Anna Erika Home for Adults

National Labor Relations Board - Board Decisions

Apr 16, 1992

307 N.L.R.B. 133 (N.L.R.B. 1992)

133
307 NLRB No. 23
ANNA ERIKA HOME FOR ADULTS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent argues, inter alia, in its exceptions that Eugene
Wimmer and Steven Taylor should be denied backpay because they
failed adequately to document their claims regarding interim employ-
ment and earnings. We find no support in the record for concluding
that either Wimmer or Taylor willfully concealed interim earnings
during the backpay period and we reject the Respondent’s conten-
tions.
Joseph F. Sirangelo, