Airports Service Lines, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1977

231 N.L.R.B. 1272 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Airports Service Lines, Inc. and R. Paul Pfeiffer and
Lynn Sawyer. Cases 7-CA-11110 and 7-CA-
11163
September 12, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On March 29, 1977, Administrative Law Judge
Elbert D. Gadsden issued the attached Supplemental
Decision in this proceeding.' Thereafter, Respondent
filed exceptions and a supporting brief.2
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
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, 3 and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order, as modified herein.
Respondent excepts to the Administrative Law
Judge's finding that Respondent never offered
reinstatement to Lynn Sawyer. In adopting the
Administrative Law Judge's finding in this regard,
we take administrative notice of the fact that, in the
underlying unfair labor practice decision, a Board
panel majority noted that a letter was sent to Sawyer
purportedly offering her reinstatement, but decided
to leave to compliance any determination as to
whether the offer allegedly made was a proper one.4
In its answer to the General Counsel's backpay
specification, Respondent alleged that a valid and
proper offer of reinstatement had been made by the
above letter to Sawyer. However, at the subsequent
hearing held herein, Respondent did not offer the
letter into evidence or elicit any testimony in support
of the validity of the offer. Respondent's only
reference to the letter was in connection with its
stated purpose for sending it: to induce Sawyer to
contact Respondent so that Respondent could
i Airporis Service Lines, Inc., 218 NLRB 1160(1975), enfd. Case 75 2046
(C A. 6, Feb. 2. 1977).
' Subsequent to the issuance of the Administrative Law Judge's
Decision. Respondent filed a motion to reopen the record for the purpose of
adducing new evidence that Lynn Sawyer was incapable of working during
all or a substantial portion of the backpay period. The General Counsel filed
a brief in opposition. Respondent based its motion on Sawyer's refusal to
undergo a physical examination by its company doctor as requested in a
letter offering her reinstatement, dated May 20, 1977. The facts alleged in
the motion, even if true, would not affect our determination herein.
Accordingly. the motion is hereby denied.
: Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
231 NLRB No. 137
inform her that her job had been eliminated. The
failure on the part of Respondent to establish that an
offer had been made resulted from a change in the
theory stated in Respondent's answer to the backpay
specification; i.e., that an offer of reinstatement had
been made. At the hearing, Respondent asserted for
the first time that the position found to have been
held by Sawyer in the underlying unfair labor
practice case, i.e., dispatcher/trainee, was not the
position she in fact held, but rather that she was a
telephone operator. This latter assertion was not
pleaded in Respondent's answer to the backpay
specification as required by the Board Rules.s Thus,
the Administrative Law Judge was correct in finding,
in the absence of any evidence supporting the
defenses asserted in the answer, that no valid offer of
reinstatement had been made. Moreover, the deter-
mination as to whether Sawyer's job classification
was that of a telephone operator rather than a
dispatcher/trainee was not in issue, since the Board
had already made a finding of fact in the underlying
unfair labor practice case that Sawyer had been
employed as a dispatcher/trainee. The Board's Rules
provide explicit instructions concerning the pleadings
in a backpay proceeding, and the Administrative
Law Judge found that Respondent did not adhere to
that procedure. Since the defense pleaded in the
answer was not supported by evidence at the hearing,
and the defense asserted for the first time at the
hearing was improperly raised because it was not
specifically pleaded in the answer, we fully agree
with the Administrative Law Judge's conclusion that
there was insufficient evidence to support Respon-
dent's defense.6
As noted above, Respondent shifted its defense at
the hearing to assert that the job which Sawyer
allegedly held, i.e., telephone operator, was proba-
tionary or temporary and had been abolished, and
thus that there was no similar position to which she
could have been reinstated. We agree with the
Administrative Law Judge's disposition of this
"probationary" defense raised by Respondent. This
defense was raised for the first time at the hearing
and was not pleaded as an affirmative defense as
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent has requested oral argument. This request is hereby denied
as the record, the exceptions, and briefs adequately present the issues and
positions of the parties.
4 Member Jenkins, in his dissent in part, concluded that the alleged offer
of reinstatement was never received by Sawyer, and thus there was no
further need to inquire into the validity of that offer.
, Rules and Regulations and Statements of Procedure. Series 8. as
amended. Secs. 102.54(b) and (c).
6 Interstate Equipment Co., Inc., el al, 186 NLRB 121 (1970).
1272
AIRPORTS SERVICE LINES
required by the Board's Rules and Regulations
regarding backpay proceedings.7 Thus, the Adminis-
trative Law Judge in his Decision correctly reversed
his ruling made at the hearing which had permitted
the introduction of evidence on this issue. Moreover,
we agree with the Administrative Law Judge's
conclusion that, were there to be a finding on such
improperly admitted evidence, Respondent failed to
establish that Lynn Sawyer was hired as a probation-
ary employee in a job that was experimental or
temporary.
Respondent also excepts to the finding of the
Administrative Law Judge that, at the time of the
discharge, Sawyer's hourly wage rate was $2.30 per
hour and that it increased to $2.50 per hour in June
1975, as the result of a wage increase negotiated by
the Union. The Administrative Law Judge based his
finding on Respondent's answer, which admitted
that the backpay specification was correctly calculat-
ed, thereby offering in the answer no alternative
figures which could have been proved at the hearing.
