Flite Chief, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1124 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flite Chief, Inc.; Richard Miller and Karen Miller;
M & M Truckadero Coffee Shop, Inc.; James
Miller and Paul A. Minder and Culinary Work-
ers, Bartenders & Hotel Employees, Local 535.
Cases 31-CA-5709 and 31-CA-5805
September 30, 1981
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On August 4, 1981, Administrative Law Judge
David P. McDonald issued the attached Decision
in this proceeding.' Thereafter, the Respondents
filed exceptions 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, 2 and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.3
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 the Respondents, Flite Chief,
Inc.; Richard Miller and Karen Miller; M & M
Truckadero Coffee Shop, Inc.; James Miller and
Paul A. Minder, Fontana, California, their officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
' The Board's original Decision in this proceeding appears at 229
NLRB 968 (1977).
2 The Respondents have excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Prod-
ucts. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
:' In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980)., Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
DECISION
DAVID P. MCDONALD, Administrative Law Judge: On
May 24, 1977, the National Labor Relations Board issued
a Decision and Order' in which it found that the Re-
spondents, Flite Chief, Inc.; Richard Miller and Karen
Miller; M & M Truckadero Coffee Shop, Inc.; James
'229 NLRB 968 (1977).
Miller and Paul A. Minder, violated Section 8(a)(l) and
(3) of the National Labor Relations Act, as amended, by
telling an employee not to associate with a union adher-
ent, threatening to discharge employees who associate
with a union adherent, and discharging Hilda Bitonti,
Diane Petrus, and Violet Strain. The Board's Decision
and Order was enforced on January 19, 1979, by the
United States Court of Appeals for the Ninth Circuit in
an unpublished memorandum
The Board's Order directs Respondents to offer Bi-
tonti, Petrus, and Strain immediate and full reinstatement
to their former jobs and to make them whole for any pay
losses which they may have suffered by reason of the
discrimination practiced against them, with interest.
Since a controversy arose between the parties over the
correct amount of backpay due under the Board's Order
to discriminatees Bitonti, Petrus, and Strain, the Regional
Director for Region 31 issued a backpay specification on
August 8, 1979, and subsequently amended the specifica-
tion on April 2, 1980. The backpay specification was fur-
ther amended at the hearing, which had the effect of re-
ducing the amounts claimed as net backpay for Strain
and Petrus.
Respondents filed an application on September 27,
1979, to take the depositions of the discriminatees and of
various custodians of records where the discriminatees
may have been employed. On October 5, 1979, the Re-
gional Director for Region 31 entered an Order denying
the request to take depositions. Subsequently, Respond-
ents renewed their motion, which was denied prior to
the hearing by Administrative Law Judge Clifford H.
Anderson on January 4, 1980. On or about August 28,
1980, counsel for the General Counsel filed a Motion for
Partial Summary Judgment and to strike portions of Re-
spondents' answer to the amended backpay specification.
I denied this motion on Tuesday, October 7, 1980.
On October 7 and 8, 1980, I conducted a hearing in
this proceeding in San Bernardino, California, pursuant
to the notice contained in the original backpay specifica-
tion and notice of hearing. All parties appeared through
counsel and were given full opportunity to introduce evi-
dence, to examine witnesses, and to submit post-trial
briefs. Timely briefs were filed with me by counsel for
the General Counsel and counsel for Respondents.
I. THE ISSUES
The basic questions to be resolved relate to the overall
issues of whether the individual discriminatees satisfied
their duty to make adequate efforts to obtain interim em-
ployment; the determination of the correct amount of
backpay, if any; and whether Respondents made valid
offers of reinstatement to the discriminatees. In addition,
Respondents raise the question whether the Board's
denial of their request to take depositions violated their
constitutional rights.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the post-trial briefs, I make the following:
N L.R.B. B v litc C('h,. Inc. e al., No. 77-2842.
258 NLRB No. 148
1124
FLITE CHIEF, INC.
II. FINDINGS AND CONCLUSIONS
A. Pretrial Discovery
Prior to the hearing, Respondents moved that the
hearing be postponed in order to give them the opportu-
nity to pursue discovery, such as the taking of deposi-
tions of the discriminatees and their interim employers.
