Nickey Chevrolet Sales, Inc.

National Labor Relations Board - Board Decisions

Sep 23, 1966

160 N.L.R.B. 1279 (N.L.R.B. 1966)

NICKEY CHEVROLET SALES, INC. 1279
3. By an inquiry directed to employee Townsend by Morris Gray, a supervisor,
Respondent interfered with and restrained its employees within the meaning of
Section 8(a)(1) of the Act.
4. Respondent did not engage in unfair labor practices by discharging employee
John Petrowski.
RECOMMENDED ORDER
It is recommended that the complaint herein be, and it hereby is, dismissed in
its entirety.
Nickey Chevrolet Sales, Inc. and Automobile Salesmen & Miscel-
laneous Workers Union, Local 192, Distillery, Rectifying, Wine
and Allied Workers International Union of America, AFL-CIO.
Case 13-C<1-6401. September l3, 1966
SUPPLEMENTAL DECISION AND ORDER
On March 2, 1965, the National Labor Relations Board issued an
Order in the above-entitled proceeding, finding inter alia, that the
Respondent had discriminatorily discharged James Rakestraw and
Roger Rakestraw in violation of Section S(a) (3) and (1) of the Act
and directing that Respondent make whole the above-mentioned
employees for any loss of earnings resulting from the discrimination.
Thereafter, on May 4, 1965, the United States Court of Appeals for
the Seventh Circuit, entered its decree enforcing the aforesaid Board
Order.'
On January 21, 1966, the Regional Director for region 13 issued
backpay specifications and, on February 28, 1966, the Respondent
filed an answer thereto. Upon appropriate notice issued by the
Regional Director, a hearing was held before Trial Examiner Samuel
M. Singer on March 28, 1966, for the purpose of determining the
amounts of backpay clue the two claimants. On April 14, 1966, the
Trial Examiner issued his Supplemental Decision, attached hereto, in
which he found that as of April 1, 1966, the cltscriminatees were
entitled to the following payments together with interest at 6 percent
per annum from April 1, 1966, to the date of payment, less the tax
withholding required by Federal and State laws: James Rakestraw,
$6,526.43 and Roger Rakestraw, $3,739.17. Thereafter, the Respond-
ent and the General Counsel filed exceptions to the Trial Examiner's
Supplemental Decision. The General Counsel filed a brief, and the
Respondent filed a brief in reply to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
1 N L B B v. Nicley Chevrolet Sale8 , Inc, C A. 7 (May 4, 1965).
160 NLRB No. 94.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed.2 The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Supplemental
Decision, the exceptions, and the briefs, and hereby adopts the find-
ings3 conclusions, and recommendations of the Trail Examiner, with
the modifications set forth below.
1. We agree with the Trial Examiner that James Rakestraw made
an adequate search for employment during the backpay period,
May 7, 1964, to November 15, 1965, and is entitled to the amount of
backpay set forth in the backpay specifications.
2. The Trial Examiner found that Roger Rakestraw failed to
mitigate his loss of earnings in that he did not accept an allegedly
substantially equivalent job offer. The General Counsel excepts to this
finding. We find merit in this exception.
Roger Rakestraw, was offered the job in question by Saporito, the
manager of a Ford agency in De Kalb, Illinois, around October 1,
1964. According to Saporito's credited testimony, Roger said he
"wanted to think it over `since there' was a problem" of transporta-
tion to De Kalb, which was 50 or 55 miles from his home on the west
side of Chicago. Thereafter, Roger advised Saporito that he could not
accept the job offer because of the distance involved. We believe
Roger was justified in turning down the job offer, for we cannot find,
under the circumstances here, that a job which would require a mini-
mum of 2 hours a day, rather than approximately 1 hour a day, and
would double the employee's traveling expenses,4 is a substantially
equivalent job.5 We shall, therefore, award Roger Rakestraw back-
pay in the amount set forth in the Regional Director's backpay
specifications.
2 The Respondent contends that it was prejudiced by the Trial Examiner ' s rulings
allegedly excluding any line of questioning of the discriminatees with regard to their
income and manner of supporting themselves and their families during the backpay period.
However, at the time of the ruling, counsel for the Respondent had not been inquiring
about the witness', Roger Rakestraw ' s, sources of income during the backpay period but
rather was inquiring about the witness' marital status and the size of his family. Such
matters are not directly relevant to any issues involved in this proceeding . Accordingly, as
the Respondent did not pursue its line of questioning with sufficient particularity with
respect to relevant matters, we find that the Trial Examiner did not err in ruling the
questions irrelevant.
3 The Trial Examiner states that James Rakestraw succeeded in getting a job at Allen
Chevrolet in the first quarter of 1964, and also commenced work in that same quarter
at Hudec Oldsmobile , when in fact this employment took place in the last quarter of 1964.
