Ampersand Publishing, LLC d/b/a Santa Barbara News-Press

National Labor Relations Board - Administrative Judge Opinions

Sep 4, 2020

31-CA-028589 (N.L.R.B. Sep. 4, 2020)

JD(SF)-19-20
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
AMPERSAND PUBLISHING, LLC
d/b/a SANTA BARBARA NEWS-PRESS
Cases 31-CA-028589
31-CA-028661
31-CA-028667
31-CA-028700
31-CA-028733
31-CA-028734
31-CA-028738
and 31-CA-028799
31-CA-028889
31-CA-028890
31-CA-028944
31-CA-029032
31-CA-029076
31-CA-029099
31-CA-029124
GRAPHIC COMMUNICATIONS CONFERENCE,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Julia M. Durkin, Esq., for the General Counsel.
Ira Gottlieb, Esq. (Bush, Gottlieb Law Corp.), for the Charging Party.
Christopher Frost, Esq., Michael Eisner, Esq. (Eisner Jaffe LLP), for the Respondent.
DECISION
STATEMENT OF THE CASE
Dickie Montemayor, Administrative Law Judge. This compliance proceeding was
tried before me on December 10–13, 2019, and February 11–12, 2020, in Los Angeles,
California. The compliance proceeding was predicated upon a decision by the Board finding that
Respondent engaged in flagrant unfair labor practices including bad-faith bargaining that was
sufficiently aggravated to warrant reimbursement of the union’s bargaining expenses. Santa
Barbara News-Press and Graphic Communications Brotherhood of Teamsters, 358 NLRB 1415
(2012.) This decision was followed by an Order denying Motion for Reconsideration. Santa
Barbara News-Press, 359 NLRB 1110 (2013). The Board affirmed its decision following the
JD(SF)-19-20
2
Supreme Court’s decision in NLRB v. Noel Canning, 573 U.S. 513 (2014). See Graphic
Communications Brotherhood of Teamsters, 362 NLRB 252 (2015), enfd. 2017 WL 1314946
(D.C. CT. App. 2017). On March 22, 2017, after the Board’s decision was enforced by the U.S.
Court of Appeals, the case was transferred from NLRB Region 31 to Region 27. On July 13,
2018, the Regional Director of Region 27 issued a Compliance Specification and notice of 5
hearing. (GC Exh. 1f). On August 2, 2018, Respondent filed its Response to the Compliance
Specification. (GC Exh. 1h.) After receiving the response, General counsel filed a Motion for
Partial Summary Judgement. On February 22, 2019, after the proceedings were transferred back
to the Board, the Respondent filed an amended response to the Compliance Specification. (GC
Exh. 1q.) On September 3, 2019, the Board issued a decision and order granting the General 10
Counsel’s Motion for Partial Summary Judgment. Ampersand Publishing, LLC D/B/A/ Santa
Barbara News-Press and Graphic Communications Brotherhood of Teamsters, 368 NLRB No.
65 (2019). On September 5, 2019, the Regional Director issued an Order scheduling hearing for
the portions of the case that were remanded by the Board in its Order granting the General
Counsel’s Motion for Summary Judgment. On November 15, 2019, the Regional Director issued 15
an Amendment to the Compliance Specification. (GC Exh. 1u.) Respondent failed and or
refused to file any answer to the Amendment to the Specification. During the hearing, General
Counsel moved to further amend the Compliance Specification. These amendments appear in
the record as Amended Appendices D-1, D-2, A-1, A-2, and F. (GC Exh. 2,3, 6, 44, 45, 46, 47,
48.) 20
BACKGROUND
The underlying case was originally tried before Administrative Law Judge Clifford H.
Anderson in 2009, who found that Respondent engaged in conduct that resulted in multiple
violations of Sections 8(a)(5), (3), and 1 of the Act. Judge Anderson’s rulings, findings, and
conclusions were affirmed by the Board and enforced by the court of appeals. Respondent’s 25
violations were so broad and numerous that the Board’s cease and desist portion of its order
contained 17 separate paragraphs delineating the breadth of Respondent’s unlawful conduct.
The Compliance Specification which issued thereafter shed light on the General Counsel’s view
of the degree of harm suffered as a result of Respondent’s unlawful conduct. At issue in this
case are those allegations that remained after the Board granted the General Counsel’s Motion 30
for Partial Summary Judgment.
The Board, in granting General Counsel’s Motion for Partial Summary Judgment,
resolved a number of issues set forth in the Compliance Specification. Specifically the Board
granted Summary Judgment to the following: Sections I, II(a), III(a)-(p), IV(a)-(r), V (a)-I, (l)-35
(m), q, VI, VII, and VII and Appendices B, C, D, and E subject to the limitation that the
Respondent would have the opportunity to litigate the Union’s bargaining costs and expenses,
paragraphs II(b)-(d), (paragraphs V(j)-(k), (n)-(p), and (r)-(w), and the portions of Appendices D-
1 and D-2) that affect the net back pay including interim expenses and interim medical expenses
owed to discriminatees Moran and Mineard. The Board made note of the fact that Respondent 40
did not contest the formula for interest and would be precluded from litigating that issue. The
Board further concluded that adverse tax consequences for Mineard and Moran receiving a
lump-sum back pay award must be defrayed and Respondent would be precluded from arguing
to the contrary. Id. at fn. 11.
JD(SF)-19-20
3
I. THE BARGAINING EXPENSES REMEDY
BACKGROUND
The Board’s finding that Respondent engaged in “willful defiance of its statutory 5
obligations” set in motion the instant proceedings to determine how much the Union ought to be
compensated to effectuate the terms of the Board’s order. The General Counsel in its Amended
Specification alleged that in-person negotiation sessions were held in Santa Barbara California
on November 13 and 14, 2007, February 12, 13, 14, 15, 25, 26, and 27, 2008; April 2 and 3,
2008; May 14 and 15, 2008; June 3 and 4, 2008; July 10 and 11, 2008; September 3 and 4, 2008; 10
October 22 and 23, 2008; January 14 and 15, 2009; February 25 and 26, 2009; and April 21 and
22, 2009. It is the expenses surrounding these sessions that General Counsel alleges Respondent
is obligated to reimburse. The expenses incurred by the union included: (1)fees and expenses
paid for attorney involvement in bargaining, (2) salaries and wages paid to the union’s
bargaining committee, (3) travel expenses, (4) meals expenses, (5) meeting room fees, and (6) 15
other miscellaneous administrative fees and expenses.
