N.L.R.B. v. Seligman and Associates, Inc.

• Decision Date: 30 December 1986
• Docket Number: No. 85-5404,85-5404
• Citation: 808 F.2d 1155
• Parties: 124 L.R.R.M. (BNA) 2277, 105 Lab.Cas. P 12,159 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SELIGMAN AND ASSOCIATES, INC., and its Wholly Owned Division, Scott Management Company, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1155

808 F.2d 1155

124 L.R.R.M. (BNA) 2277, 105 Lab.Cas. P 12,159

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SELIGMAN AND ASSOCIATES, INC., and its Wholly Owned

Division, Scott Management Company, Respondent.

No. 85-5404.

United States Court of Appeals, Sixth Circuit.

Argued April 28, 1986.

Decided Dec. 30, 1986.

Elliott Moore, Deputy Associate General Counsel, N.L.R.B., Washington, D.C., William R. Stewart, Stephen Smith (argued), Bernard Gottfried, Director, Region 7, NLRB, Patrick V. McNamara, Detroit, Mich., for petitioner.

Richard Bisio (argued), Hyman, Gurwin, Nachman, Friedman & Winkelman, Southfield, Mich., for respondent.

Before ENGEL, KENNEDY and MILBURN, Circuit Judges.

ENGEL, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order requiring Seligman & Associates, Inc., to pay backpay to two former employees, to pay the medical expenses of a third former employee, and to post notices describing the remedial action ordered. Seligman & Assoc., Inc., 273 N.L.R.B. 1216 (1984). We enforce the order as to the payment of medical expenses and the posting of notices; we remand the determination of backpay for recomputation based on our conclusion that the two former employees willfully failed to seek comparable employment to mitigate their losses.

A division of Seligman, Scott Management Co., operates a number of apartment complexes in the Detroit, Michigan area. On January 24, 1979, the Board found that Seligman had committed unfair labor practices by, among other things, discharging David and Susan Younce in retaliation for protected activity, in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), and discharging Clarence Goold because of his union activity, in violation of section David and Susan Younce had been employed by Seligman as apartment complex caretakers at Seligman's Eureka Apartments. They received salaries as well as housing at the complex as compensation. Following their termination they continued to occupy their townhouse apartment until they received a notice to quit the apartment on October 26, 1976. Two days later, Susan Younce filed an unfair labor practice charge with the Board. Seligman's attorney, Irwin Alterman, investigated the charge and recommended to Seligman that they settle the claim by offering the Younces caretaker positions at another apartment complex some 30 to 50 miles distant, with backpay. ¹ Seligman agreed and its attorney contacted Board agent Whiteman to convey the settlement proposal. ² Whiteman contacted Susan Younce and, according to her testimony as credited by the ALJ, asked her, "If Mr. Seligman offered you your job back with backpay, would you take it?" Younce replied, "No, I don't want to work there anymore. I don't even want to be around here anymore." Whiteman responded, "You know you could get your backpay without taking your job back," and Younce replied, "Fine." Following this conversation, Whiteman informed Seligman's attorney that the Younces did not want their jobs back. The Younces later received a notice from Seligman requesting that they report to the Utica Green apartment complex for work. They did not respond.

                8(a)(1) and (3), 29 U.S.C. Sec. 158(a)(1), (3) (1982).   Seligman & Assoc., Inc., 240 N.L.R.B. 110 (1979).  The Board ordered Seligman to offer its unlawfully discharged employees reinstatement to their former positions, to make them whole, and to post notices.  Id.  This court granted judgment enforcing that order.   Seligman Assoc., Inc. v. NLRB, 639 F.2d 307 (6th Cir.), cert. denied, 454 U.S. 838, 102 S.Ct. 144, 70 L.Ed.2d 120 (1981).  The present enforcement petition arises out of a supplemental decision and order by the Board specifying the amount of backpay due David and Susan Younce, the amount of medical compensation due Clarence Goold, and the contents of the required notice
                

On the fifth or sixth of November, while her husband and three children were ill, Susan Younce contacted Scott Seligman directly, told him of her family's illness, and asked if they could remain in the apartment as paying tenants. Seligman replied that they could, provided she drop her unfair labor practice claim. On November 8, Susan Younce called Whiteman to tell him that she wanted to drop the charge. Whiteman advised against doing so, and informed her that if she nevertheless wanted to relinquish the claim, she would have to do so in writing. She next called Scott Seligman again, who advised her to obtain a withdrawal request form from the Board and to go to his attorney's office to sign a lease.

