NHE/Freeway, Inc.

National Labor Relations Board - Board Decisions

Jun 5, 1975

218 N.L.R.B. 259 (N.L.R.B. 1975)

NHE/FREEWAY, INC. 259
NHE/Freeway, Inc.; National Health Enterprises,
Inc.; Health Facilities, Inc. and Local 222 , United
Nursing Home and Hospital Employees Federa-
tion. Case 30-CA-2311
June 5, 1975
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On January 16, 1975, Administrative Law Judge
Benjamin K. Blackburn issued the attached Supple-
mental Decision in this proceeding. Thereafter, the
General Counsel and Respondent filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
Administrative Law Judge's Supplemental Decision
in light of the exceptions and briefs and has decided
to affirm the rulings, findings, and conclusions of the
Administrative Law Judge only to the extent consist-
ent herewith.
At stake at this stage of this proceeding is backpay
for employees Katherine Young, Wanda Patton, and
Beulah Hunt. The Administrative Law Judge found
that Young and Patton were not entitled to backpay
but that Hunt was. We are of the opinion that the
Administrative Law Judge was in error with respect
to all three of these employees.
Young and Patton
Young was employed by the Respondent as a cook
and her whole job experience had been that of an
institutional cook. Patton had been engaged by
Respondent as a nurses aide and that had been her
first job. On being discharged by Respondent, both
Young and Patton registered with the Wisconsin
Employment Service for jobs, respectively, as cook
and nurses aide. Thereafter, Young, according to her
OWES testimony, applied for work as a cook at nine
hospitals and three nursing homes and for any
available work at four factories. Patton testified that
she sought work as a nurses aide at eight hospitals
and one nursing home and also sought employment
of any kind at three factories.
The Respondent produced, however, five witnesses
who were representatives of four hospitals and one
nursing home' and who were responsible for the
i The hospitals involved were Doctors, Columbia , Northwest General,
and St. Joseph's. The nursing home was Park Manor.
218 NLRB No. 41
handling of personnel matters at their respective
institutions. The four hospital representatives in
effect testified that they still had job applicant
records from the period here in question, that if
Young or Patton had applied for a job at their
hospitals during that period they would have filled
out and left a job application form, and that a search
of the relevant records had produced no such
applications submitted by Young or Patton.2 The
nursing home representative testified that his institu-
tion had destroyed job applications for the period in
question but added that if a person with Young's
qualifications had in fact applied during that period
as she claimed, he surely would have interviewed her
for a job as a cook. He added, however, that he had
never seen Patton before the time of the backpay
hearing and Patton conceded she had never seen him
before that time.
The Administrative Law Judge accepted as true the
testimony of Respondent's witnesses, whom he
described as disinterested, and held that it disproved
the statements of Young and Patton that they had
sought employment at the institutions represented by
these witnesses. Further, on the basis of such
disproof, the Administrative Law Judge discredited
all of Young and Patton's testimony concerning their
attempts to seek employment-except for the appli-
cations at the Wisconsin Employment Service and
one other place-during the backpay period, thus
concluded they had not made a reasonable effort to
find such employment, and found that in conse-
quence they were not entitled to any backpay.
We can agree with the Administrative Law Judge
that Respondent's witnesses were probably disinter-
ested and that insofar as they knew the situation
testified honestly. However, we do not agree that
such testimony necessarily contradicts that of Young
and Patton that they sought employment at the
institutions represented by the witnesses and we find
such testimony wholly inadequate to support the
Administrative Law Judge's further conclusion dis-
crediting, with the limited exceptions noted, all of
Young and Patton's testimony concerning their
search for employment during the backpay period.
