WHLI Radio

National Labor Relations Board - Board Decisions

Nov 8, 1977

233 N.L.R.B. 326 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. M. Broadcasting Corporation d/b/a WHLI Radio
and Helaine Feivelson. Case 29-CA-4196
November 8, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 31, 1977, Administrative Law Judge
Paul Bisgyer 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, F. M. Broadcast-
ing Corporation, d/b/a WHLI Radio, Hempstead,
Long Island, New York, its officers, agents, succes-
sors, and assigns, shall pay the amount set forth in
the said recommended Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge: On June 21,
1976, the National Labor Relations Board issued a
Decision and Order,1 finding that the Respondent discrimi-
natorily discharged Joanne Magliochetti 2 and Helaine
Feivelson in violation of Section 8(aX3) and (1) of the
National Labor Relations Act, as amended. To remedy
these unfair labor practices, the Board, inter alia, directed
the Respondent to make these employees whole for any
loss of pay they suffered by reason of its unlawful
discrimination against them. On January 3, 1977, the
United States Court of Appeals for the Second Circuit
entered its judgment enforcing the Board's Order in full.
Controversy having arisen over the amount of backpay due
' 224 NLRB 1540(1976).
2 For convenience, Joanne Magliochetti will be referred to by that name,
although since her marriage after her discharge she has also been known as
Joanne Dougherty.
3 The Respondent apparently abandoned other contentions asserted in
233 NLRB No. 57
the named individuals under the terms of the Board's
Order, the Regional Director for Region 29 issued on
January 10, 1977, a backpay specification and notice of
hearing. Thereafter, the Respondent filed an answer to the
backpay specification disputing certain allegations in the
latter document. On March 7, 1977, a hearing was held
before me in Brooklyn, New York, at which the General
Counsel moved to amend the backpay specification to
include in the computation a $5 weekly wage increase for
the period from October 1, 1975, through April 9, 1976,
which the General Counsel alleged Magliochetti and
Feivelson would have received had they not been discrimi-
natorily terminated. The motion was granted over the
Respondent's objection, thereby adding $135 to the
backpay allegedly due each of the claimants. At the close
of the hearing, the parties argued their positions orally and
subsequently filed supporting briefs.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS OF FACT
I. THE QUESTIONS PRESENTED
In computing the backpay due the claimants Feivelson
and Magliochetti, the backpay specification, on the basis of
calendar quarters, details the gross backpay which each of
the claimants would have earned from the Respondent
absent unlawful discrimination; sets forth the interim
earnings of each claimant; and concludes with the net
backpay to which each is entitled. The Respondent does
not challenge either the method of computation or the
accuracy of the figures used except as they are affected by
its contentions recited below. Also undisputed is the
backpay period which begins July 29, 1974, the date of the
discriminatory discharges, to April 9, 1976, the effective
date of the Respondent's offer of reinstatement declined by
the claimants. The Respondent, however, strenuously urges
three grounds to defeat or reduce the discriminatees' claim
to backpay; namely, (a) they failed to make a reasonable
and diligent effort to secure suitable employment by
limiting their search for employment to the Nassau
County, Long Island, area, where they resided and worked
for the Respondent, instead of expanding their search to
the New York City labor market, a commuting distance of
approximately 30-35 miles; (b) Magliochetti forfeited her
right to backpay for at least the period subsequent to
January 23, 1976, when she quit her job in Jacksonville,
Florida, to return to Nassau County; and (c) the claimants'
entitlement to the $5 raise was not shown. 3 The General
Counsel, of course, disagrees with these contentions, which
are considered below.
its answer to the backpay specification that the latter document omitted
Feivelson's interim earnings as a waitress and that she incurred willful losses
when she withdrew from the labor market by training as a shorthand
reporter and thereafter by refusing available jobs for which she was thus
qualified. The record is barren of any evidence to support these assertions.