Calculations of the Bargaining Expenses
(1) Calculation of expenses related to attorney participation in bargaining20
During bargaining, the union retained the firm of Bush Gottlieb. Attorney Ira L. Gottlieb
personally participated in numerous bargaining sessions and credibly testified regarding the
ordinary billing practices of the firm. In short, he explained that clients received a client number
and the firm assigned a matter number to reflect what activities were being performed such as 25
those that were bargaining related. In this instance, the client number assigned was 1162 and the
bargaining related matters were assigned matter number 16015, which were characterized as
“preparation for bargaining.” (Tr. 200.) Gottlieb also explained his ordinary billing practice was
to record billing in tenth of an hour increments and to make the billing entries into his system
contemporaneously or shortly after the work was performed. His billing rate during this time 30
frame ranged from $185 to $200 per hour. Every month a “pre-bill” was printed out and
reviewed for accuracy. Once it was determined the bill was accurate an invoice that detailed the
work performed and the amounts being billed was prepared. (GC Exh. 46.) The union was
typically billed for travel time, overnight travel, filing fees, and copying expenses. (GC Exh.
300–317.) Ayesha Wright, the union’s director of accounting testified that according to normal 35
business practices, “the invoices are approved by the president and secretary-treasurer and then
forwarded to the accounting department, at which point the accounts payable processor would
enter the invoice into the accounting system by assigning it a vendor ID and a general ledger
account number. Then it would be forwarded to (her) for review. Once (she) approved it, (she)
would return it to the accounts payable processor for payment.” (Tr. 40.) Prior to the compliance 40
hearing, Gottlieb reviewed the business records and invoices sent to the union and provided a list
to the Region 27 Compliance Officer who then used the list to develop and prepare the Second
Amended Appendix A-1. (GC Exh. 46.)
JD(SF)-19-20
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The record reveals that Gottlieb billed, and the union paid for expenses, related to
Gottlieb’s participation in bargaining. It is undisputed that Gottlieb participated in bargaining.
There is not a scintilla of evidence to suggest that the expenses outlined by Gottlieb were not
paid by the union. Nor is there any evidence in the record to establish that the expenses incurred
or paid were in any way unreasonable or unwarranted. I find that the General Counsel has met 5
its burden of establishing the expenses relating to attorney participation in bargaining. The
business records of both Gottlieb and the union relied upon by the General Counsel were
contemporaneously prepared, detailed and are reliable and trustworthy.
Respondent argues that General Counsel is not entitled to recover legal fees and expenses 10
and cites for this proposition. HTH Corp. v. NLRB, 823 F.3d 668 (DC Cir. 2016); Camelot
Terrace v. NLRB, 824 F.3d 1085 (DC Cir. 2016). General counsel argues that it is seeking legal
fees and expenses “only to the extent that they were incurred during the union’s bargaining
efforts” and therefore “a natural component of the union’s economic loss.” (GC Br. at 14.) The
cases cited by Respondent deal with litigation costs not bargaining expenses and do not on their 15
face resolve the question presented in this case. As noted by the General Counsel, the Board
issued a broad order requiring (without any specified exception) that Respondent reimburse the
union for all of its bargaining expenses because the aggravated misconduct of the Respondent
“so infected the core of the bargaining process” that it could not be addressed by the Board’s
traditional remedies. The Board’s conclusion was premised upon the application of its standard 20
which recognizes that given the type of aggravated misconduct, “expenses were warranted to
make the charging party whole for the resources that were wasted because of the unlawful
conduct and to restore the economic strength that is necessary to ensure a return of the status quo
ante.” 358 NLRB at 1418. Clearly, on their face, legal expenses and costs fall under the broad
umbrella of the Board’s order of reimbursement for “costs and expenses incurred in collective 25
bargaining.” Excluding legal expenses and costs would confer upon the Respondent wrongdoer a
windfall at the expense of the party who was harmed and would fail to restore the economic
strength the union lost as a result of Respondent’s unlawful actions. In as much as the Board in
reaching beyond its traditional remedies did not carve out any exception in its order which would
preclude reimbursement for legal costs and expenses related to bargaining, I am without 30
authority to countermand the Board’s broad order and its reasoned application of the law to the
facts presented. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941) (holding that “the
relation of remedy to policy is peculiarly a matter for administrative competence”).
Respondent, in the alternative, argues that certain legal expenses should be excluded 35
because, upon questioning, Gottlieb was unable to recall the specifics of phone calls made more
than a decade ago and secondly because Gottlieb refused to reveal attorney client
communications regarding his conversations. (R. Br. 4–5.) Respondent cites no Board or other
authority which would even tend to suggest that in order to recover legal costs and expenses, the
union would have to waive attorney client privilege and divulge confidential communications. 40
Nor, as Respondent suggests, is an attorney required to retain phone billing records in such a
manner as would reveal attorney client privileged communications. Such an extreme legal
proposition would turn the whole notion of privilege on its head. The Board has repeatedly
reaffirmed protections of the attorney client privilege in the context of collective bargaining.
Patrick Cudahy, Inc., 288 NLRB 968, 971 (1988). As noted by General Counsel, requiring 45
disclosure of privilege would in fact inflict further harm upon the union as it is still in
negotiations with Respondent. (GC Br. at 30.)
