Mercy Peninsula Ambulance Service, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1977

232 N.L.R.B. 1070 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mercy Peninsula Ambulance Service, Inc. and Doug-
las A. Castle. Case 20-CA-9304
October 12, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On July 12, 1976, Administrative Law Judge
Stanley Gilbert issued the attached Supplemental
Decision in this proceeding. Thereafter, the General
Counsel and Respondent filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge only to the extent consistent
herewith.
This proceeding involves the amount of backpay to
be awarded 8(a)(3) discriminatee Douglas Castle. l
The Administrative Law Judge found that Castle was
not entitled to backpay from June 19, 1974 (his date
of discharge), through November 15, 1974, but was
entitled to backpay commencing November 16, 1974,
through March 31, 1975, when he started school on a
full-time basis. Denial of backpay through Novem-
ber 15, 1974, was based on the Administrative Law
Judge's "opinion" that Castle "willfully avoided
obtaining employment" during this period. In our
view, the evidence credited by the Administrative
Law Judge clearly demonstrates that Castle earnestly
sought employment from the time of his unlawful
discharge and completely negates "the burden
[which] is upon the Employer to establish facts which
would mitigate the existence of liability." N.L.R.B. v.
Brown and Root, Inc., 311 F.2d 447, 454 (C.A. 8,
1963).
At the time of his discharge on June 19, 1974,
Castle was employed as an ambulance driver. In the
period for which he was denied backpay, he made
continuous attempts to obtain employment as an
ambulance driver and in other occupations. Castle
testified that in June 1974 he telephoned Bay Area
Ambulance Company and Silva's Ambulance Com-
I At 217 NLRB 829, the Board found that Respondent's discharge of
Castle violated Sec. 8(aX3) and (I) of the Act.
Ratliff of California Ambulance testified that Castle filed an applica-
tion on September 4 but indicated that, because of the Board's proceedings.
he expected to be reinstated with Respondent at the end of September.
Ratliff testified that he did not hire Castle because of his limited availability.
232 NLRB No. 149
pany to inquire about job vacancies, that on July 10
he contacted San Francisco Emergency Medical
Service and California Ambulance Service for the
same purpose, and that he was informed by all four
companies that no jobs were available. The Adminis-
trative Law Judge credited his testimony as to his job
inquiries at all four companies and his being advised
by Bay Area Ambulance, Silva's Ambulance, and
San Francisco Emergency Medical that no jobs were
available. Concerning California Ambulance, the
Administrative Law Judge found that Castle inter-
preted the response to mean "that there were no job
openings at that time." On July 30 he visited the
Millbrae Fire Department but was told that no
applications would be accepted until January 1975.
He registered with the state unemployment office
and commencing at the end of August he visited the
office every 2 weeks but never received any job
referrals. On August 13 he visited both the San
Mateo Fire Department and the South San Francis-
co Fire Department to indicate his interest in
employment. On August 22 he visited the Redwood
City Fire Department and was told that they were
not accepting applications. On September 4 he
sought employment at Bay Area Ambulance Compa-
ny, Silva's Ambulance Company, and California
Ambulance. 2 On October 7 he left an application
with the San Carlos Fire Department and on October
16 with the Belmont Fire Department and the Half
Moon Bay Fire District. On November 15 he looked
for work at Peninsula Hospital and Mills Hospital.3
During November he also attempted to have the
Emergency Medical Care Committee of San Mateo
County hire him to write a newsletter.
The foregoing recital of Castle's persistent efforts
to obtain employment from the date of his discharge
through November 15 clearly manifests appropriate
diligence to mitigate Respondent's financial loss.