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WHLI RADIO
II. ANALYSIS AND CONCLUDING FINDINGS
A. With Respect to Claimants' Failure To Seek
Employment in New York City
Before discussing the critical question of the claimants'
obligation to broaden the area of their search for interim
employment to New York City, it may be well to first
consider their efforts to locate employment in the Nassau
County, Long Island, area. Feivelson has a bachelor of arts
degree from college with a major in French. She was
employed for 4 years at the Respondent's radio station,
WHLI, in Hempstead, Nassau County, Long Island, at
which time she resided in Levittown, also in Nassau
County. 4 She was a copywriter whose principal job was
writing commercials which were read over the radio.5 She
also handled community announcements, maintained
radio logs, answered telephone calls and the switchboard
"a little," and did other things of that nature. At the time of
her termination, she was paid a weekly salary of $131.50.
According to Feivelson's uncontradicted and credible
testimony, during the backpay period she was always
available for recall to her former position with the
Respondent. In the meantime, she received unemployment
insurance benefits from the New York State Unemploy-
ment Division in Hicksville, Nassau County, utilizing its
job placement office and the assistance of an assigned job
counselor who tried to secure employment for her as a
copywriter in advertising or in any job involving writing or
for which she might be qualified. She was accordingly
referred to a number ofjobs but was not hired. In addition,
she enlisted the services of various named private profes-
sional employment agencies in Nassau County in an effort
to obtain such jobs. She informed the employment agencies
of her background, training, and experience; furnished
them with resumes; indicated to them her willingness to
take any job available in radio, television, newspaper, or
advertising in the areas of her special competence and
experience. She also expressed to the employment agencies
a disposition to take any other job that came along. One of
the agencies gave her a typing and stenography test in
which she did not do well.
In addition to the foregoing, Feivelson personally or
through the services of the counselor at the New York State
job placement office made telephone inquiries at several
radio stations located in Nassau County for a position as a
copywriter, or continuity writer, or other positions which
required creative writing ability, only to receive responses
that there were no openings. Moreover, Feivelson regularly
consulted "want ads" in the newspapers, which she
answered by sending her resumes in application for those
jobs to the indicated post office box numbers or directly to
4 In May 1976, after she rejected the Respondent's reinstatement offer,
she moved to Bellmore. Long Island.
s Feivelson testified that her specialized experience was limited to writing
short radio commercials which is a very narrow field as it involves writing
for oral delivery which is quite different from other forms of writing.
6 In evidence is NLRB Form CPL-916. which was filled out by
Feivelson on July 13. 1976, and filed with the Regional Office on July 26,
1976. It contains, among other things, a statement of the claimant's efforts
to secure employment during the backpay period. including registration
with private employment agencies: checking newspaper "want ads": and
personally seeking employment from named employers, noting the results of
the employers where designated. Here, too, Feivelson met
with no success. Furthermore, she made unproductive
visits to various employer establishments to apply for
vacant positions.6 Many times she was informed that she
was overqualified for lower level job openings. Although
Feivelson was at all times during the backpay period
available for and sought work,7 she only managed to
obtain two clerical positions.8
Feivelson's above-described search for employment was
confined to the Nassau County area but did not include a
personal application for work at a television studio or a
cable television station located there. Concededly, she
made no real effort to find radio or other work in New
York City, even though she was aware that there were more
radio stations in New York City than in Nassau County.
The only attempt to secure employment there was in 1974
when she applied for a job as a copywriter, or a continuity
or other creative writer, with a company which made
commercials for radio, television, public service, and
educational programs. She also called an advertising
company, as an individual had suggested that she do. In
neither case was a job opening available. Feivelson
admitted that she really did not want to do radio work in
New York City unless the pay would be high enough to
make commuting from Nassau County worthwhile. How-
ever, she doubted that radio work in New York City paid
well.
Concerning Magliochetti's efforts to secure employment,
the following is based on her uncontroverted testimony
which I credit. She worked for the Respondent for 7-1/2
years, starting as a copywriter. At the time of her discharge,
she held the position of continuity director for which she
was paid $160 a week. Her duties at that time entailed
coordinating commercial copy, taping commercials and
preparing them for the air, editing, rewriting, and cutting
copy, and keeping Federal Communication Commission
and other records.
