Opc Holdings, In., Successor With Liability To Jenkins Index Corp.

JENKINS INDEX CORP. 457 Jenkins Index Corporation,, a Division of Universal Paper Goods Company, Inc., Single Employers; or in the alternative Universal Paper Goods Company, Inc., a subsidiary of OPC Holdings, Inc., successor with .liability to Jenkins Index Corporation and Southern California Printing Specialties and Paper Products Union, Local 388, affiliated -with the International Printing and- Graphic Communications Union. Case 21- CA-21994 3 March 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 11 July 1986 Administrative Law Judge James M. Kennedy issued the attached supplemen- tal decision.' The Respondent filed exceptions and a supporting 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, 2 and conclusions, 3 and to adopt the rec- ommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Jenkins Index Corporation, a Division of Universal Paper Goods Company, Inc., Single Employers or, in the alternative Universal Paper Goods Company, Inc., 1 The Board's Decision and Order is reported at 273 NLRB 736 (1984). 2 The Respondent, Jenkins Index Corporation, has excepted to some of the judge's credibility findings. The Board 's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Product.% 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. a The Respondent has excepted to the judge's awarding Celedon Ar- menta backpay for the period from 19 July through 1 November 1984. It appears from the record that during this period Armenta may have re- ceived vocational rehabilitation disability payments, and it is clear that a permanent disability award was made by the State of California on 2 No- vember 1984, the last day of the backpay period. With regard to this ex- ception, the Respondent's sole contention is its conclusionary claim that the backpay period should end on 19 July 1984 rather than the 2 Novem- ber 1984 date set forth in the backpay specification and accepted by the judge. We find no basis in the record to establish that the backpay period should end on any date prior to the date of the permanent disability award. Moreover, we note that the Respondent has made no claim, and the record does not indicate, that the vocational rehabilitation disability payments constitute payment for wages lost by a claimant during the backpay period and thus are deductible from the gross backpay amount. See Canova Moving Co., 261 NLRB 639 (1982), enfd. 708 F 2d 1498 (9th Cir. 1983). a subsidiary of OPC Holdings, Inc., Successor with liability to Jenkins Index Corporation, Montebello, California, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. William J. McCauley, Esq., for the General Counsel. Norman"Jones, of San Simeon, California, for the Re- spondent. SUPPLEMENTAL' DECISION JAMES M. KENNEDY, Administrative Law Judge. This case was tried before me at Los Angeles, California, on June 11, 1986, pursuant, to a backpay specification and notice of hearing issued by the Acting Regional Director for Region 21 of the National Labor Relations Board, on behalf of the Board, on February 19, 1986. The Board's original order was entered on December 14, 1984, and is reported at 273 NLRB 736. Thereafter, the entities col- lectively described herein as Respondent entered into a stipulation providing for the issuance of a backpay speci- fication prior to obtaining court enforcement of the origi- nal Board Order. That stipulation was approved by the Board on December 19, 1985. Among other things, the Board's original Order re- quired Respondent to make whole three employees pur- suant to its quarterly formula as set forth in F. W. Wool- worth Co., 90 NLRB 289 (1950), together with interest thereon. The initial complaint was directed against "Jen- kins Index Company" and the Board's original order di- rected "Jenkins Index Company .. - ., its officers, agents, successors, and 'assigns" to comply with the Order. In the backpay specification, the Acting Regional Director asserted, and Respondent admits, that at the time the unfair labor practices were committed (February 17, 1983), Jenkins Index was a wholly owned division of Universal Paper Goods Company, Inc. The Acting Re- gional Director further asserted that as a result of a cor- porate transformation occurring after the commission of the unfair labor practices, Jenkins was completely merged into Universal and ceased operating as a division of Universal; he also asserts that Universal, in turn, is a subsidiary of OPC Holdings, Inc., a holding company. Respondent admits that as ' of July 1984 Jenkins had been completely merged into Respondent Universal and had ceased operating as one of its divisions. Respondent fur- ther' admits that Universal is a successor for the purpose of remedying Jenkins' unfair labor practices. The General Counsel has waived its right to file a brief; Respondent has filed a short brief challenging the credibility of one claimant. It has been carefully consid- ered. The Evidence At the outset of the hearing the General Counsel and Respondent entered into a stipulation with