Twistex, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1988

291 N.L.R.B. 46 (N.L.R.B. 1988)

46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Twistex, Inc and National Association of Govern
ment Employees (SEIU/AFL-CIO) Case 1-
CA-23472
September 28 1988
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 15, 1988 Administrative Law Judge
Michael 0 Miller issued the attached supplemental
decision The General Counsel and the Respondent
filed exceptions and supporting briefs
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the supplemental deci
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge s rulings
findings 1 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 Twister
Inc, South Grafton, Massachusetts, its officers
agents successors and assigns shall pay as net
backpay to Tina Potter the sum of $3508 and to
Sandra A Poulin the sum of $5294 with interest
less tax withholdings required by Federal or state
law
We agree with the judge that discnmmatee Tina Potter is entitled to
backpay for the fourth quarter of 1985 through the third quarter of 1986
In doing so we note that the judge incorrectly stated that Potter could
not recall whether she applied for work from April through August
1986 The record reveals however that although she could not recall the
specific details of her job search for that period Potter testified that she
continued her job search until she began casual employment at the doe
tor s office in September 1986
The judge found that the Respondent sustained its burden of proving
Potter incurred a willful loss of earnings commencing in October 1986 In
her exceptions the General Counsel claims that Potter did not cease
looking for work after September 1986 but rather that she applied for
positions with two different employers in late 1986 and early 1987 Con
trary to the General Counsels position although Potter originally cited
those dates shortly thereafter she corrected her testimony and testified
that those particular job contacts had been made in January 1986
SUPPLEMENTAL DECISION
MICHAEL 0 MILLER Administrative Law Judge I
heard this matter on January 13 1988 in Boston Massa
chusetts pursuant to a backpay specification and notice
of hearing issued by the Regional Director for Region 1
of the National Labor Relations Board on October 30
1987 and an answer filed by Twistex Inc (Respondent)
on November 7 1987 as those documents were amended
at hearing The General Counsel and Respondent have
filed briefs which have been carefully considered along
with the testimony and my observations of the witnesses
and their demeanor and the exhibits
I BACKGROUND
Tina Potter and Sandra Poulin were employees of
Twistex working part time on flexible schedules until
they were laid off on October 11 1985 and not recalled
thereafter The Board affirming the rulings findings and
conclusions of Administrative Law Judge Richard
Beddow held that they had been laid off and thereafter
denied recall in violation of Section 8(a)(3) and (1) of the
Act because they had engaged in union and other pro
tected concerted activities It ordered that they be of
fered reinstatement to their former or substantially equiv
alent part time positions and be made whole for the
losses incurred as a result of the discrimination against
them with interest 1
Respondent offered Potter and Poulin unconditional
reinstatement on May 7 1987 which they declined A
dispute having arisen over the amount of backpay due
them this backpay specification issued and the matter
came to a hearing before me
II THE ISSUE
The sole issue in this matter is whether Tina Potter
and Sandra Poulin made adequate and reasonable
searches for interim employment and thereby met their
obligations to mitigate backpay losses during the period
between their discharges and Respondents offer of rein
statement 2
III INTERIM EMPLOYMENT AND JOB SEARCHES
A Tina Potter
Tina Potter is a high school graduate living with her
parents in a small town (Northbridge Massachusetts)
That community offered no public transportation and
until sometime after the end of the backpay period she
had no car of her own When employed by Respondent
she commuted to work with the other discriminatee
Sandra Poulin Within about a mile of her home were
between 5 and 10 possible employers
In the period immediately after her layoff Potter un
successfully applied for work with other knitting mills
Scotts Stanley and Felter Co She secured employment
with Hospital Data a company located in the same
building as Respondent and worked there from Novem
ber until late December 1985 She lost that job when Re
spondent in a separate unfair labor practice caused Hos
pital Data to terminate her In January and/or February
1986 she made applications to work at The Bag Outlet
and Polyfoam both located in a complex of stores and
businesses within a mile of her home She also applied
for work together with Poulin at Standard Yarn in
1 283 NLRB 660 (1987)
2 At hearing the General Counsel amended the specification to correct
the interim earnings and to conform the wage rates to those specified by
Respondent in its answer Respondent amended its answer to delete all
affirmative defenses other than its contention that the discnmmatees had
failed to diligently seek interim employment to mitigate backpay
291 NLRB No 8
TWISTEX INC
Worcester Massachusetts In March 1986 she sought
work from Respondent and around that time applied at
the Beaumont Nursing Home which was similarly close
to where she lived It was her recollection that she had
filed an application with the nursing home 3 They did
not call her
Potter had no recollection of where or whether she
might have applied for work in April June July and
August 1986 In May she again sought recall by Twistex
