Mid-America Machinery Company

National Labor Relations Board - Board Decisions

Sep 28, 1981

258 N.L.R.B. 316 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mid-America Machinery Company and Metal and
Machinery Workers Industrial Union No. 440,
affiliated with Industrial Workers of the World.
Case 14-CA-11867
September 28, 1981
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On December 28, 1979, the National Labor Rela-
tions Board issued its Decision and Order' in the
above-entitled proceeding, finding that Respondent
had discriminatorily failed and refused to reinstate
Robert Swaggerty to employment following re-
ceipt by it of an unconditional offer by Swaggerty
to return to work in violation of Section 8(a)(1)
and (3) of the Act. The Board's Order directed,
among other things, that Respondent offer rein-
statement to Robert Swaggerty and make him
whole for losses as a result of this discrimination.
On October 30, 1980, the United States Court of
Appeals for the Seventh Circuit enforced the
Board's Order. Thereafter, on December 19, 1980,
the Regional Director for Region 14 issued a back-
pay specification and notice of hearing. A hearing
was held on February 2, 1981, before Administra-
tive Law Judge Lawrence W. Cullen to determine
the amount of backpay due.
On June 8, 1981, the Administrative Law Judge
issued the attached Supplemental Decision in this
proceeding. Thereafter, Respondent filed excep-
tions 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 ex-
ceptions and brief and has decided to affirm the
rulings, findings, 2 and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
' 246 NLRB 1176.
2 We note that in sec. (b) of his Supplemental Decision the Adminis-
trative Law Judge incorrectly stated that Respondent argued that the
proper date on which it made a full and unconditional offer of reinstate-
ment to Robert Swaggerty should have been November 6, 1978. This is a
typographical error for November 6, 1980. The actual backpay period
here extends from September 8, 1978, to November 14, 1980.
' In accordance with his dissent in Olympic Medical Corporation 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
258 NLRB No. 44
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Mid-America
Machinery Company, Virden, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge:
This supplemental proceeding was heard before me on
February 2, 1981, in St. Louis, Misouri, to determine the
amount of backpay due discriminatee Robert Swaggerty
under a Decision and Order issued by the National
Labor Relations Board and enforced by the Court of
Appeals for the Seventh Circuit, wherein Respondent
was found to have unlawfully refused to reinstate Swag-
gerty pursuant to his unconditional offer to return to
work following an unfair labor practice strike engaged in
by Swaggerty and other employees against Respondent.'
The issues in the proceeding are joined by the backpay
specification of the General Counsel issued on December
19, 1980, and the answer and supplemental answer of Re-
spondent as amended at the hearing.
Upon the record made before me and my observation
of the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS AND CONCLUSIONS
In Administrative Law Judge Richard L. Denison's
August 15, 1979, Decision, adopted by the Board, Re-
spondent was found to have violated Section 8(a)(l) and
(3) of the National Labor Relations Act, as amended, by
"failing and refusing to reinstate unfair labor practice
striker Robert Swaggerty pursuant to his September 8
unconditional offer to return to work .... " Respondent
was ordered to:
Offer Robert Swaggerty immediate and full rein-
statement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, dismissing, if necessary, any
person hired on or after June 12, 1978, and make
him whole in the manner set forth in the section of
this Decision entitled "The Remedy."
There are three basic issues set out by Respondent in
its answer and argued in its brief. Each will be treated
separately. 2
246 NLRB 1176 (1979), enfd. 639 F.2d 786 (1980).
2 In its answer Respondent admitted the propriety of the formula for
the calculation of the gross backpay amounts. In appendix A of the back-
pay specification the General Counsel listed the quarterly interim earn-
ings of discriminatee Swaggerty during the backpay period set out there-
in. Respondent offered no evidence of any additional quarterly interim
earnings by Swaggerty. Appendix B is a calculation of the average hours
worked by employees performing similar work during the backpay
period by quarter. Respondent does not dispute these figures which were
derived from its records, but disputes the commencement and ending
Continued
316
MID-AMERICA MACHINERY COMPANY
1. The appropriate commencement date of the
backpay period and the date on which backpay was
tolled
a. The commencement date
The Administrative Law Judge found that on Septem-
ber 8, 1978, Swaggerty left a signed note with the secre-
tary of Respondent's manager, Jabusch, at Respondent's
office and offered to return to work "without conditions
or stipulations." He also found that Jabusch read the
document when he returned to the office that evening,
but did not respond to Swaggerty over the weekend, and
Swaggerty then reappeared the following Monday, Sep-
tember 11, 1978, inquired whether he could have his job
back, and was told by Jabusch that he had no need for
labor, he had hired another laborer, and he had no other
opening. Respondent argues from this finding that the
Administrative Law Judge concluded that the date of
the discriminatee's unconditional offer of reinstatement
was September 11, 1978, rather than September 8, 1978.
