Newport News Shipbuilding & Dry Dock Co.

National Labor Relations Board - Board Decisions

Mar 19, 1986

278 N.L.R.B. 1030 (N.L.R.B. 1986)

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newport News Shipbuilding & Dry Dock Company
and United Steelworkers of America, AFL-
CIO-CLC. Cases 5-CA-11338 through -5-CA-
11342, 5-CA-11344 through 5-CA-11348, 5-
CA-11350 through 5-CA-11353, 5-CA-11356,
5-CA-11358; 5-CA-11360 through 5-CA-
11366, 5-CA-11410; 5-CA-,11433; and 5-CA-
11435; 5-CA-11480
19 March 1986
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 24 July 1985 Administrative Law Judge
Claude R. Wolfe issued the attached supplemental
decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed a
reply brief.
The National Labor Relatios Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and record in light of the exceptions and briefs
and has decided to affirm the judge's rulings, find-
ings,' and conclusions and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Newport
News Shipbuilding & Dry Dock Company, New-
port News, Virginia, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order.
i We adopt the judge's finding that claimant Price's backpay should
not be reduced based on her discharge for cause from various interim
employment . In so doing, we do not agree with the judge's rationale to
the extent that he finds that a discharge for cause from interim employ-
ment cannot be a basis for reducing backpay We conclude, however,
that the Respondent has not established on the facts here that the con-
duct for which Price was discharged from interim employment was such
willful or gross misconduct as to constitute a willful loss of earnings See
generally Sylvan Manor Health Care Center, 270 NLRB 72, 75 ( 1984), and
cases cited therein
Mark Carissimi, Esq., for the General Counsel.
Willis J. Goldsmith, Esq., for the Respondent.
SUPPLEMENTAL DECISION
CLAUDE R. WOLFE, Administrative Law Judge. This
backpay proceeding was litigated before me at Newport
News, Virginia, on 22 April 1985.
On the entire record, the demeanor of the witnesses as
they testified before me, and after considering the able
posttrial briefs of the parties, I make the following
FINDINGS OF FACT AND CONCLUSIONS
1. HISTORY OF THE CASE AND SOME PRELIMINARY
FINDINGS
On 8 December 1982 the National Labor Relations
Board (the Board) issued its Decision and Order' direct-
ing Newport News Shipbuilding & Dry Dock Company
(Respondent) to make various discriminatees, including
Frances E. Price and David R. Davis, whole for their
losses resulting from Respondent's unfair labor practices.
The Court of Appeals for the Fourth Circuit entered its
amended judgment on 17 September 19842 enforcing the
backpay provisions of the Board's Order with regard to
Frances E. Price and others, and ordering payment to
David R. Davis and others pursuant to a settlement be-
tween Respondent and the United Steelworkers of
America, AFL-CIO-CLC.
The parties were unable to agree to the appropriate
amount of backpay for Davis and Price. Accordingly,
the Regional Director for Region 5 of the National
Labor Relations Board issued a backpay specification
and notice of hearing on 21 February 1985 with respect
to Davis and Price. The Respondent contends that the
computation of backpay due, which is set out in the
specification, as amended at hearing, is not accurate be-
cause the claimants failed to mitigate their losses by
making a reasonable search for interim employment.
Respondent further contends that Frances Price unjus-
tifiably quit her interim employment and her backpay
should therefore be reduced and that David Davis has
not complied with the terms of the settlement agreement
and has forfeited backpay by failing to turn over his
income tax returns for the years 1979, 1980, and 1982.
II. THE EVIDENCE AND DISCUSSION
On discharge Davis registered with the Virginia Em-
ployment Commission (VEC), and thereafter visited that
agency weekly in search of employment. Registration
with a Government employment office is prima facie evi-
dence of a reasonable search for interim employment, 3
As part of his employment search he read the employ-
ment advertisements in both the Norfolk and Newport
newspapers on a daily basis; called to ascertain if the ad-
vertised vacancies had been filled; and, if they had not,
personally visited the advertiser and filed an application.
He also applied to 47 different companies, some more
than twice, for a total of 64 applications in addition to
the weekly VEC visits during the backpay period. He at-
tempted to find work as a sheetmetal worker, the job he
held with Respondent but, finding none, also applied for
employment as an assembly worker, brakeman, carpen-
ter, drywall mechanic, laborer, maintenance worker, pro-
duction worker, salesman, sander, stocker, and truck
loader. These various companies were located in New-
port News, Norfolk, Hampton, Tad, and Williamsburg,
Virginia, and Rockville, Maryland. As a result of his job
applications, Davis was employed by six different com-
' Newport News Shipbuilding, 265 NLRB 716 (1982)
a Newport News Shipbuilding v NLRB, 738 F 2d 1404 (4th Or 1984)
a Firestone Synthetic Fibers & Textile Co., 207 NLRB 810, 812 (1973)
278 NLRB No. 150
NEWPORT NEWS SHIPBUILDING
panies during the backpay period . These positions en-
tailed working at various construction sites and the em-
ployment lasted until the particular construction job was
completed , or until the company went bankrupt . Unable
to find other work, Davis worked cutting grass in the
summers of 1979 and 1980 . That Davis was indeed dili-
gently pursuing any work he could find during the back-
pay period is demonstrated by the fact he placed an ad in
the newspaper and posted cards in laundromats and gro-
cery stores soliciting grass cutting . This certainly is not
conduct reasonably to be expected from one who is
either avoiding or not diligently seeking interim employ-
ment . Apart from the foregoing employment , he was un-
employed for the remainder of the backpay period.
Frances Price 's search for employment was similar to
that of Davis . She registered with both the VEC and the
Steelworkers Union after being discharged by the Re-
spondent . Price applied at approximately 35 companies
during the backpay period . She did not limit her job ap-
plications to welder positions, but also sought work as a
cashier, gas station attendant , maintenance worker, pest
controller, production worker, and waitress or any other
available job . During the backpay period , Price was em-
ployed as a welder, waitress, gas station attendant, cash-
ier, and maintenance worker. She was laid off once, fired
three times, and quit three times . Soon after being dis-
charged by Respondent she lost title to her van because
she could no longer make the monthly payments on it.
Thereafter she was dependent on her children and
friends to provide transportation to job interviews. Price
explained that the difficulty in transportation was one
reason she had not made more job applications.
Respondent proffered the expert testimony of Francis
De Mark, vocational counselor , in support of its position
that neither Davis nor Price was reasonably diligent in
his or her search for interim employment . Prior to the
hearing , De Mark , at Respondent 's request, conducted
individual labor market surveys for Davis and Price. The
method employed by De Mark in his survey was to com-
pile lists of job openings appearing in the Norfolk,
Hampton , and Newport News, Virginia newspapers
1031
during the backpay period for sheetmetal mechanics and
helpers '(Davis was a sheetmetal worker for Respondent),
and welders (Price's occupation with Respondent). From
the lists so compiled , De Mark randomly selected five
advertising employers for each claimant 's specialty. He
then personally called these selected employers4 and
asked if Davis or Price, whichever the advertised job
opening applied to, would have been considered for em-
ployment had an application therefor been made . All the
called employers answered affirmatively and indicated
that they had numerous openings for employees in the
classifications advertised since 1979. No other phone
calls were made to employers by De Mark or his associ-
ates . De Mark specifically noted that he was not neces-
sarily suggesting that Davis and Price would have been
qualified or hired for every position his survey listed as
advertised, but results of his survey lead him to conclude
that jobs for Davis and Price , as a sheetmetal worker
and welder , respectively, were plentiful in the area
during the period of his survey, and they should have
encountered little difficulty in securing such employment
had they aggressively conducted a better organized
search replete with written resumes; and a thorough un-
derstanding of the job interviewing process.
Notwithstanding the fact that De Mark was an expert
witness whose judgment is entitled to considerable
weight, a closer examination of the survey raises some
questions regarding its reliability for the purposes of this
case . A summary of the job advertisements suggests a
fall off in job availability during the backpay period.
This clearly is the case through 1982, but in January
1983 De Mark changed his survey method from a review
of each week' s Sunday newspapers to a review of the
papers for one Sunday a month . This change of sampling
method renders a comparison between the situation
before and the situation after it took place somewhat
speculative.
A summary of De Mark's data with respect to Davis
demonstrates the decline of total advertisements per
month for sheet metal workers as follows:5
Jan. Feb. Mar. Apr. May June July Aug. Sept . Oct. Nov. Dec.
1979 - - - 12 10 11 ' 12 14 14 9 12 5
1980 14 10 5 5 7 6 5 9 11 • 8 9 8
1981 5 7 5 5 3 5 4 5 4 3 4 5
1982 4 1 3 2 3 3 4 9 1 2 4 2
1983 2 2 2 2. 3 4 3 2 2 2 2 2
The 317 advertisements for sheetmetal workers listed
in the survey were placed by 110 employers of whom 53
placed more than one ad . One, identified only by its tele-
phone number in the survey (499-9851 ), placed 35 adver-
tisements . Norshipco placed 28 . Newsome Air placed 15.
Indoor Air accounted for 13 . There were 10 other em-
ployers placing from 5 to 9 each , which totaled 53 ad-
vertisements . Thus 14 employers , 7 shown only by their
telephone numbers, placed 144 of the 317 total. Many
others (40) each placed 2 or more . It is impossible to as-
certain from the survey or other evidence of record the
identity of the prospective employers shown only by
their telephone numbers, which may for all the record
shows include those with whom Davis applied, or
4 Employers called with respect to Davis were Norfolk Shipbuilding &
Drydock , A. W. Hughes , Indoor Air Systems , C. L. Carter , and Brown
Mechanical . Those called with regard to Price 's specialty were Alco
Welding, TAD Systems, Norfolk Shipbuilding & Drydock, Amark, Inc.,
and Atlantic Power Services.
5 Davis' alleged and admitted backpay period is 23 April 1979 through
6 January 1984.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether or not the multiple advertisements are repeat
notices of a job opening or notices of many job.,,ppenings.
It is clear however that Davis applied at Norshipco as
early as 1979. Absent evidence to the contrary, it is
probable that this application is still in the files of Nor-
shipco. He also applied weekly at VEC, one of those
listed as placing two advertisements.
Similarly, a summary of the monthly total of advertise-
ments for welders, Price's occupation, shows a decline in
job opportunities during her backpay period:6
Jan. Feb . Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec.
1979 8 8 8 5 15 12 8 11 81980 15 13 10 7 10 12 8 8 14 11 10 81981 7 8 4 6 4 5 4 3 3 4 3 3
1982 4 4 2 6 3 2 2 3 2 2 2 21983 2 2 2 2 1 1 1 2 3 2 2 21984 2 2 2 2 2 3 2 2 2
The Price survey shows that of 338 total advertise-
ments, 128 were placed by 6 employers. Atlantic Power
Services placed 50. Norshipco placed 39. TAD, WACO,
and Chesapeake Marine Services each placed 10, and In-
tercoastal Steel placed 9. There were 12 other employ-
ers, placing from 5 to 8 each, which totaled 76 advertise-
ments. Here again the employers' identities cannot all be
known from the record because some are listed only by
phone number or address or both. Approximately 60 per-
cent of the advertisements (204 of 338) were placed by
18 employers and 25 others placed 2 or more each. I find
it rather obvious that the number of advertisements do
not reflect the number of employers needing Price's skill
nor do they provide certain guidances as to how many
openings there in fact were because of the strong proba-
bility that many advertisements are repeats offering the
same position. Price filed applications with the VEC,
who had three of the advertisements, and the following
advertising employers: Colonna Shipyard, Blythe
Marine, Moon, Jonathan Corp., Daniel Construction,
CISCO, and Norshipco. As with Davis, it cannot be as-
certained from the data reported in the survey whether
she applied at other advertising employers.
The data contained in De Mark's survey is for the rea-
sons previously discussed above, not free from ambiguity
or uncertainty, and is not a sound basis for reasonably
accurate conclusions regarding the certain or probable
state of the job market. Accordingly, I am persuaded
that De Mark's opinion on the availability of work or the
likelihood Davis or Price could have or should have
found work loses considerable force because it is based
on a faulty predicate.
