United Supermarkets, Inc

314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Supermarkets, Inc and Retail Clerks Union Local No 368, Chartered by United Food and Commercial Workers International Union, AFL-CIO Cases 16-CA-7365 16-CA-7378 16-CA-7473 16-CA-7500 16-CA-7524 16- CA-7554 16-CA-7561 and 16-CA-7666 September 30 1988 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 29 1988 Administrative Law Judge Robert A Gritta issued the attached second sup plemental decision' The Respondent filed excep tions 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 second supplemen tal decision and the record in light of the excep tions and brief and has decided to affirm the judge s rulings findings and conclusions and to adopt the recommended Order as modified We find it necessary to modify the judge s quar terly computations of backpay due Alice Faye Bonner in two ways First in adopting the judge s determination that Bonner s previously undisclosed interim employment extended from the second quarter of 1980 through January 1982 we do not agree that Bonner is nevertheless entitled to back pay of $1 058 40 for the remaining months of the first quarter of 1982 The Board s traditional ap proach to awarding backpay is quarterly under the formula set forth in F W Woolworth Co 90 NLRB 289 (1950) rather than monthly Under this method once it is determined that an individual is not entitled to backpay because of willful conceal ment of interim earnings during any particular month during a quarter the backpay award for the entire quarter is deleted from the Respondents li ability See American Navigation Co 268 NLRB 426 (1983) Accordingly we shall delete the first quarter of 1982 from Bonner s backpay entitlement and deduct $1 058 40 from the judges ordered award Second the judge s statement of amounts due Bonner for the second and third quarters of 1979 do not comport with the figures set forth in the General Counsels postheanng revised amended backpay specification Our review of these figures indicates that the judge misinterpreted the data on the backpay specification concerning these quar ' The Boards Supplemental Decision and Order is reported at 287 NLRB 394 (1987) ters The General Counsels backpay specification states the number of weeks that Bonner would have worked at particular pay rates for every quar ter during the backpay period Therefore each quarterly period accounts for every week of the quarter or a total of 13 weeks per quarter In both the second and third quarters of 1979 the lost earn ings for each quarter cover only 10 weeks because as described in the specification Bonner was out of the labor market for 3 weeks in each of these quar ters while having a child Backpay is accordingly calculated on 10 working weeks for each of these two quarters The judge however failed to recog nize that the specification took account of these 6 noneligible weeks and he deducted an additional 3 weeks backpay from each of the quarters resulting in a $240 shortfall for the second quarter of 1979 and $256 shortfall for the third quarter According ly we will modify the backpay award by adding $496 that appropriately should be included in the final amount ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent United Supermarkets Inc Amarillo Texas its officers agents successors and assigns shall take the action set forth in the Order as modi feed The amount of $8 692 57 with interest computed in the manner prescribed by the judge will be paid to Alice Faye Bonner in lieu of the amount set forth by the judge J 0 Dodson Esq for the General Counsel Don Graf Esq Bill Harriger Esq and Dan Young Esq (McCloskey Harriger Brazill & Graf) of Lubbock Texas for the Respondent Marvin Menaker Esq of Dallas Texas for discrimina tees Rickey Stanberry Priscilla Sain and Alice Faye Bonner SECOND SUPPLEMENTAL DECISION STATEMENT OF THE CASE ROBERT A GRITTA Administrative Law Judge On 16 December 1987 the Board issued its Supplemental De cision and Order' remanding the case to Region 16 to determine what portion of the workmen s compensation award to Rickey C Stanberry is attributable to lost wages and remanding to me for the purposes of deter mining which quarters Alice Faye Bonner was employed by Raul V Angel and for determining her entitlement to backpay Reported at 287 NLRB 394 The Boards original Decision and Order is reported at 261 NLRB 1291 291 NLRB No 44 UNITED SUPERMARKETS The Board stated relative to Stanberry (at 395) In view of Stanberry s concealment of the work men s compensation benefits if any part of these moneys is determined to be compensation for lost wages the quarters in which such moneys were re ceived will be excluded from the allowable backpay penod The record discloses that the relevant quar ters in which the workmen s compensation benefits may have been received were the second and third quarters of 1979 Accordingly the net backpay amounts for these quarters will be excluded from Stanberry s award until a determination of the effect of the concealment of the workmen s compensation award may be made Because this is the only aspect of Stanberry s backpay award which is unresolved however backpay for the remainder of the backpay period will be awarded in conformance with the judge s other determinations 5 5 The backpay specification discloses that $839 68 was due for the second quarter of 1979 and no net backpay was due for the third quarter Accordingly pending determination of the effect of the concealment of the workmen s compensation award $839 68 will be excluded from the backpay amount determined by the judge for a current backpay award of $14 848 31 Relative to Bonner the Board states (id at 395) The record shows that Bonner s unreported em ployment with Allstate occurred in the third and fourth quarters of 1980 The record does not set forth when her second unreported job at Angel oc curred The General Counsel contends however that the compliance officer has posthearing made such a determination It is therefore necessary that this issue be resolved by further proceedings in order exactly to establish the quarters in which earnings from such unreported employment were derived and in order for the judge then to reconsid er Bonner s testimony in light of the principles set out in American Navigation supra as reaffirmed in Ad Art supra in order to determine the amount of backpay if any to which she is entitled FINDINGS AND CONCLUSIONS Subsequent to the Board s remand the parties and I discussed the propriety of further proceedings through written