San Jaun Mercantile Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD San Juan Mercantile Corp. and its agent Luis Ayala Colon and Union de Trabajadores de Muelles y Ramas Anexas de Ponce, Puerto Rico, Local 1903, UTM-IBL, AFL-CIO ILA District Council of the Ports of Puerto Rico, ILA-Ind., International Longshoremen's Association, Ponce Local, ILA- Ind., and International Longshoremen's Association, Ponce Sub-Local, ILA-Ind. and Union de Trabajadores de Muelles y Ramas Anexas de Ponce, Puerto Rico, Local 1903, UTM-IBL, AFL-CIO. Cases Nos. 24-CA-816, 24-CA-884, 24-CB-202, and 24-CB-222. January 30, 1962 SUPPLEMENTAL DECISION AND ORDER On June 24, 1958, the National Labor Relations Board issued a Decision and Order in the above-entitled case, based upon a stipulation of the parties providing for the entry of a consent decree. The Board's Order was duly enforced by the United States Court of Appeals for the First Circuit by a decree entered on September 24, 1958. Thereafter, pursuant to a backpay specification and appropriate notice issued June 7, 1961, by the Regional Director for the Twenty-fourth Region, a hearing was held for the purpose of determining the amounts of backpay due the discriminatees. On October 10, 1961, Trial Examiner John P. von Rohr issued his Intermediate Report on Backpay, a copy of which is attached hereto, in which he recommended that specific amounts of backpay be awarded to 18 of the 20 discriminatees. Thereafter the Respondent Employer and Respondent International Longshoremen's Association filed combined exceptions to the said Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report on Backpay, the exceptions and brief, and the entire record of the hearing on backpay in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications and additions: 1. We find no merit in Respondents' contention that the method of computation used here is a substantial variation from the intendment of the Voolworth case,³ the only formula set forth in their stipulation. 1 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. 2 In the formula suggested by Respondents, quoted in the Intermediate Report (text at footnote 3), "not in San Juan Mercantile" should read: "not only in San Juan Mercantile." 3 90 NLRB 289. '135 NLRB No. 72. SAN JUAN MERCANTILE CORP., ETC. The Woolworth formula provides for computation on a quarterly basis, as done here, and as opposed to computation on a basis covering the entire backpay period, which would have been over 2 years in the case of the checker-clerk discriminatees and slightly less than 2 years in the case of the hatch boss discriminatees. Respondents overlook the fact that the Woolworth case involved steady employment. In those cases where the employment offered by an employer is necessarily sporadic, the Board's rule is well established that earnings on days on which the employer would have had no work to offer a discriminatee are not included in computing the total quarterly earnings to be offset against the backpay that would have been earned-absent the employer's discrimination-on other days during the quarter, when work was available.4 Clearly all computations here were made on a quarterly basis as Respondents had stipulated they should be. But Respondents interpret Woolworth to mean-even in cases where sporadic work is involved-that all interim pay earned during a quarter is to be totaled and offset against all wages that replacements earned.5 The General Counsel, however, followed both the Woolworth formula and the formula for sporadic work, and offset-on a quarterly basis-only the interim pay earned on those days on which the Respondent Company had work available against the wages paid by the Respondent Company to others on those days. In arriving at gross pay the wages earned by replacements from other companies on days when Respondent Company had no work were omitted, and correspondingly the interim pay earned by the discriminatees on those days was not offset. The Board's formula is not only the established formula for cases of this sort, but seems eminently fair. In fact, the Respondents admit in their memorandum that it is "reasonable," but complain that it is not precisely oolworth. As stated in the Intermediate Report, the Respondents have made no showing that the formula they suggest would inure to their benefit in this case. They have had since February 3, 1960, when the original backpay presentation was served upon them to do this. In the circumstances their continued urging of a different formula 6 without making the computations to prove their point necessarily appears as 4 Brotherhood of Painters, etc., Local Union 419, et al. (Spoon Tile Company), 117 NLRB 1596. See also cases cited in the Intermediate Report at footnote 2. 