In any event, Respondent contended at the hearing
that the wage rate was $2.10 per hour and remained
at that level, relying on Sawyer's testimony as to such
a rate, and on a subsequent employment application
she had filed showing that rate. However, as found
by the Administrative Law Judge, since Respondent
did not specifically plead in its answer the basis of its
claim, accompanied by supporting data revealing
Sawyer's wage rate at the time of the discharge, we
conclude that Respondent improperly attempted to
litigate this matter at the hearing. Therefore, we
affirm the Administrative Law Judge's conclusions
for the reasons stated by him.
Finally, Respondent excepts to the Administrative
Law Judge's finding that Lynn Sawyer made a
reasonable and diligent search for alternative em-
ployment. Respondent contends that newspaper
want ads revealed numerous job openings; Sawyer
went to Las Vegas for 3 months to visit friends; and
she quit an interim job as a beautician at a health
spa. We note that Sawyer registered with the state
unemployment bureau, checking back periodically;
she regularly checked newspaper want ads, visiting
numerous establishments to submit applications for
7 See fns. 5 and 6. supra.
I The record discloses and the Administrative Law Judge found that
Sawyer was not available for work because of illness during the month of
September in the third quarter of 1975, and the month of March in the first
quarter of 1976 We have therefore made the appropriate deductions from
the gross backpa lIor each of those quarters. We further note that Sawyer
was unavailable for work for 3 weeks in the month of MaN in the second
employment; she went to Las Vegas with friends to
find work, but was unsuccessful; and the job
opportunities revealed by the newspaper want ads
introduced into evidence by Respondent were largely
for beauty shop work, work which she cannot
perform because of an allergy she developed from
keeping her hands in water. In this regard, it should
also be noted that it was her allergic condition which
caused her to quit her interim job at the health spa.
Therefore, as Sawyer made a reasonable and diligent
search for other employment, and as the newspaper
want ads did not establish that the jobs would have
been available if Sawyer applied or that she would
have been selected for any available positions, the
Administrative Law Judge was satisfied, and we
agree, that Sawyer made a diligent search and sought
to diminish backpay by seeking other employment.
The Administrative Law Judge concluded that
Respondent was liable for the amount of backpay set
forth in the amended backpay specification, as
further amended during the hearing. This sum is the
amount set forth in the backpay specification less
deductions for the periods when Sawyer could not
work because she was ill or otherwise incapacitated."
However, the Administrative Law Judge's Decision
did not contain a computation of the total net
backpay, quarter by quarter, nor did it show in a
chart how and where he adjusted the net backpay
total. We have shown those computations in the
Appendix to our Order. Based on our computations,
the net backpay due Sawyer is $ 13,274.24.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified herein and hereby orders that the Respon-
dent, Airports Service Lines, Inc., Pontiac, Michigan,
its officers, agents, successors, and assigns, shall pay
Lynn Sawyer the sum of $13,274.24 plus interest as
set forth in Isis Plumding & Heating Co., 138 NLRB
716 (1962) and Florida Steel Corporation. 9
quarter of 1976. We have likewise made the appropriate deductions from
gross backpay for the second quarter of 1976.
9 In accordance with our decision in Florida Steel Corporalion., 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
1273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
Days I/ Total 3/ Wageo ross / Not Inteorim Net
Qtr. Available Hours Rate lackpay Earinlns Backopa
1974 - 2
-3
-4
1975 - 1
-2
-3
-4
1976 - I
- 2
50
65
65
65
65
44
65
41
50
549
713.7
713.7
713.7
713.7
483.12
713.7
450.18
549
$2.30
2.30
2.30
2.30
2.30
2.50
2.50
2.50
2.50
$1,262.70 - 0 -
1,641.51 - 0 -
1,641.51 - 0 -
1,641.51 - 0 -
1,641.51 $44.50
1,207.80 - 0 -
1,784.25 - 0 -
1,125.45 - 0 -
1.,372.50 - 0 -
TOTAL NET BAaCPAY:
$1,262.70
1,641.51
1,641.51
1,641.51
1,597.01
1,207.80
1,784.25
1,125.45
1.372.50
$13,274.24
1/J aod on a 5-day workweeok, this column represents the total number of days
in each quarter that Lynn Sawyer was available for work.
2/ Computed by multiplying the average daily hours (10.98) by the number of
days available for work (fros the previous oolumn).
2/ Computed by mutiplying the vags rate by the total hours.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Pursu-
ant to a decision and order of the National Labor
Relations Board in Cases 7-CA-11110 and 7-CA-11163,
directing Airports Service Lines, Inc., herein called Re-
spondent, to make whole discharged employees for losses
occasioned by Respondent's unfair labor practices in
violation of Section 8(a)(1) and (3), the United States Court
of Appeals for the Sixth Circuit having on February 2,
1976, entered its consent judgment enforcing in full the
backpay provisions of the Board's Order, and the contro-
versy having arose over the amount due under the terms of
the Board's Order, the Regional Director for the National
Labor Relations Board for Region 7 issued this backpay
specification and notice of hearing on August 19, 1976,
alleging the amount of backpay due under the Board's
Order.
With respect to the amount of backpay due Lynn Sawyer
as alleged in the backpay specifications, Respondent filed
an answer on September 7, 1976, admitting that the
backpay for discriminatee Sawyer commenced on April 18,
1974, but denying that it continued to this date (September
24, 1976); and it affirmatively averred that discriminatee
Sawyer made no effort to obtain other employment to
mitigate Respondent's money liability. Respondent also
admitted the backpay specifications with respect to
discriminatee Sawyer as set forth in Appendix B attached
to the complaint, except as qualified by its aforedescribed
denials and affirmative defenses.
The hearing in the above matter was held before me at
Detroit, Michigan, on September 24, 1976. Briefs have
been received from counsel for the General Counsel and
counsel for Respondent, respectively, which have been
carefully considered.
Upon the entire record in this case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. BACKPAY SPECIFICATIONS
The undisputed and credited evidence of record estab-
lished that the National Labor Relations Board (herein
called the Board) issued its Decision and Order on June 30,
1975, 218 NLRB 1160, directing the Respondent, Airports
Service Lines, Inc., to offer reinstatement to R. Paul
Pfeiffer and Lynn Sawyer, and make them whole for any
loss of earnings they may have suffered as a result of
Respondent's unfair labor practices in violation of Section
8(a)(1) and (3) of the Act. On February 2, 1976, the United
States Court of Appeals for the Sixth Circuit entered its
decree enforcing the Board's Order in full, including the
backpay provisions. A controversy having arisen between
the parties concerning the amount of backpay due under
the terms of the Board's Order, the Regional Director for
Region seven issued this amended backpay specifications
alleging that backpay due under the terms of the Board's
Order of June 30, 1975, is as follows:
1. The gross backpay due to discriminatees R. Paul
Pfeiffer and Lynn Sawyer is the amount of wages each
would have earned but for the discrimination against
them.
2. (a) The backpay period for discriminatee Pfeiffer
commenced on April 18, 1974, when Respondent
discharged him and continued until September 10,
1975, when he refused an offer of reinstatement.
1274
AIRPORTS SERVICE LINES
(b) The backpay period for discriminatee Sawyer
commenced on April 18, 1974, when Respondent
discharged her and continues to date, as no valid and
proper offer of reinstatement to her former position of
employment has been made by Respondent.
3. The gross backpay due discriminatees Pfeiffer
and Sawyer was computed on the following basis:
(a) An appropriate measure of the average weekly
hours which would have been worked during the
backpay period is the average weekly hours worked by
them during representative periods of employment
prior to their discharges.
(b) An appropriate measure of the hourly wage rate
which would have been paid to each is the wage rate
each was earning at the time of the discharges plus an
increase in the hourly rate which was given to all
employees in June 1975.
(c) Quarterly gross backpay was computed by
multiplying average weekly hours by the number of
weeks in the quarter by the hourly wage rate.
(d) The gross backpay for each of the discriminatees
is set forth as follows:
APPEIDIX A
Lynn Sawyer
(a) Calculation of Average Hours
274.50 Hours ; 5 - 54.90
(Total hr.. worked dur-
ing 5 full vka. of (No.
employment prior to of (Avg.
termination) Wks.) Hrs.)
(b) Application of Average
Calendar Average
Year and Weekly No. of
Quarter Hours Weeks
1974 -2
1974 -3
1974 -4
1975 -1
1975 -2
1975 -3
1975 -4
1976 -1
1976 -2
54.90
54.90
54.90
54.90
54.90
54.90
54.90
54.90
54.90
10
13
13
13
13
13
13
13
13
APPENDIX 3
DITEHIN EPLOTINT
Lynn Sawyer
Calendar
Year end Interim
Quarter EmloYer
1974 -2
1974 -3
1974 -4
1975 -1
1975 -2
1975 -3
1975 -4
1976 -1
1976 -2
None
None
None
Medicos
hacovery Care
Center 22355
best light Mile
load Detroit,
MI 48219
None
None
None
None
Nona
Interim
Eernines
- 0 -
- 0 -
- 0-
$44.50
- 0-
- 0-
- 0 -
- 0 -
-0-
APPENDIX C
Lynn S lyer
No additional expenses claimed.
APPENDIX D
Lynn Sawvye r
Calundar Net
Year and Cross Interim Not
uarter Backeoy Eatnas backDay
1974 -2
1974 -3
1974 -4
1975 -1
1975 -2
1975 -3
1975 -4
1976 -1
1976 -2
$1,262.70
1,641.51
1,641.51
1,652.49
1. 784.25
1,784.25
1,784.25
1,784.25
1,784.25
- 0 - $1,262.70
- 0 - 1,641.51
- 0 - 1,641.51
$44.50 1,597.01
- 0 - 1,652.49
- 0 - 1,784.25
- 0 - 1,784.25
- 0 - 1,784.25
- 0 - 1.784.25
Total $14,932.22
(c) Total Wage Cross
Hours RCte hackpas
549.00
713.70
713.70
713.70
713.70
713.70
713.70
713.70
713.70
$2.30
2.30
2.30
2.30
2.30
2.30/2.50
2.50
2.50
2.50
$1,262.70
1,641.51
1,641.51
1,652.49
1,784.25
1,784.25
1,784.25
1,784.25
The General Counsel alleges that the Board's Order and
the court's decree will be satisfied by Respondent's
payment of $14,932.22 to Lynn Sawyer.