On November 11, the Younces received another eviction notice. The next day, Susan Younce met with Seligman's attorney at his office. After discussing her desire and attempts to drop the charges, the attorney informed Younce that she would have to sign an affidavit describing her attempts to withdraw the charges. He then dictated both an affidavit and a withdrawal letter which, after some changes in style, Younce signed.

The ALJ credited Susan Younce's testimony throughout the hearing, including the following account of her meeting with Seligman's attorney:

I was supposed to go there to get a lease and instead, I got these [the affidavit and withdrawal letter].... Now I'm a little bit calm about it, but when this In its supplemental decision and order, the Board accepted the ALJ's determination that: (1) Seligman had extended only a hypothetical reinstatement offer to the Younces; (2) the reinstatement offered was not to their former positions, but to similar positions at a different location and for different management; and (3) Seligman must bear the cost of any confusion in the reinstatement offer resulting from its use of a Board agent as an intermediary with the Younces. It further concluded that Susan Younce was intimidated at her meeting with Seligman's attorney and that her statements made then that she did not desire reinstatement were not binding. It accordingly determined that Seligman's backpay obligation to the Younces was not tolled and that the Younces were entitled to backpay in the amount of $27,557.96.

was taking place I was nervous and upset and I don't think I was in the right [frame of] mind to really know what I was doing. I went to [Alterman's] office for a lease and I ended up having to do all this. I felt pressured in [his] office when I wrote it for one thing, and I said, "Yes, it is okay," and I signed it just to get out of there.

The Board further ordered Seligman to pay directly to the hospital and doctor the medical expenses incurred by Clarence Goold, but never paid by him. Finally, the Board ordered that the notices to be posted by Seligman include references to the remedies afforded the Younces, Goold, and six other former employees.

Seligman argues that the Younces declined valid reinstatement offers, that they suffered a willful loss of earning following their discharge, and that the Board erred in calculating their backpay. Seligman further contends that it owes nothing to the hospital and doctor for Goold's medical treatment because the hospital and doctor are now barred from collecting on those debts. Finally, Seligman maintains that the notices should contain no reference to the remedies afforded the Younces and Goold under the order or to the remedies afforded six other employees whose claims were settled.

CLARENCE GOOLD

First, we have little difficulty enforcing the Board's order directing Seligman to reimburse the hospital and doctor for Goold's medical treatment, even though those charges might now be subject to a statute of limitations defense were Goold sued for their collection. In his dissent, Board member Robert B. Hunter noted that as of the date of the Board's opinion, Goold had not been required to pay the bills incurred in 1976 and 1977. He noted that Seligman had excepted only to the payment of the medical expenses directly to Goold, which might result in a windfall to him, since there was no assurance that he would ever be obligated to pay those creditors. The dissenting member would therefore order respondent to indemnify Goold if any collection action on the bills were instituted. In effect, the dissenting Board member would only have required Seligman to hold Goold harmless from liability rather than to pay the bill. The Board ordered payment of those bills directly to the providers of the services.

We are furnished no evidence, other than of the passage of time, that the payment of these bills may be subject to an effective statute of limitations defense. The passage of time does not act to extinguish the debt, of course, but may under an applicable statute of limitations bar legal action to recover it. Since the delay or failure to pay the bill is at least arguably a result of Seligman's unlawful refusal to honor the debt in the first place, respondent is in a poor position to take advantage of its own improper conduct. Even assuming the statute of limitations applied and there was no tolling under state law, the debt can remain upon the books and have an adverse effect upon the employee's ability to obtain future medical services from those providers or from others who may be aware that previous providers had not been paid. Thus, the unpaid debt, even if uncollectible legally, can still have an adverse effect

                upon Goold attributable to the respondent's 8(a)(3) and 8(a)(1) violations.  The Board's ruling here is consistent with the Supreme Court's holding that the "make whole" remedial power of the Board is "a broad discretionary one, subject to limited judicial review."   Fibreboard v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964).  The Board's order with reference to Clarence Goold is therefore enforced in full
                

DAVID AND SUSAN YOUNCE

Seligman raises the same argument here that it presented to both the ALJ and the Board. Seligman first argues that the Younces received and...