5 In computing the base wage for checker-clerks Respondents agree that a percentage must be utilized to arrive at the average wage inasmuch as the Respondent Company employed fewer such employees during the backpay period involved than there were checker-clerk discriminatees They also take no issue with the application of that per-, centage to the interim pay to be offset. To their memorandum in support of exceptions, the Respondents attached copies of letters written by the Respondent Company on February 22 and 23, 1960, addressed to the Board's Regional Office suggesting the formula urged by them at the hearing. Thus, although not established on the record, it would appear, contrary to the Intermediate Report, that Respondents had suggested another formula at an early date but without having implemented it thereafter, S0 far as the record shows. DECISIONS OF NATIONAL LABOR RELATIONS BOARD a delaying action. As late as the hearing, held on four days in July 1961, they had apparently made no study of the computations submitted to them and the supporting payrolls, for the hearing was twice adjourned that they might do this. At this stage of the proceeding they have still made no showing along these lines.⁷ As the Respondents admit the reasonableness of the formula used and have made no showing that the formula they suggest would inure to their benefit despite ample time to do so, we find no merit in their exception and adopt the schedule of backpay as computed by the Board agent and set forth in the Intermediate Report. 2. We also find no merit in Respondents' contention that additional interim earnings of employees with the same names but different social security numbers-in this case, Mercado, Gallego, and Velez-should also have been deducted from the backpay due these three employees. Respondents have not shown that any of these three individuals has an additional social security number. The burden was upon them to do SO. In the case of Gallego, Respondents made no attempt to refute his testimony that the specific social security number testified to as his was the only one he had ever had. In the case of Mercado, they neglected to question him in this regard. In the case of Velez they did not put him on the stand at all, even though they had summoned him as a witness. ORDER Upon the basis of this Supplemental Decision and the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent San Juan Mercantile Corp., and its agent Luis Ayala Colon, and Respondents ILA District Council of the Ports of Puerto Rico, ILA-Ind., International Longshoremen's Association, Ponce Local, ILA-Ind., and International Longshoremen's Association, Ponce Sub-Local ILA-Ind., and the agents, successors, andassigns of all Respondents, shall pay net backpay to the 18 individuals named at the end of the Intermediate Report on Backpay, in the amounts set out after their names, or a total of $7,920.71. MEMBER RODGERS dissenting: I do not believe my colleagues are proceeding on sound legal ground in applying the so-called Spoon Tile formula in this particular case. The Respondents here had been charged with committing certain unfair labor practices. In settlement of those charges, the Respondents and the General Counsel entered into a stipulation providing, inter alia, that the Respondents make whole certain employees for loss of pay suffered as the result of Respondents' discrimination against 7 They filed no brief with the Trial Examiner although granted additional time in which to do SO. SAN JUAN MERCANTILE CORP., ETC. them. This stipulation specifically provided as follows: "Backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. oolworth Company, 90 NLRB 289." This stipulation was entered into subject to approval of the Board. On June 24, 1958, the Board entered its Decision and Order approving the stipulation and providing that "Backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Voolworth Company, 90 NLRB 289." On September 24, 1958, the United States Court of Appeals for the First Circuit, upon peititon of the Board, entered a decree enforcing the Board's Order containing the above-quoted backpay provision. It is clear from the foregoing