However, Respondent makes no mention of the specific
Conclusion of Law of the Administrative Law Judge
(see G.C. Exh. I(a)) wherein he concluded that Swag-
gerty made an unconditional offer to return to work on
September 8, 1978.
I find from the foregoing that the commencement date
of the backpay period was found by the Administrative
Law Judge to be September 8, 1978, and this finding was
adopted by the Board and ultimately by the court of ap-
peals in its enforcement order. Accordingly, I find that
the principle of resjudicata applies and this issue may not
be relitigated in a subsequent backpay proceeding. See
Schorr Stern Food Corp., 248 NLRB 292 (1980). See also
Brown and Root Inc., 132 NLRB 486, 491 (1961), enfd.
311 F.2d 447, 451 (8th Cir. 1963). However, in the event
that the Board concludes that this issue should be decid-
ed in this proceeding, I also find that September 8, 1978,
is the date on which the discriminatee made an uncondi-
tional offer of reinstatement and is the appropriate date
for the commencement of the backpay period. It is undis-
puted that on September 8, 1978, Swaggerty delivered a
note to Respondent's secretary in the absence of Re-
spondent's manager, Jabusch, and that the note was read
by Jabusch later that evening with no further action
having been taken by Respondent until Swaggerty once
again made his offer on September 11, 1978. Under these
circumstances I find that Swaggerty made an uncondi-
tional offer to return to work, which offer was communi-
cated to Respondent on September 8, 1978, and that Sep-
tember 8, 1978, is the appropriate date for the com-
mencement of the backpay period.
b. The ending date of the backpay period
The General Counsel in his backpay specification al-
leges that the backpay period "ends November 14, 1980,
the date Respondent made a full and unconditional offer
of reinstatement to discriminatee Swaggerty." Respond-
ent denies this allegation and argues that the proper date
point of the backpay period. Respondent also disputes the interim ex-
penses to be set off against interim income as set out in appendix A. Re-
spondent also raises the issue of willful idleness as an affirmative defense.
should be November 6, 1978, the date of the letter which
Respondent tendered to Swaggerty in care of Roy
Hayden, the Compliance Officer for Region 14 of the
National Labor Relations Board. The letter to Swag-
gerty was enclosed with another letter to Hayden from
James P. Baker, attorney for Respondent, wherein Baker
stated:
You will recall that Mr. Swaggerty did remove
himself from the State of Illinois. Because my client
does not now know his current address, we are
sending the letter in your care and trust the back-
pay period will toll on the date of the letter rather
than the date it is actually received by Mr. Swag-
gerty.3
The General Counsel contends that the appropriate
date for the ending of the backpay period is November
14, 1980, set out in the backpay specification as the date
on which the discriminatee actually received the offer by
Respondent. The General Counsel argues that Respond-
ent did not exercise due diligence as it did not mail the
letter to the last known address of the discriminatee nor,
in the alternative, seek a recent address from the General
Counsel and mail the offer of reinstatement directly to
Swaggerty. The General Counsel also argues that the
Board is not Respondent's agent for purposes of the offer
of reinstatement.
Under ordinary circumstances, a letter of reinstatement
mailed to the last know address of the employee consti-
tutes a bona fide offer and tolls the employer's backpay
obligation. See Marlene Industries Corporation, 234
NLRB 285 (1978). However, this rule is by no means
without exceptions and it has been held that the mailing
of the letter of reinstatement to the last known address
may not operate to toll backpay when the employer had
other means available to notify the employee. See Jay
Company. Inc., 103 NLRB 1645 (1953), enfd. 227 F.2d
416 (9th Cir. 1954). In the instant case, Respondent chose
to send the offer of reinstatement to Compliance Officer
Hayden and thus relied on the General Counsel to relay
the offer to Swaggerty. This procedure inevitably de-
layed the receipt of the letter by Swaggerty. The exact
date on which Hayden forwarded the letter to Swag-
gerty is also uncertain although it is admitted in the
backpay specification that Swaggerty received the letter
on November 14, 1980. Under these circumstances I find
that Respondent should bear the consequences of its con-
duct in the original commission of the violation of the
Act rather than Swaggerty and that any ambiguity
should be resolved against Respondent. See J. H. Rutter-
Rex Manufacturing Company, Inc., 158 NLRB 1414
(1966); McCann Steel Company, Inc., 212 NLRB 394
(1974); and Marlene Industries Corporation, supra. Ac-
cordingly, I find that November 14, 1980, is the appro-
priate date for the ending of the backpay period.
