The Blue Note

THE BLUE NOTE Ben Susan Restaurant Corp. d/b/a The Blue Note and Mary Bruschini. Case 2-CA-22046 September 29, 1989 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On July 19, 1989, Administrative Law Judge Joel P. Biblowitz issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the Acting General Counsel filed a brief in support of the judge 's decision. 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, I and conclusions 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 , Ben Susan Restaurant Corp., d/b/a The Blue Note, New York, New York, its officers, agents, successors, and assigns, pay Mary Bruschini the sums set forth in the Order.2 I The Respondent asserts that the judge's resolutions of credibility, findings of fact, and conclusions of law are the result of bias . After a careful examination of the entire record we are satisfied that this allega- tion is without merit. There is no basis for finding that bias and partiality existed merely because the judge resolved important factual conflicts in favor of the General Counsel's witnesses As the Supreme Court stated in NLRB v Pittsburgh Steamship Co., 337 U S 656, 659 (1949), "[T]otal re- jection of an opposed view cannot of itself impugn the integrity or com- petence of a trier of fact " Furthermore, 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 For interest payments see New Horizons for the Retarded, 283 NLRB 1173 (1987). Rhonda Gottlieb, Esq. and James P. Paulsen, Esq., for the General Counsel. Allen Breslow, Esq. (Kaufman, Frank, Naness, Schneider & Rosensweig, P.C.), for the Respondent. SUPPLEMENTAL DECISION JOEL P. BIBLOWITz, Administrative Law Judge. This supplemental proceeding was initiated by the issuance of a backpay specification and notice of hearing dated De- cember 30, 1988. A timely answer was filed on behalf of Respondent and the matter was heard by me on May 11 and 19, 1989, in New York, New York. The total back- pay specified is $18,126 , plus interest. I. BACKGROUND 997 On September 30, 1986, Administrative Law Judge Arthur Herman issued a Decision and Order in The Blue Note (Respondent), in Case 2-CA-21389, finding that Respondent had unlawfully discharged five waitresses, including Mary Bruschini. No exceptions were taken to this Decision and on November 12, 1986, it was adopted by the Board. After the posting of the notice but prior to the issuance of the backpay specification relating to that multiple discharge, Respondent again fired Bruschini 1 on January 17, 1987.2 By Decision dated November 16, Ad- ministrative Law Judge D. Barry Morris found that Re- spondent's discharge of Bruschini on January 17 violated Section 8(a)(1) and (4) of the Act; he ordered reinstate- ment and backpay for Bruschini . The Board issued a De- cision and Order on March 8, 1988 (288 NLRB 16), af- firming Judge Morris' decision and the United States Court of Appeals for the Second Circuit, by order dated November 8, 1988, enforced the Board's Order. 11. THE FACTS The backpay period herein runs from January 17, the date of her second termination , to December 10, the date Respondent offered her reinstatement, and the weekly gross backpay alleged is $58 in wages and $337 in tips. Neither of these allegations is disputed. What is disputed is interim earnings of Bruschini ; the backpay specifica- tion, as amended at the hearing, alleges that her sole in- terim earnings was $44 earned in the third quarter of 1987. Respondent alleges that the true figure is substan- tially more. Respondent's principal positions are that Bruschini either did not adequately search for employ- ment during the backpay period or that she did not report earnings that she had during this period and that Bruschini's admitted earnings from performances of a musical group of which she is a part should have been deducted from the backpay demanded . General Coun- sel's position is that Bruschini adequately searched for in- terim employment and reported all such earnings, and that her earnings through her musical group do not con- stitute interim earnings because she previously engaged in this activity, as well, in her nonworking time, while employed by Respondent. During Bruschini's employment with Respondent be- tween March 1986 and January 17 she was employed as a waitress on Friday, Saturday, and Sunday evenings, from 6 p.m. to 2 a.m. During this period she was also a freelance musician and a member of two musical groups that performed in clubs in the New York City area. The dates3 that her groups performed , and the amount that she earned during this period, follows: Apr. 27, 1986 $25 June 27, 1986 25 I Four of the five discnmtnatees had accepted reinstatement in March 1986 By the time of her subsequent discharge, Bruschmi was the only one of the four remaining in Respondent's employ. 2 All dates refer to 1987 unless otherwise specified. 