JD(SF)-19-20
5
Nor am I persuaded, as Respondent argues, that because Gottlieb cannot remember
specifics of telephone calls from approximately 12 years in the past that somehow Respondent,
the wrongdoer should reap the benefit of these ambiguities. The evidence establishes that the
contemporaneously prepared records related to legal costs and expenses were separated by 5
matter number which distinguished bargaining expenses. There was no showing that any of the
billing entries were made in bad faith. Like other expenses in this case, it was entirely
unforeseeable that these attorney expenses would be reimbursed therefore there is no reason to
suspect and/or conclude that the entries were nothing more than an effort to honestly bill for the
work performed.10
To the extent that there are any ambiguities that arise because of the age of the case
and/or the inability of Gottlieb to recollect any specific underlying meeting or item, those
ambiguities must be resolved in favor of the injured party and against the wrongdoer who in this
case was engaged in “willful defiance of its statutory obligations.” Lou’s Transport Inc., 366 15
NLRB No. 140 (2018). Accordingly, the union is entitled to reimbursement for this category of
bargaining expenses in the amount of $41,400 plus interest. (GC Exh. 46 p. 2.)
(2) Other costs incurred by the Union
20
The costs the Union expended for are set forth in detailed contemporaneous records that
were kept by the Union. The ordinary processing of these expenses was done in a manner
similar to any business. Caruso used a software program to complete weekly expense reports.
The software separated the expenses into specified categories and aggregated the information
into a report. After finalizing all of the entries, a report was generated which set forth in detail 25
all of the claimed expenses. Caruso then submitted the reports with accompanying receipts to
the union’s secretary treasurer who reviewed the information then forwarded it to the accounting
department for further review. After the accounting department reviewed the claimed expenses
and receipts, they were sent to the accounts payable department for final payment. The general
policy was to pay only expenses that were documented with a receipt with the exception of items 30
where a receipt may not be available such as tips, or coin laundry expenses. (Tr. 97.) The
normal business practice for processing the expense reports for payment included the reviewing
official date stamping, signing, and/or initialing the documents when the pertinent review was
completed.
35
There is nothing in the record to suggest that any of the expenses paid for travel, bag fees,
hotels fees, hotel room rental, rental cars, taxis, gasoline, parking, meals, tips, telephone, and
internet usage were in any way out of the ordinary. On the contrary, looking at the totality of the
evidence, all of the claimed expenses reflect those very type of expenses which would be
required to enable the union to accomplish its obligations to its members. See HTH Corp., 361 40
NLRB 709, 713 (2014), enfd in part 823 F.3d 668 (D.C. Cir. 2016). I find that the General
Counsel has met its burden of establishing that these expenses were incurred and paid by the
union. I also concur with the General Counsel’s characterization that the records present a “near
exact accounting of the union’s costs and expenses.” (GC Br. at 36.) Accordingly, the union is
entitled to reimbursement for these bargaining expenses the amounts of which are incorporated 45
JD(SF)-19-20
6
in the costs and expense total set forth below.1 2(GC Exh. 47, see Second Amended Appendix A-
2, D-2, GC Exhs. 319, 320, 321, 322, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334.)
(3) Spoilation of evidence issues
5
At the trial of this matter, Ayesha Wright, the director of accounting testified extensively
regarding the ordinary processing of payments. In her testimony, she testified that when the
receipts were presented to the accounts payable processor they would review the receipts, place a
check mark, and process the payments. (Tr. 115, 116.) She also testified that while the matter
was pending some documents were destroyed. Regarding the document destruction she testified 10
as follows:
Q Who made the decision to get rid of those?
A So for the things that we made copies of, I put all of those items
that I pulled, I put them in a box. I kept those boxes for -- for -- until I needed 15
space. I had three boxes of things and there was one box that was blocking a
drawer, and I needed - I needed space, so I got rid of it. I hadn't heard anything
about Santa Barbara. I wasn't told to further keep these reports, so I got rid of that
box.
Q So when you say you got rid of a box of Santa Barbara News Press 20
records, what did you do with that box?
A I sent it for shredding. (Tr. 117.)
She further elaborated on the records destruction in her subsequent testimony as follows:
1 The consolidated tally of the weekly miscellaneous costs and expenses owed is summarized as
follows:
Flights $5,737.38
Rental Car $1,925.68
Hotel $9,934.48
Parking $64.00
Office Supplies $602.18
Meals $4,529.80
Tips $95.50
Telephone $337.49
Internet Fees $273.00
Taxi $539.63
Gas $18.54
Meeting Room Fees $2,680.00
Baggage fees $190.00
Total $26,927.68
2 For a weekly tally of the costs and expenses see GC Brief pp. 37–53.
JD(SF)-19-20
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Q Okay. Any other boxes of Santa Barbara News Press records that
you sent for shredding?
A The two remaining boxes I still have. But in those boxes, the
expense reports, are only the cash items. If you look on the same exhibit, on 324,
in the - let's see, the third column from the - from the right is cash spent. So we 5
had the expenses for those items, but anything that was charged to the American
Express card that's filed in a separate area and that has been destroyed.
Q Okay. So that - and what period of time was covered by those
destroyed American Express documents?
A So anything that was after the eight year period.10
Q All of the American Express?
A So in 2000 -
Q All of the American Express records from eight years or older are
gone?
A Correct. 15
Q Okay. And did anybody advise you before you shredded those
documents that there was ongoing litigation with the Santa Barbara News Press at
the time you chose to shred those records?
A No.
Q Did anybody advise you whether or not you should shred those 20
records?
A No, because it's our standard process.
Q Did anybody ever advise you that you should halt the shredding of
records relating to Santa Barbara News Press?
A No. 25
Q Okay. And just so we're clear, that box contained expense records
relating to Santa Barbara News Press, right?
A Yes.
Q Including the -
A That contained -30
Q backup for -
A the American Express - it did not contain the American Express
receipts.
Q It did or did not?
A It did not. 35
Q Okay. So what did that -
A It had other - it had other expenses, but not the American Express
receipts.
Q Okay. What other expenses were in that box that you shredded?
A The Bush Gottlieb expenses. 40
Q Anything else?
A Not that I can recall.
Q Okay. Do you know, one way or the other, what all was in it, other
than the Bush Gottlieb expenses?
A No. 45
Q Okay. So just so we're clear, that box contained records relating to
expenses that the Union is claiming today to seek reimbursement for, correct?
JD(SF)-19-20
8
A Correct.
Q And they're gone, irretrievably gone, no copies anywhere, right?