In general, it is Respondents' position that depositions
were necessary in order to assist them to adequately ap-
praise the issues and thus enable them to prepare the re-
quired defense. Depositions would allow them to verify
interim earnings, availability of work in the marketplace,
the efforts or lack of efforts of the discriminatees in seek-
ing other employment, and the names of possible wit-
nesses who may be called by the discriminatees to testify
regarding the proposition that they were offered rein-
statement to their jobs by Respondents. The General
Counsel, in his memorandum in opposition to Respond-
ents' motion to take depositions, stated:
It also should be noted that on November 2. 1979,
the Compliance Officer for Region 31 provided Re-
spondents counsel with copies of all compliance
forms filled out by the discriminatees and all other
related correspondence from interim employers to
the Compliance Officer. The Compliance forms and
correspondence so provided are regularly submitted
statements by discriminatees concerning their
whereabouts, interim employment, unavailability for
work, and searches for interim employment.
Both the Board's Regional Director and Administrative
Law Judge Clifford H. Anderson denied Respondents'
motion. Respondents did not renew their motion at the
hearing. However, in their brief, they argued that the
Board erred in refusing to allow them to take deposi-
tions. 3
I also reject Respondents' contentions that they were
denied due process or have been prejudiced by the appli-
cation of the Board's rule concerning the taking of depo-
sitions. The backpay specification and notice of hearing
issued on August 8, 1979, and the subsequent amended
backpay specifications disclosed the amounts of the dis-
criminatees' interim earnings, the period when they were
employed, and the names of the interim employers. In
addition, Respondents did not deny that the Region's
Compliance Officer had provided them with copies of all
3 At the outset of the hearing Respondents informed me that they may
request a continuance at the conclusion of the testimony in order to
obtain the testimony of a missing witness. Ike Schoenthal After all the
testimony was completed. Respondents renewed their request for a con-
tinuance since they had been unsuccessful in locating Schoenthal, who
was somewhere in the Midwest. Schoenthal had been subpenaed for the
hearing, which was previously set for June 10, 1980. At the request of
the General Counsel the case was reset for October 7. 1980 Apparently.
Schoenthal assured Respondents he would be aailable for the October
hearing Respondents did not attempt to serve him until the latter part of
July or first part of August Although unsuccessful in their attempt to
serve Schoenthal Respondents did not request a continuance until a e'A
days before the date of the hearing and t least 8 ceeks after the5 were
unable to serst him. I denied Respondents' request o contillu the case
for the purpose of taking Schoenthal's deposition or securing his presence
for a future hearing date
compliance forms filled out by the discriminatees and all
other related correspondence from interim employers.
Respondents correctly assert that the Board's rules
permit the Regional Director to allow the taking of de-
positions where there is a showing of "good cause." The
purpose of the rule is not to provide discovery, but to
permit parties to obtain and preserve testimony from wit-
nesses who will be unavailable to testify at the hearing.'
A review of Respondents' stated justifications for the ne-
cessity to take depositions clearly indicates a desire to
pursue traditional discovery and not to preserve the testi-
mony of a witness who would be unavailable for the
hearing. Therefore, their request to take depositions was
insufficient on its face and properly denied.
Based upon the foregoing, I find that Respondents
have failed to establish that they have been denied due
process or have been prejudiced by the application of the
Board's rules in this proceeding.
B. Offers of Reinstatement
The General Counsel takes the position that Respond-
ents have never tolled their backpay obligation toward
the discriminatees: Strain, Petrus, and Bitonti. Although
the following reinstatement letters were tendered to each
discriminatee, the question is whether in practice Re-
spondent did provide valid reinstatement offers in com-
pliance with the Board's Order:;
September 29, 1977
Dear
Our office represents M & M Truckadero Coffee
Shop.
You are hereby offered full and immediate rein-
statement to your former position with M & M
Truckadero Coffee Shop ithout prejudice to your
seniority or other rights and privileges. Please re-
apply directly to the office of our client at 10238
Cherry Avenue, Fontana, California, telephone
number 714/823-0311, in writing or in person be-
tween the hours of noon and 4:00 p.m. by contact-
ing Joanne or James Miller.
In the event you do not re-apply within five (5)
working days from the date of your actual receipt
of this letter, M & M Truckadero Coffee Shop will
presume that you do not desire reinstatement [to]
your former position.
