Muney Design, Inc.

MUNEY DESIGN, INC. 289 Muney Design, Inc. and Knitgood Workers' Union, Local 155, International Ladies Garment Work- ers Union, AFL-CIO. Case 2-CA-19242 7 August 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 7 May 1985 Administrative Law Judge James F. Morton issued the attached supplemental decision. The General Counsel filed exceptions and a supporting brief. The National Labor Relations Board had dele- gated 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 as modified. In her exceptions, the General Counsel contends, inter alia, that the judge failed to find that discri- minatees Pierre Maignan, Fatma Yavuz, Turkan Toksavul, Mehmet Ozer, and Sukran Ozer are still owed an affirmative offer of reinstatement from the Respondent. Although the judge did not specifical- ly discuss it, the record shows that the Respondent made good-faith efforts by letter to contact these employees to offer them reinstatement but, as the letters themselves show, none were received by the discriminatees. We find merit in the General Coun- sel's exception. It has long been established that an unsuccessful, good-faith attempt to communicate a valid offer of reinstatement to a discriminatorily discharged em- ployee will toll an employer's backpay liability as of the date of the attempt. However, it does not re- ' Since the issuance of the judge 's supplemental decision herein, the Board has issued Starlite Cutting, 280 NLRB 1071 (1986) (Starlite 1), which overruled Duncan Foundry & Machine Works, 222 NLRB 768 (1976), and stated that a respondent's backpay obligation in the absence of the discriminatee will lapse at the end of a 1-year escrow period and, absent the discriminatee's showing by a preponderance of the evidence that there were compelling reasons to justify the failure to come forward during that period, a respondent shall not remain obligated for the gross backpay amount specified for the discrimmatee after the end of the 1-year escrow period Subsequently, the Board issued an Order at 284 NLRB 620 (1987) (Starlite I1), clarifying the starting date of the 1-year escrow period discussed in Starlite I In Starhte II, the Board majority held that the 1-year escrow period shall begin either on the respondent's compli- ance by payment of the backpay for deposit into escrow or on the date the Board's Supplemental Decision and Order becomes final, including enforcement thereof, whichever is later The provisions of Starlite I and II are applicable in the instant case, with regard to the backpay owed to Mehmet and Sukran Ozer Although Chairman Dotson and Member Jo- hansen dissented in Starhte II, and would find that such 1-year escrow periods should begin on the date of issuance of the Board's order affixing backpay liability, they nevertheless consider themselves to be institution- ally bound to apply the rule of Starlrte II in this case lieve the employer of its ultimate obligation to rein- state that employee. Burnup & Sims, 256 NLRB 965, 966 (1981). Therefore, we find that the Re- spondent still has an affirmative duty to offer rein- statement to the above-named employees. We shall modify the recommended supplemental Order ac- cordingly. The General Counsel also contends that the judge made a mistake in computing discriminatee Semra Sica's net backpay. An examination of the original backpay specification and the amended backpay specification confirms that the General Counsel had reduced Sica's backpay for the second quarter of 1983 by one-third of her gross backpay for that quarter and for all of the third quarter of 1983 because, as the judge found, Sica had jour- neyed to Europe and was not available for work during that time. Because the General Counsel had taken these facts into account, there was no need for any further reduction by the judge. We shall modify the recommended supplemental Order ac- cordingly. ORDER The National Labor Relations Board orders that the Respondent, Muney Design, Inc., New York, New York, its officers, agents, successors, and as- signs, shall satisfy its obligation to make the follow- ing employees whole by payment to them of the amounts listed by their names below, plus interest thereon accrued to the date of payment computed in the manner prescribed in New Horizons for the Retarded,2 minus any tax withholding required by Federal or state law: Minerva Kiyat $ 3,850.00 Muberra Kiyat 3,637.17 Semra Sica 2,128.86 Turkan Toksavul 544.00 Fatma Yavuz 10,381.99 Pierre Maignan 7,888.00 Sergo Noelus 13,138.00 Jean Edna Louis 15,440.00 Mehmet Ozer 19,762.00 Sukran Ozer 14,760.00 The Regional Director shall hold in escrow the payments for Mehmet Ozer and Sukran Ozer as discussed above . The backpay obligation continues as to Jean Edna Louis and Sergio Noelus until Re- spondent makes a valid reinstatement offer to each 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 will be com- puted at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621. Interest on amounts accrued prior to 1 January 1987 shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 285 NLRB No. 41 290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of them, the amounts of net backpay after the period covered by the specification considered herein to be determined by further , supplemental proceedings, if necessary. The Respondent shall make offers of reinstatement to employees Pierre Maignan, Fatma Yavuz, Turkan Toksavul, Sukran Ozer,' and Mehmet Ozer. Polly Chill, Esq. and Stephen E. Appell, Esq., for the Gen- eral Counsel. Julius B. Kamhi, Esq. (Schwartz, Sachs & Kamhi, P.C.), of Carle Place New