Magliochetti was available for work and actually sought
employment during the backpay period except for a I-week
vacation she had taken, 2 weeks she had spent in
connection with her marriage, and her employment of less
than 3 months in Jacksonville, Florida.9 She registered for
unemployment benefits with the New York State Unem-
ployment Insurance Division and for employment with its
job placement office, requesting referral to a copy,
continuity, or other writing job she was qualified to
perform. Although applicants were required to come to the
placement office about once a month, she visited it more
often, probably once every week or two. She, however, was
never referred out to any job. In addition to the state
placement service, Magliochetti also registered for writing
jobs with at least six private employment agencies, one of
her efforts. Because Feivelson had not kept records of her search for
employment, the list is incomplete and of necessity is based upon her
recollection at the time when the form was filled out.
I Except. however, for a short vacation which was taken into account in
the backpay specification.
I The interim earnings from those jobs are credited to the Respondent in
the backpay specification.
9 Her withdrawal from the Nassau County area labor market during
those periods and her earnings from her Jacksonville job are taken into
account in the backpay specification.
327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which informed her that it would check the radio stations
in the Nassau County area. Here, too, her efforts were
unproductive. She also personally solicited jobs from
several radio stations in the Nassau County area but
without success. However, as will be subsequently dis-
cussed, she did obtain a position with a radio station in
Jacksonville, Florida, which she held for less than 3
months. Magliochetti's attempts to obtain a writing
position included continuously answering newspaper ads
placed by advertising and other companies which publi-
cized such job openings. Although she mailed resumes to
these companies directed to the indicated post office box or
address, she received no responses. Because she had some
experience as an assistant editor in a newspaper, Maglio-
chetti informed the New York State placement service and
the private employment agencies of her availability for a
writing job with any newspaper organization. She herself
made job inquiries at two Long Island weeklies. No job
was forthcoming from these sources either. She further
unsuccessfully applied for work at several advertising
agencies and other employers,' 0 but did not personally
seek employment with either the television or cable
television station located in the Nassau County area. After
taking a course in floral designs, Magliochetti also sought
work in flower shops. When Magliochetti returned to her
home in Glen Cove, Long Island, from Jacksonville,
Florida, she resumed her quest for employment in the same
manner as she had sought work before her departure,
utilizing employment agencies, answering ads, and person-
al solicitation.
Magliochetti admitted that she virtually confined her
search for employment to the Nassau County area where
she had always worked. The only exception was after her
return from Jacksonville, Florida, when she made tele-
phone inquiries of radio stations WNEW, ABC, and NBC
in New York City regarding a position. At the hearing,
Magliochetti expressed an aversion to travel to New York
City to look for work, although she stated that she might be
willing to accept a job there if it paid well enough to
compensate her for the inconvenience. Magliochetti also
estimated the distance between her home in Glen Cove,
Long Island, and Manhattan, New York City, to be
approximately 35 miles.
Jerome Karpf, the Respondent's vice president and
program director with 35 years' experience in the radio
0o In evidence is Magliochetti's NLRB Form CP.- 916 dated July 17.
1976, which she filed with the Board's Regional Office on July 20. 1976. This
document, like Feivelson's, contains an incomplete account of Magliochet-
ti's search for employment based on her recollection at the time the form
was filled out. She, too, had kept no records of her efforts.
I Appended to the Respondent's brief is a list of 29 commercial and 6
noncommercial radio stations assertedly located in New York City. Of the
six noncommercial stations. three are operated by universities. two by New
York City, and one by the Board of Education of New York City. The
appendix also lists six Nassau County commercial radio stations and the
same number of noncommercial stations, of which four are operated by
colleges and two by high schools. With respect to television stations, the
appendix identifies as located in New York City seven commercial stations
and a noncommercial station operated by the New York City Board of
Education and one operated by New York City. One noncommercial
television station is listed for Nassau County.
