*2 ENGEL, KRUPANSKY and Judges. Circuit KRUPANSKY, petitions The N.L.R.B. this court to en- force an order directing the Westin Hotel Corporation (Westin) to reimburse Lee Ann (Maniaci), an employee wrongfully discharged Westin, by the in an amount of $8,020.57 plus interest as and ben- stipulated efits. The the dis- charge was in violation of the National opposed Labor Relations Act1 but enforce- by charging ment of the order that Maniaci reasonably diligent did exert a effort to employment during period covered by the backpay assessment. unlawfully
The Westin terminated Man- 22, 1978, on employing iaci after December her as a cocktail waitress about 20 months. experience Maniaci had no Westin, any employer, or with other only the area of service. Her food serving beverages was the working and soft drinks. Prior to for the discharged serving ployer’s alleged 1. Maniaci was as the violations of the collective bar- intermediary employees’ gaining agreement supervisors. who transmitted com- to her working plaints about conditions and em- my dis- the circumstances of continuously em- found out Westin, she had been seem too he didn’t Hotel for Westin] Cadillac [at the Book ployed interested.” Maniaci resid- years a cocktail waitress. Frazer, had commuted Michigan, and
ined March, 1979, Maniaci was inter- During employment at place of to her lounge at the by the viewed about 25 a distance of in downtown Inn, 10 miles Shelby which *3 residence. from her miles name, telephone home. She left her her recommendation, of and the letter for em- number began looking elsewhere Maniaci avail- employment vacancies were same no the but a cocktail waitress ployment as subsequently she Maniaciaverred that able. unlawfully terminat- evening she was that Shelby Inn on at least inquiries at the personally made applied by the Westin. She ed following the interview but Ale, three occasions ’N an establishment work at Steak for Maniaci also positions were available. miles from no ten a cocktail bar about with and Fil- available, contacted Wine Tasters Man- visited or job but home. No was her March, during to subsequent lippa’s Wine Barrel but two or three iaci returned on Tasters, Maniaci At the Wine backpay period, i.e. no avail. during the occasions manager did not leave an 17, spoke to the but 12, Maniaci to March Dec. the she did not have very application because a favorable and received then solicited service to secure previous requisite food from the of recommendation letter establishment. employment at that Hotel to aid manager at the Book Cadillac also obtaining employment. She her con- beginning April, Maniaci At the December, 1978, at Pat sought work Disco, an establish- the Three Faces tacted restaurant O’Grady’s, a bar and home, 12 miles from her where ment about home, there but eight to ten miles an interview and subsequently obtained openings no available. were pur- a cocktail waitress. She was hired as 1979, required uniform and shoes 2, registered chased a January Maniaci On working. The and commenced Employment Com- about $60 the State with heavy downpour. Commission”), night was a re- first there (“Employment mission up, the a result “the toilets backed seeking employment As porting that she was up and the drains in the ser- day, sinks backed On that same as a cocktail waitress. up” causing a two in vice area backed grievance her Union bar Maniaci filed a with sewage and inch accumulation of water gain with the attempt an to reinstatement ruined her Maniaci’s feet and she devoted that soaked Maniaci stated that Westin. told her The other waitresses January, new shoes. majority the of her time it rained. Al- happened this each time co-employees to that soliciting letters night, second the wrongful- though it did not rain the theory support her that wet, and at the end of her floor remained discharged, and added that her Union ly manager ter- spoke and shift she with her in this endeavor. She failed to assist poor her work- Copa Lounge in minated because Danny’s also contacted that one other ing conditions. She knew it had no January but was advised employee also terminated Maniaci filed a employment openings. conditions. the N.L. due to the adverse charge against during this same month. R.B. Disco in leaving the Three Faces After “did a lot of look- mid-April Maniaci sought em- February, Maniaci included job. Her efforts lounges ing” for another cocktail ployment at several applications at Gino’s Surf completing a 10 mile radius approximately bars within also Ale, Georgian Inn. She Lounge and the home, wit, N’ the Steak newspaper want ads Inn, Royal monitored