Neely's Car Clinic

National Labor Relations Board - Board Decisions

May 11, 1981

255 N.L.R.B. 1420 (N.L.R.B. 1981)

1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neely's Car Clinic and International Association of
Machinists and Aerospace Workers, District
190, Local Lodge No. 1492. Case 20-CA-13973
May 11, 1981
SUPPLEMENTAL DECISION AND
ORDER
On December 18, 1980, Administrative Law
Judge Jay R. Pollack issued the attached Supple-
mental Decision in this proceeding. Thereafter, Re-
spondent filed exceptions and a supporting brief
and the General Counsel filed cross-exceptions and
a brief in support of cross-exceptions and in opposi-
tion to Respondent's exceptions.
The Board has considered the record and the
Administrative Law Judge's Supplemental Deci-
sion in light of the exceptions and briefs and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge, as modified
herein.
The Administrative Law Judge found that back-
pay claimant Richard Jones was entitled to back-
pay from September 9, 1978, when he commenced
his interim employment, to June 4, 1979, when Re-
spondent offered him reinstatement,' but tolled
Jones' backpay from July 17, 1978, the date of his
discharge until September 9, 1978, on the ground
that he did not diligently seek employment during
this period. The General Counsel excepts to his
finding and we find merit to his exceptions.
Jones testified that after his discharge he sought
mechanical work at various car dealerships, service
stations, and retail stores within a 30-mile radius of
his Fairfield, California, residence. He identified 10
such employers by name and identified others by
their location or by their product or business. He
filed an application at the Grand Auto Store locat-
ed in Fairfield, but could not testify with certainty
as to other applications filed. On the day he was
discharged Jones contacted his union and asked
that his name be placed on the out-of-work list. He
visited the union hall at least twice a week to as-
certain if there were any job referrals. Jones con-
tacted the state unemployment office but was told
that the Union would be a better source of work
for a mechanic. He also checked the weekly want-
ads in the Fairfield and Vallejo newspapers and
followed up on those vacancies for which he was
qualified by calling or visiting the employer. Jones
I Respondent excepted to the Administrative Law Judge's failure to
find that its backpay liability was tolled by its October 4, 1978, offer of
reinstatement or by various representations made by the Regional Com-
pliance Officer concerning the offer. We affirm the Administrative Law
Judge's finding that the offer was insufficient to terminate Respondent's
backpay obligation. Further, we agree with him that Respondent's reli-
ance on the advice of the Regional Compliance Officer was misplaced.
See Capitol Tempirol Corporation, 243 NLRB 575, 589, fn. 59 (1979).
255 NLRB No. 188
obtained work as a musician in September 1978,
and was so employed until he received a valid rein-
statement offer from Respondent.
The Administrative Law Judge characterized
Jones' testimony as evasive, based on his inability
to recollect certain details of his search for employ-
ment, including the dates he contacted employers.
Except to the extent the Administrative Law Judge
based his characterization on the observation of
Jones' courtroom demeanor, we are of the opinion
that it is unwarranted. 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 understandable.
Moreover, a close reading of his testimony shows
it to be clear and without internal contradiction.
Relying in part on what he perceived as vagueness
in Jones' testimony, the Administrative Law Judge
found that Jones did not establish that he made
diligent efforts to obtain employment. But by re-
quiring Jones to establish the sufficiency of his
search for work the Administrative Law Judge
misapplied the burden of proof appropriate to
backpay cases. The General Counsel must show
only the gross amount of backpay due and owing
to the discriminatee. Thereafter it falls to Respond-
ent to show that gross backpay has been dimin-
ished by a willful loss of earnings. 2 On this record,
we find that Respondent has not met its burden.
Notwithstanding his limited burden, the General
Counsel presented Jones' testimony as to his efforts
to find employment. Respondent attempted to dis-
prove Jones' testimony through the testimony of
service managers employed by three employers
Jones said he contacted: Frank Nelson Motors;
Wilson-Cornelius Ford Agency; and Avery Greene
Motors. None of them remembered Jones, but the
service manager of Avery Greene Motors was not
employed there when Jones was looking for work.