Thus, the Respondent' s witnesses themselves were
not the individuals who would in the normal course
of events receive and file or otherwise process job
applications. Consequently, they were in no position
to contradict directly the testimony of Young and
Patton that they had in fact applied for jobs. Rather,
the probative value of their testimony turns on
alleged standard procedures being followed in the
personnel operations resulting, at least in the case of
the hospitals, in all written applications being
2 Also, at a couple of the institutions , job applicants were expected to
sign a log. Neither Young's nor Patton's name appeared on the logs.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
properly filed. But no testimony was offered by
persons who actually received applications concern-
ing how in fact they were processed and no
explanation was offered why higher management
rather than those immediately concerned were alone
called on to testify. In consequence, the evidence is
essentially to the effect of how management directed
or expected applicants to be dealt with, not how in
fact they were handled.3 Thus, such testimony may
at most raise some doubt concerning Young's and
Patton's having applied at various hospitals or
nursing homes . But such doubt-if indeed it exists
here-is to be resolved to the discriminatee's, not the
wrongdoer's, benefit .4
Furthermore, there is affirmative evidence that
Young and Patton sought work as they claimed.
First, it is not questioned that they registered at the
Wisconsin Employment Service. Second, there is
testimony by one witness that she took Young to
three hospitals and one factory in search of jobs and
by another witness that he took Patton job hunting to
a number of places including Doctors Hospital
whose representative testified that her application
was not on file. Such evidence is hardly conclusive
but it is certainly as worthy of the probative value
attached by the Administrative Law Judge to the
testimony of Respondent's hospital and nursing
home witnesses , and, further, is evidence in support
of Young and Patton's testimony that they sought
work as they claimed.5
In any event, we find that the testimony adduced
by Respondent does not, as the Administrative Law
Judge found, refute Young and Patton's testimony
that they applied for work at Doctors, Columbia,
Northwest General, and St. Joseph's hospitals and at
Park Manor Nursing Home and it is clearly
insufficient to discredit their testimony that they
sought work on a number of occasions elsewhere.
Accordingly, we further find that the General
Counsel has established that Young and Patton did
use due diligence in seeking employment to mitigate
3 As stated above, the representative of Park Manor Nursing Home
conceded that all applications filed during the backpay period had been
destroyed . He added, however, that if one with Young's qualifications had
applied she surely would have been sent to hum for an interview , and if he
were not at hand at that time he would later have gotten in touch with
Young to arrange an interview As indicated above, no such interview was
ever held. But here the testimony insofar as it is intended to show Young
never applied for a job at the Nursing Home is more tenuous than that in
the case of the hospitals. We conclude it proves very little, if anything
A Southern Household Products Company, Inc, 203 NLRB 881 (1971).
5 The General Counsel sought to put in the evidence here referred to, as
rebuttal testimony. The Administrative Law Judge cut it off on the grounds
it should have come in as part of his case-m-chief because it did not directly
contradict testimony of Respondent 's witnesses. However , we agree with the
General Counsel that the testimony was properly submitted in rebuttal to
protect the discrimmatees from being wholly discredited-as indeed they
were by the Administrative Law Judge-on the basis of the testimony of
Respondent's institutional witnesses. Also the witness who testified he took
Patton to a number of places job hunting stated he usually went inside while
backpay, and that they are entitled to backpay in the
amounts set forth in the General Counsel's Backpay
Specification.
Hunt
The Administrative Law Judge concluded Beulah
Hunt was entitled to backpay for the period running
from April 1, 1973, the date of her unlawful
discharge, until September 17 of that year when she
got a job at a tanning factory. At the time of her
discharge she had worked as a nurses aide for
Respondent for about a year and a half. Previously,
she had held for about 7 months a job as a clerk in a
bridal shop and before that was off and on, over a
period of 5 years, a sewer in a glove factory. After her
discharge by Respondent, she filed with the Wiscon-
sin Employment Service and during the first week or
two of April sought employment as a nurses aide at
one health facility. After that she made no further
attempts whatsoever to find work as a nurses aide at
a hospital, nursing home, or elsewhere though aware
of the fact that such employment existed in the area.
Rather, she applied at several factories for work,
making a number of followup telephone calls to
each. The tanning factory job she took in September
was brought to her attention by a friend who worked
at the factory.