that under the terms of the stipulation, the Order of this Board, and the decree of the circuit court that Respondents' liability for backpay must be determined in accordance with F. W. Woolworth Company, supra. I would compute the backpay accordingly. INTERMEDIATE REPORT ON BACKPAY Pursuant to a stipulation entered into on March 21, 1958, by and between the parties named in the above-captioned matter and the General Counsel, the National Labor Relations Board, on June 24, 1958, issued its Decision and Order finding that the Respondents had discriminated against certain named employees in violation of Section 8(a) (3) of the Act. Thereafter, the Board's Order was enforced by the United States Court of Appeals for the First Circuit and a decree was entered against the Respondents on September 24, 1958. The decree provided, inter alia, that Respondents make whole the employees named as discriminatees in the Board's Decision and Order for any loss of pay suffered by reason of Respondent's discrimination against them. On June 7, 1961, the Regional Director for the Twenty-fourth Region of the Board issued a backpay specification and prior to the hearing herein identical answers were timely filed by each of the Respondents. The answers admitted and denied various of the allegations in the backpay specification, the details of which need not be set forth here since the issues raised by the Respondents in their answers and at the hearing will be considered hereinafter. Pursuant to notice, a hearing on the backpay specification was held at San Juan, Puerto Rico, on various dates between July 18 and 26, 1961, before John P. von Rohr, the duly designated Trial Examiner. All parties were present and represented by counsel and were afforded full opportunity to adduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. A memorandum explaining the General Counsel's legal theory in support of his backpay formula was served upon all parties at the hearing. Subsequent to the close of the hearing the General Counsel submitted a memorandum which revised and recapitulated the backpay specification as it affected the interim earnings and net backpay due certain of the discriminatees. FINDINGS OF FACT AND CONCLUSIONS It should be explained at the outset that Respondent San Juan Mercantile Corp. conducts a business as agent for various shipping companies 'in Puerto Rico. In connection with this business it furnishes the necessary labor and equipment for the loading and unloading of ships consigned to it as a general shipping agent at the various ports of Puerto Rico by shipping companies located in States of the United States and foreign countries. Respondent Ayala Colon IS engaged in the stevedoring business at Port of Ponce, Puerto Rico, where he acts as subagent for Respondent San Juan Mercantile Corp., in the loading and unloading of ships consigned to the latter company. There are 2 categories of discriminatees in this case, i.e., hatch bosses, of whom there are 6, and checkers and/or delivery clerks, of whom there are 14. Due to the nature of the shipping industry, employees engaged in operations relating to the loading and unloading of ships in port customarily are employed by more than DECISIONS OF NATIONAL LABOR RELATIONS BOARD one shipping employer. This is true in the instant case. Thus, the hatch boss and clerk discriminatees, as well as their replacements, worked for the Respondent Employers only at such times when those Employers had ships in port. At other times these employees worked for other shipping companies whose ships were in port. Clyde A. Meyers, the compliance officer of the Twenty-fourth Region who prepared the backpay specification, approached this problem by computing gross backpay for the discriminatees only for those dates when the Respondent had ships in port during the backpay period and when Respondents' payroll records disclosed that work would have been available for the discriminatees, absent discrimination. No deductions were made as interim earnings for interim earnings which the discriminatees received elsewhere during such periods when the Respondent Employers had no work available for them. This procedure has been further explained by the General Counsel as follows: In other words, deductions for interim earnings have been restricted to those interim earnings which were earned on dates when work would have been available for them with the Respondent Employers, absent discrimination. For