Midwest Motel Management Corp.

National Labor Relations Board - Board Decisions

Jan 31, 1986

278 N.L.R.B. 421 (N.L.R.B. 1986)

MIDWEST MOTEL MANAGEMENT 421
Midwest Motel Management Corp . of Birmingham
and Curtis L. Lewis Jr. Case 10-CA-17099
31 January 1986
SUPPLEMENTAL DECISION AND
ORDER
By MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 3 July 1985 Administrative Law Judge Phil-
lip P. McLeod issued the attached supplemental de-
cision. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
brief and has decided to affirm the judge' s rulings,
findings,' and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the. administrative law
judge and orders that the Respondent, Midwest
Motel Corp. of Birmingham, Birmingham, Ala-
bama, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Decision and Order' finding, inter alia, that Respondent
unlawfully discharged Curtis L. Lewis Jr. in violation of
Section 8(a)(1) and (3) of the National Labor Relations
Act. To remedy this unfair labor practice, the Board di-
rected Respondent to reinstate Lewis and to make him
whole for any loss of pay or other benefits he may' have
suffered by reason of the discrimination against him. The
parties being unable to agree on the amount of backpay
due under the terms of the Board's Decision and Order,
the Regional Director for Region 10 issued a backpay
specification dated 29 March 1985. Respondent filed an
answer admitting certain allegations and denying others.
A trial was held before me on 1 May 1985, in Birming-
ham, Alabama. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce evidence. At the trial, the General Counsel
amended the backpay specification to include certain ad-
ditional interim earnings which had not been a part of
the earlier specification. Respondent amended its answer
to the backpay specification to admit that the backpay
period is appropriately defined in the original backpay
specification. At the close of the trial, both General
Counsel and Respondent presented oral argument. Addi-
tionally, following the close of the trial, the General
Counsel filed a timely brief with me. The oral arguments
of both parties as well as the brief filed by the General
Counsel have been considered in reaching my decision
herein.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
1 The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 The Respondent contends that at the hearing the judge erroneously
concluded that the amount of Lewis' interim earnings was not at issue
and prevented it from eliciting evidence on that question. Contrary to the
judge, the Respondent 's general dental of the backpay specification con-
cerning the amount of interim earnings is sufficient to raise that issue.
Ricks Construction Co., 272 NLRB 424 (1984); Dews Construction Corp.,
246 NLRB 945 (1979). We, however, find no prejudice from the judge's
rulings at the hearing or his discussion of this issue in his decision. Both
the judge and the Respondent 's counsel asked Lewis whether there were
any other interim earnings which Lewis denied, and the Respondent did
not attempt to present any additional evidence on this issue or to make an
offer of proof. Accordingly, we adopt the judge's findings with respect
to interim earnings.
Virginia L. Jordan, Esq., for the General Counsel.
Roger Lee, Esq., of Birmingham, Alabama, for the Re-
spondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PHILIP P. McLEOD, Administrative Law Judge. On 7
May 1982, the National Labor Relations Board issued a
I. POSITIONS OF THE PARTIES
In its answer to the backpay specification and at the
trial herein, Respondent has not taken issue with, and
does not contest, the formula used by the General Coun-
sel to determine gross backpay. Indeed, at the opening of
the trial, both parties agreed that the only issue in this
proceeding is whether Lewis made a sufficient search for
work during some of the quarters for which backpay is
claimed.
II. APPLICABLE LEGAL PRINCIPLES
The legal principles applicable to this case are clear.
The Supreme Court stated long ago in Phelps Dodge
Corp. v. NLRB, 313-U.S. 177, 197 (1941):
- Making the workers whole for losses suffered on
account of an unfair labor practice is part of the
vindication of the public policy which the Board
enforces.
A Board backpay order, the Supreme Court has stated,
"should 'stand unless it can be shown that it is a patent
attempt to achieve ends other than those which can be
fairly said to effectuate the policies of the Act." NLRB
v. Seven-Up Bottling Co., 344 U.S. 344, 346, 347 (1953).
The Supreme Court has also recognized that "the com-
1 261 NLRB 719 (1982).
278 NLRB No. 60
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
putation of the amount due may not be a simple matter.
... Congress made the relation of remedy to policy an
administrative matter, subject to limited judicial review,
and chose the Board as its agent for the purpose." Nath-
anson V. NLRB, 344 U.S. 25, 29-30 (1952). In exercising
the broad discretion granted to it, the Board, with court
approval, has consistently applied the principle stated in
New. England Tank Industries, 147 NLRB 598, 601
(1964):
While the general burden is on the General Counsel
to establish for each discriminatee the loss of pay
which has resulted from Respondent's established
discriminatory conduct, i.e., the gross backpay over
the backpay period, the burden of proof is on Re-
spondent to show diminution of that amount wheth-
er such diminution results from- the claimant's will-
ful `loss of earnings, or from the unavailability of a
job at Respondent's operation for some reason un-
connected with the discrimination.2
Thus, it is the burden of the General Counsel to establish
the reasonableness and accuracy of its calculation of the
gross backpay amount. That is not an issue in this case.
The burden of proof with respect to its affirmative de-
fenses rests on Respondent as it was the original wrong-
doer. Concerning Respondent's burden to demonstrate
affirmatively that a discriminatee has failed to make a
reasonable effort to find interim employment, it is well
established that the discriminatee is held only to a rea-
sonable exertion in this regard and not to the standard of
highest diligence. Further, success is not a measure of
the sufficiency of the discriminatee's search for interim
employment, for the law requires only an honest and