A Correct. All the originals are gone; the copies are here in the
exhibit.
Q Except where they're not, right? Like in this exhibit. 5
A Well, the - in this exhibit, the American receipts - the American
Express receipts were never in the box. They were not retained. They were
destroyed on schedule.
Q Okay. So but - here's my point. There is a volume of records
relating to Santa Barbara News Press during the pendency of the litigation with 10
the Santa Barbara News Press relating to the expenses that you seek to recover in
this hearing that were destroyed voluntarily, correct?
A Correct. (Tr. 117-120.)
Wright provided further clarification regarding the policy regarding document destruction 15
as it related to American Express receipts as follows:
Q So what is the significance of it being American Express that it's not here?
A The American Express receipts are filed with the American Express bills
in the American Express vendor folder. That American Express vendor folder 20
was never set aside to not be shredded.
Q Okay. So in addition to shredding the box relating to the Santa Barbara
News Press, you also shredded all of the American Express expense records that
are eight years or older, right?
A Correct. 25
Q Okay. And that's why we don't have backup here, right?
A Correct.
Q Anything else related to Santa Barbara News Press that you chose to
shred?
A I didn't choose to shred anything specifically for Santa Barbara. I shred 30
things that were over the eight years in compliance with the policy.
Q Okay. So -
A The only - the only -
Q Go ahead.
A Thank you. The only thing of Santa Barbara that was shred was that one 35
box that was - that I needed to make the room for.
Q And the American Express records also included Santa Barbara News
Press information, correct?
A Correct. It was the American Express records for the entire organization,
every entity. 40
Q Okay.
A And every individual, every call center, yes.
Q So who made the decision to shred the American Express records?
A Again, that's our standard procedure after the eight years to shred the - all
of our vendor files. 45
JD(SF)-19-20
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Respondent argues that because the union had in place a records destruction policy that
shredded American Express records that were 8 years or older and because Ms. Wright shredded
a box of receipts in order to make room in her crowded office space “all of the expenses should
be precluded” but cites no legal authority for its position. (R. Br. at 5.)
5
I disagree with Respondent’s contentions in this regard. In the first instance, there is no
evidence that any document was shredded as a result of any fraud, bad faith, or desire to suppress
the truth. The documents were destroyed as part of a normal document destruction policy, and in
the case of one box of receipts, to clear clutter from Wright’s work space. Secondly, ample
evidence exists in the record without the documents that were destroyed to meet the evidentiary 10
threshold of proof required to establish the General Counsel’s burden for those expenses it has
claimed regardless of the lack of some portion of the original receipts. The billing documents
presented to the accounting department and accounts payable at the time they were submitted
went through a review process which included looking contemporaneously at receipts before
making any payments. (Tr. 115.) At the time of the processing of the payments, the 15
reimbursement of these expenses by the Respondent was not reasonably foreseeable and there is
no reason to suspect that the expenses would not have been scrutinized in the ordinary course of
business. Stated differently, I find the documents which still exist and form the basis for General
Counsel’s current calculations and remedy are both reliable and trustworthy. Respondent made
no showing of prejudice occasioned by the destruction of the records. If some portion of 20
expense receipts were not otherwise accounted for in General Counsel’s evidentiary proof, in all
likelihood, the practical effect of this is that of a windfall to Respondent as General Counsel was
deprived of documents which may have established that Respondent owed even more than which
General counsel was already seeking as a remedy and for which it had some form of
documentary proof. Lastly, to the extent that there exists any uncertainty more than a decade 25
later in the existing trail of expenses, those uncertainties are more appropriately resolved in favor
of the injured party and against the wrongdoer. Webco Industries, Inc., 340 NLRB 10 (2003).
(4) Reimbursement for salaries and wages of representatives
30
Caruso, the union conference staff representative, was the lead negotiator involved in the
negotiations with Respondent. It is undisputed that he was involved in the negotiations from
November of 2007 —of 2009. His office was located in South Saint Paul, Minnesota.
He was employed by the union and paid a salary, along with expenses related to his 35
assignments and bargaining. Although sometimes he provided an “activity report,” he was a
salaried employee and was not required to keep any hourly records of his time. During the time
frame from November 2007—April 2009, he didn’t keep an accounting of time spent preparing
proposals, responding to proposals, sending or responding to correspondence and or other
matters related to bargaining. In fact, Caruso testified the he had no way to go back and quantify 40
how much time he spent on these activities. (Tr. 449)
(a) General Counsel’s estimate of amounts owed for Caruso’s work.
In view of the lack of documented hourly evidence of wages the General Counsel set 45
forth an estimate of the losses attributed to Caruso’s work during bargaining. The estimate was
based upon his salary rate at the time multiplied by the approximate number of days he spent in
JD(SF)-19-20
10
bargaining sessions, traveling or traveling and meeting with the committee and unit employees.
(GC Br. at 31, GC Exh. 336.) The calculation converted his biweekly salary into a daily rate
then accounted for the approximate number of days that Caruso worked on the bargaining related
matters by cross referencing Caruso’s contemporaneous weekly expense reports. (GC Exh. 335,
2nd Appendix A-2.) The General Counsel instead of seeking reimbursement for all of the time 5
Caruso spent instead sought only reimbursement for the periods of in person bargaining sessions,
two meetings with the bargaining committee and unit members and travel days. (GC Br. at 32.)
(b) Expense related to other bargaining committee members
10
Caruso testified that the bargaining committee consisted of a total of five regular
members, an alternate and the attorney Gottlieb. The Union compensated employees for
attending bargaining sessions. The compensation paid was the equivalent of 8 hours of missed
work at their hourly wage or in some instances 4 hours at their hourly wage if the individual left
a bargaining session early. Caruso kept contemporaneous records of the committee-members 15
hours wage rates and amount of pay owed them. (GC Exh. 9.) The union, after it received the
information, paid the employees after deducting appropriate taxes and paid the appropriate FICA
contributions for the employees.