example, if on a specific day the discriminatees would have been employed by the Respondent Company on unloading a ship, and on that day received employment on another ship for another firm, the earnings in the latter employment were deducted as interim earnings from the gross backpay in arriving at the net backpay due. However, when the employment for the other employer was performed on a day when the Respondent Employers had no work available for the discriminatees, earnings from such other employment has not been deducted as interim earnings from the gross backpay in determining net backpay. The representative of the General Counsel has cited well-established Board precedent, which has met with court approval, in support of the thus described basic formula adopted by the compliance officer in the instant case. Thus, in Brotherhood of Painters, etc., Local Union 419, et al. (Spoon Tile Company),¹ the Board stated: Board practice is that during a period when no gross earnings are attributable to a discriminatee no deductions are made either for interim earnings or willful loss during this same time. The reason for this rule is that, under these circumstances, there is no occasion for the discriminatee to attempt to minimize this loss of earnings, as there would have been none during this time, even if he had not been unlawfully discharged.2 The Respondents do not agree with the formula adopted by the compliance officer. Although this disagreement was evident from the start of the hearing, it was not until near the close of the hearing and after all the evidence had been presented that counsel for the Respondent Employers offered anything in the way of an alternative formula. At this point Counsel E. Rodriguez Colon made the following statement: The formula that the employer and the ILA suggest is the following: first, on a quarterly basis, make a computation of all incomes obtained by regular clerks and hatch bosses, not in San Juan Mercantile, but in other companies. Second, find the average income of clerks and hatch bosses as a whole, then divide all the incomes obtained by the number of clerks and by the number of hatch bosses; then find out by means of an investigation the amounts earned as net interim earnings, like the definition in the case of Woolworth and in the case of Crossett, and then after that subtract all net interim earnings that were obtained by each discriminatee from the amount established as average income earned by regular clerks and hatch bosses. The result will be the backpay, if any.3 1 117 NLRB 1596. a See also Reed & Prince Manufacturing Company, 130 F 2d 765 (C.A. 1) ; California Cotton Cooperative Association Ltd, 110 NLRB 1494, 1506 United Growers, Inc, 59 NLRB 549 John W. Campbell, Inc., 58 NLRB 1153 ; Alaska Steamship Company, 114 NLRB 1264 In further support of the formula adopted by the compliance officer, the General Counsel has cited analogous cases, also pertinent here, holding that where a discriminatee has held a second job prior to the commission of the unfair labor practice, and continued to hold it during the backpay period, the earnings from that job are not deductible as interim earnings. See Acme Mattress Co, Inc, 97 NLRB 1439 H J. Daniel Poultry Co, 65 NLRB 689 ; AAA Dental Laboratories, Inc., 41 NLRB 263, 284. 3 At the hearing the Respondents indicated that their positions would be further elaborated in a brief. Although upon their request an extension of time within which to file briefs was granted to the Respondents, the Respondents did not avail themselves of this opportunity and no briefs were received. SAN JUAN MERCANTILE CORP., ETC. My reasons for accepting the formula adopted by the compliance officer, as I do, and for rejecting the alternative formula proposed by the Respondents, are as follows: First, and as heretofore noted, the formula used by the compliance officer has been traditionally applied by the Board in situations such as found here. The approach proposed by the Respondents would, on the other hand, result in a backpay formula which is in direct contravention to such established Board practice. Second, and assuming arguendo that Respondents' suggested formula could be applied here, Respondents' unreasonable and unexplained delay in not advancing its own backpay formula until just before the close of the hearing in this case is in itself a sufficient reason why it should not be adopted. As the General Counsel points out, the court decree runs