8 Five of these performances occurred on a Friday, Saturday, or Sunday, although it is not clear whether these performances were during the day or in the evening 296 NLRB No. 127 998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD July 16, 1986 30 Sept. 13, 1986 30 Sept. 14, 1986 30 Oct. 28, 1986 30 Oct. 30, 1986 40 Dec. 25, 1986 45 Dec. 31, 1986 125 Jan. 3, 1987 75 During the period between Bruschini 's discharge on January 17 and Respondent's offer of reinstatement on December 10, Bruschini and her group performed on the dates4 set forth below, together with the amount she earned: Jan. 21 $30 Mar. 29 0 June - 40 July - 0 Aug. 22 100 Sept. 24 0 Sept. 28 40 Nov. 11 40 Nov. 13 40 Dec. 10 0 Bruschini testified to her attempts to find interim em- ployment as a waitress between January 17 and Decem- ber 10. Immediately after her discharge, she told her friends who were waitresses and performers of her avail- ability, "and if there were any openings at their clubs to please keep me posted ." About that time, she learned that a restaurant, The China Club, was hiring ; she went there and filled out an application. During the job inter- view, she was asked why she left her employment with Respondent; she felt "a little uncomfortable" about saying that she was unlawfully fired, so she said that she had problems with the manager . She never got the job. She then informed a friend who was employed at two restaurants in Manhattan that she "needed work desper- ately" and to inform her if there were any openings. She was told that there were none, at the time. She then spoke to another friend with whom she had worked at Respondent; she was then the head waitress at Bradley's Restaurant. Bruschini told her that she was looking for work and to please advise her of any opening : she told Bruschini that she would keep her informed of any jobs that became available. Not having obtained employment by the end of January, she applied for, and received un- employment benefits , beginning in February and continu- ing until about July . During this period when she col- lected unemployment benefits, she reported every other week to pick up her benefits and reported on two occa- sions to the New York State Unemployment Service on March' 27 and June 2. On these occasions, after waiting 4 At least three of these performances (including March 29) occurred on a Friday, Saturday, or Sunday. Bruschini testified that although she could not remember the exact dates of the June and July performances, both were daytime performances that ended at 5 p in , at the latest, the August 22 engagement (a Sunday) was also an afternoon engagement that ended about 5 o'clock in Great Neck, New York . There is hourly train service from Great Neck to Penn Station in New York City, which takes 32 minutes. The only remaining weekend performance, November 13, a Friday, was an evening performance on line she was asked her job classification and she said "waitress"; she was told that there was not work avail- able in that category, her unemployment book was stamped and she left. Subsequently, Bruschini spoke to another friend whom she had once worked with; this woman was a promoter of musical events and private parties. Bruschini told her that she was available for work and was told that she would be notified if anything became available; she was never so notified . In about July, Bruschini again called her friend who was the head waitress at Bradley's, who told her that business was slow , at the time, but she might need somebody to cover a brunch shift . Several days later she did call Bruschini to cover a brunch shift in about early August . Bruschini worked two brunch shifts at Bradleys at that time , earning $15 pay and about $17 in tips on each of these two occasions. Bruschini next spoke again to a friend who had obtained employ- ment at a restaurant named Spaghetteria ; Bruschini told her that she was still looking for work and she said that there was no work available, but that Bruschini should come to the restaurant and talk to the manager. Brus- chini went to the restaurant and spoke to the manager, who took her name and telephone number, but never called her. In addition to looking for employment through friends, Bruschini read through the help wanted sections of the New York Times and the Village Voice once a week. She called a number of restaurants and clubs from these advertisements, but no job ever materialized from them. In addition, she visited two restaurants whose names she learned of through these advertisements . Both were un- acceptable: one required the waitresses to drink alcoholic beverages with, and socialize with, the male customers and the other requires the waitresses (actually bar maids) to wear very brief outfits. On the recommendation of a friend, she visited String Fellows Restaurant , but they wanted younger women as waitresses . She is 37 years old; all the waitresses she saw there were 20 or 21 years old. Bruschini testified that, overall, during this period she made 30 to 40 specific job inquiries. In his cross-examination of Bruschini , counsel for Re- spondent questioned her about how she could afford to survive in New York City on her meager interim earn- ings. She testified that she received in 1987 about $300 for musical engagements and $44 for the two brunch shifts at Bradley's. She testified that, at the time, her rent was only $269 monthly and she was used to living fru- gally. In addition, during 1987, she received $5230 from Respondent as the backpay settlement from the prior dis- charge and $4300 from unemployment. There was testimony regarding the Painted Desert Restaurant and alleged employment of, and offers of em- ployment to, Bruschini at the restaurant. John Thomas was the day manager of the Painted Desert in 1987 and became the night manager in 1988; he testified that he knew Bruschini from their employment with Respondent and in or about April, he called Bruschini and asked what she was doing; she said that she was performing. He asked her if she was looking for waitress work and she said that she would rather devote her time to per- THE BLUE NOTE 999 forming. Thomas told her that he