Superior Warehouse Grocers, Inc.

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Superior Warehouse Grocers, Inc. and Robert Te- treault and Local 1428, United Food and Com- mercial Workers International Union, AFL- CIO-CLC. Cases 21-CA-22061, 21-CA-22242, 21-CA-22370, 21-CA-22418, and 21-CA- 22555 22 January 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 9 September 1986 Administrative Law Judge Burton Litvack issued the attached supplemental decision. The Respondent filed exceptions and the General Counsel filed limited exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recom- mended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Superior Warehouse Grocers, Inc., Covina, California, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order. Neil A. Warheit, Esq., for the General Counsel. Norman E. Jones, Esq. (Jones, Jones, & Jones), of San Simeon, California, for the Respondent. Ira L. Gottlieb, Esq. (Taylor, Roth & Bush), of Los Ange- les, California, for Local 1428, United Food and Com- mercial Workers International Union, AFL-CIO- CLC. SUPPLEMENTAL DECISION STATEMENT OF THE CASE BURTON LrrvACK, Adminstrative Law Judge. On Oc- tober 30, 1985, the National Labor Relations Board, issued a Decision and Order,' finding that Superior Warehouse Grocers, Inc. (the Respondent), discrimina- torily discharged its employees, Karen Pedregon, Daniel Lopez, Robert Tetreault, and Michael La Fond, in viola- tion of Section 8(a)(1) and (3) of the National Labor Re- lations Act. To remedy the unfair labor practices, the Board, inter alia, directed Respondent to offer to em- ployees Pedregon, Lopez, and Tetreault "immediate and 1 277 NLRB 18 (1985). full reinstatement ... at its Los Angeles or Lynwood, California, stores on the same basis that Respondent may have offered other Covina store employees employment opportunities at other stores on the closing of its Covina store,"2 and to make the employees, including Tetreault, "whole, together with interest required by law, for any loss of earnings and benefits they suffered. as a conse- quence of Respondent's discriminatory acts against them. The parties were unable to agree on the amount, of backpay due to each individual under the terms of the Board's Decision and Order and, on February 12, 1986, the Regional Director for Region 21 of the Board ap- proved a stipulation, executed by Respondent, which document provided for the issuance of a backpay specifi- cation. Pursuant to the document and as there existed a controversy over the amount of backpay, due to each of the four above-named employees (collectively the claim- ants), on March 17, 1986, the Acting Regional Director for Region 21 issued a backpay specification. Respondent filed an answer, denying the accuracy of the backpay amounts but not challenging the premises on which the figures in the backpay specification were based or fur- nishing appropriate supporting figures. Indeed, Respond- ent averred that the paragraphs of the specification "would be correct if the figures as given are found to be true and correct." On due notice, a hearing was held before me on May 28, 1986. All parties were afforded full opportunity to argue orally their respective pretrial positions, to examine and cross-examine witnesses, and to submit briefs. Briefs were filed by the General Counsel and by counsel for Local 1428, United Food and Com- mercial Workers International Union, AFL-CIO-CLC (the Union), and have been carefully considered. On con- sideration of the entire record, including my observation of the demeanor of the witnesses, I issue the following supplemental decision. A. Legal Setting The Board has long held that " in a backpay proceed- ing the General Counsel's sole burden is to show the gross amounts of backpay due." Mastell Trailer Corp., 273 NLRB 1190 (1984); and Dews Construction Corp., 246 NLRB 945 (1979). In its answer Respondent failed to dispute the gross backpay figures3 for any of the claim- ants. Accordingly, under the Board's Rules and Regula- tions, the gross backpay figures of the specification must be deemed to be correct and true. Ricks Construction Co., 272 NLRB 424, 426 (1984). With matters in this pos- ture, "the burden is on the employer to establish facts 2 The record establishes that the four discriminatees, including La Fond, had been employed at Respondent's Covina, California facility. The location was closed by Respondent in November 1983. Discrimma- tee Tetreault had been offered, and accepted, reinstatement at the Covina store but, subsequently, voluntarily quit. 8 The General Counsel was permitted, at the hearing, to amend the backpay specification in the following manner-regarding the fourth quarter of 1983 financial records of claimant, Karen Pedregon, her gross interim earnings were decreased; her travel expenses were increased, her net interim earnings were decreased; and the net backpay was increased to $1022. The specification was further amended concerning Pedregon, increasing the backpay owed to her to $2164.90. 