Beta Steel Corporation

National Labor Relations Board - Board Decisions

Aug 23, 2002

337 N.L.R.B. 1237 (N.L.R.B. 2002)

BETA STEEL CORP. 1237
Beta Steel Corporation and Dennis Holland. Case 25–
CA–25139
August 23, 2002
SECOND SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On January 18, 2002, Administrative Law Judge Jerry
M. Hermele issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief.
The Board has considered the supplemental decision
and the record in light of the exceptions and brief and has
decided to affirm the judge’s rulings, findings,1 and con­
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge and
orders that the Respondent, Beta Steel Corporation, Port-
age, Indiana, its officers, agents, successors, assigns, and
representatives, shall take the action set forth in the Or­
der.
Belinda J. Brown, Esq., for the General Counsel.

Terry R. Boesch, Esq. (Boesch & Istrabadi, P.C.), Valparaiso,

Indiana, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. On Decem­
ber 11, 1997, Judge Arthur J. Amchan issued a decision finding
that the Respondent, Beta Steel Corporation (Beta), violated
Section 8(a)(1) and (3) of the National Labor Relations Act by
discharging employee Dennis Holland on September 13, 1996;
a decision affirmed by the National Labor Relations Board on
September 30, 1998, 326 NLRB 1267 (1998), and enforced by
the United States Court of Appeals for the Seventh Circuit on
March 14, 2000. Beta Steel Corp. v. NLRB, 210 F.3d 374 (7th
Cir. 2000). The Respondent offered Holland reinstatement to
his old job but Holland declined the offer on April 14, 2000.
Thereafter, a dispute arose regarding the amount of backpay
owed by Beta to Holland, causing the General Counsel to issue
a “compliance specification” on July 27, 2000, in which Beta’s
liability was calculated at $64,136. On August 16, 2000, Beta
denied various allegations therein and offered several affirma­
tive defenses, but the Board granted summary decision in the
General Counsel’s favor on two matters: that the backpay pe­
riod ran from September 13, 1996, to April 14, 2000; and that
the gross backpay figure was $64,136. 334 NLRB (2001) (not
reported in Board volumes).
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950) enfd. 188 F.2d 362
(3rd Cir. 1951).
This case, to determine the appropriate amount of backpay
due Holland, was tried on November 8, 2001, in Valparaiso,
Indiana, during which the General Counsel presented two wit­
nesses and the Respondent presented one witness. At trial, the
General Counsel calculated the Respondent’s backpay liability
with interest to be $82,502, as of November 8, 2001 (GC Exhs.
2–3; Tr. 23–24). Both parties then filed briefs on December 20,
2001.
FINDINGS OF FACT
Dennis Holland worked for Beta from 1993 until his dis­
charge in September 1996, performing a variety of jobs in the
shipping department and earning $10 per hour in 1996 (GC
Exhs. 1(a), (h); Tr. 137). His roundtrip drive between home
and work was 15 miles (Tr. 45). Holland would have received
two weeks of paid vacation and contributions to his “401(k)”
plan from September 1996, to April 2000 (GC Exh. 1(h)).
While employed at Beta, Holland only had to pay $5 for each
medical prescription drug he and his family purchased, and the
Company’s medical insurance premium was $34.60 every 2
weeks. Also, there was a yearly deductible of $600. But Beta’s
health insurance plan offered no coverage for eye-related prob­
lems (Tr. 17, 47–48, 51, 87).
After his September 13, 1996 discharge, Holland received
unemployment benefits in Indiana, which ran for 6 months (Tr.
41–42, 154). He also withdrew the “401(k)” contributions in
his account, incurring a $684.54 tax penalty in 1997 (GC Exh.
14; Tr. 19–20). Holland also registered with the Indiana De­
partment of Work Force Development and applied for jobs with
64 employers in northwest Indiana (GC Exhs. 15–16; Tr. 107,
177–178). Holland also continued as a volunteer fireman after
his discharge from Beta (Tr. 104). In early 1997, Holland ap­
plied for a job with Plastic Line Manufacturing in Merrillville,
Indiana, landing a job there as a truck driver in the spring of
1997 (GC Exh. 1(c); R. Ex. 1; Tr. 45, 92, 107). His roundtrip
commute to this northwest Indiana job was 13 miles more than
his commute to Beta, and he earned no vacation benefits there,
nor received any medical insurance coverage. Holland kept
this job until early 1998 (GC Exh. 1(c); Tr. 46, 49, 56–57, 64).
During his period of unemployment and employment with Plas­
tic Line Manufacturing, Holland’s wife incurred an $85 bill for
an eye examination (GC Exh. 5), had a magnetic resonance
imaging test partly costing $300 (GC Exhs. 6–7), and had a
$135 neurological examination (GC Exh. 8). Holland and/or
his family also had $938.01 in additional medical bills through
the end of 1997 (GC Exh. 1(c)).
Holland got a better paying truck driver job in early 1998
with Steel Cities Steel, of Chesterton, Indiana. His roundtrip
commute to this job was 30 miles (GC Exh. 1(c); Tr. 45–46).
He did receive health insurance benefits from this job but his
wife incurred $19.51 and $10.36 prescription drug charges in
late 1998 (GC Exhs. 12–13; Tr. 81). Also, while with Steel
Cities Steel, Holland and/or his family had an additional
$1,389.27 in medical expenses. Further, Holland received no
vacation benefits with this employer (GC Exh. 1(c)).
Holland found another better-paying truck driver job with
Midwest Machining, of Griffith, Indiana, in the spring of 1999,
which he currently holds. The round trip commute to this job is
337 NLRB No. 184
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 miles. Holland receives 1 week of vacation pay from this
employer (GC Exh. 1(c); Tr. 46–47).
Thomas Grzesik is a rehabilitation counselor and vocational
expert in the northwest Indiana and Chicago area. He reviewed
Holland’s work history and education, as well as the area labor
market from 1996 to 2000. Because there was a good economy
during that time period in that market, there were many jobs
