A A Superior Ambulance Service

National Labor Relations Board - Board Decisions

Jan 31, 1989

292 N.L.R.B. 835 (N.L.R.B. 1989)

A A SUPERIOR AMBULANCE 835
A A Superior Ambulance Service and Automotive
and Special Services Union No 461 , affiliated
with the International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America AFL-CIO 1 Case 19-CA-13365
January 31, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 17, 1982, the National Labor Rela-
tions Board issued a Decision and Order in this
proceeding2 in which it adopted an administrative
law judge's findings and conclusions that the Re-
spondent had violated , inter alga, Section 8(a)(3)
and (1) of the Act by terminating employee Rich-
ard Skinner because of his union activities The
Board also adopted the judge's recommended
Order directing the Respondent to reinstate Skin-
ner and to make him whole for any loss of earnings
caused by the Respondent 's discrimination against
him The Board's Order was enforced by the
United States Court of Appeals for the Ninth Cir
curt on October 13, 1983 3 The court, however,
conditioned its enforcement of Skinner's reinstate-
ment on Skinner's possession of a valid license to
be a paramedic in the State of Washington The
court noted that "the absence of such a license will
also be relevant to the amount of backpay due
Skinner "
Subsequently, pursuant to a backpay specifica-
tion and notice of hearing issued by the Regional
Director for Region 19, a hearing was held before
Administrative Law Judge Clifford H Anderson to
determine, inter alia, the amount of backpay due
Skinner 4 On January 16, 1985, the judge issued the
attached Supplemental Decision recommending
that the Board issue an Order requiring the Re-
spondent to pay Skinner $17,018, plus interest The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief in
opposition to the Respondent's exceptions On
April 15, 1985, the Board remanded the case to the
judge for further factual determinations consistent
with the court's Order regarding Skinner's posses
sion of a Washington State paramedic's license
Thereafter, on May 16, 1985, the judge issued the
attached Second Supplemental Decision finding,
i On November 1 1987 the International Brotherhood of Teamsters
was readmitted to the AFL-CIO Accordingly the caption has been
amended to reflect that change
2 263 NLRB 499
2 A A Superior Ambulance Service v NLRB 720 F 2d 683 (mem)
4 We note that the General Counsel did not seek Skinner s reinstate
ment in this backpay proceeding
inter alga, that Skinner had possessed a valid Wash-
ington State paramedic's license throughout the
backpay period and that the court's decision did
not indicate that the Board should apply a legal
standard different from that the Board ordinarily
applies in determining here the relevance of Skin-
ner's possession of the paramedic's license Accord-
ingly, the judge recommended that the Board
award Skinner the backpay amount set out in his
earlier decision The Respondent filed exceptions
to the Second Supplemental Decision and a sup-
porting brief, and the General Counsel filed a
motion to strike and an answering brief in opposi-
tion to the Respondent's exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the record and the
supplemental decisions in light of the exceptions5
and briefs and has decided to affirm the judge's rul-
ings , findings,6 and conclusions7 and to adopt the
recommended Order as modified
5 We grant the General Counsel s motion to strike those portions of the
Respondents exceptions that refer to the Respondents alleged compli
ance with the reinstatement order A review of the record establishes
there is no evidence to support the Respondents assertions in this re
spect
6 The Respondent has excepted to some of the judge s credibility find
ings 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
We agree with the judges finding in his Second Supplemental Deci
sion that the court s order mandating that Skinner possess a valid Wash
mgton State paramedic license in order to be reinstated did not mean that
Skinner needed to possess such a license at the time of the court s opinion
in order to be eligible for backpay In this regard we note that the par
ties have stipulated that Skinner possessed a valid Washington State pars
medic license at all times during the period alleged by the General Coun
sel to be the backpay period i e March 17 1981 to April 30 1982
7 The Respondent argues that Skinner s misconduct in the backpay
period warrants denial of all backpay The evidence here does not show
that the Respondent knew of the misconduct before the end of the back
pay period At the hearing the judge ruled that misconduct on Skinner s
part could not toll the Respondent s backpay obligation unless and until it
was made known to the Respondent However the judge went on to ad
dress the Respondents argument in his supplemental decision in light of
its citation to Western Pacific Constru,tion 272 NLRB 1393 (1984) which
provided support for the Respondents remedial approach tolling backpay
based on misconduct not known to the Respondent during the backpay
period
In Axelson Inc 285 NLRB 862 (1987) the Board overruled Western
Pacific and adopted the remedial approach of East Island Swiss Products
220 NLRB 175 (1975) msofar as that case held misconduct will not auto
matically bar backpay but will limit it by cutting the backpay off at the
time the respondent acquires knowledge of the misconduct Thus we
agree with the judge that Skinner is entitled to backpay although he may
well have engaged in reprehensible conduct during the backpay period
In this regard we will refer the record in this proceeding to the appro
pnate licensing and drug enforcement agencies However consistent with
