Scalera Bus Service, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1975

222 N.L.R.B. 200 (N.L.R.B. 1975)

200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scalera Bus Service, Inc. and Barbara L. Pallister.
Case 22-CA-5358
January 13, 1975
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On April 15, 1974, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding finding, inter alia, that Respon-
dent had violated Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act, as amended, by discrimi-
natorily discharging employees Barbara Pallister and
Eileen Paulsen.' The Board ordered that they be rein-
stated and made whole for any loss of earnings suf-
fered by reason of the discrimination against them.
Thereafter, on March 25, 1975,- the Regional Direc-
tor for Region 22 issued and served on the parties a
backpay specification and notice of hearing. Respon-
dent filed an answer on April 8, 1975. On July 18 and
August 4, 1975, a hearing was held before Adminis-
trative Law Judge Thomas A. Ricci for the purpose
of determining the issues and amounts of money due
under the backpay specification.
On October 8, 1975, Administrative Law Judge
Ricci issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief in
reply.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Scalera Bus Service, Inc.,
South Plainfield, New Jersey, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Administrative Law Judge's recommended Or-
der.
i 210 NLRB 63 (1974).
`2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Well Products, Inc, 91
NLRB 544 ( 1950), enfd 188 F.2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
DECISION
THOMAS A. Ricci , Administrative Law Judge : This is a
backpay proceeding , in which a hearing was held on July
18 and August 4, 1975, at Newark, New Jersey . On April
15, 1974, the Board found that Scalera Bus Service, Inc.,
here called the Respondent , had illegally discharged Bar-
bara Pallister and Eileen Paulsen, women schoolbus driv-
ers, and on March 25 , 1975, the Regional Director issued a
backpay specification precisely setting out the amounts
now due to two discriminatees pursuant to the Board's af-
firmative remedial order. In its answer the Respondent
contends , for various reasons, that the improperly laid off
employees are entitled to no make-whole compensation at
all. Briefs were filed by the General Counsel and the Re-
spondent after the close of the hearing.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
Both Pallister and Paulsen were fired on February 2,
1973, and each was offered reinstatement on August 23,
1974; they must therefore be made whole for what loss of
earnings they suffered during the intervening period. In the
specifications the measure of what they would have earned
had they not been discharged is judged by what they in
fact earned while on the job from the week ending Septem-
ber 9, 1972, to the week ending when they left the Compa-
ny. The Respondent raises no issue on this score. The
women drove schoolbuses, and therefore did not work
summers, when schools are closed. This fact of life in their
employment is equally reflected in the calculations which
also assume they would have earned nothing during the
summers of 1973 and 1974. They looked for replacement
jobs, and both worked briefly in March 1973 for the Piscat-
away Board of Education, Pallister earning $49.14 and
Paulsen $13.83. Early in 1974 Pallister "lowered her
sights," and found work as a bookkeeper with more sub-
stantial earnings during the remainder of the backpay peri-
od. Paulsen continued to look for busdnving work but was
unable to find any until the school year following the back-
pay period.
In denying any financial responsibility now, the Respon-
dent makes three contentions: (1) It asserts, on the basis of
contemporaneous newspaper want ads for schoolbus driv-
ers, that neither woman made a reasonable search for inter-
im work. (2) It contends that both women willfully quit
their jobs at the Piscataway Board of Education in March
1973. (3) And it argues that both refused to accept job
offers with a company called Wussler.
The issues raised must, of course, be considered in light
of legal principles applicable to backpay proceedings,
222 NLRB No. 39
SCALERA BUS SERVICE 201
which are not to be confused with rules of law governing
unfair labor practice complaint cases. As the Company
here was responsible-in contravention of law-for these
two persons' loss of employment, it is legally obligated to
compensate them, to make them whole. This is the sub-
stance of the Board's direct remedial order. If the Respon-
dent believes that, in this particular instance , such legal
obligation-a corrective exaction-ought be lifted, the bur-
den rests on it to prove adequate reason for any exemption
to the rule. "the burden is upon the employer to establish
facts which would negative the existence of liability to a
given employee or which would mitigate that liability."
N.L.R.B. v. Brown and Root, Inc., 311 F.2d 447 (C.A. 8,
1963). And whenever in the total picture there do appear
uncertainties or ambiguities "the backpay claimant should
receive the benefit of any doubt rather than the Respon-
dent, the wrongdoer responsible for the existence of any
uncertainty and against whom any uncertainty should be
resolved." United Aircraft Corporation, 204 NLRB 1068
(1973); see also Rutter-Rex, 194 NLRB 19 (1971), and
N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d
569 (C.A. 5, 1966).
