Colders Furniture

National Labor Relations Board - Board Decisions

Jul 21, 1992

307 N.L.R.B. 1442 (N.L.R.B. 1992)

1442
307 NLRB No. 220
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Board’s original Decision and Order is reported at 292
NLRB 941 (1989), enfd. 907 F.2d 765 (7th Cir. 1990).
Henry Colder Co., Inc. d/b/a Colders Furniture and
Steven Wasechek. Case 30–CA–9854
July 21, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 31, 1992, Administrative Law Judge
Richard H. Beddow Jr. issued the attached supple-
mental decision on backpay.1 The Respondent filed ex-
ceptions and a supporting brief and the General Coun-
sel filed an answering brief to the Respondent’s excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders the Respondent, Henry Colder Co., Inc. d/b/a
Colders Furniture, West Allis, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, and make whole Steven
Wasechek by payment to him of $53,118, with inter-
est.
Gerald McKinney, Esq., for the General Counsel.
Daniel G. Vilet, Esq., of Milwaukee, Wisconsin, for the Re-
spondent.
SUPPLEMENTAL DECISION
I. STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Milwaukee, Wisconsin, on November
19, 1991. Subsequently, a brief was filed by the Respondent.
The proceeding is based on backpay specifications dated
October 22, 1990, which follow a decision of the Court of
Appeals for the Seventh Circuit on July 25, 1990, enforcing
in full the backpay provisions of the Board’s Decision and
Order dated February 9, 1989, reported at 292 NLRB 941
which decision ordered Respondent to make employee Steve
Wasechek whole for any loss of pay suffered by reason of
his unlawful discharge.
On review of the backpay specifications, as amended, Re-
spondent’s answer, and the evidence presented at the hearing,
it appears that the primary issue presented is whether the
discriminatee failed to pursue available work in ‘‘retail fur-
niture sales’’ and intentionally chose to pursue a new career
and thereby failed to mitigate damages.
In addition, it is noted that evidence was presented at the
hearing which adequately supports the presentation in the
backpay specifications pertaining to claimed expenses ac-
crued in Wasechek’s search for work and claimed medical
expenses.
These matters were not disputed on brief and I otherwise
find that they properly are reimbursable under this record and
its backpay specifications.
Discriminatee Wasechek graduated from Milton College in
1976 and then worked for 6 months as an interviewer at the
state unemployment office and then for a year as a youth di-
rector at the Jamesville, Wisconsin Community Center. He
became a sales representative for Plough Sales Corporation
for nearly a year and then a security officer for AC Spark
Plug for a period of about 5 years. In February 1983 he be-
came a sales coordinator for Salico’s Catering where he
worked until joining the Respondent in September 1985.
When he was discriminatorily discharged November 4,
1987, Wasechek was one of Respondent’s top salesmen, sell-
ing $800,000 worth of furniture annually and ranking in the
top 5 or 10 out of 30 to 35 sales employees. In 1987 his
compensation while employed by the Respondent would
have been $49,000 on an annualized basis.
On November 9, shortly after his termination, Wasechek
registered with state job services but received no referrals.
On November 29 he unsuccessfully sought work at Ground-
waters (a furniture store) where he knew one of its employ-
ees.
He started his job search on November 15, as indicated in
his search for work report filed with the Board, which in-
cludes the following additional attempts, listed by quarter:
Company Position Date
11/7/87–12/31/87
Abbey Medical Medical sales 11/15
Knueppel Home Health Home health sales 11/15
Al Dellavalle Sales rep. (product
unknown) 11/22
Systemic Support Systems Medical sales 11/23
Medical Engineering Medical sales 11/29
Spalding Sales (product unknown) 12/06
RJ Medical Supply Medical equipment sales 12/04
Spring Air Wholesale mattress 12/13
Empire Distributing Sales (product unknown) 12/20
1/1/88–3/31/88
American Display Sales—electric signs 1/5
Arthur Fulmer Sales—motorcycle equip. 1/17
Colonial Hospital Supply Sales—hospital supplies 1/17
Blind ad Sales—unknown product 1/17
Burrows Medical sales 1/24
Trek Wholesale bicycle sales 1/24
Fujisawa, Smith & Kline Financial sales 1/31
Waymar Medical Medical equipment sales 2/8
Schwabb Unknown 2/8
Medico-Mart Medical product sales 2/14
Blind Ad Unknown 2/21
R & M Distributing Unknown 2/21
Devon Industries Unknown 2/21
Shaw & Associates Unknown 2/28
1443COLDERS FURNITURE
Company Position Date
Bristol Myers Over the counter drug sales 2/28
Pro/Staff Unknown 3/1
Muzak Music sales 3/6
Health Call Health industry sales 3/6
B-Z Engineering Personnel-headhunting 3/11
Medrad Medical product sales 3/20
14/1/88–6/30/88
Blind Ad Unknown 4/3
DeMuth Medical sales 4/10
Miracle Ear Sales 4/29
Lincoln Tech Sales-vocational training 8/2
7/88–9/30/88
Wininger Company Sales-compressors
In addition, Wasechek had two interviews with a local
store called Furniture Venture Outlet in January 1988.
