Fabi Fashions, Inc. And Sin Fin, Inc.

586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Fabi Fashions, Inc and Sin Fin, Inc and Fabiola Valderutten and Rinaldo Zepata and Local 107, International Ladies' Garment Workers' Union, AFL-CIO Case 29-CA-9986 November 8 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 9 1988 Administrative Law Judge Howard Edelman issued the attached supplemental decision The Respondents filed exceptions and a supporting beef The General Counsel filed a re sponse to the Respondents exceptions The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge s rulings findings 1 and conclusions and to adopt the recommended Order 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents Fabi Fash ions Inc and Sin Fin Inc and Fabiola Valderut ten and Rinaldo Zepata Lindenhurst New York their officers agents successors and assigns shall pay Antonina Battaglia and pay into an escrow ac count for the benefit of Sonia Whitlock the sums set out in the recommended Order I The Respondent has excepted to some of the judge s credibility find rags 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 Products 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 The Respondent also excepted to the payment of money to Sonia Wheelock from an escrow account without it having the opportunity to examine her Where a discrimmatee is located within the I year escrow period the Regional Directors determination whether deductions are warranted is made after the Respondent has had an opportunity to exam me the discnminatee Brown & Root 132 NLRB 486 (1961) Colson Tower Geriatric Center 281 NLRB 399 (1986) Iron Workers Local 480 (Building Contractors) 286 NLRB 1328 (1987) 2 For reasons stated in his concurring and dissenting opinion in Starlite Cutting 280 NLRB 1071 (1986) (Starlite 1) Chairman Stephens would not have discnminatee Sonia Wheelock s backpay lapse if she should be unavailable during the 1 year escrow period Similarly Member Cracraft who did not participate in Starlite I agrees with former Member Dennis dissent that backpay for unavailable discriminatees should not lapse after 1 year However so long as Starlit I remains Board law Chairman Ste phens and Member Cracraft will apply the remedy set forth in that deci Sion David Cohen Esq for the General Counsel Joel Spivak, Esq (Spivak & Meiselas) for the Respondent SUPPLEMENTAL DECISION STATEMENT OF THE CASE HOWARD EDELMAN Administrative Law Judge This case was tried before me on April 26 27 and 28 and May 23 1988 in Brooklyn New York On March 20 1984 the National Labor Relations Board issued it Decision and Order (unpublished) in the underlying proceeding The decision ordered Fabi Fash ions Inc to make whole Antonina Battaglia Sonia Whi telock an Lilliana Garcia for any loss of wages suffered by them as a result of Fabi Fashions unfair labor prac tices in violation of Section 8(a)(1) and (3) of the Act On September 18 1984 the United States Court of Ap peals for the Second Circuit entered a judgment enforc ing in full the backpay provisions of the Board s Order On December 22 1987 a controversy having arisen over the amount of backpay due the above named discn minatees the Regional Director for Region 29 issued the instant backpay specification and notice of hearing Respondent s Liability The backpay specification alleged Sin Fin Inc as an alter ego of Fabi Fashions During the course of this trial as the result of testimony elicited from Rinaldo Zepata a principal of Sin Fin Inc counsel for the General Coun sel moved to amend the complaint to hold the principals of Fabi Fashions and Sin Fin Inc Rinaldo Zepata and Fabiola Valderutten (collectively Respondent and indi vidually Respondent Fabi and Respondent Sin Fin) col lectively and individually liable During the course of this trial counsel for Respondent based on evidence elicited during the course of his trial admitted the alter ego allegations set forth in the specification and the per sonal liability allegations concerning Zepata and Valder utten Accordingly I conclude that Respondent Sin Fin is an alter ego and successor to Respondent Fabi and that they and principals Rinaldo Zepata and Fabiola Valderutten are all collectively and individually liable to comply with the terms of the Board Order and court decree The Discriminatees Antonina Battaglia a