Erlich's 814, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1979

241 N.L.R.B. 1114 (N.L.R.B. 1979)

)1. ('ISIONS OF NATIONAL LABOR RELATIONS BOARD Erlich's 814, Inc.; Erlich's Northwest, Inc.; Capri Launderers & Dry Cleaners, Inc. and Laundry, Dry Cleaning and Dye House Workers' International Union, Local No. 108, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America Erlich's 814, Inc.; Erlich's Northwest, Inc.; Capri Launderers & Dry Cleaners, Inc.; Erlich Cleaning Company and Laundry, Dry Cleaning and Dye House Workers' International Union, Local No. 161, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 14 CA 9244 and 14--CA 9298 April 24, 1979 SUPPLEMENTAL DECISION AND ORDER BY CHIAIRMAN FANNING AND MEMBERS JENKINS ANI) MURPHY On December 28. 1978. Administrative Law Judge Stanley N. Ohlbaum issued the attached Supplemen- tal Decision in this proceeding.' Thereafter, Respon- dents filed exceptions and a supporting brief. 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 Supplemental Decision in light of the excep- tions and brief and has decided to affirm the rulings, findings2 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 L.abor Rela- I he Board's original decisiol is reported ;it 231 NRB 1237 1977) Thereatter. the nited States ('ourt o Appeals lfor thie ighth Circuit en- tered its decision enforcing lie Board's Order. See 77 F 2d 68 1978). 2 Respondents have excepted iio certain credihilit lindings niade h the Administrative .;law Judge It is the Board's establhshed polics not tio over rule ;in Administrative I.;lw Judge's resolutionls ith respect to credihilit? unless the clear preponlderance ofI all of the relesalnt ecidence coninees us that the resolutilons are incolrrect Sunllduri [rn Hlu /i Prui,/lL, ili.. 91 Nl.RI 544 195)). enild 188 F:2d 362 (3d ('il. 1951) e have caretully examined the record ;Ili nd n basis tlir reversmng his lindings Respondents also assert that he Admiristrati ve I.an Judge's tiludilgs i lact and conclusions ,of law are the result hof bis andl prejudice and that his Order is hased, in part, upon a "'desire' IIt punlish these respondents" Alter a careful exa;lrinatilOl i1' the entire record. e ire slsfiedl that these allega- tions ae ithout merit Ihere is no basis itor illding tlit hi;as and prejudice existed mleres hbecause the Administra tic I a Ju idge ill.de significant lc- tual determinations in lavor oit the unla Nlulv dischilged eploee. As the Suprelie ('Cturt stated in N: 1 R Piihlrglh .siimliip ( ,,,7ipan. 337 LIS, 656. 659 (1949), "Illotal rejectiio i-i an ppoused svie% c;illult al itsell impugn the integrity or (lt petenlce oi ;I Ilier il 1act " tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondents, Erlich's 814 Inc., Erlich's Northwest, Inc., Capri Launderers & Dry Cleaners, Inc., and Erlich Cleaning Company, St. Louis, Mis- souri, their officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. SUPPLEMENTAL DECISION I. PRFI.IMINARY STATIiM-Nl; ISSUE S!ANI.I!Y N. OHI.BAUM, Administrative Law Judge: This proceeding was instituted by the Regional Director for Re- gion 14 of the National Labor Relations Board for the pur- pose of assessing backpay due to Jessie Mae Estes, an em- ployee who was unlawfully discharged by Respondents in violation of the National Labor Relations Act, as amended (231 NLRB 1237 (1977), enfd. 577 F.2d 68 (8th Cir., 1978)). T'he basic issue presented by the pleadings is the amount of backpay, if any, due to Estes from the date of her discharge (March 27, 1976) through the third' quarter (i.e., ending September 30) of 1977. The hearing, at which all parties participated personally and through counsel, was held before me in St. Louis, Mis- souri, on October 16, 1978, and on November 20 briefs were received from General Counsel and Respondents. Tes- timony, briefs, and contentions have been carefully consid- ered. Upon the entire record and my observation of the testi- monial demeanor of the witnesses, I make the following: II. A( IS AS O():NI)' As previously determined by the Board and affirmed by Ihe United States ('ourt of Appeals, Jessie Mae Estes was unl:iwfully discharged by Respondents on March 27, 1976. ,At the time of her unlawful discharge, Estes had been in Respondents' employ for over 24 years, as a "store girl" in their drycleaning division. waiting on drycleaning custom- ers. In connection with Estes' unlawful discharge, Respon- dents closed their 916 North Whittier store --a branch dry- cleaning dropofl and pickup point where she was employed