The two women reported to the USES after their dis-
charges, and regularly thereafter for some months. Indeed
they had to do that, for they were paid unemployment ben-
efits later. Paulsen testified she kept looking for a job in the
newspapers, and listed the Newark Star Ledger, the Mes-
senger Gazzette, and the Courier. She also said she went to
a number of companies to apply directly-naming, as she
recalled, Oak Tree, Romano, Williams, Van Cleef, Onka,
and Millstone. She said these were local bus operators. She
also said that nobody had a regular job for her. Pallister
testified she looked, in the Courier News and in the Star
Ledger, and applied, as she recalled, to the following com-
panies: Biern's Mannions, Tir-R, Oak Tree, Ramano's.
Pallister said she went to these companies many times, but
always without success. And, as stated, she finally looked
into other fields and found a job with a sales corporation.
The Board has held, particularly in the light of the pre-
sumptive liability of the Respondent-or of the affirmative
burden resting on it to avoid liability-that this sort of
activity shown of record fully warrants a full backpay or-
der. And if, after a search of this kind, the discriminatee
succeeds in earning only very little, or even nothing, that
fact alone will not suffice to support a finding that the
former employees failed to make a reasonable search. See
N.L.R.B. v. Miami Coca-Cola, supra, and Cornwall Compa-
ny, Inc., 171 NLRB 342 (1968).
In view of what appear to be the very special circum-
stances of employment in this case, it will be best to con-
sider the second of the Company's arguments first. Lady
schoolbus drivers are paid by the run-a few in the morn-
ing and a few in the afternoon, when the schools open and
close . The pay often varies with the distance. But at Scal-
era, these two women were full-time and regular drivers, at
least to the extent that the phrase "full-time" can be said to
apply. During the last 5 months of their employment Pallis-
ter averaged 4.5 days of work weekly and Paulsen 4.25
days. There is indication the difference between these fig-
ures and 5 days every week was occasioned by nonschool
days during the school year. And because pay was by the
number of runs, and varying distances, Pallister's earnings
averaged $17.59 daily and Paulsen's $16.04. It must be kept
in mind, therefore, that these were the significant aspects of
the jobs from which they were discharged and which they
had a right to seek to replace.
One week in March 1973 Pallister worked during 4 days
for the Piscataway Board of Education-March 5, 6, 7,
and 8-and earned $49.14; Paulsen worked during 3 days
that week-March 6, 7, and 9-and earned a total of
$13.83. They were sent their checks some time later and
never returned. Paulsen's testimony about this-work is that
a Mrs. Knabe, transportation supervisor of the Piscataway
Board of Education, "had heard that we were fired and she
had some people out sick and asked us if we would fill in or
asked me if I would fill in." Paulsen added that Knabe
never offered her a full-time position or a permanent part-
time job. "I worked 2 days and there was no work on the
3rd day and she called me back again for the 3rd day and
that was the last I heard from her." Pallister's testimony is
that a Mrs. Wosatka said to her that Knabe "had a prob-
lem with girls out sick with the flu or whatever, and Mrs.
Wosatka asked me if I wanted to call her and help her out.
That was it, help her out." Pallister said she worked the few
days and then never called in again. She added that Knabe
gave her to understand the work was "fill in" while girls
were out sick, and that she too was never offered a full-
time or part-time job.
Knabe was called as ' a witness by the Respondent. I
deem the totality of her testimony as virtual corroboration
of that of the two drivers. She started by saying "I had
quite a few let's say openings, so that they said they would
help me out." "As best as my memory can go back, Eileen
[Paulsen] was supposed to help me out until I got relief or
whatever." After saying Paulsen called her office to say she
chose not to return, the witness added without logical ex-
planation, "I probably expected her in the next day or so."
Knabe made it a practice to place ads in the papers calling
for drivers. The one she placed on March 18, the very week
after she was supposed, according to the Respondent, to
have offered steady work to these two women, reads that
there would be "future steady runs possible" [emphasis sup-
plied] for applicants. Still, from her testimony at the hear-
ing: "How did they come to say we will help you out, have
you any idea? . . . The Witness; I had quite a number of
absenteeism so ... .