Also, in his conclusions , the Trial Examiner finds that Roger Rakestraw rejected employ-
ment around October 1, 1965, when in fact the date was October 1, 1964. These inadvertent
errors are hereby corrected.
4 The Trial Examiner found that Roger 's increased travel time and travel expense
would not be burdensome , particularly in view of an available car pool arrangement. It is
noted that no car pool arrangement was available to Roger as the other salesman who
was offered the job at the same time Roger was offered his job, for reasons not explained
in the record, did not go to work at De Kalb.
s Cf. Mastro Plastics Corporation, 136 NLRB 1342, 1378 , 1395. Oman Construction Co.,
144 NLRB 1534, 1537.
NICKEY CHEVROLET SALES, INC. 1281
ORDER
On the basis of tht foregoing Supplemental Decision and Order
and the entire record in this case, the National Labor Relations Board
hereby orders that the Respondent, Nickey Chevrolet Sales, Inc., Chi-
cago, Illinois, its officers, agents, successors, and assigns, shall pay to
the employees involved in this proceeding the amounts specified as due
in the backpay specifications issued by the Regional Director for
Region 13.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
This is a proceeding on backpay specifications issued by the National Labor Rela-
tions Board's Regional Director for Region 13 on January 21, 1966, pursuant to
Section 102 . 52, et seq. of the Board 's Rules and Regulations , Series 8, as amended.
The purpose of the proceeding is to determine the amount of backpay , if any, due
to two employees whom the Board found were unlawfully discharged by Respondent
in violation of Section 8(a)(3) and ( 1) of the National Labor Relations Act, as
amended. The Board 's Order, dated March 2, 1965, adopting Trial Examiner Sum-
mer's Decision dated January 27 , 1965, was enforced on May 4 , 1965, by a decree
of the Court of Appeals for the Seventh Circuit.
The hearing on the backpay specifications was held before Trial Examiner Samuel
M. Singer in Chicago, Illinois, on March 28, 1966. All parties were afforded full
opportunity to examine and cross -examine witnesses and to introduce evidence per-
tinent to the issues . Briefs were received within the alloted time.
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
A. Background; the issues
The Board found that on May 6, 1964, Respondent discriminatorily discharged
two automobile salesmen - James Rakestraw (herein referred to as James) and
his brother Roger Rakestraw ( herein referred to as Roger )-for the purpose of dis-
couraging their union activities . The backpay specifications give the period of time
for which they ought to be made whole as May 7, 1964 , to November 15, 1965 (the
date Respondent offered them reinstatement). The specifications also set out, by
calendar quarters , the gross backpay allegedly due each employee , the formula used
in determining the amounts , the claimants ' interim earnings, and the alleged net
backpay and interest as of April 1, 1966 , due each ($6,526 . 43 for James and
$7,882.62 for Roger).
Respondent does not challenge the reasonableness and propriety of the formula
used by the Regional Director in determining the claimed backpay, nor his mathe-
matical computations . The basic issue here is whether the claimants made reason-
able and diligent effort to obtain substitute employment during the backpay period
to reduce or minimize loss of earnings.
B. The discriminatees' entitlement to backpay
The applicable legal principles are clear. The "Board and courts require that
claimants do not wilfully incur losses but make reasonable efforts to find substan-
tially equivalent employment." Mastro Plastics Corporation, 136 NLRB 1342, 1349,
enfd. as modified 354 F.2d 170 (C.A. 2); Ozark Hardwood Company, 119 NLRB
1130 , 1135, remanded on other grounds 282 F . 2d 1 (C.A . 8). Where a claimant has
been guilty of an unjustifiable refusal to take substitute employment he "has wil-
fully incurred a loss of earnings . . . for which he should not be reimbursed."
Harvest Queen Mill & Elevator Company, 90 NLRB 320, 321. See also Mastro
Plastics Corp., supra, 1349. Cf. N.L.R.B. v. Southern Silk Mills, 242 F.2d 697 (C.A.
6), cert. denied 355 U.S. 821. The burden of proof as to availability of other
employment rests upon the employer as an affirmative defense to its obligation to
257-551-67-vol. 160-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make whole. Mastro Plastics Corp., supra, 1346; N.L.R.B. v. Brown and Root, Inc.,
311 F.2d 447, 454 (C.A. 8); Charley Toppino and Sons, Inc., 151 NLRB 1638,
footnote 12.
' For reasons to be stated, I find that James Rakestraw made reasonable search to
obtain substitute employment in the backpay period and that he did not incur willful
loss of earnings. However, I am not satisfied that Roger Rakestraw made reason-
able effort to minimize his losses by willingness to accept available substitute
employment at or around October 1, 1964-a factor which, I find, operates to dis-
qualify him from backpay after that date.