as their only employee. At no time during her 24- year tenure of employment with Respondents has Estes done any work other than handling drycleaning customers. Ihe local UInion to which she belongs. Charging Party herein, represents onl drycleaning and not laundry work- ers. According to stes' uncontroverted testimony, at the Iime of' her discharge she was told her employment would be terminated unless she executed a withdrawal from union mnembership, even though she had neither picketed nor en- gaged in any strike. s; A arended at the hearing. .lurisdiclion over Respondents has previously been asserted and estah- hhed in the ahiove-referenced hasic unfair lahor practices proceeding en- lfrcted hb the United States Court o, Appeals Iupra) Accordingly, it contin- ltes fr pirposes ot this suipplemental proceeding 241 NLRB No. 175 1114 ERI.IC S 8 Al and since the time of the unlaiwful discharge of stes, Respondents had, and continue to have, branch localtions other than their Whittier location: as of July 2. 1976. fior example. Respondents had five such locations in St. I.ouis (including one at 8351 Olive Street Road), employing one or other employees engaged in the same work Estes had been doing at Whittier. According to testimony of Estes which I credit. Estes knew all of the drycleaning emloyees at those locations and there was no job vacancy at at of those locations on that date (July 2. 1976). w hen she re- ceived a letter (G( . Exi. 2. dated June 29. 1976) rom Respondents stating contrary to the true facts. as found by the Board and affirmed by the tinited States (Court of Appeals that Estes had "voluntarily quit since ou i.e., Estes] did not wish to operate the 1916 North Whittier] store under a lease arrangement." and that there would be "a job" available for her at its 8351 Olite Street location if she reported there at or before 8 a.m. on July 9, 1976. tlpon receipt of this letter. Estes immediately telephoned Respon- dents' principal. Max Erlich (who had discharged her after 24 years), to ascertain where Erlich was "going to put me," since to her knowledge. the only work available at the Olie Street location with which she was fully acquainted was a laundry job, work for which Estes was untrained and which she had never done. Estes was informed b y Flrlich's secretary, Ann Cobb.l that she had no idea; and Estes also reminded Ann Cobb of her (Estes') previously announced plans to visit her sister in Oregon. At no time did Erlich or another person on behalf of Respondents ever communi- cate with Estes with regard to reemployment in her former or any drycleaning job. At no time following or as required herein by the Board's reinstatement order. enforced by the United States Court of Appeals, have Respondents in any way offered to reinstate Estes to her former or substantially equivalent position at any of their locations or branches. Uncontroverted, credited testimony of Board ('ompliance Officer Roy Hayden further establishes that at no time dur- ing his compliance efrorts did Respondents indicate they offered or were willing to offer Estes reinstatement to her position or a substantially equivalent position. I nder the circumstances, I find that Respondents made no valid offer 3 Ann Cobb was not produced to controvert Estes' testimony At the hear- ing L.ere, Erlich did not dispute this telephone call from Estes to him. hut claimed merely that he was unable to "recall," and that his secretary Ann Cobb gave him the message or what the message was. lpon testimonial demeanor observations within the framework or his other testimony, as well as the record as a whole. I do not credit the testimony of Erlich wherein he stated that prior to his June 28. 1976 letter mentioning "a job" or stes, he had attempted unsuccessfully (his letter makes n mention ot thisi to com- municate with Estes to offer her employment. Erlich was unable to specify. much less establish, where and what such alleged employ.ment would have been. while he unpersuasisely claimed that he hired some alleged Individual, whose identify he was professedly unable io recall, for some such unspecified "additional work." Observing Erlich losely as he testified. I received the strong impression this was simple conlfabulation which, had it been other- wise, could have been established without dilfficulty through records or testi- mony, the absence of both being unaccounted for (t.. e g .. lI ,ughhn Manufacturin (rporation, 219 NlRB 92() (1975i. urthcrmorc, in no Uay does Erlich or Respondents) even