Contrary to the Administrative Law Judge, we see
no inconsistency between their testimony and that
of Jones such as to undermine Jones' claim that he
sought employment with these employers. Jones
testified that he spoke with either a service man-
ager or a mechanic at each of these employers. He
was told at all three dealerships that there were no
job vacancies. Accordingly, he did not file an ap-
plication at Frank Nelson Motors or Avery Greene
Motors and did not recall filing an application at
Wilson-Cornelius Ford Agency. Neither Avery
Greene Motors nor Wilson-Cornelius Ford Agency
asked persons inquiring about employment to file
2Southern Household Products Company Inc., 203 NLRB 881 (1973);
Fibreboard Paper Products Corporation, 180 NLRB 142, 147-148 (1969).
enfd. 436 F.2d 908 (D.C. Cir. 1970).
NEELY'S CAR CLINIC 1421
applications in the absence of a current vacancy.3
The service manager of Frank Nelson Motors testi-
fied that he requested applicants to fill out an appli-
cation regardless of whether a vacancy existed.
Nonetheless, no conflict is presented by his testi-
mony or that of Jones. As noted above, Jones testi-
fied that he may have spoken to a mechanic rather
than the service manager. But even if the testimony
of the three service managers raises some doubts as
to Jones' efforts to gain employment at these three
dealerships, no such doubts are sufficient to war-
rant resolving the issue of the adequacy of the job
search against the discriminatee. Such doubt must
be resolved against the wrongdoer responsible for
the existence of uncertainty.4 Respondent's evi-
dence hardly refutes Jones' claim that he sought
employment with any of the other employers
named by him.
Respondent presented no probative evidence that
there were jobs available in the area for a mechan-
ic of Jones' skills and qualifications,5 or that Jones
rejected suitable employment. While a service sta-
tion owner offered Jones employment on a per-
centage basis, we find, in agreement with the Ad-
ministrative Law Judge, that Jones did not incur a
willful loss of employment by failing to accept this
position since there was no guarantee that he
would be given work on which to earn a commis-
sion. Contrary to Respondent, the fact that Jones
sought and obtained work as a musician after fail-
ing to find work as a mechanic" does not constitute
an unreasonable removal of himself from the ap-
propriate job market. As Respondent failed to
show that Jones neglected to make a good-faith
search for employment after his discharge, we shall
award backpay to Jones from July 17, 1978, to
September 9, 1978. Accordingly, we find that he is
3 While Avery Greene Motors hired a mechanic in August 1978, there
was no showing that a vacancy existed at the time Jones contacted that
employer. Backpay reports submitted by Jones to the Board's Regional
Office indicate that he applied for work at Avery Greene Motors on July
24, 1978. The service manager testified that a mechanic was hired by his
predecessor on August 22, 1978. There was no showing that a mechanic
of Jones' experience or qualifications would have been hired, and the
record shows that the mechanic hired, unlike Jones, had foreign car expe-
rience.
4 NHE/Freeway, Inc.. et al., 218 NLRB 259, 260 (1975), enfd. 545 F.2d
592 (7th Cir. 1976); Southern Household Products Company, Inc.. supra.
s One mechanic was hired by Frank Nelson Motors in November 1978
and one by Fairfield Toyota on August 8, 1978. There was no testimony
concerning the requirements for either position.
e Midwest Hanger Co.. and Liberty Engineering Corp., 221 NLRB 911,
923 (1975). enfd. in pertinent part 550 F.2d 1101 (8th Cir. 1977); United
Aircraft Corporation, 204 NLRB 1068 (1973). Indeed. it is incumbent on a
claimant to seek work for which he possesses extensive skills Knicker-
bocker Plastic Co., Inc., 132 NLRB 1209, 1219 (1961).
entitled to $11,025.857 rather than $7,461.858 as
found by the Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Neely's Car Clinic, Vallejo, California, its officers,
agents, successors, and assigns, shall pay to Rich-
ard Jones backpay in the amount set forth above,
together with interest computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977).9
' In so doing we do not grant Jones' claim for automobile mileage ex-
penses incurred in his search for employment in the third quarter of 1978.