Respondent, therefore, has not sustained the burden
of its affirmative defense that Castle incurred a
willful loss of earnings. N.L.R.B. v. Mooney Aircraft,
Inc., 366 F.2d 809 (C.A. 5, 1966); N.L.R.B. v. Rice
Lake Creamery Company, 365 F.2d 888 (C.A.D.C.,
1966), cert. denied 311 U.S. 327; Heinrich Motors,
Inc. v. N.L.R.B., 403 F.2d 145 (C.A. 2, 1968);
N.L.R.B. v. Reynolds Pallet & Box Co., 399 F.2d 668
(C.A. 6, 1968). The discharged employee is required
only to make reasonable efforts to obtain employ-
ment, he is not held to "the highest standard of
diligence." N.LR.B. v. Arduini Manufacturing Corp.,
394 F.2d 420, 423 (C.A. 1, 1968).
The Administrative Law Judge found Castle's speculations on his reinstate-
ment were not made in good faith but were to discourage an offer of
employment.
1: November 15 was the last day of the period for which he was denied
backpay.
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MERCY PENINSULA AMBULANCE SERVICE
Despite the evidence of Castle's diligent search for
work, the Administrative Law Judge found that he
"deliberately avoided employment in order to devote
his efforts to organizing ambulance drivers in an
association." This finding was based principally on
two factors, namely, (1) that Castle had been refused
employment by a prospective employer because he
had told him that he was involved in a Board
proceeding and expected to be reinstated in a few
weeks as a result thereof and (2) that he had admitted
in a letter of December 3, 1974, describing his efforts
to organize ambulance drivers that he was not
seeking work but concentrating on the organizational
campaign.
We do not believe that these circumstances negate
to any degree the evidence that Castle made
reasonable efforts to find work. Certainly his
frankness in completing a job application form about
his employment situation and expectation of rein-
statement cannot properly be considered evidence of
willful refusal of employment. Dissemblance is not a
condition to qualification for backpay. Reliance on
Castle's December 3, 1974, letter to the Emergency
Medical Care Committee is similarly misplaced. A
portion of the letter states: "When I was fired it
would have been easy for me to walk away and
merely go and get a better job for myself. But I felt
an obligation to try to improve my fellow workers'
lot." The Administrative Law Judge underlines this
as indicating that "instead of trying to get a job after
his discharge he devoted his efforts to organizational
attempts." The quoted language obviously does not
support the Administrative Law Judge's interpreta-
tion. There is nothing in the language relied on or in
ordinary experience to suggest that his organizing
activities were engaged in as a substitute for seeking
employment or were a full-time occupation which
precluded efforts to find work. Many fully employed
persons contemporaneously engage in organizational
activities. In any event, the evidence is clear that
Castle made reasonable efforts to obtain work and,
therefore, is entitled to backpay for the period from
his discharge through November 15 which was
denied by the Administrative Law Judge, as well as
for the period thereafter.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Mercy Peninsula Ambulance Service, Inc., San
Mateo County, California, its officers, agents, succes-
sors, and assigns. shall pay to Douglas A. Castle as
net backpay the sum of $7,659.56, together with
interest thereon at 7 percent per annum, as set forth
in Florida Steel Corporation, 231 NLRB 651 (1977),4
less any tax withholdings required by Federal and
state laws.
See, generally, Isis Plumbing & Heating Co., 138 NLRB 716(1962).
SUPPLEMENTAL DECISION
STANLEY GILBERT, Administrative Law Judge: On May
7, 1975, the National Labor Relations Board issued its
Decision and Order' in the above-entitled proceeding
directing Respondent herein, Mercy Peninsula Ambulance
Service, Inc., its officers, agents, successors, and assigns to,
inter alia, make Douglas A. Castle whole for his losses
resulting from Respondent's unfair labor practice in
violation of Section 8(aX3) and (I) of the Act. It appears
that Respondent has entered into a stipulation that it does
not contest the Board's Order, but that a controversy exists
over the amount of backpay due under said Order.
Accordingly, the Regional Director for Region 20, pursu-
ant to authority duly conferred upon her by the Board.
issued the backpay specification and notice of hearing
herein on January 29, 1976. Respondent, by its answer,
raises the issues of whether Castle "received interim
earnings unaccounted for" and whether he
. . . failed to make reasonable efforts to mitigate his
loss of income by not diligently seeking new employ-
ment, and by holding himself out to prospective
employers as being self employed, or only available for
short term employment and unavailable for full-time
permanent employment.
