E & L Plastics Corp.

National Labor Relations Board - Board Decisions

Sep 9, 1994

314 N.L.R.B. 1056 (N.L.R.B. 1994)

1056
314 NLRB No. 175
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent contends that interest on any backpay awarded
to discriminatees John Laut and Steven Zidek should be tolled from
January 22, 1993 (the day after the compliance hearing) through Au-
gust 6, 1993 (the date the judge formally closed the record in this
proceeding). This argument appears not to have been raised to the
judge and the Respondent offers no explanation for its failure to do
so. In any event, we find the argument to be without merit and we
shall not toll the interest on the backpay awarded.
1 The backpay period for Laut extends from June 22, 1989, to No-
vember 29, 1991; Zidek’s from June 29, 1989, to December 30,
1991; and LaJoice’s from June 22, 1989, to November 8, 1991.
E & L Plastics Corp. and Steven D. Zidek and John
Laut. Cases 30–CA–10725 and 30–CA–10725 (2)
September 9, 1994
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On November 19, 1993, Administrative Law Judge
Richard A. Scully issued the attached supplemental de-
cision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an answer-
ing brief.
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 exceptions1 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 that the Respondent, E & L Plastics Corp.,
Lannon, Wisconsin, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Paul Bosanac, Esq., for the General Counsel.
Donald J. Cairns, Esq. and Gerald A. Einsohn, Esq., of Mil-
waukee, Wisconsin, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On Janu-
ary 14, 1992, the National Labor Relations Board (the Board)
issued its Decision and Order (305 NLRB 1119) directing E
& L Plastics Corp. (the Respondent) to make whole Steven
Zidek, John Laut, and Peter LaJoice for losses incurred as a
result of the unfair labor practices found to have been com-
mitted by the Respondent. The parties being unable to agree
on the amount of backpay due under the terms of the
Board’s Order, the Regional Director for Region 30 issued
a backpay specification, dated August 14, 1992.
This case was heard on January 21, 1993, in Milwaukee,
Wisconsin, pursuant to a notice of hearing, dated November
5, 1992. Briefs submitted by counsel for the General Counsel
and the Respondent have been given due consideration. On
the entire record and from my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
There is no dispute as to the length of the backpay peri-
ods,1 the average weekly earnings of the discriminatees prior
to their terminations, or the hourly rates they would have re-
ceived had they continued their employment with the Re-
spondent. The Respondent does challenge the amounts of
backpay alleged to be due in the General Counsel’s backpay
specification and contends that its liability should be reduced
in the cases of Laut and Zidek because of the failure of each
to engage in a reasonable and diligent search for employment
at times during the backpay period and because the overtime
computations for all of the discriminatees were incorrectly
computed.
A. John Laut
Laut was employed by the Respondent as a milling ma-
chine operator working with plastics. He had previous em-
ployment involving operating table saws and milling ma-
chines and unloading trucks. Laut testified that he registered
with the Wisconsin Job Service immediately after he was ter-
minated. He went to the Job Service office and examined
printouts and microfilm lists of available jobs on about four
occasions during the first 6 months after his termination but
found nothing available at plastics machine shops. He also
testified that within a week of his termination he sought jobs
at an apartment management company run by a friend of his
family, a repair shop, and Bradley Corp., a manufacturing
company that did machining of brass and plastic, but he was
not successful. He acknowledged that the first two companies
did not have positions for milling machine operators, but said
that he was looking for something that he could start right
away. He also said that he had done some work repairing
machines which he felt might be useful at the repair shop
and that he might be able to start at the bottom even if he
lacked the necessary experience. He said that Bradley had no
openings and was not accepting applications, but told him to
‘‘come back’’ which he did each month in an effort to be
recognized and ‘‘make a good impression.’’ In September
1989, he was referred by the Job Service to Harnischfeger
Corp. which had available only jobs involving machining
steel which he was not qualified to do. He testifed that he
contacted at least three other employers during the summer
of 1989 but that he could not remember their names when
he filled out a report for the Board in 1990. At the hearing
he recalled applying to Triangle Tool on two occasions, Ac-
curate Machine near the airport, and another place ‘‘on 124th
in Silver Spring,’’ possibly called Remington Manufacturing.
