Champa Linen Service Co.

National Labor Relations Board - Board Decisions

Feb 19, 1976

222 N.L.R.B. 940 (N.L.R.B. 1976)

940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Champa Linen Service Company and Robert Lane
Longman. Case 27-CA-3888
February 19, 1976
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On October 21, 1975, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Champa Linen Service
Company, Denver, Colorado, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
said recommended Order.
i We find wholly without merit Respondent's contention that the Admin-
istrative Law Judge was biased and prejudiced There is no evidence what-
ever in either the record or in his findings to indicate that the Administrative
Law Judge had prejudged the case or conducted other than a fair and full
hearing.
We also deny Respondent's request to argue this matter orally before the
Board In our view, the record, the exceptions, and the brief adequately
present the issues and positions of the parties.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: By deci-
sion dated February 26, 1974, reported at 209 NLRB 253,
the Board found that Champa Linen Service Company
(herein called Respondent) had violated Section 8(a)(3)
and (1) when it discharged Robert Lane Longman, a route
driver, on July 21, 1973. The Board accordingly ordered
Respondent, among other things, to "make Robert Lane
Longman whole for any loss of earnings suffered by reason
of his discharge." 209 NLRB at 256. The Board's decision
was enforced in N.L.R.B. v. Champa Linen Service Compa-
ny, 511 F.2d 68 (C.A. 10, 1975).
On June 26, 1975, the Regional Director for Region 27
issued a backpay specification setting forth the amount of
backpay assertedly due Longman. By answer dated July 8,
Respondent admitted certain of the allegations in the spec-
ification and denied others. A hearing in the matter was
held before me in Denver, Colorado, on September 3. A
timely brief thereafter was filed for Respondent.
1. THE PLEADINGS
The specification alleges that the backpay due Longman
is $2,624.13. It alleges, in support of this figure, that:
(a) The backpay period is July 21, 1973, the discharge
date, through March 31, 1974.
(b) From July 21 through August 24, 1973, Longman
would have received a weekly salary of $152.98, for a total
of $764.90.
(c) From August 25, 1973, through March 31, 1974, he
would have been paid on an hourly basis, the appropriate
measure of the hours he would have worked being "the
biweekly average hours worked by employees employed as
route drivers" during that span.'
(d) From August 25, 1973, through March 22, 1974, he
would have received an hourly wage of $3.95 and would
have worked, applying the above averaging formula, an
aggregate of 1,266.15 hours, for a total of $5,001.30.
(e) From March 23 through March 31, 1974, he would
have received an hourly wage of $4.02 and would have
worked, applying the above averaging formula, an aggre-
gate of 90.88 hours, for a total of $365.34.
(f) He would have received a Christmas bonus in 1973
of $50.
(g) He incurred moving expenses in his search for other
employment totaling $446.52.
(h) He received earnings during the backpay period of
$4,003.93.
Synthesizing, the specification alleges that Longman
would have earned from Respondent during the backpay
period a total of $6,181.54. Subtracting from this the differ-
ence between his interim earnings of $4,003.93 and his
moving expenses of $446.52, or $3,557.41, equals the
amount claimed of $2,624.13.
The answer asserts that the averaging formula used to
calculate the hours Longman would have worked is "inval-
id and arbitrary," adding that it is inappropriate to exclude
any drivers from the averaging process and denying that
Longman would have worked overtime. The answer admits
that Longman would have received $152.98 per week from
July 1 through August 24, 1973, but denies that he would
have been paid at the hourly rates and received a Christ-
mas bonus as alleged in the specification, and that he in-
curred moving expenses as alleged. The answer asserts, in
i Expressly excluded from the averaging process were route drivers "who
worked less than 48 hours in any biweekly pay period ," and those "hired or
terminated in any biweekly pay penod who worked less than 80 hours in
that pay period ." The number of employees included ranged from 9 to 12,
depending on the pay period The specification allows for the overtime
hours Longman allegedly would have worked by converting them to their
straight-time equivalent through use of the multiplier 1-1/2.
222 NLRB No. 134
CHAMPA LINEN SERVICE CO. 941
addition, that Longman should not be allowed credit for
moving expenses, because they were unwarranted, and that
he is not entitled to backpay in any event because he did
not exercise sufficient diligence in seeking work.