Jones did not testify as to any distances he drove incident to his job
search and arrived at an estimate by dividing his monthly mileage in half
While the Board has accepted claims based on estimates, the estimates
must have a foundation in fact. W, C .bors Comtpany. 134 NLRB 1078.
1092 (1961). As there is no basis for attributing the mileage claimed to
Jones' search for work, this expense has not been proven with sufficient
particularity. Accordingly, we deny the claim. Charles T Reynold. Sr.
d/b/a Charles 7T Reynolds Box Company, 155 NLRB 384, 387 (1965).
enfd. 399 F.2d 668 (6th Cir. 1968).
" In sec. 5 of his Supplemental Decision, the Administrative Law
Judge inadvertently lists Jones' second quarter 1978 interim earnings as
$7,720. In accordance with the backpay specification, undisputed in perti-
nent part by Respondent, we shall correct this igure to read 1,720.
" See, generally. liv Plumbing & tleating Co., 138 NLRB 716 (1962).
In accordance with his dissent in Olyrpic Medical Corporation. 250
NLRB 146 (1980). Member Jenkins would aard interest on the backpay
due based on the formula set forth therein
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge: On May
17, 1979, the National Labor Relations Board issued a
Decision and Order in the above-captioned case (242
NLRB 335) finding that Neely's Car Clinic, herein called
Respondent, violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended. The Board's
Order required Respondent, inter alia, to reinstate em-
ployee Richard Jones "to his former position or, if that
position no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or other rights
and privileges," and to make him "whole for any loss of
pay he may have suffered by reason of the discrimination
against him."
A dispute having arisen over the amount of backpay
due Jones under the Board's Order, on February 11,
1980, the parties entered into a stipulation providing,
inter alia, that Respondent waive its right to seek review
of the Board's Order and that the amount of backpay
due to Jones be determined by a hearing. On May 28,
1980, the Acting Regional Director for Region 20 of the
Board issued a backpay specification alleging the amount
of backpay due Jones under the Board's Order. Respond-
ent filed a timely answer, which was further amended at
the hearing. The matter was heard by me in Vallejo,
California, on August 26 and September 18, 1980.
The principal questions presented for decision are:
NEELY'S CAR CLINIC
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Whether Respondent's backpay liability toward
Jones terminated in October 1978 when it offered Jones
reinstatement to his former job.
(2) Whether Respondent's backpay liability toward
Jones terminated in November 1978 or March 1979
when the Compliance Officer for Region 20 notified Re-
spondent that its October 1978 offer of reinstatement was
valid.
(3) Whether Respondent's backpay liability toward
Jones terminated in February 1979 when it alleges that
Jones would have otherwise been laid off had he not
been discriminatorily discharged.
(4) Whether Jones should be denied backpay because
he allegedly failed to mitigate damages.
After resolution of these principal issues, there remains
the computation of backpay and the resolution of some
subsidiary issues necessary thereto.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs, I make the following:
FINDINGS AND CONCLUSIONS
I. THE OFFER OF REINSTATEMENT
Respondent contends that the backpay period should
be terminated on October 4, 1978, when its attorney,
Mark Jordan, sent the following letter to discriminatee
Jones:
Dear Mr. Jones:
We are the representative of the firm named
above [Neely's Car Clinic] and have been author-
ized by Mr. Jim Neely to offer you immediate and
unconditional reinstatement to your former position
without reduction in your hourly rate of pay or any
other term or condition of employment.
You are expected to timely report for work on or
before five (5) business days from receipt of this
letter. Should you decline to accept this offer of re-
instatement, please inform Mr. Jim Neely promptly.
His telephone number is (707) 644-5566.
Should you fail to respond, it must be presumed
you are not interested in working at Neely's Car
Clinic.
Sincerely,
/s/ Mark D. Jordan
Attorney
Jones testified that he received the letter from Jordan
on October 6. According to Jones, he went to the
Board's Regional Office and met with Robert Buffin, the
Board attorney who was handling the underlying unfair
labor practice case. During this meeting, Jones showed
Buffin the reinstatement offer and said that he needed
more time to report to work because he had promised to
give his present employer 2 weeks' notice before leaving.