Between October and December 1989, he inquired again at
Bradley Corp., the property management company, and the
repair shop but found no openings. He had been told that the
repair shop work was demanding and that there was a large
turnover and that he should ‘‘keep in touch.’’ During this pe-
riod he was referred by the Job Service to Ludell Manufac-
turing but found that the position involved machining steel
rather than plastic. He said that he also applied at Hurker
Screw Machine in Germantown during this period, which he
1057E & L PLASTICS CORP.
understood was expanding, but it was not accepting applica-
tions.
In January 1990, he was referred by the Job Service to A
& M Tooling but when he applied found that he was not
qualified as they did steel machining. That month he applied
at Schoeneck Containers, which produces plastic materials,
but the work required experience in injection molding rather
than machining plastic and he was not qualified. He also ap-
plied at a machine shop, Roband Manufacturing in
Menomenee Falls, but it did no machining of plastic or fiber-
glass which was all he had experience doing.
On January 21, 1990, he was offered and accepted a job
with Metropolitan Holding Co., a property management busi-
ness, where he did caretaker, cleaning, and maintenance
work. After starting at Metropolitan, he made no further ef-
fort to find another job until May 1990, when he applied at
Five Star Manufacturing after seeing an ad in the newspaper.
He began working there as a CNC operator on the second
shift but continued to work at Metropolitan until June or July
as he was not always working a full shift at Five Star. He
worked at Five Star until June 1991, when it moved to a new
location which was far from his home. When Five Star
moved, he got a job with Mantel Manufacturing which
bought the building Five Star had been occupying. He re-
mained with Mantel through the end of the backpay period.
Analysis and Conclusions
Once the General Counsel has established the gross
amount of backpay the discriminatees would have earned in
the absence of discrimination by the employer, less net in-
terim earnings, an employer can mitigate its liability for
backpay by establishing that a discriminatee willfully in-
curred loss by a ‘‘clearly unjustifiable refusal to take desir-
able new employment.’’ Phelps Dodge Corp. v. NLRB, 313
U.S. 177, 199–200 (1941). This is an affirmative defense and
the burden is on the employer to prove the necessary facts.
NLRB v. Mooney Aircraft, 366 F.2d 809, 813 (5th Cir.
1966); NLRB v. Brown & Root, 311 F.2d 447, 454 (8th Cir.
1963). This burden is not met by evidence of the employee’s
lack of success in obtaining interim employment or low earn-
ings. The employer must affirmatively establish that the em-
ployee failed to make reasonable efforts to find interim work.
December 12, Inc., 282 NLRB 475, 477 (1986); Big Three
Industrial Gas, 263 NLRB 1189, 1197 (1982). I find that the
Respondent has not borne that burden with respect to Laut.
The Respondent seeks to minimize its backpay liability by
concentrating on the search for work report that Laut subse-
quently supplied to the Board and on specific periods in
which it contends that he did not make ‘‘a reasonable effort
to secure a substantially equivalent position to that from
which he was discharged.’’ However, this is not the appro-
priate test. The entire backpay period must be looked at ‘‘to
determine whether throughout that period there was, in the
light of all the circumstances, a reasonably continuing search
such as to foreclose a finding of willful loss.’’ Cornwell Co.,
171 NLRB 342, 343 (1968). The testimony of Laut con-
cerning his search for interim employment, which I found to
be credible and uncontradicted, establishes that it began im-
mediately after his discharge when he registered with the Job
Service. Such registration is a factor to be considered in de-
termining whether there has been a willful loss of earnings.
Avon Convalescent Center, 219 NLRB 1210, 1211 fn. 5
(1975); Southern Silk Mills, 116 NLRB 769, 770 (1956).
