Blue Hills Cemetery, Inc.

National Labor Relations Board - Board DecisionsFeb 14, 1979

240 N.L.R.B. 735 (N.L.R.B. 1979)

BLUE HILLS CEMETERY, INC. 735 Blue Hills Cemetery, Inc.; American Sales Corpora- tion; and G. M. Ridge Corporation and Elliott Jens Stennes. Case I-CA-I 1822 February 14, 1979 SUPPLEMENTAL DECISION AND ORDER BY MFMBERS JENKINS. Mt RPHY. AND TRL LSi)Al.[ On April 25. 1977, the National Labor Relations Board issued its Decision and Order in the above- entitled proceeding,' directing Respondent, inter alia, to make whole Elliott Jens Stennes for his losses re- sulting from unfair labor practices committed by Re- spondent in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. Thereaf- ter, the Board's Order was enforced by the United States Court of Appeals for the First Circuit.2 Pursuant to a backpay specification and appropri- ate notice issued by the Regional Director for Region 1, a hearing was held on June 9. 1978.3 before Ad- ministrative Law Judge Peter E. Donnelly for the purpose of determining the amount of backpay due the discriminatee. On October 20 the Administrative Law Judge is- sued the attached Supplemental Decision. Thereaf- ter, Respondent filed exceptions and a supporting brief. 4 and the General Counsel filed a brief in sup- port of the Administrative Law Judge's Supplemen- tal Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the excep- tions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent. Blue Hills Cemetery, Inc., Braintree, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. 229 NLRB 258 (1977) ! 567 F.2d 529 (19771 All dates hereinafter are 1978 unless otherwise indicated 4 Respondent's motions for rehearing (d nensi and for reopening Ihe rec ord are hereby denied as falling to state a sufflicent hbais for grantingll sch motions 240 NLRB No. 82 SUPPLEMENTAL DECISION STATIMFNT OF HFE CASE PElER E DONNELLY, Administrative Law Judge: This supplemental proceeding to determine the amount of back- pay due to Elliott Jens Stennes, whose employment was discriminatorily terminated by the Respondent, was heard before me on June 9, 1978, at Boston, Massachusetts, on the backpay specification of the General Counsel issued March 22. 1978, and the Respondent's answer filed April 19. 1978.1 Briefs have been duly filed by the General Coun- sel and Respondent, which have been duly considered. A. Facts At the backpay hearing the General Counsel introduced into evidence the backpay specification setting forth, inter alia, the gross amount of backpay due Stennes. Thereupon the General Counsel rested, and Respondent undertook to examine Stennes. Stennes testified to various places where he had sought. without success, employment throughout the backpay period. He testified concerning efforts to seek employment at gas stations, construction work, manufac- turing concerns, and restaurants. It appears that he sought work on a continuing basis at least three times a month, in addition to rechecking places where he had previously ap- plied, utilizing want ads in his effort to seek work. Stennes testified that he was available for work throughout the backpay period, sought work throughout the backpay pe- riod, and was unable to obtain work from the date of his discharge on May 18, 1976, until he was employed by Mike Seaver Construction some 2 weeks before the end of the backpay period on March 30, 1977. Stennes also testified that he maintained himself during the backpay period with the proceeds of an insurance poli- cy from the destruction of a boat he owned, a bequest from his father's will, and the sale of a watch and coin collec- tion.2 It is undisputed that Respondent made an offer of rein- statement which Stennes declined, having obtained em- ployment some 2 weeks previously, as noted above. B. Discuvsion and Analysis The sole issue in this case is whether or not Stennes made a reasonable effort to secure suitable employment during the backpay period. It is clear, as a matter of Board and court precedent, that Ihe Order of the Board pursuant to which this hearing s.is held Is dated April 25. 1977 229 NLRB 258). and the decree of the (court of Appeals for the lFirst (Circult enforcing the backpas provisions of the Board's order is dated December 27. 1977 Stennles sas the onls uriness t lestifs al the hearing. and I credit his unrebutted testimny. Respondent submitted wsih Ith brief seserall docu- mteli to support its care lIoss eer. these dculients ;are nl part of the record herein and I hase not onsidered them in reaching an\ cnclusions in this ca.se BLUE HILLS CEMETERY, INC. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the General Counsel carries only the burden of showing the gross amount of backpay owing the discriminatee by reason of Respondent's discrimination. The burden of proof to support any contention that backpay should be mitigated or diminished rests with Respondent. Mastro Plastics Corporation and French-American Reeds Manufac- luring Co., Inc., 136 NLRB 1342, 1346 (1962) enforced in pertinent part 354 F.2d 170 (2d Cir. 1965). In the instant case the General Counsel met this burden by putting into evidence the backpay specification. Thereafter it was in- cumbent upon Respondent to meet the burden of showing that backpay should be reduced because Stennes had failed to make a reasonable effort to seek interim employment. Respondent has totally failed to meet this burden. As noted above, Stennes testified that he received money from various sources during the backpay period. Respon- dent's attempts to discredit this testimony were apparently to show that he did not receive such moneys. However, since Stennes' testimony is not rebutted, I credit him in this regard. In any event, even if Respondent were able to show that Stennes did not receive such monies, it is difficult to see how such evidence would assist Respondent in meeting its burden, since there is no probative evidence to suggest or imply that Stennes actually obtained employment and thus funds to support himself so as to diminish the amount of backpay due. With respect to the matter of Stennes' failure to register with any employment service, it is clear that the law impos- es no positive obligation on a discriminatee to so register, although it is a relevant factor in determining whether or not a reasonable effort to seek work has been made. In the circumstances of this case, particularly in view of the ex- tensive and continuing effort of Stennes to seek work as reflected in the record, I cannot conclude that failure to register with any employment service constitutes a willful loss of earnings so as to diminish any backpay award herein. Avon Convalescent Center, Inc., 219 NLRB 1210 (1975). Respondent also suggests that it is incredible that Sten- nes could have been making any reasonable effort to seek unskilled employment over such a long backpay period without success. However, while such circumstances may be suspect, they are not conclusive, particularly where, as here, Stennes did eventually obtain work, and the record is void of any evidence that Stennes ever declined employ- ment or that employment opportunities were available to Stennes which he failed to pursue. Southern Household Products, Company. Inc., 203 NLRB 881 (1973). Any doubts in this regard must be resolved in favor of the dis- criminatee. United Aircraft Corporation, 204 NLRB 1068. Respondent further contends that Stennes was unquali- fied for some of the positions he sought and that such ap- plications must be disregarded in determining a proper backpay award. First, the record does not show Stennes was unqualified for the work he sought. Moreover, ". . . entitlement to backpay does not turn on a showing that the discharged employee sought precisely the same type of in- terim employment as that from which he was discharged." Avon Convalescent Center, supra at 1211. C. Conclusions Based on the entire record herein, I conclude that Sten- nes is due the amount of backpay from Respondent as set out in the General Counsel's backpay specification with the following reduction. It is conceded that Stennes ob- tained employment some 2 weeks prior to the end of the backpay period set out in the backpay specification. His hourly rate during this period was $3 per hour, and he worked 40 hours per week. This amounts to $120 per week or a 2-week period, or $240. The gross backpay for the second quarter of 1977 should be reduced by this amount. The total amount of backpay due is the amount set forth below opposite his name: Elliott Jens Stennes $4,732.00 On the basis of the foregoing findings of fact, conclu- sions, and the entire record in this proceeding, and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, I issue the following recommended: ORDER 3 Respondent Blue Hills Cemetery, Inc., its officers, agents, successors, and assigns, shall pay to Elliott Jens Stennes the sum of $4,732, the backpay provided for herein, with interest thereon, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).4 There shall be deducted from the amounts due any withholding tax required by law. IIn the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National L.abor Relations Board. the findings. conclusions. and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 4See. generally. sis Plumbing & Heating Co.. 138 NLRB 716 (1962).