1. James Rakestraw
James registered with the Illinois Employment Service on May 15, 1964, within
8 days of his discharge, and thereafter reported each week as required. He searched
for work at automobile agencies and elsewhere throughout the period of his unem-
ployment. There is no evidence that he ever turned down any job offer. James
applied for a job at General Foods in May, but after 3 weeks of negotiations failed
to secure the position. He applied for an automobile salesman's position with at
least four car dealers without success. In the first quarter of 1964, he succeeded in
getting a job at Allen Chevrolet, but left that job shortly afterward because that
dealer had insufficient merchandise on hand to sell. According to the backpay
specifications, James commenced working at Hudec Oldsmobile in that same quarter.
He is still employed there as a new car salesman.'
I find that the record is devoid of any evidence to the effect that James Rake-
straw failed to make adequate search for work during the backpay period. He is
accordingly entitled to the full amount of backpay set forth in the specifications.
2. Roger Rakestraw
Roger registered with the State Unemployment Service on the same day as
James (May 15) and thereafter periodically reported to the service as required.
Like his brother, Roger applied for work at several automobile dealers. On Janu-
ary 2, 1965, he started work as a used-car salesman at Dodge Oak Park, remaining
there only briefly because the Company gave up its used-car lot. In April 1965, he
secured a car salesman's job at Walker Imports, where he is still employed.
The above findings are based on undisputed testimony. There is, however, a con-
flict in testimony as to whether Roger justifiably declined a job offer around Octo-
ber 1, 1964. Respondent's witness Saporito testified that in late September or early
October 1964, he took over management of a Ford agency in De Kalb, Illinois, a
Chicago suburb. Needing "manpower," he called on Roger and another salesman,
Tex Hackett, to see him about jobs.2 In an ensuing interview Saporito explained to
the men the favorable "earning potentials" and "good opportunity" at De Kalb.3
According to Saporito, Roger said he "wanted to think it over" since there was a
problem" of transportation to De Kalb due to its distance (50 or 55 miles one-way)
from his home on the west side of Chicago .4 Saporito thereupon suggested that
the problem could be overcome by a car-pool arrangement under which Roger
and Hackett (who resided near each other) could take turns in driving. In addi-
tion, Saporito offered to help defray travel expense by furnishing the men with 10
' The above findings are based on documentary and undisputed testimony.
2 Saporito had known Roger for many years and had worked with Hackett at Respond-
ent Nickey in late 1963 and early 1964. In August 1964, Saporito, then sales manager at
Dodge in Oak Park, spoke to both men about employment at that company ; Saporito
severed his connection with Oak Park before he could make them a definitive offer.
3 Saporito testified that the pay structure at De Kalb was "more generous" and involved
a "better deal" than that at Respondent ' s. The record indicates that during the period
here relevant Nickey's used car salesmen realized from $25 to $186 per unit ( car) sold,
plus certain extras such as $5 to $10 on car insurance . The De Kalb agency paid its sales-
men from 25 to 33 percent profit on the car sold.
4 Saporito indicated that the distance between those two points could be covered by
automobile in 60 minutes while the distance between Roger 's home and Respondent could
be covered In 30 minutes . Roger did not dispute Saporito 's estimates as to distance and
travel time. (According to Rand McNally's Standard Highway Mileage Guide, the distance
between ( downtown ) Chicago and De Kalb is 61 miles.)
NICKEY CHEVROLET SALES, INC. - 1283
gallons of gas per week.5 Roger advised Saporito that he could not accept his
job offer because of the distance involved. Saporito then hired other salesmen.6
Roger's testimony as to Saporito's_ job offer is in many respects confusing and
self-contradictory. Roger admitted driving out with Hackett to see Saporito about a
job. Called by Respondent as an adverse witness, he testified that he "never offered
us" employment; that "he just said that he would hope for the best, that maybe we
could get in out there"; that later, when he and Hackett again drove out to see
Saporito to ask if "an opening [was] available," the latter again put them off, stating
"he would call and let us know"; and that neither compensation nor car-pool
arrangements were discussed. As rebuttal witness for General Counsel, Roger indi-
cated that Saporito did discuss the possibility of immediate employment, quoting
Saporito to the effect that he (Saporito) only had "to clear" with the owner of the
agency "whether we could go to work." Roger also admitted discussing the trans-
portation matter and working conditions such as use of a demonstration car.
According to Roger, Saporito said he (Roger) would have to pay for the care of a
company car and "that due to the fact that it was such a distance to travel . . . that
we make arrangement with the local hotel there and stay and go home on the
weekend." Roger testified that Saporito "was supposed to contact" him after clear-
ing his employment with the owner, but that Saporito never called.
Considering Saporito's straightforward and unequivocal testimony in contrast to
Roger's confusing testimony, the fact that Saporito was a disinterested witness with
no stake in the outcome of the proceeding, and the inherent probabilities of the
situation, as well as the comparative demeanor of the two witnesses, I credit Sap-
orito's account of the conversations. I find, as Saporito testified, that around Octo-
ber 1, 1964, he offered employment to Roger, but that the latter rejected it for the
ostensible reason that it was too distant from his home.
I further find that, in the circumstances of this case, Roger's failure to mitigate
his loss of earnings by accepting Saporito's job offer operated to terminate Respond-
ent's backpay liability as of the date of rejection of that offer. The question whether
or not failure to accept interim employment because of excessive distance to place i/
of work is excusable turns on the facts of each particular case. Appropriate for con-
sideration, in addition to travel time and travel cost, are individual circumstances,
such as age, sex, ability to travel, and special factors necessitating proximity to
place of work. Cf. Mastro Plastics Corp., supra, 136 NLRB at 1374, 1395-96;
Knickerbocker Plastic Co., Inc., 132 NLRB 1209, 1217-18, 1252; Oman Construc-
tion Co., Inc., 144 NLRB 1534, 1537. What may be burdensome in one case may not
in another.
On the record before me, I cannot find that Roger's increased travel time (1 hour
to the proffered De Kalb job as compared to 1/2 hour to his former job) and travel
expense (presumably double his previous cost without offsetting factors such as an
expense-sharing car pool) was so burdensome or unreasonable as to have justified
rejecting the proffered job, particularly in view of an available car-pool arrange-
ment, the employer's willingness to defray part of the increased travel cost (weekly
10-gallon gas contributions), and the apparently "more generous" pay structure at
the new job which might well have absorbed the increased cost,? I find that, in the
circumstances of this case, the De Kalb job was substantially equivalent to Roger's
job at Respondent, even though it was not as conveniently located as the latter. In
any event, if Roger's testimony is to be credited, the distance between his home and
De Kalb was not the obstacle to his failure to take the De Kalb job. Roger attrib-
uted his failure to work there not to distance, travel cost, or transportation incon-
venience, but to Saporito's alleged failure to offer the job. Cf. Ozark Hardware Co.,
119 NLRB 1130, 1139, remanded on other grounds 282 F.2d 1 (C.A. 8).
'I conclude that by voluntarily rejecting suitable interim employment around
October 1, 1965, and thereby avoiding loss of earnings, Roger Rakestraw forfeited
his claim to backpay after that date.
5 Saporito estimated the monthly travel expense for each man under the car-pool plan
as "possibly" $40 ; he stated that the expense of driving half the time to Respondent's
place was obviously less than that to De Kalb.
6 Saporito testified that his lowest paid man in 1965 earned $8,000, and that three of
the six men he employed averaged $ 12,000.
T Furthermore , under established principles , if Roger had accepted the De Kalb job he
would have been entitled to reimbursement of the increased travel expense. Mastro Plas-
tics Corp ., supra, 1383.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
Upon the basis of the foregoing findings and conclusions , and on the entire rec-
ord in this case , I find that Respondent 's obligation to make James Rakestraw and
Roger Rakestraw whole under the Board 's Order and the court 's decree will be dis-
charged by payment to them of the amounts set forth below , plus interest accrued
at the rate of 6 percent per annum from April 1, 1966, to the date of payment, less
the tax withholding required by Federal and State laws:
James Rakestraw --------------------------------------- $6,526 43
Roger Rakestraw_______________________________________ 3, 739. 17
RECOMMENDED ORDER
It is recommended that the Board adopt the foregoing findings and conclusions.
Intergraphic Corporation of America and Sign Pictorial & Dis-
play Union , Local 230, Brotherhood of Painters , Decorators &
Paperhangers of America , AFL-CIO and New York League of
Screen Process Employers, Inc., Party in Interest
Polygon Displays , Inc. and Sign Pictorial & Display Union, Local
230, Brotherhood of Painters, Decorators & Paperhangers of
America, AFL-CIO and New York Local 10, International
Brotherhood of Production, Maintenance and Operating Em-
ployees , Party to the Contract . Cases 29-CA-83 (formner7y 2-
CA-10308) and 29-CA-140. September 26,1966
DECISION AND ORDER
On April 18, 1966, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in certain unfair labor practices and recommending
that they cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. He
also found that Respondents had not engaged in other unfair labor
practices alleged, and recommended dismissal of those allegations.
Thereafter, the General Counsel and Charging Party filed exceptions
to the Trial Examiner's Decision 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 powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner, as modified below.
160 NLRB No. 100.