available (Tr. 110, 120, 127–128). Grzesik contacted employ­
ers he was familiar with and examined U.S. Bureau of Labor
Statistics data to prepare a list of 14 employers that Holland
could have sought employment with. All of these employers
paid more than the three jobs Holland found after 1996, as well
as comparable benefits. All of these employers were hiring
from 1996 to 2000 in northwest Indiana or suburban Chicago.
All of these 14 jobs were either unskilled or semiskilled, and
Holland could have learned any of the jobs within 30 days (R.
Exh. 4; Tr. 131–134, 138–139, 162–163, 166, 170). According
to Grzesik, Holland could have earned at least $12 per hour
from 1997 to 2000. Thus, for 1997 he could have earned about
$4,800 more; for 1998 he could have earned about $5,200 to
$6,000 more, for 1999 he could have earned about $2,800
more, and for the first quarter of 2000 he could have earned
about $700 more (Tr. 152, 156–157). There was no guarantee,
of course, that Holland would have obtained any of these jobs
had he applied for them (Tr. 164). Indeed, Holland applied at
three of the 14 listed employers and was rejected at two. But
one employer, Kenwal Steel Company, offered him a job which
he rejected because he had just started working at Midwest
Machining (Tr. 173, 175).
ANALYSIS
It is very well-settled that, in compliance proceedings, the
General Counsel has the burden to establish the gross amount
of backpay owed to the discriminatee. Then, the burden shifts
to the employer, who has committed the illegal unfair labor
practice, to produce evidence that would mitigate its liability.
NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir.
1963). Here, Holland’s gross backpay figure is $64,136 for the
period September 13, 1996 to April 14, 2000. The only issue is
whether that amount should be reduced for various reasons
advanced by the Respondent. And the most significant such
reason concerns the Respondent’s theory that Holland should
have found higher paying jobs than the three jobs he worked at
from the spring of 1997 to the end of the backpay period in
April 2000. In this regard, the Respondent relies upon the tes­
timony of its vocational expert, Thomas Grzesik, who identi­
fied 14 area employers that paid better wages than the three
employers Holland wound up working for, but earning only
approximately half of what he made at Beta.
A wrongfully discharged discriminatee is only required to
make a reasonable, good faith effort to find other work, and his
lack of success in doing so or securing only lower-paying posi­
tions does not automatically mean that a Respondent can miti­
gate its backpay liability. Food & Commercial Workers Local
1357, 301 NLRB 617, 621 (1991); Delta Data Systems Corp.,
293 NLRB 736 (1989). Holland was unemployed for approxi­
mately 6 months after his discharge from Beta, but he quickly
registered with the state unemployment office and applied for
64 area jobs, including Plastic Line Manufacturing, before ob­
taining a truck driving job with this employer in the spring of
1997. Then, he searched for and found better-paying truck
driving jobs in 1998 and 1999, the latter position which he
currently holds. Clearly, under these circumstances, it is con­
cluded that Holland made a good faith search for work during
the backpay period at issue and did not willfully seek lower
paying work. See NLRB v. Madison Courier, Inc., 472 F.2d
1307, 1318 (D.C. Cir. 1972); Chem Fab Corp., 275 NLRB 21,
24 (1985). Compare Tubari Ltd., Inc. v. NLRB, 959 F.2d 451,
459 (3d Cir. 1992) (the immediate acceptance of a one-third
reduction in pay without undertaking any search for suitable
interim employment was not reasonably diligent). As for the
possible existence of 14 better paying jobs, those jobs were just
that—mere possibilities, insufficient to rebut the conclusion
that Holland’s search was reasonable. Moreover, Holland ap­
plied at two of those 14 employers and was rejected. See
Lundy Packing Co., 286 NLRB 141, 142 (1987).
Finally, although one of the 14 employers offered him a job,
which he rejected, Holland was not legally required to obtain
this possible higher-paying job once he had “embarked on a
legitimate course of interim employment.” F.E. Hazard, Ltd.,
303 NLRB 839 (1991). See Flannery Motors, Inc., 330 NLRB
994, 996 (2000). Further, Holland had just found his third, and
current, interim job at Midwest Machining when he received
this offer. Also, it is unclear what salary offer Holland received
from this one employer. In sum, the presiding Judge rejects the
Respondent’s primary theory of mitigation.
Turning to the remaining minor contentions, the Respondent
denied in its answer several allegations regarding Holland’s
expenses, vacation benefits, medical reimbursement, and
401(k) tax liability. At trial, however, the Respondent offered
no evidence on these matters, nor did it address any of these
matters in its brief. So, because of its failure of proof, all of
these minor matters are resolved in the General Counsel’s fa­
vor. Therefore, the Respondent owes Holland $81,726.33
through the end of 2001.1
ORDER
Accordingly, it is ordered2 that the Respondent, Beta Steel
Corporation, its officers, agents, successors, and assigns, shall
pay $81,726.33 to Dennis Holland, together with interest to be
computed in the manner set forth in New Horizons for the Re­
tarded, 283 NLRB 1173 (1987), making the appropriate deduc­
tions for any tax withholding required by State and Federal
laws.
1 This figure is based on Attachment A of the General Counsel’s De­
cember 21, 2001 brief. Therein, the General Counsel recalculated the
medical expenses to be $1,285, compared to $2,877 (GC Exh. 3), be-
cause of additional evidence adduced at trial. This recalculation ap­
pears reasonable, but should be reduced by $506.67 because the presid­
ing Judge rejected GC Exhs 9, 10, and 11, which concerned certain
medical bills.
2 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom­
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.