How does the phrase "help me out" fit into any kind of
regular hiring for people in need of work? Why would an
employer speak of steady employment being only " possi-
ble," except it be that all it really sought was hit and miss,
or "fill in" for "absentees," as Paulsen quoted Knabe?
With this evidence of Knabe's method of hiring-only to
satisfy passing and varying needs, but to guard against ap-
plicants later claiming permanent status, I find all her
newspaper ads suspect. She placed no less than 36 separate
want ads in the papers; they add little comfort to the affir-
mative defense here. Knabe also testified that Pallister told
her she would not return because she received more money
as unemployment benefits. Pallister denied saying this, and
I credit her denial. Knabe was not a convincing witness.
The truth of the matter is neither of these two women
had any job at all with Knabe; there was nothing they
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could abandon, or "quit." If, as -the Respondent would
have it, the women just did not want to work, why would
they stay at all during such a week? Most revealing of all,
why would Paulsen work 2 days, wait one out, and come
back a third, to earn only $13, unless it be that she was
hoping for a real job but found it was not there. I find no
merit in the Respondent's contention that either Pallister
or Paulsen quit any job. - - - --
About a month after the discharges the unemployment
office referred Paulsen to a company named Wussler Bus
Service. She went there, but, as she testified, she did not
accept employment because "they were only paying six
dollars for the day . . . I believe it was two runs." "And
they only had, you know, a minimum amount of trips."
Whatever conversation Paulsen had with whoever talked to
her that day took place over 2 years before she testified,
and she was vague and somewhat confused in her story. At
one point she said the $6 was for one trip in the morning
and another in the afternoon; later she said it was for two
in the morning and two in the afternoon.- In any event, she
admitted the money was not enough under the circum-
stances for her to go there as required. Pallister testified
that the unemployment people told her also about the
Wussler request for drivers, but that she did not have to go
there because it only paid $6 per day.
For the purpose-of establishing that Paulsen was offered
work that day that would pay $9 per day, rather than $6,
the Respondent called Rose Wussler, who says she oper-
ates the business. Wussler said that-her company, too, pays
by the trip, the amount varying with the distance, because
it services "different schools." She then said that in the
morning there is a $6 trip and the second for only $3, and
that there are varying trips in the afternoon also. Her testi-
mony shows that many of her drivers work only part-time;
apparently this is her method of operation. Asked were
there people who do only the $6 trip, she answered, "I have
people that do that too." Do any run trips both mornings
and afternoons? "Some of them, yes." Asked directly
whether during the "first half of 1973" there were any full-
time jobs available for women to drive for her, she an-
swered: "Well, first of all there were only part-time jobs."
Wussler then said she recalled speaking to two women sent
by the unemployment office, and that she would recognize
them if she saw them again . Pallister and Paulsen were
both sitting in the room, but Wussler did not point them
out. Her final story is that the two women said nothing
other than that the garage location was too far away for
them and just left. Recalled by the General Counsel, Paul-
sen then said Wussler was not the woman she spoke to that
day and repeated that she had been offered only $6 of
work daily.
I credit Paulsen that she was only offered work for $6
per day, and Pallister that she never went to Wussler's and
that she was told at the unemployment office she did not
have to go because the offer was only for $6. And I find
unwarranted the Respondent's contention that because the
two women did not accept whatever limited work the Wus-
sler company wanted to give them, they thereby withdrew
from the labor market and forfeited all backpay rights un-
der the Board's make-whole order. Wussler said that never
before or since did the Piscataway area unemployment of-
fice send applicants to her "because they don't usually ap-
ply, from Piscataway, it's too far away from Scotch Plains.
They have to leave too -early in the morning to get on the
job by 7:15," "seven or eight miles," as she put-it. "Do you
have any drivers who come from that far away"? The Wit-
ness: No." Scalera 's place of business was near the ladies'
homes, and they had a right to try to find at least compara-
ble employment. It is the kind of work that requires the
women to drive their own cars to, the schoolbus depots,
mornings and afternoons . Considering the cost of personal
automobile transportation -these days, Wussler's statement
that her place is too far for these women can be under-
stood. It was part-time work Wussler was offering, and I
can believe that she needed extras for both morning and
afternoon runs. Even if it were $9 a day she offered, Pallis-
ter and Paulsen were under no obligation to travel that far
for work during the reinstatement and backpay periods.
The story of how this kind of business operates, graphi-
cally illustrated by both the Piscataway Board of Educa-
tion and the Wussler incidents, sheds a revealing light upon
the Respondent 's last contention . Insofar as Pallister and
Paulsen were concerned they learned that the various com-
panies in this business look to serve their convenience with-
out regard to the substantial interests of the women drivers.