We agree with the Respondent that Hunt's com-
plete failure, aside from her one early approach to a
health facility, to pursue employment as a nurses
aide was in essence a willful loss of earnings standing
between her and her right to backpay. We see no
merit in the Administrative Law Judge's excusing her
from seeking such work on the ground that she was
not a nurses aide by vocation, for it is clear she had
the training and experience for such work and also
that it was her most immediate area of training and
experience .6 Consequently, we conclude that Hein-
rich Motors, Inc.,7 distinguished by the Administra-
tive Law Judge, is squarely in point here, and that
under the rationale of that case Hunt's failure to seek
she applied for a job. He conceded though that he did not do so at Doctors
Hospital. The Administrative Law Judge then described the testimony as
evidence of nothing. Perhaps it is proofof nothing but it is evidence Patton
went to the hospital for purposes of applying for a job and thus at least to
that extent supports her claim that she did apply, especially where, as here,
the contrary testimony is not that she did not submit an application, but
only that none could be found in the file.
6 See Rogers Furniture Sales, Inc., 213 NLRB No. 115 (1974). As noted
above, Hunt worked off and on as a sewer in a glove factory over a period of
5 years. How much experience that would equal as full-time work does not
appear in the record. Furthermore , the record shows the glove factory was
located in Arkansas and there is no evidence such a factory employing
sewers even existed in the Milwaukee, Wisconsin, area where the
Respondent is located and where Hunt lived during the backpay period.
Consequently, aside from her 7 months as a clerk in a bridal shop, Hunt's
training and principal experience in Milwaukee lay in the field of nurses
aide.
7 166 NLRB 783, 792-793 (1967)
NHE/FREEWAY, INC.
employment during the backpay period as a nurses
aide-employment that clearly was available in the
area in which she lived during that period-was a
willful loss of earnings. Thus, we find, contrary to the
Administrative Law Judge,s that Hunt is not entitled
to any backpay.
The Amount of Backpay Due
We find that Beulah Hunt is entitled to no
backpay, but that Katherine Young is due backpay
in the amount of $5,293.64 and Wanda Patton is due
backpay'in the amount of $2,604.14.9 Such backpay
shall include interest at the rate of 6 percent a year
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), until the date of
payment.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
NHE/Freeway, Inc.; National Health Enterprises,
Inc.; and Health Facilities, Inc., Milwaukee, Wiscon-
sin, their officers, agents, successors, and assigns,
shall pay to the employees involved in this proceed-
ing as net backpay the amounts set forth above,
together with interest at the rate of 6 percent per
annum until the indebtedness has been discharged.10
8 We find no substance in the General Counsel's argument, adopted at
least in part by the Administrative Law Judge, to the effect that, because of
various alleged poor working conditions in the nursung home industry, Hunt
should be excused for not having sought employment there. If nothing else,
there Is no evidence of the general prevalence of such working conditions in
nursing homes in the Milwaukee area
9 In reaching these results , we adopt the Administrative Law Judge's
proposed resolution of the period Young's backpay should cover and the
basis for computing Patton 's backpay.
io Local 138, International Union of Operating Engineers, AFL-CIO, 151
NLRE, 972, 974 (1965).