282 NLRB No. 120 SUPERIOR WAREHOUSE GROCERS 803 which would . . . mitigate that liability." NLRB" a Brown & Root, Inc,, 311 F.2d 447, 454 (8th Cir. 1963); Mastell Trailer Corp., supra; Kansas Refined Helium Co., 252 NLRB 1156, 1157 (1980). Therefore, at all times, the burden was on Respondent, as urged by the General Counsel, "to establish any facts which would mitigate the existence of liability for a given discriminatee." Fur- ther, when there exists uncertainties or doubts, such should be resolved against Respondent, the wrongdoer. Kansas Refined Helium, supra at 1157. B. Karen Pedregon The backpay specification, as amended at the hearing, sets forth the backpay owed to claimant Karen Pedre- gon, by Respondent, as $2164.90. Pedregon testified that the amendment, increasing her mileage expenses, was ne- cessitated by her miscalculation of the exact mileage to and from her new employer for training purposes' during the fourth quarter of 1983. The claimant further testified that the distance from her residence to Respondent's Covina facility was approximately 8 miles per round trip. Later, she admitted informing the General Counsel that this distance was closer to 6 miles, but " if you consider that I had to drop my child off for child care its prob- ably closer to eight or ten." The record establishes that, if 6 rather than 8 miles had been used to calculate the mileage expenses, Pedregon's expenses in that regard would have been reduced by $13. Other than with regard to her mileage expenses,Pedregon denied, ever having been paid by her husband, an independent con- tractor, for work or by the Union for picketing. Re- spondent's representative, at the hearing, proffered no position about what the accurate backpay amount, owed to Pedregon by Respondent, should be, stating that such would be set forth in a posthearing "document." Based on the above discussion of the legal principles involved, it is clear that Respondent possessed the burden of establishing facts to mitigate its liability, set forth in the backpay specification, regarding Pedregon. Contrary to its stated intent, Respondent has taken no position about the claimant's backpay and, except for what was disclosed in the record, there is no claim, or evidence, that the figure in the backpay specification is, incorrect or that Pedregon did not exercise sufficient diligence in mitigating Respondent's backpay liability to her. Therefore, I find and conclude that, except for es- tablishing a probable slight mileage expense miscalcula- tion, Respondent failed to sustain its burden of proof with regard to its backpay liability to Pedregon and that she should receive the `amount claimed, reduced by the amount of the slight mileage miscalculation. C. Daniel Lopez The backpay specification sets forth the-backpay owed to claimant Daniel Lopez, by Respondent, as $2370.88. The only issue raised about the validity of this amount concerns payments Lopez received from the Union, for picketing outside the Covina store subsequent to his dis- charge. Under questioning by Respondent's representa- tive, the claimant stated that he received $120 per week from the Union during a 6-week period from mid-July to the end` of ` August '1983 for the picketing. In fact, the record discloses that Lopez received six checks, ranging in amounts from $75 to $124 and totaling $619.50, and that he was paid at a rate of $3 per hour for the picket- ing.4 Although stating that he received no strike benefits during the period of the picketing, Lopez also stated that the payments were made from the Union's "strike relief fund." With regard to a proper characterization of these payments, the claimant maintained that the Union ' made no tax deductions from the payments, gave him no W-2 or 1099 tax forms, "stated that the amount was not con- sidered income, and did not tell him that he was an em- ployee as a result of these payments." Further, Lopez failed to include the $619.50 as income on his 1983 Fed- eral income tax forms. Concerning the reason he en- gaged in picketing, Lopez originally stated "everybody in the shop wanted it to be a Union store and it was not" and later, in answer to a leading question by me at the hearing, explained " my termination and the fact that the people inside the store were being treated wnfairly." He could not recall the wording of the picket sign that he carried. The record further discloses that, in the backpay speci- fication, the $619.50 was not included in Lopez' interim earnings during ' the appropriate backpay period. Con- trary to the General Counsel and the Union, Respondent argues that the moneys, which were received by Lopez for picketing on behalf of the Union, should have been so included. Neither the General Counsel nor counsel for the ' Union, in their posthearing briefs, cited a Board or court decision directly on point, and I was unable to locate such a decision. What both counsel cited were cases concerning the receipt of strike benefits by backpay claimants, in which cases both the Board and the courts have' held that such payments are not in the nature of pay for interim employment and do not constitute inter- im earnings. Florence Printing