Board precedent discussed above we will not deny backpay to the discn
mmatee based on conduct of which the Respondent was unaware during
the relevant backpay period The record clearly demonstrates that had
Skinner refrained from engaging in protected activity he would have re
mained employed by the Respondent at least until the Respondent
became aware of his misconduct
292 NLRB No 89
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, A A Supe-
nor Ambulance Service, Tacoma, Washington, its
officers, agents, successors, and assigns, shall make
whole Richard P Skinner by paying him
$17,018 48 backpay, plus interest,8 less tax with-
holdings required by Federal and state laws
8In accordance with our decision in New Horizons for the Retarded
283 NLRB 1173 ( 1987) interest on and after January 1 1987 shall be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
Martha Barron Esq Jor the General Counsel
0 W Hollowell Esq (Hollowell Pisto Kalenius & Bully)
of Federal Way, Washington, for the Respondent
Pamela Bradburn Esq (Hafer Price Reinhart &
Schwerin), of Seattle, Washington for the Charging
Party
SECOND SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
CLIFFORD H ANDERSON, Administrative Law Judge
On 9 April 1982, Administrative Law Judge Roger B
Holmes issued his Decision and Order in consolidated
Cases 19-CA-13253 and 19-CA-13365 The Board
adopted the judge s decision without relevant modifica
tion on 17 August 1982 i The United States Court of
Appeals for the Ninth Circuit enforced that Order in an
unpublished opinion on 13 October 1983 2 The court s
opinion, at page 5, addressed the issue of Skinner s rein
statement as follows
The employer contends that even if Skinner was
discharged unlawfully, reinstatement is inappropri
ate because Skinner is incompetent and a danger to
public health and safety See NLRB v Western Clin-
ical Laboratory Inc 571 F 2d 457 460-62 (9th Cir
1978) The Board has broad discretion to order rein
statement of unlawfully discharged employees Fi
berboard Corp v NLRB, 379 U S 203, 216 (1964)
Because Skinner was a paramedic, however, our
concern for the public welfare requires special care
here See, Western Clinical, 571 F 2d at 460-62
In the State of Washington, a paramedic must
have a state license The Board concedes, and we
affirm that concession, that the order to reinstate
Skinner is expressly conditioned upon Skinner now
having a current license to be a paramedic in the
State of Washington The absence of such a license
will also be relevant to the amount of backpay due
Skinner
1 263 NLRB 499 (1982)
2 720 F 2d 683 (9th Cir 1983) (mem)
Controversy having arisen, inter alia, over the amount
of backpay due Skinner, a backpay specification was
issued by the Regional Director for Region 19 and the
matter came before me for hearing On 16 January 1985,
I issued a Supplemental Decision on the backpay specifi
cation concerning Skinner 3 In my Supplemental Deci
sion , I held that the backpay period for Skinner com
menced on 17 March 1981 and ended on 30 April 1982 I
further held that for the first 4 months of the backpay
period Skinner sought employment in Washington State
but thereafter continued his employment search outside
of Washington State and did not return to or seek em
ployment in Washington The decision held that Skinner
was entitled to backpay during the backpay period and
included a recommended backpay order
Respondent filed exceptions and a supporting brief and
the General Counsel filed an answering brief to my Sup
plemental Decision On 15 April 1985, the Board issued
an order remanding proceeding to administrative law
judge In its order, the Board noted the language of the
Ninth Circuit Court of Appeals quoted supra, concern
ing the relevance of Skinner s possession of a Washing
ton State paramedic license The Board noted that my
Supplemental Decision did not discuss the quoted fan
guage of the Court s opinion and stated further, nor
does the record contain evidence regarding Skinner's
possession of a license to be a paramedic in the State of
Washington Having considered the matter the Board
concluded that the disposition of the issues arising out of
the Board s original order as enforced by the court re
quired specific findings of fact regarding Skinner s pos
session during the backpay period of a license to be a
paramedic in the State of Washington Accordingly the
Board directed me to reopen the record and prepare and
issue a second Supplemental Decision setting forth spe
cific findings of fact regarding Skinners possession
during the backpay period of a Washington State para
medic license and a recommended backpay order in light
of such findings of fact and the opinion of the Court
On 18 April 1985 I issued an order reopening the
record for receipt of evidence consistent with the
Boards remanding order In response to that order the
parties submitted an all party stipulation concerning
Skinner
Findings and Conclusions
On the entire record, including the record and briefs in
the original backpay proceeding the Boards remanding
order and the postremand stipulation of the parties I
make the following findings and conclusions 4
9 Reinstatement of Skinner was not in issue at the time the case came
to hearing in August 1984
* To the extent not expressly amended herein the findings and conclu
sions of my Supplemental Decision in this matter are reaffirmed and form
the predicate to the additional findings and conclusions herein
A A SUPERIOR AMBULANCE 837
1 Factual findings regarding Skinner s possession of
a paramedic license in Washington State dunng the
backpay period
Following the Board s remand the parties submitted a
stipulation of fact which includes the following
1 Richard Skinner had a Washington State Certi
