NLRB v. ARDUINI MANUFACTURING CORPORATION, 7023.

• Decision Date: 07 May 1968
• Docket Number: No. 7023.,7023.
• Citation: 394 F.2d 420
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARDUINI MANUFACTURING CORPORATION, Respondent.
• Court: U.S. Court of Appeals — First Circuit

394 F.2d 420 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARDUINI MANUFACTURING CORPORATION, Respondent.

No. 7023.

United States Court of Appeals First Circuit.

May 7, 1968.

Harold B. Shore, Attorney, Washington, D. C., with whom Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Lawrence M. Joseph, Attorney, Washington, D. C., were on brief, for petitioner.

George H. Mason, Worcester, Mass., with whom Richard A. Robinson and Vaughan, Esty, Crotty & Mason, Worcester, Mass., were on brief, for respondent.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

In this case the National Labor Relations Board petitions for enforcement of its order directing respondent, Arduini Manufacturing Corporation, to pay two discriminatorily discharged employees named Cassanelli and Gibeault certain stated amounts in back pay.¹

The trial examiner who heard this matter initially found that both employees had failed to exercise reasonable diligence in minimizing loss of income in the period between their discharge and reinstatement and recommended that except for minor sums due them under respondent's profit sharing plan, they be denied back pay.² The Board refused to accept the trial examiner's findings and recommendations. It found that except for a six week period in the case of Cassanelli and a ten week period in the case of Gibeault, both employees had made reasonable efforts to mitigate their loss of income and that respondent did not sustain its burden of proving otherwise. The question for us is whether on the record as a whole (including the trial examiner's findings) the Board's findings are supported by substantial evidence. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 496-497, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

First, as to Cassanelli, the record shows that in the period between discharge and reinstatement this employee earned some $5577 — never less than $650 in any full quarter — as compared with his usual salary at Arduini of $153.90 a week. Since admittedly he spent six weeks doing farm work for himself and others without compensation, this total amount is of considerable significance.

Respondent and indeed the trial examiner have compiled an impressive catalogue of indications that Cassanelli did not do all that he could have done to mitigate his loss of pay. He seems to have gone to the Employment Security Office only to see about unemployment benefits. Also, apparently he did not believe in reading "help wanted" ads in the newspapers. Although skilled in carpentry and related areas, there is no indication that he visited places where construction skills would be expected to be in short supply. His records were sketchy; his testimony at times implausible and inconsistent.³

Although we can understand how these considerations would persuade the trial examiner, we think that the Board in reaching an opposite conclusion as to Cassanelli is supported by substantial evidence. The unsatisfactory character of the record book is not surprising when we consider that Cassanelli was used to working for a wage. For the most part record keeping to him meant collecting W-2 forms. He freely admitted he was a "bad bookkeeper." Generally, however, he seemed cooperative about providing whatever information he could recall or divine from his meager records.⁴

The fact that Cassanelli sometimes worked for wages, at other times was self-employed and at still other times performed work in which his exact status is unclear, presents somewhat of a problem.⁵ Respondent argues that while Cassanelli was entitled to make his way either as an employee or a contractor, this hybrid status is out of harmony with a sincere desire to mitigate loss of earnings. If it is meant that this is so per se, we see no reason to agree. But if it is meant that in fact Cassanelli's talk about going into business for himself was little more than a ploy to avoid steady work, this flies in the face of his actual earnings during the period in dispute. Respondent portrays this man as fleeing from job opportunities at every turn, when in fact Cassanelli averaged about $116 a week during the period in question — more than 70% of what he had been earning while employed by respondent.

It may be that by seeking steady work as an employee or by pursuing his role as an independent contractor more steadfastly, Cassanelli could have reduced his loss of income even more. He is held, however, only to reasonable exertions in this regard, not the highest standard of diligence. N. L. R. B. v. Cashman Auto Co., 223 F.2d 832 (1st Cir. 1955). We think he satisfied this standard here. It may also be that even in the employment framework that Cassanelli chose, reasonable efforts would have resulted in even more income. But the burden of proving this is on respondent. Nabors Co. v. N. L. R. B., 323 F.2d 686, 692-693 (5th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 666, 11 L.Ed.2d 609 (1964). The record supports the Board's determination that this burden was not met. As the Board observed, most of the trial examiner's findings were relevant only to one who was or should have been looking for ordinary permanent employment, whereas Cassanelli was attempting to establish himself as an independent contractor. Moreover, the trial examiner tended to assume the existence of job opportunities neglected by Cassanelli.⁶ However plausible this assumption may be, it is unsupported by the record.⁷ Thus we think the Board's findings as to Cassanelli are supported by substantial evidence.

In the case of Gibeault, we are concerned with a relatively short period of time. When discharged he, too, received two weeks vacation pay. Immediately thereafter there was a ten week period during which Gibeault attended to farm work, vacationed and admittedly was unavailable for employment. Since he was employed elsewhere from November 23, 1964, until his reinstatement by respondent,⁸ we are concerned only with the period commencing twelve weeks after his discharge and ending with his acceptance of the interim job.

We are unable...