good-faith effort. In determining the reasonableness of
this effort, the discriminatee's skills, experience, qualifica-
tions, and age, and the labor conditions in the area are
factors to be considered. Laredo Packing Co., 271 NLRB
553 (1983); Pipeline Local No. 38 (Hancock-Northwest),
268 NLRB 167 (1983).
III. THE EVIDENCE
Curtis L. Lewis Jr. was the only witness who testified
in this proceeding. Lewis testified credibly that on 15
June 1981, 3 days after his illegal discharge, he registered
for work with the Alabama State Employment Service.
On the application, Lewis listed his skills as general
maintenance, appliance repair, electrical helper, carpen-
ter helper, and hotel-motel-apartment complex repair.
Lewis stated that he would be willing to take any job
that became available. Lewis testified without contradic-
tion that he continued to contact the state employment
service two to three times a week until 31 December
1982, the end of his backpay period.
Lewis testified credibly that in addition to checking
regularly with the Alabama State Employment Service,
Lewis checked help wanted advertisements in the
Wednesday and Sunday newspapers, talked to friends
and relatives about employment possibilities, checked
with former employers, and went to various hotels,
motels, apartment complexes, and restaurants seeking
work.
Apparently in order to continue drawing unemploy-
ment compensation, Lewis was instructed by someone at
the Alabama State Employment Service to keep a record
of his search for work. Forms were provided to Lewis
by that office for that purpose. At the trial herein, Lewis
produced records which he maintained reflecting his
search for work during the 5-month period from June
through October 1981 and the 3-month period from
March through May 1982. The main thrust of Respond-
ent's argument is that records are not available for the
entire backpay period documenting Lewis' entire search
for work. From this, Respondent would have me con-
clude that during the periods for which there are no doc-
uments, Lewis made no search for work. I reject Re-
spondent's argument for the following reasons.
The Board does not require a discriminatee to docu-
ment his search for work. Nevertheless, Lewis testified
credibly that various records which he kept contempora-
neous with his_ search for work were destroyed in a fire
at his home. Lewis explained that during his search for
work, he frequently made notes of the employers and the
dates of contact with them on envelopes and other scrap
pieces of paper. These he assembled from time to time,
and the information was then transferred to the forms
provided him by the Alabama State Employment Serv-
ice. I credit Lewis that some of these forms and notes
containing the names and dates of other employers
whom he contacted were destroyed in the fire at his
house.
Respondent would have me discredit Lewis' uncontra-
dicted testimony regarding the destruction of these forms
and notes based on another part of Lewis' testimony
which at first blush appears exaggerated. At one point,
Lewis testified that during the backpay period which
lasted approximately 18 months, he sought work with as
many as 3,000 employers. There is little doubt that Lewis
exaggerated the actual number. Looking at Lewis' testi-
mony, however, it becomes clear that Lewis was exag-
gerating for purposes of comparison only. The exaggera-
tion is so obvious that I do not believe for one moment
Lewis ever intended to be taken literally. Respondent's
counsel asked Lewis if his best estimate of the number of
places where he sought work was 10 or 110 or 3010.
Lewis responded, "It was the last figure." The following
exchange then took place between Lewis and Respond-
ent's counsel:
Q. Three thousand places?
A. That's-3
Q. Could it have been 15,000 places?
A. I wasn't keeping, you know, actual numbers.
Q. I know you don't have an actual log of these
places, but-4
A. But I went to places that I saw for a job;
that's the places I went to.
Q. But you think it's closer to 3000 than 10?
A. It felt that way. [Emphasis added.]
3 The witness is interrupted.
z Citations within quote omitted for sake of brevity. 4 Counsel is interrupted.
MIDWEST MOTEL MANAGEMENT 423
It is clear from his testimony that Lewis does not claim
to have sought work with 3000 employers. Rather,
Lewis is saying that as compared to 10 it "felt" more like
3000. In other words, Lewis was simply asserting in an
informal way that he was continually searching for
work. Lewis' position is supported rather than under-
mined by the available documents, which evidence a
very substantial search for work. 'Indeed, for the 8
months for which records are available, Lewis contacted
approximately 50 separate employers in his search for
work. He reported back a second, and even a third, time
to several of these employers. Moreover, Lewis' testimo-
ny is uncontradicted and straightforward that he contin-
ued to contact the Alabama State Employment Service
approximately twice a week during the entire backpay
period.
Based on my observation of Lewis and a careful analy-
sis of the record as a whole, I find that Lewis made a
sincere and reasonable effort under the circumstances to
find interim employment to mitigate loss of income re-
sulting from his discriminatory discharge by Respondent.
Respondent has failed to sustain its burden of proving
that Lewis incurred a willful loss of earnings. Accord-
ingly, I find that backpay is due Lewis in the amount
claimed by General Counsel.
CONCLUSIONS OF LAW
1. The gross backpay formula used by the General
Counsel for Curtis L. Lewis Jr. is reasonable and appro-
priate.
2. Respondent, Midwest Motel Management Corp. of
Birmingham, has failed to establish that Curtis L. Lewis
Jr. incurred a willful loss of earnings during his backpay
period.
On the foregoing findings of fact and conclusions of
law, I issue the following recommended5
ORDER
The Respondent, Midwest Motel Management Corp.
of Birmingham, Birmingham, Alabama, its officers,
agents, successors, and assigns, shall satisfy its obligation
to make whole Curtis L. Lewis Jr. by payment to him of
$12,181, plus interest thereon accrued to the date of pay-
ment computed in the mariner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977), minus any tax withholdings
required by Federal and state laws.
5 If no exceptions are filed as provided in Sec 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses