N.L.R.B. v. Westin Hotel

• Decision Date: 03 April 1985
• Docket Number: No. 84-5093,84-5093
• Citation: 758 F.2d 1126
• Parties: 118 L.R.R.M. (BNA) 3297, 102 Lab.Cas. P 11,448 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The WESTIN HOTEL, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1126

758 F.2d 1126

118 L.R.R.M. (BNA) 3297, 102 Lab.Cas. P 11,448

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The WESTIN HOTEL, Respondent.

No. 84-5093.

United States Court of Appeals Sixth Circuit.

Argued Jan. 16, 1985.

Decided April 3, 1985.

Elliott Moore, Ann Jones, argued, Deputy Associate Gen. Counsel, N.L.R.B. Washington, D.C. for petitioner.

Thomas E. Marshall, argued, A. David Mikesell, Honigman, Miller, Schwartz & Cohn, Detroit, Mich., for respondent.

Before ENGEL, KRUPANSKY and WELLFORD, Circuit Judges.

KRUPANSKY, Circuit Judge.

The N.L.R.B. petitions this court to enforce an order directing the Westin Hotel Corporation (Westin) to reimburse Lee Ann Maniaci (Maniaci), an employee wrongfully discharged by the Westin, in an amount of $8,020.57 plus interest as backpay and benefits. The Westin stipulated that the discharge was in violation of the National Labor Relations Act ¹ but opposed enforcement of the order by charging that Maniaci did not exert a reasonably diligent effort to seek employment during the period covered by the backpay assessment.

The Westin unlawfully terminated Maniaci on December 22, 1978, after employing her as a cocktail waitress for about 20 months. Maniaci had no experience with the Westin, or with any other employer, in the area of food service. Her only work experience was the serving of beverages and soft drinks. Prior to working for the Westin, she had been continuously employed by the Book Cadillac Hotel for 13 years as a cocktail waitress. Maniaci resided in Frazer, Michigan, and had commuted to her place of employment at the Westin in downtown Detroit, a distance of about 25 miles from her residence.

Maniaci began looking elsewhere for employment as a cocktail waitress the same evening that she was unlawfully terminated by the Westin. She applied personally for work at Steak 'N Ale, an establishment with a cocktail bar about ten miles from her home. No job was available, but Maniaci returned on two or three subsequent occasions during the backpay period, i.e. Dec. 12, 1978 to March 17, 1980. Maniaci then solicited and received a very favorable letter of recommendation from the previous manager at the Book Cadillac Hotel to aid her in obtaining employment. She also sought work during December, 1978, at Pat O'Grady's, a bar and restaurant about eight to ten miles from her home, but there were no openings available.

On January 2, 1979, Maniaci registered with the Michigan State Employment Commission ("Employment Commission"), reporting that she was seeking employment as a cocktail waitress. On that same day, Maniaci filed a grievance with her Union in an attempt to gain reinstatement with the Westin. Maniaci stated that she devoted the majority of her time in January, 1979, to soliciting letters from co-employees to support her theory that she was wrongfully discharged, and added that her Union failed to assist her in this endeavor. She also contacted Danny's Copa Lounge in January but was advised that it had no employment openings. Maniaci filed a charge against the Westin with the N.L.R.B. during this same month.

In February, 1979, Maniaci sought employment at several cocktail lounges and bars within approximately a 10 mile radius of her home, to wit, the Steak N' Ale, the Flying Dutchman Motor Inn, the Royal Touch, and Clem's Pour House. She was interviewed by the manager of the Flying Dutchman, but she testified that "when he found out the circumstances of my discharge [at the Westin] he didn't seem too interested."

During March, 1979, Maniaci was interviewed by the manager of the lounge at the Shelby Inn, which was about 10 miles from her home. She left her name, telephone number and the letter of recommendation, but no employment vacancies were available. Maniaci averred that she subsequently made inquiries at the Shelby Inn on at least three occasions following the interview but no positions were available. Maniaci also visited or contacted Wine Tasters and Fillippa's Wine Barrel during March, but to no avail. At the Wine Tasters, Maniaci spoke to the manager but did not leave an application because she did not have the requisite food service experience to secure employment at that establishment.

At the beginning of April, Maniaci contacted the Three Faces Disco, an establishment about 12 miles from her home, where she subsequently obtained an interview and was hired as a cocktail waitress. She purchased a required uniform and shoes for about $60 and commenced working. The first night there was a heavy downpour. As a result "the toilets backed up, the sinks backed up and the drains in the service bar area backed up" causing a two inch accumulation of water and sewage that soaked Maniaci's feet and ruined her new shoes. The other waitresses told her that this happened each time it rained. Although it did not rain the second night, the floor remained wet, and at the end of her shift she spoke with the manager and terminated her job because of the poor working conditions. She knew that one other employee also terminated her employment due to the adverse conditions.

After leaving the Three Faces Disco in mid-April 1979, Maniaci "did a lot of looking" for another job. Her efforts included completing applications at Gino's Surf Lounge and the Georgian Inn. She also monitored the newspaper want ads and telephoned the Park Lane Lounge and Pat O'Grady's, but found no openings. On May 23, 1979, Maniaci began working as a part-time cocktail waitress at the Georgian Inn motel in Roseville, Michigan, about five miles from her home. At the time she was hired, the manager advised her that he would soon be "letting another girl go" and Maniaci was promised that her part-time status would change to full-time "as soon as possible".

About two days after she commenced working at the Georgian Inn, Maniaci was offered employment by Gino's Surf Lounge. Maniaci refused the part-time slot available at this place of business because she was already employed. She remained at the Georgian Inn as a cocktail waitress for six weeks until the manager discharged her in late June, 1979, upon discovering that she was collecting partial unemployment benefits to which she was entitled as a result of her discharge from the Westin.

In November, 1979, Maniaci was employed at the Shore Point Motor Lodge, about ten miles from her home. She worked four days a week, just as she had for the Westin at the time of her unlawful discharge. Maniaci continued to work for the Shore Point Motor Lodge after the Westin terminated her backpay period by offering her reinstatement on March 17, 1980.

Based upon Maniaci's work history as outlined above during the interim period between her discharge by the Westin and employment at the Shore Point Motor Lodge, the N.L.R.B. determined that Maniaci was entitled to $8,114.57 in back pay.

In an effort to rebut Maniaci's testimony that she had fully utilized the services provided by the state employment agency, the Westin relied solely upon the testimony of Richard Elliot of the Michigan Employment Security Commission's occupational research section. Elliot explained that the employment service retained (on microfilm) lists of job openings in the Detroit area by occupation, and through his testimony the Westin entered into evidence the number of listings for "bar waiters/waitresses" during nine of the months relevant to the interim period. ² On cross examination, however, it was disclosed that the "Detroit area" job listings actually covered seven counties, some of which would involve a 30 to 120 mile commute (one way) for Maniaci. Elliot further informed the a.l.j. that the name of a potential employer did not appear on the microfilm, but rather the entries were coded, and that an applicant would have to be "referred specifically" for a particular opening. Elliot also stated that while it was the agency's "policy" to inform those seeking employment of the availability of the microfilm lists, he did not have first hand knowledge of whether the policy was fully implemented. Maniaci stated that she had never been advised of the lists by agency personnel.

Based on the foregoing, the a.l.j. determined that the Westin had not met its burden of proof establishing that Maniaci had failed to use "due diligence" to obtain employment following her wrongful discharge by the Westin.

Section 10(c) of the National Labor Relations Act, 29 U.S.C. Sec. 160(c), authorizes the Board to fashion appropriate remedial orders including the award of backpay. The Board's "broad discretionary" authority in awarding backpay as a remedy for unfair labor practice is firmly established. NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405 (1969). The Board's exercise of its discretion in formulating backpay awards is subject to a limited amount of scrutiny by the judiciary. Fiberboard Paper Products Corp. v. NLRB, 379 U.S. 203, 215, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964); Alfred M. Lewis, Inc. v. NLRB, 681 F.2d 1154, 1156 (9th Cir.1982). In addition, it is beyond peradventure that the defense of willful loss of earnings is an affirmative defense, with the burden of proof resting upon the employer. McCann Steel v. NLRB, 570 F.2d 652, 655 n. 4 (6th Cir.1978); NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir.1968).

Further, a...