Wright Electric, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 2001

334 N.L.R.B. 1031 (N.L.R.B. 2001)

WRIGHT ELECTRIC 1031
Wright Electric, Inc. and International Brotherhood
of Electrical Workers, Local 292, AFL–CIO.
Cases 18–CA–12820, 18–CA–13193, and 18–CA–
13369
August 9, 2001
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On February 14, 2001, Administrative Law Judge
Jerry M. Hermele issued the attached Supplemental De-
cision.1 The Respondent filed exceptions and a support-
ing brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
The backpay period at issue in this case began in the
second quarter of 1994, when the Respondent unlawfully
refused to hire discriminatee Louis J. Lutz, and ended in
the second quarter of 2000, when Lutz accepted the Re-
spondent’s offer of employment and began work. Lutz
was able to find employment for 23 of the 24 calendar
quarters of the backpay period. The gross amount of
backpay that the judge found the Respondent must pay to
Lutz accrued solely during a 7-week period when Lutz
was unemployed, which constituted only one-half of one
calendar quarter of the entire 24-quarter backpay period.
The Respondent asserts that it owes nothing to Lutz, be-
cause he failed to make a reasonable effort to secure em-
ployment during those 7 weeks in the second quarter of
1994.
In seeking interim employment, a backpay claimant
need only follow his regular method for obtaining work.
Ferguson Electric Co., 330 NLRB 514 (2000), enfd. 242
F.3d 426 (2d Cir. 2001).2 The “sufficiency of a discrimi-
natee’s efforts to mitigate backpay are determined with
respect to the backpay period as a whole and not based
on isolated portions of the backpay period.” Electrical
Workers IBEW Local 3 (Fischbach & Moore), 315
NLRB 1266 (1995), citing I.T.O. Corp. of Baltimore, 265
NLRB 1322 (1982). The burden is on the employer to
establish that an employee failed to make reasonable
efforts to find interim work. Id.

1 The Board’s underlying decision is reported at 327 NLRB 1194
(1999), enfd. 200 F.3d 1162 (8th Cir. 2000).
At fn. 1 of his decision, the judge observed that upon publication,
“unauthorized changes may have been made by the Board’s Executive
Secretary to the Presiding Judge’s original version.” It is the Board’s
established practice to correct any typographical or other formal errors
before publication of a decision in the bound volumes of NLRB deci-
sions.
2 Accord,: Tualatin Electric, 331 NLRB 36 (2000), enfd. 253 F.3d
714 (D.C. Cir. 2001).
Lutz’ usual practice of obtaining work during his 16
years as a union member was through the Union’s hiring
hall. Lutz registered for work with the Union on March
3, 1994, and re-registered each month thereafter. By
following his usual practice, Lutz was able to find em-
ployment for the entire, 6-year backpay period starting in
May 1994, and ending in June 2000, except for the 7-
week period referred to by the Respondent.3
The record clearly shows that Lutz did all that a dis-
criminatee is legally required to do in order to mitigate
his damages: He diligently (and for the most part suc-
cessfully, as it turns out) followed his usual method of
obtaining work over a 6-year period, including the 7-
week period on which the Respondent focuses. The Re-
spondent’s showing that Lutz’s efforts were unsuccessful
during an isolated portion of the backpay period is not
sufficient to satisfy its burden of establishing that he
failed to diligently seek interim employment during the
backpay period as a whole.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Wright Electric, Inc., its offi-
cers, agents, successors, and assigns, shall pay to Louis J.
Lutz the sum of $5132, with interest to be computed in
the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), minus tax withholdings required
by Federal and state laws.

Timothy B. Kohls, Esq., Minneapolis, Minnesota, for the Gen-
eral Counsel.
Gregg J. Cavanagh, Esq., Maple Grove, Minnesota, for the
Respondent.
SUPPLEMENTAL DECISION1
I. STATEMENT OF THE CASE
JERRY M. HERMELE, U.S. Administrative Law Judge. On
March 31, 1999, the National Labor Relations Board affirmed
the November 26, 1996 decision of Administrative Law Judge
William J. Pannier III, which found that the Respondent,
Wright Electric, Inc., violated Section 8(a)(1) and (3) of the
National Labor Relations Act by refusing to hire Louis J. Lutz
3 Moreover, Lutz registered for work through the Minnesota De-
partment of Economic Security.
