Unfair Labor Practice, Matter of, AFL-CI
| Decision Date | 19 June 1984 |
| Docket Number | AFL-CI,C,No. 84-38,84-38 |
| Citation | 686 P.2d 185,211 Mont. 13 |
| Parties | , 119 L.R.R.M. (BNA) 2682 In the Matter of UNFAIR LABOR PRACTICE. CITY OF GREAT FALLS, Montana, Defendant/Petitioner and Appellant, v. Bruce YOUNG by CONSTRUCTION AND GENERAL LABORERS' LOCAL NO. 1334omplainant and Respondent, and Montana Board of Personnel Appeals, Intervenor. |
| Court | Montana Supreme Court |
David V. Gliko, City Atty., Great Falls, for defendant/petitioner and appellant.
D. Patrick McKittrick, Great Falls, for complainant and respondent.
James E. Gardner, Bd. of Personnel Appeals, Helena, for intervenor.
The City of Great Falls (City) appeals from an order of the District Court of the Eighth Judicial District, Cascade County, affirming an order of the Board of Personnel Appeals (Board) awarding backpay and restoring certain contractual benefits to complainant Bruce Young on account of an unfair labor practice committed against Young by the City. We affirm.
This is the third instance in which this Court has been petitioned to resolve matters arising out of a labor dispute between the City and Young and his union. In Young v. City of Great Falls (Mont.1981), 632 P.2d 1111, 38 St.Rep. 1317 (Young I ), this Court addressed the propriety of joining the Board as a necessary party to any judicial review in District Court of a Board order. A year later, in Young v. City of Great Falls (Mont.1982), 646 P.2d 512, 39 St.Rep. 1047 (Young II ), this Court affirmed a judgment by the District Court affirming a Board decision that the City had committed an unfair labor practice in its dealings with Young. Subsequent to that appeal, on September 30, 1982, a hearings examiner for the Board conducted a hearing for the purpose of designing an appropriate remedial order. The examiner's recommended order, dated January 7, 1983, was appealed by the City to the Board. The Board adopted the order without alteration on March 9, 1983. The City appealed this decision to the District Court, but the court affirmed. The City's challenge to the remedial order is now before this Court.
The remedial order fashioned by the examiner and affirmed by the Board and the District Court has three essential components: (1) that the City tender to Young back pay in the amount of $9,633.66 (less amounts deducted by state and federal agencies for contribution to Social Security, Public Employees' Retirement, and other similar obligations) plus interest of $4,628.09, for the time period October 31, 1978 to July 20, 1979; (2) that the City restore to Young all seniority and longevity rights due him under the collective bargaining agreement between the City and Young's union; (3) that the City credit Young with other benefits due him under the agreement.
The City contests the findings in support of the back pay component and the specific terms of the component. During and since the September 30, 1982, hearing, the City has resisted any award of back pay on the ground that Young failed to mitigate his financial losses by exercising reasonable diligence to obtain interim employment. Assuming that Young is entitled to back pay, the City has challenged the time period for which the award is to be calculated and the method used by the Board to calculate both the amount of back pay and interest due on that amount.
On appeal, the City raises the following issues:
(1) Whether there is substantial evidence to support the Board finding that Young exercised "reasonable diligence" in obtaining interim employment during the period in which he was laid off by the City?
(2) Whether the remedial period adopted by the hearing examiner and affirmed by the Board is proper?
(3) Whether the Woolworth formula used to calculate the amount of back pay owed Young is appropriate for this case?
(3) Whether the Florida Steel formula used to calculate the amount of interest awarded on back pay is appropriate in light of Montana law respecting interest on judgments?
Our analysis of these issues is guided by reference to National Labor Relations Board (NLRB) decisions and federal judicial interpretation of the National Labor Relations Act (NLRA). Because of the similarity between the NLRA and the Montana Public Employees' Collective Bargaining Act, (PECBA) Sections 39-31-101 to -409, MCA, we have found federal administrative and judicial construction of the NLRA instructive and often persuasive regarding the meaning of our own labor relations law. See, e.g., Teamsters Local # 45 v. State ex rel. Bd. of Personnel Appeals (Mont.1981), 635 P.2d 1310, 1312, 38 St.Rep. 1841, 1844; State ex rel. Bd. of Personnel Appeals v. District Court (1979), 183 Mont. 223, 225, 598 P.2d 1117, 1118.