Pursuant to notice a hearing was held in this supplemen-
tal proceeding in San Francisco, California, on April 13.
14, and 16, 1976, before me. Briefs were timely filed on
behalf of the General Counsel and Respondent on June 1,
1976.
Upon the record in this supplemental hearing and from
my observation of the witnesses who testified, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
It is alleged in the backpay specification that the
backpay period begins on June 20, 1974, and ends on May
30, 1975. However, it is subsequently alleged therein that
"Castle tolled his backpay beginning March 31, 1975, when
he removed himself from the labor market to attend school
on a full-time basis." This subsequent allegation is repeated
in the record and the summary set forth in an appendix to
the backpay specification reflects it. Said summary con-
tains the following:
Gross Iunterim Net
Year & Qtr Baekpay EarniuRs eckpay
1 974--2
1974-3
1974--4
1975--I
$ 349.43 0
2,502.90 0
2,540.13 0
2,267 .10 0
Backpay Priocipal
$ 349.43
2,502.90
2.540.13
2.267 .10
$7,659.56
I 217 NLRB 829.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition, there were no "deductible expenses" set forth.
There is no dispute as to the formula for arriving at the
gross backpay or the amounts set forth above. The dispute
is as to the contentions raised by Respondent's answer set
forth hereinabove.
As to the contention with regard to "interim earnings
unaccounted for," there is nothing in the record which will
support a finding that there were such earnings. Thus the
only dispute to be resolved is whether Castle failed to make
sufficient efforts to mitigate his loss. It is well established
that the burden is upon Respondent "to establish facts
which would negative the existence of liability to a given
employee or which would mitigate that liability." N.L.R.B.
v. Brown & Root, Inc., et al., 311 F.2d 447, 454 (C.A. 8,
1963). It is noted that the court, on page 452 of said case,
stated another well-established principle: "Of course, an
employee must use reasonable diligence to find employ-
ment during the period of discrimination. He is not entitled
to back pay for periods during which he voluntarily
remained in idleness."
Castle testified that commencing at the end of August
1974, after he had "won the unemployment appeals
decision," he went to the state unemployment office every
2 weeks, but never was given any job referrals.2 Following
is a summary of Castle's testimony of what other action he
took to find employment after his discharge on or about
June 19, 1974, and other evidence relevant thereto.
In June he telephoned Bay Area Ambulance and Silva's
Ambulance and was told no jobs were available at that
time and to come down at his convenience and fill out an
application. Robert Curry of Silva's confirmed the call to
that company. No witness was called from Bay Area.
Therefore the above testimony is uncontradicted and is
credited.
On July 10 he "contacted"3 San Francisco Emergency
Medical Service, 4 was told no jobs were available at that
time and to check back later, and he did not file an
application. This testimony is uncontradicted and is
therefore credited. Also, on July 10 he telephoned Califor-
nia Ambulance and was informed by Harold Ratliff that
there were no job openings at that time. Ratliff testified
that he could not recall whether or not Castle phoned him
in July, but that it is his company's practice to tell an
applicant who phones to come down and fill out an
application before considering him for employment wheth-
er there is an opening or not. Ratliff further testified, "We
opened a new office in July, so we would have had
openings .... " Ratliff was a credible witness, and in view
of his testimony I cannot discredit Castle's testimony that
he made the call. As to Castle's testimony that he was told
there were no openings, in view of Ratliff's testimony as to
the practice followed with respect to phone applicants, I
am led to infer that Castle was told that he could not be
considered for employment until he filed an application
2 The records of said office were denied to Respondent, so that there is
no evidence which would afford a basis for my discrediting said testimony.
3 Castle was unable to recall whether it was by phone or in person.
4 Where he was working at the time of the hearing.
which Castle chose to interpret as a statement that there
were no job openings at that time.5 Also, he visited the
Millbrae Fire Department on July 30 and was told that no
applications would be accepted until January 1975. Since
this testimony is uncontradicted I have no basis for
discrediting it.
On August 13 he went to the San Mateo Fire Depart-
ment and left an envelope to be notified "when examina-
tions or applications would be due." Also on the same date
he visited the South San Francisco Fire Department and
left either an envelope or application. On August 22 he
visited the Redwood City Fire Department and "was told
they were not accepting applications at that time." Again,
since this testimony is uncontradicted, I have no basis for
discrediting it. It is noted from the record that all three
were civil service jobs and apparently required some
preliminary qualification before hiring, either by way of
examination or application, and that Castle received
notification from the first two fire departments, apparently
announcing an examination or time to file an application,
after he enrolled in school (subsequent to the time the
backpay period was tolled).
On September 4 he visited and filed applications with
Bay Area Ambulance, Silva's Ambulance and California
Ambulance, but Castle was not certain about filling out an
application at Silva's. There is no evidence contradicting
his testimony that he visited Bay Area Ambulance and
there is evidence that he did visit Silva's and California
Ambulance. Therefore his testimony is credited that he
visited the three places. Robert Curry of Silva's, who
verified Castle's testimony of a telephone call in June, as
above noted, testified that Castle had come to his office
and asked if there were any jobs available to which he
replied there were not. Curry also credibly testified as
follows:
Then, my next association with Doug [after the
phone call in June] was some of the fellows in
Redwood City had talked with him and they ap-
proached me about getting involved in an association
that Doug was trying to promote along the line. It
wasn't very shortly after that, some time in the first of
September when Doug came down to the office and we
had a conversation there that really wasn't - I believe
- he told me he was involved in writing an article and
he took quite a few notes on some conversation that we
had as far as the hours that the fellows were working,
the wage, benefits, this sort of thing. I really-I don't
believe that Doug ever asked for an application. If he
did, maybe I didn't offer it. I really have no idea.
Then, that was about the last contact I had with him
up to the point that several letters or news bulletins that
Doug was putting out amongst the ambulance people
trying to get them involved in-apparently they were
trying to start some association. I have no idea because
I use the word "chose" in view of evidence set forth hereinbelow, from
which I infer that, at least at that time, Castle was not earnestly seeking to
find a job.
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MERCY PENINSULA AMBULANCE SERVICE
being in management, I was left out of it, so I really
wasn't contacted. But, the pamphlets were picked up at
different stations. The pamphlets went along telling a
complete story of what he was doing, how his lawsuit
was coming, or [h]is bout with the Labor Relations
Board against Mercy Peninsula. This is about all I
really know about it.
JUDGE GILBERT: You read those pamphlets, your-
self?
THE WITNESS: Yes.
Harold Ratliff, owner of California Ambulance, testified
that Castle did file an application with him on September
4. It is noted, however, that Castle indicated therein that he
would not be available for employment until September 15.
When asked why he so stated, Castle was unable to offer
any satisfactory explanation and a speculative reason
which was stricken.s Furthermore, at the end of the
application Castle stated that as a result of the charge he
filed with the Board he expected to be reinstated by
Respondent "at the end of September."' It appears
appropriate to comment at this time on my impression of
Castle. He appeared to me to be intelligent, well educated,
very knowledgeable about the industry in which he
worked, and very articulate; however, as a witness he was
not very convincing. I am not satisfied that his statement
that he expected to be reinstated at the end of September
was made in good faith, rather I believe it was made to
discourage an offer of employment, since he could not
reasonably have expected to be reinstated at the end of
September or to be hired for a period that was anticipated
to last only 2 weeks. 8 Ratliff credibly testified that he did
not hire him because of the limited period of his
availability.
On October 7 he went to the San Carlos Fire Department
and on October 16 to the Belmont Fire Department and
the Half Moon Bay Fire District. He further testified that
he left an "application" with each of them. There is no
basis for discrediting this testimony, so it is credited.