1 Upon any publication of this Supplemental Decision by the Na-
tional Labor Relations Board, unauthorized changes may have been
made by the Board’s Executive Secretary to the Presiding Judge’s
original version.
334 NLRB No. 129
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1032
for a job because of his union membership.2 On January 19,
2000, the United States Court of Appeals for the Eighth Circuit
enforced the Board’s decision ordering the Respondent to offer
Lutz a job. Lutz then accepted the offer and started working for
the Respondent on June 19, 2000, but a dispute arose over the
amount of backpay he was owed as a result of the Respondent’s
failure to hire him in 1994. Thus, the General Counsel issued a
“compliance specification” on September 29, 2000, alleging
that the Respondent owed Lutz $5164 in backpay for the sec-
ond quarter of 1994 (May 9 to June 30) when the Respondent
hired someone other than Lutz and Lutz was not working.
Other than this brief period, Lutz worked continuously through
the present. On October 19, 2000, the Respondent filed an
answer, claiming that because Lutz failed to make a reasonable
effort to obtain employment in 1994, other than with the Re-
spondent, he is ineligible for any backpay.
So, a trial was held on November 2, 2000 in Minneapolis,
Minnesota, during which the General Counsel presented only
written evidence and the Respondent called five witnesses.
Both parties stipulated that the proper backpay figure for Lutz
is $5132 (Joint Ex. 1). Finally, both parties filed briefs on De-
cember 6, 2000.
II. FINDINGS OF FACT
Louis Lutz has been a member of the International Brother-
hood of Electrical Workers, Local 292, AFL-CIO (the Union)
since 1978, and a journeyman electrician since 1981 (Tr. 40-41,
53). In the course of his career, he has relied upon the Union
for referrals to jobs, many of which have been short-term in
length (Tr. 54-55). For example, from October 1993 to January
1994, the Union referred him to six employers, all of which
jobs lasted two weeks or less. The last of these jobs ended on
January 28, 1994 (R. Ex. 1).
Lutz employed several methods to obtain work thereafter.
First, as required by the Union’s rules, he visited the Union
office every month to resign the out-of-work list, doing so on
March 3, March 28, April 27, May 31, and June 30. Despite
hundreds of requests from employers for union journeymen,
there were hundreds more names in front of Lutz’s. Thus, Lutz
received no job offers and was out of work for 5-1/2 months in
the first half of 1994—the longest such stretch in his career (Tr.
7-8, 20-25, 35, 37, 45, 56). Second, union organizer Michael
Priem asked Lutz if he would be interested in two job possibili-
ties Priem had located in the Minneapolis Star-Tribune. Nei-
ther of these advertisements named the employer and Priem
suspected they were both nonunion, thus creating a salting op-
portunity for an out-of-work union member to obtain employ-
ment and organize the employees for the Union. Priem asked
Lutz if he could send Lutz’s resume to these two employers,
one of which was the Respondent. Lutz agreed and prepared a
resume, which Priem sent to the blind ads on March 17, 1994,
along with cover letters identifying Lutz as a union electrician.
Lutz never received a response from either employer. But the
Respondent hired Peter Abrahamson, who never responded to

2 The Board remanded a portion of Judge Pannier’s decision on the
matter of the Respondent’s state court lawsuit against the Union, direct-
ing the Judge to decide the alleged violation of Section 8(a)(1) and (4)
when the state court action became final. That action is still pending.
the newspaper ad, on May 9, 1994 (G.C. Ex. 1(a); R. Ex. 2; Tr.
47, 52, 60-66). Third, in April, Lutz used the state unemploy-
ment office to apply for electrician jobs with 3M, General
Mills, Northwest Airlines and Ford Motor Company, all of
which he assumed were unionized employers. From this group,
Lutz obtained two interviews but no job offers (Tr. 49-50, 52,
53). Fourth, he read job advertisements in the Minneapolis Star
Tribune and St. Paul Pioneer Press “all the time” he was unem-
ployed but found “very few ads” and applied to none (Tr. 50-
51, 58-60).