respect to two of the three individuals entitled to backpay. After a modification which appears in Appendix A, the parties agreed that Ambrosio Contreras is entitled to net back- pay of $19,367.92. In addition, they agreed that Michael Negrete is entitled to net backpay of $16,254.92. Accord- 283 NLRB No. 67 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ingly, a' supplemental order will be entered liquidating backpay in those, amounts, for those two individuals. The third individual is Celedon Armenta. The General Counsel has set forth Armenta's backpay period as begin- ning on February 10, 1983, when he was discharged, and ending on November 2, 1984, the date on which he was granted a disability insurance award.' The Respondent seeks to reduce backpay by asserting that Armenta was disabled and unable to return to work as of November 2, 1984. The evidence shows that Armenta actually suffered his industrial injury in 1981, more than a year before his unlawful discharge. It further shows that he had surgery in 1982 and returned to work on full duty in August of that year. Armenta testified he worked continuously from that date until he was unlawfully discharged on February 10, 1983. He says from that time on he was fully capable of performing all aspects of his job, those of a maintenance mechanic, and as late as 1985 when he actually 'returned to work for a short period he contin- ued to be able to perform those duties. Respondent has offered no contrary evidence. I conclude that although Armenia suffered an industri- al accident in 1981 and although he had surgery in 1982, the injury was corrected and that at all times he was able to perform his job and could have done so from the time he was discharged until the end of the backpay period as alleged. Respondent also challenges the validity of those fig- ures in Appendix A relating to Armenta which show that he had no interim earnings during the entire year of 1984. Armenta testified he was not employed during that time and his only income was approximately $4200 from some rental property which he and his family own. The parties are in agreement that the rental income would not be considered interim earnings as the property was generating income before the discrimination. Respondent subpoenaed certain of Armenta's bank records in an effort to establish that he had received additional income from. employment and from other sources. It is true that during this period Armenta's checking and savings ac- counts show substantial deposits. Nonetheless, Respond- ent was unable to show that these deposits came- from employment. Armenta stated that some of the moneys deposited were given him by his three adult sons, one of whom works for an aerospace manufacturer and who ' Armenta has not challenged the propriety of this event as ending the backpay penod. earns a salary of - approximately $45,000; another, of whom works for'the corporate office of a fast-food chain and who earns between $35;000 and $40,000; and a third who is in the military service. He testified that these three have told him that they did not want him spending his own money or depleting the family estate as they expect it to be part of their inheritance. Accordingly, Armenta says, he had accepted their- assistance. Their as- sistance appears in both savings and checking deposits. In addition, he says, before his unlawful discharge his wife had approximately $15,000 in cash which she kept in a safety deposit box. He says his wife, who handles the family finances, on various occasions during the backpay period, withdrew certain sums from the safety deposit box. She placed them either in the savings ac- count for short periods or into short-term certificates of deposit which were frequently "rolled over." He says the deposits shown in the savings account appear to be substantial but, in reality, amount only to the same money being deposited several times. Although available, Respondent offered no bank records in evidence. As Re- spondent was unable to demonstrate any other source of these deposits, I conclude that it has failed to meet its burden of proving that Armenta had interim earnings in 1984. In conclusion - I find that the backpay specification with respect to Celedon Armenta is correct and that he is entitled to net backpay totaling $39,244.02 According- ly, I issue the following recommended supplemental ORDER Based on the foregoing findings of fact and conclu- sions of law it is ordered that the Respondent, Jenkins Index Corporation, a Division of Universal Paper Goods Company, Inc., Single Employers; or, in the alternative Universal Paper Goods Company, Inc., a subsidiary" of OPC Holdings, Inc.; Successor with Liability 'to Jenkins Index Corporation, Montebello, California, shall pay the following named employees net backpay in the amounts set forth opposite their names, together with interest as required by the Board under Florida Steel Corp.,, 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962): Celedon Armenta '$39,244.02 Ambrosio Contreras 19,367.92 Michael Negrete 16,254.92