3 The two letters were attached and identified and received in evi-
dence as G.C. Exh. 5.
317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The offset of travel expenses against interim
earnings
During a portion of the backpay period the discrimina-
tee was employed by Simplex Incorporated (Simplex) in
Springfield, Illinois, and commuted from his parent's
home in Girard, Illinois, a 60-mile roundtrip for the
entire period of employment at Simplex, except the ini-
tial 3 weeks when he lived in Springfield. As an employ-
ee of Respondent, Swaggerty had lived in Girard, Illi-
nois, and was required to make a roundtrip of only 8
miles to report to work with Respondent. The additional
cost of the roundtrip to Springfield from Girard, Illinois,
is listed in Appendix A [omitted from publication] as a
setoff against interim income earned by him at Simplex.
Respondent contends that this setoff is improper as
Swaggerty lived in Springfield at the time he originally
obtained his position at Simplex, but subsequently moved
back to Girard shortly thereafter as a result of personal
reasons, and that the roundtrip commute from Girard to
Springfield, Illinois, was thus the result of his personal
decision rather than attributable to Respondent. Re-
spondent also introduced into evidence a copy of a bank-
ruptcy petition filed by Swaggerty and appears to argue
that Swaggerty actually resided at the Springfield ad-
dress for a longer period as a result of Swaggerty's list-
ing in the bankruptcy petition a lease obligation at the
Springfield address as a possible liability. Swaggerty tes-
tified that the lease obligation, if any, was his wife's. I
credit Swaggerty's testimony in this regard and find that
the listing of the lease obligation in the bankruptcy peti-
tion does not support Respondent's position.
I credit Swaggerty's testimony that he lived in Girard,
Illinois, for the entire period of his employment at Sim-
plex except for the first 3 weeks of his employment at
Simplex and that he incurred additional travel expenses
as a result of the 60-mile roundtrip. Although the cir-
cumstances of Swaggerty's move back to Girard, Illinois,
were admitted by Swaggerty to have been personal, it is
also clear that Swaggerty would not have incurred these
additional travel expenses if he had been traveling from
Girard to his job with Respondent in Virden, Illinois,
rather than to Simplex in Springfield, Illinois. Thus, the
additional travel expenses are a direct result of Respond-
ent's unlawful action in refusing to reinstate Swaggerty.
It should also be noted that Respondent derived the
benefit of a decrease in its backpay liability during the
period of Swaggerty's employment at Simplex. Travel
expenses required for interim employment which exceed
travel expenses to and from the respondent employer's
place of business are proper items to be set off from in-
terim earnings. See The Richard W. Kaase Company, 162
NLRB 1320, 1326 (1967). See also Gary Aircraft Corpora-
tion, 210 NLRB 555, 558 (1974). Accordingly, I find that
the additional travel expenses as set out in the backpay
specification were properly set off against the interim
earnings of Swaggerty at Simplex.
3. The issue of willful idleness
Respondent asserts as an affirmative defense that
Swaggerty did not make reasonably diligent efforts to
search for and retain alternative employment during the
backpay period. At the outset, although the General
Counsel has the burden to establish the gross backpay,
the interim expenses to be set off against the gross back-
pay, and the net backpay amount, Respondent bears the
burden of establishing its affirmative defense of willful
idleness. See Sioux Falls Stock Yards Company, 236
NLRB 543 (1978).