claim that [tsles was in n? as oflered reinstatement pursuant toi the Bard's reinstatement order l l)ecember 9, 1976, or the court of appeals' enforcing rder 1115 of reinstatement to stes. idespite her reasonable attempt to seek clariication of te meaning of Rcsporindnlts' June 28 letter, as to s.hat "'' job" meant under ll o11 the circum- stances, this wwas proper and reasonahle inquir. , on Estes' palt, to which Respondents totally failed to rpl\. I he Regional I)irector's hackpas spcctiica;ltln. as re- quired,' details the basis for the claimied h;ackpay dueL , with explicit hreakdol i ns -b calendar quarters as to gross back- pa aind otisettabhle interim earnings. (alculation of hack- pa; here is predicated upon Estes' earnilngs in the represent- ativte period imiidiatel, preceding her uinlawl'ul discharge. pro.iected over the backpay peritod. mints her actual earn- ings during that period the usual Ind prope r bhasis utilied by the Board ' with judicial approhation." Thus calculated, based upon credited testimon y of Estes. who detailed her job-seeking efiorts which I credit anJ find to have been fair and reasonable under the circumstances, and no cred- ited proof to the contrary having been adduced by Respon- dents in accordance with their burden' the amount of loss earnings sustained hb Estes in consequence of her unlawful discharg e is as follows," plus appropriate interest thereon: 4National t.habor Relations Bard Rules and Regul.ains. Series 8. as amended, Sees. 1()2.52 I2.54 sSee. g, Alvughln .In ,ll/lt lurin ( rporrllron. CI l., 219 ,NIt.RB 92()0 .Nnm, lanA i7ce 7IrlitAig, Inc , 2111 NLRIt 56 11974). ('horl 71opio and .n,5. In, 151 Nl.RB 16318 1965)1 Broni adl R,o. lri.. 132 NI RB 486 119611; F [Ito,,iorih (onirpani, 90 NtRB 29, 292 293 1950). ' See. eg . Irgirnla /c rr, iti PiH(r (',lotyialt .:\ I R B. 319 I S 533, 544 (1943) Phelpi Dodge (rporarlinmv ', 1. R B. 313 t .S 177. 198 (1941). Bagel Baker (Couldul (;clreatr 'vh lrk :S 1. R B.. 555 2d 304, 305 2d ('ir. 1 9 771; S 1. R B (arley 71,ppil. aoil Xi, in, ,I 358 2d 94. 97 iSth ('ir 19601: S I R B I ied XSil.,s .tir ( widltasng ( orr. 31 1 2d 275. 276 277 6th ('lr 19641; .. R B Bro,,-,, R,iil, Inc. i., 311 2d 447, 452 453 (81h ('lr 1963: 1. R.B . O :rk llard,o, ( ieairi, 282 F 2d I1 7 (8th (r. 19611). 7('t.. e Pg . hl, I)D.iDg (rp *. ., I. RB. 313 U S. 177. V .RB v. Alasir Pa.mi ( 'rp-,rion... 34 1 2d 170, 178 179 2d ('ir. 19651. cert. de- nied 384 S 972 (196h): ' I R \ Br",,i R.i}i. In, .I., 111 1 2d 477 454 .4tAnshu t,,,a c. I .al. 234 NI.RB 791 119781. In the absence of countersaing proitl. upon the record presented. I redil Esltes' lesirlm, ny that an inordinate :acciululatilon Iof snow and ice estimated al 12 ,to 15 inches b) Respondents' counsel al the hearing with accompansirng inclem- enl weather rendered mpossible the use o1 her car, her sole method ,il trans- po)rtalion, and that she was snowed in at tier particular homnie lhiatiln. pre- cludingjobh-seeking efforts on her part in the first quarter iii 1977 Although Estes testilied that in smllarly inclement weather she had been urnished transporlalion by Repondenls' truck driser. there is no reason to assume that service would hae beern a,.illable or supplied to her by Respondent a;ter her discharge. Nor lid Respondents establish that an alternative method oli transporItatllio,,r as a.alable i) E:sles rom her partlclilar home location under Ihe circumstlances ('t .Airports Sr,- I.lnes, In, 231 Nl.RB 1272 (1977). mnra at In. 9. he act i such it hbe that rlch hirimsell las he claims), or his emplosees, was. or were, a;hle to "make it" to work does not prove that Isltes. rom her hnie location. was reasonallbly able tI sout around tow n kinder the cirlmstllances. , ng looking f r a job nor. orr thalt mat- ter. does it prove that lrhlch hmlsell could hase done so. Respondenti urge. ion hriel (pp 8 9) that tstes is not entitled to any hackpa.s .a1 ill hcbcause he did nl tiesire reinsta;tenient ailler her (unlah lul discharge becaluse t tiher "hurt leelings" n ,onnectlon therew th I rejel that cntentiln as Iota[lly uiltneilded and untrue and, indeed, little short l absurd. Accepted at lace alue, it v. ould pernilt escape Irm hbackply Iilhail- ity because of the unlaw ll discha.rge tsell Furthernmore. tres credibl tes- tied directly t) the contrars DECISIONS OF NATIONAL LABOR RELATIONS BOARD Year and Gross Net Calendar Earnings Earnings Quarter Loss Loss 1976--1 9/ $ 89.21 $ 89.21 1976--2 1,159.73 1,159.73 1976--3 10/ 321.16 321.16 1976--4 10/ 