fled Intensive Care Paramedic license from April
1980 to April 30, 1982
2 Richard Skinner was not suspended or decerti
feed during the period that he was so licensed in the
State of Washington
Based on the above, there is no dispute and I find that
Skinner possessed a valid Washington State paramedic It
cense from April 1980 through 30 April 1982, i e
throughout the entire backpay period
2 Analysis and conclusions
Under normal Board decisional law, the burden of
proving that a backpay claimant failed to mitigate his
damages by not seeking work is assigned the employer
NLRB v Miami Coca Cola Bottling Co, 360 F 2d 569,
575-576 (5th Cir 1966) If Skinner was unable to work
as a paramedic during the backpay period because he did
not have a valid paramedic license, this evidence would
be relevant to show he failed to mitigate his damages
There was no evidence in the record of the backpay pro
ceedings suggesting Skinner did not have a Washington
State paramedic license during the backpay period or
that such a license had been lost through adverse
action 5 Given the absence of evidence and the burden
on Respondent, I did not find Skinner disqualified during
the backpay period from accruing backpay as a result of
a failure to mitigate damages due to inability to qualify
for paramedic employment because of an absence of a
paramedic license 6 Accordingly, to the extent normal
Board law applies to the calculation of Skinners back
pay, the additional finding of fact made does not require
modification of my 16 January 1985 Supplemental Deci
sion
My original decision construed the court of appeals
enforcing opinion as requiring no more than the applica
tion of normal Board backpay law to the issue of Skin
ner s backpay A threshold determination must be made
whether the language of the court s enforcing opinion
quoted supra, requires a different standard be applied to
Skinner s backpay as the law of the case If a different
standard is required, that standard must be applied to the
facts and a new analysis of Skinner s backpay undertak
en
For the reasons that follow I conclude that the fan
guage of the circuit court s enforcing memorandum as it
applies to the issue of Skinner s backpay does not require
or even fairly suggest a legal standard different from
5 Indeed the record contains R Exh 4 which is Skinner s 24 August
1981 job application submitted to American Ambulance Service a Texas
employer Skinner represented in that application that he possessed a
Washington State paramedic license due to expire April 1982
B Respondent also advanced other evidence and argument in an at
tempt to prove Skinner was not entitled to backpay I rejected this evi
dence as insufficient See my Supplemental Decision
those applied in normal Board backpay cases Thus
when the court states The absence of a license will also
be relevant to the amount of backpay due Skinner the
court is doing no more than reiterating the normal Board
standard, discussed supra, that the lack of a license to be
a paramedic is relevant to a backpay determination, i e,
is relevant to the issue of the backpay claimants good
faith search for work and his ability to accept that work
I reject the argument that the court s opinion must be
read to mean that if Skinner did not have a Washington
State paramedic license on the date the court s opinion
issued, 13 October 1983 he is entitled to no backpay
whatsoever I read the court s opinion as addressing
Skinner s reinstatement and backpay as separate, but re
lated, issues I find no basis for concluding that the
court s opinion requires Skinner to forfeit backpay
during any period in which his Washington State para
medic license was current
Under the court s opinion, reinstatement would be re
quired if Skinner had a valid paramedic license
Throughout the backpay period Skinner s license was
undisputedly valid 7 Backpay accrues during the period
that an employer is obligated to reinstate a backpay
claimant but wrongfully fails to do so Thus, the court s
opinion offers no basis for concluding that Skinner
should be denied backpay during the backpay period,
dunng which period he held a valid license
3 Summary
I have found that Skinner possessed a Washington
State paramedic license throughout the backpay period I
further find that the United States Court of Appeals
memorandum opinion enforcing the Boards underlying
unfair labor practice case in this matter does not modify
Board standards regarding the calculation of backpay for
the backpay claimant herein Having applied standard
Board decisional law in my Supplemental Decision I
conclude it is unnecessary to amend the recommended
Supplemental Order contained in my Supplemental Deci
sion of 16 January 1985
ORDER
On the basis of the foregoing and pursuant to Section
10(c) of the Act it is recommended that the Board issue
the Order recommended in my Supplemental Decision of
16 January 1985 8
r The stipulation further makes clear that the license was not lost
through suspension or decertification
8 The Board s Order remanding proceeding to administrative law judge
dated 15 April 1985 provides that following the service of my Second
Supplemental Decision the provisions of Sec 102 46 of the Board s Rules
and Regulations shall be applicable If no exceptions are filed as provided
by Sec 102 46 of the Board s Rules and Regulations the findings conclu
sions and recommended Order shall as provided in Section 102 48 of the
Board s Rules and Regulations be adopted by the Board and become its
findings conclusions and Order and all objections shall be waived for
all purposes
Martha Barron Esq, for the General Counsel
O W Hollowell Esq (Hollowell Pisto Kalentus & Bully),
of Federal Way, Washington for the Respondent
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge.