Flying Dutchman Motor Lounge and Pat Park Lane telephoned the Touch, She was and Clem’s Pour House. openings. On no O’Grady’s, but found Flying manager interviewed a began working as May Maniaci Dutchman, “when he she testified that but Georgian part-time listings cocktail waitress at the for “bar waiters/waitresses” dur- Roseville, Michigan, Inn about five motel nine the months relevant miles from her At the time she was period.2 examination, home. On cross hired, however, advised her that he it was disclosed that the “Detroit “letting girl go” would soon be another job listings actually area” covered seven promised part-time Maniaci was that her counties, some which would involve a 30 change to soon status would full-time “as (one way) 120 mile commute for Maniaci. possible”. Elliot further a.l.j. informed the that the potential employer name of a did ap- days About two after she commenced pear microfilm, but rather the en- Inn, Georgian working at the coded, tries applicant were an employment by offered Surf Gino’s would to be specifically” have “referred Lounge. part-time Maniaci refused the particular opening. Elliot also stated place slot available at this be- business that while it was the agency’s “policy” to already employed. cause she was re- She *4 inform seeking employment those of the Georgian mained at the Inn as a cocktail lists, availability of the microfilm he did not waitress for six until weeks the knowledge have first hand of whether the June, discharged 1979, upon her in late policy fully implemented. was Maniaci discovering collecting partial that she was stated she had that never advised been of unemployment benefits to which the by agency personnel. lists entitled as a of her discharge result the Westin. foregoing, Based on the a.l.j. the deter- November, 1979, mined that the Westin
In
had not met its
Maniaci
em-
proof
burden of
ployed
Lodge,
establishing
at the
Point
that
Shore
Motor
had
diligence”
ten
use “due
miles
home. She
to obtain
week,
days
just
employment following
worked four
a
wrongful
as she had
dis-
the
for Westin at the time of her
the
by
unlawful
Westin.
discharge. Maniaci continued to
10(c)
Section
of the National La
the
Lodge
Shore Point Motor
after the
§
Act,
160(c),
bor Relations
29 U.S.C.
au
backpay period by
terminated
thorizes
Board
appropriate
the
to fashion
17,
offering her reinstatement on March
remedial orders including the award of
backpay. The Board’s “broad discretion
upon
history
Based
Maniaci’s work
ary” authority in awarding backpay as a
outlined above
the
period
remedy
practice
for unfair labor
is firmly
discharge by
between her
the Westin and established. NLRB v. J.H. Rutter-Rex
employment at
the Shore Point Motor
258,
263,
417,
Mfg.
396 U.S.
90 S.Ct.
Lodge, the N.L.R.B. determined
Man-
that
420,
(1969).
iaei was entitled back formulating exercise of its discretion in subject awards is to a limited
In testimony an effort to rebut Maniaci’s scrutiny by amount of judiciary. the Fi that she fully pro- utilized the services Paper Corp. NLRB, berboard Products v. by employment vided the agency, state the 203, 215, 398, 405, testimony Westin relied 85 S.Ct. 13 solely the of (1964); Lewis, L.Ed.2d 233 M. Michigan Employment Richard Elliot of the Inc. Alfred 1154, (9th NLRB, v. 681 Security F.2d 1156 occupational Commission’s re- Cir. 1982). addition, explained beyond peradven In it is search section. Elliot that the (on microfilm) employment ture the service retained defense of willful loss of defense, earnings lists of in the an affirmative openings Detroit area is with the occupation, through proof resting upon employer. his burden testimony of 652, NLRB, Westin entered evidence the F.2d into number McCann v. 570 655 Steel 1979, example, January, May; July. 2. For were and 23 in there 28 in listings; February; April; four such in 11 25 in 1130 addition, ted). proving In the burden Cir.1978); Reynolds, 399 (6th v.
n. 4
NLRB .
wrongfully
diligence by
due
Cir.1968)
lack of
(6th
F.2d
669
employee
employer.
discharged
is on
Further, wrongfully-discharged
a
regarding
Finally,
the Board
the decision of
rea
required to make a
employee
only
properly
diligence” is a factual one
“due
damages, and is
mitigate
effort to
sonable
of substantial
reviewed under the standard
of dili
highest standard
not held to the
evidence.
onerous, and
is not
gence. This burden
seeks,
case,
instant
plaintiff be suc
mandate that the
does not
essence,
place the burden on the
damage.
mitigating
Reisi
cessful
method of
prove
“systematic
ee to
Health,
Dept. Mental
mas v.
further, to retain
searching
job”,
for a
Cir.1983);
(6th
v.