II. FACTS
Longman was one of about 11 route drivers employed
by Respondent.2 He credibly testified that he generally
worked 40 hours per week, plus occasional overtime. Be-
cause his was an out-of-town route, he estimated that he
worked more overtime than the average driver. The plead-
ings establish that he was paid a weekly salary of $152.98
when discharged.
Longman was discharged on a Saturday. The following
Monday, July 23, he inquired about work at three Denver
firms competitive with Respondent-American Laundry,
National Laundry, and Capitol Linen. He left written ap-
plications with American and Capitol, although the inter-
viewer at Capitol discouraged him by saying he would have
trouble there if he had had trouble with Respondent. He
did not leave a written application with National because
he was told "there was no use" since there were no open-
ings.
On August 1, 1973, Longman began working for Sam-
sonite Corporation in Denver as a luggage inspector. He
left Samsonite on January 11, 1974, feeling the pay was
insufficient to support his family.3 He was told when hired
of the prospect of a-promotion which did not materialize.
His starting pay there was $3.12 an hour, and he was mak-
ing $3.42 when he left. In all, he earned $2,996.73 at Sam-
sonite . While with Samsonite, Longman suffered reduced
earnings because he was disabled with pneumonia from
time to time. Thus, in the weekly pay periods ending Octo-
ber 7 and again October 21, he was credited with 32 hours
as opposed to,the usual 40 or more; and, in that ending
November 25, he was credited with only 26 hours.
Upon leaving Samsonite , Longman immediately moved
to his former home area in southern Ohio, arriving January
16. He left Denver because, after what the interviewer at
Capitol Laundry had said and having heard nothing from
his applications with Capitol and American, he assumed he
was "blackballed" among laundries in the Denver area,
and he despaired of earning an adequate wage other than
as a laundry driver. The move to Ohio was accomplished
by driving a rental van. The van cost $271.70; food and
lodging expenses en route were $61.75; and fuel expenses
were $113.07.
On Monday, January 21, 1974, Longman began a job
search in Ohio. This consisted of applying with the Ohio
Bureau of Employment Services in Dayton, with Mechan-
ics' Uniform in, Dayton, and with United Parcel Service in
Cincinnati. He checked back with the Bureau of Employ-
ment Services on February 6. Longman finally received a
job as a special driver with Morgan Linen Company in
Hamilton, Ohio, starting, February 9. His starting pay was
$2.15 an hour but was soon increased. On March 22, he
was promoted to salesman driver and raised to well over $4
2 209 NLRB at 253
3 Consisting of a wife and a baby.
an hour. This was in excess of what he would have made
with Respondent; hence, the end of the backpay period as
of March 31. He-earned a total of $1,007.20 at Morgan
Linen during the backpay period.
The compliance officer for Region 27, Jerry Legler, testi-
fied, based upon his examination of Respondent's books
and records, that the route drivers became hourly paid as
of August 25, 1973; that a driver with seniority comparable
to that Longman would have had, Henry Auwerter, was
scaled at $3.95; and that there was a general wage increase
as of March 23, 1974, with Auwerter being raised to $4.02.4
Legler further testified, based on Respondent's records,
that the route drivers received Christmas bonuses in 1973;
and that, while they were in varying amounts and not
based on any discernible formula, those receiving hourly
pay of $3.95-Longman's projected rate-received bonus-
es of $50.5 Despite the denials in its answer, Respondent
stipulated during the hearing that the worksheets on which
Legler's testimony was based accurately portrayed
Respondent's books and records.
Harris Larson, president of City-Elite Laundry in Den-
ver, testified that there was a demand for drivers "most all
the time" during the backpay period. He was unable to
state, however, how many were hired in response to that
demand, when any hiring took place, or when and where
openings existed. Larson also testified that the various
laundries in Denver "call back and forth" when looking for
drivers to see if any of them have a surplus of applicants-
meaning that an application placed with one is anapplica-
tion with several.
There is no evidence that Longman would have been
hired had he applied to laundries other than those he did.
