L'Ermitage Hotel

924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ashkenazy Property Management Corporation d/b/a L'Ermitage Hotel, Ashkenazy Enterprises Inc, Ashkenazy Development Corporation, 9289 Burton Company d/b/a L'Ermitage Hotel and Hotel and Restaurant Employees and Bartend- ers Union, Local 11, AFL-CIO Case 31-CA- 10775 April. 28, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 21, 1988, Administrative Law Judge Gerald A Wacknov issued the attached Supplemental Decision in this proceeding The Re spondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions, a supporting brief, and an answering brief 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 briefs and has ' The General Counsel was required by the United States Court of Ap peals for the Ninth Circuit to proceed on a backpay specification consist ent with the court of appeals earlier decision in Garment Workers Local 512 (Felbro) v NLRB 795 F 2d 705 (9th Cir 1986) with respect to back pay entitlement of employees who are undocumented aliens As the Board did not seek review of the Ninth Circuit s decision the admmistra tive law judge was clearly bound and properly rejected the Respondent s arguments that notwithstanding the Ninth Circuits decisions the discn minatees involved in this proceeding should be denied reinstatement and backpay if they are not lawfully entitled to be present and employed in the United States We note that as in Garment Workers Local 512 supra the discnmmatees in this proceeding all were originally hired by the Re spondent prior to November 6 1986 the effective date of the Immigra tion Reform and Control Act of 1986 Pub L 99-603 8 U S C § 1001 et seq as amended 2 The Respondent has excepted to some of the judge s credibility find mgs The Board s established policy is not to overrule an administrative law judges 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 We find that the judge incorrectly used the first amended specification in determining Maria Villalta s backpay Using the second amended speci fication we find that Villalta is entitled to $10031 93 in backpay We also note that the judge in his Appendix inadvertently stated the amount due Flores as $12 503 09 rather than $12 503 99 We agree with the judge that the Respondent s letter of November 20 1986 to Flores was not a valid offer of reinstatement We do not howev er rely on 15th Avenue Iron Works 279 NLRB 643 (1986) in making this finding as the Board there adopted the administrative law judge s deci sion on that issue in the absence of exceptions In its exceptions brief the Respondent requests the Board to take Judi cial notice of R Exh A pursuant to Federal Rules of Evidence § 201 This exhibit purportedly sets forth a list of hotels in the Los Angeles area in 1981 The General Counsel objects to this request on the grounds that the facts regarding the list of hotels are not generally known and are not capable of accurate and ready determination by unimpeachable sources as required by the Federal Rules of Evidence We find merit in the General Counsel s position and deny the Respondents request In so doing we note that the Respondent gives no explanation for its failure to introduce decided to affirm the judge 's rulings,' findings,2 and conclusions3 as modified below 1 With regard to Flores, the backpay specifica- tion states that he had no earnings for the first quarter of 1982 During the hearing , Flores testi- fied that he worked as a quality control inspector for the Papermate Company for the first couple of months of 1982 He stated that he was paid $5 per hour and worked 40 hours per week The Re spondent produced a letter of recommendation Flores received from Papermate dated February 8, 1982 Flores stated that he received that letter 1 or 2 weeks after he had left the company's employ The letter stated that Flores had worked at Paper- mate for the last couple of months We find that Flores worked the first 5 weeks of 1982 and earned $200 per week Based on this evidence we will deduct $1000 from the amount owed to Flores 2 With regard to Maria Biodrawski, we find that the week she spent in Oregon should not be count ed in calculating the backpay owed to her Bio- drawski testified that she accompanied her father to Oregon because he had a court date there The trip was made in order to conduct Biodrawski's fa- ther's business, it did not involve any business-relat ed matters concerning Biodrawski directly She did not search for work during that week Nor was she available for work during that period Thus, 1 week's pay ($150 35) should be deducted from the backpay due her 3 The Respondent in its exceptions to the judge's decision argues that NLRB v Mercy Penin- sula Ambulance Service, 589 F 2d 1014 (9th Cir 1979), compels a finding that Flores, Biodrawski, Cayetano, Chavez, and Alvarenga failed to make reasonable and diligent searches for work We dis agree and find the searches for employment in this case to be