as she had done on perhaps four or five occasions during
1986
In September 1986 Potter began to work on a casual
basis as a doctor s receptionist in the same office where
her mother worked She had no set hours and was paid
about $5 per hour She continued this arrangement
through April 1987 working in some months and not in
others earning a total of about $500 4 It appears that
Potter did not seek other employment between Septem
ber 1986 and May 1987 when Respondents offer of rein
statement brought the backpay period to a close
Throughout the backpay period local and area news
papers carried help wanted advertisements Although
Potter claimed to have checked the help wanted ads
about twice a month during 1986 and about once a
month in 1987 she did not follow up on any of those
ads Most if not all would have required that she have
transportation Although the Beaumont Nursing Home
advertised weekend work for high school students in late
July 1986 Potter s alleged application to Beaumont was
not filed in response to any such ad but only because it
was close to home Potter registered with the State Un
employment Office but received no job referrals from
that agency She was unfamiliar with and did not seek
work from any private employment agencies
B Sandra Poulin
Like Potter Poulin worked part time mornings when
she was discriminatorily laid off The schedule suited her
needs because she had two children to get off to school
and wanted to be home for them when they returned in
midafternoon On her layoff she registered with the state
unemployment office However no job opportunities
were referred to her
Between her layoff and the end of 1985 she applied
for work at Energy Concepts Tull Products and Mr
Christmas Respondent continued to advertise for em
ployees after the layoff and she repeatedly sought recall
by Respondent
In January 1986 she took a full time job at Standard
Yarn she quit after 2 days Although it was a knitting
mill like Respondent the yarn was different and the
work and the hours were too much for Poulin In that
same month she also applied for work at Crown Uni
form
Within a few days of leaving Standard Yarn she
began full time employment at David Clark in Worces
s Respondents motion to reopen the record put into question her ap
plication at the Beaumont Nursing Home
* Because of the sporadic nature of this employment the absence of
any records and thus the necessity to approximate her earnings the com
pliance officer chose to include all of this income as having been earned
in the first quarter of 1987
47
ter doing fine assembly work with a microscope She
kept that job for about 3 1/2 weeks earning $300 and
left because the hours were too long and because she
was going to be terminated After leaving David Clark
she applied for work at Millbrook Distributors Stanley
Woolens Bernat Yarn TBV Valve Buck Brothers and
allegedly Robinson Thread 5 Like Potter she continued
to seek recall by Respondent She moved in with her
mother in March and became divorced in July
From April through August 1986 Poulin claims to
have checked newspaper advertisements for jobs and
made applications without success After August she
concentrated on seeking part time work because of her
children
In September 1986 Poulin began to work for Coyne
Industries a uniform supplier She quit after 3 days be
cause the work aggravated a back condition scoliosis
Thereafter she continued to seek jobs with flexible
hours In November she remarried taking on additional
child rearing responsibilities with four stepchildren in
cluding one with a handicap
In January 1987 she worked for 1 week at a nursing
home Park Hill Manor but quit because of her unhappi
ness at the working conditions the lifting required and
time conflicts with her child rearing responsibilities
Thereafter in January and February she attempted to
enter a CETA training program and made application to
Worcester Knitting Mills Come Play Products and al
legedly again at Robinson Thread She also sought
housekeeping work and applied at another nursing home
She could not recall the name of the nursing home but
described its location Vale Street In April 1987 she ap
plied at Parker Metal Edmonton Thread ABC Valve
and Package Steel buildings
IV DISCUSSION AND ANALYSIS
A Respondents Motion to Reopen the Record
On March 2 1988 counsel for Respondent filed a
motion to reopen the record and take further evidence 6
Respondent asserted that it could adduce evidence from
the director of personnel at Robinson Thread to the
effect that Sandra Poulin did not apply for work with
that company in 1986 or 1987 and that the personnel
manager and others at Beaumont Nursing Home had no
record of Tina Potter making application for work in
1986 or 1987 Both employers it was alleged were seek
ing help at those times Respondent further asserted in
items three through six of its motion that the business
complex located within 1 mile of Potter s home housed
six employers at least two of which had advertised for
help on one or more occasions in 1986 while others also
sought help continually Respondent asserted that all
of the above was first brought to its attention by the tes
timony of the discriminatees at the hearing
5 Respondents motion to reopen the record questioned whether she
had applied at Robinson Thread
B At the end of the hearing I had closed the record subject to a
motion to reopen in the event that disclosures at the hearing gave rise to
relevant and material evidence Respondent s motion is made a part of
the record
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel opposed Respondents motion
Inasmuch as Potter and Poulin had made applications by
phone or door to door appearances as well as by filing
