Hyster Co.

National Labor Relations Board - Board Decisions

Oct 10, 1975

220 N.L.R.B. 1230 (N.L.R.B. 1975)

1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hyster Company and Arthur J. Wolfe. Case
38-CA-1033
October 10, 1975
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On June 30, 1975, Administrative Law Judge Phil
Saunders issued the attached Supplemental Decision
in this proceeding.' Thereafter, Respondent filed ex-
ceptions and a supporting brief, and General Coun-
sel filed an answering brief in support of the Admin-
istrative Law Judge's Decision.
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 briefs
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
Order of the Administrative Law Judge and hereby
orders that the Respondent, Hyster Company, Urba-
na, Illinois, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order.
1 The Board's original decision appears at 195 NLRB 84 (1972).
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Administrative Judge: This supplemental
proceeding is to determine the amount of backpay due in
accordance with the Board's Decision and Order, 195
NLRB 84 (1972), directing Hyster Company, herein called
Respondent or the Company, to make whole Arthur J.
Wolfe for his losses resulting from the Respondent' s unfair
labor practice.' On April 15, 1975, the parties appeared
1 On March 20, 1973, the United States Court of Appeals for the Seventh
Circuit entered an order denying the cross-petition for review and granting
enforcement of the Board 's Order. The court entered its judgment on Sep-
tember 14, 1973 On October 25, 1973, the court denied the Respondent's
petition for a rehearing in the matter . On January 24 and February 6, 1974,
220 NLRB No. 198
and participated before me with full opportunity to present
evidence and argument on the issues. Subsequent to the
close of the hearing, briefs were received from the Compa-
ny and the General Counsel.
On the entire record herein and on the basis of my ob-
servation of the witnesses, I make the following findings
and conclusions:
Wolfe's illegal discharge took place on October 15, 1970,
and he was reinstated by the Respondent on April 18,
1974, and the interval between these dates is the backpay
period involved herein .2 This record shows that Wolfe re-
ported to the Illinois State Unemployment Office in Dan-
ville, Illinois, during the first week after his discharge, and
thereafter reported to the Unemployment Office on a
weekly basis until the latter part of March 1971. During the
period from October 1970 to March 1971, Wolfe also made
several visits to different employers in the Danville area in
his efforts to gain employment. The main employers he
contacted were General Motors, Bohn Aluminum, Tee-Pac
Company, Illinois Bell, Continental Can, Illinois Power
Company, Quaker Oats, and Esco Corporation. Wolfe stat-
ed that he personally visited some of these employers three
or four times in an attempt to secure employment, and he
also made a number of telephonic inquiries to these em-
ployers. He said that only in one instance did he receive an
encouraging response to his efforts, and that was in Febru-
ary or early March 1971, when he was interviewed by a
personnel manager at Illinois Power Company's Danville
office. Illinois Power was looking for a maintenance me-
chanic and during his interview Wolfe was told that he had
all the qualifications and the background needed for the
job. Wolfe stated that the personnel man was going to hire
him immediately, but then he changed his mind and told
him he would be contacted the following morning. Howev-
the United States Supreme Court denied the Respondent's applications for
an extension of time for filing a petition for certiorari.
2 The net backpay specifications , as amended , are as follows:
Gross Interim
arter Back a Earn inns
Net
Backpay
4-70 $1901.88 0 $1901.88
1--71 2318.42 0 2318.42
2-71 2237.56 $1041.67 1195.89
3--71 2237.56 1041.67 1195.89
4--71 2595.83 1041.67 1554.16
1--72 2218.53 1144.75 1073.78
2--72 2409.68 1144.75 1264.93
3-72 2415.68 1144.75 1270.93
4--72 3466.34 1144.75 2321.59
1--73 3195.57 1086.50 2109.07
2-73 3230.36 1086.50 2143.86
3-73 3299.14 1086.50 2212.64
4-73 3785.30 1086 .50 2698.80
1--74 3018.64 258.00 2760.64
2-74 707.52 48.07 659.45
Total net backpay $26,681.93
HYSTER COMPANY
er, Illinois Power did not call him and when Wolfe contact-
ed the personnel manager he was informed that Illinois
Power had hired another person for the job.
After these numerous unsuccessful efforts to obtain em-
ployment, Wolfe decidedF to start his own business and
stated he made this decision because he could not obtain
work any place in the Danville area and his unemployment
compensation was exhausted. Wolfe also testified that he
felt his discharge by the Company for his union activities
made him undesirable as a job applicant in the Danville
area, and as a result decided to go into buiness for himself.