Jones requested that Buffin contact Jordan and deter-
mine whether Respondent would agree to give Jones
more time. According to Jones, Buffin, in Jones' pres-
ence, called Jordan at his office and reported back that
Jordan would have to talk with Jim Neely, one of Re-
spondent's owners, to ascertain whether Neely would
agree to give Jones more time to accept the offer. Both
Buffin and Jordan deny such a conversation took place.
In fact, Jordan was in court and not in his office on the
date of the alleged conversation. Thus, I do not credit
Jones' version of these events.
According to the testimony of Jordan, on October 23'
Buffin called and informed him of his intent to amend
the complaint at the unfair labor practice hearing. Buffin
then told Jordan that the Regional Office had taken the
position that Respondent's reinstatement offer was inval-
id because it did not give Jones sufficient time to quit his
interim employment in order to report for work with
Respondent. Buffin stated that discriminatees were enti-
tled to a 2-week period of time in order to put their af-
fairs in order. Buffin advised Jordan that Jones would
report for work on October 30, 1978.2 Jordan, upset
with the timing of Buffin's amendment to the complaint,
said nothing with respect to the offer of reinstatement.
Based on his understanding of the conversation, Buffin
did not tell Jones to return to work for Respondent.
Based on his understanding of the conversation, Jordan
instructed Neely that he had to hold Jones' job open
until October 30. Neely reluctantly agreed to hold a po-
sition open for Jones. However, Jones did not report to
work for Respondent on October 30. Thereafter, on No-
vember 7, Jordan mentioned to Buffin that Respondent
had expected Jones to report for work on October 30.
Buffin replied that Jordan had never notified him to tell
Jones to report for work and, therefore, Buffin had not
told Jones to do so. Buffin suggested that Jordan come
to his office to clear up the matter but Jordan refused to
do so.
At the time of the disputed reinstatement offer, Jones
was working as a musician at a nightclub in Vallejo.
Jones began working at the club in September 1978. Ac-
cording to Jones, he agreed as a condition of employ-
ment that, if he intended to quit that job, he would give
the club at least 2 weeks' notice. Jones testified that he
signed an agreement to that effect.
As discussed above, Respondent contends that its
backpay liability was terminated by its letter of October
4, 1978. The General Counsel, on the other hand, con-
tends that the offer was invalid because it did not allow
Jones a reasonable amount of time to report for work.
It is established Board law that a discriminatee, upon
receiving an offer of reinstatement, has a fundamental
right to a reasonable time to consider whether to return.
Browning Industries, Venetian Marble of Kentucky, 221
NLRB 949, 952 (1975); Penco Enterprises, Inc., et al., 216
NLRB 734 (1975). What constitutes a reasonable period
of time depends on the circumstances of the particular
case. Clearly, a discriminatee should be given enough
time to give his interim employer reasonable notice.
Seminole Asphalt Refining, Inc., 225 NRLB 1202, 1203
(1976), citing Thermoid Company, 90 NLRB 614, 616
(1950). Under these circumstances, I find that Respond-
ent's offer did not provide Jones with sufficient time to
Buffin placed this conversation on October 6. That date appears
likely based upon the October 30 reporting date.
2 According to Buffin, he said that Jones was willing to report to work
on October 30.
NEELY'S CAR CLINIC 1423
give his new employer reasonable notice. Accordingly, I
find that the October 4 letter did not of itself terminate
Respondent's backpay liability.
The issue remaining to be resolved is whether Re-
spondent's backpay liability was terminated by its exten-
sion of Jones' reporting date to October 30, 1978. For
the following reasons I find that Respondent's liability
was not terminated. In Harrah's Club, 158 NLRB 758,
759 (1966), the Board held that a discriminatee is not re-
quired to respond to an invalid offer of reinstatement
which does not offer him sufficient time to report to
work. To hold otherwise would place an undue and un-
warranted burden upon the discriminatee to make a
counterproposal to such an offer. Here, Jones did more
than he was required to do. He communicated to Re-
spondent, through the Board agent, the deficiency in its
reinstatement offer. The burden was on respondent to
communicate any modification of its offer or any new
offer to the discriminatee. As it was Respondent's burden
to communicate its intention to hold a position open for
Jones until October 30, it cannot rely on the failure of
communication between Jordan and Buffin to terminate
its liability. Even assuming, arguendo, that Buffin was
acting on behalf of Jones, Jordan made no unequivocal
offer to Buffin upon which Jones could rely to quit his
employment. Neely's reluctant concession to Jordan, that
he would hold a position for Jones until October 30, was
never communicated to either Buffin on Jones. Accord-
ingly, I find that Respondent's backpay liability toward
Jones was not terminated by its reinstatement offer of
October 4, 1978.