Respondent asserts that because Caruso’s salary was not directly tied to his work on 20
Santa Barbara News Press any amounts which reimburse Caruso for his work while engaged in
bargaining activities would constitute a “windfall.” (R. Br. at 2.) Respondent also essentially
asserts that because “salary” doesn’t fall within its definition of “expenses,” recovery should be
precluded. Respondent cites no authority for this proposition, and I disagree with its conclusion.
As noted above, the Board has clearly recognized that “reasonable salaries, travel expenses, and 25
per-diems are included in its definition of “bargaining expenses.” HTH Corp., 361 NLRB 709,
713 (2014). In the evidentiary record, there is no dispute that Caruso was directly involved in
bargaining during the time frame identified by General Counsel. There is also no dispute that
Caruso was involved in bargaining during the dates for which General Counsel seeks
reimbursement. I find General Counsel’s painstaking efforts to reconstruct what amounts to a 30
conservative estimate is both reasonable, and to the extent that is fairly possible, directly
correlated to bargaining expenses and not some arbitrary approximation. It is Respondent who
seeks a “windfall” by simply ignoring the undisputed facts that Caruso without question
expended union time and resources while engaged in bargaining and the union is entitled to
reimbursement for those expenses. Respondent also asserts that it should be relieved of paying 35
expenses because the Union could have another person serve as lead negotiator. Again,
Respondent cites no Board authority which stands for the proposition that as a requirement to
recover expenses, the union must choose only lead negotiators who live in the local commuting
area.
40
I find that the General Counsel has met its burden of establishing that expenses were
incurred and paid by the union related to Caruso’s and the other bargaining committee members
union activities including the FICA contributions paid on behalf of committee members.
Accordingly, I find the union is entitled to reimbursement in the amount of $69,640 plus interest
for these bargaining expenses. Thus, the total amounts owed for all categories of bargaining 45
expenses is $111,040 plus interest. (GC Exh. 46–48.) I also find that Respondent failed to meet
its burden of establishing any affirmative defense to the claimed bargaining expenses.
JD(SF)-19-20
11
II. BACK PAY OWED MORAN AND MINEARD
The Board, in its September 3, 2019, Order granted summary judgment regarding much
of the underlying back pay issues regarding the employees Denis Moran and Richard Mineard.
In general, the Board’s order agreed with the General Counsel’s measure of backpay due, the 5
backpay period, the total amounts of gross back pay, the amounts and calculations of pay raises,
and amounts paid biweekly by Moran and Mineard for health and dental insurance. Ampersand,
368 NLRB No. 65 p. 3, fn. 11 (Granting Summary Judgment as to Secs. V(a)-(i), (l)-(m),
Appendices D-1 and D-2 subject to specified limitations).3 The issues that remained were those
that relate to net back pay and interim earnings and medical expenses (identified in the Board’s 10
order as pars. V(j)-(k), (n)-(p), and (r)-(w) and the portions of Appendices D-1 and D-2 that
affect net backpay, including interim earnings and interim medical expenses). Id.
Since General Counsel has established the amount of gross backpay due the
discriminatees, the Respondent then has the burden of establishing affirmative defenses to limit15
its liability. Grosvenor Resort, 350 NLRB 1197, 1198 (2007). Hacienda Hotel & Casino, 279
NLRB 601, 603 (1986). This burden cannot be satisfied, however, by conclusionary or self-
serving statements. W. C. Nabors, 134 NLRB 1078, 1088 (1961), enfd. as modified on other
grounds 323 F.2d 686 (5th Cir. 1963), cert. denied 376 U.S. 911 (1964). A discriminatee is
entitled to backpay if he/she makes a “reasonably diligent effort to obtain substantially 20
equivalent employment.” Moran Printing, 330 NLRB 376 (1999). In seeking to mitigate loss of
income, a backpay claimant is held only to reasonable exertions, not the highest standard for
diligence. Jackson Hospital Corp., 352 NLRB 194 (2009), enfd. 557 F.3d 301 (6th Cir. 2009).
The principle of mitigation does not require success; it only requires an honest, good-faith effort.
Fabi Fashions, 291 NLRB 586, 587 (1988); NLRB v. Arduni Mfg. Co., 394 F.2d 420, 422–423 25
(1st Cir. 1968); NLRB v. Madison, 472 F.2d 1307, 1319 (D.C. Cir. 1972). Registering with a
state employment office is prima facie evidence of a reasonable search for employment. Church
Homes Inc., 349 NLRB 829 (2007). The sufficiency of a discriminatee’s efforts to mitigate
backpay are determined with respect to the backpay period as a whole and not based on isolated
portions of the backpay period. Electrical Workers IBEW Local 3 (Fischbach & Moore), 315 30
NLRB 1266 (1995). When a discriminatee voluntarily quits interim employment the burden
shifts to the General Counsel to show that the decision to quit was reasonable. Minette Mills,
Inc., 316 NLRB 1009 (1995). It is well established that any doubt or uncertainty in the evidence
must be resolved in favor of the innocent employee claimants and not the respondent wrongdoer.
NLRB v. NHE/Freeway. Inc., 545 F.2d 592, 594 (7th Cir. 1976); NLRB v. Miami Coca-Cola 35
Bottling Co., 360 F.2d 569, 572–573 (5th Cir. 1966).
(a) Interim Earnings
The General Counsel in Appendices D-1 and D-2 of its specification set forth its 40
allocation of interim earnings on a quarterly basis for Moran and Mineard. The calculation
subtracted interim earnings from gross earnings to arrive at a net backpay figure. (GC Exh. 2
and 3.) Respondent does not in general contest the subtraction of interim earnings from gross
3 At the hearing Respondent affirmed that it was not challenging the gross back pay amounts. (Tr.
787.)
JD(SF)-19-20
12
back pay as set forth in the Specification. Compliance Officer Bailey was subjected to vigorous
and extensive cross examination regarding the methods that she used to calculate interim
earnings. Her testimony revealed that the interim earnings were allocated on a quarterly basis.
(GC Exhs. 2, 3.) In making the calculations, she testified that she used gross amounts from
earnings records and divided it by the approximate number of weeks worked for that particular 5
year and then allocated the weeks to the various quarters to arrive at the total for the quarter. (Tr.