against the Respondents, not the Board, and the duty and responsibility of complying with its terms is upon the Respondents. It is the practice of the Board, however, to have the compliance officers assist Respondents in working out a fair and equitable determination of backpay matters. Indeed, as a practical matter, the compliance officers generally carry the bulk of the laborious work involved in investigating the case and in assembling and computing records and other data relative to the amount of backpay due discriminatees. The compliance officer in the instant case, whom the record shows to have made a diligent, thorough, and fair investigation of all matters bearing upon backpay, testified without contradiction that he first began his investigation of this case in January 1959, at which time he also made his first contact with representatives of the Respondents in connection with this work. Compliance Officer Meyers testified that the basic formula ultimately used in the backpay specification was served upon the Respondents in March 1961. Yet, and as Meyers testified,4 the formula advanced by the Respondents had never been suggested to him at any time prior to the hearing. The Respondents have offered no excuse for neglecting to suggest its formula at an earlier stage in this proceeding. As conceded in Respondents' own proposal, the formula they suggest would require further extensive investigation. No doubt a further hearing also would be entailed. To thus further prolong these proceedings, particularly in view of the belatedness of Respondents' proposal, would serve only to work as an inequitable delay to a final determination of the backpay due the discriminatees. In any event, the Board has been entrusted with broad discretion in choosing an appropriate backpay formula, as warranted by the circumstances of each case.5 It is necessary only that the formula utilized be reasonable and fair in carrying out the terms of the Board's Order.⁶ For the reasons indicated in the quoted part of the Spoon Tile case, supra, I find the formula utilized by the General Counsel in this case to be fair and equitable.⁷ But for the exception specifically noted hereinafter with respect to certain of the hatch bosses, there is no dispute as to the earnings of the replacements and the interim earnings of the discriminatees; nor is there any contention by the Respondents that any of the discriminatees incurred any willful loss of earnings during the backpay period. All computations bearing upon backpay were made on a quarterly basis in accordance with the Board's Woolworth formula. A. Checkers and/or delivery clerks The specification alleges, and Respondents' answers admit, that the backpay period for the checkers and/or delivery clerk discriminatees is from April 30, 1956, to July 25, 1958, inclusive. During the said backpay period the Respondent Employers did not at any time employ as many clerk replacement employees as there were clerk discriminatees. Accordingly, the parties agreed that an appropriate measure of the earnings each of the discriminatee clerks would have earned could be established only by a proportionalization of the available regular jobs during each quarter of the backpay period. Accordingly, and as reflected in the summary below, the compliance officer computed by calendar quarters the average earnings of all regularly employed clerk replacements, then computed the ratio of available jobs to the discriminatees, 4 Tr 63 5 Phelps Dodge Corp V. N L R B., 313 U.S. 177, 198 6 Brown and Root, Inc, et al., 132 NLRB 486, Kartarik, Inc, 111 NLRB 630, enfd 227 F. 2d 190, 192-193 (C.A. 8) ; Ozark Hardwood Company, 119 NLRB 1130, 1158, enfd. as modified 282 F. 2d 1 at 7 (CA. 8) 7 It might be added that even if the formula advocated by the Respondents was adopted, the Respondents have made no showing that such formula would necessarily inure to their benefit. It is equally possible that the net result of their proposed formula would result in a greater amount of backpay owing the discriminatees than that resulting under the formula utilized by the General Counsel. DECISIONS OF NATIONAL LABOR RELATIONS BOARD and' then credited each clerk discriminatee with the average earnings of the clerk replacements multiplied by that ratio.