Garrard Convalescent Home, Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1975

220 N.L.R.B. 450 (N.L.R.B. 1975)

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Garrard Convalescent Home , Incorporated and Na-
tional Union of Hospital and Nursing Home Em-
ployees , Local 1199H, Retail, Wholesale and De-
partment Store Union , AFL-CIO. Case
9-CA-6534
September 18, 1975
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On October 12, 1972, the National Labor Rela-
tions Board issued its Decision and Order directing
that Respondent make whole certain employees for
their losses resulting from Respondent's unfair labor
practices in discharging them in violation of Section
8(a)(3) and (1) of the National Labor Relations Act,
as amended.' On January 23, 1974, the United States
Court of Appeals for the Sixth Circuit issued its judg-
ment enforcing the Board's Order in full 2 On August
13, 1974, the Regional Director for Region 9 issued a
Backpay Specification and Notice of Hearing to
which Respondent filed an answer. On September
25, 1974, counsel for General Counsel moved for a
Summary Judgment which was denied by direction
of the Board on December 3, 1974. A hearing was
held before Administrative Law Judge Milton Janus
on April 17, 1975, at Cincinnati, Ohio, for the pur-
pose of determining the amount of backpay due the
discriminatees. On June 26, 1975, Administrative
Law Judge Milton Janus issued the attached Supple-
mental Decision in which he found that the discrimi-
natees were entitled to backpay as set forth opposite
their names in his recommended Order. Thereafter,
the Respondent 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 preceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and brief and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
' 199 NLRB 711 (1972)
'489 F 2d 736 (C.A. 6, 1974)
Order of the Administrative Law Judge and hereby
orders that the Respondent, Garrard Convalescent
Home, Incorporated, Covington, Kentucky, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge: On October
12, 1972, the Board issued its Decision and Order, 199
NLRB 711, directing Respondent, inter alia, to make whole
three employees for their losses resulting from
Respondent's unfair labor practices in violation of Section
8(a)(3) and (1) of the Act. On January 23, 1974, the United
States Court of Appeals for the Sixth Circuit issued its
Judgment enforcing the Board's Order in full, 489 F.2d
736.
A controversy having arisen over the amount of backpay
due two of the discriminatees, Lula Hurry and Ethel Smith,
the Regional Director for Region 9 issued a Backpay Spec-
ification and Notice of Hearing on August 13, 1974.' On
September 6, the Regional Director granted Respondent
an extension of time within which to file an answer to the
backpaj specification, and an answer was filed on Septem-
ber 20.
On September 25, 1974, counsel for the General Counsel
in Region 9 filed with the Board a Motion for Summary
Judgment with a supporting Memorandum, alleging that
Respondent's answer raised no litigable issues and request-
ing that its affirmative defenses be stricken because they
failed to comport with the requirements of specificity and
particularized pleadings, within the meaning of Section
102.54(b) and (c) of the Board's Rules and Regulations.
On December 3, 1974, the Associate Executive Secre-
tary, by direction of the Board, issued an Order which
reads, in pertinent part, as follows:
Upon due consideration, the Board is of the opinion
that the Answer, to the extent that it disputes generally
the accuracy of the backpay computations, a matter
within the Respondent's knowledge, fails to comport
with the requirements of specificity in Section 102.54
of the Board's Rules and Regulations and therefore is
stricken., However, to the extent that the Answer dis-
putes the amount of net interim earnings, it thereby
raises substantial and material questions of fact con-
cerning interim earnings which cannot be resolved
without a hearing.2 Accordingly,
' See Interstate Equipment Co., Inc, 186 NLRB 121.
2 Net interim earnings are generally not matters within the knowl-
edge of the Respondent, and a denial or dispute with respect thereto is
sufficient under Section 102.54 of the Board's Rules and Regulations
1 No claim was made as to the third discriminatee , Judy Guy, since the
Regional Director had determined that she had been unable to work during
the entire backpay period.
2 The answer asserted that the computations of backpay due to Hurry and
Smith were incorrectly computed, and that documentation concerning their
net interim earnings had not been provided the Respondent.
220 NLRB No. 77
GARRARD CONVALESCENT HOME, INC. 451
IT IS HEREBY ORDERED that the Counsel for the Gener-
al Counsel 's Motion for Summary Judgment be, and it
hereby is, denied.