Wasechek was accepted for a week of training with Amer-
ican Display in January 1988, and he worked for them for
a week in Cincinnati but left after it appeared he would not
be assigned to work in the Milwaukee area, as had been rep-
resented. He sought and received a job as a sales representa-
tive for B-Z Engineering on May 16, 1988, where he was
employed the remainder of 1988 and into 1989. The parties
otherwise stipulated that the interim earnings for the first and
second months of 1989 are not contested. On April 27, 1989,
Respondent made a valid offer of reinstatement.
Respondent introduced a number of newspaper ads and
Wasechek testified that while he had seen ads in the news-
paper for major furniture stores in the Milwaukee area, in-
cluding Steinhafel’s and American, he did not apply there,
because he previously had applied for a job at both employ-
ers in 1985 (while on temporary layoff from the Respondent)
and had not been hired. He also said he was concerned that
he would not be recommended favorably by Respondent to
other principal competitor furniture stores in the area. Rep-
resentatives of both of these stores testified they had jobs
available during 1988, that Wasechek’s resume would have
been evaluated favorably, and that his past experience with
a competitor would not be held against him. Both employers
noted, however, that learning that Wasechek had been fired
for cause might affect a decision on whether or not he would
be hired as well as what questions they would ask and evalu-
ate.
Wasechek testified that he looked for jobs in the Sunday
newspaper ads and, in response to the Respondent’s sub-
poena, he produced a large stack of Sunday help-wanted sec-
tions from the Milwaukee Journal which reflected his prac-
tice of circling jobs he was interested in pursuing. At the
Courts’ request only two representative sections of the news-
paper were introduced into evidence, to avoid burdening the
record. Respondent argues that its review of these sections
of the newspaper reveal that Wasechek apparently ignored or
failed to follow up on many sales positions for which he was
qualified and that he ignored ads for retail sales positions, in-
cluding a number of retail furniture sales positions.
A summary of the advertisements for retail furniture posi-
tions, prepared by one of Respondent’s employees, which
purports to show that over 150 advertisements for retail fur-
niture sales positions were placed in the Sunday Milwaukee
Journal between November 1987 and April 1989, also was
received into evidence.
II. DISCUSSION
As stated by the Board in Fair Fashions, 291 NLRB 586
at 587 (1988):
A discriminatee is required to make a reasonable search
for work in order to mitigate loss of income and the
amount of backpay. Lizdale Knitting Mills, 232 NLRB
592, 599 (1977). The Board and the courts hold how-
ever, that in seeking to mitigate loss of income a back-
pay claimant is ‘‘held . . . only to reasonable exertions
in this regard, not the highest standard of diligence . . .
The principle of mitigation of damages does not require
success, it only requires an honest good faith ef-
fort. . . .’’ NLRB v. Arduini Mfg. Co., 394 F.2d 420,
422–423 (1st Cir. 1968); NLRB v. Madison Courier,
472 F.2d 1307 (D.C. Cir. 1972). The Board and the
courts also hold that the burden of proof is on the em-
ployer to show that the employee claimant failed to
make such reasonable search. NLRB v. Midwest Hanger
Co., 550 F.2d 1101 (8th Cir. 1977), or that he willfully
incurred loses of income or was otherwise unavailable
for work during the backpay period. NLRB v. Pugh &
Barr, Inc., 231 F.2d 588 (4th Cir. 1956); NLRB v.
Miami Coca Cola Bottling Co., 360 F.2d 569 (5th Cir.
1966). Moreover, in applying these standards, all doubts
should be resolved in favor of the claimant rather than
the respondent wrongdoer. United Aircraft Corp., 204
NLRB 1068 (1973).
What constitutes a good-faith search for work de-
pends on the facts of each case. In this regard the
Board stated:
that in broad terms a good-faith effort requires conduct
consistent with an inclination to work and to be self-
supporting and that such inclination is best evidenced
not by a purely mechanical examination of the number
or kind of applications for work which have been made,
but rather by the sincerity and reasonableness of the ef-
forts made by an individual in his circumstances to re-
lieve his unemployment. Circumstances include the eco-
nomic climate in which the individual operates, his skill
and qualifications, his age, and his personal limitations.