⁸ Due to the proportionalization of the gross backpay of the clerk discriminatees, the compliance officer properly reduced their interim earnings proportionately to accord with their reduced backpay.9 The following is a summary of the backpay computations showing the amounts due each of the checker and/or delivery clerk discriminatees on a quarterly basis: Francisco Alcala (social security No. 580-20-6070) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $141. 19 3 42 86 216. 84 4 57 01 205. 26 1957-1 14. 59 37 41 2 15. 94 23 75 3 48. 34 144. 95 4 60. 94 132 06 1958-1 44 95 87 86 2 55. 24 135. 75 Total net backpay None Domingo Belmonte (social security No. 580-24-1739) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $49 48 3 42 86 62 04 4 57 01 78 99 1957-1 14 59 17.06 2 15 94 11 09 $4 85 3 48 34 49 54 4 60. 94 13 91 47 03 1958-1 44 95 29 72 15 23 2 55. 24 27. 11 28 13 Total net backpay 95 24 Luis Felipe Dessus (social security No. 580-24-2529) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $69. 32 3 42 86 128 83 4 57 01 114 80 1957-1 14 59 14 40 $0 19 2 15. 94 17 28 3 48 34 93 52 4 60 94 60 00 94 1958-1 44 95 55 95 2 55 24 39 16 16 08 Total net backpay 17 21 8 This formula has been approved by the Board. See Empire Worsted Mills, Inc., 53 NLRB 683 9 For approval of this method see East Texas Steel Castings Company, Inc., 116 NLRB 1336, 1346 ; Sifers Candy Company, 92 NLRB 1220 SAN JUAN MERCANTILE CORP., ETC. Manuel Jimenez (social security No. 580-24-1755) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $49 11 3 42 86 69 35 4 57 01 42 76 $14 25 1957-1 14 59 18 25 2 15 94 14 40 1 54 3 48 34 57 47 4 60 94 54 79 6 15 1958-1 44 95 53 65 2 55 24 28 16 27 08 Total net backpay 49. 02 Juan Oliveras (social security No. 581-32-5366) 0 Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $63 59 3 42 86 106 32 4 57 01 119 31 1957-1 14 59 17 28 2 15 94 17 28 3 48 34 61 92 4 60 94 65 95 1958-1 44 95 63 27 2 55 24 39 54 $15 70 Total net backpay 15 70 Eduardo Luis Renta (social security No. 580-24-1766) Gross Proportion- Year and quarter backpay alized interun Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $66 20 3 42 86 93 31 4 57 01 195 26 1957-1 14 59 32 24 2 15 94 44 56 3 48 34 91 05 4 60 94 95 98 1958-1 44 95 121 72 2 55 24 107 81 Total net backpay None 634449-62-vol 135-46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Luis Guillermo Rios (social security No. 580-24-1767) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $64 35 3 42 86 77 97 4 57 01 88 36 1957-1 14 59 19 15 2 15 94 25 52 3 48 34 78 46 4 60 94 52 88 $8 06 1958-1 44 95 32 59 12. 36 2 55 24 25. 85 29 39' Total net backpay 49 81 Rufino Rosaly (social security No. 582-22-7198) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $51 13 3 42 86 69 12 4 57 01 87 45 1957-1 14 59 6 31 $8. 28 2 15 94 13 69 2 25 3 48 34 45 38 2 96 4 60 94 42 58 18 36 1958-1 44 95 20 49 24. 46 2 55 24 24 49 30 75 Total net backpay 87 06 Alfredo Ruiz Puig (social security No. 581-38-2529) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $32 89 $0 80 3 42 86 44 52 4 57 01 67. 50 1957-1 14 59 20 76 2 15 94 15. 94 3 48 34 30 72 17 62 4 60 94 39. 54 21. 40 1958-1 44 95 39 82 5. 13 2 55 24 32 18 23 06 Total net backpay 83 95 SAN JUAN MERCANTILE CORP., ETC. 707 Arsenio Salaman (social security No. 580-24-1773) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $43 21 3 42 86 71 69 4 57 01 44 98 $12. 03 1957-1 14 59 20 50 2 15 94 19 02 3 48 34 65 96 4 60 94 51 83 9 11 1958-1 44 95 55. 60 2 55 24 28 16 27.08 Total net backpay 48 22 Enrique Soto (social security No. 580-24-9105) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $67 98 3 42 86 115 48 4 57 01 126 81 1957-1 14 59 23 75 2 15 94 18 09 3 48 34 78 59 4 60 94 71 34 1958-1 44 95 67 00 2 55 24 51 34 $3 90 Total net backpay 3 90 Jesus Vazquez (social security No. 108-28-0260) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $81 37 3 42 86 105 52 4 57 01 121 33 1957-1 14 59 19 22 2 15. 94 21 01 3 48 34 78 92 4 60 94 58 08 $2 86 1958-1 44 95 61 48 2 55 24 38 52 16 72 Total net backpay 19 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bernardo Velazquez (social security No. 126-24-6957) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $63 55 3 42 86 103 78 4 57 01 122 56 1957-1 14 59 17 36 2 15 94 17 28 3 48 34 61 92 4 60 94 65 95 1958-1 44 95 51 40 2 55 24 47 45 $7 79 Total net backpay 7 79 Rafael Velez (social security No. 581-03-5716) Gross Proportion- Year and quarter backpay alized interim Net backpay earnings 1956-2 (4-30-56 to 6-30-56) $33 69 $4 51 $29. 18 3 42 86 42 11 75 4 57 01 32 51 24 50 1957-1 14 59 5 76 8 83 2 15. 