During this proceeding the parties entered into a non-
Board settlement agreement with respect to the backpay
owing to R. Paul Pfeiffer, which agreement they agreed
would be reduced to writing and signed subsequent to the
adjournment of this proceeding.'
I The facts set forth above are not in conflict in the record.
1275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Respondent's Qenials and Affirmative Defenses
to Allegations in the Amended Backpay Specifications
Although in paragraph 3(b) of its answer Respondent
admits that the backpay period for discriminatee Sawyer
commenced on April 18, 1974, when Respondent dis-
charged her, it categorically denies that such period
continues to date; and it affirmatively avers that a valid
and proper offer of reinstatement was made to discrimina-
tee Sawyer on or about July 9, 1974, which discriminatee
Sawyer constructively refused.
In paragraph 2(b) of its answer, Respondent denies that
hourly wage rates were given all employees in June 1975
and affirmatively avers that clerical employees and dis-
patchers did not receive uniform wage increases at that
time or at any other time.
The General Counsel alleges in paragraph 3(b) of the
backpay specifications that "An appropriate measure of
the hourly wage rate which would have been paid to each is
the wage rate each was earning at the time of the
discharges plus an increase in the hourly rate which was
given to all employees in June 1975."
In its answer to the above allegation, Respondent admits
that the computations as set forth in the Appendix are
correctly calculated and based on the appropriate data,
except as provided in its qualified answer to paragraph 3(b)
above.
With respect to Respondent's above-described defense in
paragraph 3(b) of its answer that Sawyer's period of
unemployment did not continue to the date of this
proceeding because Respondent made a valid and proper
offer for her reinstatement on or about July 9, 1974, the
record is barren of any evidence that Respondent ever
offered Lynn Sawyer reinstatement to her job. At most, the
record shows that on cross-examination counsel for
Respondent propounded several questions to Sawyer
regarding her home address at the time she applied for
employment and her address at the time she left the
employ of Respondent and thereafter.
In support of its contention that such an offer had been
made, counsel for Respondent cites Adams Book Company,
Inc., 203 NLRB 761 (1973). However, a review of that case
very readily reveals that the employer therein established
that it sent letters offering reinstatements to the last known
address of four dischargees. Two of the letters were
returned to the employer marked undelivered. Here,
Respondent has failed to demonstrate that it sent Sawyer a
letter or made any effort to communicate with Sawyer in
any form, with respect to offering her reinstatement. I
discredit its contention that it did so.
Based on the absence of any evidence of record that
Respondent offered Sawyer reinstatement, I hereupon
conclude and find that a valid and proper offer for
reinstatement to her job was not made by Respondent
either on or about July 9, 1974, or at any other time.
In view of Respondent's affirmative defenses set forth in
paragraph 3(b) of its answer, relating to hourly wages and a
wage increase to drivers as distinguished from dispatchers,
2 In spite of such extensive cross-examination, I nevertheless credit the
testimony of Compliance Officer Basso because I was persuaded by the
straightforward, professional, and nonexaggerating manner in which he
testified that he was testifying truthfully. Moreover, I credit Mr. Basso's
and in view of counsel for Respondent having earlier in this
proceeding represented to the court that he had reason to
believe there was error and apparent misrepresentation in
the backpay specifications as his prior questions had
suggested, the Administrative Law Judge allowed counsel
for Respondent, over the objection of counsel for the
General Counsel, to interrogate Compliance Officer Basso
with respect to the driver versus dispatcher-trainee capacity
of Lynn Sawyer and the accuracy of Mr. Basso's computa-
tions. At this time the Administrative Law Judge viewed
Respondent's 3(b) answer as being sufficiently specific to
satisfy Section 102.54(b) of the Board's Rules, cited by
counsel for the General Counsel.
Also at this stage in the proceeding it had not been
established whether Sawyer had been found to be a driver
or a dispatcher-trainee, with reference to Respondent's 3(b)
answer. There were some questions propounded to Mr.
Basso about what was in the transcript of the original
proceeding about Sawyer's job capacity. However, those
questions did not establish that the issue had been litigated
so that administrative notice could be taken thereof.
Counsel for Respondent thereupon embarked on exten-
sive and persistent interrogation of Mr. Basso, dealing with
what job Sawyer initially applied for, whether or not her
job was probationary, whether he investigated Sawyer's
past work experience, in what capacity she was employed,
and whether he examined the union contract with respect
to Sawyer's job.2
However, upon the conclusion of counsel for Respon-
dent's cross-examination of Compliance Officer Basso on
the accuracy of his computations, counsel for the General
Counsel moved to amend the backpay specifications by
adding 3(e), which provides that Lynn Sawyer was
unavailable for work during September 1975 and for the
period from June 15, 1976, to the date of this proceeding
(September 24, 1976). The motion was granted without
objection from Respondent.