III. DISCUSSION
A. Burdens of Proof
The law regarding burdens of proof in backpay proceed-
ings is as stated in Mastro Plastics Corporation, 136 NLRB
1342, 1346 (1962):
[W]hile the general burden of proof is upon the'Gener-
al Counsel to establish the damage which has resulted
from Respondent's established discriminatory dis-
charge, i.e., the gross backpay over the backpay pen-
od, the burden of proof is upon the Respondent as to
diminution of damages, whether from the willful loss
of earnings by the failure to either -look for or keep a
substantially equivalent job or from the unavailability
of a job at Respondent's plant for some reason'uncon-
nected with the discrimination.
B. The General Counsel's Burden
In its brief, Respondent does not dispute either the back-
pay formula set forth in the specification or the 'calcula-
tions based thereon. By stipulation during the hearing,
4 Several others, previously making less than $3.95, also were raised to
$4.02 or $4.03.
5 Three received a $50 bonus; three received a $75 bonus, one of whom
was making only $3.89 an hour, five received a $20 bonus; and one received
a $10 bonus
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moreover, Respondent conceded the validity of the figures.
Respondent did object during the hearing, however, to the
soundness of excluding from the-backpay formula drivers
who worked less than 48 hours in any biweekly pay period.
This objection, assuming that Respondent wishes to pur-
sue it, is rejected for two -reasons-. First, neither in- its an-
swer nor otherwise did Respondent set forth the basis of its
objection. Section 102.54 of the Board's Rules and Regula-
tions, Series 8, as amended , states in relevant part:
(b) [I]f the respondent disputes either the accuracy
of the figures in the specification or the premises, on
which they are" based, he shall specifically state the
basis for his disagreement,. setting forth in detail his
position as to the applicable premises and furnishing
the appropriate supporting figures. _
(c) . . . If the respondent files an answer to the
specification but fails to deny any allegation of the
specification in the manner required by subsection (b)
of this section, and the failure so to deny is not ade-
quately explained, such allegation shall be deemed to
be admitted to be true . . . .
Second, apart from the deficiencies in Respondent's an-
swer, it is concluded that the formula is not flawed by its
exclusion of drivers working less than 48 hours in a pay
period. Longman was a full-time driver, putting in around
80 hours per pay period. It was found in the decision on
the merits that there were 11 or so such drivers. The spec-
ification discloses -that from 9 to 12 drivers were factored
into the averaging process, depending on the pay period. It
thus is evident that the formula is sufficiently representa-
tive of the situation generally to be valid.
C. Respondent 's Burden
Respondent argues first that no backpay is owing be-
cause Longman failed to make a reasonable effort to ob-
tain a job similar to that -with Respondent. It notes, in
support of this argument, that Longman did not register
with the job placement agency of the State of Colorado
after the discharge, nor did he register with his union, with
any private employment agencies, or with numerous laun-
dries in the Denver area other than. the three mentioned.
This argument is rejected. Not only did Longman imme-
diately inquire of three laundries, but, as Harris Larson
testified,. the- various laundries in Denver commonly ex-
change information concerning the existence of driver ap-
plicants, meaning that the three inquiries likely were of
considerably greater scope than might first appear. Fur-
ther, even according weight to Larson 7s totally nebulous
testimony of the presence of openings among Denver laun-
dries during the backpay period, Respondent has failed its
burden of showing if, where, and when Longman would
have been hired had he applied. Lloyd's Ornamental and
Steel Fabricators, -Inc., 211 NLRB 217 (1974) (JD); Alaska
Chapter of the Associated General Contractors, 119 NLRB
663, 670-671. Additionally, as is observed in The Madison
Courier, Inc, 202 NLRB 808, 814 (1973), a discriminatee is
not required to apply "for each and every possible job that
might have existed" in the industry. Finally, Longman be-
gan with Samsonite within about a week; and, while in this 1321 (C A.D C., 1972)
job, he was not under a duty to persist in the search for
more nearly equivalent employment. To quote from Fire-
stone Synthetic Fibers and Textile Company, 207 NLRB 810,
815 (1973): "[A] discriminatee who accepts appropriate in-
terim employment, even at a lower rate of pay, is not re-
quired to continue search for better employment."