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
On July 16, 1974, the Board issued a Decision and Order
(Unpublished) in which, inter alia, it directed
NHE/Freeway, Inc.; National Health Enterprises, Inc.;
and Health Facilities, Inc., referred to collectively herein as
Respondent, its officers, agents, successors, and assigns, to
make whole Katherine Young, Judith 1%likalauski, Wanda
Patton, and Beulah Hunt for their losses resulting from
Respondent's unfair labor practices in violation of Section
8(a)(3) and (1) of the National Labor Relations Act, as
amended. On August 23, 1974, the Regional Director for
Region 30 issued a backpay specification in order to
resolve a controversy over the amount of backpay due each
of the discriminatees . The hearing was held in Milwaukee,
Wisconsin , on September 19 and December 5, 1974. At the
hearing the controversy over the amount of backpay due
261
Judith Mikalauski was resolved. The principal issue
litigated was whether the other discriminatees forfeited
their right to backpay by engaging in a willful loss of
interim earnings. For the reasons set forth below, I find
that Katherine Young and Wanda Patton did but that
Beulah Hunt did not.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
Respondent's oral argument and the General Counsel's
brief, I make the following:
FINDINGS AND CONCLUSIONS
I. KATHERINE YOUNG AND WANDA PATTON
As is customary in backpay proceedings, the General
Counsel's affirmative case consisted only of the backpay
specifications. He did not call the discriminatees as
witnesses but, rather, made them available at the opening
of the hearing in the event Respondent wished to go into
their efforts to fmd interim employment. Respondent
called Katherine Young, Wanda Patton, and Beulah Hunt
to the stand and elicited from each a detailed account of
her efforts to fmd work during the backpay period. At the
conclusion of this phase of the hearing on September 19,
1974, counsel for Respondent raised the point that, having
learned for the first time that day what each discriminatee
claimed she had done, he had had no opportunity to check
the accuracy of their stories. I declined to recess the
heanng at that time in order to give counsel an opportunity
to do so. Rather, I closed the record with the understand-
ing that, if I received a motion to reopen predicated on
counsel's averment that he had made such an investigation
and had turned up some information relevant to the issue,
I would reopen the hearing.
On October 21, 1974, I received such a motion from
counsel for Respondent. On October 25 I initiated a
conference telephone conversation with counsel for the
General Counsel and counsel for Respondent in order to
select a mutually convenient date for hearing in the course
of which the possibility arose that counsel might be able to
stipulate to the facts which counsel for Respondent had
uncovered. Consequently, it was agreed that I would hold
off ruling on the motion until counsel for Respondent had
turned over to counsel for the General Counsel the facts he
had obtained and counsel for the General Counsel had
checked them out. It was agreed that counsel for
Respondent would furnish whatever he had to counsel for
the General Counsel by November 13 and that counsel for
the General Counsel would have until November 27 to
conduct his investigation. If no stipulation was worked out
by the latter date it was agreed that I would grant the
motion to reopen and the hearing would resume during the
first week in December.
Counsel for Respondent furnished data to counsel for
the General Counsel in conformity with this schedule.
However, counsel were unable to work out a stipulation.
When I learned of this development on November 25, I
granted Respondent's motion to reopen. The hearing
resumed on December 5, 1974. At that time, Respondent
presented evidence, summarized below, which persuaded
me that Katherine Young and Wanda Patton's accounts of
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their efforts to find work during the backpay period cannot
be credited.
Katherine Young and Wanda Patton were employed by
Respondent as cook and nurses aide, respectively. The
backpay periods set forth in the specification are April 1,
1973, through April 8, 1974, for the former i and April 1
through December 5, 1973, for the latter. The amounts
claimed for each are:
1973
Katherine
Young
Wanda
Patton
2d qtr. $1 , 298.44 $950.95 L
3d qtr. 1,298 .44 950.95
4th qtr. 1 , 298.44 702.24
1974
1st qtr. 1,298.44
2d qtr. 99.88
Total $5 , 293.64 $2 , 604.14
Following their discharge, Miss Young and Mrs. Patton
both registered for work with the Wisconsin Employment
Service, the former as a cook, the latter as a nurses aide.
(Miss Young's prior, extensive work experience had all
been as a cook in institutions such as hospitals and nursing
homes. Mrs. Patton's job as a nurses aide in Respondent's
nursing home had been her first.) Neither found work
during the backpay period . Miss Young testified that she
applied for work as a cook at nine hospitals and three
nursing homes and for general factory type work at four
plants in the Milwaukee area. Mrs. Patton testified that she
applied for work as a nurses aide at eight hospitals and one
nursing home and for general factory type work at three
plants in the Milwaukee area. The only evidence which
corroborates either of their stories is an application for
work at Oster Corporation dated October 27, 1973, bearing
Mrs. Patton's name, which the General Counsel introduced
into evidence on December 5, 1974.3 (The General Counsel
called Pearl Jennings as a witness on December 5, after
Respondent introduced the evidence, summarized below,
which has caused me to discredit Miss Young and Mrs.