Co. v. NLRB, 376 F.2d 216 (4th_ Cir. 1967); Sioux Falls Stock Yards Co., 236 NLRB 543 (1978); My Store, Inc., 181 NLRB 321 (1970). How- ever, analysis of the cited cases establishes that both the Board and the United States Court of Appeals f'or the Fourth Circuit were careful to distinguish the receipt of strike benefits from payments, in the words of the Board, "dependent on picketing or the performance of other services by the, recipients" and, in the words of the court, "as a condition precedent to, or as compensation for, picketing." Sioux Falls Stock' Yards, supra at 549; Florence Printing Co., supra at 218. Herein, the record warrants the inference that the pay- ments to Lopez were in the,nature of compensation for his picketing duties., Thus, at the times of the picketing, the Union was actively seeking to represent the employ- ees at the Covina store of Respondent, and Lopez admit- ted that the picketing primarily5 was motivated by orga- ? According to Lopez, the Union maintained exact records of the times he engaged in picketing-" "they had given somebody a book that he filled out every day stating we were there." 5 I place greater weight on Lopez' original response as to the purpose of the picketing than his later response, prompted , I believe, by a leading question from me. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nizational objectives-to the benefit of the Union for whose benefit Lopez picketed. Further, the Union kept a strict accounting of the times Lopez engaged in picket- ing,, the claimant was paid by the hour, and he was under no compulsion to repay any of the $619.50 to the Union.6 Thus, unlike the situation in Florence Printing Co., there exists record evidence "to show that services were rendered in exchange for the benefits,"7 and I, therefore, conclude that the money received by Lopez from the Union was in the nature of pay for, interim em- ployment-to be deducted from his due backpay as inter- im earnings. Accordingly, Lopez is entitled to the amount claimed, reduced by the $619.50 he received from the Union for picketing. D. Robert Tetreault The backpay specification sets forth the backpay owed to claimant, Robert Tetreault, by Respondent, as $1616.77. As did Daniel Lopez, Tetreault picketed at Re- spondent's Covina store on behalf of the Union; howev- er, unlike the former, Tetreault was not compensated for his services. The record reveals that the only employer for whom the claimant worked during the backpay period paid to him the exact amount of wages set forth under the heading "gross interim earnings" in the back- pay specification. Respondent offered not a scintilla of evidence that the alleged backpay, figure, set forth in the specification, is incorrect. Therefore, it must be conclud- ed that Respondent failed to meet its burden of establish- ing that said figure was wrong or that the claimant failed to mitigate it, and it must be found that Tetreault is enti- tled to the amount claimed. E. Michael La Fond The backpay specification sets forth as the amount of backpay owed to claimant Michael La Fond, by Re- spondent, the figure of $3278. La Fond did not testify at the hearing. The record establishes that he currently re- sides in Las Vegas, Nevada, and that the General Coun- sel furnished his address to Respondent's representative prior to the hearing. The latter stated that a subpoena had been issued to La Fond on May 5, 1986, but that no check, covering his travel and witness fees, accompanied the subpoena. Subsequently, according to the representa- tive, after La Fond telephoned his office and demanded expense money, the representative, in turn, contacted Re- spondent's office and asked that a check, covering air fare and other expenses, be mailed to La Fond. The rep- resentative stated that such was also sent by first class and not certified mail. Concerning the matter of La Fond's appearance at the hearing, the General Counsel stated that the claimant spoke to him by telephone three times prior to the hearing about La Fond's reluctance to attend because of financial hardship and his options vis-a- vis complying with a subpoena. Concerning whether La Fond ever received a check covering his witness fee and travel expenses, the General Counsel stated that the former told him that he had received no such payment 6 My Store, Inc., supra at 330. 