holding that the fact that a waitress quit a comparable job did not toll her backpay liability where the sinks at the new job backed up and flooded when it rained
How later courts described this case
- holding that the fact that a waitress quit a comparable job did not toll her backpay liability where the sinks at the new job backed up and flooded when it rained
- “[A] wrongfully-discharged employee . . . is not held to the highest standard of diligence.”
- applying similar rule to wrongful discharge proceedings before the N.L.R.B.
- The Board’s conclusions “will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board’s findings.”
Written by the judges who cited it.
The opinion
WELLFORD, Circuit Judge,
dissenting.
Maniaci was an experienced cocktail waitress, who had worked in and commuted to the downtown Detroit area for many years from her Fraser, Michigan residence before the termination in controversy occurred. As recognized by the majority, during a three month period following her termination she sought employment at several cocktail bar locations nearer to her home than downtown Detroit. At some of these locations she did not leave an employment application. During the fourth month, she accepted employment and worked for a night or two, but conditions were undesirable and she quit. She testified, without specification, that she continued to look for other cocktail waitress work but not where she had customarily worked during her years of employment in urban Detroit. Finally, six months after this very short period of working, she accepted part-time cocktail waitress work in Roseville, about five miles from her home, but was discharged after a month because her employer learned she was continuing to draw unemployment benefits. Some three or four months later, again without seeking work in Detroit, 1 she obtained comparable employment about ten miles from her home before she was reinstated by defendant Westin. The NLRB found that Maniaci had “diligently sought employment” during the interim period. The ALJ added that he could not find “a willful failure through a lack of diligence” in Maniaci’s effort to find jobs outside Detroit. Thus he ordered that Westin pay her $8,020 in back pay, since it had not carried its burden to prove otherwise.
Although the burden is upon Westin to establish the lack of good faith or diligent effort on claimant’s part, I doubt that the burden is properly upon the Westin to prove, as required by the ALJ, a “willful failure” on Maniaci’s part. She may have failed simply through negligence, mistaken impression about her responsibility, or because of laziness or reluctance to seek comparable employment. 2
Over an approximately eleven month period, then, Maniaci’s efforts yielded her a total of about six weeks work, and she turned down part-time employment. She denied that the Michigan Employment Security Commission had followed its normal procedure about furnishing her lists of job openings during this period. I agree with the majority’s statement that “the reasonableness of the effort to find substantially equivalent employment should be evaluated in light of the individual’s background and experience and the relevant job market.” Evaluating Maniaci’s efforts to find such employment, I would find without much difficulty that she had failed diligently to seek work of the type she had performed for many years in Detroit, even though the burden is upon the Westin to establish this want of diligence.
The law requires “an honest good faith effort” to find employment, NLRB v. Cashman Auto, 223 F.2d 832, 836 (1st Cir.1955), or a “diligent effort to obtain other employment.” NLRB v. Armstrong Tire & Rubber Co., 263 F.2d 680, 683 (5th Cir.1959). These efforts should also be directed to essentially similar employment opportunities:
When a discriminatee has been improperly deprived of his employment position, he is under the recognized duty to make reasonable efforts to locate interim work comparable to his denied position and commensurate with his particular background and experience.
(Emphasis in original.) NLRB v. Madison Courier, Inc., 472 F.2d 1307,1323 (D.C.Cir.1972).
*1132 Maniaci herself admitted she failed to make any effort (for reasons found unjustifiable by the AU) to find comparable work in Detroit, and she conceded that she would likely have accepted work in Detroit “if they had asked me.” She returned to work in downtown Detroit when reinstated.
I would therefore have reduced the back pay award by at least one-half for the failure diligently to seek comparable cocktail waitress work. I respectfully therefore dissent.
. The ALJ found that "Maniaci admits that she did not seek work in any of the hotels in Detroit ...” (J/A 218).
. See TWM Manufacturing Co. v. Dura Corp., 722 F.2d 1261, 1272 (6th Cir.1983): Willfulness, for this purpose [contempt], implies a deliberate or intended violation, as distinguished from an accident, inadvertent or negligent violation.