Patton. Miss Jennings testified that she accompanied Miss
Young to three hospitals and one factory in May and June
I Since I have resolved Miss Young's backpay claim against her on the
ground that she is guilty of a willful loss of interim earnings, I do not reach
the issue of whether her backpay period runs until April 8, 1974, when
Respondent finally sent her a letter offering her unconditional reinstatement
which she received , rather than December 5, 1973, as claimed by
Respondent , when it sent offers to all four discriminatees . If I were to reach
this issue, I would resolve it in the General Counsel's favor since it is clear
that on the earlier date Respondent had Miss Young's current address in its
files and mailed the initial offer to an address from which she had moved
through its own negligence.
2 Since I have resolved Mrs. Patton's backpay claim against her on the
ground that she is guilty of a willful loss of interim earnings, I do not reach
the issue of whether her average weekly wage prior to the discrimination
1973. One of the hospitals she named was Columbia, one
of the hospitals as to which Respondent introduced
evidence which refuted . Miss Young's claim, to my
satisfaction, that she had applied there. More importantly,
Miss Jennings did not testify that Miss Young applied for
work on these occasions.)
In the hiatus in the hearing between September 19 and
December 5, 1974, counsel for Respondent undertook to
check with each of the employers the discriminatees
claimed to have applied to for work. At those places where
records were kept which covered the backpay period,
Respondent produced a witness to testify as to those
records. Where the employer had no records of persons
who applied for work during that period, he did not call a
witness . None of the places at which Miss Young and Mrs.
Patton claimed to have applied for work corroborated their
stones, other than Oster Corporation in the case of Mrs.
Patton. In the words of counsel for Respondent:
All of this information was given to Mr. Jacobs several
weeks ago, and the only reason that someone from St.
Mary's and St. Anthony's [Hospitals ] are not here is
because they do not keep records that far back.
JUDGE BI.AcKBuRN: So there is really nothing else to
put up against Mrs. Young's testimony [to show] that
she did not go to-[these two hospitals]?
MR. GRoTH: There is absolutely no way to rebut her
particular statement . I have brought in everyone who
kept documentary evidence who kept a log or applica-
tion for this period.
*
Of the information submitted today, I believe it
[cancels] out their entire efforts. If the evidence would
have been available, I would have brought in ten other
people, but applications are thrown away after a period
of time. Records are not kept, and so we didn't see
them today.
Despite the fact that counsel for Respondent made the
results of his investigation available to counsel for the
General Counsel in time for the latter to seek corrobora-
tion, prior to resumption of the hearing on December 5,
1974, for Miss Young and Mrs. Patton's stories from the
employers they had named, counsel for the General
Counsel offered nothing other than Mrs. Patton's applica-
tion at Oster. (Unlike counsel for Respondent, counsel for
the General Counsel did not state what, if anything, he did
to seek corroboration for Miss Young and Mrs. Patton
against her was $73.15, the figure used by the General Counsel in the
backpay specifications, or $62.34 , the figure contended for by Respondent.
If `I were to reach this issue, I would resolve it in the General Counsel 's favor
on the ground that Mrs. Patton's earnings during the fourth quarter of 1973
were more representative of her employment by Respondent than the first
quarter of 1974, the period used by the General Counsel in computing
backpay due the other three discriminatees involved in this proceeding,
because Mrs. Patton was absent on leave an inordinate number of days
during the latter period.
3 In the second phase of the hearing, Respondent produced no evidence
to,rebut Beulah Hunt's account of her efforts to find work during the
backpay period. The General Counsel introduced an undated application
for work at Mount Sinai Medical Center which bears Miss Hunt 's name.
NHE/FREEWAY, INC. 263
during the hiatus in the hearing. I infer nothing about his
activities in this regard from the fact that he introduced the
Oster application.)