The Respondent here essentially relies on the
discriminatee’s ‘‘skill and qualification’’ circumstances and
contends that Wasechek was bound to seek essentially the
same retail furniture sales work he was engaged in before
being fired, citing a portion of Madison Courier, Inc., supra,
where the court said at 1318:
In order to be entitled to backpay, an employee must
at least make ‘‘reasonable efforts to find new employ-
ment which is substantially equivalent to the position
[which he was discriminatorily deprived of] and is suit-
able to a person of his background and experience.’’
Here, it is apparent that Wasechek turned the emphasis of
his job search to sales representative type jobs but he did not
1444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987, the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
totally reject any efforts in retail furniture sales having made
attempts with at least two companies (Groundwater’s in No-
vember 1987 and Furniture Venture Outlet in January 1988)
as well as a wholesale mattress company in December 1987.
Moreover, consideration must also be given to the fact that
Wasechek was in retail furniture sales for only 2 years and
had previously held sales representative positions, including
one in the medical-related area, an area he again sought to
pursue in his documented attempts to secure employment.
Here I find that a search for employment in the broad cat-
egory of salesman for this particular individual is consistent
with a good-faith search for comparable work as defined in
Fair Fashions, supra. Wasechek was not a retail salesclerk
but a salesman who had as much if not more experience as
a sales representative than he did in retail furniture sales.
While it may be that retail furniture sales jobs were being
advertised, Wasechek speculated that such jobs, especially
those with his former employers principal competitors
Steinhafel’s and American, would be unavailable to him if
they learned of the circumstance of his discharge. In a like
manner two possible employers Steinhafel’s and American
testified and also speculated that Wasechek might have got-
ten a vacant position if they had accepted his qualifications
over other applicants and his explanation of why he had been
fired. This conflict of speculations should be decided against
the interest of the wrongdoer and I find that Wasechek had
a not unreasonable reluctance to pursue a job with local com-
petitors of his former employer at a time when the personal
files of this employer indicated that he had been terminated
for cause. This reluctance by Wasechek was not a total aban-
donment of consideration of retail furniture sales employ-
ment and it was combined with a more active search for
work as a sales representative, work that was comparable
with his past work history and work that also was consistent
with the broad area of skills required in salesmanship. (In
this connection I also note that in each instance Wasechek’s
compensation was based substantially on commission.) Ac-
cordingly, I find that the discriminatee did embark on a rea-
sonable and legitimate course of a search for comparable in-
terim employment.
The backpay specifications involved here are as follows:
87/4 $7,573 $0 $7,573 $0 $0 $7,573
88/1 12,307 0 12,307 0 0 12,307
88/2 12,307 1,697 10,609 0 104 10,714
88/3 12,307 3,706 8,601 0 226 8,827
88/4 12,307 3,746 8,561 0 226 8,787
89/1 12,307 9,514 2,793 0 226 3,019
89/2 4,733 2,912 1,822 0 70 1,891
TOTALS $73,840 $21,575 $52,265 $0 $853 $53,118
As can be seen above, the interim employment that
Wasechek obtained did not reach the level of earnings he had
reached with the Respondent. It is well established, however,
that once a discriminatee has embarked on a legitimate
course of interim employment, there is no duty to search for
more lucrative interim employment, nor to engage in the
most lucrative interim employment. See F.E. Hazard, Ltd.,
303 NLRB 839 (1991).
Here it appears that the initial commissions earned by
Wasechek at his principal interim employment were not ex-
tensive, however, by the first quarter of 1989, he clearly had
succeeded in getting started and was approaching the same
level of earnings he had enjoyed at the time of his discrimi-
natory discharge. Accordingly, I find that Wasechek’s pursuit
of and engagement in interim employment as a sales rep-
resentative did not constitute willful failure to mitigate his
losses, see F.E. Hazard, supra, and, under these cir-
cumstances, I conclude that Respondent has failed to meet its
burden to establish that Wasechek did not make reasonable
efforts to find substantially equivalent interim employment.
Under these circumstances, I further concluded that the
gross backpay computations in the backpay specifications are
the most accurate possible estimates of backpay and that Re-
spondent has failed to establish any reasonable alternative
basis for a dimension of damages. Accordingly, total back-
pay owed discriminatee Wasechek by Respondent is $53,118,
exclusive of interest.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Henry Colder Co., Inc. d/b/a Colders
Furniture, West Allis, Wisconsin, its officers, agents, succes-
sors, and assigns, shall make whole Steve Wasechek by pay-
ment to him of $53,118 as reimbursement for medical ex-
penses and backpay, plus interest to the date of payment as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).2