formal applications the absence of an application on file
with a particular employer would not be probative of
whether they had actually applied the General Counsel
contended Even if Respondents new evidence estab
lished that each of the discriminatees had not made one
of the applications she had claimed it was argued such
evidence would at best establish a mistake in recollection
that would not substantially impact on her credibility Fi
nally with respect to the assertions regarding jobs avail
able near Potter s home the General Counsel argued
that such evidence was available before the heanng
Based on my review of the record and the arguments
of counsel I must conclude that no valid purpose would
be served by reopening the hearing Potter testified (Tr
30) that she submitted a written application to the Beau
mont Nursing Home Poulin similarly testified that she
made several applications to Robinson Thread without
specifying if those were written or merely oral Even if
the new witnesses would testify as Respondent suggests
such testimony would have little impact on the record It
might be as the General Counsel suggests that no
records of their applications were retained it might be
that the two discriminatees were mistaken concerning
their alleged applications to these employers In either
case there would be no evidence to contradict the re
mainder of their testimony concerning their job
searches 7 In like vein I must agree with the General
Counsel concerning the evidence Respondent seeks to
adduce concerning employers at the Coz Chemical Com
plex allegedly located near Potter s home I note that
Potter testified to applying at two of the six employers
whom Respondent contends are located there More
over Respondent could have adduced this evidence at
the hearing in line with other evidence of available em
ployment which it did adduce at that time
Accordingly Respondents motion to reopen the
record is denied
B General Principles
Pursuant to the Board s Order and relevant precedent
the discriminatees are entitled to backpay for the wages
lost by reason of Respondents discrimination less inter
im earnings and any losses willfully incurred by a clear
ly unjustifiable refusal to take new employment Willful
loss is an affirmative defense the burden of proving
which falls on the employer Rainbow Tours 280 NLRB
166 (1986) and cases cited Low earnings and lack of
7 Respondents reliance on NLRB v Elias Bros Big Boy 327 F 2d 421
(6th Cir 1964) and NLRB Y Otsego Ski Club-Hidden Valley 542 F 2d 18
(6th Cir 1976) in arguing that the discriminatees uncorroborated testi
mony is insufficient to establish their efforts to secure work is misplaced
In those initial unfair labor practice cases the burden of proof was on the
General Counsel and the courts held that it was not reasonable for the
administrative law judges to credit individual witnesses for the General
Counsel whose uncorroborated testimony was contradicted by others In
backpay cases the burden of proving that the discriminatees failed to
make reasonable searches for interim employment rests on the respondent
(Terpening Trucking Co 283 NLRB 444 (1987)) and cases cited therein
and the evidence Respondent now seeks to offer would only arguably
contradict the testimony of the discnmmatees
success in securing interim employment do not of them
selves sustain that burden Clear Pine Mouldings 268
NLRB 1044 1059 ( 1984) Neither does the fact that a
discriminatee may have failed to seek interim employ
ment in any given quarter the entire backpay period
must be scrutinized to determine whether throughout
that period there was in light of all circumstances a rea
sonable continuing search such as to foreclose a finding
of willful loss Cornwell Co 171 NLRB 342 343 (1968)
The discriminatee is expected to make only reasonable
exertions to secure interim employment and is not held
to the highest standards of diligence Rainbow Tours
supra The employees skills and qualifications [her] age
and labor conditions of the area are factors to be consid
ered Clear Pine supra Mastro Plastics Corp 136
NLRB 1342 1359 ( 1962) Similarly to be considered is a
discriminatee s lack of transportation International Trail
er Co 150 NLRB 1205 1220 ( 1965) A discriminatee is
entitled to seek interim employment to a similar shift or
with similar hours to the job from which she was discri
minatonly discharged an interim job which will not ob
ligate her to change her lifestyle or which will fail to ac
commodate personal or family needs met by the onginal
employment Waukegan North Chicago Transit Co 235
NLRB 802 fn 4 ( 1978) Richard W Kaase Co 162
NLRB 1320 1332 ( 1967) (employee Anna Lutch) An
employee who accepts and then quits interim employ
ment which is not substantially equivalent to that from
which she was discriminatorily terminated is not deemed
to have willfully sustained a loss of earnings American
Mfg Co 167 NLRB 520 526 (1967) Moreover where
there has been a passage of considerable time between
the discharge and the backpay hearing it must be ex
pected that the discriminatees may have difficulty recall
ing the details of their job searches and their failure to
recall those searches in detail will not sustain the em
ployer s burden of proof Terpening Trucking supra Fi
nally it is also well established that any uncertainty in
the evidence is to be resolved against a respondent as
wrongdoer Clear Pine Mouldings supra and cases
cited
C Application of Principles to the Facts
In the instant case Potter and Poulin were discrimina
tonly laid off not discharged Respondent continued to
seek help after laying them off and they repeatedly
sought to be recalled by Respondent Their efforts and
Respondents job openings continued from their layoffs