The appendix also names three New York City "Employment Agencies
Specializing In Copywriters." two Manhattan "Cable T.V. Companies That
Originate Programming." and one in Nassau County. Lastly, the appendix
broadcasting business, testified, in substance, that there
were greater job opportunities as a radio station copywriter
or continuity director for individuals with Feivelson's and
Magliochetti's experience in Manhattan, New York City,
than in the Nassau County area. He further testified that
there were four or five radio stations in Nassau County as
compared to about 65 radio stations heard in New York
City, although the Respondent concedes in its brief that 29
commercial radio stations are actually situated in New
York City. He also testified that there are a few employ-
ment agencies in Manhattan, New York City, which
specialize in the radio and television broadcasting busi-
ness." Undeniably, neither Feivelson nor Magliochetti
consulted such New York City employment agencies for
jobs. There is also no question that there are Nassau
County residents who are employed in New York City and
daily use the Long Island railroad to commute to work.
It is not, nor can it be, seriously contended that Feivelson
and Magliochetti did not diligently seek employment in
Nassau County where they resided and were last employed
by the Respondent. As indicated above, the Respondent,
however, does maintain that by not extending their efforts
to New York City where greater opportunities exist for
employment as a copywriter or continuity director, or in
the field of other creative writing at a radio or television
station, or with an advertising agency, newspaper, or
magazine publishing company, Feivelson and Magliochetti
willfully incurred losses in earnings, thereby forfeiting their
right to backpay. The General Counsel, on the other hand,
argues that the Respondent has failed to show that under
the facts and circumstances of this case the claimants were
obligated to seek employment in New York City. I find
merit in the General Counsel's position.
The Respondent is correct that, although discriminatees,
Feivelson and Magliochetti were, nevertheless, required to
minimize their loss of earnings by making a reasonable and
diligent search for interim employment which was suitable
in light of their background, training, and experience.
However, it is equally well settled that the burden of
proving a willful neglect by the claimants to perform this
obligation to mitigate losses rests upon the wrongdoer-
sets forth more than 70 "Advertising Agencies Handling Major Radio and
Television Accounts" and several Long Island railroad train schedules. By
letter dated April 12. 1977, the Respondent submitted additional commuter
information assertedly obtained from the Long Island railroad to be
included in the appendix to its brief.
Thereafter. the Administrative Law Judge received a letter dated April
12. 1977, from the General Counsel objecting to the Respondent's action of
submitting an appendix to its brief "which is in reality a compilation of
supposed 'facts' not in evidence in this proceeding" and requesting that the
appendix be disregarded and references to it be stricken from the
Respondent's brief. By letter dated Apnl 15. 1977, the Respondent opposed
the General Counsel's request. Manifestly, using an appendix to a bnef is
not an appropriate way to furnish evidence to support a party's position and
the General Counsel's request is accordingly granted. However, it is
common knowledge that there are more radio and television stations located
in New York City than in Nassau County and that there are people residing
in Nassau County who commute to their jobs in New York City and to this
extent only I take official notice of the information thus presented by the
Respondent.
328
WHLI RADIO
here, the Respondent-who had placed the claimants in
this difficult situation by its discrimination against them. e2
On the basis of the record before me, I find that the
Respondent has not established that Feivelson and
Magliochetti willfully incurred a loss of earnings by not
making an adequate search for suitable employment in
New York City. Clearly, the record contains no evidence
that during the backpay period positions were available in
New York City which were comparable to those held by
the claimants at the time of their discriminatory discharge
and which they were qualified to perform. No evidence was
adduced that such job openings were being advertised
during the backpay period or that employers were utilizing
any employment agency to recruit such help or that the
claimants had declined to accept any New York City job
offered them. In contrast, there is undisputed evidence that
there were job openings in Nassau County for which the
claimants assiduously applied, albeit without success.
