Duroyd Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1987

285 N.L.R.B. 1 (N.L.R.B. 1987)

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 readinBackpay Earnings Backpay , g
" d O d f h N i l l
1986
rPoste by er o t e ona Labor Reat 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