As to the month of November Castle testified as follows:
A. In November-on November 15th, I contacted
Peninsula Hospital and filed an application on the
same date. I contacted Mills Hospital and filed an
application. Also, during the month of November, I
had been working through a contact of California
Heart Association in trying to do a newsletter for the
emergency medical care committee of San Mateo
county and I wrote a letter, approximately on Novem-
ber 15th to both the project director, Dr. Dennis
Franklin and the committee chairman as to doing such
6 On the other hand, he also testified that he was immediately available
for work on September 4.
7 When he was asked whether he told anyone on September 4 that he was
only going to be a temporary employee, he testified as follows:
A. I said that-I indicated that I hope let me digress. In response
to why I had ended previous employment I answered that I was in
litigation with the National Labor Relations Board and that I hoped
my former employer would settle shortly on the issues and that
hopefully I could be reinstated at Mercy Peninsula Ambulance
Company.
Q. What time?
A. Well, I hoped that it would be at a short time.
a newsletter. So, during the month of November, I had
on-going talks with them to try to be able to do the
newsletters.
His testimony with regard to Peninsula Hospital is not
contradicted and therefore I have no basis for discrediting
it. As to his visit to Mills Hospital, he further testified that
while his notes indicate that he left an application wdth that
hospital, he did not recall whether he did or not. There is
credible testimony from a representative of that hospital
that indicated he left no application, and that if his
qualification was that of an ambulance driver and there
were no openings his application would not have been
taken. On rebuttal Castle testified that he applied for a job
as an orderly at that hospital and that he filled out a small
"black and white card," which was considerably different
from the application form that the hospital representative
testified was used by the hospital. Castle was not a
convincing witness with regard to his visit to Mills
Hospital. At first he testified that he had no independent
recollection of whether he left an application there and
then on rebuttal he went into considerable detail as to the
card he filled out and a description of the man with whom
he talked and with whom he left the card. Consequently, I
am of the opinion that while his testimony that he visited
Mills Hospital cannot be discredited, I find that he did not
file an application.
As to Castle's activities with regard to writing a
newsletter for the Emergency Medical Care Committee, it
appears that he devoted a great deal of time and effort to
get them to sponsor such a letter. A letter he wrote to the
chairman of the committee dated December 3, 1974, is very
revealing and is therefore reproduced in full as an appendix
hereto. Two portions thereof are italicized. The first
portion indicates that instead of trying to get a job after his
discharge he devoted his efforts to organizational attempts "to
improve his fellow workers' lot." The second italicized
portion indicates that on November 12, 1974, he abandoned
said efforts.
In the month of December he continued his efforts to
persuade the aforementioned committee to sponsor a
newsletter. However, while the record is far from clear that
he had any reasonable expectation of obtaining paid
employment from the committee, I cannot find that
Respondent has sustained the burden of proof negating
such expectation.
On December 16 he inquired of Peter Durigan, owner of
Superior Cleaners, whether he had a job available and was
told that there were none at the time. Durigan testified that
he is the owner of Superior Property Maintenance and also
Q. Did you ever indicate to anybody that you expected to be
reinstated by the end of September?
A. I could have as a desire; nothing; it was speculation on my
part.
JUDGE GILBERT: Well, the question is not whether it was speculation
of did you make such a statement. The question is whether or not you
made such a statement.
THE WITNESS: I may have; I don't recall.
This is predicated further on all of the circumstances including a
statement Castle made in a letter which is referred to hereinbelow and my
appraisal of him as a witness as well as his testimony that his expectation of
reinstatement was "speculation."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a commercial parking lot sweeping service in Redwood
City and that while Castle might have asked him for a job
his best recollection is that Castle did not. Also he testified
he had a number of conversations with Castle over a period
of 4 months from "'74 into '75," some of which Castle
taped and that they were with respect to working
conditions of ambulance drivers, a job at which Durigan
had formerly been employed. It appears from Durigan's
testimony that Castle told him that he was devoting all his
time and efforts to exposing the bad working conditions of
ambulance drivers to the County of San Mateo. Durigan
further testified that Castle was one of two men who asked
him to verify that he asked him for employment if anybody
were to inquire, but that he "turned both down." Durigan
also testified that although he "wouldn't stake my life on
it," he "believed" that Castle did make such a request of
him. I am not satisfied that based upon this testimony I can
appropriately find that Castle asked him to commit such a
fraud. Also Durigan, when questioned about it again,
testified that he did not recall that in any of his
conversations with Castle he (Castle) asked for a job.