York, for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. On May 22, 1984, an Order issued by direction of the Board adopted, in the absence of exceptions thereto, the find- ings and conclusions of Administrative Law Judge Steven Davis that Muney Design, Inc. (Respondent) vio- lated Section 8(a)(1) and (3) of the National Labor Rela- tions Act (the Act); the Board then directed Respondent to take the action set forth in his recommended Order, which included the requirement that Respondent offer reinstatement to 10 named employees and make them whole for any loss of earnings they suffered by reason of Respondent having unlawfuly discriminated against them. On August 31, 1984, a backpay specification issued al- leging various backpay periods for 9 of the discrimina- tees and that the backpay period for the 10th had not yet ended as Respondent had not made him a valid reinstate- ment offer. Respondent's answer admitted most of the al- legations. Its answer also sought in part to relitigate the underlying unfair labor practice issues previously re- solved by the Board's Decision and Order, noted above. Respondent, of course, is precluded from doing so now. Schorr Stern Food Corp., 248 NLRB 292, 295 (1980). The only litigable issue raised by Respondent' s answer pertains to the respective amounts of the interim earnings of the discriminatees as Respondent averred, on informa- tion and belief, that the discriminatees worked during, the backpay periods and as the backpay specification con- ceded no interim earnings. See Ricks Construction Co., 272 NLRB 424 (1984). Tiffany Handbags, 271 NLRB 621 (1984). Several days before the opening of the hearing, the backpay specification was amended to acknowledge that certain of the discriminatees had interim earnings that re- duced their respective backpay claims. The amendment also alleged that Respondent had not made a valid offer of reinstatement to a second discriminatee and that back- pay as to him was continuing to accrue. At the hearing before me, further interim earnings were conceded by the General Counsel. On the entire record, including my observation of the witnesses and their demeanor, and on consideration of the briefs submitted on behalf of the General Counsel' and Respondent, I make the following FINDINGS OF FACT There is no litigable issue before me respecting the gross backpay amounts claimed in the backpay specifica- tion as Respondent's objections thereto are but restate- ments of contentions previously litigated in this case. As to the matter of interim earnings of the discriminatees 8 of the 10 were made available for examination. The re- maining two, Mehmet Ozer and Sukran Ozer, could not be located. In accordance with Board precedent,' Re- spondent shall be required to pay to the Regional Direc- tor the gross backpay amounts due them respectively; the amounts to be held in escrow for a reasonable time, to allow further efforts to be made to locate them. Juris- diction as to their awards shall be retained for 1 year from the date of the Board Order herein to permit the General Counsel to move to reopen this matter regard- ing their claims. If after 1 year they are not located and Respondent is thereby unable to examine them, their backpay claims shall be dismissed unless good cause to the contrary can be shown. The claims for the remaining eight discriminatees are considered below. Fatma Yavuz She had been unlawfully discharged by Respondent on October 29, 1982; her backpay period ended May 25, 1984. She speaks Turkish and does not understand English. She sought work after her discharge but was unem- ployed until January 1984 because of the language bar- rier. From January 1984 until the end of her backpay period, she has worked for her son, earning an average of $145 a week. As the backpay specification had con- ceded no interim earnings for her, her claim is to be re- duced by interim earnings of $1885 (13 weeks at 145) for the first quarter of 1984 and $1232 (8-1/2 weeks at 145) for the second quarter of 1984. Turkan Tuksavul Her backpay period began December 9, 1982, and ended June 18, 1984. She obtained interim employment about January 9, 1983. When that interim job ended, she obtained another after a layoff of 1 to 2 weeks; she had another short layoff period when that job ended. As of the date of the hearing, she was employed. In all her em- ployment positions since January 1983, she has earned more money than she did while in Respondent's employ. The backpay specification did not allow for any inter- im earnings by her. As it appears that her interim earn- ings since January 1983 and until the end of her backpay period exceeded, each quarter, her gross backpay for each such quarter, she is entitled only to the amount claimed for the fourth quarter of 1984, i.e., $544 plus in- terest. Muberra Kijat Her backpay period began December 9, 1982, and ended March 12, 1984. The backpay specification had ' Sumco Mfg. Co., 267 NLRB 253, 259 fn. 22 (1983). MUNEY DESIGN, INC. been amended shortly before the hearing opened to re- flect her interim earnings. Respondent would reduce her backpay further because she went to Turkey for a month during the second quarter of 1983. That reduction is ap- propriate as the Board has held that an employee who is out of this country for a protracted period is unavailable for employment during that interval. See Hickory's Best, Inc., 267 NLRB 1274, 1277 (1983). Further, Respondent's answer, a general denial, raised the issue as to her avail- ability for interim employment. See Tiffany Handbags, supra. Accordingly, her net backpay for the second quar- ter of 1983 will be reduced