correspondence to reduce additional cost and delay All agreed that a rehearing was probably not nec essary To that end I instructed the respective counsels to submit a written position on the Boards remand within a reasonable time frame I receive into the record General Counsels written position of three pages as Court Exhibit 1 and Respondents written position of three pages as Court Exhibit 2 Subsequent to my supplemental decision the General Counsel through Compliance Officer Pearce contacted the Workers Compensation Court State of Oklahoma and Employer Raul V Angel Pearce later received docu mentation from the compensation court and Raul V Angel The General Counsel has marked the documents received as General Counsels exhibits and moves their 315 admission into the record 2 Counsel for discriminatees Stanberry and Bonner has no objection to receipt of General Counsels proffered exhibits into the record Re spondent s counsel while not questioning the authentici ty of exhibits relating to Bonner is unwilling to accept the truthfulness of the substance of the exhibits Howev er Respondents counsel has no objections to receipt of the General Counsels exhibits relating to Stanberry Albeit I no longer have the transcript before me my trial notes reflect that Respondent s trial exhibits (Bonner s 1980 Federal tax return and 1980 social security report of Bonner s wages) confirms the substance of General Counsels exhibits I therefore grant the General Colin sel s motion and receive the exhibits as marked into the record Rickey C Stanberry The stipulation of the parties based in part on exhibits in the record reflects the accuracy of the Board s inter im award of backpay Compensation for lost wages was received by Stanberry during the second and third quar ters of 1979 (no net backpay was due for the third quar ter) Therefore the second and third quarters of 1979 are excluded from any backpay determination for Stanberry The backpay award to Stanberry of $14 848 31 as shown in the Board s Order is correct and accurately reflects the amount due Stanberry as computed by the General Counsels backpay specification Alice Faye Bonner Pursuant to the Board s remand the General Counsel has determined that Bonner s concealed employment with Raul V Angel occurred during the second and third quarters of 1980 totaling $1 014 24 and $394 64 re spectively The previously amended backpay specifica tion shows that Bonner s second concealed employment at Allstate Securities occurred during the third and fourth quarters of 1980 The General Counsel contends that Bonner should only be denied backpay due to the concealment of inter im employment for the quarters in which the employ ment occurred citing American Navigation Co 268 NLRB 426 (1983) and Ad Art Inc 280 NLRB 985 (1986) Respondent argues that Bonner should be denied back pay for all quarters based in part on my credibility deter urination of Bonner and in part on Chairman Dotson s dissent in the Board s Supplemental Decision and Order Y The documents are as marked by General Counsel G C Exh 1IA stipulation of the parties relative to discnminatee Stanberry G C Exh iiB cover letter to compliance officer Pearce from Workers Compensa tion Court State of Oklahoma, re claimant Stanberry 0 C Exh 1IC claimant Stanberry s receipt of payment of compensation claim G C Exh 11D settlement agreement between claimant Stanberry and Em ployers Casualty Corporation in satisfaction of Stanberry s workers corn pensation claim G C Exh I1E separate execution of stipulation (G C Exh I IA) by Stanberry s counsel of record G C Exh iOA cover letter from Robert Gleason accountant for Raul V Angel G C Exh 10B copy of Bonner s 1980 W 2 form submitted by Raul V Angel G C Exh 10C Raul V Angel s second quarter 1980 report to the Texas Employ ment Commission G C Exh iOD Raul V Angels third quarter 1980 report to the Texas Employment Commission 316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The thrust of my credibility determination of Bonner was my conclusion that her concealment of the two in team employments was intentional Coupled with the lack of specifics on Angel employment I concluded that she should be denied backpay for the remainder of the backpay period I reaffirm my credibility resolution of Bonner s testimony but I must of course follow the ma Monty opinion rather than the dissent It is clear that the concealed employments can be at tnbuted to specific quarters within the backpay period It is just as clear that only concealed employments that are exposed can and should be considered in determining backpay eligibility Respondent has the burden of pro ducing evidence to mitigate its backpay liability and that burden is not met by speculations that more unknown concealment may have taken place I therefore conclude and find that Alice Faye Bonner should be denied backpay for those quarters in which the previously concealed employment with Allstate Secun ties and Raul V Angel occurred As the record is now complete those quarters are identified as the second third and fourth quarters of 1980 In addition my previ ous findings not excepted to i e disallowance of back pay to Bonner for the period from September 1980 through January 1982 as the period of time that the A & B Feed Store was in operation shall determine Respond ent s backpay liability to Bonner Accordingly Bonner shall be further denied backpay for all four quarters of 1981 and for January in the first quarter of 1982 Thus Respondents backpay liability to Alice Faye Bonner as calculated by the General Counsel extends to the fol lowing quarters Year 1st Qtr 2d Qtr 3d Qtr 4th Qtr 1977 $ 0 $ 0 $6000 $ 78000 1978 5940 0 0 1009 82 1979 104000 56000 61600 1 14400 1980 1 18800 0 0 0 1982 1 05840 1 528 80 210 55 0 Bonner s backpay award totals $9 254 97 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed3 ORDER The Respondent United Supermarkets Inc Amarilo Texas its officers agents successors and assigns shall make the claimants whole by payments to them in the amounts of Rickey C Stanberry $14 848 31 and Alice Faye Bonner $9 254 97 plus interest as prescribed in F W Woolworth Co 90 NLRB 289 (1950) and New Ho rizons for the Retarded 283 NLRB 1173 (1987) 4 The backpay amounts as so computed shall be subject to any Federal state or local taxes required by law to be de ducted and remitted to the proper authorities 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 Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment ) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977)