On 9 April 1982, Administrative Law Judge Roger B.
Holmes issued his Decision and Order in consolidated
Cases 19-CA-13253 and 19-CA-13365. The Board
adopted the judge's decision without relevant modifica-
tion on 17 August 1982.1 The United States Court of
Appeals for the Ninth Circuit enforced that Order in an
unpublished opinion on 13 October 1983.2 The Order
inter alia, required Respondent to make whole Richard
Skinner for loss of pay together with appropriate interest
resulting from Respondent 's termination of him.
A controversy having arisen over the amount of back-
pay due Skinner and certain other matters under the
terms of the Board's Order as enforced by the court, on
January 20, 1984, the Regional Director for Region 19 of
the National Labor Relations Board issued a backpay
specification and notice of hearing regarding Cases 19-
CA-13253 and 19-CA-13365. Respondent filed an
answer to the backpay specification January 30, 1984,
and an amended answer May 24, 1984. Following initial
postponement and relocation of hearing site by the Re-
gional Director, I heard the consolidated cases on
August 23, 1984, in Houston, Texas. At the commence-
ment of the consolidated hearing, and with the agree-
ment of all parties, I severed the consolidated cases.
Only Case 19-CA-13365 is decided herein.3
On the entire record, including posthearing briefs sub-
mitted by the General Counsel and Respondent, and
from my observation of the witnesses and their demean-
or, I make the following
FINDINGS AND CONCLUSIONS
1. THE GROSS BACKPAY FORMULA AND AMOUNT
There is no dispute that the backpay period for Skin-
ner commenced on March 17, 1981, and ended on April
30, 1982. Further, there was no dispute, and Respond-
ent's amended answer specifically admits, the formula for
calculation of gross backpay during the period and the
actual calculations themselves. Accordingly, consistent
with Respondent's amended answer, I find that the total
gross backpay for Skinner, on a quarterly basis, is that
amount alleged in the General Counsel's amended back-
pay specification.
II. ADMITTED AND ARGUED REDUCTIONS IN
BACKPAY CLAIM
A. Interim Earnings
The General Counsel alleged in the backpay specifica-
tion, as additionally amended orally at the hearing, that
Skinner received certain quarterly interim earnings,
which sums Respondent does not dispute. Consistent
1 263 NLRB 499 (1982).
8 720 F.2d 683 (9th Cit. 1983) (mem.).
$ My decision in Case 19-CA-13253, JD-(SF)-160-84, issued on
August 29, 1984, and was approved by the Board in the absence of ex-
ceptions by unpublished order dated October 4, 1984.
with the backpay specification and the answer, I find
Skinner received the interim earnings set forth in the
amended backpay specificationa as further amended
orally at the hearing.
B. Alleged Failure to Mitigate Damages
1. Skinner's employment search and loss of
employment during the backpay period
Skinner testified that soon after his discharge from Re-
spondent as an emergency medical technician, he sought
similar employment in the Tacoma, Washington area
over time extending his job search throughout the entire
western part of Washington State. He testified he visited
companies in the area in person, inquired about available
employment opportunities, and where vacancies were
extant or foreseeable, he submitted applications. Skinner
also testified that he utilized the public library and, con-
sulting numerous out-of-area telephone books, mailed
professional resumes to employers that had placed ads in
the yellow pages specifying paramedics or advance life
support services. He estimated that he sent out approxi-
mately 120 resumes to employers located in at least 20
States coast to coast. In mid-July 1981, Skinner received
a letter from American Ambulance Service in Houston,
Texas, dated July 17, 1981, signed by the general manag-
er. The letter indicated the company had examined Skin-
ner's resume and was "very pleased with your qualifica-
tions." The letter indicated that "bur company would
like to help you get settled in Houston with a job." Skin-
ner followed up the letter with a telephone call to the
general manager. He testified he was told American Am-
bulance would assist him with temporary employment,
but that permanent employment would be conditioned
on obtaining licenses and certificates required by state
and local governments in Texas.
Having received no other affirmative responses to his
resumes or personal job search, Skinner rented a U-Haul
trailer and moved with his family to Houston, Texas, ar-
riving about August 20, 1981.4
Skinner testified that he commenced work at Ameri-
can Ambulance about August 24, 1981. He worked for
approximately 10 days, at which point he was assigned
by the general manager, Ann Wanzer, to transport a pa-
tient approximately 400 miles during which trip the pa-
tient was to receive certain medical injections. Skinner
testified that the ambulance assigned for his use was a
new van recently received by the company and as yet
without outside lettering, or lights, and other necessary
inside equipment. He testified it was "essentially a van
with a stretcher mounted in the back of it," and that it
"did not meet my specifications to be an ambulance."