Very truly yours.
REDWINE and SHERRILL
Ronald J. Kohut
'See .. B. . l allh Mold (Cornpun. Itc., 530 F 2d 6h9, t094. -65
(5th Cr. 1976h): ith (Gvuararte Co. . \ L.R.B. 534 F 2d 484, 47 (2d
Cir 1976).
: See ohte (ih: I. et a. 22 N RB 968 a; 978, Xshere tie Board
ordered Respondenl to o]ffer Ililda itonl)l. iaie I'lru,,l and Violet
Strain ilmediale ind full reinstatemenlt i their fornlcr jobs .r. if such
positions no longe r cxist. to silhs, lailial l equi alcl posi tio s stlioul
prejuidice to their seniorits or other rightl l md pi ', ileges
1125
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD)
Upon receipt of these letters each discriminatee promptly
contacted the Respondents in an effort to regain their
former positions.
The question of whether the reinstatement offers were
valid hinges to a great degree on the credibility of the
various witnesses, and in particular Joanne Miller. With
regard to the disputed events and facts concerning the
offer of reinstatement, I do not credit the recollection or
version provided by Joanne Miller where her testimony
is in direct conflict with Strain, Bitonti, Diane Petrus,
and Pam Petrus. The latter group of witnesses testified in
a clear, concise, and convincing manner. Even Strain's
occasional poor memory is understandable considering
the passage of time between the discharge, the alleged
offer of reinstatement, and the hearing. 6 In contrast,
Joanne Miller's testimony was not as convincing and ap-
peared to be molded in a self-serving manner. In reach-
ing these conclusions, I have considered the demeanor of
all the witnesses, reviewed their testimony, weighed the
established facts, and considered the reasonable infer-
ences drawn from the record. Consequently, I do not
credit Joanne Miller's testimony.
An initial reading of Kohut's letter would seem to sub-
stantiate Respondents' argument that they made a valid
offer of reinstatement to each of the discriminatees as
orderd by the Board. Indeed, if they had complied with
their attorney's letter, the offers of reinstatement would
be valid. However, in practice, the actual offers were a
sham, a mere subterfuge. None of the discriminatees
were offered their former work schedule. In each case
their new work scheduled provided shorter hours and/or
graveyard shifts in lieu of day shifts. The offers were ob-
viously a concerted effort on behalf of management to
provide a work schedule which was so unacceptable that
the discriminatees would be forced to refuse them. If
such a plan succeeded, Respondents would not only toll
their liability but would also avoid rehiring the very indi-
viduals they unlawfully discharged on November 2,
1975.
Violet Strain
When Strain was discharged in 1975, she was working
5 days per week, Monday through Friday, from 6 a.m.
to 2 p.m. Upon receipt of Kohut's letter, she immediately
contacted Joanne Miller, Respondents' day manager, and
explained that she wanted to return to her former job.
Joanne informed Strain that James (Jimmy) Miller would
contact her. Joanne and James Miller are brother and
sister. At that time Strain asked Joanne to sign the
above-mentioned letter. Joanne complied by writing,
"Joanne Miller, 10/5/ 1977, at 2:35 p.m." Approximately
a week later Jimmy called and told Strain she would re-
ceive a telegram outlining her work schedule. The tele-
gram was dated October 14, 1977, and read, "This is to
confirm you start work Monday, the 17th, at 4:00 p.m. to
10 p.m., M & M Truckadero." When she reported for
work, Joanne instructed her to read the posted company
rules, which included a requirement for the night dish-
washing shift to clean the "hot grease filter." Strain testi-
fied that, after she arrived at work on October 17, she
-See NIeely'v Car Clinic, 255 NLRB 1420 (1981).
read the posted work schedule. which provided her with
a 24-hour workweek. On 2 days she began at 4 p.m. and
stopped at 10 p m. On the other 2 days she commenced
work at 10 p.m. and stopped at 4 a.m. (the graveyard
shift). Strain was very confused in her testimony as to
how long she worked for Respondents during the last
quarter of 1977. She thought she had worked several
graveyard shifts when in reality she worked only I day,
November 17, 1977. At the conclusion of that workday,
Strain demanded that she be given the work schedule
she had when she was discharged in 1975. Joanne re-
sponded. "You can't until we get an opening for you."
