Lee & Sons Tree Service

LEE & SONS TREE SERVICE 879 Lee & Sons Tree Service and Carl Strothers and Gregory Strange. Cases 1-CA-18017 and 5- CA-18114 August 19, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 13, 1988 , Administrative Law Judge Walter H. Maloney issued the attached second sup- plemental decision. The Respondent filed excep- tions and a supporting brief. The General Counsel filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Lee & Sons Tree Service, Oxon Hill, Maryland, its officers, agents, successors, and assigns, shall pay Angela Murphy the sum set out in the recommended Order. 1 We find that the Respondent has failed to meet its burden of proof regarding either of the contentions made in its exceptions. Concerning the contention that additional deductions from discriminatee Angela Mur- phy's gross backpay should be made for several "unpaid holidays," there is insufficient evidence of any specific holiday when the Respondent ceased operations and did not pay its employees. Concerning the conten- tion that the Respondent was denied the opportunity to examine Murphy about her search for interim earnings because she did not testify, there is no evidence that she was unavailable to testify or that the Respondent made any effort to compel her testimony. SECOND SUPPLEMENTAL DECISION WALTER H. MALONEY, Administrative Law Judge. This case came on for hearing before me in Washington, D.C., on March 23, 1988, on a backpay specification issued by the Regional Director for Region 5 on Novem- ber 16, 1987, which alleges that there is due and owing to six named discriminatees the amounts of backpay with interest that were set forth after their names in the ap- pendices to the specification. The backpay obligation arose as the result of a Board Order, dated January 28, 1987 (282 NLRB 905), which granted the General Coun- sel's Motion for Summary Judgment and found that the Respondent had discharged these six individuals on April 14, 1986, in violation of Section 8(a)(1) and (4) of the Act. Respondent agreed that the formula selected by the Regional Director for computing backpay was correct, but disputed any obligation to include in the computa- tions certain holidays and other days on which its work force did not work because of inclement weather. The Respondent also denied any obligation to reinstate discri- minatee Carl Strothers because of asserted misconduct on his part following his discharge. Either at the hearing or at some point in time thereaf- ter, the General Counsel and the Respondent entered into individual settlement agreements involving the cases of discriminatees William Johnson, Louis Ross, Maurice Ross, Gregory Strange, and Carl Strothers. The settle- ment agreements either have been approved by me or are approved in this decision, and they are severed from this case. As a result there is left for adjudication only the amount due and owing to discriminatee Angela Murphy. At the hearing the Respondent's president, Melvin Lee, testified that his firm gave regular paid holidays for Christmas, Thanksgiving, Independence Day, New Year's Day, and Martin Luther King's Birthday. The holidays were included in the General Counsel's original computation of gross backpay, which was made on a weekly basis, so that figure need not be disturbed be- cause of the Respondent's contention relating to holi- days. The General Counsel and the Respondent agreed that during the backpay period,' Respondent's employ- ees lost about 24 days because of inclement weather, but were paid 2 hours for each of those days.2 Accordingly, backpay computations must be reduced by 6 hours, on a quarterly basis, for each of those days, at Murphy's hourly rate of $5.82. The resulting computation for Angela Murphy is as follows: Year/Qtr. Original gross backpay Less time lost for inclement Net backpay computation weather 1986/2................... $2,560.80 0 $2,560.80 1986/3................... 3,026.40 1104.76 2,921.64 1986/4................... 3,026.40 2384.12 2,642.28 1987/ 1 ................... 1,862.40 2349.20 1,513.20 Total.......... $9,637.92 1 3 days x 6 hours x $5.82 = $104.76. 2 11 days x 6 hours x $5.82 = $384.12. 9 10 days x 6 hours x $5.82 = $349.20. The Respondent argues in its brief that the net back- pay due and owing to A. Murphy should be further re- duced by some unspecified amount because of what amounts to willful loss. It argues that her failure to ask for her job back before the Respondent made a formal tender of reinstatement is somehow evidence of an un- willingness on her part to work. The Respondent in this case was the wrongdoer. An obligation to offer reinstate- ment falls squarely on it, under the terms of the Board's Order, before it can be excused from backpay liability. 1 The backpay period for all the discriminatees ran from April 14, 1986, the date on which they were discharged, until February 28, 1987, the date on which five of them were offered reinstatement. The computa- tion for Strothers continued to run after that date, but that fact need not concern us now. 2 The days in question were August 28, September 1 and 2 , October 13 and 14, November 5, 11, and 26, and December 2, 9, 11, 18, 20, 26, 1986, and January 2, 22, 23, 26, 27, 28, 29, and 30, and February 2 and 3, 1987. 290 NLRB No. 103 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent argues further that the failure of the General Counsel to place A . Murphy on the stand somehow pre- cluded it from examining her as to the diligence with which she sought other employment during the backpay period. The burden to establish willful loss, either through failure to make an adequate search for work or otherwise, belongs to the Respondent. A. Murphy was present at the hearing in this case and the Respondent could easily have called her to the stand for this purpose had it desired to do so . Its • failure in this regard in no way shifts the burden of proof in backpay proceedings, nor does it serve in any way to diminish the amount of backpay which is otherwise due and owing. On these findings .of fact and conclusions of law and on the entire record , I issue the following recommend- ed3 ORDER The Respondent, Lee & Sons Tree Service , Oxon Hill, Maryland, its officers, agents, successors, and assigns, shall pay to Angela Murphy the sum of $9 ,637.92, with interest as computed at the short term Federal rate used to compute interest on underpayments and overpayments of Federal income taxes under the provisions of the Tax Reform Act of 1986 , less withholdings for taxes and social security required by Federal and state laws. New Horizons for the Retarded, 283 NLRB 1173 (1987). 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.