Durigan appeared to be trying to tell the truth to the best of
his ability, although there were elements of uncertainty and
vagueness in his testimony. I credit his testimony that
Castle did not ask him for a job9 and that his conversations
with Castle were with respect to job conditions of
ambulance drivers in connection with a project on which
Castle was working (either the organization of ambulance
drivers, the newsletter idea he was trying to have sponsored
or both).
To continue with Castle's testimony, on December 31 he
filed an application with the "Health Application Referral
Company." Castle further testified that the company is an
employment agency. Debbie Hutchings testified that she is
employed by the Health Applications System, that the only
application she found filed by Castle was dated January 6,
1975, that the "position desired" was left blank and that the
company was not an employment agency but was engaged in
the business of operating "computerized claims processing
systems," comparable to Blue Shield. Castle offered no
explanation of what position he thought he could be
qualified for in this company and it is inferred that in his
interview it must have been made apparent to him that the
company was not an employment agency. However, Respon-
dent failed to establish that he was not qualified for a job
with that company.
On January 9, 1975, Castle contacted MAT Enterprises
"to do some construction work for them," but they had no
work available since they were not going ahead at that time
with "a project to renovate new office space," and he was
"told to keep in contact with them." There being no
contradictory evidence, I have no basis for discrediting this
testimony. However, it appears from Castle's testimony
that MAT Enterprises is not a construction company but a
computer firm which "wanted to contract out to build
office space" for its use. There is nothing in the record to
show what qualifications Castle had to accept such work,
but, on the other hand, there is no showing that he lacked
such qualifications.
9 The kind of work was so far out of line with anything Castle apparently
had done before, it does not seem likely that Castle was seeking employment
On January 14, he again contacted Durigan and was told
there were no jobs available at that time, but to check back.
According to my findings hereinabove, while I credit that
he contacted Durigan on or about that time, I do not credit
the rest of his testimony with reference to a job. Castle
further testified as follows:
And, on January 26th, I talked to Martin Espinosa
who was the owner of Martin Enterprises, which is a
landscape, architecture, construction firm about work
and he said that it was off-season; that he would not
have work for another month or so and to check back.
Q. (By Mr. Martin) Did you have any experience
in landscaping/construction?
A. Yes, I did.
Q. And where was that?
A. It was for approximately a year and a half, I
worked at a landscape architecture firm here in the city.
It was Royston, Hamamoto, Beck and Alley. I was a
draftsman at that firm.
Q. I take it that Martin Espinosa was the only
landscaping company in the Bay Area that you
contacted, even though you had that experience?
A. That's correct.
There is no basis for discrediting the above testimony.
However, it is noted that despite the many other such firms
in the Bay Area and his experience in that line of work, this
was the only one he contacted.
As for the month of February, Castle testified as follows:
Yes, sir: on February 6th, I again checked with
Superior Cleaners and was told - I checked with Pete
Durigan and again was told that there was no work
available at that time. Also, I checked again with
Martin Espinosa on the 12th of February, with Martin
Enterprises and was told there was no employment
available.
I phoned the personnel office of the Carlmont
Convalescent Hospital on February 20th and was told
there was no work available.
As to his checking with Durigan, the previous finding I
made with regard to this alleged source of employment is
applicable to his contact in February and my previous
remarks with respect to the contact with Espinosa is also
again applicable. As to his phoning Carlmont Convalescent
Hospital, Anne Dattola, administrator of the hospital,
testified as follows:
Q. Do you have any recollection of receiving a
telephone call from Mr. Castle?
A. No.
Q. Does Carlmont Hospital ever employ anyone on
the basis of an oral application for employment?