Skinner testified he had the following conversation with
Wanzer:
From that point I disagreed with both administer-
ing the medications on the ground that I was not
yet certified in the State of Texas to administer the
4 The parties stipulated that Skinner paid a rental fee of $302.21 for the
trailer . The parties further stipulated that the appropriate mileage expense
for this move, if otherwise compensable , was $476.22.
A A SUPERIOR AMBULANCE
medications required and also that the ambulance
which was just purchased by the company was not
set up and identified as an ambulance, and therefore
did not meet the qualifications for transport of the
patient
I was informed by [Wanzer] that if I disagreed
with the assignment I would have to take it up with
the owner of the company
Immediately thereafter Skinner met with owner Billy
Ray East Skinner testified that he discussed his objec
tions with East, who told him that he could either under
take the assignment as required or abandon his employe
ment In response, Skinner departed B East testified that
he met with Skinner who expressed dissatisfaction with
his assignment to a van style ambulance as opposed to a
modular ambulance East recalled Skinner told him, 'He
wasn't going to ride in anything but a module," and that
East told him that he "didn't have to work for me ' At
East s direction the following entry was made on a com
pany form containing Skinner's confidential employee
history in the box marked "Reason for resignation"
Mr Skinner worked 1 week & 1 day-did not like
the person nor ambulance he was put in so he
walked off the job at 8 30 am September 1981
without any notice
East aiso testified that the ambulance he operates have at
all times been complete, state approved, and adequate for
their assignments He testified he was unaware that Skin
ner had been assigned a 400 mile trip ' or assigned to
"administer drugs " Rather, East testified Skinner com
plained he did want to work 24 hours in a van
Skinner thereafter obtained employment with Medical
Center Ambulance in Houston, Texas, from September
12-28, 1981, as an independent contractor utilizing Medi
cal Center Ambulance immediately after being accused
by owner, Ramson Bill of a theft of supplies from the
company Jack D Lee, sergeant with the Houston,
Texas police department testified that he was assigned
the investigation of a theft of Medical Center Ambulance
supplies and spoke to Bill and on Bill s informing him of
his suspicion of Skinner, contacted Skinner and informed
him he was under suspicion of theft Skinner denied any
knowledge of or participation in any theft involving the
employer to police officials during the investigation and
at the hearing Lee testified that Houston police depart
ment has never solved the mystery of the missing
equipment and no charges have ever been filed
During the time Bill suspected Skinner of misconduct,
Bill reviewed Skinner s job application and checked the
references indicated previous employers had experienced
losses during Skinner's employ He testified he spoke to a
female employee at American Ambulance who also ex
pressed dissatisfaction with Skinner's employment He
also spoke to Moselle Hancock of Medic I, a separate
Texas ambulance company, who informed him that they
5 At the December 10 1981 unfair labor practice hearing Skinner testa
fed that he had never met East that he was discharged by American
Ambulance and further that his references had been checked by them
and they were unable to use someone with the type of references that I
got
839
were 'in the required a lie detector test of Skinner and
concluded that Skinner was "absolutely confused" and
that Medic I did not want him
Skinner testified that on the evening of Septenber 29,
he had occasion to stop by the office Bill in Skinner's
recall accused him of theft inferred that checked his ref
erences and that people had "nothing good to say about
me, ' and that Skinner had better leave Texas before
somebody kills me " Bill testified that although the theft
and his suspicion of Skinner left him emotionally upset-
"I was so mad I could have died"-he testified he was
unable to contact Skinner after the theft and that Skinner
simply ceased all contaact with the employer Subse
quently, his assigned duties were filled by others Bill
denies having any conversation with Skinner about the
incident, having threatened Skinner in any way, or oth
erwise indicating to him that his employment relationship
was terminated
Skinner testified that in his conversation with Bill he
was not made aware of what specifically had occurred
and in fact never understood the details of the apparent
theft until the police detective questioned him about the
matter at his home sometimes later
On August 28, 1981, Skinner submitted an employment
application to Medic I Ambulance of Houston, Texas
He also submitted a resume at the time As part of the
application process, the company checked references and
administered a written test Skinner was also given a
preemployment polygraph examination by E L Goad &
Associates on September 1, 1981 During the pretest
interview, Skinner made various statements admitting
prior serious misconduct The lie detector examiner, by
written memorandum dated September 1, 1981, reported
his findings and conclusions to Medic I Ambulance
Mozell Hancoc, Medic I Ambulance's general manager,
testified that the report on Skinner's polygraph examina
tion 'just as it is' would not have caused her to refuse to
hire Skinner Rather she testified that, although his not
holding Texas certification for ambulance operation ren
dered him immediately unemployable, she had deter
mined he was hireable when he obtained the certifica
tion She further testified that not until 6 months after
Skinner s submission of the employment application
without notifying them of the obtaining of Texas certifi
cation did she decide he was not eligible for hire
Skinner did not return to work for Medical Center
Ambulance following his having been accused of stealing
and being told by the police he was under investigation
Thereafter, Skinner moved to Columbus, Ohio where he
resided with his family while seeking work Skinner later
found employment with Carro Road Medical Group and
continued in that employment until April 24, 1982 He
then quit his employment and moved to California 6
2 Legal standards regarding mitigation
The Board, with the approval of the courts, has long
held that once the General Counsel has established gross
6 No claim for moving expenses was made by the General Counsel for
either the move to Ohio or to California but the backpay period extends
to the end of April 1982
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
backpay figures, the burden of proof is on Respondent to
establish appropriate reductions in those sums. Dodson's
Market v. NLRB, 553 F.2d 617 (9th Cir. 1977); NLRB v.