As previously found, the backpay period extends from
September 8, 1978, to November 14, 1980, a period of
slightly in excess of 26 months. Swaggerty was unem-
ployed from September 8, 1978, until April 2, 1979,
when he commenced employment with Simplex. During
a portion of this period of unemployment Swaggerty at-
tended the 1978 winter semester of the Wabash Valley
College in Virden, Illinois, in a program to prepare for
employment in the coal mining industry. This quarter of
study commenced on December 1, 1978, and concluded
in the latter part of February 1979. Swaggerty's schedule
consisted of a 34-class-hour-per-week program with
morning sessions from 8 until 11 a.m. and evening ses-
sions from 6 until 9:30 p.m. Swaggerty submitted quar-
terly reports to Region 14 in response to a backpay ques-
tionnaire. On the report for the period from September 8
to December 31, 1978, he wrote:
Unemployment for this period. Unemployment
Job Service Six street Springfield Ill, (Each Week)
Peabody coal (company), Pawnee, Ill freeman
coal (company) Virden III freeman coal (company)
farmerville, Ill once each month at the above was
told to keep checking back
Also checked on other place that I can't recall
they are on my unemployment card that I sent in if
you need them in Springfield, I111, was ready to go
to work at any time
On the report for the period from January I to March
31, 1979, he wrote: "Unemployment for the period-
Same as first page [this was a reference to the earlier
report.]."
Swaggerty testified that during the period of instruc-
tion at Wabash Valley College he sought work and
would have accepted employment if he had obtained a
position. During the period of unemployment between
September 8, 1979, and April 1, 1980, he applied for a
job at "Juicy Rich" but did not take the job because it
paid "two dollars and something" less than the $4.75 per
hour he had earned while employed by Respondent.
During this period of unemployment he consulted news-
paper advertisements and applied for the position at Sim-
plex which he learned of through same. He missed a
class in February because of his interview with Simplex.
He also testified that he asked to be excused from a class
to go to Carbondale, Illinois, to apply at a mine.
Respondent produced testimony and documentary evi-
dence at the hearing which showed that Swaggerty had
filed an application for employment with Freeman Coal
Company on August 2, 1978, that there was no record of
his having updated his application since that time, and
that no application had been taken at that company's
Farmerville mine since 1971 and at its Virden mine since
1979. It also produced testimony and evidence that
318
MID-AMERICA MACHINERY COMPANY
Swaggerty had filed an application with the Peabody
Coal Company on April 25, 1978, but that there was no
record of his having since updated his application. Swag-
gerty did not testify concerning his application at Pea-
body Coal Company. Swaggerty testified that he did
apply for work at Freeman Coal in Virden, Illinois, and
did apply for construction work on the new mine Free-
man Coal was building. He testified he went to Freeman
Coal a number of times (approximately once a month)
but that his application was never pulled. Respondent's
counsel also inquired of Swaggerty concerning whether
he had applied with a number of employers near the vi-
cinity of his home in Girard, Illinois, but Respondent in-
troduced no evidence whether these employers were
hiring new employees during this period. I credit Swag-
gerty's testimony as set out above and as supported by
the quarterly reports filed by him that he actively sought
work during his period of unemployment between Sep-
tember 8, 1978, and April 2, 1979, when he commenced
employment with Simplex. Although Swaggerty did not
rebut Respondent's evidence concerning his alleged fail-
ure to update his application at Peabody Coal Company,
I do not find that this compels an adverse inference
against his position with respect to the remainder of his
testimony concerning his other efforts to secure employ-
ment. I find that Swaggerty did not remove himself from
the job market by reason of his attendance at the Wabash
Valley College and credit his testimony that he sought
work during this period and would have taken a position
if he had obtained one. I find that the position he refused
at Juicy Rich was not substantially equivalent to the po-
sition he held while employed at Respondent. See F. M.
Broadcasting Corporation d/b/a WHLI Radio, 233 NLRB
326 (1977), wherein it was held that the discriminatee
had not incurred a willful loss of earnings by his failure
to take interim employment beyond the vicinity of the
applicable labor market and at a lesser wage than he had
earned while employed by the respondent employer.
Swaggerty was employed by Simplex from April 2
until November 7, 1979, when he was terminated. Re-
spondent contends that Swaggerty's termination by Sim-
plex should disqualify him from receipt of backpay from
November 7, 1979, the date of his termination, until Jan-
uary 21, 1980, when he obtained other employment.
However, the discharge of a discriminatee for cause by
an interim employer who has found his job performance
to be unsatisfactory does not constitute a willful loss of
earnings on the part of the discriminatee in the absence
of an offense involving moral turpitude. See George A.
