holding that where employee has not exercised reasonable diligence in efforts to secur e employment, employer has established that employee did not pr operly mitigate damages
How later courts described this case
- holding that where employee has not exercised reasonable diligence in efforts to secur e employment, employer has established that employee did not pr operly mitigate damages
- noting courts determine reasonableness of employee's efforts by such factors as the economic climate and the employee's skills, qualifications and age
- stating that it is reasonable for an unskilled worker to have accepted a wide range of work
- explaining that as time wears on, plaintiff may be required to lower his sights
Written by the judges who cited it.
The opinion
CLIFFORD SCOTT GREEN, Senior District Judge,
dissenting.
As the majority acknowledges: (1) it is well-settled that “where payments from a union to a discriminatee are contingent upon picketing, the sums received are interim earnings deductible from backpay.” Majority at 455 (citations omitted); (2) the burden of establishing a failure to mitigate is on the employer rather than the employee. Id. at 453-54 (citing Lundy Packing Co. v. NLRB, 856 F.2d 627 , 629 (4th Cir.1989); Iron Workers Local 118, etc. v. NLRB, 804 F.2d 1100 , 1102 (9th Cir.1986); NLRB V. Pilot Freight Carriers, Inc., 604 F.2d 375, 377 (5th Cir.1979)); (3) an employer meets this burden by “establishing that the employee has willfully incurred losses through unjustifiably refusing adequate interim employment.” Id. (emphasis added) (citing Phelps Dodge, 313 U.S. 177, 198-200 , 61 S.Ct. 845, 854-55 , 85 L.Ed. 1271 (1941)); (4) that because of its expertise, decisions of the National Labor Relations Board (the Board) in fashioning remedial relief are entitled to deference. Id. at 453. (citing NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346-47 , 73 S.Ct. 287, 289 , 97 L.Ed. 377 (1953); Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 , 85 S.Ct. 398, 406 , 13 L.Ed.2d 233 (1964)).
After acknowledging that Tubari, the employer, failed to produce evidence that other employment was available, the majority finds the failure irrelevant because the employees did not search for additional employment, and concludes that the Board erred in finding that full-time paid picketing work constitutes suitable interim employment acceptable as mitigation of damages for Tubari’s violation of the National Labor Relations Act (the Act). Because I believe that the holding of the majority is not supported by the evidence, disregards established authority, and fails to give proper deference to the expertise of the Board, I respectfully dissent.
The record does not support the majority’s finding of fact that these employees made no search for comparable interim employment. After being unlawfully discharged, these unskilled employees sought and accepted paid picketing positions. They were required to picket and did in fact picket daily from 7:30 a.m. to 3:30 p.m. In consideration for their services they were compensated at a rate of $150.00 per week plus $25.00 per week for lunch money. The Board reduced the amount of the award to each employee by giving Tubari credit for the full amount of earnings received ($175.00 week). Since these facts are undisputed, the finding of the majority that the employees made no search for comparable interim employment is without evidentiary support.
Nor will the evidence support a finding that the accepted unskilled employment was not suitable. The majority suggests that picketing is not productive employment; however, it does not conclude that the type of employment accepted was unsuitable for these unskilled employees. Instead, the majority focuses on the amount of compensation received, essentially concluding, without evidence, that the employees could possibly have done better. In reaching this conclusion, the majority disregards the well-settled authority which places the duty of showing a failure to mitigate on the employer.
The majority’s justification for relieving Tubari of its burden is that the employees withdrew from the employment market by not continuing to seek other employment. I find the stated reason for denying the discriminatees their remedy for the unlawful conduct of Tubari to be without merit where, as here, the discriminatees ceased to continue their search for alternative employment only after accepting the full-time picketing positions. Moreover, the withdrawal finding is surprising since the majority acknowledges that the employees were not free to decline the accepted employment except at the peril of being totally denied compensation because of the failure to mitigate damages.
In the view of the majority, these wrongfully discharged, unskilled employees are barred from their remedy under the Act because they did not, after working all day, seek alternative employment at night. It is *461 significant that the majority cites no authority for placing such a burden on the victims. Indeed, the cases cited by the majority hold the opposite. The majority recognizes that the established case law holds that a discriminatee has no duty to continually search for employment of equal or greater pay. Majority at 458 (citing F.E. Hazard, Lt., 303 N.L.R.B. No. 130, at -, 1991 WL 148191 , 1991 N.L.R.B. LEXIS 880 at *4 (July 23, 1991) (“Once a discri-minatee has embarked on a legitimate course of interim employment, there is no duty to search for more lucrative interim employment”); Sioux Falls Stock Yards Co., 236 N.L.R.B. 435 , 570 (1978) (“It is well established that an employee who accepts appropriate interim employment, even at a lower rate of pay, is not required to search for better employment.”) (footnote omitted)). Still, in the face of these established legal principles, the majority concludes that the discriminatees did not properly mitigate their damages. This conclusion relieves Tubari of its obligation to compensate the victims of its wrongdoing and deprives the employees of their remedy-
I believe that unskilled employees will find the majority’s requirement for mitigation to be a virtually impossible obstacle to overcome in their quest for a meaningful remedy. Unfortunately, the majority does not clearly inform these unskilled employees of the additional steps that must be taken to mitigate damages. Perhaps a professional or highly skilled employee will be able to meet the requirement by retaining the services of an employment consultant, sending out employment resumes, or arranging with a prospective employer a mutually convenient time for an interview. Of course, the unskilled laborer has no such options; for the unskilled laborer employment is obtained usually by reporting to the work site, at the start of the work day, prepared to work. Clearly, the discrimina-tees employed from 7:30 A.M. to 3:30 P.M. could not so report. The National Labor Relations Board, experienced in labor matters, apparently recognized the limited opportunity for unskilled employees to both work full time and seek alternate interim employment. The Board assessed all the relevant factors and concluded that the dis-criminatees had mitigated damages by accepting suitable interim employment which paid at least 65% of their former wages. The Board’s decision is supported by the record and established authority. The decision is entitled to deference and in my opinion the order of the Board should be enforced.