Edp Medical Computer Systems, Inc, Consumer Subscription Center, Inc And Consumers Subscription Service, Inc

EDP MEDICAL COMPUTER SYSTEMS EDP Medical Computer Systems, Inc , Consumer Subscription Center, Inc and Consumers Sub- scription Service, Inc and Local 888, United Food and Commercial Workers International Union, AFL-CIO and Lawrence Wilson and David Arguelles and Local 888, United Food and Commercial Workers International Union, AFL-CIO and Jorge Lee Cases 29-CA-11726, 29-CA-11799, 29-CA-11827, 29-CA-11845, 29-CA-11909, 29-CA-11917, 29-CA-11996, 29-CA-12006, 29-CA-12077, 29-CA-12097, 29-CA- 12099, and 29-CA-12151 April 27, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 24, 1987, the National Labor Relations Board issued a Decision and Order against the Re- spondent in two separate proceedings i ordering the Respondent, inter alia, to offer immediate and full reinstatement to and make whole various discnmin atees for any loss of earnings suffered as a result of the Respondent's unfair labor practices On Octo- ber 22, 1987, the United States Court of Appeals for the Second Circuit entered consent judgments enforcing the Board's Orders On November 9, 1987, the Board obtained an order from the United States District Court for the Eastern District of New York adjudging the Respondent in contempt of several outstanding court orders directing the Respondent, among other things, to offer reinstate- ment and backpay to certain individuals who are involved in the instant proceeding The district court's order adopted, in relevant part, a magis- trate's report adjudicating gross backpay and inter- im earnings issues for discriminatee David Burgos from June 13 through November 25, 1986, and for discrimmatee Lawrence Wilson from June 13 through September 30, 1986 A controversy having arisen over the amount of backpay due, on March 31, 1988, the Regional Di- rector for Region 29 issued a backpay specification and notice of hearing alleging the amounts of back- pay due the discriminatees Thereafter, the Re- spondent filed an answer to the specification on May 3, 1988, and an amended answer on May 18, 1988, admitting in part and denying in part the alle gations of the specification and setting forth affirm- ative defenses On June 3, 1988, the General Counsel filed di- rectly with the Board a "Motion to Strike Portions of Respondent's Amended Answer and Motion for 1 284 NLRB 1232 and 284 NLRB 1286 857 Partial Summary Judgment," with exhibits at- tached The General Counsel alleges that the Re- spondent is attempting to relitigate, in affirmative defenses 1 through 5, matters previously decided in the underlying unfair labor practice and related court proceedings In addition, the General Coun- sel asserts that the Respondent improperly sets forth in its ninth affirmative defense that it is enti- tled to offset a discriminatee's 40-hour-a-week in- terim earnings from the amount earned during her 32-hour workweeks at the Respondent According- ly, the General Counsel moves that the Board grant partial summary judgment with respect to the ninth affirmative defense and that the first five affirmative defenses described above be stricken as insufficient to raise affirmative defenses On June 13, 1988, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's motion should not be granted On July 5, 1988, the Respondent filed an "Opposition to General Coun- sel's Motion for Partial Summary Judgment " The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel On the entire record in this proceeding, the Board makes the following Ruling on Motion to Strike Portions of Amended Answer and for Partial Summary Judgment In its first, second, and third affirmative defenses, the Respondent states that "each of the discrimina tees" failed to report all interim earnings, failed to accept reasonable employment during their back- pay periods, and failed to search diligently for in terim employment during their backpay periods In her motion to strike, the General Counsel argues that insofar as the issues raised in the first three af- firmative defenses relate to discriminatees Law rence Wilson and David Burgos, those matters have been fully litigated in the collateral contempt proceeding in U S district court, and that the Re- spondent may not raise them again in the backpay proceeding Accordingly, the General Counsel sub- mits that the Respondent's first through third af- firmative defenses should be stricken regarding Wilson and Burgos for the time period covered by the court proceeding and that the Respondent should be precluded from introducing evidence to support those portions of the affirmative defenses that are stricken In its opposition to the General Counsel's motion, the Respondent concedes that the issues raised in the three affirmative defenses were litigat- ed in the contempt proceeding Nevertheless, the 293 NLRB No 100 858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent argues that "[J]ustice requires that the issues of Burgos' and Wilson's interim employ- ment during those periods [covered by the con- tempt proceeding] must still be resolved because their testimony was clearly contrary to other evi- dence admitted at the hearing " We agree with the General Counsel that the in- terim employment issue regarding Burgos and Wilson was expressly litigated and decided in the district court proceeding As noted, the Respond- ent does not dispute that these issues were litigated Although it argues that "justice requires" that we reconsider the interim employment issues, its argu- ment merely represents an attempt to reverse credi bility resolutions made by the magistrate after a full evidentiary hearing in which both the Respondent and the General Counsel participated We see no basis for permitting relitigation of these issues We therefore find the Respondent's first three affirma- tive defenses without merit Accordingly , we grant the General Counsel's motion to strike these de- fenses as they relate to Burgos and Wilson for the time periods already litigated in the contempt pro- ceedings Similarly, we reject the Respondent's fifth af- firmative defense, which asserts "serious financial problems" as the reason for its unlawful reduction of hours The record shows, and the Respondent concedes, that this defense of economic hardship was fully litigated in the unfair labor practice case and was dismissed as pretextual "[I]t is well-settled that matters litigated in the unfair labor practice proceeding can not be relitigated under the guise of avoiding backpay " Workroom For Designers, 289 NLRB 1437, 1439 (1988) We deny, however, the General Counsel's motion to strike the Respondent's fourth affirma- tive defense, which claims "worsened business con- ditions" for the unlawful elimination of overtime The Respondent correctly notes that the findings made in this regard were limited to a 4-week period during March and early April 1985 when the Respondent also had unlawfully reduced em- ployees' hours The Respondent's fourth affirma- tive defense refers to alleged changed economic circumstances occurring after April 12-a period that was not covered by the underlying unfair labor practice proceeding Accordingly, we will allow the Respondent to present evidence at the compliance hearing in support of its contention that economic difficulties arising after April 12 should mitigate its overtime backpay liability, pro- vided that such evidence was not and could not have been raised in the underlying proceeding Finally, the Respondent argues in its ninth af- firmative defense that discriminatee Shaw 's back- pay award should be offset by the full 40-hour- based amount of her interim weekly earnings rather than only the first 32 hours of her weekly earnings The General Counsel counters that because Shaw only worked a 32-hour week at the Respondent, her interim earnings in excess of 32 hours nshould not be deducted to reduce backpay liability We agree with the General Counsel A backpay claimant who "chooses to do the extra work and earn the added income made available on the inter- im job" may not be penalized by having those extra earnings deducted from the gross backpay owed by the Respondent United Aircraft Corp, 204 NLRB 1068, 1073 (1973) Accordingly, as no issue of law or fact is raised by the Respondent's ninth affirmative defense, we grant the General Counsel's Motion for Summary Judgment on this issue ORDER It is ordered that the General Counsel's motion to strike the Respondent's fifth affirmative defense in its entirety, and the first, second, and third af- firmative defenses insofar as they relate to discri- minatees Burgos for the time period June 18, 1986, to November 25, 1986, and Wilson for the period June 13, 1986, to September 30, 1986, is granted IT IS FURTHER ORDERED that the General Coun- sel's Motion for Partial Summary Judgment with respect to the Respondent's ninth affirmative de- fense is granted IT IS FURTHER ORDERED that the General Coun sel's motion to strike the Respondent's fourth af- firmative defense is denied IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 29 for further appropriate action