That leads to Respondent's second argument-that
backpay should not run beyond July 31, 1973, because
Longman took "a dissimilar, lower paying job completely
unrelated to that of a route driver." This argument likewise
is rejected. While the Samsonite job paid substantially less
than Longman was receiving from Respondent, the pros-
pect of promotion was held out-to him when hired. For
another thing, Longman was a person with family respon-
sibilities to whom idleness was an unaffordable luxury. For
yet another, extracting from United Aircraft Corporation,
204 NLRB- 1068 (1973):
[D]oubts as to when a claimant is justified in lowering
his sights should be resolved `in favor of the innocent
discriminatee.' [61 Or, as the courts and the Board have
generally indicated, the backpay claimant should re-
ceive the benefit of any doubt rather than the Respon-
dent, the wrongdoer responsible for the existence of
any uncertainty and against whom any uncertainty
must be resolved.
Respondent next argues that Longman's move to Ohio
was for his "personal convenience and accommodation"
and so removed him from the labor market. This argument
fails to persuade. To the extent that it implies that Long-
man incurred a willful loss of earnings by quitting the Sam-
sonite job, it ignores Sam Tanksley Trucking Inc., 210
NLRB 656 (1974) fn. 1, where it is stated that a discrimina-
tee is not deemed to have incurred willful loss, by quitting
an interim job, when, as in Longman's case, it would have
been "economically unfeasible for [him] to continue the
employment and deprive himself-of` any real opportunity to
find more suitable employment elsewhere." Or, as stated in
Mastro Plastics Corporation, supra, 1349:
[A] claimant who obtains a job but then leaves it for a
justifiable reason is not deprived of all further claim;
the assumption is that the reason for his quitting the
job would not have been present at Respondent's
plant and therefore the job is not substantially equiva-
lent.
To the extent that this argument implies that Longman
was required to limit his job search to the Denver area, it
also is in error. Again referring to Mastro Plastics Corpora-
tion, supra, 1350, "a claimant may seek a job beyond-the
vicinity of the labor market and still be entitled to back-
pay" so long as the reason for leaving, as in Longman's
case, was to seek a job and would not have obtained but
for the unlawful discrimination. Once in Ohio, Longman
exercised reasonable diligence on the principles enunciated
above, presently finding the job that elevated him to an
-income bringing the backpay period to an end.
Respondent argues, finally, that Longman's moving ex-
6 Quoting from N L R B v. The Madison Courier, Inc , 472 F 2d 1307,
CHAMPA LINEN SERVICE CO. 943
penses to Ohio are not a proper offset from his interim
earnings, and that it should not be liable for the hours
Longman missed because of pneumonia while with Sam-
sonite. Concerning moving expenses, it is concluded as in-
dicated above that Longman moved to Ohio to seek work;
and that this reason would not have obtained but for
Respondent's discrimination against him. It is concluded,
additionally, that Longman had a good-faith belief, wheth-
er or not correct, that he had been "blackballed" in the
laundry industry in- Denver, based on the failure of his
applications to yield results and on the comments to him-
by the interviewer at Capitol Linen. In these circum-
stances, the moving expenses are an appropriate offset
from interim earnings. Cf. Charles T. Reynolds Box Co., 155
NLRB 384, 387; Miami Coca-Cola Bottling Co., 151 NLRB
1701, 1712,(1965); Deena Artware, 112 NLRB 371, 374
(1955). Also United,Aircraft Corporation, supra, 1069.
Regarding Longman's illness, Respondent's argument is
sustained. It is fairly assumable that the hours thereby lost
would have been lost had he remained on Respondent's
payroll. East Texas Steel Castings Company, 116 NLRB
1336, 1346-47. Consequently, since Longman lost approxi-
mately 8 hours each because of illness in the weeks ending
October 7 and 21, and approximately 14 hours in that end-
ing November 25; and since he then would have been re-
ceiving $3.95 an hour had -he been with Respondent, his
backpay entitlement shall be reduced by $1118.50.7
On the basis of the foregoing and the entire record in
this matter, I hereby issue the following recommended:
ORDERS
Champa Linen Service Company, its officers, agents,
successors, and assigns shall pay to Robert Lane Longman
the sum of $2,505.63, plus interest thereon until paid in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716 (1962), making appropriate deductions for taxes.
7 $3.95 x 30.
8 All outstanding motions inconsistent with this recommended Order
hereby are denied In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions and recommended Order herein shall, as provided
in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions , and Order , and all objections thereto shall
be deemed waived for all purposes.