Strain did not return to work. Instead, she sent a regis-
tered letter to Respondents which was returned un-
claimed. Thereafter, she hand-delivered a similar letter to
Joanne. The letter simply stated her desire to return to
the same job and hours she had at the time of her dis-
charge.
Respondents offered into evidence a handwritten work
schedule for the week of October 16, 1977. Joanne
Miller verified its accuracy. The document indicated that
Strain was scheduled to work on Mondays from 4-10
p.m. and on Thursdays, Fridays, Saturdays, and Sundays
from 10 p.m. to 6 a.m. for a total of 38 hours per week.
The entries for Thursday and Friday were partially
erased. The fact that Strain had previously worked as a
dishwasher on the day shift Monday through Friday is
not in dispute. There is a disagreement as to whether she
was offered a 24- or 38-hour workweek. Even assuming
Strain is mistaken and Respondents actually offered her a
38-hour workweek, I find, in light of all the evidence,
that the reinstatement offer was invalid and not in com-
pliance with the Board's Order. Strain was entitled to
return to her 40-hour, Monday through Friday, day shift
as a dishwasher instead of being relegated to the "grave-
yard" shift.' It should also be noted that the record is
void of any evidence to prove that those employees who
were working Strain's former hours had greater seniority
than she.
Accordingly, I find that Respondents' offer of rein-
statement to Strain was neither valid nor did it toll their
liability.
Dianne Petrus
At the time of her unlawful discharge, November 2,
1975, Petrus was working a full 40 hours per week as a
waitress for Respondents. On October 3, 1977, after she
had received the reinstatement letter, she, along with her
daughter Pam, went to Respondents' restaurant where
they spoke briefly with Joanne Miller. After assuring
Joanne that she wished to return to her former job,
Joanne left the room and her brother James appeared
with a work schedule. Petrus was scheduled to work on
Friday, Saturday, and Sunday, 9 a.m. to I p.m. Petrus
exclaimed that this was only 12 hours and she could not
afford to work part time, she needed more hours. James
responded, "Well, then, you're turning down the job."
Sce George Whebel dh/a Webl 'led Mill & Pik' Irani Company,.
236 NlRRB 1192 (197)
1126
FI.ITE CHIEF. INC.
Pam Petrus' testimony substantiated her mother's recol-
lection of these events.
James Miller did not recall the meeting with Petrus.
However, Joanne's recollection of this meeting was in
marked contrast with the Petrus testimony. Joanne testi-
fied that Petrus appeared to be very happy and had
simply visited them, to inform Respondents she no
longer wanted her former job, since she had moved to
Norco, California, and had obtained full-time employ-
ment. As previously stated I do not credit Joanne's testi-
mony. Her recitation of the meeting with Petrus lacks
plausibility. If Petrus did not want her former job why
did she bother to visit the employer who had unlawfully
fired her. In addition, there was credible evidence to
prove that it is highly unlikely that Petrus would appear
extremely happy at this point in her life. She was in the
midst of an unwanted traumatic separation and divorce.
Finally, her daughter, Pam. testified in a credible manner
that her mother went to Respondents' restaurant for the
sole purpose of returning to her former employment, but
was only offered 12 hours per week.
Clearly, by offering Petrus a 12-hour workweek in lieu
of her former 40-hour workweek, Respondents failed to
comply with the Board's Order, see Flite Chief; Inc., el.
al., supra. The offer was invalid and did not toll their lia-
bility.
Hilda Bitonti
In June or July 1974, prior to her first unlawful dis-
charge, Hilda Bitonti worked 40 hours per week. When
she returned to work, near the first of October 1974,
James Miller offered her the former 40-hour-per-week
day shift, which she accepted. She also agreed, as a
favor, to work the following Sunday swing shift. On
Monday the new schedule was posted and her hours
were reduced to 24 hours. Eventually her hours were in-
creased to 32 hours.
Immediately prior to her dismissal on November 2,
1975. Bitonti worked Friday, Saturday, and Sunday from
6 a.m. to 2 p.m. All agreed she was entitled to a fourth
8-hour day which she had temporarily allowed Judy
Gonzalez to work, due to discomfort she was experienc-
ing with her legs.
