8583 2d Quarter 1986 951 3d Quarter 1986 853 4th Quarter 1986 951 1st Quarter 1987 789 2d Quarter 1987 680 Total $5294 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed9 ORDER The Respondent Twistex Inc South Grafton Massa chusetts shall make Tina Potter whole by the payment to her of $3508 and shall make Sandra A Poulin whole by the payment to her of $5294 as the net backpay due them as a result of Respondents unfair labor practices plus interest as set forth in the remedy section of the Board s underlying decision 8 The parties stipulated that Poulin earned $300 from her employment with David Clark which was in the 1st quarter of 1986 The amended specification and the General Counsels beef show a like sum as having been earned in the 4th quarter of 1985 It is unclear whether the $300 thus shown as having been earned in the 4th quarter of 1985 was intend ed to represent those earnings from David Clark I have left her 4th Quarter 1985 earnings as shown in the amended specification and the brief unchanged and treated them as having been earned elsewhere 8 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