N.L.R.B. v. Nhe/Freeway, Inc., 75-1827

• Decision Date: 03 December 1976
• Docket Number: No. 75-1827,75-1827
• Citation: 545 F.2d 592
• Parties: 93 L.R.R.M. (BNA) 3022, 79 Lab.Cas. P 11,757 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NHE/FREEWAY, INC., et al., Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 592

545 F.2d 592

93 L.R.R.M. (BNA) 3022, 79 Lab.Cas. P 11,757

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NHE/FREEWAY, INC., et al., Respondents.

No. 75-1827.

United States Court of Appeals Seventh Circuit.

Argued Oct. 22, 1976.

Decided Dec. 3, 1976.

Elliott Moore, Deputy Associate Gen. Counsel, John D. Burgoyne and John C. Rother, Attys., N. L. R. B., Washington, D. C., for petitioner.

Ralph Adam Fine, Milwaukee, Wis., for respondents.

Before CLARK ^*, Associate Justice (Retired), FAIRCHILD, Chief Judge, and HASTINGS, Senior Circuit Judge.

PER CURIAM:

This enforcement proceeding, filed by the National Labor Relations Board, petitioner, v. NHE/Freeway, Inc., National Health Enterprises, Inc. and Health Facilities, Inc. (NHE), respondents, seeks an order requiring payment of back pay found to be due certain employees of NHE. The Board opinion may be found at 218 NLRB No. 41.

NHE had previously agreed to a settlement stipulation under which it admitted that it had discriminatorily discharged and/or refused to rehire certain employees, including the three involved here, because of their union or other concerted protected activity, an unfair labor practice under Section 8(a)3 of The National Labor Relations Act. The Regional Director of the Board issued a back pay specification covering the amounts due each discriminatee. However, at a hearing before the Administrative Law Judge, it was found that two of the employees, Wanda Patton and Katherine Young, had forfeited their right to back pay by engaging in a willful loss of interim earnings and their respective claims were rejected; and the claim of Beulah Hunt was allowed. ¹ On reference to the Board, it found that the Administrative Law Judge erred with respect to all three claims, finding that Ms. Patton and Ms. Young did exercise due diligence in seeking employment to mitigate back pay, but that Ms. Hunt did not. It found that Ms. Hunt, after filing with the Wisconsin Employment Service and seeking employment for a week or two as a nurse's aide at one health facility, made no further attempts whatsoever to find work, although aware of the fact that employment existed in the area for positions in the hospital and nursing fields as well as others. We direct the enforcement of the Board's order.

I

While NHE makes no contest here of the Board Findings as to the gross amount of back pay due, it does insist that the Board should have found that the willful failure of Ms. Patton and Ms. Young to seek other work during the back pay period relieved it of liability for back pay. In this connection, we view the duty of NHE differently. As was held in N. L. R. B. v. Mastro Plastics Corp., 354 F.2d 170, 178 (2nd Cir. 1965), cert. den. 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1965), the "finding of an unfair labor practice . . . is presumptive proof that some back pay is owed." And the Board has discharged its burden when it finds the gross amount of the back pay due. N. L. R. B. v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969). The burden then shifts to the violator "of establishing affirmative defenses which would mitigate his liability." N. L. R. B. v. Mooney Aircraft, Inc., 366 F.2d 809, 813 (5th Cir. 1966), such as here where it is claimed that the discriminatee "fails diligently to search for alternative work," N. L. R. B. v. Mastro Plastics Corp., 354 F.2d 170, 174 n. 3 (2nd Cir. 1965), cert. den. 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682; or failure "to make a reasonable search for interim work," N. L. R. B. v. Miami Coca Cola Bottling Co., 360 F.2d 569, 575 (5th Cir. 1966); or failure to make an "honest good faith effort" to find work. N. L. R. B. v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955).

II

The record shows that NHE had employed Ms. Young as a cook and had employed Ms. Patton as a nurse's aide. Ms. Young had extensive experience as a cook in both hospitals and nursing homes while Ms. Patton was just beginning her work experience as a nurse's aide. After being discharged by NHE, both Ms. Young and Ms. Patton registered with the Wisconsin Employment Service for work, respectively, as cook and nurse's aide. Ms. Young applied for work as a cook at nine hospitals and three nursing homes, returning on several occasions to re-apply. Ms. Patton as well sought work as a nurse's aide at eight hospitals and one nursing home. They both applied for factory work with Ms. Young making four such applications and Ms. Patton three. On four of the times Ms. Young made application for work, she was accompanied by a Pearl Jennings. Ms. Patton as well, at several of the places where she applied for work was accompanied by a Billy Scott. Both of these individuals were produced by Ms. Young and Ms. Patton, respectively, at the hearing before the Administrative Law Judge, to testify in regard to the making of their applications. The back pay period for Ms. Young was established as the period beginning April 1, 1973 through April 8, 1974, while that of Ms. Patton was April 1, 1973 through December 5, 1973.

The only testimony NHE offered was that of five representatives from four of the hospitals and one of the nursing homes where Ms. Young and Ms. Patton had stated they had placed applications. ² The witnesses were in charge of personnel matters at their respective institutions, but they did not receive or process the applications for work, nor did they meet with or interview any applicants. Each testified that a check of their records...