94 5 76 10 18 3 48 34 22 81 25 53 4 60 94 3 95 56 99 1958-1 44 95 23 79 21 16 2 55 24 14 08 41 16 Total net backpay 218 28 B. Hatch bosses The specification alleges, and the Respondents' answers admit, that: (1) The backpay period for each of the SIX hatch boss discriminatees IS from August 17, 1956, to July 14, 1958, inclusive; and (2) the appropriate measure of earnings which each discriminatee hatch boss would have earned IS the average earnings of all regular hatch bosses employed by the Respondent Company during each calendar quarter of the backpay period. From the testimony adduced at the hearing it became apparent that certain of the hatch boss discriminatees worked for Respondent San Juan Mercantile Corp. on various occasions and in various capacities when the Company's ships were in port and that these earnings were not reflected as interim earnings for the backpay period in the specification. This matter having come to light, 10 the General Counsel and the Respondents examined the records of San Juan Mercantile Corp. for the period in question. Except for the instances noted below, the General Counsel agreed to accept the interim earnings as disclosed in these records and he amended the backpay specification so as to reflect the net backpay due discriminatees Enrique Gallego, Hermenegildo Luna, Eusebio Mercado, Rafael Penta, and Balbino Santiago on the basis of said additional interim earnings.¹¹ These records also show that 10 It is clear that during the investigatory stages of this proceeding the compliance officer was not made aware of these additional interim earnings by the hatch boss-discriminatees. While the testimony of these employees appears to have come as a surprise to the General Counsel, it is however evident that this information, coming as it did from Respondents' own records, was available to the Respondents at all times 11 A revised computation of such interim earnings and net backpay, including a recapitulation showing the net backpay due all of the discriminatees, was submitted to the Trial Examiner in a memorandum from the General Counsel dated July 27, 1961. SAN JUAN MERCANTILE CORP., ETC. individuals bearing the same names as discriminatees Eusabio Mercado, Enrique Gallego, and Rafael Velez, but having different social security numbers than these discriminatees, worked for the Respondents on various occasions during the backpay period. The Respondents contend that notwithstanding the difference in social security numbers, the fact that the names are the same is sufficient reason to believe that these are the same individuals as the discriminatees. Accordingly, argue the Respondents, the earnings shown for the said persons should be accepted as interim earnings by the above discriminatees and therefore are to be deducted from their net backpay. The General Counsel does not agree, taking the position that the burden of proof is upon the Respondents to show that the earnings of these persons in fact were the earnings of the discriminatees and that this burden has not been met where the entries on Respondents' payrolls are made under social security numbers different from those of the discriminatees. I am in accord with the position taken by the General Counsel. 12 The possibility of any one individual being assigned two different social security numbers would appear extremely remote. This would seem particularly true where, as here, the same employer is involved. On the other hand, it is universally commonplace to find various individuals bearing the same namesakes. Accordingly, the earnings of employees bearing the same names as the aforementioned discriminatees, but having different social security numbers, will not be deducted as interim earnings.13 The following is a summary of the backpay computations showing the amounts due each of the hatch boss discriminatees on a quarterly basis: Enrique Gallego (social security No. 580-24-0443) Year and quarter Gross back- Interim Net backpay pay earnings 1956-III $79 99 $46 00 $33 99 IV 312 85 125 74 187.11 1957-I 385. 88 257. 