In an effort to prove that Sawyer was not a dispatcher-
trainee, counsel for Respondent proceeded to cross-exam-
ine dischargee R. Paul Pfieffer on his observations of the
capacity in which Sawyer was working in the office.
Pfieffer described occasional instances during which he
saw Sawyer take reservations for limousines, dispatch
drivers when they called in, and answer the telephone, the
same duties dispatcher Elmer Reeves performed.
In this regard, Lynn Sawyer testified that she was
interviewed for employment at Respondent by Mr. Linteau
in early March. At that time she said he told her he would
start her as a trainee-dispatcher by answering the phones,
and learning how to schedule the limousines to all of the
given points. She said later on the same day she talked to
Mr. Linteau and their conversation was as follows:
Louie and I sat down, and he said, "I want to talk as
frankly as I possibly can." He said, "We need
somebody to help dispatch." He said, "We need
somebody to help on the phones, and we would like to
break somebody in, new at the job." And I said, "Well,
testimony because Respondent's extensive cross-examination of him did not
produce one item of probative evidence that he was not testifying truthfully.
Nor were any patent errors in the specifications uncovered.
1276
AIRPORTS SERVICE LINES
that sounds good." I said, "Is there any way I could
possibly be a driver." He said, "Well, we will try you at
one thing first, and if it doesn't work then maybe you
can be a driver."
Q. Did he indicate to you at any time that the job
that he was hiring you for was a temporary job?
A. No, he did not.
Cindy Belle Green, president and general manager of
Respondent, testified that she has been employed by
Respondent for 13 years and has served as president and
general manager for approximately 8 years. She further
testified that Lynn Sawyer was employed by Respondent in
the capacity of a telephone operator. She then identified
Sawyer's application for employment, dated March II1,
1974, which indicated Sawyer applied for the position of
telephone operator. She denied that Sawyer was ever
employed as a dispatcher. Green described Sawyer's duties
as follows:
She took in keys from the drivers, or handed them
their envelopes from the dispatcher to them; or
punched their timecards. She answered the telephones
putting them on hold for the dispatcher or on hold for
whomever else they might be calling for, for myself or
for Mr. Linteau, and then referring the calls to us. She
did take some reservations, and then turned them over
to the dispatcher. She also had to turn the gas pump off
and on which was right near her desk. And in general
help the dispatcher or transfer calls to whoever else was
in the office.
She also punched the timecards and envelopes of the
limousine drivers.
President Green further testified that the duties of a
dispatcher are as follows:
The dispatcher has approximately five reservation
books in front of him. And, of course, there are
telephones with several lines coming in, and he has to
dispatch limousines for pickups to 68 different cities.
We have approximately 50 limousines running 24 hours
a day, but we have 50 of them on the road usually four
or five hours out of each day. He has to know where all
of their stops and the pickups are. He has to know all
the schedules. We have a schedule running from Ann
Arbor every 30 minutes. We have a schedule running
from the Parkcrest Motel on the East Side every 30
minutes. We also have hundreds of reservations tied
into these scheduled runs. A dispatcher has to route
these buses, know their running time, know where they
all are at once, and be able to direct them to each
individual point when they call on the phone.
If I were to make a finding upon the above testimony of dischargees
Pfeiffer and Sawyer. and Respondent's President Green, I would credit the
versions of Pfeiffer and Sawyer over that of President Green. I would credit
Pfeiffer and Sawyer because I was persuaded by their straightforward. self-
assured. and earnest demeanor throughout this proceeding that they were
telling the truth. While I would credit President Green's description of the
duties ofa dispatcher. I would discredit her testimony that Sawyer was hired
aind remained a telephone operator. As she testified I was persuaded by her
ill-at-ease (blinking her eyes on crucial questions about Sawyer's job
He also takes all reservations and puts them in these
books where they belong.
Q. Does he have complete charge of the drivers
and tell them when to go off route and when not to
keep up their schedules, etcetera?
A. He has complete charge of all the drivers.
Q. And you said you have some 50 units daily, 50
units operating with drivers?
A. Approximately. It varies with the conditions
and the business. 3
B. Respondent's Nonpleaded Defense That Sawyer
was ProBationary and her JoJ Experimental
Counsel for Respondent indicated he intended to show
that Sawyer's job was an experimental probationary job
and he thereupon moved to so amend his answer to that
effect. General Counsel objected to the amendment and
the Administrative Law Judge overruled the objection, the
question being related to Sawyer's job capacity already an
issue.
Mr. Basso continued to testify that Respondent (Mr.
Jerome) was given an estimated figure of backpay liability
on October 23, 1975. During the year thereafter, Respon-
dent had complained about the length of the backpay
period and that it believed there had been a valid offer for
reinstatement to Sawyer. Mr. Basso said he did not know
of any other complaints of Respondent until Respondent
filed its answer complaining about the wage rate for
Sawyer. All of his discussions about backpay were held
with Respondent's cocounsel, Mr. David Jerome.
Counsel for Respondent then proceeded to interrogate
President Green about the removal of a large number of
telephone lines from the service of its business which
resulted in Respondent not needing the job position
previously performed by Lynn Sawyer; and that thereafter
Respondent's business started feeling the effects of the
economic recession which necessitated a reduction in the
number of its drivers, the sale of five of its cars, and the
removal of some of its cars from insurance coverage.