Thus, the record does not indicate that a search for jobs in
New York City would have been significantly more
rewarding than in the Nassau County area. Even assuming
the availability of jobs in New York City falling within the
area of the claimants' competence, there is no showing
what the prevailing salary scales were to demonstrate the
feasibility of commuting to work in New York City from
their homes in Nassau County. Moreover, apart from the
foregoing, I have serious doubts that the Respondent has
established that Feivelson and Magliochetti were duty-
bound to seek employment in New York City in view of
the distance, time, expense, and inconvenience involved in
commuting from their homes in Nassau County.' 3 It
appears that the distance between the claimants' homes
and New York City is approximately 30 to 35 miles; that it
would take them about an hour to reach the New York
City terminal on the Long Island railroad: 14 and that the
commutation ticket fare cost somewhat less than $67 a
month during the backpay period. Of course, this excludes
the additional time and expense normally incurred in
traveling between the Long Island railroad station and the
claimants' residences in Nassau County and between their
places of employment in New York City (assuming they
succeeded in obtaining employment there) and the railroad
terminal in New York City. In this regard, the Board and
the courts have recognized that a discriminatee "need not
search for or accept employment which is . . . unreason-
ably distant from his home." t5 The fact that the claimants
would normally be entitled to reimbursement for addition-
al travel expenses incurred in connection with interim
employment, as the Respondent notes, manifestly does not
serve to impose a duty on them to seek employment at
unreasonably distant places from which they would
otherwise be excused. Similarly, the claimants were not
obliged to look for jobs in New York City simply because
other Nassau County residents commute to work in New
12 Florence Printing Co. v. N.LR B.. 376 F.2d 216. 223 (C.A. 4, 1967).
enfg. 158 NLRB 775. 777 (1966), cert. denied 389 U.S. 840 (1967); Ohio
Hoist Manufacturing Co.. 202 NL RB 472. 473 (1973); The Madison Courier,
Inc., 202 NLRB 808. 809 (19731.
13 In the course of his testimony. Jerome Karpf. the Respondent's vice
president. expressed his good fortune that he commuted from his home in
Queens. New York City, to his place of employment in Hlempstead, Nassau
Count), because he thus traveled against traffic.
York City for reasons and under circumstances not
disclosed in the record. Finally, the Respondent has not
shown at what stage in the claimants' search for employ-
ment in Nassau County they were required to abandon
such efforts and look for a job in New York City.
All things being considered, I find, contrary to the
Respondent's contention, that the Respondent did not
sustain its burden of proving that Feivelson and Maglio-
chetti had failed to make a diligent search for interim
employment warranting a denial of backpay. Whatever
doubt or uncertainty there might be in this respect
regarding the sufficiency of the claimants' efforts to seek
suitable interim employment it must be resolved against
the Respondent wrongdoers. In sum, I find that the
claimants, under the circumstances related above, did not
forfeit the right to backpay because they did not diligently
look for work in New York City.
B. With Respect to Magliochetti's Quitting Her
Jacksonville, Florida, Job
Magliochetti married her husband on April 20, 1975,
during the backpay period. The couple lived in the home of
Magliochetti's parents in Glen Cove, Long Island, New
York. When her husband received an offer of a job in
Jacksonville, Florida, about the end of October 1975, the
couple packed their belongings and drove to Jacksonville.
At the time of this move, Magliochetti, as indicated above,
was still unemployed, despite her efforts to secure a job in
the Nassau County area. As soon as the couple arrived in
Jacksonville in the beginning of November 1975, Maglio-
chetti telephoned two radio stations for a job and following
an interview the next day was hired by Rowland Broad-
casting Company (radio station WQIK) at $150 a week,
which was $10 less than she had earned at the time she was
discharged by the Respondent. On November 4, Maglio-
chetti started work, performing copywriting duties to which
traffic functions were later added. These were duties she
had previously performed while in the Respondent's
employ.
In the meantime, Magliochetti's husband became disillu-
sioned with his job, which was not the kind he had
originally been offered and paid less than the promised
salary, making it difficult for the couple to maintain
themselves financially. As a result, the couple decided to
return to Glen Cove, which they did when Magliochetti
voluntarily quit her Jacksonville job on January 23, 1976.