Pilot Freight Carriers, 604 F.2d 375 (5th Cir. 1979); Flite
Chief, Inc., 258 NLRB 1124 (1981); Wayne Trophy Corp.,
254 NLRB 881 (1981).
An individual, during the backpay period, has a duty
to mitigate his or her loss by making "reasonable efforts"
to find and keep alternate work. Phelps Dodge Corp. v.
NLRB, 313 U.S. 177 (1941). In making findings regard-
ing good-faith efforts to seek employment, the entire
record covering the entire backpay period should be
scrutinized and any findings be made in light of all the
surrounding circumstances. Cornwell Co., 171 NLRB 342,
343 (1968). As Respondent correctly argues on brief,
while the burden of proof is on Respondent to prove the
affirmative defense that a discriminatee quit an interim
job, once such a quit has been established, the burden
shifts to the General Counsel to "demonstrate that the
decision to quit was, in the circumstances, reasonable."
Big Three Industrial Gas Co., 263 NLRB 1189, 1199
(1982).
3. Backpay period to commencement of
employment with American Ambulance
Skinner testified, without contradiction, to his employ-
ment search during the period preceding his employment
with American Ambulance. He further testified that he
complied with and received unemployment compensa-
tion pursuant to Washington State Laws and regulations
which required, inter alia, regular job search. Respond-
ent challenges Skinner's testimony primarily based on
Skinner's lack of specification of particular employers
contacted and on the basis of its general attack on Skin-
ner's credibility. Finally, Respondent argues that the pas-
sage of a month's time between Skinner's initial commu-
nications with American Ambulance Service and his
moving to Texas indicate Skinner did not engage in
good-faith, diligent search for employment. I find no
basis for discrediting Skinner's testimony regarding his
efforts during this period and, accordingly, find his
search for employment to be reasonable. It is not inher-
ently implausible that the nonbinding commitments of
American Ambulance Service were not acted on imme-
diately by Skinner during a period of time when he was
actively seeking employment with other employers. Ac-
cordingly, I find the delay between his initial contacts
with American Ambulance and his move to Texas and
acceptance of employment were not inherently unreason-
able. Further given the uncontradicted facts that the
American Ambulance offer was the sole job offer in his
profession that Skinner had received at that time, it was
reasonable for him to move to Texas to accept such em-
ployment and, accordingly, I find his job search and
move to Texas reasonable and the stipulated moving ex-
penses reasonable and proper.'
7 The General Counsel correctly argues on brief that employees are
entitled to compensation for reasonable expenses incurred in seeking and
maintaining interim employment . Citing Reynolds Pallet & Box Co., 155
NLRB 384, 397 (1965), enfd . 399 F.2d 688 (6th Cir. 1968); Herman Bros
Pet Supply, 150 NLRB 1419, 1422-1424 (1965), enfd. 360 F.2d 176 (6th
Cir. 1966); W. C Nabors Co., 134 NLRB 1078 (1961); Pugh & Barr, Inc.,
4. Loss of employment with American Ambulance
It is unecessary to decide whether Skinner's employ-
ment with American Ambulance ended by termination
or quit. In Skinner's version of events, he was asked to
perform work in violation of his state certifications and
that he declined to do the work when given the option
to undertake the assignment or cease employment. East,
on behalf of the employer, testified that Skinner com-
plained of the duration of his shift and was told to under-
take his assignment or cease his employment. It is imma-
terial whether an employee unreasonably quits his em-
ployment or is fired for misconduct, either may consti-
tute a failure to mitigate injury. If, however, an employ-
ee is unreasonably terminated or quits reasonably, that
cessation of employment will not toll backpay. Thus, the
issue is not whether Skinner was terminated or quit his
employment at American Ambulance, but rather wheth-
er Skinner's cessation of employment occurred as a result
of Skinner's unreasonable refusal to accept a job assign-
ment, or whether the assignment itself was unreasonable
and improper. The determination of this question is one
of fact, requiring the resolution of the conflicting testi-
mony of Skinner and East.
