Park General Clinic

National Labor Relations Board - Board Decisions

Oct 18, 1977

233 N.L.R.B. 53 (N.L.R.B. 1977)

PARK GENERAL CLINIC
Richard M. Brown, D.C., and Donald R. Janower,
D.O., a Co-Partnership d/b/a Park General Clinic
and Local 79, Service Employees International
Union, AFL-CIO. Case 7-CA-11533
October 18, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On July 15, 1977, Administrative Law Judge Ralph
Winkler issued the attached Supplemental Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Richard M.
Brown, D.O., and Donald R. Janower, D.O., a Co-
Partnership d/b/a Park General Clinic, Detroit,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: In a
Decision and Order issued on June 17, 1975, the Board
issued a conventional reinstatement and backpay order
upon finding that Respondent had discriminatorily dis-
charged Mrs. Joan Stein in 1974 (218 NLRB 540). The
Court of Appeals for the Sixth Circuit on December 20,
1976, enforced the Board's Order (546 F.2d 690). Hearing
was held in this supplemental matter on May 16, 1977,
upon a backpay specification issued by the Regional
Director for Region 7 on February 24, 1977,1 and
Respondent's answer.
Upon the entire record, including my observation of the
demeanor of witnesses and upon consideration of briefs, I
make the following:
FNDINGS AND CONCLUSIONS
Mrs. Stein was unlawfully discharged on October 28,
1974, and Respondent offered her reinstatement on
January 10, 1977. In the third quarter of calendar year
1975, Mrs. Stein obtained permanent employment else-
where with earnings exceeding her alleged backpay and the
parties agree, in effect, that the material backpay period
runs from October 28, 1974, until the indicated quarter of
1975. Respondent contends that Mrs. Stein did not make
reasonable efforts to obtain interim employment during the
backpay period and that she thus should be denied
monetary relief for having purportedly failed to mitigate
Respondent's backpay liability. The parties also disagree as
to the basis upon which backpay, if any, should be
computed.
The burden of proving willful losses is on the tortfeasor,
and the unlawfully discharged employee is merely required
to make reasonable efforts to mitigate his loss of earnings.
N.LR.B. v. Midwest Hanger Co., 550 F.2d 1101, 1105 (C.A.
8, 1977); J. H. Rutter-Rex Manufacturing Co., Inc. v.
N.LR.B., 396 U.S. 258 (1969); N.LR.B. v. Mastro Plastics
Corp., 354 F.2d 170, 174, fn. 3 (C.A. 2, 1965); N.LRB. v.
NHE/Freeway, Inc., 545 F.2d 592, 593 (C.A. 7, 1976). Also
applicable here is the principle that "A back pay award is
only an approximation, necessitated by the employer's
wrongful conduct." Bagel Bakers Council of Greater New
York v. N.LR.B., 555 F.2d 304 (C.A. 2, 1977).
Stein's Efforts To Obtain Interim Employment
Stein was employed as a medical assistant by Respon-
dent. Immediately upon her discharge in 1974, she
registered for unemployment compensation (which she
received) and sought employment at the Michigan Em-
ployment Security Commission (MESC). She reported
there every 2 weeks during the entire backpay period, on
which occasions, as required by the Commission's rules for
compensation purposes, she apparently satisfied MESC
concerning her jobseeking efforts. The Commission, mean-
while, did not refer Stein to any employment during the
backpay period.
In addition to reporting biweekly to MESC, Mrs. Stein
checked the help wanted columns in local newspapers and
she responded to some advertisements and made applica-
tion to potential employers. In preparation for the May
1977 hearing in this matter, Stein made out a list of such
applications as best she could remember and she truthfully
testified in effect that the list was not necessarily complete
because of the lapse of time since her discharge in 1974.
Among specific items she recalled were some inquiries or
applications for employment in November and December
1974, February, April, May, and June 1975, and possibly in
January 1975. And in August 1975, as indicated above,
Stein accepted employment with a private physician and
I The specification was amended at the heanng.
233 NLRB No. 16
53
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereupon relieved Respondent of further accruals of its
backpay liability.
On the occasions of applying for work, Mrs. Stein
advised prospective employers of her troubles with Re-
spondent and that her discharge was the subject of unfair
labor practice proceedings, and Respondent asserts that
this information had a chilling effect on potential employ-
ers. Whatever the effect might have been, and I shall not
speculate on the matter, I am convinced that she volun-
teered such information, not to scare off the employers, but
to be honest with them and also because such potential
employers would, in all likelihood, acquire the information
in checking her employment record with Respondent, her
last employer. Respondent adduced in evidence certain
help wanted ads from a local newspaper and contended
that they support its contention that Mrs. Stein would have
found employment in her field had she really tried to
obtain it, as she testified. There were, in fact, many such
ads, but a substantial number of the listed jobs either
required additional skills she did not have, or were