What counsel for Respondent did introduce on Decem-
ber 5, 1974, was the testimony of -representatives of four
hospitals and one nursing home named by Miss Young,
Mrs. Patton, or both. Two of the hospitals had been named
by both woman. Each of the other two had been named by
one but not the other. The nursing home had been named
by Miss Young but not by Mrs. Patton. In brief summary,
these disinterested witnesses ' testified that the employer
they spoke for did not have an application from either Miss
Young or Mrs. Patton or both, as the case may be, under
circumstances where, if they had applied for work as they
testified, it would have. (More precisely, in the case of the
nursing home, the witness testified that , while applications
for the period in question had been destroyed, he would
have interviewed any applicant with Miss Young's qualifi-
cations. Witness and Miss Young confronted each other in
the hearing room. Both conceded they had never seen each
other before.) It is possible, I realize, for papers to get
mislaid or misfiled in even the best run business. If
Respondent had produced a witness from only one
employer, or possibly even two, this testimony would have
little weight. But a conclusion that each and every one of
the employers (with, of course, the exception of Oster
Corporation), whose files of applications or logs of
applicants covered the backpay period, had lost the
applications Miss Young and/or Mrs. Patton had left with
it would require belief in a coincidence so remote as to be
impossible. I find, therefore, that Miss Young did not seek
work during the backpay period at Doctors, North West
General, or Columbia Hospitals or at Park Manor Nursing
Home and that Mrs. Patton did not seek work at Doctors,
St. Joseph's, or Columbia Hospitals. I find that Mrs.
Patton did apply for work at Oster Corporation on October
27, 1973. However, because Respondent has disproved
their stories as to their applications at Doctors, Columbia,
North West General, and St. Joseph's Hospitals and at
Park Manor Nursing Home, I do not credit their testimony
as to their efforts to fmd work at other places, with the
exception of Oster Corporation. Since this leaves no basis
in the record for a fording that Miss Young sought work
anywhere during the backpay period or that Mrs. Patton
sought work anywhere other than at Oster Corporation,
Respondent has sustained its burden, peculiar to backpay
proceedings , of proving that neither of them made a
reasonable effort to find interim employment during the
backpay period. I find, therefore, that neither is entitled to
any backpay.
U. BEULAH HUNT
Like Wanda Patton, Beulah Hunt was employed at
Respondent's nursing home as a nurses aide. Her backpay
period also runs from April 1 through December 5, 1973.
She got a job at Blackhawk Tannery in Milwaukee on
September 17, 1973. The backpay specification claims
$996„84 and $796.84 due her in the second and third
quarters of 1973, respectively, for a total net backpay of
$1,793.68.
Miss Hunt was also like Mrs. Patton in that her job with
Respondent was her first as a nurses aide . However, she
was unlike Mrs. Patton in that this was not her first job.
Prior to going to work for Respondent, she had been
employed as a seamstress in a glove factory and as a ,clerk
in a bridal shop. Following her discharge she also
registered for work with the- Wisconsin Employment
Service as either a nurses aide= or a factory hand. Since
Respondent presented no evidence to rebut-her account of
her 'efforts to find work, I make the following findings of
fact based on her testimony: She applied for work as a
nurses aide at only one health care facility in Milwaukee,
Mount Sinai Medical Center . She then turned her efforts to
various factories . These efforts - were fruitless until, in
September, she learned from a, friend who worked there
that Blackhawk Tannery was hiring. She went to the plant,
applied for a job, and was hired despite her lack of
experience. As already indicated, she began work on
September 17, 1973. The tannery trained her to be a
trimmer. I find, on the basis of these facts, that Respondent
has not proved that Miss Hunt failed to make a reasonable
effort to find interim employment of any kind.
That finding leads to consideration of the second facet of
Respondent's defense,. Respondent proved beyond perad-
venture that jobs for trained nurses aides were available in
Milwaukee hospitals and nursing homes throughout the
backpay period and that Miss Hunt could have had one of
them for the asking if she had elected to make a serious
effort in that direction. (Respondent did not, however,
prove the availability of jobs for seamstresses or bridal
shop clerks.) It is also clear that Miss Hunt knew such jobs
were going begging and made a conscious decision not to
seek that kind of work. Respondent contends that these
facts also add up to a willful loss of interim earnings , albeit
of a different sort from that which Miss Young and Mrs.