Respondent contends that Davis is not entitled to
backpay for 1979, 1980, or 1982 because he did not fur-
nish the Respondent with tax returns and W-2 state-
ments for those years, and therefore did not comply with
the settlement agreement controlling his backpay. The
document relied on by Respondent reads as follows:
RELEASE AND WAIVER
In accordance with the terms set forth below, I
hereby waive any right to reinstatement to a job at
Newport News Shipbuilding and Dry Dock Com-
pany (hereinafter referred to as the "Company").
This Release and Waiver is based on the under-
standing that the Company agrees to compensate
me based upon the following formula and condi-
tions:
1. I shall receive eighty percent of gross back
pay minus interim earnings, with interest to be com-
puted in accordance with the standards of the Na-
tional Labor Relations Board from the date that the
strike terminated until the date of this agreement.
2. As a condition of my receiving any back pay, I
will be required to provide the Company with ap-
propriate authorization to secure access to any W-2
statements and State and Federal tax returns show-
ing any and all earnings received by me during the
back pay period.
I hereby release the Company from any and all
liabilities arising out of my discharge.
DATE: Jan 6 1984
s/s David R. Davis
Respondent was provided with the W-2 information
prior to the hearing, and was given access to Davis', 1981
and 1983 income tax returns prior to the hearing. Davis
credibly testified that he filed no income tax returns in
1979, 1980, or 1982 because he determined he did not
earn sufficient money to require filing for those years.7
Nothing is more obvious than the conclusion that a
person cannot give what he or she does not have. Since
the settlement agreement was signed after the relevant
income tax filing periods, it can hardly be said that Davis
harbored any intent to conceal interim earnings by fail-
ing to file the returns in question. Respondent's specula-
tion that "Davis could have additional undisclosed W-2
forms or other unreported income" is just that, specula-
tion. Respondent's further statement, "Until Davis pro-
vides some more reliable proof of income, the purpose of
the settlement agreement's conditions simply cannot real-
istically have been satisfied" is patently without merit.
All Davis had to provide was the relevant W-2 and tax
forms. He has done so. Respondent has adduced no evi-
6 It is alleged and admitted that Price's backpay period is 23 April
1979 through 17 May 1979 and 30 August 1979 through 11 September
1984
7 Whether Davis was correct in his failure to file returns for the years
in question is not a matter properly before me for resolution
NEWPORT NEWS SHIPBUILDING
dence whatsoever of other hidden interim earnings, nor
does the record remotely suggest there might be any. In
sum, neither the evidence nor reason supports Respond-
ent's position that Davis has forfeited any backpay by a
refusal or failure to comply with the settlement agree-
ment.
With respect to Price, Respondent focuses on her in-
terim employment and the termination of that employ-
ment . She quit three of her interim positions . One in-
volved working all night at a gas station , the second was
for janitorial -maintenance work , and the third was for
working all night at a "7-11" convenience store. Re-
spondent urges Price's backpay be reduced because she
unjustifiably quit interim employment . The Board has ap-
plied a rule, in cases where the discriminatee has secured
substantially equivalent employment with comparable
wages, hours, and working conditions , that quitting such
interim employment without good cause is a willful loss
of earnings warranting a reduction of backpay .8 None of
the three jobs Price quit were substantially equivalent to
her employment with Respondent . Certainly none of
them were prestigious . The Board , without further defi-
nition , adopted Judge Heilbrun 's conclusion in Shell Oil
Co.9 that "unprestigious , annoying jobs or those certain
to create acceptable disruptions to the discriminatee's
private life" are exceptions to the general rule that "the
Board expects discriminatees to prudently retain such in-
terim employment as is secured ." In addition to being
unprestigious and not substantially equivalent employ-
ment, the all night work at gas station and convenience
store plainly worked some disruptions in Price 's private
life. Moreover , Price was not accustomed to night work
and the unaccustomed night shifts at these two locations
were adequate reason for quitting interim employment.10
Respondent also suggests that by being fired from vari-
ous interim positions , Price incurred a wilfull loss of
income . There is no legal support for this argument.
There have been no cases where a backpay claim has
been reduced because the claimant was discharged for
cause." All of Price's discharges were based on cause;
they were for lying on a job application, illness, and
poor customer rapport . Furthermore , of the interim posi-
tions, only two were welding positions . The other posi-
tions were not substantially equivalent and it logically
follows that if a claimant can quit nonequivalent employ-
ment without loss of backpay , if he or she is discharged
from such employment no loss of backpay is thereby in-
curred.