clearly distinguishable from the search made by the discriminatee in Mercy In Mercy the Board reversed the administrative law judge s finding that the discriminatee was not entitled to backpay for the period from his dis charge until November 1974 due to his failure to make a reasonable and diligent effort to search for the list at the hearing where it would have been subject to examination by opposing counsel 3 During the hearing counsel for the General Counsel introduced G C Exh 12 which showed that discriminatee Cayetano earned $891 78 for the first quarter of 1981 Cayetano worked at the Spires Restaurant during that time and earned $475 53 This amount was taken into account in the computation of his backpay The remainder $416 25 was accrued vacation time earned by Cayetano while he was working for the Re spondent The Respondent claims that this amount should be deducted from the backpay it owes Cayetano We find no merit in the Respond ent s claim The accrued vacation pay was earned while Cayetano was working for the Respondent before the backpay period began That the Respondent chose to wait until the backpay period to pay Cayetano does not affect the backpay it owes him 293 NLRB No 114 L ERMITAGE HOTEL work On appeal the Ninth Circuit reversed the Board, ruling that the discnminatee willfully in- curred the loss The discriminatee during June 1974 made only two phone calls In July he made only three contacts In August he made only three con- tacts in the span of 2 days In September, again he made only three contacts that engaged approxi mately 1-1/2 hours of his time This was typical of the discriminatee's job search for the period of June to November 1974 That scenario does not describe the search made by the discriminatees in- volved here In finding that the discriminatees made sufficient searches for work, the judge noted that the individ- ual discriminatees contacted numerous potential employers through various means Specifically, the judge found that Flores sought and obtained work during 12 of the 13 quarters for which he was enti- tled to backpay and credited Flores' testimony that he sought work on a regular basis Based on Bio- drawski's testimony that during the period when she was out of work she looked for work at hotels, hospitals, and restaurants two to three times per week, the judge found that Biodrawski had made a reasonable search for work Cayetano's uncontra- dicted testimony that he sought work two to four times a week at hotels and restaurants and regis- tered with a private employment agency supports the judge's finding that, with the exception of 6 months when he was in Mexico, Cayetano was eli- gible for backpay for the periods when he was not working The judge found that Chavez worked steadily throughout the entire backpay period albeit for less money than she earned when she worked for the Respondent Though the judge found that Alvarenga failed to pursue a reasonably diligent search for work in 1982, the judge credited Alvarenga's testimony that subsequent to 1982 he looked for work about three times a week Based on these findings the situation with regard to each of the above-named discriminatees is obviously dis- tinguishable from the facts in Mercy ORDER The National Labor Relations Board orders the Respondent, Ashkenazy Property Management Corporation d/b/a L'Ermitage Hotel, Ashkenazy Enterprises Inc, Ashkenazy Development Corpo ration, 9289 Burton Company d/b/a L'Ermitage Hotel, Beverly Hills, California, its officers, agents, successors, and assigns, to make whole the employ- ees named below by paying them the amounts set forth adjacent to their names, plus interest comput- ed in the manner prescribed in New Horizons for the 925 Retarded,4 accrued to the date of payment, minus tax withholdings required by law Francisco Flores $11,503 99 Maria Guadalupe Biodrawski (nee Lupe Jacobo) 9,042 91 Alberto Cayetano 7,342 55 Irma Chavez (a/k/a Maria Rodriguez) 10,646 57 Maria Villalta 10,031 93 Sonia Moya 1,806 60 Oscar Alvarenga 7,985 09 The total backpay due to the discriminatees listed below shall be paid to the Regional Director for Region 31 and will be held in escrow for 1 year 5 In the event any or all the below named dis criminatees appear to collect this backpay, the Re- spondent will be offered an opportunity by the Re gional Director to produce evidence and/or exam- ine such discrimmatees about their interim earnings Aladino Hammond $7,733 20 Adela Escalante 898 85 Concepcion Molina 1,939 30 Ana Ramirez 429 70 Gregoria Salazar 4,692 04 Maria Alvarez 1,442 20 Susana Andrade 381 30 Maria Chavez 384 65 Maria Sandoval 434 55 4 283 NLRB 1173 (1987) 5 Starlite Cutting 280 NLRB 1071 ( 1986) (Starlite 1) as amended 284 NLRB 620 (1987) (Starlite II) Starhte I overruled Duncan Foundry & Machine Works 222 NLRB 768 (1976) and stated that in the absence of a discnminatee a respondents backpay obligation will lapse at the end of a l year escrow period Absent the