Felbro, Inc

FELBRO INC 373 Felbro, Inc and Local 512, Warehouse and Office Workers' Union, International Ladies' Garment Workers' Union, AFL-CIO and Local 512, Warehouse and Office Workers' Union , Interne tional Ladies' Garment Workers Union, AFL- CIO, and Southern California District Council, International Ladies' Garment Workers' Union, AFL-CIO Cases 21-CA-20854 and 21-CA- 20988 October 19 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBER CRACRAFT i On March 29 1985 the National Labor Rela tions Board issued a Decision and Order in this proceeding 2 in which it inter alia adopted the ad ministrative law judge s findings that the Respond ent (Felbro) violated Section 8(a)(3) and (1) of the Act by laying off employees because of their union activities and violated Section 8(a)(5) and (1) of the Act by laying off employees without notifying the Union and providing it an opportunity to bargain The Board however modified the judge s recom mended Order insofar as it provided the standard backpay remedy by leaving to the compliance stage the issue of the employees entitlement to backpay consistent with the requirements of the Supreme Court s then recent opinion in Sure Tan Inc v NLRB 3 In so doing the Board noted that it appeared that a number of the employees affected by the backpay order were undocumented aliens and that the Supreme Court held in Sure Tan above that in computing backpay the employees must be deemed unavailable for work (and the ac crual of backpay therefor tolled) during any period when they were not lawfully entitled to be present and employed in the United States 4 Thereafter Felbro and the Union petitioned the United States Court of Appeals for the Ninth Cir cuit for review of the Boards Order and the Board cross petitioned for enforcement of its Order On July 22 1986 the court issued an opin ion upholding the Board s findings that Felbro vio lated the Act and enforcing the liability portion of the Boards Order 5 A majority of the court i Our delegation is to a panel of Chairman Stephens and Members Jo hansen and Cracraft Neither Member Johansen nor Member Higgins may participate in this case on the merits Accordingly Member Johan sen did not participate in the decision on the merits of the issue on remand 2 274 NLRB 1268 2 467 U S 883 (1984) Id at 903 Ladies Garment Workers Local 512 v NLRB 795 F 2d 705 709 (1986) found however that the Board had misapplied Sure Tan noting that [i]n Sure Tan the Supreme Court did not address the issue whether undocu mented workers remaining at work in the United States throughout the backpay period are entitled to backpay awards and that Sure Tan barred from backpay only those undocumented workers who were unavailable for work in the backpay period because they were outside the United States without entry papers 6 The court also noted that in contrast the Felbro discriminatees were all in the United States presently working for Felbro The court majority thus concluded that the NLRB s decision to condition Felbro s payment of backpay upon proof of each discriminated worker s legal status in the United States is inconsistent with both the NLRA and the immigration laws 7 Ac cordingly the court granted the Union s petition for review of the remedial section of the Board s Order and remanded that section of the Order to the Board for modification consistent with the court s opinion 8 The court entered its judgment on March 8 1988 On March 25 1988 the Board notified the parties that it had accepted the court s remand and invited them to file statements of position No party filed a statement of position The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel 9 Having considered our prior decision and the record in light of the courts opinion which we accept as the law of the case we shall modify our remedy and Order in this case consistent with the court s opinion Accordingly we delete from our remedy the provision that leaves to the compliance stage the issue of the employees entitlement to backpay consistent with the requirements of the Supreme Court s opinion in Sure Tan and we shall provide the standard make whole remedy for the layoff violations found AMENDED REMEDY Having found that the Respondent has violated the Act by laying off employees Raul Alonzo Es cobar Manuel Santizo Jesus V Macias Jose Alfaro Castro a/k/a Leonardo Nevarro and Mi chael Robinson and Felipe Castaneda Arizmendi because of union activities and laying off employ 9 Id at 722 ' Id at 709 8 On August 4 and 18 1986 Felbro and the Board respectively filed petitions for rehearing of the court s opinion The court denied Felbro s petition on September 4 1986 and