11. THE STATEMENTS OF THE COMPLIANCE OFFICER
Respondent argues that its backpay liability should be
terminated as of November 25, 1978, or, in the alterna-
tive, as of March 19, 1979, based on statements of the
compliance officer for Region 20 that Respondent's rein-
statement offer of October 4, 1978, was valid. In support
of this contention, David Comb, a labor consultant rep-
resenting Respondent, testified that beginning on Novem-
ber 7, 1978, he had several conversations with Shirley
Bingham, the Regional Compliance Officer, concerning
the validity of Jordan's October 4 letter to Jones. Comb
was advised by Bingham on November 25, 26, or 27,
1978, that he had "nothing to worry about" and that the
liability had been effectively tolled. Comb further testi-
fied that, based on that advice, he determined that an un-
conditional offer of reinstatement was not necessary to
terminate Respondent's backpay liability toward Jones.
However, on November 28, 1978, Bingham wrote Comb
stating that, if Jones' version of the events surrounding
the reinstatement offer was true, "[Y]our client's rein-
statement offer cannot be deemed to be valid."
On February 28, 1979, Administrative Law Judge
Earldean V. S. Robbins issued her Decision in the under-
lying unfair labor practice case finding, inter alia, that
Respondent had discharged Jones in violation of Section
8(a)(4) and (1) of the Act. On March 8, 1979, Jordan, on
behalf of Respondent, notified the Board's Executive
Secretary of its intention to file exceptions to the Deci-
sion of the Administrative Law Judge. Subsequently, on
March 26, 1979, Jordan notified the Executive Secretary
that Respondent would not file exceptions to the Deci-
sion. Comb testified that the decision not to file excep-
tions was based upon a letter from Bingham dated March
19, 1979, stating that the October 4 offer to Jones was
"acceptable on its face." However, on May 11, 1979,
Bingham wrote Comb stating, inter alia, that it was the
"Region's position that Mr. Jones has not received a
valid reinstatement offer." On October 30, 1979,
Bingham again wrote to Comb indicating that it was her
position that Respondent's backpay liability to Jones ter-
minated on October 4, 1979. However, in this letter
Bingham stated, "[m]y position regarding Mr. Jones'
backpay period is mine, alone, and has not been dis-
cussed with the Regional Director." Apparently, on No-
vember 6, 1979, the Regional Director overruled
Bingham and on November 15, 1979, Jordan sought
leave to file exceptions to the Decision of the Adminis-
trative Law Judge. On November 20, 1979, the Board's
Associate Executive Secretary notified Jordan that the
time for filing exceptions had long since passed and,
therefore, Respondent's request had to be denied.
Based upon the uncontradicted facts above, Respond-
ent argues that it relied to its detriment on the represen-
tations of the Compliance Officer and, therefore, that its
backpay liability should be tolled. I reject that argument
for the following reasons. First, 3 days after orally telling
Comb that Respondent's offer was valid, Bingham noti-
fied Respondent, by letter, that "your client's reinstate-
ment offer cannot be deemed to be valid." Thereafter,
Respondent did not make another reinstatement offer to
Jones. Such conduct cannot be attributed to the Compli-
ance Officer. Secondly, Comb and Jordan knew, or
should have known, that Bingham was acting under the
auspices of the Regional Director and that Bingham's
opinions were reviewable by the Regional Director. The
Regional Director's actions in compliance matters are re-
viewable by the Board. See Ace Beverage Company, 250
NLRB 646 (1980). Thus, under Ace Beverage, the Com-
pliance Officer's opinion as to the subject offer of rein-
statement, even if adopted by the Regional Director, was
not binding upon the Charging Party, who could seek
review by the Board. Finally, it would be inequitable to
punish Jones for the shortcomings of a Board agent.