After she received the September 30, 1977, reinstate-
ment letter, Bitonti, along with Petrus, went to Respond-
ents' premises on October 4. Petrus had already told Bi-
tonti of her experience with Joanne on the previous day.
When they arrived, James Miller explained that his sister
was in charge of hiring and she would contact Hilda in
the near future. Both Petrus and Bitonti recalled that the
former said to James Miller, "Jimmy, I don't think you
really want us back." He replied, "You already turned it
down." Petrus responded, "I turned down a part-time
job for a full-time job. I can't work part-time." In his tes-
timony James Miller denies that he saw Petrus with Bi-
tonti. On October 14 Hilda received a telegram from Re-
spondents directing her to report to work on October 17
from 12:30 to 4:30 p.m. When she appeared on October
17 she discovered that she was scheduled to work only
two 4-hour shifts. At that time she informed Joanne she
was entitled to, and wanted, her former work schedule.
Joanne left the room and upon her return announced
that she had conferred with her attorney, who advised
her she could give Hilda any hours she chose. Hilda
completed the 4-hour shift and did not return. Although
she did leave a message that she would return to work
when Respondents were willing to follow the Board's
Order and restore her to her original schedule. On Octo-
ber 23, 1977, she received a second telegram stating,
"You are scheduled to work Tuesday, October 25;
Wednesday 26, 1 PM to 5 PM. M & M Truckadero."
Joanne disagreed with Hilda's recollection of events.
She recalled that Hilda had explained that she was work-
ing part time for Coffee Dan and was only seeking part-
time work from Respondents. Based on Hilda's request
her schedule was set for 4 hours on Monday and 8 hours
on Tuesday, which were her days off. This is in direct
conflict with Respondents' work schedule; Monday
12:30-4:30; Tuesday 9-5; Wednesday 9-5; Thursday
12:30-4:30; and Friday 12:30-4:30. It should be noted
that the schedule has several erasures and changes next
to Hilda's name. Tuesday, Thursday, and Friday were
crossed out. In her testimony Joanne said she crossed out
Tuesday because Hilda did not show. Clearly Joanne's
statement that she gave Hilda Monday and Tuesday in
order to allow Hilda to continue her part-time work
with Coffee Dan is in conflict with the written schedule.
She crossed out Tuesday, Thursday, and Friday because
Hilda did not come to work. If in fact the written sched-
ule is accurate then Hilda was offered a total of 28
hours, which she denies. For reasons previously outlined
I do not credit Joanne's testimony where it is in direct
conflict with that of Hilda Bitonti. Accordingly, I find
that Respondents' offer of reinstatement was limited to 8
hours per week and did not comply with the Board's
Order to: "Offer Hilda Bitonti . . . immediate and full
reinstatement to their former jobs, or if such positions no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights and privi-
leges." Since the offer of reinstatement was invalid Re-
spondents liability to Bitonti has not tolled.
The record is silent as to any possible reason to justify
Respondents' failure to restore the discriminatees to their
former jobs and work schedules. The positions still exist
and there was no credible evidence introduced to show
the positions are held by employees with greater senior-
ity than the discriminatees.
C. Willful Loss of Earnings
The General Counsel, in the amended backpay specifi-
cations, provided Respondents with the information con-
cerning the amount of interim earnings and the name of
the interim employer for each discriminatee. Although it
is customary, the General Counsel is not required to pro-
vide this information, since the burden is on Respondents
to prove that the appropriate net backpay is less than the
alleged gross backpay amounts, as set forth in the specifi-
cations.'
' .I.R RB . Brown & R ,o Inc. rtc.. 311 F 2d 447. 454 (81h Cir.
I963): futiro Platcs Corp. and rench -- Imerica Rds AianuJicturslng
Co. In . 136 NI R 1342, 1346h I19h2).. Sdiu)th r Iblo hol d Products
('ormpan. I,, . 203 Nl.RB 881 (1 973): bihrehoard Paper Produtars (orporra-
tion. Il NLRIt 142. 147 148 (1961), ellfd 431, F 2d 91)8 D)C Cir 197)1)
1127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The applicable legal principles, as cited in Highview,
Incorporated, 250 NLRB 549 (1980), and stated by Ad-
ministrative Law Judge Shapiro in Aircraft and Helicopter
Leasing and Sales. Inc., 227 NLRB 644, 646 (1976), are as
follows:
An employer may mitigate his backpay liability
by showing that a discriminatee "willfully incurred"
loss by a "clearly unjustifiable refusal to take desir-
able new employment" (Phelps Dodge Corporation v.