in October 1985 until at least May and June 1986 Thus
whether the discrimination is deemed to have been of a
continuing nature until June 1986 as contended by the
General Counsel or not I find that both made reasona
ble efforts to return to work as they would have expect
ed to do in a layoff situation through June 1986
Moreover Tina Potter actively sought interim em
ployment during this period She actually obtained em
ployment shortly after her layoff with Hospital Data
and lost that job only because of Respondent s additional
unfair labor practice After losing that job she resumed
her job search seeking employment at several local em
ployers which she could reach without transportation
TWISTEX INC
and at others to which she might have been able to
secure rides Most of the jobs advertised in the local
press however would have required that she have a
means of transportation or offered hours different than
the job she held with Respondent She was not obligated
to seek such substantially different employment
Considering her job search efforts the work that she
did obtain and her registration with the state unemploy
ment office I am satisfied that Tina Potter exercised rea
sonable diligence to secure interim employment from the
time of her layoff until at least June 1986 Moreover
while she could recall no details of her job search from
June until August 1986 she did take employment albeit
casual at a doctors office in September This consid
ered together with her prior efforts is sufficient to estab
lish that she made reasonable efforts to secure interim
employment until that time despite the absence of specif
is details and even if she failed to actively look for work
in the third quarter of 1986 (Terpening supra Cornwell
Co supra) Accordingly I conclude that Tina Potter is
entitled to backpay through the end of the the third
quarter of 1986 September 30 1986
However in September 1986 she began to work on a
casual basis for about $5 per hour for a doctor in whose
office her mother also worked Between September 1986
and May 1987 she worked only about 100 hours at the
doctor s office working in some months and not at all in
others and did not seek any other employment Clearly
the limited nature of her employment with the doctor
left her sufficient time to seek other employment and I
find that it was not reasonable for her to cease all efforts
to secure more nearly comparable interim employment
for this period of about 8 months Accordingly I find
that Respondent has sustained its burden of proving Pot
ter s willful loss of earnings from October 1986 until the
offer of reinstatement in May 1987 and recommend that
she be denied backpay for that period
Sandra Poulin actively sought work from the time of
her layoff until the end of December 1985 and accepted
two jobs neither of which were comparable in hours or
duties to the job from which she was laid off in early
1986 She left those jobs because of the differences be
tween them and her former employment (and because
she would have lost the second at David Clark involun
tarily had she not quit) and continued her job search In
September she again accepted noncomparable employ
ment and quit when it aggravated a preexisting physical
condition As noted above quitting such noncomparable
employment and for such reasons as she gave is not
deemed a willful loss of earnings American Mfg supra
She resumed her job search and accepted another job in
January 1987 Again the job was not comparable to her
prior job with Respondent and for various legitimate
reasons she quit She resumed her search for work
which like Respondents would have accommodated
her family responsibilities but was not successful
49
Considering all the above including the jobs which
she accepted her registration with the state unemploy
ment office her efforts to secure work that was compa
rable in hours with that from which she was laid off and
her background I am convinced that Sandra Poulin did
not willfully fail to seek interim employment or to miti
gate Respondents backpay liability Her efforts to find
such interim employment throughout the backpay
period while not maximal were reasonable
D Conclusions
Based on all the foregoing I find and conclude that
the discriminatees suffered backpay losses in the follow
ing amounts (as set forth more completely in the amend
ed backpay specification) as a result of the Respondent s
discriminatory layoffs of them on October 11 1985
Tina Potter
4th Quarter 1985 $ 538
1st Quarter 1986 990
2d Quarter 1986 990
3d Quarter 1986 990
Total
Sandra A Poulin
$3508
4th Quarter 1985 $ 505
1st Quarter 1986 8583
2d Quarter 1986 951
3d Quarter 1986 853
4th Quarter 1986 951
1st Quarter 1987 789
2d Quarter 1987 680
Total $5294
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed9
ORDER
The Respondent Twistex Inc South Grafton Massa
chusetts shall make Tina Potter whole by the payment
to her of $3508 and shall make Sandra A Poulin whole
by the payment to her of $5294 as the net backpay due
them as a result of Respondents unfair labor practices
plus interest as set forth in the remedy section of the
Board s underlying decision
8 The parties stipulated that Poulin earned $300 from her employment
with David Clark which was in the 1st quarter of 1986 The amended
specification and the General Counsels beef show a like sum as having
been earned in the 4th quarter of 1985 It is unclear whether the $300
thus shown as having been earned in the 4th quarter of 1985 was intend
ed to represent those earnings from David Clark I have left her 4th
Quarter 1985 earnings as shown in the amended specification and the
brief unchanged and treated them as having been earned elsewhere
8 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