Contrary to the assertion in the Respondent’s brief, his testi-
mony establishes that he visited the Job Service at least four
times during the first 6 months after his discharge and that
he examined the available jobs listed there on each occasion
and found none which involved machining plastics. During
the same period, he applied to at least three different ma-
chine shops pursuant to referrals from the Job Service. In ad-
dition, at the hearing he identified three other machine shops
where he sought work during the summer of 1989. This testi-
mony was consistent with the information he had provided
to the Board wherein he indicated that he had been to other
employers but could not recall their names. Poor record-
keeping or uncertainty of memory do not disqualify him. De-
cember 12, Inc., supra. The fact that he also sought work in
areas other than machining, when he found nothing com-
parable to his job with the Respondent available, does not,
under the circumstances, indicate that he failed to utilize the
skills and qualifications he developed during that employ-
ment. On the contrary, it indicates that when despite his ef-
forts he was unable to find something comparable, he sought
anything that might be available. His credible testimony es-
tablishes that he made a consistent good-faith effort to obtain
desirable new employment from the time he was discharged
until he was successful in obtaining a maintenance job in
January 1990.
I find that Laut is not disqualified from receiving backpay
during the period that he worked for Metropolitan doing
building maintenance until he went to work for Five Star as
a machine operator. As noted above, the backpay period
must be looked at in its entirety and a claimant will not be
found to have incurred a willful loss of earnings ‘‘merely be-
cause the search for interim employment was not made in
each and every quarter’’ of that period. December 12, Inc.,
supra, at 477. The evidence indicates that Laut took the first
job he was offered after an extensive search. A discriminatee
is not required to meet the highest standard of diligence nor
exhaust all possible job leads. Lundy Packing Co., 286
NLRB 141, 142 (1987). In any event, the Respondent has
failed to establish that Laut could have done better than he
did by taking the job with Metropolitan or that at any time
he clearly and unjustifiably refused to take desirable new em-
ployment.
In summary, I find that the evidence establishes that Laut
made a good-faith effort to secure interim employment after
being terminated by the Respondent and that he is entitled
to backpay for the entire period between June 22, 1989, and
November 21, 1991.
B. Steven Zidek
Zidek was employed by the Respondent from 1985 until
June 1989. He testified that he worked as a machine operator
and when the company acquired some computer mills he
learned on his own how to operate them and trained others
to use them. He said that these machines were ‘‘outdated’’
by the time he was discharged. His final position was as an
inspector and that while company had gotten some new
‘‘CNC’’ machines before he left, he had no idea how to op-
erate them. He had previously worked at Die Electric for 7
years operating manual mills, drill presses, and table saws.
While at Die Electric, for a period of about 2 years, part of
his time was spent driving a delivery truck.
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Zidek testified that he registered with the Job Service the
day after he was discharged by the Respondent. According
to his uncontradicted testimony, each week through the end
of March 1990, he visited or telephoned the Job Service to
inquire about available employment on Monday, he called
the Job Service recording of available jobs on Wednesday,
and visited a library to check job listings. The evidence
shows that during the period from July through September
1989, he sought different types of employment with at least
ten different employers without success. Several of these jobs
involved delivery truck driving, others manufacturing and se-
curity positions, while with others Zidek could not recall
what they involved. He applied and took a test for a meter
repair job with Milwaukee County which involved machin-
ing. During the period from October through December
1989, he applied and tested for carpenter and plumbing ap-
prenticeship programs and applied for several jobs, including
some with building contractors that were involved with the
carpenter apprenticeship program. Between early January and
March 1990, he applied for additional carpenter jobs, deliv-
ery driver jobs, laborer and police jobs, and interviewed for
the electricians apprenticeship program. He also tested for a
job with the U.S. Census Bureau and eventually went to
work there although he was unsure of when he started. He
worked a second-shift job until late July 1990. In late July
1990, he began working full time for E. D. Wesley Co. in
the plumbers apprenticeship program. He worked there until
being laid off in January 1991. About a month later he went
to work for another plumbing contractor, Grunau, where he
is still employed. Zidek testified that he applied for some
machining jobs that he heard about through friends and in-
quired about some that were advertised in the newspaper but
found that his experience with analog computers was out-
dated and that he would have qualified only for operating a
milling machine at a wage much below what he had been
receiving. He did not apply for any milling machine operator
jobs because of this wage discrepancy. He has not looked for
other work since beginning his plumbing apprenticeship.