McCann Steel Company. Inc. v. N.LR.B., 570 F.2d 652,
654 (6th Cir. 1978). The consequences of any error by
the Board's Regional Office in processing a backpay
claim should not be placed upon the wronged employee
to the benefit of the wrongdoing employer. N.L.R.B. v.
J. H. Rutter-Rex Manufacturing Co., Inc., 396 U.S. 258,
265 (1969), rehearing denied 397 U.S. 929 (1970).
III. THE LAYOFF OF FEBRUARY 1979
Respondent contends that the backpay period for
Jones should be terminated as of February 7, 1979, the
date on which it alleges Jones would have otherwise
been laid off had he not been unlawfully discharged.
Respondent is engaged in the retail and wholesale
repair and service of automobiles. For a number of years
prior to January 1979, Respondent had a contract with
the United States Navy for the servicing of automobiles
and trucks. The last contract between Respondent and
NEELY'S CAR CLINIC 423
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Navy expired on December 31, 1978. However,
there was sufficient work remaining from the contract to
keep Respondent's work force busy during the month of
January 1979. As a result of the loss of the Navy con-
tract, Respondent experienced a substantial drop in its
income and a substantial reduction in the number of
hours of work for its employees. Thus, a layoff of one
employee was necessitated. On February 7, 1979, jour-
neyman mechanic Kenneth Sidie was laid off.3 Sidie was
recalled on March 12 but was subsequently laid off on
March 19.
Prior to Jones' discharge, he was working primarily
on Navy vehicles. Apparently, based on this fact, Re-
spondent argues that Jones would have been discharged
rather than Sidie. However, no specific testimony was
offered on this point.
At the time of Jones' discharge, two other mechanics
also worked primarily on Navy vehicles. After the dis-
charge of Jones, Sidie, who had been hired prior to
Jones' termination, was assigned to work primarily on
Navy vehicles. As of the February layoff, Respondent
employed six journeymen mechanics and one apprentice.
Had Jones remained in Respondent's employ, he would
have been the senior journeyman mechanic. Sidie, on the
other hand, ranked fourth among the journeymen me-
chanics in terms of seniority. In selecting Sidie for layoff,
Respondent compared him to the two mechanics junior
to Sidie.
Carl Van Valkinburg, junior to Sidie, was retained on
the basis that he was Respondent's sole transmission spe-
cialist and concededly highly qualified. Thus, Respond-
ent was forced to choose between Sidie and mechanic
Randolph Gelpi. Gelpi was selected for retention be-
cause he was a front-end specialist and Respondent's
only mechanic with a license issued by the State of Cali-
fornia in lamp and brake repair. Thus, with no compari-
son to the employees more senior to Sidie, Respondent
selected Sidie for layoff on the basis of the relative abili-
ties between Sidie, Van Valkinburg, and Gelpi in light of
the type of work that continued to be available to Re-
spondent. 4
If Respondent had continued Jones in its employ, there
is no evidence from which to conclude it would have
laid him off instead of Sidie. Jones had more seniority
than Sidie.s There is no evidence regarding the relative
abilities of Jones and Sidie. James Neely's testimony that
Jones was not as qualified as Van Valkinburg, the auto-
matic transmission specialist, is credited. However,
3 Sidie's layoff was the subject of the proceedings in Neely's Car Clinic,
249 NLRB 471 (1980), in which the Board affirmed the findings of Ad-
ministrative Law Judge James T. Rasbury that the layoff of Sidie was
not unlawfully motivated in violation of Sec. 8(a)(3) of the Act.
4Id. at 473-474.
5 The collective-bargaining agreement between Respondent and the
Union which expired on May 31, 1978. provided, inter alia, that, "when a
reduction in the work force is necessary due to a lack of work, and when
qualifications and abilities of employees are equal, the principle of senior-
ity shall be followed." Although the contract had expired at the time of
the layoff, there is no evidence that Respondent has ever modified the
seniority provisions contained therein. Further, there is a sound basis in
the business practice of considering seniority in the selection of employ-
ees for layoff or retention. Pacific Soulhwest Airliles, 201 NLRB 647, 655-
656 (1973); Jack G. Bunrcher d/b/a The Buncher Company, 164 NLRB
340, 342 (1967).
