Concourse Porsche Audi, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 360 (N.L.R.B. 1974)

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concourse Porsche Audi, Inc. and Flora H. Fuller.
Case 14-CA-6767
FINDINGS OF FACT,2 CONCLUSIONS, AND REASONS
THEREFOR
June 12, 1974
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLS AND MEMBERS FANNING
AND JENKINS
On February 25, 1974, Administrative Law Judge
Lowell Goerlich issued the attached Supplemental
Decision 1 in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
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 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Concourse Porsche
Audi, Inc., St. Louis, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth
in the recommended Order.
' The Administrative Law Judge titled his Decision a "Decision in
Backpay Proceeding."
DECISION IN BACKPAY PROCEEDING
LOWELL GOERLICH, Administrative Law Judge: On
October 24, 1973, a Backpay Specification and Notice of
Hearing was issued alleging that a controversy had arisen
over the amount of backpay due under the terms of the
Board's Order herein.' On January 8, 1974, the matter
came on for hearing at St. Louis, Missouri, on the backpay
specification and answer of the Respondent, Concourse
Porsche Audi, Inc. Each party was afforded a full
opportunity to be heard, to call, examine, and cross-
examine witnesses , to argue orally on the record , to submit
proposed findings of fact and conclusions, and to file
briefs. All briefs have been carefully considered.
1 201 NLRB 181.
2 The facts found herein are based upon the record as a whole and the
observation of the witnesses.
3 According to these reports she contacted at least four employers a
week.
4 The business manager of Tom Casavely Ford stated that he did not
observe the name of Fuller on any of the Automobile Dealers Association's
weekly bulletins. The business manager of Central Volkswagen said that he
had contacted the Automobile Dealers Association in May 1972 and the
The parties stipulated that, in the event the General
Counsel prevailed, the discriminatee, Flora H. Fuller,
should be awarded $4,986.40 as backpay for the backpay
period commencing on April 10, 1972, and ending January
24, 1973. The Respondent claims that this amount is not
owing because the discriminatee did not fulfill her
obligation under the law to mitigate damages. The burden
of proof in this respect was on the Respondent. "Once the
General Counsel has shown the gross amount of backpay
due, the burden is on the employer to establish facts to
negative or mitigate liability to a given employee. And
finally, `any uncertainty is resolved against the wrongdoer
whose conduct made certainty impossible.' " Fibreboard
Paper Products Corporation, 180 NLRB 142, 147. See also
N.L.R.B. v. Mooney Aircraft, Inc., 366 F.2d 809 (C.A. 5).
Discriminatee Fuller, while working for the Respondent,
was employed as a biller. As a biller she prepared the
necessary papers for automobile purchasers so that they
could "obtain license plates and pay sales tax, that sort of
thing." She had worked as a biller since 1957.
When Fuller was discharged by the Respondent she
registered with the Missouri Employment Agency, Mis-
souri Division of Employment Security, 23 Crestwood
Plaza, St. Louis, Missouri. At the time she lived approxi-
mately 7 or 8 miles from the Respondent's establishment in
Affton, Missouri, which lies south of St. Louis in South
County. Her travel time between her home and the
Respondent's establishment was about 15 minutes. Her
hours of work were 8:30 a.m. to 5 p.m.
Fuller reported periodically to the Employment Agency
office and furnished it with the names of employers from
whom she had requested employment.3 Additionally she
lodged an application for employment with the Automo-
bile Dealers Association which is utilized by St. Louis
automobile dealers as a source for job applicants.4 Fuller
also searched for employment by contacting a substantial
number of automobile dealers by phone, and by submit-
ting applications for employment, and by responding to
advertisements for help. For this purpose she utilized the
yellow pages of the phone directory, made inquiries, and
reviewed the help-wanted advertisements in the South
County Journal, a weekly neighborhood paper,5 and the
Sunday St. Louis Post-Dispatch. She did not subscribe to a
daily newspaper. The most distant automobile dealership
from her home to which she applied for employment was
Fairway Dodge, about 15 miles from her home.
Fuller also visited the counselor at the Missouri Division
of Employment Security on four or five occasions, but was
name of Fuller was not given him . This testimony is not considered
persuasive proof that Fuller did not apply with the Automobile Dealers
Association . Persuasive proof in this regard would have been the records of
the association or testimony from its personnel which was not produced by
the Respondent to rebut Fuller 's testimony . Moreover, Fuller testified that
she did receive a response after she commenced employment with Classic
Cars.
5 This weekly carried advertisements primarily for the South City and
South County area.