Analysis and Conclusions
The Respondent contends that Zidek is not entitled to any
backpay because he made no reasonable search for employ-
ment utilizing his skills and abilities at any time during the
backpay period. I find that it has not borne the burden of es-
tablishing that to be the case. Again, the Respondent seeks
to break down the backpay period into quarterly periods in
which it contends Zidek’s efforts to secure employment were
inadequate by its standards. Its approach is unacceptable for
several reasons. As noted above, the entire backpay period
must be looked at to determine if the claimant has made a
continuing search for work so as to foreclose a finding of
willful loss. Also, there is no requirement that the claimant
must seek ‘‘precisely the same type of interim employment
as that from which he was discharged.’’ Associated Grocers,
295 NLRB 806, 810 (1989). The Respondent did not estab-
lish that Zidek had such extensive experience in a specialized
field that in his search for interim employment it was incum-
bent upon him to seek to work within that specialty. Cf.
Knickerbocker Plastic Co., 132 NLRB 1209, 1219 (1961).
On the contrary, according to Zidek’s credible and
uncontradicted testimony, he was not a skilled machinist ca-
pable of operating a variety of machines. His experience with
the Respondent involved work mainly as an operator of a
basic milling machine. While he had some experience with
the Respondent’s computer operated machines, he testifed
that they were outdated and that when he inquired about
CNC machine operator jobs he saw advertised in the news-
paper, he found he knew nothing about running them and
that, he ‘‘wouldn’t even know how to start the machine.’’ I
find that the evidence fails to establish that Zidek had a spe-
cialized skill in machining that would have generally quali-
fied him for anything above a entry level position in that in-
dustry. However, it does establish that throughout the period
between his discharge and his employment in the plumbing
apprenticeship, Zidek made a continuing and concerted effort
to find work in a variety of areas, including, delivery truck
driving, something he had previous experience doing. It is
true that it had been some years since he had regularly driv-
en a delivery truck, but given the nature of the job, there is
no reason to believe he was less skilled or qualified as a de-
livery truck driver than as a machine operator. I find that
Zidek’s efforts to obtain employment during that period meet
the reasonable standard of diligence required by the Board.
The Respondent introduced copies of several Milwaukee
area newspaper classified advertisements, covering the period
from July 1989, through February 1990, which it contends
show there were machinist or machine operator jobs avail-
able for which Zidek was qualified. This is not sufficient to
meet the Respondent’s burden of proof that there were jobs
available or that Zidek would have been successful in obtain-
ing one. Arthur Young & Co., 304 NLRB 178, 179 (1991).
It also does not establish that Zidek failed to make a reason-
able search for employment. He testified that he regularly
read the newspaper ads, that his inquiries indicated that he
was not qualified for some of the machinist work advertised
and that much of he was qualified for was entrance level, at
a wage rate well below what he was earning when termi-
nated. He also credibly testified that many of the advertise-
ments he was questioned about involved temporary agencies.
There is nothing in the record to support the Respondent’s
claim that while these jobs may have been temporary they
could have led to permanent employment.
The Respondent also contends that Zidek was disqualified
from receiving any backpay after the date he entered the
plumbing apprenticeship program and made no further search
for a job outside of that program since this amounted to vol-
untarily absenting himself from the comparable labor market.