Patton were guilty of.
Respondent 's oral argument did not address itself
directly to the legal consequences of Miss Hunt 's deliberate
decision not to work any more as a nurses aide. Rather, it
is limited, in the part relevant to this issue, to a reliance on
the facts which I have here found in its favor, thus:
In a five-month period [Hunt] looked for work in
one health care facility. We have an application for
employment, which is undated. Hunt was the only
employee who had experience outside-substantial
experience outside the health care field, and that is as a
sewing machine operator. She didn't apply for work as
a sewing machine operator. She didn't apply for
work-She worked at GiGi's Bridal Salon as a stock
clerk, and she didn't apply for work in [either] of these
areas.
We would submit that her efforts would fall far short
of the efforts required to establish her claim for any
backpay in this matter.
The General Counsel's brief contains this summary of
his argument on this issue:
Although Hunt did not bend her efforts for employ-
ment toward nursing homes as such, her brief encoun-
ter with that industry, like that of Patton, was such as
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to drive her to seek employment in factory work., Since
her employment background was far more successful in
factory work rather than-in nursing home work where
her one and only experience was a discriminatory
,discharge for trying to better her 'unsatisfactory
working conditions, it would seem patently logical for
her to seek to return to factory work. This she did. The
argument, proffered above on behalf of Patton with
respect to her refusal to seek nursing home employment
and Respondent's backpay liability is equally applica-
ble to Hunt whose situation was basically similar.
s * * *
Since Patton and Hunt were not nurses' aides by
vocation, there is no reason under law or logic why they
should be required to seek employment 'in the same
economically depressed industry where experience
taught them that the unsatisfactory working conditions
could not be bettered by seeking union representation
because the result was discharge in violation of the Act.
Moreover, to permit Respondent to terminate employ-
ees in violation of the Act and then refuse to
compensate them because - they did not place them-
selves in the' same vulnerable position as they were in
before, would make a mockery of the Act by creating
an indentured class of employees, bound to the nursing
home 'industry. Each nursing home, by-virtue of such a
decision, could maintain minimum wages and the
poorest of working conditions, terminate any employee
for seeking union representation, and deny compensa-
tion on grounds that the dischargee by law was
required to remain a nurses' aide in another nursing
home. As long as there is a free society, discriminatorily
discharged employees should be as free as anyone else
to seek employment wherever they choose, and not be
further discriminated against by restraining them in
their efforts to fmd employment and restricting them as
Respondent would have' us do. Proper effectuation, of
the Act would be seriously hampered by denying these
discriminatees backpay simply because they chose to
seek work in the general labor market rather than as
nurses' aides as Respondent urges.
The only case which has come to my attention that
seems to be even remotely on point is Heinrich Motors,
Inc., 166 NLRB 783 (1967). There a mechanic named
Edward Knaak was discriminatorily discharged by an
automobile agency. He sought work only at filling stations
despite advertisements , in, local newspapers by other
automobile agencies for mechanics. After he had been out
of work for approximately 7 weeks, he applied at two
agencies. The second hired him on the spot. The first
offered him a job the next day. Knaak was held chargeable
for a willful loss of earnings for the entire period. Edward
Knaak must be distinguished from Beulah Hunt, I think,
because Miss Hunt's established vocation was not that of
nurses aide. For the reasons set forth in the, General
Counsel's brief, I fmd that she did not commit a willful loss
of interim earnings when she elected not to seek work as a
nurses aide but, rather, limited her search to factories.
III. THE AMOUNT OF BACKPAY DUE
In summary, I fmd Respondent owes no backpay to
Katherine Yoting or Wanda Patton. However, Beulah
Hunt and Judith Mikalauski are due, respectively, the sums
of $1,793.68 and $760.90, plus interest at the rate of 6
percent per annum computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962), until
the date of payment of all backpay. Payment of these sums
shall be less any taxes required to be withheld by
Respondent under Federal, State,and local law.