Upon their return to Glen Cove, the couple again set up
home with Magliochetti's parents and Magliochetti, as
related above, resumed her search for work. The backpay
specification credits the Respondent with her interim
earnings in Jacksonville for the period of her employment
there from November 4, 1975, through January 23, 1976.
The Respondent contends that, by voluntarily quitting
her interim employment in Jacksonville, Magliochetti
4 Not surpnsingly. the Respondent does not suggest commuting to New
York City by automobile,
15 NLR B. v. The Madison Courier, Inc., 505 F.2d 391, 395: cf. Nickev
Chevrolet Sales. Inc., 160 NLRB 1279, 1280(1966).
16 N.LR.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569. 572
573 (C.A. 5, 1966); lUoyd's Ornamental and Steel Fabricators, Inc., 211
NLRB 217, 218 (1974): Southern Household Products Company., Inc., 203
NLRB881 (1973): TheMadisonCourier. Inc., 202NLRB808,811 (1973).
329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willfully incurred a loss of earnings and therefore lost her
right to backpay for the period subsequent to January 23,
1976. The General Counsel argues, however, that Maglio-
chetti had good reason to quit her interim employment
because the couple found it difficult to support themselves
in Jacksonville when her husband's job offer did not
materialize as expected and that, since she resumed her
efforts to locate a job on her return to Glen Cove, her right
to backpay was not impaired. I find merit in the General
Counsel's position.
The Board has held that circumstances may arise which
justify a claimant's voluntary termination of interim
employment without forfeiting his right to backpay for a
subsequent period where it becomes "economically unfeas-
ible for . . . [the discriminatee] to continue this employ-
ment, and deprive himself of any real opportunity to find
more suitable employment elsewhere."17 In that case, the
Board found a valid reason for quitting an interim job
where the job paid the discriminatee less than he had
earned in the respondent's employ and entailed the
expenditure of a considerable portion of the discriminatee's
net earnings for daily travel to and from work. In another
case,"' the Board similarly found justification for a
voluntary termination of interim employment and hence
no willful loss of earnings where the discriminatee left his
job because the pay was insufficient to support his family.
In a third case,19 the Board held that it was reasonable for
two discriminatees to abandon interim employment "in an
honest search for more rewarding or less onerous jobs" and
that in so doing they did not remove themselves from the
labor market.
I find that the rationale underlying the cited cases
equally controlling here, where Magliochetti obtained
interim employment in Jacksonville, beyond the vicinity of
the applicable labor market, 2 0 at a lesser salary than that
the Respondent had paid her, and left the Jacksonville job
to return home in Glen Cove to look for another position
because the money she and her husband earned in
Jacksonville was insufficient to support them. In sum, I
conclude that Magliochetti's termination of her Jackson-
ville employment, under the circumstances, was not so
unreasonable as to constitute a willful loss of earnings and
that therefore backpay to which she would otherwise be
entitled for the period subsequent to January 23, 1976,
should not be abated.
C. With Respect to the Wage Raise
During the backpay period, July 29, 1974, to April 9,
1976, the Respondent employed 12 office employees, 21 in
which group the claimants belonged, who were not
represented by any labor organization. Six of these
employees received a pay increase of $5 in September 1975
or on a prior date within the backpay period.22 Two of
"? Sam Tanksley Trucking, Inc., 210 NLRB 656, tn. I (1974).
18 Champa Linen Service Companyv, 222 NLRB 940. 941 942 (1976).
19 Chef Nathan Sez Eat Here, Inc., et a, 201 NLRB 343, 345 (1973).
20 Champa Linen, supra at 942.
21 The job titles of the employees in this group included continuity
director, sales secretary, switchboard operator, music department clerk,
program director's secretary, traffic clerk, and bookkeeper's clerk.