Thereupon, counsel for respective parties undertook an
after-the-fact interrogation of President Green with respect
to whether Sawyer's job was originally permanent or
temporary. The witness (Green) stated that when Sawyer
performed the job she had no supervisory authority and
she earned $2.10 an hour as a trainee; and that the position
was a 60-day probationary job. Louis Clark Linteau,
chairman of the board and principal owner of Respondent,
essentially corroborated the testimony of President Cyn-
thia Green.
On rebuttal, Lynn Sawyer testified that the chairman of
the board of Respondent, Mr. Linteau, did not tell her the
job was temporary or probationary. 4
capacity) demeanor that she was not testifying truthfully. Even though
Respondent produced Sawyer's application for employment indicating
position applied for was "Telephone operator,." I nevertheless would credit
Sawyer's explanation of record and I would place more weight on the
testimony about the dispatcher-trainee duties she actually performed.
4 If I were to make a finding based on the above testimony as to whether
Lynn Sawyer was hired by Respondent as a temporary or probationary job
employee, I would credit Sawyer's version as corroborated by the credited
testimony of R. Paul Pfeiffer, supra. I would credit Sawyer's testimony
(Continued)
1277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the conclusion of President Green's description of the
duties of a dispatcher, counsel for the General Counsel
brought to the attention of the Administrative Law Judge
the decision of the Administrative Law Judge in the
original proceeding, reported at 218 NLRB 1160 (1975). In
that decision the Administrative Law Judge therein found
that Lynn Sawyer was hired as a dispatcher-trainee. 5
C. Respondent's Affirmative Defense of Failure of
Sawyer To Seek Other Employment
In denying any knowledge of Lynn Sawyer's interim
earnings and expenses as alleged in paragraph 4 of the
backpay specifications, Respondent affirmatively avers in
paragraph 4 of its answer that discriminatee Sawyer made
no effort to obtain other employment to mitigate the
liability involved.
In an effort to substantiate his theory, counsel for
Respondent had his cocounsel of record, David E. Jerome
assume the witness stand and testify on his investigative
findings of various Sunday newspaper "want advertise-
ments" for such jobs as beauty salon worker and cab and
limousine drivers listed during the months of May 5, 1974,
through September 5, 1976, in the Detroit metropolitan
area. As Mr. Jerome proceeded to summarize his findings
on the availability of such jobs, counsel for the General
Counsel objected to the admissibility of the newspaper job
advertisements (Resp. Exh. 2(b)), on the grounds that such
evidence was hearsay and according to the Code of
Professional Responsibility was inconsistent in positions
which destroyed the credibility of Mr. Jerome. The
Administrative Law Judge received Respondent's Exhibit
2(b) under advisement.
General Counsel thereupon objected to Respondent
relitigating the job capacity of Sawyer and the objection
was sustained.
Mr. Jerome further testified that until he met Ms.
Dobie and Mr. Basso their principal dispute was over the
amount of backpay money due Lynn Sawyer. However,
when he met Ms. Dobie and Mr. Basso, he said he did raise
the defense of Lynn Sawyer's not having looked for work
for 2 years since her termination with Respondent. Mr.
Jerome continued to testify as follows:
Q. And what kind of a study did you undertake,
and what newspapers did you examine?
A. Well, Airport Service Lines is located in Ponti-
ac. So, the first thing I did, I went to the newspaper
offices in the Pontiac area. The primary paper there is
the Oakland Press, and asked them if I could review
because I was persuaded by her heretofore described demeanor throughout
this proceeding that she was testifying truthfully. Moreover. I note that even
though Sawyer's application for employment indicates that the position
applied for was telephone operator. which she satisfactorily explained, the
position therein was not labeled temporary or probationary telephone
operator. I discredit the testimony of President Green and Chairman
Linteau because I was persuaded by the rather anxious and glib manner in
which they testified that they were exaggerating, and appeared to have a
conscious interest in making the evidence appear favorable to Respondent.
A .irports Service Lines. Inc., 218 NLRB 1160, 1167 (1975):
C. The Discharge of Lynn Sawyer
Sawyer began her employment on March 14 and was discharged at
their want ads since May of 1974. They advised me that
they had papers back for only approximately one year.
Prior to that time I would have to go to the Oakland
Community College and look at microfilm. So, I then
looked at the various Oakland Press's that they had at
their facilities. And I brought representative copies of
those trying to pick at least one for every month. In
many months I picked two or three. And the first paper
that I brought with me is April 10, 1975. Then I went to
OCC and looked at the microfile to see if the want ads
previous to that time under the microfilm would be
similar.
Upon completion of that I went to the Detroit Public
Library to look at the old Free Press and the News.
Both the Free Press and the Detroit News keep papers
only back to about six weeks. So, I then went to the -
The Detroit Public Library has a microfilm system, and
I looked there at the Sunday News and the Sunday
Free Press for each Sunday from - the first Sunday of
each month from 1974 through September 5, 1976.