N.L.R.B., 313 U.S. 177, 199-200 (1941)), but this is
an affirmative defense and the burden is upon the
employer to prove the necessary facts. N.L.R.B. v.
Mooney Aircraft, Inc., 366 F.2d 809, 813 (5th Cir.
1966). The employer does not meet that burden by
presenting evidence of lack of employee success in
obtaining interim employment or of low interim
earnings; rather the employer must affirmatively
demonstrate that the employee "neglected to make
reasonable efforts to find interim work." NV.L.R.B.
v. Miami Coca-Cola Bottling Company, 360 F.2d
569, 575-576 (5th Cir. 1966). Moreover, although a
discriminatee must make "reasonable efforts to miti-
gate [his] loss of income . . . [he] is held . . . only
to reasonable exertions in this regard, not the high-
est standard of diligence." NL.R.B. v. Arduini
Manufacturing Co., 394 F.2d 420, 422-423 (Ist Cir.
1968). Success is not the measure of the sufficiency
of the discriminatee's search for interim employ-
ment; the law "only requires an honest good faith
effort" .L.R.B. v. Cashman Auto Company and
Red Cab Company, 223 F.2d 832, 836 (Ist Cir.).
And in determining the reasonableness of this effort,
the employee's skill and qualifications, his age, and
the labor conditions in the area are factors to be
considered. Mastro Plastics Corp., 136 NLRB 1342,
1359.
In determining whether an individual claimant has made
a reasonable search for employment, the test is whether
the record as a whole establishes that the employee had
diligently sought other employment during the entire
backpay period. Saginaw Aggregates, Inc., 198 NLRB 598
(1972); Nickey Chevrolet Sales, Inc., 195 NLRB 395, 398
(1972). Any uncertainty in the evidence is resolved
against Respondents as the wrongdoer. N.L.R.B. v.
Miami Coca-Cola Bottling Company, supra, Southern
Household Products Company, Inc., 203 NLRB 881
(1973).
Violet Strain
The General Counsel claims the correct net backpay
for Violet Strain, for the period from November 2, 1975,
to December 31, 1979, after deducting interim earnings
and adding moving expenses, is $12,966.
Respondents argue that Strain willfully failed to seek
suitable substitute employment following her discharge
and therefore is not entitled to receive backpay, to the
extent of that willful failure. Respondents' assertions that
she had only 15 documented employment contacts in a
3-year period is apparently based on the information pro-
vided in her compliance form and ignores her entire tes-
timony.9 Admittedly, she had lost her records and her
memory was poor. However, I find her testimony to be
credible. It is difficult to determine from the record the
exact number of attempts she made to obtain appropriate
employment. In some instances she returned to the same
employer several times. Since she was not always able to
recall the exact date, it is difficult to determine when, if
ever, she may have referred on direct and cross-examina-
tion to the same potential job. However, after consider-
ing the compliance forms and carefully analyzing her
entire testimony, I have concluded that she sought ap-
propriate employment on at least 45 occasions. In addi-
tion, she perused the job openings in the local newspa-
per, registered with the Culinary Workers, Bartenders &
Hotel Employees, Local 535, and the San Bernardino
State Unemployment Office in an effort to obtain work.
She occasionally checked back with Local 535 and vis-
ited the unemployment office every other week.
Respondents correctly note that the basis for Strain's
backpay recovery and the expense incurred in moving to
Nevada are based solely on her oral testimony and not
substantiated by any documents. Although her memory
may have appeared vague and limited, it was convincing.
I felt her efforts to recall this 3-year period were very
sincere and accurate, and any vagueness should be attrib-
uted to the passage of time. ' Respondents presented no
probative evidence which disproved Strain's testimony,
nor did they show that there were jobs available in the
area for a dishwasher or waitress, nor that she rejected
suitable employment. At most, Respondents' statistical
analysis may create an element of doubt. Any doubts
must be resolved in favor of the backpay claimant rather
than Respondents."