In April 1971, Wolfe started to do business as a small
independent contractor under the name of Wolfe's Home
Improvement. This business involved general home re-
pairs, remodeling, and small construction jobs. Wolfe said
his decision to go into this kind of a business was based
upon his mechanical ability, his experience in the field as
an employee of a contractor for a year and a half, and his
own personal experience in doing remodeling and roofing
work on his parent's home. Since April 1971, Wolfe has
conducted his construction or remodeling business contin-
uously to date, and has done so out of his residence or
home located in Catlin, Illinois. Moreover, it is clear from
this record that Wolfe was occupied on a full-time basis
with his business, and devoted approximately 60 hours or
more a week to it. From time to time he also hired one or
two employees to assist him and advertised in the commu-
nity in an effort to gain more work. During the backpay
period, Wolfe's gross receipts increased substantially, and,
admittedly, he ceased his strenuous efforts to obtain other
employment, but said that if a good job had been offered
he would have taken it, but after starting in his own busi-
ness he was not going around looking for work "as dili-
gently" as he did before.
This record shows that during the early backpay period
relevant hereto, Wolfe received $300 through the Commu-
nity Action Program Council of the United Auto Workers.
Both Wolfe and R. L. Kelley, the subregional director for
the UAW in the Danville area, testified before me that
various locals took up collections and that these donations
were then funneled through the Community Action Pro-
gram Council which, in turn, sent the checks to Wolfe. It
appears from this record that Wolfe was very much inter-
ested in having the UAW represent the employees in the
Respondent's Danville plant where he was employed, rath-
er than the incumbent union, and before his discharge had
circulated a petition, among other efforts, in his desire to
accomplish this objective. R. L. Kelley stated, "These do-
nations were made on behalf of Art Wolfe because we
[UAW] felt that the Company had discharged Art unjustly
for union activity." Kelley further stated that Wolfe had
never worked for the UAW in any capacity, and his efforts
at the Danville plant on behalf of the UAW was strictly his
own doing. These donations were never repaid nor did the
UAW ever expect repayments.3
3 In addition to the above, there was $274 paid by the UAW to Wolfe as
a result of his suspension in July 1970, but the General Counsel is not
seeking backpay for the 8-day period, which also predates the backpay
period involved herein . Wolfe also received approximately $150 as a direct
donation from Hyster employees.
1231
The Respondent points out that prior to his discharge
Wolfe had worked in line assembly and repairs and had an
inspection job at the plant, and in doing so Wolfe demon-
strated good mechanical ability. The Respondent argues
that Wolfe then "literally abandoned" the skills, knowl-
edge, and mechanical ability which 7 years at
Respondent's plant had taught him when he elected to go
into business for himself, that his contracting venture was
not a satisfactory application of his special talents, and,
therefore, Wolfe was not exercising a good-faith effort to
mitigate his damages. Relying on the criteria set forth in
East Texas Steel Castings Company, Inc., 116 NLRB 1336
(1956), Respondent points out that Wolfe's endeavor in his
contracting business did not assure him of either steady
work nor regular income, and that Wolfe had no real basis
for his conviction that he could not find work for which he
was qualified,' and further maintains that there was no risk
to Wolfe in continuing his search for appropriate employ-
ment, and when he ceased to do so on and after April 1,
1971, the Respondent's backpay liability terminated as of
that date.
The Respondent further maintains that the backpay due
Wolfe for the period through March 30, 1971, should be
reduced by the payments he received from the UAW be-
cause Wolfe had been working on behalf of the UAW at
the Hyster plant, and the payments he received were com-
pensation for services rendered and, as such, they are a
proper credit in the backpay computation.
Final Conclusions
The duty of an employee to mitigate his damages by
seeking other employment has been duly established and
recognized for many years. As the Board recently put it,
. .. the test is whether, on the record as a whole, the
employee has diligently sought other employment dur-
ing the entire backpay period. [Saginaw Aggregates,
Inc., 198 NLRB 598 (1972).]
This record reveals that almost immediately after his un-
lawful discharge, Wolfe reported weekly to the Illinois
State Unemployment Office until late March 1971, and
during these same months made repeated visitations and
calls to at least eight different prospective employers, as
aforestated. Moreover, this was in a period where admit-
tedly the type of technical work that Wolfe had been previ-
ously trained in by the Company was extremely difficult to
find, and even the Respondent had cutbacks on all the
overtime work at its Danville plant. There were also special
circumstances whereby Wolfe was denied employment at
the Illinois Power Company. As far as I am able to de-
termine there have been no specific guidelines or criteria
established on the actual number of employers a discrimi-
natee must contact or the frequency of his calls, in order to
satisfy the test of due diligence in seeking other employ-
ment, but it appears to me that under the normal standards
set forth by the Board Wolfe satisfied the essential require-
Respondent's Danville plant manager , Paul Herren , testified that by late
1972 it had become "very hard" to hire qualified employees both for the
Respondent and for other employers engaging in similar operations.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments.s It is also noted that in one phase of the
Respondent's brief it claims that its backpay liability
ceased as of April 1, 1971, when Wolfe established his own
business, and by inference from this contention it might be
argued that by setting forth this specific date the Respon-
dent is actually conceding and admitting a diligent or rea-
sonable search for employment up to at least this point of
time in the backpay period.