discriminatee s showing by a prepon derance of the evidence that there were compelling reasons to justify his or her failure to come forward during that period a respondent shall not remain obligated for the gross backpay amount specified for the discn minatee after the end of the 1 year escrow period Subsequently the Board issued an order in Starlite II clarifying the starting date of the I year period In Starlite II the Board majority held that the 1 year escrow period shall begin either when the respondent complies by depositing the backpay into escrow or on the date the Board s Supplemental Decision and Order becomes final including enforcement whichever is later The provisions of Starlite I and II are applicable to the instant case with regard to backpay owed to Aladino Hammond Adela Escalante Con cepcion Molina Ana Ramirez Gregona Salazar Maria Alvarez Susana Andrade Maria Chavez and Maria Sandoval Although Member Johan sen dissented in Starltte II and would find that the 1 year escrow period should begin on the date of issuance of the Board s Order affixing back pay liability he nevertheless considers himself to be institutionally bound to apply the rule of Starlite II in this case Member Cracraft who did not participate in Starlite I agrees with former Member Dennis dissent that backpay for unavailable discnmina tees should not lapse after 1 year However so long as Starhte I remains Board law Member Cracraft will apply the remedy set forth in that deci sion 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ann L Weinman Esq and Richard S Zuniga Esq for the General Counsel Benjamin E Goldman Esq Angie Small Esq, and Mi chael Lindsay Esq (Graham & James), of Los Angeles, California, for the Respondent Ellen Greenstone Esq (Greenstone, Hubel Holguin & Garfield), of Los Angeles, California, for the Charging Party SUPPLEMENTAL DECISION STATEMENT OF THE CASE GERALD A WACKNOV, Administrative Law Judge The hearing in this matter was held before me on Febru ary 16, 18, and 19, and March 29 and 30, 1988, in Los Angeles, California, based on a backpay specification, which issued on October 15, 1987, and was amended on December 9 1987, alleging that the discnminatees as found by the Board on February 1, 1984, in L Ermitage Hotel 268 NLRB 744, enfd 796 F 2d 479 (9th Cir 1986), were entitled to various amounts of backpay as a result of their terminations in contravention of the Act The parties were given a full opportunity to introduce evidence, to examine witnesses, and to submit posthear ing briefs Timely briefs were filed by the General Court sel and counsel for Respondent After the opening of the hearing, the parties reached agreement on the backpay owed to 26 of 42 discrimina tees Respondent has fully complied with the terms of the settlement agreement and, pursuant to the parties motion, the record is closed regarding those particular dtscnmmatees i Further, the General Counsels motion to delete Maria Vasquez as a discnminatee from the backpay specifica tion, based on her sworn affidavit of unwillingness to appear for questioning and the small amount of her back pay claim ($401 40) is granted Respondent has contended from the outset of this pro ceeding and continues to maintain, that at the time of their discharges almost all the discriminatees were illegal aliens and that, pursuant to the United States Supreme Court s decision in Sure Tan Inc v NLRB 467 U S 883 (1984), they are deemed unavailable for work (and the accrual of backpay) during any period when they are not lawfully entitled to be present and employed in the United States In Sure Tan, the dtscnmtnatees had left the United States on their discharge and did not remain in the United States during the backpay period The Court of Appeals for the Ninth Circuit in Gar ment Workers Local 512 (Felbro) v NLRB, 795 F 2d 705 (1986), distinguished the facts in Sure Tan and held that in the case of dtscnmmatees who remain in the United States, remedies afforded for violations of the National Labor Relations Act are to be implemented regardless of the workers immigration status During the initial com phance stage of this proceeding the Board sought to limit backpay based on its interpretation of Sure Tan Thereupon, the Charging Party here brought a proceed mg before the Ninth Circuit to compel compliance with i Their names and the amounts they have received are contained in G C Exits 14 and 15 its decision enforcing the Board s Order in the instant case On May 8, 1987, the Ninth Circuit found merit to the contention of the Charging Party and, inter alia, with the acquiescence of the Board, has required that its Felbro holding be applied to the discriminatees here NLRB v Ashkenazy Property Management, 817 F 2d 74 (9th Cir 1987) Respondent excepts to the Ninth Circuit's interpreta tion of the Sure Tan decision and sought to introduce evidence during the course of the hearing of the immi gration status of each discriminatee However, as a