' After asserting that Strain had limited her search for employment to
"only 15 documented employment contacts with only nine prospective
employers." Respondents argued that "[c]ourts have held that more con-
tacts than this over shorter periods of time have still been insufficient to
constitute justification of an award of backpay," citing N.L.R.B, v. Madi-
son Courier, Inc., 505 F.2d 391 (D.C. Cir. 1974): N.L.R.B. v. Southern
Silk Mill/, 242 F.2d 697 (6th Cir. 1957). Respondents' reliance on these
two cases is misplaced. Neither of these cases dealt with the question of
how often the employees must seek interim employment to meet their
duty to mitigate losses. In Southern Silk Milttk, supra, the court found that
the employees had met their burden to make "reasonable efforts to secure
substantially equivalent positions." However, the court then found that
the employee's failure to take other suitable. available employment.
though at a lower rate of pay, over a period of 3 years. constituted to
some extent at least loss of earnings "willfully incurred." In Madison
Courier, upra, the court held that, for a reasonable period, the employees
were entitled to confine their search to the printing industry in which
they were primarily skilled and would have preferred to work, but when
it became apparent that printing jobs were not available in the area, they
should have broadened their search and sought suitable nonprinting em-
ployment.
"' In a recent case, ¥el'v% Car Clinic. upra. the Board held: "The
hearing in this case was convened over 2 years after Jones' discharge.
and Jones apparently kept no detailed notes of his job search Thus. his
inability to recollect the specifics of each and every job contact is under-
standable. Moreover, a close reading of his testimony shows it to he clear
and without internal contradiction."
" See United Aircraft Corporation (Prua & Whitney .ircraji and Ilatnil-
ton Standard Divisions). 204 NLRB 1068 (1973); Southern IHoushold Prod-
ucts Conpanyi. Inc.. upra.' .V.LR.RB v. Miaml Coca-Cola Bottling Comnpa-
ny, supra.
1128
FLITE CHIEF, INC.
Strain's testimony that she finally obtained employ-
ment by moving to Henderson, Nevada, and in the proc-
ess incurred $200 in moving expense was not disputed.
I conclude that Respondents have failed to sustain
their burden of proving that Strain willfully failed to
seek suitable interim employment or that the alleged
backpay as set out in the backpay specification, as
amended, is less than alleged. 12 Accordingly, exclusive of
interest, I find Respondents' net backpay liability in
Strain's case totals $12,966, which includes $200 moving
expense, as computed in the amended backpay specifica-
tions.
Hilda Bitonti
The General Counsel claims the correct net backpay
for Hilda Bitonti, for the period from November 2, 1975,
to December 31, 1979, is $9,348.22, after deductions for
interim earnings and adding estimated tips and expenses.
Hilda Bitonti not only obtained employment during a
substantial portion of the time in question, but she was
also very candid and forthright in admitting there were
periods when she did not seek employment, due to per-
sonal problems. She is not seeking backpay for those pe-
riods (approximately 4 quarters). During the approximate
16 quarters for which she is claiming backpay, she main-
tained interim employment during 8 of those quarters. In
addition she registered with the Culinary Union, and
sought work through the State Unemployment Depart-
ment, approximately every other week. She provided a
lengthy list of potential employers where she sought em-
ployment. In many cases she would return to a restau-
rant on a weekly basis in a sincere effort to obtain ac-
ceptable interim employment.
After reviewing Bitonti's compliance forms and con-
sidering the entire record, I must conclude that Respond-
ents have failed to sustain their burden of proving that
Bitonti willfully failed to seek suitable interim employ-
ment or that the alleged backpay, as set out in the back-
pay specification as amended, is less than alleged. Ac-
cordingly, exclusive of interest, I find Respondents' net
backpay liability in Bitonti's case totals $9,348.22, as
computed in the amended backpay specifications.
Diane Petrus
The General Counsel claims the correct net backpay
for Diane Petrus, for the period from November 2, 1975,
to December 31, 1979, is $15,758.19, after deduction for
interim earnings and adding estimated tips and expenses.
Diane Petrus maintained some degree of interim employ-
ment during 12 of the 16 quarters in question. She also
sought employment through her union, and the State Un-
employment Office, and maintained a systematic weekly
search of numerous restaurants, such as Ace, Thrifty,
Tiffany, Mr. Bakers, and Sambos. She was successful in
obtaining work at Road Runner Cafe, Curly Jones, On-
tario Auto Plaza, and Denny's.