I do not agree. The record is clear that Zidek made a reason-
able search for work which was largely unsuccessful until he
found a job with the Census Bureau, a job he testified he
took because he could work the second shift and keep his
days free to seek permanent employment. It must be noted
that the principle underlying the requirement that a backpay
claimant make a reasonable effort to find work and mitigate
backpay liability is ‘‘not so much the minimization of dam-
ages as the healthy policy of promoting production and em-
ployment.’’ Phelps Dodge Corp. v. NLRB, supra at 200.
Here, after an extended period in which, despite his reason-
able efforts he was unable to find comparable work, Zidek
sought a new career which promised to eventually provide
him with earnings well above what he would have received
had he remained employed by the Respondent. There is no
evidence that this career change prolonged his unemployment
or increased the Respondent’s backpay liability. This is not
1059E & L PLASTICS CORP.
2 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.
3 Interest shall accrue until the date of payment and shall be com-
puted in the manner set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987).
a situation similar to that involved in Big Three Industrial
Gas, supra, cited by the Respondent, where a claimant was
denied backpay for periods in which he was found to have
willfully chosen to pursue a lower paying job as an equip-
ment handler with a traveling rock band and in which he vol-
untarily moved to an admittedly inferior labor market thereby
forgoing substantially greater earnings available in his former
area of employment. In the present case, from all that ap-
pears Zidek’s decision to enter the plumbing apprenticeship
was not a matter of indulging his personal enjoyment, to the
Respondent’s detriment, but was a reasonable attempt to in-
crease his employability and productivity. Under the cir-
cumstances, he should be entitled to backpay for the entire
period.
C. The Overtime Issue
The backpay specification calculated the backpay due
Laut, Zidek, and LaJoice using a workweek of 40 hours, plus
5 hours of overtime. This was based on the fact, as stipulated
by the Respondent at the hearing, that each claimant was
working 45 hours a week prior to his discharge. The Re-
spondent disputes that the claimants would have continued to
work 45 hours per week had they remained in its employ.
It presented the testimony of its president and part owner
Frank Esser that during the backpay period all three of the
claimants would have operated a milling machine. Laut and
LaJoice did so prior to their discharges. Zidek had been an
inspector prior to his discharge but that position was elimi-
nated and he would have gone back to operating a milling
machine. According to Esser, although the milling machine
operators worked 45 hours a week prior to their discharges,
thereafter, business declined and mill operators did not work
that many hours. The hours worked by employee Ron
Swosinski, who worked as a mill operator throughout the
backpay period, were representative of the hours the claim-
ants would have worked. The Respondent contends that
backpay should be limited to the actual hours the claimants
would have worked as indicated in the summary of
Swosinski’s actual hours attached as ‘‘Appendix A’’ to its
answer to the backpay specification.
Analysis and Conclusions
I find that the Respondent has not carried the burden of
establishing that the backpay specification is incorrect with
respect to the overtime the claimants would have worked had
they continued to by employed by it. I find Esser’s self-serv-
ing testimony is insufficient to prove that they would have
worked the same hours as Swosinski. There is nothing to es-
tablish that in the instances Swosinski worked less than 45
hours a week it was because the was no work available.
There is no way of knowing from the Respondent’s summary
of his hours when Swosinski was off due to illness, vacation,
or other reasons unrelated to workload. Beyond this, Esser
testified that there were at least six milling machines oper-
ated by various employees at various times during the back-
pay period and that those employees worked overtime al-
though he did not know when or how much. He said he
would have to look at the payroll records in order to deter-
mine this and he had not done so. I find the Respondent’s
failure to produce the records concerning its volume of busi-
ness and the overtime worked by the milling machine opera-
tors creates the inference, which I draw, that they do not sup-
port its contention that the claimants would not have worked
45 hours per week throughout the backpay period.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, E & L Plastics Corp., its officers, agents,
successors, and assigns, shall pay the following sums to the
claimants listed herein, plus interest,3 as follows:
Steven D. Zidek $44,129
John Laut 28,592
Peter LaJoice 8,453