With respect to his role as advocate and witness in this
proceeding in violation of the canons of ethics, Mr. Jerome
said he has been involved in this case since the beginning,
that he assisted in drafting the pleadings herein, that he has
talked to Mr. Basso repeatedly about the case, and he did
not deem his actions unethical because he did not try the
case.
Thereafter, Lynn Sawyer testified that she registered with
the unemployment bureau a few days after she was
discharged by Respondent, and that she would call or visit
the bureau periodically. She read the list of names of places
where she looked for work unsuccessfully during the
months of October, November, and December 1974. The
list of places (G. C. Exh. 2) was received in evidence. On
cross-examination Sawyer identified some of the places of
employement where she filed a written application for
employment.s
D. Procedural Rulings of the Administrative Law
Judge
After a review of Section 102.54(b) (quoted at the hearing
by counsel for the General Counsel) along with Section
102.54(c) and 102.57 (not quoted or cited at the hearing by
counsel for the General Counsel) of the Board's Rules and
Regulations governing backpay proceedings, the Adminis-
trative Law Judge has reconsidered his rulings made in this
proceeding in light of the evidence admitted as follows:
the end of the workday on April 18. She was hired as a dispatcher-
trainee. She answered the telephones and took calls from customers
wanting rides to the airport. She operated the timeclock to record when
the time drivers reported on and off duty. She also maintained a list of
employees and their telephone numbers and, when required, called
employees to report for runs.
6 I credit the testimony of Sawyer over that of Cocounsel Jerome. Not
only did Sawyer appear self-assured in testifying but she supported her
testimony by identifying numerous places where she had sought employ-
ment. I would discredit Cocounsel Jerome's testimony also because it did
not establish that Sawyer had not made a reasonable search for work, and
because he, as investigator, cocounsel. and witness for Respondent could
not have stated the facts impartially and objectively.
1278
AIRPORTS SERVICE LINES
Having examined paragraphs 3(b) and (d), and to the
extent to which paragraph 3(d) incorporates paragraph
3(b) by reference in Respondent's answer, I conclude that
all affirmative defenses asserted therein are not sufficiently
specified and particularized, so as to satisfy the language of
the above-cited Board rules. The Administrative Law
Judge therefore erred in overruling counsel for the General
Counsel's objection to the admission of evidence on these
affirmative defenses (a pay raise and the job capacity of
Lynn Sawyer), and said ruling is hereby reversed and all
such evidence admitted thereunder is excluded and
disregarded in considering the merits in this proceeding.
More specifically, Respondent disputes the accuracy of
the computations in the specifications as well as the
premise on which they were made, but it neglected to
specifically set forth the basis of its dispute and the details
of its position as to applicable premises, accompanied by
supporting data. Accordingly, I find the allegations in
paragraphs 3(b) and (d) of the amended backpay specifica-
tions to be true.
However, even if I were to make a finding upon the
excluded evidence, as herein conditionally credited or
discredited, I would nevertheless conclude and find that
the amended backpay specifications are correct as set forth
in the amended backpay specifications, except to the extent
that they might have been modified or corrected by the
General Counsel's amendment during this proceeding (that
Lynn Sawyer was not available for work during September
1975 and for the period from June 15, 1976, to the date of
this proceeding (September 24, 1976).
E. Respondent's Motion To Amend its Answer
The Administrative Law Judge erred in granting Respon-
dent leave to amend its answer, over the objection of
counsel for the General Counsel, to allege for the first time
and submit evidence that Lynn Sawyer was a probationary
employee hired in an experimental job that was to be
eliminated. Such leave to amend is hereby reversed and all
evidence admitted pursuant thereto is excluded and
disregarded in the consideration of this case.
However, suffice it to say that if the Administrative Law
Judge were to make a finding upon such improperly
admitted evidence, as conditionally credited or discredited
herein, he would find that Respondent has failed to
establish that Lynn Sawyer was hired as a probationary
employee in a job that was experimental or temporary. He
would further find that Respondent is now advancing this
after-the-fact (discriminatory discharge) probationary-ex-
perimental contention as a pretext in an attempt to avoid
liability for accrued backpay.
F. Cocounsel for Respondent Becomes a Witness
and Testifies on Behalf of Respondent
Respondent affirmatively averred in paragraph 4 of its
answer that Lynn Sawyer has failed to search for other
employment. In support of this averment counsel for
Respondent called as a witness cocounsel of record, David
E. Jerome, who testified about his investigative findings on
the availability of jobs in the Detroit metropolitan area. As
Mr. Jerome proceeded to testify, counsel for the General
Counsel objected on the grounds that Mr. Jerome was
assuming the roles of an advocate and witness, which are
inconsistent, according to EC 5 of the Code of Professional
Responsibility and Canons of Judicial Ethics. Counsel for
the General Counsel thereupon moved to strike Mr.
Jerome's testimony. The Administrative Law Judge re-
served ruling on the motions.
Legal authority on the question as to whether an
attorney is permitted to testify on behalf of his client, or, if
he is permitted to testify, should his testimony be excluded,
is by no means precise.