A hearing was held before me on April 17, 1975, at Cin-
cinnati , Ohio . Upon the entire record in this proceeding,
including my observation of the witnesses , and after due
consideration of the General Counsel's oral argument and
the brief filed by the Respondent , I make the following
findings of fact and conclusions of law:
Preliminary Matters
At the opening of the hearing, the General Counsel
made a motion to limit Respondent in the presentation of
its case to evidence as to the claimants ' net interim earn-
ings only, on the ground that the Board 's Order of Decem-
ber 3, precluded examination of all other matters . Respon-
dent conceded , in effect , that under the Board Order it
could not litigate the measure of the claimants ' average
weekly earnings or the gross backpay each would have
earned during the four calendar quarters involved in the
backpay period.3 However, it claimed the right to litigate
the question whether the claimants had made a diligent
search for work to mitigate their loss of earnings during the
backpay period. Over the General Counsel's objections, I
permitted Respondent to examine the claimants as to their
efforts to find new employment, even though the Board's
Order mentioned only the amount of net interim earnings
as raising a question of fact to be resolved at a hearing. It
seemed to me from footnote 2 of the Order , quoted above,
that its intent was to allow Respondent to litigate those
matters which were not within its knowledge prior to the
hearing and which could be developed only through the
testimony of the claimants . As the claimants were present
at the hearing, under subpoena by the Respondent, I con-
sidered it unduly restrictive of Respondent's right to an
exact determination of what it owed, to limit its examina-
tion to the claimants' actual interim earnings, and to disre-
gard the loss of potential earnings caused by a lack of dili-
gence in seeking other employment .4
Finally , I ruled at the hearing that Respondent could not
introduce evidence as to its insolvency or inability to satis-
3 Both claimants were wrongfully discharged on August 16, 1971, and
were offered reinstatement on June 2, 1972.
4 In his closing argument , the General Counsel relied on two cases for the
proposition that a respondent whose answer to a backpay specification does
not specifically plead a claimant 's willful loss of earnings as a defense Is
precluded from litigating it at the hearing . In The Carter-Jones Lumber Com-
pany, 198 NLRB 1036 (1972), the Administrative Law Judge so held, but
also noted that in fact the respondent had been permitted to cross-examine
the backpay claimant regarding the matter , and had failed to prove that the
claimant had shown any lack of diligence in seeking other employment. In
Southland Manufacturing Corp., 193 NLRB 1036, fn. 3 (1971), the Board also
referred to respondent 's failure specifically to plead a willful loss of earnings
in its answer , but noted that such failure was particularly prejudicial since
the General Counsel and charging party were thereby denied advance no-
tice alerting them to have the backpay claimants available to testify on their
search for employment . Here , on the contrary , the backpay claimants were
available to testify at the hearing, and the General Counsel knew before the
hearing opened that Respondent intended to offer evidence in mitigation of
its liability.
fy any backpay claim. Obviously, the only purpose of a
backpay proceeding is to fix the amounts due those against
whom Respondent has discriminated. Thereafter, the rela-
tive priorities between backpay claimants and other cred-
itors can be determined in some forum with jurisdiction
over insolvency matters.
The Claimants' Search for Work
Hurry and Smith, the two backpay claimants, had been
employed as nurses aides at Respondent's nursing home in
Covington, Kentucky. At the time of her discharge, Hurry
lived in Covington and was able to walk to work. Smith
then lived in Alexandria, Kentucky, and her husband, who
also worked in Covington, was able to drive her to her job.
Covington is just across the Ohio River from Cincinnati,
and within its metropolitan area. Alexandria is a few miles
from Covington.
The backpay specification shows no net interim earnings
for Hurry for the last two quarters of 1971, while her earn-
ings for the first two quarters of 1972 are just slightly less
than what she would have earned from Respondent. Her
employment in 1972 was with the Baptist Convalescent
Center, Newport, Kentucky, and she got there by riding
with a friend. Hurry did not own a car in 1971 and 1972.
As for Smith, her only interim earnings during the four
quarters of her backpay period occurred in the last quarter
of 1971, when she earned $125 while working irregularly
for Heringer's Restaurant in Newport, Kentucky, doing
miscellaneous cleaning work. There is no evidence as to
how Smith got from her home in Alexandria to Newport
for the 14 days or so that she worked there. She testified
that she did not have a driver's license, so presumably she
used public transportation or relied on someone to drive
her.
Respondent argues generally that neither Hurry nor
Smith made. a reasonable effort to seek work during the
times each was totally unemployed. It points out that both
were experienced nurses aides, that there are a number of
nursing or convalescent homes and hospitals in the North-
ern Kentucky area where they lived, and an even larger
number of such establishments in Cincinnati. It argues that
the backpay claimants did not make a sufficient effort to
find work for which they were qualified, noting that neither
had ever phoned or personally visited such institutions in
Cincinnati to inquire about employment there.
The testimony shows that there is bus service between
Covington and Cincinnati, as well as bus service from the
downtown terminal to all parts of the city. Both claimants
admitted that they had not applied to nursing homes or
hospitals in Cincinnati, explaining it by the fact that they
were unfamiliar with the city, and that it was expensive to
use public transportation, since there are two fares each
way. Neither has been to Cincinnati more than a few times
in her life. Considering that they were middle aged women
who have lived most of their lives in small communities, I
can understand their reluctance about using public trans-
portation with its expense, the travel time involved, and the
possibility that they might have to work late shifts when
such service might be infrequent or unavailable. It is true
that daily commuting from the suburbs into a large city is
commonplace for millions of people, but for those who
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have worked in communities comparable in size to those
they live in, it can be excessively burdensome. I therefore
hold that Hurry and Smith were not obligated to try to
mitigate Respondent's backpay liability by looking for
work in nursing homes or hospitals in Cincinnati.