793, 794.) The methodology described by Bailey was consistent with long established Board
practice and I find the methodology used and the calculations arrived at to be reasonable. F.W.
Woolworth Co., 90 NLRB 289 (1950).
10
(i) Back Pay and Mitigation-Moran
The unlawful actions of Respondent inflicted severe economic harm upon both Moran
and Mineard who were sent scurrying in an attempt to avoid financial ruin. Moran was
discharged from his position of full-time sportswriter and page designer August 31, 2008. Upon 15
being terminated, he registered with the state unemployment agency and was granted benefits
which required as a condition of benefits that he seek employment. (GC Exh. 14.) Moran also
registered on various job recruiting websites as well as the State Employment Department “Cal
Jobs.” His work search was extensive and included areas outside the local commuting area and
the state. In March of 2009, he landed a job with a publisher of reference and academic books. 20
He began his employment as a full-time writer editor at the rate of $17 per hour but the job had
nothing to do with sports writing. The job originated in California but in 2013, he relocated to
Colorado. By the fall of 2013, Moran began experiencing increased pressure at work with
increased workload precipitated by fewer people being available to do the work. He was having
difficulty meeting production requirements with the new workload and was also increasingly 25
pressured by the financial strain occasioned by the prospect of rising Colorado housing costs. He
decided to voluntarily leave this employment and return to his hometown of Moline, Illinois,
where he had a family support system intact and had job contacts that he could access. (Tr. 597.)
His return to Moline in May 2014, improved his financial condition as he no longer paid rent
because he lived with his sister and his living expenses were significantly reduced.30
After searching and inquiring in the Moline area, Moran landed a job doing freelance
work with the Moline Dispatch while simultaneously applying for California state jobs. (Tr.
605.) In January 2015, he obtained a part-time job with the North Scott Press where he worked
while continuing to perform freelance work for the Moline Dispatch. In this job, he commuted 35
to Eldridge Iowa. His work for the North Scott Press ended and was substituted with freelance
work for Augustana College while his work for the Moline Dispatch continued until eventually,
he was hired full-time on September 15, 2015, as a copy editor and page designer. He continued
working in this job until he was reinstated with Respondent in June of 2017. (Tr. 624.)
40
The total work history of Moran paints a clear picture of him making every reasonable
effort to mitigate his damages. The undisputed proof of this lies is in his unrebutted credible
testimony as well as his work record which is substantiated by the documented record of interim
earnings, his registration with the unemployment agency during periods when he was not
employed and his willingness to move thousands of miles outside his commuting area in pursuit 45
of gainful employment.
JD(SF)-19-20
13
Respondent’s conclusory assertions that Moran failed to mitigate his damages is without
factual or legal support. Respondent failed in all respects to meet its burden. It failed to
factually show that there was any failure on Moran’s part to mitigate. And, applying applicable
Board standards, Respondent failed to establish that there were substantially equivalent jobs
within the relevant geographic area that Moran failed to apply for. International Brotherhood of 5
Teamsters Local 25, 366 NLRB No. 99 (2018).
Respondent argues that Moran’s backpay should end at the time he voluntarily left his
employment in Colorado. I disagree. The increased work demands, uncertain stability of his
employment, financial hardship, and lack of familial support all establish reasonable grounds for 10
Moran’s decision to relocate to pursue other employment. I find that the General Counsel met its
burden of showing that Moran’s decision to quit was entirely reasonable under the circumstances
and in large part motivated by the financial hardship which Respondent itself inflicted upon him.
Ryder Systems, 302 NLRB 609 (1991), Lucky Cab, 366 No. 56 (2018).45 The evidence
4 Respondent argues that it should be excused of its responsibility to make Moran (and Mineard)
whole for his losses because neither “maintained any records or evidence of their search for a new
position.” I disagree. The Board has held that the General Counsel may rely soley on the testimony of the
discriminatees. St. George Warehouse, 351 NLRB 961 (2007). The sworn testimony of Moran (and
Mineard) regarding their efforts to mitigate is undisputed in the record. Both testified about their search
for work and after observing them testify was persuaded that they were both truthful in their testimony
and recollection of their efforts to find other employment. I directly observed both testify and although at
times they expressed uncertainty due to the lapse of time involved, there was nothing that I directly
observed in their demeanor or the manner in which each testified which would suggest that they were not
being truthful. Discriminatees are only required to make an honest good faith effort to seek other
employment and I find that the efforts of both Moran and Mineard were honest and in good faith.
International Brotherhood of Electrical Workers, Local Union, 112 992 F.2d. 990 (9th Cir. 1993). There
is nothing in the record to establish that the efforts of Moran (or Mineard) were anything other than
reasonable given their respective ages, background, and work experience. Jackson Hospital Corp., 352
NLRB 194 (2008), opinion supplemented 354 NLRB 329 (2009). As noted above, the record is replete
with evidence that substantiates their testimony including an undisputed earnings record which establishes
not only attempts to mitigate but successful attempts to mitigate which Respondent enjoys the benefit of
through the reduction of amounts it owes the discriminatees.
5 Respondent, in its answer, asserted that it should be excused from paying for any losses incurred by
the discriminatees because each should have “obtained a job that provided” benefits (including health
insurance), vacation time (and moving expenses for Moran), as part of their mitigation efforts.
Respondent’s view is that discriminatees, after being unlawfully discharged, were required to find
employment that would excuse Respondent from paying any amounts for the losses they incurred and
since they didn’t encounter such all-encompassing employment, Respondent should therefore be excused
from all back pay liability. Respondent’s assertions defy common sense and are contrary to long
established Board law which requires only good-faith effort and not any particular level of success. Fabi
Fashions, 291 NLRB 586, 587 (1988); NLRB v. Arduni Mfg. Co., 394 F.2d 420, 422–423 (1st Cir. 1968);
NLRB v. Madison, 472 F.2d 1307, 1319 (D.C. Cir. 1972). It is not enough that Respondent thinks that
employees should have been able to secure some employment that it surmises is available. Laidlaw Corp.