discriminatee was called as a witness by counsel for the General counsel She testified as to her search for work and was cross examined fully by counsel for Respondent My findings regarding the amount of backpay due her is set forth below With respect to Sonia Whitelock a discrimmatee counsel for the General Counsel contends that notwith standing his efforts he is unable to ascertain the where abouts of Whitelock and contends that any backpay due her as described below should be held in an escrow ac count for 1 year the period to begin on the date that the sum of money is deposited in escrow or the date the Boards Supplemental Decision and Order became final including enforcement thereof whichever is later If the discriminatee Whitelock is located during the escrow period the General Counsel shall examine her concern 291 NLRB No 97 FABI FASHIONS 587 ing her intenm earnings and should it be determined that deductions are warranted the amount so deducted shall be returned to Respondent and the remainder paid to the discnminatee In the event that at the end of the 1 year escrow period the whereabouts of the discnminatee is still un known the award shall lapse and the money deposited in escrow shall be returned to Respondent Starlite Cutting 280 NLRB 1071 (1986) and 284 NLRB 620 (1987) With respect to Lilliana Garcia the third discnmma tee the General Counsel stated that he was advised by her orally that she did not wish nor was she willing to appear and proceed in these trial proceedings and that she had been duly notified in writing about the time and place of this trial When Garcia did not appear at the conclusion of the trial or give notice to her inability to appear the General Counsel moved to withdraw any backpay claim made on behalf of Garcia Such motion was granted and accordingly the specification has been amended to exclude Garcia from any backpay award Gross Backpay The parties stipulated that the backpay periods for Battaglia and Whitelock began on September 17 1982 and ended on July 5 1983 the effective date of Re spondent Fabi s offer of reinstatement The parties also stipulated that an appropriate measure of the gross backpay each discnminatee would have earned during the backpay period is her weekly rate of pay computed on a calendar quarterly basis as set forth below Antonina Battaglia $248 per week Sonia Whitelock 140 per week The interim earnings of Battaglia were litigated i Counsel for Respondent contends that Battaglia failed to make a reasonable search for work during the back pay period Antonina Battaglia and her son Jean credibly testified2 that Antonina Battaglia searched for work from the date of her discharge on September 17 1982 until her offer of reinstatement on July 5 1983 on an average of about twice a week This search included frequent telephone calls to various factories in her living area applications to employment agencies answering newspaper advertise ments in her living area and personal visits on a twice weekly basis to various factories all of which contacts were for the purpose of applying for jobs for which she was qualified Jean Battaglia was able to name some of the factories to which his mother applied However he could not remember most of the names A discriminatee ' As set forth above Whitelock s whereabouts were unknown and she did not appear at the trial 2 Although there were certain inconsistencies between the testimony of Antomna and Jean Battaglia as to how many times a week she looked for work I find such inconsistencies minor and attributable to the passage of time between her search for work and the testimony at trial a 5 to 6 year period is required to make a reasonable search for work in order to mitigate loss of income and the amount of back pay Lizdale Knitting Mills 232 NLRB 592 599 (1977) The Board and the courts hold however that in seeking to mitigate loss of income a backpay claimant is held only to reasonable exertions in this regard not the highest standard of diligence The principle of miti gation of damages does not require success it only re quires an honest good faith effort NLRB v Ar duini Mfg Co 394 F 2d 420 422-423 (1st Cir 1968) NLRB v Madison Courier 472 F 2d 1307 (D C Cir 1972) The Board and the courts also hold that the burden of proof is on the employer to show that the em ployee claimant failed to