Angle d/b/a Kansas Refined Helium Company, 252
NLRB 1156 (1980), and Barberton Plastics Products, Inc.,
146 NLRB 393 (1964). In Swaggerty's case Respondent
undertook to show that the discriminatee was discharged
for cause by Simplex as a result of absenteeism, poor
work performance, bad attitude, and an incident on the
last day of his employment, November 7, 1979, allegedly
involving drunkenness and disorderly conduct by Swag-
gerty on the premises of Simplex. This does raise an
issue as to whether he was discharged for drunkenness so
as to constitute a willful loss of employment. However,
the proof offered by Respondent to this end consisted
solely of business records (warning notices and a termi-
nation record which listed in typewriting "absenteeism,
poor quality of work and bad attitude" and in handwrit-
ing "Drunk and Disorderly" as the reasons for his dis-
charge). Alfred Steiner, the operations manager of Sim-
plex who terminated Swaggerty, did not testify and there
was no testimony as to whether the conclusionary state-
ments listed on the warning notices and the termination
form concerning Swaggerty's job performance were
true. The only witness produced by Respondent from
Simplex was Wanda Prosser, the personnel manager who
identified the records, but who had no personal knowl-
edge of Swaggerty's job performance prior to the date of
his termination although she testified that, on the date of
his termination, she observed from across the street that
Swaggerty was drunk and disorderly. Swaggerty denied
that he had been drinking that day. Under these circum-
stances I find that Respondent has not sustained its
burden of proof and has not proven that Swaggerty
failed to exercise due diligence in maintaining his posi-
tion with Simplex.
With respect to the period of unemployment from No-
vember 7, 1979, to January 21, 1980, Swaggerty testified
that he moved to Kansas in November 1979 in search for
work and went to work for Restoration System Incorpo-
rated in early 1980 in Wichita, Kansas. Respondent pro-
duced no evidence concerning this period with the ex-
ception of the quarterly report filed by Swaggerty with
the National Labor Relations Board (Resp. Exh. 20). On
this report Swaggerty wrote that he had looked for a job
"in the paper" and at the employment office in Spring-
field, Illinois. I credit Swaggerty's testimony and I find
that Swaggerty exercised reasonable diligence in seeking
alternative employment during this period of unemploy-
ment.
I find, based on the above, that Respondent did not
sustain its burden of proof and has not proven that
Swaggerty failed to exercise reasonable diligence in seek-
ing and maintaining alternative work throughout his pe-
riods of unemployment during the backpay period.
Rather, I credit Swaggerty's testimony that he sought al-
ternative work and filed applications as set out above
and I find that he was under no obligation to accept the
position at Juicy Rich as it was not a substantially equiv-
alent position to that which he held while employed at
Respondent. I conclude that he was reasonably diligent
in his efforts to secure employment. The law does not re-
quire that Swaggerty's search be an exhaustive one. See
Sioux Falls Stock Yard Company, supra. Moreover. Swag-
gerty's substantial periods of employment during the
backpay period attest to his efforts to seek alternative
work. I also find that Respondent failed to prove that
Swaggerty's discharge by Simplex constituted a willful
failure to maintain alternative employment on the part of
Swaggerty. 4
Based upon the foregoing and the entire record in this
proceeding, I find that the General Counsel has sustained
his burden, and has established the gross backpay, the in-
4n iee f mr frndindings abo c. I do not find it necessar\ Io make a
detcrminlllatioll concerning the CGeneral Counsel's altcrnati'e argument
that S aggcrt's emplo ment t Simplex ,k.s not shstaniall) equi'alentl
to his mplo menl u ith Rcspondenlcl
319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terim expenses to be set off against the gross backpay,
and the net backpay amount. I find that Respondent's net
backpay liability to the discriminatee, Robert J. Swag-
gerty, totals $9,930.62 as computed in the backpay speci-
fication.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, I make the following recom-
mended:
ORDER 5
The Respondent, Mid-America Machinery Company,
Virden, Illinois, its officers, agents, successors, and as-
signs, shall pay Robert J. Swaggerty as net backpay the
amount of $9,930.62. Interest is to be added as estab-
lished in Florida Steel Corporation, 231 NLRB 651
(1977).5 There shall be deducted from the amount due
any tax withholding required by law.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, 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 objections thereto
shall be deemed waived for all purposes.
I See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716 (1962).
320