373.08 373.08 1977--1 11/ 1,119.24 1,119.24 1977--2 1,212,51 1,212.51 1977--3 * 1,212.51 1,182.51 Total -----------------$5,457.44 plus in- terest FEstes' gross earnings loss and net earnings loss are identical except for this quarter in which she had $30 in interim earnings. In the foregoing figures, the approximate weekly pay rate is found to be $89.21 2 until the fourth quarter of 1976, at 9 Respondents object to General Counsel's inclusion within the backpay period of the 3 working days following Estes' discharge, when Estes candidly admits she pursued no effort to obtain another job. I credit and find reason- able Estes' explanation that she did not do so during those few days because "I Estesl was nervous and upset about losing my job, and I had to get myself together to look for work" following the circumstances of her precipitate discharge i.e., discharge unless she relinquished her Federally guaranteed right of union membership. The Board has indicated that an unlawfully discharged employee need only exercise reasonable diligence to secure .her employment. Cf. Airports Service Lines, infra. It was not unreasonable for Estes, traumatized as she understandably was by the circumstances of her precipitate unlawful discharge after over 24 years of stable employment and in no condition to be interviewed for another job, to be unable to proceed with celerity eo instanri after such a discharge to scout out other employ- ment, nor is there any indication such an effort would then have succeeded where it later totally failed over a considerable immediately ensuing period. Under these circumstances, in my opinion, inclusion of the 3 days in ques- tion in the backpay period is justified. Cf. Airports Service Lines, 231 NLRB 1272 (Respondent employer not entitled to backpay offset during period wrongfully discharged employee prevented from interim work or job-seeking efforts by reason of allergy-only reasonable effort, not the highest standard of diligence, is required). 10 This period eliminates the period from July 2 to August 6 (5 weeks) during which Estes was concededly on a preannounced visit to her sister in Oregon, and, accordingly, deducting 446.05 (i.e., 5 weeks at $89.21 per week) from the $1124.05 set forth in Appendix A to the backpay specifica- tion for the third quarter of 1976, and also eliminates the period during whici Estes was unavailable for employment due to a fractured foot during the same third quarter of 1976. As to the latter, counsel for Respondents points out in his post-trial brief that at the hearing Estes testified that she sustained her foot injury on September 3, rather than on September 30, as claimed by counsel for General Counsel in the backpay specification as amended at the hearing. If Estes spoke incorrectly or if the reporter incor- rectly (as in other respects) reported that she sustained her foot injury on September 3 (rather than on September 30), it was incumbent on counsel for General Counsel to move to correct that error in the testimony or transcript. In the absence of such application, it must be presumed that the September 3 date, as reported. is correct. Accordingly, a further 4 weeks at 89.21, amounting to $356.84, has been deducted from the alleged net backpay for the third quarter of 1976, resulting in a net figure of $321.16 due for that quarter (i.e., 3.6 weeks x $89.21). H See fn. 7, supra. 2 Contesting the backpay specification allegation (par. 4) that Estes' aver- age weekly worktime during the representative basic period immediately preceding her unlawful discharge was 40.55 hours, Respondents assert it was only 39.55 hours. Upon the record presented, I credit General Counsel's explanation, not factually controverted or shown to be inaccurate by Re- which time it is found to be $93.27 because of a statutory increase in the minimum wage. Claimed backpay for peri- ods subsequent to the third quarter of 1977 (i.e., subsequent to September 30. 1977) are found not established or sus- tained in view of Estes' admission--resulting in General ('ounsel's backpay specification amendments accordingly- that she withdrew herself from the job market and ceased her job-seeking efforts at that time to retire on social secu- ritly."i Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW I. Jurisdiction is properly asserted in this proceeding. 