make such reasonable search NLRB v Midwest Hanger Co 550 F 2d 1101 (8th Cir 1977) or that he willfully incurred losses of income or was otherwise unavailable for work during the backpay period NLRB v Pugh & Barr Inc 231 F 2d 588 (4th Cir 1956) NLRB v Miami Coca Cola Bottling Co 360 F 2d 569 (5th Cir 1966) Moreover in applying these standards all doubts should be resolved in favor of the claimant rather than the respondent wrongdoer United Aircraft Corp 204 NLRB 1068 (1973) What constitutes a good faith search for work depends on the facts of each case In this regard the Board stated that in broad terms a good faith effort requires con duct consistent with an inclination to work and to be self supporting and that such inclination is best evidenced not by a purely mechanical examination of the number or kind of applications for work which have been made but rather by the sincerity and reasonableness of the efforts made by an indi vidual in his circumstances to relieve his unemploy ment Circumstances include the economic climate in which the individual operates his skill and quali fications his age and his personal limitations Hickman Garment Co 196 NLRB 428 432 (1972) Moreover the Board has repeatedly held that it is not unusual or suspicious that claimants cannot remember the names of employeis or employer representatives to whom they spoke or the times they visited such pro spective employers Amsher Associates 234 NLRB 791 792 at fn 7 (1978) United Aircraft Corp 204 NLRB 1068 (1973) Lizdale Knitting Mills 232 NLRB 592 599 (1977) Neely s Car Clinic 255 NLRB 1420 (1981) Applying these legal principles to the facts set forth above I conclude Respondent has failed to establish its burden that Battaglia failed to make a reasonable search Arthur Briggs Inc 281 NLRB 789 (1986) Rather the evidence establishes that Battaglia made a thorough search for work during the backpay period The net backpay due Whitelock and Battaglia is calcu lated by subtracting the interim earnings of the discrimin atee per quarter from the gross backpay per quarter and adding up the quarterly net backpay periods The calcu lations for Whitelock and Battaglia are set forth below Computation of backpay due to Sonia Whitelock 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I Gross Backpay 1982 1983 3Q (2 weeks) $ 280 4Q (13 weeks) 1 820 1Q (7 weeks) 980 No backpay claimed after 1st quarter 1983 II Interim Earnings 1982 3Q None $ 0 4Q American Industrial Cleaning 645 75 Corp 10 Chelsea Place Great Neck NY 11021 Marconi Industries Ltd 990 Marconi Boulevard Copiague NY 11726 56000 Quarterly Total $1 205 75 1983 lQ Marconi Industries Ltd $94450 No backpay claimed after 1st quarter 1983 III Computation of Net Backpay Gross Interim Qtr Backpay Earnings Net Backpay 1982 3d $ 280 $ 0 $ 28000 4th 1 820 1 205 74 614 25 1983 1st 980 94450 35 50 Total $ 929 75 Computation of backpay due Antonina Battaglia I Gross Backpay II Interim Earnings 1982 1983 3Q None 0 4Q None 0 1Q None 0 2Q None 0 3Q None 0 III Computation of Net Backpay Qtr Gross Backpay Interim Earnings Net Backpay 1982 3d $ 49600 0 $ 49600 4th 322400 0 322400 1983 1 st 322400 0 322400 2d 322400 0 322400 3d 99 20 0 99 20 Total $10 267 20 Accordingly I conclude that total backpay owed Bat tagha by Respondent is $10 267 20 and that owed to Whitelock to be deposited in an escrow account as set forth above is $929 75 exclusive of interest ORDERS The Respondents Fabi Fashions Inc and Sin Fin Inc and Fabiola Valderutten and Rinaldo Zepata Linden hurst New York their officers agents successors and assigns shall 1 Pay to Antonina Battaglia $10 267 20 together with interest as computed in accordance with the formula ap proved in New Horizons for the Retarded 283 NLRB 1173 (1987) 2 Pay into an escrow account for the benefit of Sonia Whitelock as described above the sum of $929 75 togeth er with interest as computed in accordance with the for mula approved in New Horizons supra 1982 3Q (2 weeks) $ 49600 4Q (13 weeks) 322400 8 If no exceptions are filed as provided by Sec 102 46 of the Board s 1983 lQ ( 13 weeks) 322400 Rules and Regulations the findings conclusions and recommended 2Q (13 weeks) 322400 Order shall as provided in Sec 102 48 of the Rules be adopted by the 3Q (0 4 weeks) 99 20 Board and all objections to them shall be deemed waived for all pur poses