had a waitress job for her; without asking where it was, or what shift, she said that she would rather stay in the entertainment field. Bruschini testified that she never spoke to Thomas be- tween January 17 ,5 until January 1988. Thomas was next questioned about Bruschini 's employment as a performer at the Painted Desert: Q. Do you recall seeing Mary Bruschini at the Painted Desert? A. Yes, I do. Q. In what capacity was she at the Painted Desert. A. As a performer. Q. When was she at the Painted Desert? A. Well, the records show that she worked any- where-exact dates I'm not quite sure . Between April of 1987, and up until late January of 1988. In answer to a subsequent question from me, he testi- fied that he never saw Bruschini performing at the Paint- ed Desert prior to December 30; his only knowledge of her performing there during that period is from the res- taurant's records. Robert Farley was one of the owners of the Painted Desert; it closed in or about early 1988. He testified that Bruschini worked as an entertainer at the Painted Desert. When asked whether Bruschini was employed there as an entertainer between April and November, he testified: Well, I'll tell you there-there was records in the restaurants that says that she did work there at that time. But, I was not present at the restaurant for most of the time . . . . there is evidence that she worked there, but she was paid in cash and by check, and it was not me that did that. Subsequently, in answer to a question from General Counsel, Farley testified that he has no personal knowl- edge of when Bruschini worked at the restaurant. Bruschini testified that her first day of employment at the Painted Desert was December 17 as an entertainer. Harris Simon was employed as a pianist at the Painted Desert between April 7 and October 16; he worked Tuesdays through Saturdays, from 8 p.m. until midnight. During this period, he did not see Bruschini working at the restaurant as an entertainer. In addition, after Octo- ber, as he lived only a few blocks from the restaurant, and was owed some money by it, he continued to go there and did not see Bruschini performing there until about January 1988. Ill. ANALYSIS When loss of employment is caused by a violation of the Act, the finding by the Board that an unfair labor 5 Thomas was the catalyst for Bruschim 's discharge on January 17. Briefly, he came into the club late that evening with seven friends After being served one round of drinks by Bruschmt, he was told that the kitchen was closed Shortly thereafter , at Thomas' request , somebody brought bagels and cream cheese from outside the club to his table This eventually resulted in Bruschini's discharge 6 He testified that the company is in bankruptcy and the landlord will not allow them into the building to get these, or any other records. practice was committed is presumptive proof that some backpay is owed. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175-176 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966). The General Counsel's burden for the back- pay proceeding is "to show the gross backpay due each claimant." Rutter-Rex Mfg. Co. v. NLRB, 473 F.2d 223, 230 (5th Cir. 1973), cert. denied 414 U.S. 822 (1973). Once the General Counsel has established gross backpay, the burden is on respondent to establish affirmative de- fenses that would mitigate its liability . NLRB v. Brown & Root, 311 F.2d 447, 454 (8th Cit. 1963). Respondent has the burden of establishing such matters as unavailability of jobs, willful loss of earnings and interim earnings to be deducted from the backpay award. NLRB v. Mooney Air- craft, 366 F.2d 809, 812-813 (5th Cir. 1966). When there are uncertainties or ambiguities , doubt should be re- solved in favor of the wronged party rather than the wrongdoer. United Aircraft Corp., 204 NLRB 1068 (1973). Respondent defends that Bruschini did not adequately search for interim employment, refused a job at the Painted Desert (as testified to by Thomas) and was em- ployed as an entertainer at the Painted Desert during the backpay period. Further, Respondent defends, at the least, Bruschini's entertainment earnings in 1987, that oc- cl..-red on Friday through Sunday should be deducted from any backpay liability. Respondents do not meet their burden of establishing unavailability for work or lack of diligence in searching for work by showing low interim earnings. Rather it is the Respondent's burden to affirmatively establish that the employee neglected to make reasonable efforts to find interim work. NLRB v. Coca Cola Bottling Co., 360 F.2d 569, 575 (5th Cir. 1966). In addition, a discriminatee is held only to reasonable exertions in this regard, not the highest standard of diligence and the mitigation of damages does not require success. It only requires an honest, good-faith effort. It is not enough for an employ- er to present evidence of low or no interim earnings; rather an employer must affirmatively demonstrate that the discriminatee neglected to make reasonable efforts to find interim employment. Westin Hotel, 267 NLRB 244 (1983), enfd. 758 F.2d 1126 (6th Cir. 1985). Smith Mfg. Co., 277 NLRB 680 ( 1985). Respondent has not sustained this burden. Bruschini was a credible witness who testi- fied to numerous calls to friends and restaurants and visits to restaurants and clubs to locate interim employ- ment. That she could not remember the names of all the restaurants she called or visited is not unusual since 2 years have passed. The evidence establishes that she made 30 to 40 inquiries, as well as calling a number of her friends, to locate work. Although Bruschini was only able to obtain two shifts as a waitress during this period, her attempts to locate interim employment clearly distin- guish this matter from Electrical Workers IBEW Local 3, 275 NLRB 990 (1985), cited by counsel for Respondent in his brief. Respondent's burden is not met by simply showing that the fruits of these attempts only resulted in $44 interim earnings. I therefore find that Respondent has failed to establish that Bruschini failed to make rea- sonable efforts to locate work. 