result of the aforementioned proceeding Respondent has been precluded from attempting to demonstrate the immigra tion status of the discriminatees Nevertheless, it has been permitted to inquire, in order to determine the discrimin atees continued availability for work, whether they have been outside of the United States during any portion of the backpay period A The Discriminatees Who Appeared at the Hearing 1 Francisco Flores Francisco Flores was a houseman for Respondent The backpay period for Flores extends from January 1, 1981, through the second quarter of 1984 (13 quarters) and is continuing because according to the General Counsel, Respondent has not made a valid offer of reinstatement to Flores Flores sought and obtained work during 12 of the 13 quarters in 3 of the quarters his interim earnings exceeded backpay in 3 quarters, his backpay exceeded interim earnings only by about $300 or less and in 2 quarters his interim earnings were in excess of 50 percent of gross backpay During the remaining quarters, his in terim earnings were nominal Flores testified that he looked for work on a regular basis Respondent contends that Flores' backpay period must end as of October 22 1982 when he was discharged from a supervisor s job Flores testified that he was fired by FMS Corporation after apparently working there steadily for about 7 months Although Respondent main tains that Flores was discharged for gross insubordinate behavior, the only evidence of the reason for the dis charge is the testimony of Flores to the effect that a new manager was apparently dissatisfied with his job per formance Clearly this is insufficient to warrant the toll ing of backpay See Mid America Machinery Co, 258 NLRB 316, 319 (1981) Flores began working for La Strega a restaurant, in January 1984 He worked until May 6 1984 and was re placed by another employee whom, according to Flores, the owner considered to be a better employee Similarly, contrary to Respondents contention this is not a valid reason for tolling backpay On November 20, 1986, Respondent sent the following letter to Flores As you may recall we previously tried to con tact you by mail regarding reinstatement of your position at L'Ermitage Hotel Since that time we have been notified of a change in your address and wish to inquire if you would be interested in resum mg a position at the L'Ermitage Hotel at this time L ERMITAGE HOTEL If so, please contact us at (213) 854-1111 within 10 working days otherwise we will assume that you are not interested Such an inquiry whether an employee is interested in employment is not a valid offer of reinstatement and is clearly insufficient to toll backpay 15th Avenue Iron Works, 279 NLRB 643, 645 (1986) Flatiron Materials Co, 250 NLRB 554 (1980), Montgomery County MH/MR Emergency Service, 239 NLRB 821, 827 (1978) At the hearing however Flores testified that when he received the letter he was working for another employer and believed he was making more money than he could have made in Respondent's employ Therefore, he did not respond to the letter This admission, according to Respondent, tolls its backpay liability even if the letter was deficient Respondent s contention must be rejected in light of the Board s recent decision in Consolidated Freightways, 290 NLRB 771 (1988), in which the Board held that an employer must first extend a facially valid offer of reinstatement before we examine a discrimina tee s reasons for declining the offer Accordingly, I find that the total net backpay amount for Flores through the second quarter of 1984 is that des ignated in the revised backpay specification, namely, $12,503 99 2 Maria Guadalupe Biodrawski (nee Lupe Jacobo) Biodrawski was a floor supervisor for Respondent She was discharged on January 1, 1981, but did not begin looking for work until the fourth week in January Bio drawski went to work for another employer during the third quarter of 1981 and worked until the third quarter of 1983 when she was terminated During this period, her interim earnings exceeded backpay Biodrawski tests feed that she was terminated because she was sick for a week or two There is no record evidence that, as con tended by Respondent, she voluntarily quit a compara ble job without excuse and willfully incurred loss Therefore, Respondent's contention that Biodrawski s backpay should be tolled as of the date of her termina tion is without merit I find that Biodrawski made the necessary effort to look for work during the remaining quarters and that the one week she spent accompanying her father to Oregon for a business related matter should not be deducted from backpay as she was unemployed at the time I find that $451 05 should be deducted from Biodraws ki s total net backpay designated in the revised backpay specification, namely $9,644 31, corresponding to 3 weeks' backpay as a result of her failure to look for work during the first 3 weeks of January 1981 Thus, her total net backpay is $9193 26 3 Alberto Cayetano Cayetano was a houseman for Respondent He testified that he looked for work throughout the backpay period at times he was not working, except for 6 months during the second and third quarters of 1981 when he was in Mexico He had interim earnings in all but 1 of the re maining 14 quarters and his interim earnings exceeded backpay in 5 of those quarters Respondent maintains 927 that his backpay must be tolled as of August 1982 as he was fired on that date for insubordinate behavior Caye tano s testimony, however, indicates that his discharge apparently stemmed from both an inability to get along with a difficult supervisor and a lack of work Moreover, on his discharge he was given a letter of recommenda tion I find Respondents argument to be without merit I concluded that Cayetano is entitled to the total net backpay designated in the revised backpay specification, namely $7342 55 4 Irma Chavez (a/k/a Maria Rodriguez) Chavez worked under the name of Maria Rodriguez while working for Respondent 2 She was a maid Her backpay period extends from January 1, 1981, to August 20, 1985, and from April 1 to October 31, 1987 She ob tained or is credited with interim employment during those 22 quarters, and although her interim earnings never exceeded backpay, the amount of interim earnings in virtually all the quarters was about 75 percent of the amount she would have received had she remained in Respondents employ 3 Respondent maintains that Chavez took herself out of the labor market by accepting jobs with lower pay rather than searching for higher paying jobs The record does not support Respondent s contention as Chavez worked steadily and it would be mere speculation to conclude that had she obtained higher paying jobs, they would have provided her with sustained employment She is entitled to the total net backpay contained in the revised backpay specification namely, $10,646 57 5 Maria Villalta Villalta admits that she did not begin looking for work until 3 weeks after her termination Respondent contends that Villalta s backpay period should be tolled in May 1984 when she was allegedly of fered reinstatement Villalta testified that on receiving a letter from Respondent dated December 6, 1984, stating that This letter will serve as notification that a house keeping position is available to you she went to the hotel and had a conversation with Respondents execu tive housekeeper, Denise Aquilar Villalta testified that although she then had a full time job with another em ployer she requested full time employment with Re spondent Aquilar said this was not possible Villalta then requested at least 2 days work per week and was told by Aquilar that there were no part time jobs available Aquilar testified that Villalta said she then had a full time position, and asked for a part time position of 2 days per week Aquilar replied that Respondent did not employ workers on a part time basis Aquilar testified that she did not know that Villalta had worked there previously and when Villalta said she had received a letter from Respondent, Aquilar did not know what she 2 Respondent s beef indicates that Respondent is no longer contending that Rodriguez never worked for the Company 8 The backpay specification credits Chavez with interim earnings she would have received had she continued to work at the Pasadena Hilton and at Crown Zipper her two interim employers rather than remain at home for periods of time to take care of children 928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was talking about Apparently Villalta did not have the letter with her I conclude that the Respondent has not sustained its burden of proof Villalta appeared to be a credible wit ness Indeed, she admitted that she did not look for work during the first 3 weeks after her discharge Further, Aquilar did not know anything about the letter or, ap parently, that Respondent had made a written offer of reinstatement to Villalta, and should have investigated the matter further when she was told about the letter If there was indeed a failure of communication , Respondent must be held accountable for the adverse consequences The record indicates that even though Villalta had full time employment elsewhere she would have earned more money in Respondents employ Therefore, it is reasona ble to presume that she would have preferred a full time job with Respondent Further, asking for 2 days' adds tional work per week is not inconsistent with holding down another full time job, and thus Villalta s version of the conversation is plausible I therefore conclude that, as alleged, Villalta s backpay period is continuing, and that she is owed the amount set forth in the revised backpay specification ($7009 45) less 3 weeks backpay for the first quarter of 1981 ($443 05) or $6566 40 6 Sonia Moya Moya apparently began working for Respondent less than a month prior to her discharge Although not a stat utory supervisor, Moya