A. Never, no.
Q. Are there certain regulations that prohibit that?
A. Well, I believe, there are according to the State,
we have to have reference material, we have to have
information about their past health in regard to their
from Durigan but it appears, rather, from Durigan's credited testimony that
Castle was only seeking information to aid him in his projects
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MERCY PENINSULA AMBULANCE SERVICE
lungs, back, and so forth. We have to have places of
their previous employment.
So, I would say it would be impossible to hire
someone without an application form.
I cannot on the basis of this testimony discredit Castle's
testimony that he called there and was told there were no
jobs available, since he might very well have talked to
someone else or Dattola could have easily forgotten a
phone call made more than a year earlier.
In March, Castle again checked with MAT Enterprises
and was told that "they were not going to do the job for
another month." to Also, he again contacted San Francisco
Emergency Medical Service and was told there was no
work for which he was qualified under the civil service
requirements (i.e., so-called "temporary" work until "the
civil service exam comes around"). There is no basis for
discrediting this testimony, and it is, therefore, credited. At
the end of March he enrolled at Stanford for its paramedic
course and there is no dispute that by so doing the backpay
period was tolled.
It is well established that the Board will not grant
backpay for any period in which the claimant has
withdrawn himself from the job market." I find from the
circumstances in this case that Castle did not make a
reasonable and diligent effort to find work during the
period from the date of his discharge to November 15,
1974, but, instead, deliberately avoided employment in
order to devote his efforts to organizing ambulance drivers
in an association. In the aforementioned letter (attached as
an appendix) I have found that he made an admission that
he was not seeking work during said period, but instead
was concentrating on the organizational campaign. While
it is possible that this admission was not of a fact, but was
merely an attempt to sell himself as a person willing to
sacrifice personal gains in his dedication to a project, I am
not convinced that I can accept said possibility. It is clear
not only from the letter but also from credited testimony
that Castle was engaged in an organizational campaign.' 2
While he apparently did make some phone calls to
ambulance companies in June, it is inferred that he was
aware that an application was a necessary preliminary to
hiring and it is noted that, while he was invited to file
applications, he did not do so until September. Then, when
he had filed an application with California Ambulance on
September 4, he deferred his availability to September 15
without giving explanation therefor and limited his avail-
ability for employment to only 2 weeks without giving a
reasonable explanation therefor. It is inferred from his said
conduct that he was deliberately seeking to avoid his
application being accepted, knowing that an employer
would not be interested in hiring a driver for such a limited
period.13
As to his visits to the various fire departments, it is
apparent from the record that Castle was aware that he
could not obtain immediate employment from such
employers, but would have to wait an indefinte and, as it
turned out, an extensive period for examination or receipt
of an application. In the aforesaid letter he stated that he
abandoned his organizational efforts on November 12, and
it is noted that on November 15 he started filing
applications at hospitals. Consequently, I am of the
opinion that Respondent has sustained the burden of proof
that Castle willfully avoided obtaining employment for the
period from the date of his discharge until November 15,
1974.
As to the remainder of the backpay period, while I have
some doubts that Castle exercised reasonable and diligent
efforts to find employment, I am of the opinion that
Respondent has not sustained the burden of proof that he
did not. While there were a considerable number of
employers in the Bay Area where he could have sought
employment as an ambulance driver or orderly or in
landscape work for which he was qualified, but failed to do
so, I am not of the opinion that because his efforts were
limited that that of itself is sufficient to prove Respondent's
case. The fact that there were "blind" advertisements in the
newspapers for ambulance drivers does not aid Respon-
dent's case in sustaining the burden of proof, since there is
no showing that any of the jobs advertised were offered to
Castle or that he was aware of them. Consequently, it is
concluded that Castle is entitled to backpay for the period
from November 15, 1974, to March 31, 1975.
Thus I find that he is entitled to no backpay for the
second and third quarters of 1974 and for the first half of
the fourth quarter. I also find that he is entitled to net
backpay for the last half of the fourth quarter of 1974 in the
amount of $1,270.07 and $2,267.10 for the first quarter of
1975, for a total net backpay of $3,537.17.