Assigning the burden of proof on this question to the
General Counsel consistent with the Board's holding in
Big Three Industrial Gas & Equipment Co., supra, I find
that Skinner's loss of employment should not be held
against him for purposes of backpay calculations. I make
this finding on the basis of a resolution of the conflicting
testimony in favor of Skinnner and against East. Al-
though I base this resolution primarily on an evaluation
of the relative demeanor of Skinner and East, I also do
so in part because Skinner's testimony regarding his ini-
tial conversations with General Manager Wanzer of
American Ambulance were not contradicted. It is unlike-
ly that East, who had little knowledge of Skinner and
admitted he did not know of thge initial work assignment
that provoked Skinner's refusal to work, would be likely
to understand or recall Skinner's rationale for refusing to
perform. Rather, I find it would be much more likely
that East would simply remember Skinner's refusal to
accept his assignment as simply an act of insubordination
and thus fail to recall the specific details as testified to by
Skinner. Equally, Skinner, long without employment and
only recently in the area, would be unlikely to quit his
job or defiantly refuse an assignment based merely on
the identity of his colleague or the duration of the work
shift as East claims. Further, Skinner's detailed testimony
regarding his conversations with Wanzer, which immedi-
ately preceded his meeting with East, were not chal-
lenged. In all the circumstances I credit Skinner and
therefore find he made a professional judgment that it
would be improper for him to accept the assignment as
given and communicated his view to management. Faced
with an ultimatum that he must either accept the assign-
ment or cease employment, he stood firm. I decline to
102 NLRB 562, 566 (1953), remanded on other grounds 207 F.2d 409
(4th Cir. 1953), supplementing 110 NLRB 1356 (1954), enfd. 231 F.2d 588
(4th Cir. 1956). These moving expenses therefore count as a deduction
from interim earnings . Florida Steel Corp., 234 NLRB 1089 (1978).
A A SUPERIOR AMBULANCE
find that the exercise of this option, be it resignation or
termination, should end or limit Respondents backpay
obligation under the circumstances presented here
5 The loss of employment with Medical Center
Ambulance
It is clear that Skinner s employment at Medical
Center Ambulance ceased as a result of Skinner s falling
under suspicion of stealing the company s equipment
About the contradictions in the versions of events as tes
tified to by Skinner and Bill regarding the occurrence of
a conversation in which Bill accused Skinner of thievery
and threatened him with adverse consequences if he re
mained in the State I credit Skinner Bill was admittedly
very upset at this time and his admittedly strong belief
that Skinner was a thief leads me to believe that Bill
simply did not recall his conversation with Skinner Ac
cordingly, I do not find, as testified by Bill, that Skinner
merely disappeared following the theft and was in no
post theft contact with the company I find rather, that
Bill accused and threatened Skinner and as a conse
quence Skinner had no further contacts with the compa
ny Thus I find that Skinner was terminated for theft
from Medical Center Ambulance
Given that Skinner was discharged for theft, the issue
for resolution is whether in fact he did engage in the
misconduct that resulted in his termination Under any
resolution of conflicting testimony and under any assign
ment of the burden of proof, there is insufficient evi
dence to discredit Skinner s certain testimony that he did
not engage in the misconduct attributed to him Indeed,
the testimony of Bill is simply that circumstances cast
suspicion on Skinner The police did not arrest Skinner
nor was he ever charged with the crime Suspicion is not
proof of misconduct and cannot sustain a finding here
Given that Skinner did not commit the crime, his loss of
employment cannot be attributed to any unreasonable
action on his part Thus, his loss of employment does not
constitute a failure to mitigate backpay in the circum
stances presented here
6 Respondent's other defenses
Respondent argues initially on brief that the backpay
claimants misconduct, as reflected in part by his state
ments to the polgraph examiner, indicate he has
Engaged in a prolonged course of conduct which if
known to any prospective employer of paramedics
would result in his being denied unemployment
Such social unavailability, like physical un
availability would cut off all claims for backpay
from and after the date of disability
Respondent advances the testimony of Hancock of
Medic I Ambulance that, while in my judgment clearly
evasive and incredible, suggested that the misconduct ad
mitted by Skinner, while not immediately disabling on
the part of a potential employee would cause Medical I
Ambulance to question the applicant regarding the areas
of misconduct before any hire I do not find that Skinner
tolled his backpay through his previous conduct nor that
he abandoned his search for employment by his conver
841
sations with a polygraph examiner regarding Medic I
Ambulance Rather examining the record as a whole
and Skinner s conduct during that period, I find that
Skinner reasonably sought employment and was not in
any conventional way unemployable in the industry or
the profession he espoused Accordingly I reject this
aspect of Respondents defense
A second defense raised by Respondent was that Skin
ner s conduct as noted in his admissions to the poly
graph examiner, would have supported Skinner s dis
charge by Respondent had Skinner remained in their
employ and had Respondents managing agents been