Neely's testimony regarding the relative abilities of Jones
and three other mechanics who were retained (Henry,
Flores, and Gelpi) was vague and unconvincing. No tes-
timony regarding the relative ability of Steve Anderson,
another mechanic who was retained, was offered.
Respondent had the burden of proving that Jones
would have been laid off in February 1979 had he still
been in its employ. See, e.g., J. L. Holtzendorff Detective
Agency, Inc., 206 NLRB 483, 484 (1973). Mastro Plastics
Corporation and French-American Reeds Manufacturing
Co., Inc., 136 NLRB 1342, 1346 (1962), enfd. 354 F.2d
170 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966). As
discussed above, I find that Respondent has failed to
meet its burden of proof.
IV. JONES' DUTY TO MITIGATE DAMAGES
As indicated above, Respondent, contrary to the Gen-
eral Counsel, asserts that Jones' backpay should be re-
duced because he did not make a good-faith effort to
seek employment and thereby incurred a willful loss of
earnings.
The following legal principles were recently reaf-
firmed by the Board in Highview, Incorporated, 250
NLRB 549, 550-551 (1980), citing Aircraft and Helicopter
Leasing and Sales, Inc., 227 NLRB 644, 646 (1976):
An employer may mitigate his backpay by
showing that a discriminatee "wilfully incurred"
loss by "clearly unjustifiable refusal to take desir-
able new employment" (Phelps-Dodge Corp. 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 em-
ployee success in obtaining interim employment
or a low interim earning; rather, the employer
must affirmatively demonstrate that the employee
"neglected to make reasonable efforts to find in-
terim work." N.L.R.B. v. Miami Coca-Cola Bot-
tling Co., 360 F.2d 569, 575-576 (5th Cir. 1966).
Moreover, although a discriminatee must make
"reasonable efforts to mitigate [his] loss of
income . . . [he] is held . . . only to reasonable
assertion in this regard, not the highest standards
of diligence." N.L.R.B. v. Arduini Mfg. Co., 394
F.2d 420, 422-423 (Ist Cir. 1968). Success is not
the measure of the sufficiency of the discrimina-
tees' search for interim employment; the law
"only requires an honest good-faith effort."
N.L.R.B. v. Cashman Auto Co., 223 F.2d 832, 836
(Ist Cir. 1955). And in determining the reason-
ableness of this effort, the employee's skills and
qualifications, his age, and the labor conditions in
the area are factors to be considered. Mastro Plas-
tics 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 the em-
ployee had diligently sought other employment
NEELY'S CAR CLINIC 1425
during the entire backpay period. Saginaw Aggre-
gates, Inc., 198 NLRB 598 (1972); Nickey Chevrolet
Sales, Inc., 195 NLRB 395, 398 (1972).
It is also well established that any uncertainty in
the evidence is to be resolved against the Respond-
ent as the wrongdoer. N.L.R.B. v. Miami Coca-Cola
Bottling Company, 360 F.2d 569 (5th Cir. 1966);
Southern Household Products Company, Inc., 203
NLRB 881 (1973).
Jones testified that shortly after his discharge he vis-
ited several automobile dealers on the recommendation
of Union Business Agent Bud Willis. 6 However, Jones
was unsuccessful in finding any dealers with job open-
ings. Jones further testified that he visited the state un-
employment office about obtaining work as a mechanic
but was told that the Union would be a better source of
job information. Jones continued to visit the Union's
office two or three times a week from July 17, 1978, the
date of his discharge, until September 1978, when he ac-
cepted employment as a musician.
Jones testified that he made personal visits to auto-
motive repair facilities within a 30-mile radius of his
home. Based upon an estimate that one-half of the driv-
ing mileage was due to his search for work, Jones
claimed that he drove between 600 and 700 miles in July
and 900 and 1,000 miles in August 1978 looking for
work. Jones could not recall any specifics as to his
search for work and was a very evasive witness.