42 128 46 II 94 34 57 49 36.85 III 382 87 118 05 264 82 IV 185 46 31 84 153 62 1958-I 209 85 163 14 46 71 II 173 92 201 26 Total net backpay 851 56 12 In agreeing with the General Counsel that the burden of proof here lies with the Respondents, the applicable principle of law has been stated by the Trial Examiner in W. C. Nabors d/b/a W. C. Nabors Company, 134 NLRB 1078, as follows: In this connection it merits note that while the burden of proof is upon the General Counsel to establish by a preponderance of the evidence the damage which has resulted from Respondent's discriminatory layoffs, i.e, the gross backpay, and while General Counsel has, in accordance with controlling law, voluntarily undertaken to deduct from gross backpay the amounts of net interim earnings disclosed by his investigations, the burden of proof as to diminution of damages rests upon the Respondent. It is familiar doctrine in the field of general law that the burden of proof in diminution of damages arising from a wrongful act is upon the wrongdoer. That is also true in backpay proceedings. Fisher Governor Construction Co. v. Lerche, 232 F. 2d 508, 509-510 (C 9), citing 5 Williston on Contracts, Sec 1360. Accord: NLRB. V. J. G. Boswell Co, 136 F. 2d 585, 589 (C'A. 9) ; Southern Silk Mills, Inc, 116 NLRB 769, 770. See also N L R.B. V. Cambria Clay Products Company, 215 F. 2d 48, 56 (C.A. 6). 13 The earnings in question which are not deducted as interim earnings include and are limited to the following: (a) The entry made for one Eusebio Mercado on February 10, 1957, in the amount of $15 87. (Respondents' Exhibit No 3) ; (b) the entries made on the following dates and in the following amounts for one Enrique Gallego: October 22, 1956, $21 20 ; November 16, 1957, $14.15 December 1, 1957, $13 31 December 16, 1957, $13.88 January 20, 1958, $21 95 March 11, 1958, $13.55 (Respondents' Exhibit No. 5) ; and (c) all entries made for one Rafael Velez on various dates between October 5, 1956, and March 10, 1957, totaling in the amount of $207 77 (Respondents' Exhibit No. 6). DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hermenegildo Luna (social security No. 581-09-2625) Year and quarter Gross back- Interim Net backpay pay earnings 1956-III $79. 99 $79. 99 IV 312 85 $11 90 300. 95 1957-I 385 88 91 48 294. 40 II 94 34 19. 90 74. 44 III 382 87 91 40 291. 47 IV 185 46 35 82 149 64 1958-I 209 85 103. 95 105. 90 II 173 92 125. 93 47 99 Total net backpay 1,344.78 Eusebio Mercado (social security No. 464-36-6895) Year and quarter Gross back- Interim Net backpay pay earnings 1956-III $79 99 $79 99 IV 312 85 312. 85 1957-I 385, 88 $156 20 229 68 II 94 34 23 38 70 96 III 382 87 85 26 297 61 IV 185 46 69 39 116 07 1958-I 209 85 71 77 138. 08 II 173 92 75 92 98 00 Total net backpay 1, 343 24 Rafael Renta (social security No. 580-24-2931) Year and quarter Gross back- Interim Net backpay pay earnings 1956-III $79 99 $79 99 IV 312 85 $57 15 255 70 1957-I 385 88 86 37 299 51 II 94 34 36 21 58 13 III 382 87 131 45 251. 42 IV 185 46 76 68 108 78 1958-I 209 85 98 29 111 56 II 173 92 113 78 60 14 Total net backpay 1, 225 23. Pablo Retamar (social security No. 582-09-6917) Year and quarter Gross back- Interim Net backpay pay earnings 1956-III $79 99 $79 99 IV 312 85 $279 82 33 03 1957-I 385 88 115 98 269. 90 II 94 34 18 26 76 08 III 382 87 119 01 263 86 IV 185 46 65 97 119. 49 1958-I. 209 85 209. 85 II 173 92 29 48 144. 44 Total net backpay 1, 196. 64 KINGSFORD MOTOR CAR COMPANY Balbino Santiago (social security No. 580-24-2949) Year and quarter Gross back- Interim Net backpay pay earnings 1956-III $79. 99 $79 99 IV 312 85 $42 57 270 28 1957-I 385 88 100 45 285 43 II 94 34 17. 99 76 35 III 382 87 139 12 243 75 IV 185 46 94 12 91 34 1958-L 209 85 64 27 145 58 II 173 92 125 43 70 78 Total net backpay 1, 263 50' CONCLUSION AND RECOMMENDATION Upon the foregoing findings, I find and conclude that the employees listed hereunder are entitled to payment by Respondents of the sums listed opposite their names: Enrique Gallego $851. 56 Hermenegildo Luna 1,344.78 Eusebio Mercado 1, 343.24 Rafael Renta 1, 225. 23 Pablo Retamar 1, 196. 64 Balbino Santiago 1, 263. 50 Francisco Alcala Domingo Belmonte 95. 24 Luis Felipe Dessus 17.21 Manuel Jimenez 49.02 Juan Oliveras 15. 70 Eduardo Luis Renta Luis Guillermo Rios 49. 81 Rufino Rosaly 87. 06 Alfredo Ruiz Puig 83. 95 Arsenio Salaman 48. 22 Enrique Soto 3.90 Jesus Vazquez 19. 58 Bernardo Velazquez 7.79 Rafael Velez 218. 28 Total 7, 920.71 It is recommended that the Board adopt the foregoing findings and conclusions. E. S. Kingsford, doing business as Kingsford Motor Car Company and Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 328, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Cases Nos. 18-CA-1253 and 18-RC-4580. January 30, 1962 DECISION AND ORDER On October 16, 1961, Trial Examiner Owsley Vose issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and 135 NLRB No. 76.