According to Priem, there were very few available jobs for
electricians in early 1994 (Tr. 64). But according to the owners
of two nonunion electrical employers in suburban Minneapolis,
Cities Electric, Inc. and West Star Electric, they needed jour-
neyman electricians in the first half of 1994. To that end, they
ran five newspaper advertisements from January 1994 to June
1994 in the Minneapolis Star Tribune and St. Paul Pioneer
Press newspapers, but received few responses. According to
Steven Sowieja and Curtis Huelsnitz, Lutz was qualified and
would have been considered for jobs with their companies if he
applied in 1994. Also according to both men, in view of the
scarcity of journeymen electricians then, and the great demand
for their skills, especially during the springtime when many
jobs were gearing up, Lutz should have found work within a
matter of weeks (Tr. 70-76, 81, 86, 87-97). Both of these em-
ployers paid $14 to $16 an hour in 1994, compared to the Un-
ion’s rate of $21.26 (Tr. 77, 95, 98). Including the ads run by
Sowieja and Huelsnitz, there were approximately 70 similar ads
seeking journeymen electricians in May and June 1994 in the
Minneapolis Star Tribune and St. Paul Pioneer Press (R. Ex. 4).
Lutz went on vacation on June 30, 1994, and informed the
Union not to refer any jobs to him until July 11 (Tr. 29, 46).
Finally, on July 11, the Union referred him to a job at Gephart
Electric (R. Ex. 1; Tr. 55). Thereafter, Lutz worked at three
other employers through mid-1996, and thereafter at the Hen-
nepin County Medical Center through 2000. Then, following
the Court of Appeals’ January 2000 decision, the Respondent
offered Lutz a position which, for reasons unexplained in the
record, he accepted on June 19, 2000.
III. ANALYSIS
It is very well-settled that, in compliance proceedings, the
General Counsel has the burden to establish the gross amount
of backpay owed to the discriminatee. Then, the burden shifts
to the employer, who has committed the illegal unfair labor
practice, to produce evidence that would mitigate its liability.
NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir.
1963). For example, the employer must show that the dis-
criminatee failed to make reasonable efforts to find new em-
ployment which was substantially equivalent to the position he
was not hired for and was suitable to his background and ex-
perience. Southern Silk Mills, Inc., 116 NLRB 769, 773
(1956). But because the employer has already been adjudged to
be a wrongdoer, any doubts should be resolved in favor of the
discriminatee, who is the wronged party. United Aircraft
Corp., 204 NLRB 1068 (1973). Thus, it is okay that the dis-
criminatee’s job search was not successful or failed to exhaust
all possible leads; rather, it is enough that, under all the circum-
WRIGHT ELECTRIC 1033
stances, he made a good–faith search. Pepsi-Cola Bottling Co.
of Fayetteville, 330 NLRB 1043 (2000); Lundy Packing Co.,
286 NLRB 141, 142 (1987).
In the instant case, the General Counsel has established the
gross amount of backpay owed to Louis Lutz, $5132, all of
which accrued during the second quarter of 1994. Thus, the
only issue, as advanced by the Respondent, is whether Lutz
failed to make a reasonable effort to secure employment from
May 9, when the Respondent hired someone other than Lutz for
its advertised position, to June 30, the end of the second quarter
of 1994.3 To summarize the evidence on this point, Lutz was
out of work from January 28 to July 11, 1994, the longest
stretch of unemployment in his 20-year career as a journeyman
electrician. So he registered monthly with the Union’s hiring
hall list for out-of-work members, but this method yielded no
jobs. He also registered with the state unemployment office,
which yielded two interviews but no offers. Lutz also prepared
a resume at the request of union organizer Michael Priem,
which Priem forwarded to two anonymous, nonunion job
advertisements in the newspaper, one of which turned out to be
the Respondent. Also, Lutz read the Minneapolis Star-Tribune
and St. Paul Pioneer Press but found “very few ads” and ap-
plied to none.
Based on the foregoing, the Presiding Judge concludes that
Lutz made a reasonably diligent effort to secure interim em-
ployment in 1994. Clearly, the most troubling aspect of
Lutz’sjob search during the longest stretch of unemployment in
his professional career was his total disregard of 70 newspaper
advertisements, by the Respondent’s count, in the Minneapolis
Star Tribune and St. Paul Pioneer Press in May and June 1994,
the vast majority of which specifically sought “journeymen
electricians.” Lutz acknowledged that he saw these advertise-
ments “all the time” yet ignored them because there were “very
few.” But the evidence, proffered by the Respondent in its
Exhibit 4, clearly shows the opposite. Lutz’s lack of action is
even more puzzling given his preparation of a resume for
Priem, which Priem then used to apply for the position adver-
tised anonymously by the Respondent in the Star Tribune.