was a floor or desk supervisor for Respondent and was paid $4 per hour, whereas most of the rank and file employees were paid $3 25 per hour Moya testified in English without an interpreter Her husband worked at a job from 4 p in to midnight, appar ently throughout the backpay period The backpay specification shows that for 4 years (16 quarters-from January 1 1981 to December 20 1984) Moya was able to find only limited employment Moya testified that on a fairly regular basis, she applied in person for various jobs looked for others by answering newspaper want ads in person and by telephone and just drove around and walked into various prospective em ployers premises She further testified that she registered for unemployment and went to the unemployment office about four times in 1981 She had no documentary evi dence that she registered with the unemployment office and testified that she threw the registration card away She apparently did not collect unemployment During the first quarter of 1981 she worked for the San Fernan do Sheraton Hotel for 3 days and earned $47 15 She stopped looking for a job thereafter because of pregnan cy complications She had a baby on September 5 1981 and testified that she began seeking work again in mid October 1981, but was unable to find work During the first quarter of 1982, she earned $455 ($35 per week) cleaning a private home 1 day a week During this time, she was also staying at home taking care of her child During the second quarter of 1982 she earned $840 taking care of two other children in her home She found no work during the third and fourth quarters of 1982 During the first quarter of 1983 she earned $420 taking care of one child in her home Thereafter for the three subsequent quarters, she did not work During the first quarter of 1984, she worked at McDonald s Restau rant on a part time basis for about a month, and earned $151 13 Thereafter, for the next three quarters, she again took care of children in her home, and earned $450, $675, and $650, respectively in each quarter During the course of the backpay period, the Regional Office sent a series of quarterly compliance forms to Moya The forms request, inter alia, that the employee lists all places of employment The forms further state as follows If you were without employment at any time during this period, make a complete list on the reverse side of this form of all names of employment agencies employers, want ads and others where you sought work, giving addresses and dates of contact Under the law, in order to have any claim for backpay which may be due you, it is your responsibility to continue your search for employment during pen ods when you are unemployed or only temporarily employed The reverse side of the form contains three columns, one for each month of the quarter, wherein the employee is to list the places where he/she sought work During each of the six quarters after her pregnancy complica tions when Moya was unemployed and was actively seeking work, she listed from seven to nine places where she sought work She also listed seven places during the first quarter of 1982 when she was doing cleaning work at a private residence 1 day a week However during the seven quarters when she was working at McDonald s or caring for children at her home, the listings all but stopped Thus, for the first month of the second quarter of 1982 (April), she states Make [sic] several phone calls to places where I ve applied for jobs and for the second and third months (May and June) of that quarter she states Taking care of two kids at home $70/wk' For the first quarter of 1983 when she earned $420 taking care of one child at home, she does not list the names of any places she looked for work For the first quarter of 1984 when she worked part time at McDon ald s for a month and earned $151, she does not list any places she looked for work Nor does she list any places for the second and third quarters of 1984 when she was caring for children During the fourth quarter of 1984, however, the record shows that she was caring for chil dren and earned $658 (although the form she submitted does not reflect this) and she lists 13 places where she sought work Moya testified that she was able to look for work while she was caring for children by making phone calls to prospective employers Also, her husband, who worked at night would sometimes care for the children during the day thus enabling her to look for work I conclude from the foregoing that at all times when Moya was taking care of children she considered this to be sufficient interim employment and did not make a dili gent search for work Thus on the compliance form for the second quarter of 1982 where she was requested to list places where she sought work she stated, Taking L ERMITAGE HOTEL care of two kids at home As noted, on other compli ance forms when she was taking care of children or when she worked part time at McDonald s for a month, she