# National Labor Relations Board v. Armstrong Tire and Rubber Company, Tire Test Fleet Branch > Court of Appeals for the Fifth Circuit · February 19, 1959 · 263 F.2d 680 URL: https://www.frixlaw.com/law-library/cases/9446628 ## Case - **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARMSTRONG TIRE AND RUBBER COMPANY, TIRE TEST FLEET BRANCH, Respondent - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** February 19, 1959 - **Citations:** 263 F.2d 680; 43 L.R.R.M. (BNA) 2577; 1959 U.S. App. LEXIS 4941 - **Precedential status:** Published - **Opinion:** Concurring in part by Rives - **Judges:** Hutcheson, Jones, Rives - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9446628 ## Opinion text RIVES, Circuit Judge (concurring in part and dissenting in part). I concur as to all except the second issue concerning the amount of back pay, as to which I respectfully dissent. My brothers, in agreeing with the trial examiner and the dissenting member of the Board that the time during which Al-brecht helped his wife in their ice business (August 10, 1953 to March 22, 1955) should be excluded from the back *685 pay period because Albrecht did not during that period make reasonably diligent efforts to seek employment and that the work in the icehouse was not self-employment within the rule, place weight upon supposed facts, which I think are immaterial and inaccurate, viz: “(1) that the icehouse business was his wife’s, (2) that Albrecht testified that it was only for the first six months that he devoted full time to the icehouse, and (3) the other facts detailed by the examiner.” The “willful loss doctrine” acts to prevent any discharged employee from recovering back wages for the portion of the discharge period in which he does not use reasonable diligence in seeking to mitigate or minimize his losses. Bona fide self-employment will satisfy this duty to mitigate losses. National Labor Relations Bd. v. Efco Manufacturing, 1 Cir., 1955, 227 F.2d 675, 676 ; National Labor Relations Bd. v. Cashman Auto. Co., 1 Cir., 1955, 223 F.2d 832, 835-836 ; National Labor Relations Bd. v. Poultrymen’s Service Corp., 3 Cir., 1943, 138 F.2d 204, 211 . Further, it is immaterial whether or not the self-employment was financially successful since “the principle of mitigation of damages does not require success; it only requires an honest good faith effort.” National Labor Relations Bd. v. Cashman Auto. Co., supra, 223 F.2d at page 836 . There is, in my opinion, an abundance of evidence 1 that Albrecht’s activities during this period' amounted to such good faith effort. My brothers seem to think that the ice business belonged to Albrecht’s wife and consequently he was not actually self-employed. As shown in footnote 4 of the majority opinion, Albrecht furnished the capital to purchase the lot, construct the building and stock the store, all done in their joint names. Neither he nor his wife drew any salary but “lived off the business.” The business was listed in his wife’s name and, for income tax purposes, his wife reported the income as her own. Other than this income tax feature, all the evidence showed that Albrecht certainly had a half interest if not more. It was his and his wife’s business, and he worked feverishly during the time in question to make it a successful operation. *686 I believe that the facts as to the ice-house business and Albrecht’s repeated attempts to secure employment are such as to support with more than subtantial evidence the Board’s conclusion that Al-brecht’s conduct in that period measured up to the standards of diligence and good faith entitling him to his claim for back wages. I would enforce the order without modification. . Accurately summarized in the Board’s Brief as follows: “At the time of his discharge, Albrecht and his wife jointly owned a drive-in establishment, called the ‘E.A. Drive-Inn’, at which groceries, beer, cold drinks, and ice were sold. They had then been operating the drive-in for over 8 months. The establishment had been open from 10 a. m. to 10 p. m., seven days a week, operated in the main by Mrs. Albrecht, whom Albrecht helped out during his varying off hours from work with the Company. Because Albrecht worked rotating shifts, the hours he could help out in the drive-in were limited. “Upon his discharge, Albrecht began giving his full working time to the business. During the first six months after Ms discharge, namely from July 22, 1953, to February 1954, Albrecht devoted 15 hours a day and 7 days a week to its operation and was also aided by his wife. Thereafter, for the next 14 months, he continued to operate the business, but also looked for work elsewhere. “Thus, in February 1954, Albrecht sought a job as constable or night watchman from Constable Bob Garcia. In April, Albrecht made a like request for Constable Ilauck. During May and June he applied about six times for a job at Yane Hugo’s garage. Also in June, he frequently discussed plans with Adolph DeLeon, a small contractor, regarding Ms performing rough carpentry on houses DeLeon was expecting to build. Albrecht had previously worked for De-Leon in his oif-tiine. Several times between May and August, he asked Walter Czeck, who operated a Texaco service station, to give him a job. During July, August and September, Albrecht again saw DeLeon, Hauck and Czeck. Between September and November he frequently discussed job possibilities with J. B. Bedford who was planning to take over a Texaco service station. In the latter part of the same year, 1954, he tried for a job at Falstalf’s, a beer distributor. “On March 22, 1955, the Albrechts leased out their place of business. Making no profit, they were paid dollar-for-dollar for stoek and equipment.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9446628. Public record. Not legal advice.