207 NLRB 5912, 594 (1973). Respondent’s burden was to establish that “substantially equivalent” jobs
existed within the relevant geographic area and it retained the ultimate burden of persuasion on the issue
of the alleged failure to mitigate. George Warehouse, 351 NLRB 961 (2007). A burden Respondent
without question failed to meet given the overwhelming evidence of record that shows reasonable
diligence in seeking alternate employment on the part of both discriminatees.
JD(SF)-19-20
14
established, and I find that Moran is owed backpay in the amount of $150,187. (GC Exh. 2,3.
44, Appendix D-1.)
(ii) Moran’s Recoverable Expenses
5
General Counsel also established that as a consequence of his termination, Moran
incurred recoverable expenses. These expenses included travel expenses, meals, mileage, health
insurance, and moving expenses to accept reinstatement with Respondent. Respondent does not
contest the validity of General Counsel’s calculations regarding expenses. Assuming it had, the
General Counsel met its burden of establishing that expenses incurred by Moran were reasonably 10
calculated and substantiated and there is no evidence in the record to suggest otherwise. Best
Glass Co., 280 NLRB 1365 (1986). General Counsel carefully, and with as much precision as
can be expected, calculated, and documented each expense and the justification for each in the
record. The evidence of amounts owed and the appropriate calculation is unrebutted in the
record. (Appendix D-1). Thus, I find that Moran is owed $6878 for the expenses he incurred. 15
(GC Exh. 44.)
(iii) Total Amounts owed Moran
The Total amount of backpay and expenses owed Moran equals $157,065 plus excess 20
taxes and interest accrued to the date of payment as prescribed in New Horizons, 283 NLRB
1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010):
(iv) Back Pay and Mitigation- Mineard
25
Mineard was employed by Respondent as a columnist and radio broadcaster from April
2007-January 2009 and worked from between 30–40 hours a week. At the time of his layoff, he
was nearly 60 years old. (Tr. 362.) Almost immediately upon being discharged, Mineard began
his mitigation efforts and was able to secure a position at the Montecito Journal. At the behest of
the Montecito Journal, his employment status was that of an independent contractor on a 30
freelance basis. (Tr. 340, 347.) Although his work at the Montecito Journal didn’t require any
broadcast radio work it involved a nearly identical weekly column covering similar subject
matter. Like his work with Respondent, he was not required to keep track of his exact hours of
work and both jobs required travel and attending the events about which he was writing such as
charity lunches, galas, the theatre, ballet, opera, and choral society. (Tr. 327.) In addition to his 35
work at the Montecito Journal, Mineard took on other freelance work to supplement his income
providing studio commentary for the royal wedding of Prince William and Kate Duchess of
Cambridge as well as coverage for the royal couple’s trip to the Santa Barbara Polo Club. (Tr.
336–337.)
40
Mineard also applied for other jobs during the period of his layoff. In his search for other
jobs, he looked for jobs in public relations and journalism and looked weekly at job listings in
newspapers, college campus listings, and on the internet. (GC Exh. 26.) (Tr. 352, 355.) His
efforts in this regard were unsuccessful and he continued without interruption in the position he
held at Montecito Journal. At some point in time (a date which he was uncertain about), he 45
began receiving a SAG AFTRA pension and social security benefits and stopped looking for
other work besides the job he held.
JD(SF)-19-20
15
Mineard’s successful efforts at mitigation are documented in the evidentiary record as
interim earnings and began very soon after his discharge. Without question he met any
requirement to mitigate his damages. The actual job Mineard performed at the Montecito
Journal was nearly identical to the position he held with Respondent and falls easily into the
Board’s standard of being “substantially equivalent,” Fergusun Electric Co., 330 NLRB 514 5
(2000), and would have been suitable for any person of his background skill and advanced age.
NLRB v. Madison Courier Inc., 472 F.2d 1307 (D.C. Cir. 1972).
Respondent asserts that back pay liability should cease since at some point Mineard
stopped looking for other work. Respondent’s argument is misplaced as the Board has held that 10
an employee who accepts appropriate employment even if at a lower pay rate is not required to
search for a better job. Tilden Arms Mgmt. Co., 307 NLRB 13 (1992); Sioux Falls Stock Yards,
236 NRLD 543 (1978). Respondent’s contentions would also otherwise fail because as
previously noted, it failed in its burden to establish that “substantially equivalent” jobs existed
within the relevant geographic area and the ultimate burden of persuasion that Mineard failed to 15
use reasonable diligence in seeking other employment. George Warehouse, 351 NLRB 961
(2007).
(v) Mineard’s Expenses
20
The General Counsel established that Mineard obtained health insurance and as a result
incurred addition expenses for which Respondent is liable. This evidence is undisputed in the
record. The amounts General Counsel seeks to recover reflected Mineard’s out of pocket costs
amounting to a total of $2949. (GC Exh. 18, D-2.) General Counsel met its burden of
establishing that expenses incurred by Mineard’s were reasonably calculated and substantiated 25
and there is no evidence on the record to suggest otherwise. Best Glass Co., 280 NLRB 1365
(1986).
(vi) Total Amount Owed Mineard
30
The Total amount of backpay and expenses owed Mineard equals $550,016 plus excess taxes
and interest accrued to the date of payment as prescribed in New Horizons, 283 NLRB 1173
(1987), and Kentucky River Medical Center, 356 NLRB 6 (2010).
III. THE MERIT PAY REMEDY35
The Board’s Decision and Order of September 3, 2019, granted specific remedies related
to Merit Pay. These amounts are set forth in Appendix B-32 (GC Exh. 1(f) p. 269). The
amounts owed to employees however is not fixed by the amounts set forth as alleged by the
Specification because the damages continue to accrue until Respondent takes action to restore 40
employees to the correct wage rate. Accordingly, Respondent shall be required to pay the
amounts listed in Appendix B-32, $221,596. plus interest along with any other amounts that
become due as a result of Respondent’s failure to restore the employee wage rates including,
backpay, excess tax, and interest from the time of the issuance of the Specification until
Respondent fully complies with the Board’s order regarding this specific remedy.45
JD(SF)-19-20
16
IV. REMEDY FOR THE USE OF NON-UNIT EMPLOYEES
The Board’s Decision and Order of September 3, 2019, granted specific remedies for the
use of nonunit employees. 386 NLRB 3. The order specifically granted the appendices that
related to the calculation of these amounts including Appendix C-7. (GC Exh. 1(f) p. 433.) At 5
the time of the trial the General Counsel’s calculation amounted to a total amount due and owing
of $936,005. (GC Exh. 48.) In conformance with the Board’s Order, Respondent is liable for
the amounts listed plus interest accrued to the date of payment.