12 In ee/y' Car Clinic supra. the Board stated: '"The General Counsel
must show only the gross amount of hackpa due and os)ing ti the dls-
criminatee. Thereafter it fills to Respondent to sho that gross, hackpay
has been diminished by a illful loss( oi earnings.'
Respondents not only argue that Petrus willfully failed
to seek suitable substitute employment, but also that after
she secured such employment, she voluntarily chose not
to work a full 40-hour week. Approximately 6 months
after she commenced working for Curly Jones Restau-
rant, she increased her hours to a full 40-hour week, in-
cluding Saturday and Sunday. Since she was a single
parent, with young daughters, she felt it was imperative
that she was off either Saturday or Sunday, to be with
her family. She requested to keep a 40-hour workweek,
but substitute one weekend day for a weekday. Ike
Schoenfeld, her supervisor, granted her request to be off
on Sunday, but refused to substitute a weekday. As a
result her hours were reduced to 32-hours per week,
around January 1978. At the time of her unlawful dis-
charge, Petrus was working 40 hours for Respondents.
including Saturday and Sunday. Although her desire to
be with her family on the weekend is understandable and
commendable, it does represent a voluntary reduction in
interim employment, for which she should not be reim-
bursed. However, after examining Curly Jones Coffee
Shop payroll records and considering Petrus' testimony
it becomes apparent that her workweek fluctuated from
a low of 43 hours to a high of 80 hours over a 2-week
period. Petrus testified that, even after her week was re-
duced by 8 hours, there were occasions when she was
called upon to work more than 32 hours. After analyzing
Curly Jones' payroll records for the years 1978 and 1979,
I find that Petrus willfully reduced her interim earnings
by 289 hours in 1978 and by 140.50 hours in 1979. This
conclusion is based on the number of hours she lost by
not working Sunday, but offset by the number of hours
she occasionally worked over 32 hours per week. The
rate of pay in 1978 was $2.65 and therefore her willful
loss of backpay for 1978 is $765.85.
The rate of pay in 1979 was $2.90 per hour and there-
fore her willful loss of backpay for 1979 is $407.50. In
addition, I have credited Petrus' testimony that she re-
ceived an average of $15 in tips for each 8-hour shift.
Therefore, since she willfully reduced her interim work
by approximately 36 days in 1978 and 17.5 days in 1979
her backpay tips should be reduced for 1978 by $540 and
1979 by $262.50.
With the exception of the above-mentioned 8-hour
weekly voluntary reduction in interim employment, I
must conclude that Respondents have failed to sustain
their burden of proving that Petrus willfully failed to
seek suitable interim employment or that the alleged
backpay as set out in the backpay specification, as
amended, is less than alleged. I find the amount as shown
in the amended backpay specifications shall be reduced
by $1,975.85, to reflect Petrus' willful reduction in her
interim employment while working for Curly Jones Res-
taurant. Accordingly, exclusive of interest, I find Re-
spondents' net backpay liability in Petrus' case totals
$13,782.34, as computed in the amended backpay specifi-
cations, less $1.975.85.
D. Conclusions
Based on the foregoing and the whole record. I con-
elude that the total net backpay due the discriminatees
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the period of November 2, 1975, through December
3, 1979, is as follows:
Violet Strain
Hilda Bitonti
Diane Petrus
$12,966.00
9,348.22
13,782.34
As of the date of this hearing, Respondents had not
made a valid offer of reinstatement to these discrimina-
tees, thus Respondents' backpay liability subsequent to
December 31, 1979, may, if necessary, be the subject of
further proceedings.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 13
The Respondents, Flite Chief, Inc.; Richard Miller and
Karen Miller; M & M Truckadero Coffee Shop, Inc.:
James Miller and Paul A. Minder, Fontana, California,
their officers, agents, successors, and assigns, shall make
whole each of the employees named below in the net
backpay specification the amounts set forth opposite
their names, plus interest, computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).
Violet Strain $12,966.00
Hilda Bitonti 9,348.22
Diane Petrus 13,782.34
: In the eent noit exceptions are iled 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 Rule ad Regulations. be adopted by the Board and
become its findings, cnclusions. and Order. and all objectionls hereto
shall be deemed waised for all purposes
1130