duplications of other ads, or were at locations not
conveniently accessible to her, or could not accommodate
her short work schedule. (Mrs. Stein has several children,
and she worked only 12 hours weekly in Respondent's
employ.)
Although Mrs. Stein probably could have expended
greater efforts in seeking other employment, the question is
not that but whether Respondent has established that she
failed to make a good-faith effort along those lines,
considering her skills, her salary, and the needs of her
family situation while in Respondent's employ and also
considering that she is the wronged individual in this case.
I am satisfied that Stein did not willfully incur a loss of
earnings and I conclude, therefore, that Respondent has
not established her disentitlement to be made whole for
earnings she lost as a result of her unlawful discharge by
Respondent.
Backpay Rate
Mrs. Stein began her employment with Respondent in
1970, and she voluntarily left in July 1974 for reasons of
pregnancy. Her hourly rate in 1974 was $3.85. Although
she actually worked approximately 12 hours weekly, she
received pay for 15 hours. The Employer added I hour's
pay to accommodate her babysitting needs - she has
several children - and the Board's decision in the original
case mentions but does not resolve the confusion attending
the other 2 hours, one possibility being that this extra
payment was made through a bookkeeping error (218
NLRB at 541, 546 F.2d at 691). In any event, Mrs. Stein
returned to Respondent's employ in October 1974, at
which time Respondent apparently told her that she would
continue receiving the $3.85 rate but that she would no
longer receive moneys for unworked time. Mrs. Stein
protested this wage situation, claiming at the time that
Respondent was reducing her wages so far as take-home
pay was concerned, and Respondent finally offered "as a
compromise" to give Stein an hourly rate of $3.94 and to
pay her only for hours actually worked. As discussed in the
Board's decision (218 NLRB at 542), $3.94 was the highest
hourly rate paid at the time to any of Respondent's medical
assistants, and this rate was received by one Rosemary
Mazglad. These foregoing matters antedate the union
involvement which constituted the basis for the Board's
finding, sustained by the court, that Respondent had
discriminatorily fired Stein on October 28, 1974.
Mazglad had been at the $3.94 rate since December 1973
and was raised to $4.20 an hour in December 1974. The
General Counsel contends that Stein's backpay should be
computed at a $4.20 rate from December 1974 because
Respondent, in giving Stein a $3.94 rate in October 1974,
had geared her rate to Mazglad's hourly rate. This
contention involves consideration of Respondent's practice
of reviewing employees' wages. Under this practice, the
wages and job performance of employees making less than
$4 hourly are reviewed after 6 months, and the usual hourly
increase - if granted - is 10 or 15 cents; employees
earning more than $4 are reviewed after I year, and the
usual increase is 25 cents.
Respondent urges that it gave Stein a 10-cent raise to
$3.94 when she returned to work in October 1974, and that
under its wage review procedures she was not eligible for
wage reconsideration until at least 6 months later. The
General Counsel contends, on the other hand, that her
$3.94 rate was in fact a reduction - not an increase - in
view of the circumstance that before leaving in July 1974
she had been receiving 15 hours' pay for 12 hours' work,
albeit at a $3.85 rate.
Whether the $3.94 rate be deemed an increase or a
reduction in October 1974, I am satisfied and find that
Respondent regarded it as an increase at the time and that
Respondent would have continued to treat the matter as
such for wage review purposes had Stein remained on the
job. I thus accept Respondent's contention that Stein's
backpay should be computed at $3.94 an hour and not
recomputed at $4.20 an hour in December 1974, and I also
conclude that beginning on April 21, 1975, this rate should
be increased to $4.09 in view of the wage review procedure.
Backpay Computations
Except for the wage rate matter discussed above, there is
no dispute concerning the backpay items alleged in the
General Counsel's specification as amended. The record
thus establishes the following compilation:
54
PARK GENERAL CLINIC
Hrs. & Wage
Rate Backnav
Bonus
SickDav
Net
Gross Interim
Baknoav Earniner
Net
Racknav
j__ - - --.-- ,, v----y
1974-4 114.84 $452.47 $31.50 $483.97 0 $483.97
at $3.94
1975-1 165.88 653.57 0 653.57 0 653.57
at $3.94
1975-2 38.28 150.82 0 672.70 0 672.70
at $3.94;
127.60 521.88
at $4.09
1975-3 165.88 678.45 0 678.45 $300.65 377.80
at $4.09
Total: $2,188.04
Upon the foregoing findings, conclusions, and the entire
record, I issue the following recommended:
SUPPLEMENTAL ORDER
Respondent, its officers, agents, successors, and assigns,
shall make Joan Stein whole by paying her the sum of
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and the recommended Order herein shall, as provided in Sec.
$2,188.04, with interest at 6 percent per annum computed
on the basis of calendar quarters, and less tax witholdings
required under Federal and state laws. 2
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
Cal. Yr.
& atr.
55