The decision of the United States Court of Appeals for
the Sixth Circuit in Westin Hotel12 contains language di-
rectly applicable to this case:
In the instant case, the [Respondent] seeks, in es-
sence, to place the burden on the employee to
prove a "systematic method of searching fora job,"
8 See , e.g., Fort Lock Corp., 233 NLRB 78, 80 (1977); Shell Oil Co., 218
NLRB 87 (1975); Knickerbocker Plastic Co., 132 NLRB 1209 (1961).
9218 NLRB 87 at 89.
10 John S. Barnes Corp., 205 NLRB 585, 588 (1973) (Roskopp).
11 Sylvan Manor Health Care Center, 270 NLRB 72 (1984).
12 NLRB Y. Westin Hotel, 758 F.2d 1126, 1130 (6th Cir . 1985), enfg.
267 NLRB 244 (1983).
1033
and further, to retain employment once secured re-
gtirtl$ess of the conditions under which the employ-
ee was required to work. Neither the courts nor the
Board has recognized this as an appropriate stand-
ard. To the contrary, basic principles of equity and
fairness mandate that the burden of proof must
remain on the employer because the employer' s ille-
gal discharge of the employee precipitated the
search for another job.
It is well settled that backpay liability may be mitigat-
ed by a showing that loss of earnings was willfully in-
curred by a discriminatee's clearly unjustifiable refusal to
take desireable new employment,' 8 but the burden is on
the employer to prove this affirmative defense. t 4 The
Board has no burden of negativing matters of defense or
mitigation that have not been proven by the employer.15
Evidence of lack of employee success in securing interim
employment or of low interim earnings is insufficient to
meet the employer's burden of affirmatively demonstrat-
ing the employee did not make reasonable efforts to find
interim employment.16 That an employee is unsuccessful
in finding interim work is not determinative because the
employee is not held to the highest standards of dili-
gence but is only required to make reasonable efforts to
minimize his or her loss of income. t 7 If there be uncer-
tainty in the evidence, that uncertainty must be resolved
against the Respondent as the wrongdoer.18 The Board
has consistently followed these established precedents-19
Respondent admits the propriety of the backpay for-
mula utilized and the calculation of gross backpay before
interim earnings are deducted. Inasmuch as the evidence
presented and applicable precedent persuade me that Re-
spondent has not carried its burden of proving Davis and
Price failed to make reasonable efforts to obtain interim
employment and has not proved its other affirmative de-
fenses by a preponderance of the evidence or as a matter
of law, the backpay specification, as amended at hearing,
is adopted; and I issue the following recommended20
ORDER
Respondent is ordered to make the following named
employees whole, in conformity with the court' s amend-
ed judgment of 17 September 1984, by paying each of
them the amounts set forth opposite his or her name,
with interest computed thereon in the manner prescribed
13 Phelps-Dodge Corp. Y. NLRB, 313 U.S. 177, 199-200 (1941).
14 NLRB v. Mooney Aircraft, 366 F . 2d 809 , 813 (5th Cir. 1966).
15 NLRB v. Brown & Root, Inc., 311 F.2d 447 (8th Cir. 1963).
Is NLRB v. Miami Coca-Cola Bottling Co., 360 F .2d 569 , 575-576 (5th
Cir. 1966).
17 NLRB Y. Westin Hotel, supra ; NLRB Y. Arduini Co., 394 F.2d 420,
422-423 ( 1st Cir . 1968); NLRB v. Cashman Auto Co., 223 F.2d 832, 836
(1st Cir. 1955).
18 NLRB Y. Miami Coca-Cola Bottling Co., supra.
19 Sylvan Manor Health Care Center, 270 NLRB 72 (1984); Everspray
Enterprises, 253 NLRB 922 (1980); Highview, Inc., 250 NLRB 549 (1980);
Aircraft & Helicopter Leasing, 227 NLRB 644 (1976).
20 If no exceptions are filed as provided by 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.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Board 's Order and the settlement agreement of 6 David R. Davis $46,160.62
January 1984. Respondent shall make the appropriate de- Frances E. Price $78,397.88
ductions from the amounts of any tax withholding re-
quired by state and Federal laws.