did nc t list any prospective employers I therefore find that Respondent has sustained its burden of proof in this regard The record shows that except for child care jobs for which Moya earned from about $1 to $2 per hour (de pending on whether she was taking care of one or two children), and the one housecleaning job at $35 per week for 1 day s work per week she was able to earn less than $200 in 4 years According to the revised backpay speci fication, she is owed $26,311 57 Moya, while in Re spondent s employ, was earning more than some 85 per cent of the other discriminatees She was a floor desk su pervisor and, unlike some of the employees, was able to speak English well enough to testify without an inter preter She testified that she had frequent access to a car during the day as her husband worked at night, and looked for jobs as a maid, waitress, cashier or any other type of job at various locations throughout the Los An geles area, including Hollywood, Santa Monica, Beverly Hills, and Glendale I find that the foregoing facts are sufficient to warrant the finding that Moya's testimony that she made a diligent search for work is unreliable and that Respondent has sustained its burden of proof It is simply inconceivable that she was not able, at least pen odically during the backpay period, to find unskilled work in the greater Los Angeles area where there are literally thousands of such jobs When asked to explain her inability to find work, Moya testified that she was just unlucky In the absence of a more plausible explana tion, I am constrained to conclude that she simply did not make the requisite effort Based on the foregoing, I find that Moya is entitled only to $633 85 for the first quarter of 1981 and $1172 75 for the fourth quarter of 1984 I find that she sought work during this latter quarter because the compliance form unlike those other forms during the period when she was caring for children listed the names and ad dresses of some 13 employers, and Moya appeared to have a clear recollection of having personal interviews with two of the prospective employers listed Thus she is owed $1806 60 7 Oscar Zetino Alvarenga Alvarenga worked as a houseman for Respondent since 1979 and was earning $3 35 per hour at the time of his discharge He testified that upon his discharge he reg istered at the unemployment office and was sent to some places to apply for work He applied for various types of jobs His compliance form for the first quarter of 1981 lists only one employer, and Alvarenga was unable to recall the names of other places he looked for work He began working for Hillcrest Motor Company the second quarter of 1981 and he worked there until February 1982, when he was laid off for lack of work He again registered with the unemployment office and was unable to find work until about March 1983 when he began working for Dollar Rent A Car He was terminated for insubordination on August 18 1983 Regarding this termination Alvarenga testified that his manager was 929 giving him a hard time and was making racial remarks against Latinos He broke his wrist in 1984 and was unable to work for 8 months thereafter Alvarenga specifically testified that he does not re member looking for work in 1982 at places that are not listed on the compliance forms he submitted He listed no prospective employers on the compliance form for the first quarter of 1982 and listed only the Employment Development Department on the compliance form for the second quarter For the third and fourth quarters he listed only four prospective employers I conclude that Respondent has shown that Alvarenga did not make sufficient efforts to look for work during 1982 after he was discharged from Hillcrest Motor Com pany and that he is entitled to no backpay for the four quarters of that year However, although the compliance forms for the subsequent quarters list only from zero to three prospective employers, Alvarenga testified that he contacted about three employers per week during this time Although he was able to identify only several of these employers, nevertheless he seemed to recollect the details of some interviews Therefore I find that the Re spondent has not sustained its burden of proof by show ing that Alvarenga s search for work during this period of time was deficient Further, it is clear that due to his injury he was not available for work beginning in May 1984 and continuing until the end of that year As a result, his total backpay amount is $7985 09 B The Remaining Discriminatees There are nine discriminatees who have not been lo cated The General Counsel requests that the backpay amounts contained in the revised backpay specification for each employee except for Aladino Hammond (infra) be placed in an escrow account pursuant to the Board s decisions in Starlite Cutting, 280 NLRB 1071 (1986), and 284 NLRB 620 (1987) As to missing discriminatee Ham mond, the General Counsel requests that his backpay amount