7 376 F.2d at 218. and could not appear unless compensated as he is "a single parent with a child to support," Faced with La Fond's failure to appear, the parties en- gaged in "off the record", discussions to resolve the exact amount of backpay owed to the claimant by Respondent. In the course, of such discussions, La Fond's representa- tive emphasized the necessity for having La Fond testify because Respondent possessed information of possible unreported interim earnings. Finally, Respondent's repre- sentative agreed not to require La Fond to testify; in return, the General Counsel agreed to reduce the alleged backpay amount by $46; the amount set forth in the backpay specification as mileage and parking expenses in- curred by the claimant. This agreement was contingent on La Fond's acceptance of the reduced backpay award. However, it appears that, in obtaining the claimant's con- currence, the Union's attorney questioned him as to the validity of Respondent's claimed information. When I asked "on the record" if he intended to present evidence regarding the validity of the reduced backpay award, Respondent's representative seized on the, attorney's ac- tions and stated that he would not do so inasmuch as it would be futile to question La Fond regarding matters about which the claimant had prior knowledge. In any event, Respondent presented no evidence in support of its interim earnings assertion or contrary to the alleged gross backpay figure. There is, of course, no record evidence mitigating the alleged backpay amount owed to La Fond by Respond- ent, and Respondent possessed the burden of proof in that regard. Based on the foregoing, the real issue con- cerns any possible prejudice to Respondent 'and whether such, in some unspecified manner, bears on the backpay award to La Fond. In short, having considered the record as a whole, I fail to perceive how, if at all, Re- spondent has been prejudiced. The central fact is that, for whatever reason, Respondent's representative know- ingly, waived the right to call La Fond as a witness in exchange for a concession from the General Counsel. In this regard, I note that the obligation to produce the dis- criminatees at a backpay proceeding rests on the employ- er. Woonsocket Health Centre, 263 NLRB 1367 (1982). Herein, Respondent did little to assure the presence of La Fond. Thus, the subpoena, which was assertedly mailed to him, was sent by first class mail and not by certified mail. Accordingly, there exists no actual proof of service. Further, the requisite witness fees were not enclosed and, when assertedly sent, the payment was again sent by first class and not certified mail. Again, noting the General Counsel's report of La Fond' s denial of having received any check from Respondent, there is no evidence that he ever received any payment for wit- ness fees and travel expenses. In these circumstances, Re- spondent seems to have profited from its agreement with the General Counsel inasmuch as it could not reasonably have expected to obtain enforcerpent of its subpoena for La Fond if he failed and refused to appear. Next, the ap- parent intended inference to be drawn from the "on the record" comments of Respondent's representative is that had La Fond answered its questions regarding unreport- ed interim earnings negatively, the responses would have SUPERIOR WAREHOUSE GROCERS been fabrications, given the claintaiit's prior -knowledge of the nature of the questions. Contrary to Respondent, I cannot, and do not, draw any conclusions as to La Fond's credibility, having never observed his testimonial demeanor. Further, I do not subscribe to the rather bleak, pessimistic, and self-serving view of human nature, espoused by Respondent's representative, that individuals have a proclivity to fabricate about matters adverse to their own interests. Finally, I note that Respondent's rep- resentative had ample opportunity to present evidence- other than La Fond's testimony-regarding unreported interim earnings or any other matter pertinent to reduc- ing the gross backpay award. Such was his burden of proof; yet, no such evidence was adduced. Clearly, if Respondent possessed this- information, it would have been-or should have been-readily available, and there would not have, been the need, for reliance on a per- chance admission by' La Fond. In these circumstances, one is left with the impression that whatever would have been posed to La Fond would have been unsubstantiated conjecture and that had he denied the assertions, such would have been uncontroverted., Accordingly, noting the burden of proof placed on Respondent and the lack of any perceived prejudice, I find that La Fond is enti- tled to the backpay figure to which he agreed in ex- change for Respondent's. waiver of its right to require his testimony. On these findings of fact and conclusions of law and on the entire, record, I issue the following recommend- ed" 805 -On - -t a findings -of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The Respondent, Superior Warehouse Grocers, Inc., Covina, California, its officers, agents, successors, and as- signs shall make whole the claimants by payment to them of the following amounts: Karen Pedregon $21151.90 Daniel Lopez $1751.38 Robert Tetreault $1616.77 Michael La Fond $3232.00 These sums shall be payable to each claimant, with in- terest computed thereon in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp„ 231 NLRB 651 (1977). There shall be deduct- ed from the above amounts social security taxes and income taxes as required by Federal and state laws.9 8 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 9 I shall deny the umon attorney's request that Respondent be ordered to reimburse the Union for attorney's fees. Whatever the motivation of Respondent, its arguments, at least with regard to three of the claimants, were not frivolous.