denied the Board s petition on Octo ber 3 1986 9 See fn I 291 NLRB No 62 374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ees Armando A Castaneda Israel Ramirez and Santizo without giving the Union notice and an op portunity to bargain we shall in addition to the order enforced by the court of appeals order the Respondent to make these employees whole for any loss of earnings and other benefits they suf fered as a result of their unlawful layoffs 10 Back pay shall be computed on a quarterly basis less any net interim earnings as prescribed in F W Wool worth Co 90 NLRB 289 (1950) plus interest as computed in New Horizons for the Retarded i i We also shall order the Respondent to remove from its files any references to the unlawful layoffs and to notify in writing the employees who were unlaw fully laid off that this has been done and that the layoffs will not be used against them in any way ORDER The National Labor Relations Board orders that the Respondent Felbro Inc, Los Angeles and South Gate California its officers agents succes sors and assigns shall take the following affirma tive action necessary to effectuate the policies of the Act (a) Make whole Raul Alonzo Escobar Manuel Santizo Jesus V Macias Jose Alfaro Castro a/k/a Leonardo Nevarro and Michael Robinson and Felipe Castaneda Arizmendi for any loss of earn ings they may have suffered as a result of the dis crimination against them in the manner set forth in the amended remedy section of this Decision and Order (b) Make whole Armando A Castaneda and Israel Ramirez for any loss of earnings they may have suffered as a result of their unilateral layoff on August 22 or 24 1981 in the manner set forth in the amended remedy section of this Decision and Order (c) Preserve and on request make available to the Board or its agents for examination and copy ing all payroll records social security payment records timecards personnel records and reports The court s j udgment except for providing affirmative relief for the unlawful layoffs ordered the customary remedies for the findings of vio lations that the court enforced Thus and because we understand the court s remand to encompass only the affirmative relief for the employees who were unlawfully laid off it is unnecessary for us to reiterate those other remedies here As Felbro had reinstated all the unlawfully laid off employees prior to the hearing in this case they were not ordered reinstated by the adminis trative law judge or by our prior order in this case Consequently we have no occasion to consider here what effect if any the subsequently enacted Immigration Reform and Control Act of 1986 Pub L 99-603 100 Stat 3359 (1986) might have on such a reinstatement order 11 283 NLRB 1173 (1987) Interest on and after January 1 1987 shall be computed 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 January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Remove from its files any reference to the unlawful layoffs and notify the employees in writ ing that this has been done and that the layoffs will not be used against them in any way (e) Post at its Los Angeles and South Gate Cali forma facilities copies of the attached notice marked Appendix 12 Copies of the notice on forms provided by the Regional Director for Region 21 after being signed by the Respondent s authorized representative shall be posted by the Respondent immediately upon receipt and main tamed for 60 consecutive days in conspicuous places including all places where notices to em ployees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 2 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL make whole Raul Alonzo Escobar Manuel Santizo Jesus V Macias Jose Alfaro Castro a/k/a Leonardo Nevarro and Michael Rob inson and Felipe Castaneda Arizmendi for any loss of earnings they suffered as a result of our discnmi nation against them and we will make whole Ar mando A Castaneda and Israel Ramirez for any FELBRO INC loss of earnings they suffered as a result of our um lateral layoff of them on August 22 or 24 1981 plus interest WE WILL remove from our files any references to the layoffs of Raul Alonzo Escobar on July 27 1981 Armando A Castaneda Israel Ramirez and Manuel Santizo on August 22 or 24 1981 Jesus V Macias for the extra day that he was laid off be tween August and November 1981 and the layoffs 375 of Felipe Castaneda Arizmendi Manuel Santizo and Jose Alfaro Castro a/k/a Leonardo Nevarro and Michael Robinson about November 20 1981 WE WILL notify each of them in writing that we have removed from our files any reference to his unlawful layoff and that the layoff will not be used against him in any way FELBRO INC