2. Respondents' unlawfully discharged former employee Jessie Mae Estes is entitled to backpay from Respondents in the sum of $5457.44, plus interest," and Respondents are obligated to make payment thereof to Jessie Mae Estes forthwith. Upon the foregoing findings of fact, conclusions of law, spor,dents or objected to, that the differential results from the fact that one of the weeks in question (i.e., pay period ending March 19, 1976) was not representative since Estes was, through accidental circumstance, involving transportation trouble not ascnribable to her fault, unable to get to work I day, thus uncharacteristically reducing her workweek by I day thereby, jus- tifying not using that particular and unusual week in the construction of the basic representative backpay formula. I also reject Respondents' further con- tention that Estes' backpay should be restricted to the average workweek of employees holding similar jobs in Respondents' other facilities (allegedly 32 64 hours per week, instead of the foregoing 40.55 hours per week set forth in the backpay specifications-which, if accepted, would result in a substan- tial reduction of the backpay due to Mrs. Estes), since to do so would be to depart from the Board Order, enforced by the United States Court of Ap- peals, requiring Estes to be reinstated to a position at least "substantially equivalent" to that from which she was unlawfully ousted. In the alleged circumstances now raised by Respondents, it is for Respondents, as law- breakers-and not for Mrs. Estes, an innocent party-to disentangle them- selves from the fruits of their unlawful acts in discharging Mrs. Estes. Cf. Judge Learned Hand in N. LR.B. v. Remington Rand, Inc., 94 F.2d 862, 872 (2d Cir. 1938): N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 568 (1950); Levingsion Shipbuilding Company, 235 NLRB 578, 580 (1978); McCann Steel Company, Inc., 212 NLRB 394, 395 (1974). I credit Estes' uncontradicted testimony that although she started re- ceiving social security benefits in April 1977, when she became 62, she nev- ertheless continued herjob-seeking efforts until September 30, 1977. Receipt of social security old-age insurance benefits is, of course, neither a defense to, nor offsetable against, a backpay obligation, since, among other things, cer- tain earnings may be retained even without reduction of such benefits. More- over, a social security annuitant who obtains remunerative employment in excess of the permissible amount may elect to retain such earnings and forego social security benefits. Furthermore, even receipt of earnings in ex- cess of the amount allowable without benefit reduction would be a matter for the Social Security Administration to pursue, and not a matter of defense to a backpay obligation of an employer. Finally, here, in any event, no earnings beyond $30 have been shown during the period in question. 14 Backpay is to be computed in the manner prescribed in F W Wool- worth Company, 90 NLRB 289 (1950), and interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977) (see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)), at the "ad- justed prime interest rate" as calculated by the Internal Revenue Service on tax deliquencies (currently 7 percent, and as modified from time to time by the Secretary of the Treasury until compliance with the Order herein). Gen- eral Counsel has submitted a supplemental brief ably supporting the conten- tion that, realistically, the time has arrived for reexamination of the Board's current interest limitation to 7 percent (established in 1977 in Florida Steel Corporation, supra, and urging its increase to 9 percent. While I am in sym- pathy with this contention for the reasons impressively advanced in General Counsel's brief, it is nevertheless for the Board, and not for me, to alter the Board's existing policy in this regard, if alteration there is to be. 1116 ERLICH'S 814. INC. and the entire record in this proceeding. and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER'' The Respondents. Erlich's 814. Inc.. Erlich's Northwest. Inc.. Capri Launderers & Dry Cleaners. Inc.. and Erlich Is In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National l.abr Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions. and Order. and all objectllons thereto shall he deemed waived for all purposes. Cleaning Company. St. Louis, Missouri, their officers' agents, successors and assigns. shall pay to Jessie Mae Estes the wage losses she suffered as a result of her unlawful dis- charge on March 27, 1976, up to September 30. 1977. in the amount of $5457.44. with interest computed thereon in the manner prescribed in Florida Steel Corporation. 231 NLRB 651. 1117