EEOC
714 F.2d
regardless of the
once secured
Inc., 625 F.2d
Freights,
Way
Lee
Motor
employee was
under which the
conditions
Cir.1979);
(10th
v.
NLRB
Pilot
the courts nor
required to work. Neither
Carriers, Inc.,
Freight
recognized
appro-
this as an
the Board has
(5th Cir.1979).
of the
The reasonableness
contrary,
priate standard. To the
basic
substantially equivalent em
effort to
mandate
principles
equity
and fairness
light
evaluated in
ployment should be
on
proof
must remain
burden
background
the individual’s
employer’s illegal
employer
because the
Rasimas,
job market.
and the relevant
discharge
employee precipitated the
therein;
cited
Heheman
supra, and cases
job.
for another
search
(6th
Co., 661 F.2d
Scripps
*5
places great emphasis
The dissent
Cir.1981).
in
employment
on Maniaci’s failure to
Finally, it must be remembered
support
Detroit area
for the conclu
as
an
the Board’s conclusion as to whether
reasonably
dili
sion that Maniaci was
against
employer’s asserted defenses
liabil
employment.
gent
pursue
in her effort to
successfully
ity have been
established will
doing,
ignores
factors
In so
the dissent
two
record,
appeal only if the
overturned on
be
(1)
in
her credited testimo
Maniaci’s favor:
entirety,
considered in its
does not disclose
in
ny
preferred
to work
a hotel'
she
support
evidence to
the Board’s
substantial
lounge
comparable quality to
cocktail
findings.
Carpenters
Local
NLRB
Westin,
apply
such
but did not
at
estab
(cit
(9th Cir.1976)
1913, 531 F.2d
426
ap
in Detroit because she was
lishments
NLRB,
Corp. v.
Universal Camera
prehensive
being
employment
refused
474, 71 S.Ct.
2. See TWM Co. v. Dura (6th Cir.1983): herself admitted (for unjusti- found reasons any effort make AU) work comparable by the
fiable and she conceded in Detroit likely accepted have work
would returned to asked me.” She they
“if Detroit reinstated. in downtown when reduced the back
I therefore have would for by at least one-half
pay award diligently comparable cock-
failure respectfully work. I there- waitress
tail dissent.
fore Beachwood, Occhionero, Ohio, J.
Michael petitioner-appellant. (argued), Cohen L. Jonathan Glenn Arch- Jr., Gen., er, Atty. L. Paup, Asst. Michael Section, Chief, L. Appellate Terry Fre- Div., Justice, dricks, Dept, Tax Joel Ger- CO., CAR-RON ASPHALT PAVING I.R.S., ber, Counsel, Acting Chief Wash- INC., Petitioner-Appellant, D.C., ington, respondent-appellee. * JONES, EDWARDS Circuit INTERNAL COMMISSIONER OF PHILLIPS, Judges, and Senior Circuit REVENUE, Respondent-Appellee. Judge. No. 83-1737. EDWARDS, Jr., GEORGE CLIFTON Appeals,
United States Court Sixth Circuit. in this At issue case are deductions from Argued Nov. 1984. part corporate tax on the federal income Decided April 1985. Asphalt Company in Paving Car-Ron $87,987 $4,372 amount in 1975 and These deductions were claimed be- taxpayer paid cause Car-Ron had these (“kickbacks”) vice-pres- to a sums as bribes *7 Enterprises Forest City ident of named City gen- Festa. Nicholas Forest responsible eral contractor for construction Akron, Rolling Acres Mall Ohio vice-president Festa was a awarding all Petitioner subcontracts. suc- securing ceeded in two of the subcontracts them, agreed keep pay in order to he but $75,000 approximately worth on a Festa done residence owned directly to payments being made who worked Festa subcontractors $12,000 premises. paid An additional * January George took senior status Honorable Edwards