211 NLRB No. 41
CONCOURSE PORSCHE AUDI
never sent out for a job interview. She contacted Placke
Toyota, De Brecht Imports,6 and Signal Dodge in person
in July and August 1972. She made written applications
with Arundel Manufacturing and Howard Bohlman,
C.P.A. She also applied for a job with the Professional
Equities Company where she was interviewed but she did
not obtain the job.
On January 24, 1972, Fuller obtained a part-time job
with Classic Cars, a distance of about 7 or 8 miles from her
home. Fuller had phoned the office manager of Classic
Cars, whom she had helped to obtain employment there, to
inquire whether she knew of any job openings . Later Fuller
was offered part-time work at Classic.
In May, June, and July 1972, advertisements for a biller
were carried in the Sunday editions of the St. Louis Post-
Dispatch for Tom Casavely Ford located in the north
outskirts of St. Louis. Fuller did not see these advertise-
ments and did not apply for the job.
On June 11, 1972, an advertisement appeared in the
Sunday edition of the St. Louis Post-Dispatch in which
McKelver-Kessler Oldsmobile sought a biller. The hours
were from 12:45 p.m. to 8:30 p.m. The agency was located
15 miles north of the center of St. Louis, a 45-minute drive
from the Crestwood Shopping Center? located in South
County. Fuller did not see the advertisement and did not
apply for a job there.
Ray Rixman, Inc., advertised for an automotive biller in
the St. Louis Post-Dispatch on April 9, 10, and 11, 1972.
Ray Rixman, Inc., was located in northeast St. Louis about
25 miles from the Crestwood Shopping Center, about a 45-
minute drive. Fuller did not learn of the advertisement and
made no application there.
In November 1972 Merollis Chevrolet, by its business
manager, contacted Fuller and offered her a job as a biller.
Fuller refused the job because it was too far to drive to
work and the hours, 9 a.m. to 6 p.m., made it too late for
her returning home.8 Fuller said that in accepting a job
offer she must consider the needs of her family. The agency
was located about 25 or 30 miles from Fuller's home.
On October 29 and 31, 1972, Kribs Ford, Inc. advertised
for a biller in the St. Louis Dispatch. The work location
was in extreme South County. The job was filled on
November 17, 1972. Fuller did not see the advertisement
and did not apply for the job.
On August 27 and September 3, 1972, Anthony Chevro-
let, Inc., advertised for a biller in the St. Louis Post-
Dispatch. The agency is located in the area in which Fuller
lived. Fuller did not see the advertisement and did not
contact Anthony Chevrolet because "it was termed a bad
place to work."9 The job was filled by an inexperienced
girl on September 5 or 6, 1972.
Central Volkswagen's advertisement for a biller ap-
peared in the St. Louis Post-Dispatch on April 23, 24, and
6 Fuller lodged an application with De Brecht advertised for a biller in
the St . Louis Post-Dispatch on August 27, 1972. Apparently De Brecht
rejected Fuller's application . Nevertheless , it is significant that De Brecht
was not called for testimony by the Respondent.
7 Fuller resided 1-1/2 to 2 miles from the Crestwood Shopping Center.
B Fuller thought the call was in January. However, it is unnecessary to
resolve the conflict since Fuller would not have accepted the job in any
case.
9 Fuller testified: . friends of mine ... have worked at the
Chevrolet dealership , and they have all quit because they were unable to get
361
25 and July 30, 1972. Fuller did not see these advertise-
ments . Central Volkswagen was located in the area in
which Fuller lived. Fuller said that she did not apply there
because "I didn't know they had an ad running in the first
place, and again I didn't care to go to Central Volkswagen.
I didn't want to go to that neighborhood ... It's not a
very good neighborhood, and I also know of a couple of
people that worked there, and I believe that they worked
until 6 o'clock which again would make it quite late for my
getting home, but I did not know they had an ad running."
Fuller limited her job search to prospective employers
whose places of business were within a distance of 10 to 15
miles from her home (Fairway Dodge, to whom she
applied for work, was about 15 miles away) 10 and whose
hours of employment did not require her to work beyond 5
p.m.11 Thus Fuller "disregarded any automobile agency
that didn't work from 8 to 5 and was not 10 miles or so or
12 miles from [her] house."
Upon the basis of the credited facts, Fuller made a
diligent search for alternative work, for she canvassed a
substantial number of prospective employers, answered
advertisements, registered with and reported periodically
to the Missouri Employment Agency, and registered with
St. Louis Automobile Dealers Association. See Nickey
Chevrolet Sales, Inc., 195 NLRB 395. Nevertheless, there
were biller's jobs available in greater St. Louis and in South
County where Fuller lived. Had she applied for any one of
them, it seems reasonable that she would have been
employed because she possessed the necessary qualifica-
tions for such jobs and qualified applicants for such jobs
were few. Continued employment in any one of these jobs
would have mitigated the Respondent's backpay liability
resulting from its unfair labor practices.