aware of his unlawful conduct Respondent supported
this argument in part with two circuit court decisions de
nying enforcement to Board cases8 and further relying
on the testimony of Darlene Palmas, a relative of the
owners and a statutory supervisor of Respondents She
testified that if she had known of the misconduct of Skin
ner as related in his admissioms to the polygraph claim
ant, she would have recommended Skinner s termination
to her parents
While at the trial I ruled that misconduct could not
toll Respondents backpay obligation unless and until
made known to Respondent, the two circuit court cases
to the contrary notwithstanding a recent case, Western
Pacific Construction, 272 NLRB 1393 (1984), arguably
supports Respondent's position Accordingly, it is appro
pnate to consider if Respondents factual argument has
merit
Based on Palmas testimony and the record as a whole,
I reject Respondents defense that had it known of Skin
ner s earlier misconduct it would have let him go Ex
amination of the Board s decision in the underlying
unfair labor practice case reveals that it is not at all clear
that Skinner would have been discharged by Respondent
even if his admissions regarding his conduct made to the
polygraph examiner were taken at face value unmitigated
by his explanatory testimony Simply put Respondent
on many occasions simply elected to accept and retain
Skinner despite his numerous apparent failings and de
spite the strong contrary recommendations of Respond
ent s agents I find that Skinner s misconduct, if it had
been made known to Respondent, would not necessarily
have caused his discharge and hence should not be re
garded as having tolled backpay in his case This entire
defense is hypotheical and uncertain in the extreme The
Board has long held, with circuit court approval, that
uncertainties will be assessed against the wrongdoer
NLRB v Coca Cola Bottling Co, 360 F 2d 569 (5th Cir
1966) and here it was Respondents wrongdoing in ter
minating Skinner that made it impossible to determine
with certainly if Skinner s apparent later misconduct
would have caused his termination Accordingly, I reject
Respondent's additional defense here
8 Respondent cites NLRB v Mutual Maintenance Service Co 632 F 2d
33 38-39 (7th Cir 1980) Alumbaugh Coal Corp v NLRB 635 F 2d 1380
1385-1386 (8th Cir 1980)
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Skinner's employment following Medical Center
Ambulance
Following cessation of services for Medical Center
Ambulance about September 29, 1981, Skinner moved to
Columbus, Ohio 9
There was little testimony regarding Skinner's search
for work in Ohio Ultimately he obtained employment
for Carro Road Medical Group, which employment he
left on April 24, 1982, to move to California Skinner tes
tified his reason for leaving his interim employment was
to find employment in a geographical area more to his
liking
Consistent with my findings supra, and here in the ab
sence of any specific attack by Respondent, I find Skin
ner s Ohio efforts to find employment were reasonable
and, hence, Skinner did not in any way fail to mitigate
Respondents backpay obligations There is no dispute
that Skinner's interim employment earning with Carro
Road Medical Group are an offset to Respondent's back
pay obligation Skinner's abandonment of his employ
ment to seek greener pastures is not a reasonable basis
for a quit however Accordingly, Skinner s April 24,
1982 quit tolls Respondents backpay obligation for the
final week of the backpay period Accordingly, backpay
for the final quarter of the backpay period will be ac
cordingly reduced
III COMPUTATION OF BACKPAY
Based on the backpay specification and answer, as
amended at the hearing, the stipulation of the parties
with respect to the amount of expenses, and in light of
my rulings supra, the table in the Appendix reflects the
quarterly sums due Skimmer
On the basis of the foregoing, it is recommended that
ithe Board issue the following"
ORDER
It is ordered that Respondent, A A Superior Ambu
lance Services, Tacoma, Washington, its officers, agents,
successors, and assigns , pav to Richard P Skinner back
pay in the amount of $17,018 48, plus interest in the
manner set forth in Florida Steel Corp, 231 NLRB 651
(1977), and Olympic Medical Corp, 250 NLRB 146
(1980),12 less tax withholding required by Federal and
state laws
9 Skinner testified without contradiction that following cessation of
employment with Medical Center Ambulance in Houston Texas he was
without reasonable prospects for employment or financial means His par
ents were residents in Ohio and for that reason Skinner and his immedi
ate family returned there
No claim is made for moving expenses It is not contended the move
was made in bad faith and I find the move does not terminate Skinner s
backpay claim
is The General Counsels gross backpay figure for April 1982 has been
reduced by twelve fifty seconds to reflect a 1 week earlier tolling of
backpay
I'If no exceptions are filed as provide by Sec 102 46 of the Board s
Rules and Regulations the findings conclu ions and recommended
Order shall as provided in Sec 102 48 of the Board s Rules and regula
tions be adopted by the Board and become its findings conclusions and
order and all objections shall be waived for all purposes
12 See generally Isis Plumbing Co 138 NLRB 716 (1962) The pecift
cation of eanungs by calendar quarter shall be used for purpose of inter
est calculation
APPENDIX
Yr /Qtr Gross Backpay Expenses Interim Earnings Net Backpay
1981/1 $ 637 20 0- -0- $ 637 20
1981/2 3 758 40 -0- -0- 375840
1981/3 375840 $77843 $80000 3 736 83
1981/4 459360 0 -0- 459360
1982/1 4 593 60 -0- 75300 3 840 60
1982/2 10117785 -0 72600 451 85
Total net
backpay $17 018 48