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent also defends (solely through the testimony of Thomas) that Bruschini refused a job offer from him during the backpay period. As stated, supra, I found Bruschini to be a credible witness and she denies this as- sertion. After observing Thomas, I have little difficulty in crediting Bruschini's testimony over his and find that he never made such a job offer to Bruschini. Respondent also defends that Bruschini was employed as an entertainer at the Painted Desert during the back- pay period; Bruschini and Simon testified that her em- ployment there did not begin until the backpay period was over. I have little difficulty in crediting the testimo- ny of Bruschini and Simon over Farley and Thomas. Al- though they testified that Bruschini was employed at the Painted Desert as an entertainer during this period, nei- ther one actually saw her during this period; rather, they both allege that her employment is established by the company's books and records which nobody can obtain. This defense is therefore rejected. Finally, Respondent defends that Bruschini's 1987 en- tertainment earnings should be deducted from the back- pay due, when they were earned on a Friday, Saturday, or Sunday, the days she had previously been employed by Respondent. The law is clear that income earned by a discriminatee during the backpay period through em- ployment that preceded the backpay period is not gener- ally considered interim earnings to be deducted from the gross backpay. Cumberland Farms Dairy of New York, 266 NLRB 855 (1982); American Pacific Concrete Pipe Co., 290 NLRB 623 (1988). The reasoning is obvious: an employee who earned supplemental income at another job prior to his discriminatory discharge by his primary employer should not be discriminated against if he main- tains the second job after the discharge. In this instant matter, Bruschini was employed as a freelance musician both before and after her discharge on January 17 so, generally, her earnings from this profession would be considered supplemental income, not deducted from gross backpay. The only difficult issue in this regard is the engagement on November 13, a Friday evening. This was the only engagement that clearly conflicted with her work schedule while previously employed at Respond- ent. There are some cases that indicate that this $40 should be included as interim earnings: in Frank Mascali Construction, 289 NLRB 1155 fn. 3 (1988), the Board found that the General Counsel was correct in listing earnings from the discriminatee's supplemental income. as interim earnings only to the extent that, absent the discrimination, Curd's employment at Willets on particular days would have precluded employment with these employers. Other earnings from these employers were not listed as interim earnings, but as supplemental income not set off against gross back- pay, inasmuch as they were considered earnings from a second job that he also held prior to the unfair labor practice and that he continued to hold during the backpay period. In addition, in NLRB v. S .E. Nichols of Ohio, Inc., 704 F.2d 921, 924 (6th Cir. 1983), the court found Respond- ent's objections to the backpay award without merit: First, in calculating Moore's award, the Board took account of the fact that Moore had consistently worked two jobs while she was originally employed at Nichols. Accordingly, in deducting interim earn- ings from Moore's gross award, the Board consid- ered only those wages which were, in effect, substi- tutes for her wages at Nichols. The Board did not deduct "second job" earnings from Moore' s gross award. Nichol's argument to the contrary notwith- standing, we find this result eminently fair and rea- sonable. Although this might indicate that the $40 should be deducted from her gross backpay, other factors convince me that it is supplemental income from a job she previ- ously had, not to be deducted: during 1986 she per- formed on five occasions on Friday, Saturday, or Sunday (although it is not clear whether they were day or evening performances), and the fact that Bruschini testi- fied that while employed by Respondent it was a "common practice" to switch working shifts with the other waitresses. Therefore, theoretically, Bruschini could have traded her Friday, November 13 shift for a different day. I will therefore not count the $40 earned on November 13 as interim earnings to be deducted from gross backpay. On the basis of the foregoing and the entire record here, I issue the following recommended? ORDER The Respondent, Ben Susan Restaurant Corp., d/b/a The Blue Note, its officers, agents, successors, and as- signs, shall pay to Mary Bruschini the sum of $18,126 plus interest, to be computed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962), less tax withhold- ing as required by Federal and state laws. 7 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