[Recommended Order omitted from publication.]
lo I have already commented hereinabove with respect to the job" he
sought from this company.
l N. LR. B v. Brown&d Root, Inc., supra.
i2 See, for example, the credited testimony of Curry set forth herein-
above.
13 It is noted hereinabove that Ratliff credibly testified that he did not
hire Castle for that very reason.
APPENDIX
December 3, 1974
301 Chestnut
San Carlos, Ca., 94070
Robert Hubenette,
Chairman
Emergency Medical Care
Committee
275 - 5th Street
San Francisco, Ca.
Dear Mr. Hubenette:
In addition to mailing the newsletters we discussed on
the phone I have included this summary letter which
describes my past relationship with Mercy-Peninsula
Ambulance Company. I have also provided other docu-
ments to fully disclose my past activities so any compro-
mise of EMCC can be avoided.
For the two years I worked at ambulance companies I
deplored the working conditions and the level of patient
care I witnessed. For a year and a half of that time I did
everything possible to improve the companies where I
worked, to no avail. I [sic] became apparent to me that
improvements would have to come to the companies
1075
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
externally and I, for one, am thankful there is an EMCC
and that it has accomplished all that it has.
Having decided change would only come to the ambu-
lance companies externally I began, in May 1974, actively
working on organizing a labor organization at Mercy-
Peninsula until November 12th (as described in newsletters
nos. 1, 2, & 3). While circulating at [sic] petition at work
(see ESA petition) I was illegally terminated in June for my
concerted activities. On the day of my termination I filed a
complaint with the National Labor Relations Board
alleging the illegality of my firing. On October 24, 1974, my
case (case no. 20-CA-9304) was heard for two days before
Administrative Trial Judge E. Don Wilson. The court's
decision will be rendered no later than December 31. For
all practical purposes all litigation has ended.
While the litigative processes were going on I attempted
persuading crew members at Mercy-Peninsula to form
their own representative union. When I was fired it would
have been easy for me to walk away and merely go and get a
betterjobfor myself But Ifelt an obligation to try to improve
myfellow workers' lot. [Emphasis supplied.] I wanted very
much to improve crew members' benefits, training and pay
which would have directly caused better patient care by
professionalization of the industry. All my legal and
persuasive actions at the company were to demonstrate to
crew members that legal tools existed and crew members
had an unquestioned right to organize for the purposes of
collective bargaining or other mutual aid or protection
under Taft-Hartley law.
On November 12th the NLRB conducted a secret ballot
election at Mercy-Peninsula offices to determine if Team-
sters Local 278 should or should not be deauthorized from
collecting further dues from crew members. In addition to
voting on the deauthorization issue the election was a clear
vote on my proposals. A majority voted against deauthori-
zation and my idea of a separate union. Since my efforts
were predicated on support of crew members, and they rejected
a separate union, I ended my organizing. [Emphasis
supplied.]
Now my attitude towards ambulance companies is that I
no longer have any commitment or involvement with them.
The obligation I felt to crew members to obtain benefits
they deserve in a rapidally [sic] changing emergency care
scene is ended. My professional interest in up-grading the
system, however, has not ended, which is why I want to
work for EMCC.
My training in college is in writing and in journalism, not
in medicine. If I am permitted to work for EMCC I would
consider it unconscionable to use my position to do
anything positively or negatively to ambulance companies,
and thus compromise EMCC.
In this regard, the content and tone of any news bulletin
about EMCC should be built upon the concept of solid
research and non-partisan, down-the-middle reportage of
political, planning and medical issues. At the same time the
bulletin should be lively and readable, but nothing should
compromise the publication's excellance [sic] or objectivi-
ty. Should I or anyone else work on the bulletin we would
mostly be conduits for objectification and dispersal of
information of EMCC efforts.
My training in writing and my experiences in emergency
care, in my opinion, make me specifically suited for doing a
news bulletin for EMCC and I hope I may do so. I would
particularly welcome an opportunity to discuss my ideas on
a news bulletin, or to answer any questions, with you or
others at your convenience.
Respectfully Yours,
Douglas A. Castle
Phone: 593-8833
Enclosure
1076