THE ISSUE OF "REASONABLE DILIGENCE"
Following federal precedent, all of the parties agree that back pay is not always an appropriate remedy for an aggrieved employee:
N.L.R.B. v. Mercy Peninsula Ambulance Serv. (9th Cir.1979), 589 F.2d 1014, 1017-18.
See also McCann Steel Co. v. N.L.R.B. (6th Cir.1978), 570 F.2d 652, 656; N.L.R.B. v. Arduini Mfg. Corp. (1st Cir.1968), 394 F.2d 420, 423; N.L.R.B. v. Armstrong Tire and Rubber Co. (5th Cir.1959), 263 F.2d 680 683; Airport Service Lines (1977), 231 N.L.R.B. 137, 96 L.R.R.M. (BNA) 1358.
The City maintains that Young did not exercise "reasonable diligence" in seeking interim employment. According to the City, the record demonstrates that Young made minimal efforts to secure other employment between October 31, 1978, the day he was laid off, and July 20, 1979, the day he was reinstated. The City likens Young's efforts to those of the aggrieved employee in Mercy Peninsula, supra. In that case, back pay was denied to the victim of an unfair labor practice upon a finding that he made but a few, insincere attempts during his nine months of unemployment to seek other work. 589 F.2d at 1018. See also Alfred M. Lewis, Inc. v. N.L.R.B. (9th Cir.1982), 681 F.2d 1154, 1156 ( facts of Mercy Peninsula ); Arduini, supra ().
Our review is confined to the question of whether there is substantial evidence to support the finding of the Board that Young had exercised reasonable diligence. See section 2-4-704(2)(e), MCA; Slater v. Emp. Sec. Div. (Mont.1984), 676 P.2d 220, 222, 41 St.Rep. 247, 249-50.
The record indicates that, following his termination, Young made weekly contacts with the union hall and with the local Job Service regarding prospective employment. Through the union, Young obtained a job of one-week's duration with a local construction company. Upon obtaining this job, Young's name was placed at the bottom of the union hall's hiring list, and, consequently, was unable to obtain additional work through the union in part because of his low position on the list. However, he was able to secure, through his own initiative, another week's worth of work with a construction firm in Shelby, Montana, approximately eighty miles from Great Falls. Young also contacted several other individuals and companies about job prospects, but could not remember all of their names or the specific number of individuals and companies approached. There was evidence that job opportunities were hampered by winter weather conditions and a slow economy.
The hearing examiner found that Young's efforts amounted to reasonable diligence, considering all the attendant circumstances. The Board concurred, and we find no reason to disturb this finding. Once the Board has established the amount of back pay owed an otherwise wrongfully discharged employee, the burden is upon the employer to produce evidence to mitigate its liability. Mercy Peninsula, supra, at 1017 (citing cases). Here, the evidence of Young's job-hunting efforts and the detrimental effect of weather and economic conditions on the job market were uncontraverted. Furthermore, the facts of this case are clearly distinguishable from those in Mercy Peninsula and Arduini. The City has not demonstrated how the available evidence can reasonably be interpreted as indicative of indifference, insincerity or slothfulness on Young's part in his search for employment.
The period for calculating back pay typically begins to run at the time of the illegal discharge and ends when the aggrieved employee's reinstatement becomes effective. Bob Maddox Plymouth, Inc. (1981), 256 N.L.R.B. 813, 107 L.R.R.M. (BNA) 1325. However, this remedial period can be reduced if there is proof of mitigating circumstances. The burden of proof is on the employer to establish that it would not have had work available for an illegally discharged employee due to economic or other factors. N.L.R.B. v. Midwest Hanger Co. (8th Cir.1977), 550 F.2d 1101, 1104-1105, cert. den. 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90; N.L.R.B. v. Maestro Plastics Corp. (2d Cir.1965), 354 F.2d 170, 176, cert. den. (1966), 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682.
The hearing examiner found, and the Board concurred, that the appropriate remedial period for Young extended from October 31,...
To continue reading
Request your trial