Furthermore, the testimony of the administrator of the
Garrard Home that he was familiar with the labor market
in the area's nursing homes, and that they had a high turn-
over rate in 1971 and 1972, does not prove that the claim-
ants would have found jobs if they had applied, or that the
terms, conditions, or location of available employment
were such that they would have failed in their duty to miti-
gate their losses had they refused such jobs .5
Respondent also asserts that Hurry failed to look for
work for some time in 1971 because she had no one to take
care of her preschool age child. Hurry testified that she had
sought employment after her discharge in August 1971 at
two hospitals in Covington and at some manufacturing
plants in the Northern Kentucky area, before she eventu-
ally found work at the Baptist Convalescent Center, New-
port, Kentucky, in the first quarter of 1972. She said that
while she worked for Respondent, her aunt had taken care
of her youngest child, and had done the same service for
her when she went back to work in 1972. At some unspeci-
fied time in 1971, her aunt had applied for a disability
benefit. Respondent assumes that the aunt was unable to
care for Hurry's child in 1971, but I am not satisfied that
that is what Hurry's testimony amounts to. After saying
that her aunt had taken care of the child while she was
working for the Baptist Convalescent Center in 1972, she
was asked by Respondent's counsel if there was a period of
time when her aunt was unable to do so, and she admitted
that there was such a time. However, from her answer to
the next question, it appears that it may have been in 1972
that her aunt was disabled. In any event, in view of the fact
that Hurry had applied for work at more than four or five
places whose names she could recall, in the last two quar-
ters of 1971, I am not satisfied that Respondent has borne
its burden of proving that her failure to find work during
that period was caused solely by any difficulty she may
have had in finding someone to take care of her child. I
therefore find that the net backpay claimed in the backpay
specification for Hurry, amounting to $1400.65, is the
amount due her.
Smith testified that she had applied for work at a nursing
home, a restaurant (other than the one where she worked
temporarily in December 1971), the company where her
husband worked, and a few clothing manufacturing plants.
She applied at some of these places shortly after her dis-
charge in August 1971. She admitted that after her tempo-
rary job at Heringer's Restaurant ended in December 1971,
she did not look for work until May 1972, when she ap-
plied at Dunlap's (not otherwise identified) and at another
firm.
It may well be that Smith was confused about dates and
3 Dorn's Transportation Company, Inc, 181 NLRB 403, 404 (1970).
the sequence of events, since she testified that she had not
looked much for work after being let go at Heringer's be-
cause right after that she had gotten an offer of reinstate-
ment from Respondent. In fact, as shown by the backpay
specification and by the testimony, she was laid off at
Heringer's in December 1971, and was not offered rein-
statement by Respondent until early in June 1972. If the
General Counsel had seen fit to question Smith, after her
examination by Respondent, her confused recollection
might have been set straight, but the General Counsel pre-
ferred to stand firm on his position that all evidence re-
garding due diligence in seeking work should have been
rejected. The result is that Smith's testimony now shows
that she did not apply for work from January through
April 1972. An unexplained failure to look for work during
the 4 months after her temporary job at Heringer's ended,
shows an unreasonable lack of diligence, in my opinion, in
mitigating her loss of income .6 I shall therefore recommend
that Smith's net backpay for the first quarter of 1972, in the
amount of $804.70 be disallowed, and that her net backpay
for the second quarter of 1972 be reduced by $247.60 (her
weekly rate of $61.90 for each week of April).
In summary, I find the backpay due Smith to be $137.74,
computed as follows:
Qtrs.
Gross
Backpay
Net
Interim
Earnings
Net
Back a
1971 -3 $408. 54 none $408.54
1971-4 804.70 $125.00 679.70
1972-1 none none none
1972-2 309. 50 none 309.50
$1522.74 $125.00 $1397.74
ORDER7
Upon the basis of the foregoing findings and conclu-
sions, it is ordered that Garrard Convalescent Home, In-
corporated, its officers , agents , successors and assigns shall
pay to the employees involved in this proceeding, as net
backpay, the amounts set forth opposite their names:
Lula Hurry $1,400.65
Ethel Smith $1,397.74
Interest is to be added at the rate of 6 percent per annum
on the respective amounts of backpay, computed quarterly,
and the net backpay awards are to be reduced by such tax
withholdings as are required by Federal and State laws.
6 Cornwell Company, Inc, 171 NLRB 342, 344 (June Hopper) ( 1968).
7 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions, and Supplemental Order herein shall, as provided in Section
102.48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions and Supplemental Order, and all objections thereto
shall be deemed waived for all purposes.