Further, Lutz’s failure to recall at trial any reason for his inac-
tion on the newspaper ads was not particularly candid (Tr. 60).
To be sure, the mere existence of 70 or so job advertisements
and Lutz’ failure to apply for any of them does not by itself
mean that Lutz failed to make a reasonable effort to search for
work. Arthur Young & Co., 304 NLRB 178, 179 (1991). But
the Respondent produced two witnesses at trial, Steven Sowieja
and Curtis Huelsnitz, both local electrical company owners
since the 1980s, who ran some of these job advertisements in
1994 and listened to Lutz’ testimony. Both witnesses credibly
opined that Lutz was qualified for the jobs they advertised and
that he would have been seriously considered had he applied.
Further, both witnesses agreed that the demand for journeymen
electricians in 1994 was high and the supply of qualified appli-
cants was low. Given the familiarity of both employers with

3 The Respondent initially contended that Lutz may have had interim
earnings during this period (Joint Ex. 1). But the evidence at trial
clearly indicated that he did not, and the Respondent dropped this de-
fense in its brief.
the local job market, the Presiding Judge gives significant
weight to their testimony. See Fischback/Lord Electric Co.,
300 NLRB 474, 477 (1990). Compare Food & Commercial
Workers Local 1357, 301 NLRB 617, 621 (1991) (labor ex-
pert’s testimony rejected where he did not consider the dis-
criminatee’s particular credentials). Hence, it is concluded that
Lutz had a “reasonable expectation of success” had he applied
at either of these two companies, to say nothing of the other
companies’ numerous newspaper ads he ignored. Compare
Black Magic Resources, 317 NLRB 721, 722 (1995) (Respon-
dent failed to produce any evidence of available jobs). More-
over, all of the advertised jobs were apparently located in the
Twin Cities area. Also, the General Counsel does not suggest
that the Union prevented Lutz from applying for these jobs on
his own. Compare Tualatin Electric, 331 NLRB 36 (2000)
(possibility of subjecting discriminatees to internal union
charges by seeking work with nonunion contractors through
newspaper advertisements). Further, Lutz did not testify that he
rejected this course of action because the pay rates would have
been too low. On the contrary, as it turns out, both Sowieja’s
and Huelsnitz’s companies paid $14 to $16 an hour in 1994,
compared to the Union’s rate of $21–$26, which cannot be said
to be “well below” Lutz’s pay scale and thus a reason for his
inaction. Compare E & L Plastics Corp., 314 NLRB 1056,
1058 (1994). Finally, unlike Ferguson Electric Co., 330 NLRB
514 (2000), there is evidence regarding “the ‘universe’ of em-
ployers” to which Lutz might have applied for work—i.e., the
instant newspaper advertisements.
Nevertheless, as noted supra, the Respondent bears the bur-
den to show the unreasonableness of the discriminatee’s job
search and any doubts should be resolved in favor of the claim-
ant rather than the wrongdoer employer. United Aircraft Corp.,
supra. In this connection, Lutz followed his regular method of
obtaining work by registering with the Union every month. See
Ferguson Electric Co., supra. He also prepared a resume, at
Priem’s request, for use in a salting effort with two nonunion
employers, including the Respondent. Compare NLRB v.
Madison Courier, Inc., 505 F.2d 391, 404 (D.C. Cir. 1974)
(claimant made no individual application for employment in his
trade). Further, Lutz sought work with several employers
through the State unemployment office, which yielded two job
interviews. Thus, despite limiting his job search to unionized
employers, except for two nonunion salting targets, the prepon-
derance of the evidence warrants the conclusion that Lutz’ ef-
forts to obtain employment from May 9 to June 30, 1994 were
reasonable. Therefore, the Respondent owes Lutz $5132 in
backpay.
ORDER
Accordingly, IT IS ORDERED4 that the Respondent, Wright
Electric, Inc., its officers, agents, successors, and assigns,
4 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1034
SHALL PAY $5132 to Louis J. Lutz, together with interest to
be computed in the manner set forth in New Horizons for the
Retarded, 283 NLRB 1173 (1987), making the appropriate
deductions from any tax withholding required by State and
Federal laws.