V. EXCESS TAX REMEDY10
The Board’s Decision and Order of September 3, 2019, granted specific remedies related
to excess tax liability of Respondent, and specifically Appendix E. (GC Exh. 1 (f)pp. 462–467.)
Respondent is therefore also liable for these remedies that at the time of the trial were calculated
to be $186,178 plus interest.615
VI. CONCLUSION
On these findings of fact and conclusions of law and on the entire record I issue the
following recommended20
SUPPLEMENTAL ORDER
It is hereby ORDERED that Respondent Ampersand Publishing, LLC d/b/a Santa
Barbara News-Press, and its officers, agents, successors and assigns, satisfy the long standing 25
obligations incurred as a result of its willful defiance of its statutory obligations which have for
more than a decade gone unremedied as follows:
(1) Make Richard Mineard whole by paying him back pay in the amount of $547,067
plus $2949 to compensate him for expenses plus excess taxes and interest accrued to 30
the date of payment.
(2) Make Dennis Moran whole by paying him back pay in the amount of $150,187
plus $6878 to compensate him for expenses plus excess taxes and interest accrued to
the date of payment. 35
(3) Reimburse the Union $111,040 for costs and expenses incurred in collective
bargaining plus interest accrued to the date of payment.
(4) Make Unit Employees whole for merit pay losses by paying a total of $221,59640
plus excess taxes and interest accrued to the date of payment distributed to the as
referenced in the table below:
6 It is important to note that although this calculation included the adverse tax consequences for
Moran and Mineard it does not include amounts that are continuing to accrue.
JD(SF)-19-20
17
(See GC Exh. 1(f) p. 269.)
(5) Make unit employees whole for the use of nonunit employees by paying a total of 5
$936,005 plus interest accrued to the date of payment distributed as follows:
1 13rewer
2jBucher
3lCheng
41Davison
51DeWalt
6 Dorfman
7 Dvorak
8 Evans
9 Harvey
10 Hobbs
11 Hopkins
12 Hughes
13 Kuznia
14Logan
15;McMahon
161McManigal
17 Milton
18 Moran
Joe
Charles
James
Anna
Thomas
Blake
John
Melissa
Victoria
Dawn
Bethany
Kama
Rob
Jim
Marilyn
'Bamey
Lara
10,939
504
22,270
51
19,874
1,397
318
60
19,066
62
251
6,824
63
984
21,573
63
612
19 Moriatis
Dennis 20,016
Mike 833
20 Orsua Leana 328
21 Pauls Kathy 174
22 Schultz Kathy 6,234
23 Schultz Tom 88
24 Smolensky Matthew
]
20,514
25 Tonneson Steve 32,135
26 Trenchard Christopher 244
27 Waggener Sherrie
I
16,528
28 Wallace Nora t 18,471
ry 29 Ward 1Ma 547
30 Weinstein 'Amy 57
31 Zate !Maria 519 ;
JD(SF)-19-20
18
(See GC Exh. 1(f) pg.433, and GC Exh. 48.)
(6) Compensate Moran, Mineard and other unit employees for adverse tax 5
consequences in the amount of $186,178 as more fully set forth in General Counsel
Exhibit 1(f) pp. 462–67 subject to any necessary recalculations required by the
Regional Director for those employees with back pay that continues to accrue.
1 Bateman ..___________Dennis 38 809._
2 Brewer Joe 43,223
_iCharles
.[' __44,453.
_ . ____ ...._
3 Bucher 2,441
4 i Chang_ 'James
5 Craig Offray__ _l__r__ 32,510
6:DeWalt 1Thomas ____ ' 1 39,335
71Doriman Blake _I .; 22,772.____________ .__ • _________
81Dvorak__ John______________ .__F____,.____19,120
WEIlawn John 1 ) 47,895
10,favors _. Kimbarly___ ____1 _____ 2,202_
11 IGuzik Hannah 1.588
121Harvey_ Nictoria "I . 46,128
-r 4—
i L 16.036131 Hopkins Bethany__
14 !Hughes Kama M
151JohnsonI Robert
j 27.084
1,362
I161Malone Steve . 1- 48,338
171Mason _ _____I Day, ' 1 303
181McMahon _.4 Marilyn I 1 46,568
20! Nikon
19_1McMorrls 'Bill
Lara
1 I. ..___JIAl___
__. ____•__• 4 5,609
21. Mineards _____,4 !i9hard _ ____L_ 63,990
?2 Moran jDennts 39,093
23 Moriatis 29,347 'Mike _
24 ' Newton _1,066 _Fran k
25 O'Rourke !Tim 1 4,031
, '
26 ; Pacheco •A990._________.4...______.9_4_L
27 ' Patton Mark 1 i 52,118 ,
28i Pauls Kathy ______ .. j ... 20,127_
291Pavlovic Alex : 1,066
NRIe ddir9 ____ cliq_______. / __ 7,018
31i Schultz _M14 tl_______„_1 _41,503
321Sinovic _Steve
1 1,303-- 4 4
33 ISmolensky
-Matthew , 4020254
341Tonneson ISteve jr----- 40,256__•..__________
1—
35IWaggener Sherria___1 .. __3Z 14q_
36iWallace Nora 46,033
37;Ward________ Mary _________ _i______152150
38 Warmer .... _Carol 1______ 1,628 :
-1 -1
39 i Womlpor • Marei 44.. _____ 1,393 4
401 Zate Maria I 2,822
JD(SF)-19-20
19
Dated, Washington, D.C., September 4, 2020.
5
___________________
Dickie Montemayor
Administrative Law Judge10