During the backpay period Jones submitted reports to
the Regional Office's compliance section which showed,
inter alia, his attempts to find work. Jones' report for the
month of July 1978 showed, inter alia, that he visited
four car dealers and one service station on July 24, 1978.
The report filed for the month of August 1978 showed,
inter alia, that Jones visited five potential employers
during August 2-5, 1978. When questioned about the
specifics of these visits, Jones stated that he did not re-
member. However, Jones testified that it was his practice
to seek out the service manager and inquire as to wheth-
er there were job openings. Jones further testified that
the dealers were not hiring and, therefore, not accepting
job applications.
Respondent presented evidence from the service man-
agers of three automobile dealerships listed by Jones in
his backpay reports. The credited testimony of these
three disinterested witnesses establishes that they were
taking job applications from all applicants during the
time period of Jones' alleged visits to their businesses.
Further, two of these businesses hired mechanics during
the same time period and the third hired an apprentice
mechanic in November 1978. While there is no reason to
infer that Jones would have been hired if he had applied,
it cannot be doubted that Jones did not seek work at
these businesses. Based on Jones' demeanor on the stand,
6 Willis was called as a witness by the General Counsel hut did not
testify as to this issue.
his impeachment by disinterested witnesses, and the lack
of corroboration for his testimony, I do not credit any of
Jones' self-serving testimony regarding his search for
work. 7
The only credible evidence of a search for work is the
testimony of Dale Gibb, owner of Gibb's Union 76 Serv-
ice Station in Vallejo. Gibb testified that Jones visited his
station, seeking employment. Gibb told Jones that he had
insufficient work for another mechanic but offered Jones
the opportunity to work on a commission basis. Jones
would work on an "as needed" basis and would receive
a percentage of the labor costs on the jobs which he per-
formed for Gibb. However, Gibb could not guarantee
Jones that there would be any work under this arrange-
ment. Jones did not accept Gibb's offer.
I find that Jones was not required to accept such an
offer, which would have required a commitment of his
time without knowing whether he would receive com-
pensation. However, I cannot find that this incident
alone supports the contention that Jones made a diligent
search for work. Viewing the record as a whole, I
cannot find that Jones had diligently sought other em-
ployment during the entire backpay period. Accordingly,
I would therefore toll backpay during the period from
the date of Jones' discharge until he commenced work-
ing in September 1978.8
V. COMPUTATION OF BACKPAY
Jones' gross backpay has been calculated based on his
hourly wage of $9.90 per hour for a 40-hour week.9 I
have offset from interim earnings payments made by
Jones for union dues required as a condition of his inter-
im employment. [Computations for backpay omitted
from publication.]
Total Backpay Principal $7,461.85
[Recommended Order omitted from publication.]
I As the United States Court of Appeals for the Sixth Circuit stated in
DeLorean Cadillac Inc. v. N.L.R.B., 619 F.2d 554. 555 (6th Cir. 1980):
"IT]he uncorroborated testimony of a party who stands to benefit from
an award of reinstatement or backpay should be subject to strict scruti-
ny."
Respondent contends that Jones should he completely disqualified
from backpay because of his lack of credibility. I do not believe such a
penalty is justified. Cf. Flite Chiefj Inc.. et al., 246 NLRB 407 (1979)
(where the Board did not penalize a discriminatee by disallowing back-
pay even though he had concealed interim earnings from the Board's Re-
gional Office). The proper remedy for the failure to seek work is to
assume that any other employment would have yielded earnings equal to
what Jones would have earned working for Respondent. See. e.g., Broth-
erhood of Painters. Decorators d Paperhangers of America. Carpet. Lino-
leum and Resilient Tile Layers Local Union No. 419. AFL. et al. (Spoon
Tile Company), 117 NLRB 1596, 1598, fIn. 7 (1957); Southeastern Envelope
Co.. Inc. & Southeastern Expandielope. Inc. (Diversified .4Asembly. Inc.),
246 NLRB 423 (1979).
9 As discussed above, backpay has been tolled until Jones commenced
working in September 1978.
NEELYS CAR CLINIC
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