It may be that because the very nature of the work only
calls for duty-a few hours in the morning and a few in the
afternoon, the employers are unable to find drivers who
will accept the work as a full-time way of life. But it may
also be that for that same practical time element reality, the
employers take advantage of the situation by using only
part-timers on a loose come and go basis. This is-what
Pallister and Paulsen met at the-Board of Education and at
Wussler. They said they found no jobs available at the
various companies where they applied personally. Maybe
these companies too only had need for "fill ins," or part-
timers to use in place of "absentees ." These two women
were looking for regular employment and did not find it.
Each said she read more than one local newspaper in the
search, and there is no reason for disbelieving them.
The Respondent would give the lie to all this by showing
that two other newspapers-the Home News of New
Brunswick, and the Courier News of Plainfield--did car-
ry ads for schoolbus drivers almost every weekend
throughout the backpay period, the Home News on- Sun-
days and the Courier News on Saturdays. And, photostat
copies of these papers do show a long list of such ads
throughout the 18-month period.
The list is not as impressive, or significant, as at first
blush it appears to be. The Home News show about 200
ads and the Courier about 150. Of these, however, 36 were
placed by the Piscataway Board of Education, and the evi-
dence here already shows what limited work opportunities
that employer had to offer. Not all the ads are clear as to
location, some showing only a telephone number, which at
best does no more than approximate the place of the par-
ticular bus garage to which any driver must always drive
her personal car. We have it from the Respondent's own
witness-Mrs.Wussler-that women who live as much as 7
miles away cannot accept this kind of employment because
the distance is too great. A good portion of the remaining
ads do clearly show that Pallister and Paulsen would have
SCALERA BUS SERVICE 203
had to travel more than that to be interviewed had they
answered the ads. -Middlesex Bus Co., 8 miles away, 39 ads,
Englishtown, 20 miles away, 6 ads; Watchung Hills High
School, 10 miles away, 24 ads; Hillsborough Board of Edu-
cation, 18 miles, 13 ads; Ambrose Bus Co., 8 miles, 16 ads;
Montgomery Township, 18 miles, 2 ads; Bridgewater, 10
miles, 7 ads; Branchburg Township, 12 miles, 7 ads;
Jamesborough and Monroe, each over 15 miles, 4 ads; etc.
There are also five ads by Tri-R Bus Services and two by
Wussler, to each of which the employees did apply without
success. With this, the number-of ads that could possibly
have been fit for Palhster and Paulsen shrinks greatly.
Moreover, many of the remaining ads specified only part-
time work as available. -
On this total record, considering the far more limited
significance of all this-evidence about ads in other-newspa-
pers than would have first appeared, -and the fact both the
discriminatees did keep an eye on the more than one other
newspapers which they did read, I find unconvincing the
broadside argument that the ladies must be denied any
backpay. A lot of people were out of work, at least as
reported by governmental bureaus interested in the field.
The-defense is not truly made more persuasive on the theo-
ry that because the ladies were receiving unemployment
benefits, it must be presumed they quit, they just -did not
care to go to work. It could be said with no less logic that
because it was paying the ladies while they idled, the unem-
ployment office was making its -best effort to find work for
them , and that therefore , if, in its expertise , it thought any
of these ads could have helped , it would have sent them
there. It did not.
Pallister said at the hearing that for 2 weeks in April
1973 she was ill and incapacitated , a few days in the hospi-
tal and the other days at home. In the light of this informa-
tion the General Counsel agrees that her gross earnings
figure in the Specifications be reduced by what Pallister
would have earned with the Respondent those 2 weeks. As
she worked an average of 4.5 days weekly before her dis-
charge and earned $17.59 daily , ten times that amount for
the 2 weeks she was incapacitated is a proper deduction.
Accordingly, her net backpay now due -becomes $3,511.41
instead of $3,669.72.
On the basis of the foregoing findings of fact , conclu-
sions, and the entire record in this proceeding , and pur-
suant to Section 10(c) of the National Labor Relations Act,
there is hereby issued the following recommended:
ORDER
Scalera Bus Service, Inc., its officers, agents, successors,
and assigns, shall pay to each of the individuals named
below the amount set forth opposite their names. Barbara
Pallister $3,5 1 1.41. Eileen Paulsen $4,493.41.