In Christensen v. United States, 90 F.2d 152 (1937), the
court held that an attorney is permitted to testify on behalf
of his client. The court went on to point out that there is no
strict rule applicable to all cases of this nature; that the
court in its discretion may either deny or allow the attorney
to testify; that if the attorney is allowed to testify such fact
may be conditioned upon his removal from the case as
counsel; that whether or not the attorney was the attorney
of record is not determinative of the admissibility of his
testimony; that the testimony of the attorney is tolerated at
all only because occasionally it is proper in the interest of
justice - on disputed and material issues of fact; and that
this being the case the testimony of the attorney should be
given the same weight as any other witness.
In United States v. D. Clancy, et al. 276 F.2d 617 (1960),
the court held the attorney's testimony may be excluded if
the attorney does not exclude himself from further
participation in the trial. In any event, however, the Board
has held in Local Union No. 9 of the International Union of
Operating Engineers (The Fountain Sand & Gravel Compa-
ny), 210 NLRB 129 (1974), fn. I, "it is not our function or
responsibility to pass on the ethical propriety of a decision
by counsel to testify in one of our proceedings. When, as
here, the testimony is otherwise proper and competent, it
should be accepted in evidence."
Accordingly, General Counsel's motions to preclude
Cocounsel Jerome from testifying and to strike or expunge
his testimony (which I did not deem incompetent at the
time he testified) from the record are hereby denied.
Since the substance of Cocounsel Jerome's testimony
about his investigative findings was to be supported by
newspaper "Help wanted" advertisements published in
local newspapers in Metropolitan Detroit, counsel for the
General Counsel objected to their admission in evidence
on the grounds that such newspaper advertisements are
hearsay under the Federal Rules of Evidence. The
Administrative Law Judge received the newspaper "Help
wanted" advertisements and reserved ruling on the mo-
tions.
A review of Section 801(c) of the Federal Rules of
Evidence does not reveal any language which intimates or
infers the conclusion that newspaper "Help wanted"
advertisements are per se hearsay. Instead, Section 902(6)
of the Federal Rules of Evidence specifically provides
under the self-authentication doctrine that "newspapers
and periodicals-printed material purported to be newspa-
pers or periodicals"-are not only admissible, but extrinsic
evidence of authenticity as a condition precedent to
admissibility is not required. Moreover, the note of the
advisory committee to the Congress on Section 902(6)
1279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
points out that, "The likelihood of forgery of newspapers or
periodicals is slight indeed. Hence, no danger is apparent
in receiving them."
Of course Cocounsel Jerome in the instant proceeding
did not claim authorization for the publication of the
"Help wanted" advertisements. In fact, he quoted the
identity (name and city) and dates of all newspapers in
which the advertisements appeared during periods when
Sawyer was unemployed. Such newspaper advertisements
speak for themselves, are presumably authentic, and do
affect their admissibility. Accordingly, the Administrative
Law Judge overrules counsel for the General Counsel's
objection thereto and the motion to exclude the newspaper
advertisements is denied.
However, based on the foregoing newspaper "Help
wanted" advertisements of record, I nevertheless conclude
and find that Respondent has failed to substantiate its
affirmative allegation that Lynn Sawyer failed to make a
reasonable and diligent search for other employment. The
fact that jobs were advertised in local newspapers does not
establish that such jobs would have been available if and
when Lynn Sawyer had arrived to apply for them, or that if
she had arrived in time to apply for them, she would have
been selected for a position. Nor has Respondent establish-
ed that such advertised jobs were the only jobs in existence
for which Lynn Sawyer could have applied, or that Sawyer
did not in fact apply for one or some of these advertised
positions. Hence, while it may be accepted that some, if not
all, of the jobs advertised did in fact exist, such fact alone is
a far cry from establishing Sawyer's failure to make a
reasonable search for other employment, as Board law
requires of Respondent. Thus, the Administrative Law
Judge is more than satisfied, without Lynn Sawyer's
gratuitous evidence of her efforts to obtain other employ-
7 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
ment, that Respondent has failed to submit any probative
evidence that Lynn Sawyer failed to make a reasonable
and diligent search for alternative employment.
Respondent has availed itself of a hearing before a duly
designated Administrative Law Judge in the original
proceeding, wherein it was represented by the same legal
counsel who appeared and represented Respondent in the
instant proceeding. The Board's Decision and Order,
including the backpay provisions in the original proceed-
ing, reported at 218 NLRB 1160, was enforced on
February 2, 1976, by a decree of the United States Court of
Appeals for the Sixth Circuit. Disputing the amount of
backpay due under the terms of the Board's Order in this
proceeding, Respondent has failed, as it alleged, to
establish any errors in the computations of the specifica-
tions, or any misrepresentation in the premises on which
they are based. Consequently, Respondent is liable for the
amount of backpay set forth in the amended backpay
specifications, as further amended during this backpay
proceeding.
ORDER 7
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the Respondent, Airports
Service Lines, Inc., Pontiac, Michigan, their officers,
agents, successors, and assigns, shall pay to dischargee
Lynn Sawyer, as net backpay, $14,932.22 together with
interest on the amount due on each quarter at the rate of 6
percent per annum, less said accrued amounts computed in
the same manner for the periods when Lynn Sawyer was
unavailable for work, as found above pursuant to the
amendment to the backpay specifications during this
proceeding, until the indebtedness has been discharged.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1280