by 1 month's gross backpay, i.e.,-one-third of her quarterly gross backpay for that quarter, $793 33. Minerva Kijat Her backpay period was the same as Muberra Kijat's. Her interim earnings are reflected in the amendment to the backpay stipulation and she is thus entitled to the net backpay as set out in the amended specification, with in- terest. Semra Sica Her backpay period began December 9, 1982, and ended January 2 , 1984. Her interim earnings are set out in the amended backpay specification . She went to Turkey on May 29 , 1983, for personal reasons and re- turned at the end of September 1983. She is not entitled to backpay for that period . See Hickory 's Best, Inc., supra, and Tiffany Handbags, supra. Consequently her net award for the second quarter of 1983 will be reduced by a sum equal to one-third of her gross backpay for that quarter, and for all the third quarter of 1983. Jean Robert Dabady Dabady's backpay period began on October 29, 1982, and ended on May 25, 1984. He moved to Florida in February 1983, after his search for interim employment in the New York area proved futile and has resided there since. His interim earnings while in Florida are reflected in the amended backpay specification. Respondent con- tends that Dababy forfeited backpay on and after Febru- ary 1983 by reason of his having moved to Florida. That contention clearly is without merit. See Big Three Indus- trial Gas, 263 NLRB 1189, 1202, 1210 (1980). At the hearing before me, Dabady testified that his real name is Pierre Maignan and that he used the name Dababy while in Respondent's employ because he was first denied a visa with his real name and later was able to emigrate from Haiti as Dabady. He is presently using his real name, Maignan. His backpay claim will be amended to reflect his real name. I find no merit in Re- spondent's contention that he should be denied backpay because he may have evaded the immigration laws. See Sure-Tan Inc. v. NLRB, 467 U.S. 883 (1984). Sergo Noelus His backpay period began December 9, 1982. The General Counsel contends that it has not ended as yet. The original backpay specification stated that his back- pay period ended on June 1984 . That statement was de- 291 leted by order of the Acting Regional Director issued on December 13, 1984-prior to the opening of the hearing. That order further amended the specification to allege that Respondent has not yet validly offered reinstatement to Noelus and another employee. It is Respondent's obligation to demonstrate that it has made a valid reinstatement offer to Noelus. See Hickory's Best, Inc., supra, Respondent offered no probative evi- dence thereon.2 Backpay continues to accrue until such time as Respondent makes a valid offer of reinstatement to him; the amount of any backpay occurring after the period covered by the specification before me will be de- termined by further supplemental proceedings, if neces- sary. See Sumco Mfg. Co., supra at 259. Noelus' backpay award, at least up to and including the second quarter of 1984, shall be quarterly amounts set out in the amended specification. Jean Edna Louis He was unlawfully discharged on October 29, 1982, from his sewing machine operator's job. The backpay specification noted that he was not offered reinstatement and stated that his backpay continues to accrue. Re- spondent has offered no probative evidence to establish that it has offered him reinstatement. Accordingly, as with Noelus above, the amount of any backpay due Louis after the period covered by the backpay specifica- tion will be determined by further supplemental proceed- ings, if necessary. Louis was examined by Respondent at the hearing. His testimony indicated that this repeated efforts to find em- ployment comparable to his sewing machine operator's job were to no avail, that he had been able to subsist be- cause his brother, who lives with him, provided him with financial assistance. Since about July 1983, he has earned an average of $62.50 a week from securing work he performed (earn- ing an average of $12.50 per pair of trousers; making an average of five pairs a week). Accordingly, the backpay specification, which conceded no interim earnings for him, should be reduced by $812.50 (12 weeks $62.50) for each quarter beginning with the third quarter of 1983. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Muney Design, Inc., New York, New York, its officers, agents, successors, and assigns, shall make the 10 employees named above whole by pay- ment to them of the gross backpay due each for each 2 An envelope was attached to its answer purporting to show Re- spondent made a valid reinstatement offer to Noelus That carries no evi- dentiary weight In any event, that envelope contains a clearly "insuffi- cient address" as was expressly noted on the envelope, which was re- turned to Respondent by the Postal Service 9 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 292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quarter of the backpay period less interim earnings con- ceded in the amendments to the specification and as set out in this decision, plus interest as provided in Florida Steel Corp., 213 NLRB 51 (1977), until payment is made. The Regional Director shall hold in escrow the payment for Mehmet Ozer and Sukran Ozer as provided for above. The backpay obligation continues as to ,Jean Edna Louis and to' Sergio Noelus until Respondent makes a valid reinstatement offer to each of them, the amounts of backpay after the period 'covered by the specification considered herein to be determined by further supple- mental proceedings, if necessary.