be reduced because the record evidence indicates that he has been out of the country and unavailable for work since some time in 1981 As the record evidence does not clearly show when Hammond left the country in 1981, the General Counsel has arbitrarily assumed that he left on December 31 of that year and that the amount placed in escrow should be computed accordingly Thus, according to the General Counsel the amount placed in the escrow account for Hammond should be $7733 20 Respondent takes the position that since it is unknown when Hammond left the country it must be presumed that he either left immediately after his discharge on Jan uary 1, 1981, or did not search for work because he was preparing to leave the country and therefore is not enti tied to any backpay Respondent contends that the parties stipulated that four other discriminatees have permanently settled in a foreign country and are similarly not entitled to backpay According to Respondent, Adela Escalante with a back pay claim of $898 85, has resettled in Cancun Mexico Concepcion Molina with a backpay claim of $1939 30 has resettled in El Salvador Ana Ramirez with a back pay claim of $429 70 has resettled in El Salvador and 930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gregona Salazar, with a backpay claim of $4 692 04, has resettled in Canada The record shows that the stipula tion referred to by Respondent (Tr 155) involved a list of discnminatees who were unavailable or out of the country, and whom the General Counsel has been unable to contact Thus, the record does not show whether or when any of the discnminatees, named above, have settled in a foreign country Apparently, Re spondent has learned the whereabouts of the four named discriminatees from prehearing discussions with other discnminatees but, as noted, the record contains no evi dence of this Thus, based on the record, and unlike the situation with Aladino Hammond, the only conclusion that may be drawn is that these four discriminatees are simply unaccounted for to date Further, there are four additional individuals to be added to this list of discn minatees whose whereabouts are unknown, namely, Mana Alvarez, with a backpay claim of $1442 20, Susana Andrade, with a backpay claim of $38130, Maria Chavez, with a backpay claim of $384 65, and Maria Sandoval, with a backpay claim of $434 55 As the burden of proof in mitigating backpay liability is placed on Respondent, I agree with the General Court sel's position that the aforementioned amounts of back pay, including the amount for Aladino Hammond, should be placed in escrow for the named discriminatees under the provisions of Starlite Cutting, supra Respondent as serts that this instant case is distinguishable from the Starlite Cutting decision because Respondent has proper ly filed and served subpoenas on all the discnminatees who have not been located and, further, because Starlite Cutting does not provide for a hearing before an adminis trative law judge if and when the discnminatees are lo cated Contrary to Respondents position, no precedent has been cited to me distinguishing between situations where, as in Starlite Cutting, Respondent did not file an answer to the backpay specification, or where as in the instant case, Respondent has litigated the matter fully and has attempted to subpoena the discnminatees Fur ther, Starlite Cutting does not appear to place the ulti mate determination as to the amount of backpay with the Regional Director or to preclude a further hearing before an administrative law judge if an issue as to the amount of backpay arises after the discriminatees are lo cated ORDER4 The Respondent, Ashkenazy Property Management Corp d/b/a L Ermitage Hotel, Ashkenazy Enterprises Inc, Ashkenazy Development Corporation, 9289 Burton Company d/b/a L Ermitage Hotel Beverly Hills, Cali forma, its officers, agents, successors, and assigns, shall 1 Pay to each discriminatee the sum set opposite his or her name appearing below on the attached net back pay recapitulation marked Appendix, together with in terest computed in the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977), and New Horizons for the Retarded, 283 NLRB 1173 (1987) 2 Remit the escrow amounts set forth in the Appendix to the Regional Director for Region 31, the amounts to be held in escrow for the discriminatees pending further efforts to locate them and accurately determine their backpay 4 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 APPENDIX 1 Net Backpay Name Net Backpay Francisco Flores $12,503 09 Mana Guadalupe Biodrawski (nee Lupe Jacobo) 9,193 26 Alberto Cayetano 7 342 55 Irma Chavez (aka 10,646 57 Maria Rodriguez) Maria Villalta 6,566 40 Sonia Moya 1,806 60 Oscar Alvarenga 7 985 09 2 Escrow Account Aladino Hammond $7,73320 Adela Escalante 898 85 Concepcion Molina 1 939 30 Ana Ramirez 429 70 Gregoria Salazar 4 692 04 Maria Alvarez 1,442 20 Susana Andrade 381 30 Maria Chavez 384 65 Maria Sandoval 434 55