The Supreme Court has said, "it seems fair that
deductions should be made not only for actual earnings by
the worker but also for losses which he willingly incurred."
(Emphasis supplied.) Phelps Dodge Corp. v. N.L.R.B., 313
U.S. 177, 198. The Court further opined that appropriate
weight must be given to the "unjustifiable refusal to take
desirable new employment." Id., 199 (emphasis supplied).
Considering the exigencies, hazards and physical de-
mands attendant upon automobile driving through a
congested metropolitan area by a female worker, Fuller's
refusal to drive to North St. Louis and distances of over 15
miles can not be reckoned "unjustifiable," especially in
view of the fact that when she worked for the Respondent
she traveled only 8 or 10 miles to her job.12 Moreover, a
job which would have required Fuller to abandon her
family for the period of a late work assignment, a job
which would have taken her to a "not a very good
neighborhood," and a job which would have exposed her
along with the office manager "
10 Fuller testified that she was not "willing to drive 25 or 30 miles to a
job," but that she would have "probably" driven 15 miles.
11 Fuller testified, "I also maintain a home and have a family I have to
consider their needs along with my employment . My employment is because
I enjoy working, it is not because I necessarily have to. So, therefore I like to
work in the area, close to my home. "
12 A discnminatee is not necessarily obligated to accept employment
which is located an unreasonable distance from his home. N.L R B v
Madison Courier, Inc., 472 F.2d 1307 (C.A.D.C.).
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a "bad place to work" cannot be deemed "desirable"
jobs.13 The duty to mitigate, which springs from "not so
much the minimization of damages as the healthy policy of
promoting production and employment," (id., 200) does
not demand or compel a wronged female employee to
work under bad management, to work in a precarious
neighborhood, to drive unreasonable distances to the job
or to work late hours where none of these burdens
obtained to the job from which she was separated.14 Thus
Fuller would have been justified in refusing employment
with these prospective employers and her failure to apply
for work with them did not constitute a willful loss of
earnings . As between the wronged employee and the
wrongdoing employer , "fairness" is with the employee's
claim under the circumstances of this case.
In N.L.R.B. v. Madison Courier, Inc., 472 F.2d 1307, 1316
(C.A.D.C.), the court said:
The purpose of requiring that the employer make the
discriminatee whole in such a case [a discriminatory
discharge] has a two-fold objective. First, the back pay
remedy reimburses the innocent employee for the
actual losses which he has suffered as a direct result of
the employer's improper conduct; second, the order
furthers the public interest advanced by the deterrence of
such illegal acts. While the need for achievement of the
private reimbursement objective is obvious, courts have
generally placed greater stress on the less apparent goal
of furthering public policy." [Emphasis supplied.]
That the Respondent be allowed mitigation, as urged,
would conflict with the advancement of the public interest,
because the heavy burden placed upon the discriminatee
requiring her to mitigate the backpay liability insisted upon
by the Respondent would remove the deterrence envi-
sioned by the Act. Indeed, if the earliest date were taken
the Respondent would go almost scot free. Moreover, it
would be the innocent employee who would be punished,
and not the Respondent deterred; for the Respondent
could have reasonably foreseen that any employee it
wrongfully discharged would react the same way under
similar circumstances . The employer ought not to be
excused so easily from the mandates of the public interest.
The fact that Fuller did find a job is proof of her efforts
and the fact that she did work is proof of her desire. Burnup
and Sims, Inc., 157 NLRB 366, 373.
Accordingly, it is found that the backpay due Fuller
from the Respondent is the stipulated sum, $4,986.40.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record before the
Administrative Law Judge, and pursuant to Section 10(c)
of the Act, it is recommended that the Board issue the
following:
ORDER 15
Respondent, Concourse Porsche Audi, Inc., St. Louis,
Missouri , its officers, agents , successors , and assigns, shall
make Flora H. Fuller whole by payment to her of
$4,986.40, together with interest at the rate of 6 percent per
annum commencing January 24, 1973, and continuing
until the amount is paid in full, but minus tax withholdings
required by Federal and state laws.
13 A discriminatee need not seek or accept employment which is
"dangerous, distasteful or essentially different" from thejob from which he
was discharged . Florence Printing Co. v. N.L.R.B., 376 F.2d 216, 221 (C.A.
4); Mooresville Cotton Mills v. N.L.R.B., 110 F.2d 179, 181 (C.A. 4).
14 It is plausible to believe that the Respondent , at the time it discharged
Fuller, could have reasonably foreseen that she would not have accepted
any job with these conditions.
15 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.