The Respondent contends that by going into business
for himself, Wolfe took himself out of the labor market,
and for that period he was not entitled to backpay. I reject
this contention. The Board has consistently held that a
claimant who goes into business for himself is treated as
one who obtains interim employment. McCann Steel Com-
pany, Inc., 203 NLRB 749 (1973). As detailed previously
herein, Wolfe initially made a rather extensive search for
work, but these efforts proved to no avail and, as pointed
out, he had one incident with Illinois Power Company
which led him to believe that, even if jobs were available in
the Danville area, his involvement in union activity greatly
diminished his chances of gaining employment. I agree
that under these circumstances the Respondent can hardly
argue that Wolfe "removed" himself from the job market.
In his brief the General Counsel states, in pertinent part:
The evidence makes it apparent that Wolfe had to
chose between only two alternatives, long and contin-
ued unemployment or going into business for himself.
It is to Wolfe's credit that he chose self-employment.
Indeed, the Respondent should be appreciative of
Wolfe's course of action in that it surely diminished
Respondent's backpay liability.
In the overall considerations of this case, it is also signifi-
cant that Wolfe had at least some qualifications and expe-
rience in the small construction business, and that he de-
voted his full energies and time to his business. He also
made a sizeable investment in his operations through the
purchase of tools and other equipment, and hired employ-
ees to assist him. As pointed out, it is also noteworthy that
his gross receipts increased considerably each year during
the backpay period. In fact, in 1973 his gross income was
over $40,000.6 As further maintained by the General Coun-
sel, and I agree, there is no probative evidence in the rec-
ord to show that any outside employment opportunities
were available to Wolfe at any time during the backpay
5 The principle that a wrongfully discharged employee mitigates his losses
by seeking employment elsewhere does not require that his search meet with
"success, it only requires an honest good-faith effort." N.L. R. B. v. Cashman
Auto Company, 223 F.2d 832 (C.A. I, 1955). To set a definite standard
depends upon the facts and circumstances in each case , but in general terms
it can be said that a good- faith effort requires conduct consistent with incli-
nation to work and to be self-supporting, and such inclination is best evi-
denced not by a purely mechanical examination of the number or kinds of
applications , but rather by the sincerity and reasonableness of all the efforts
made . Circumstances include the economic climate , his skill and qualifica-
tions , his age, and his personal limitations . Mastro Plastics Corporation, 136
NLRB 1342 at 1359 (1962).
6 See G.C. Exhs. 2, 3, 4, 5, and 6.
period. Indeed, Wolfe testified that if a better job had been
available he would have taken it, and the sincerity of this
testimony is demonstrated by the fact that Wolfe accepted
Respondent's offer of reinstatement when it finally came.
Turning to Respondent's argument that money received
by Wolfe from the UAW were payments for services ren-
dered, this record clearly established that the amounts re-
ceived by Wolfe during the early backpay period, as
aforestated, were voluntary contributions from individual
UAW members who took up collections at local union
meetings, and from his fellow employees at the Company
who established an "Art Wolfe Fund" through their contri-
butions. I agree that the gratuitous nature of these contri-
butions cannot be construed to be payments made to
Wolfe for services performed for UAW members or fellow
company employees inasmuch as the record is barren of
any substantiating evidence for such a finding. As further
pointed out, there is nothing in this record which contro-
verts the testimony of Kelley to the effect that it was the
members' contributions or donations that were merely fun-
neled through the Community Action Program of the
UAW to Wolfe. There is no probative evidence in this rec-
ord that Wolfe was employed by the UAW in any capacity,
nor were any funds solicited, as such, by the Community
Action Program on Wolfe's behalf. Finally, as further
pointed out by the General Counsel, there was no evidence
presented showing that Wolfe continued any of his organi-
zational activities for the UAW or anyone else after his
termination by the Respondent.
The original specifications in this case computed over-
time payments for Wolfe from the very start of his backpay
period, but at the hearing before me several of the
Responent's witnesses testified that there was an extended
period of time during which there was no overtime of any
kind at the Respondent's Danville plant. Based on the ex-
amination of certain company overtime records, the parties
subsequently agreed that there was no overtime from Octo-
ber 18, 1970, until on or about November 1, 1972, and the
amended backpay specification by the General Counsel, as
set forth earlier herein, so reflects this agreement and the
backpay liability of the Respondent is reduced in accor-
dance therewith.
I conclude and find that Arthur Wolfe is due backpay
from the Respondent in the amount of $26,681.93, plus
interest at the rate of 6 percent per annum, computed in
the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), until the date of payment of all back-
pay.' Payment of this sum shall be less any taxes required
to be withheld by Respondent under Federal, state, and
local law.
' The General Counsel urges that because of "snowballing inflation" and
"skyrocketing interest" the rate of interest charged to Respondent be raised
to at least 8 percent. However, in Mercy Peninsula Ambulance Service, Inc.,
217 NLRB No. 141 (1975), this same argument was made and therein the
Board stated: "While we are, of course, aware of the current inflation, we
note that the rate of inflation has been fluctuating both up and down and
that it differs according to geographic area. Accordingly, we remain of the
view that the established uniform rate of 6-percent interest is the measure of
recovery which best effectuates the purposes of the Act."