2 Kraus, September 1, 1975; Kazdoy, October 5, 1974; Solomon.
September 6. 1975: Hill, May 31. 1975: Costello, September 1, 1975: and
Rowley, September 6, 1975.
them also received an additional raise during this period. 23
Six employees were given no increase at all. However, three
of them had worked for the Respondent for only about 2
months or less.24
According to the Respondent's vice president, Karpf, the
Respondent had never had a policy of automatic wage
increases, only one based on merit after a performance
review conducted "[s]ometimes infrequently, sometimes
more often." He also testified that in 1974, 1975, and 1976
the Respondent experienced substantial financial business
losses. However, the Respondent nevertheless granted
salary raises on or about October 1, 1975, assertedly on a
merit basis. Karpf also conceded on the witness stand that
if Feivelson had received a pay increase before her
discharge it would have been a merit one. It is undisputed
that Feivelson, who had entered the Respondent's employ
at $95 a week, had been granted more than five wage
increases, the last one being about 1-1/2 years before her
termination. It further appears that Magliochetti, whose
starting salary was $80 or $85 a week, also had received a
number of increases, the final one being about 6 to 12
months before her discharge.
The Respondent contends that, in view of its consistent
policy to give increases only on the basis of merit and in
view of its financial losses, it would be plain conjecture to
conclude that the claimants would have received increases
had they been on its staff on October 1, 1975. Therefore,
the Respondent argues that the amendment of the backpay
specification and the General Counsel's claim to add to the
backpay computation a $5 wage raise as of the indicated
date should not be allowed. The General Counsel urges, on
the other hand, that since Feivelson and Magliochetti had
regularly received wage increases throughout the period of
their employment with the Respondent it is a reasonable
and fair assumption that they would have received a $5
increase at least by October 1, 1975, had they not been
victims of discrimination.
I agree with the General Counsel that, on the above-
related facts of the case, an inference is warranted that
Feivelson and Magliochetti would have been granted a $5
wage increase by October 1, 1975, if they had been treated
fairly and without discrimination. Not only had they been
regular recipients of merit increases in the past, but it is
significant that the Respondent neither affirmatively
contends nor offered any evidence to show that they lacked
merit to qualify for an increase during the backpay
period. 25 Even if there might be some uncertainty whether
the claimants would have received the wage increase in
question, such uncertainty must be resolved against the
Respondent who created it by its discriminatory conduct.
As the Fifth Circuit Court of Appeals had the occasion so
aptly to observe in a comparable situation: 26
23 Costello, September 1, 1974; and Rowley, October 17, 1975.
24 Azzaloni, hired August 26, 1974. left employ September 20, 1974;
Marcus hired October 21, 1974, left December 30, 1974; and Babyak, hired
January 29, 1975, left April 2, 1975.
25 Lee Cylinder Division of Golay & Co., Inc., 184 NLRB 241, 242 (1970):
Southern Household Products Compan),, Inc., 203 NLRB 881, 884-885 (1973).
26 N.LR.B. v. Miami Coca-Cola Bottling Companr: 360 F.2d 569, 572-
573 (C.A. 5, 1966). See also other citations in fn. 16, supra.
330
WHLI RADIO
. . . the Board has, as a matter of policy-one that
seems reasonable-consistently taken the view that
when an employer's unlawful discrimination makes it
impossible to determine whether a discharged employ-
ee would have earned backpay in the absence of
discrimination, the uncertainty should be resolved
against the employer.
Accordingly, I find that the claimants are entitled to
have a $5 wage raise as of October 1, 1975, included in the
computation of backpay due them under the Board's
Order. This means that $135 will be added to the amount
determined in the backpay specification to be owing to
them.
ORDER
Upon the foregoing findings and conclusions and the
entire record in this case, it is ordered that the Respondent,
F. M. Broadcasting Corporation, d/b/a WHLI Radio,
Hempstead, Long Island, New York, its officers, agents,
successors, and assigns, shall pay the claimants the amount
set forth opposite their names:
Joanne Magliochetti
(Dougherty)
Helaine Feivelson
$12,024
$10,175
Each of the foregoing sums shall accrue interest at the rate
of 6 percent per annum to the date of payment. There shall
be deducted from each of the above amounts social
security taxes and income tax withholdings as required by
Federal, state, and local laws.
331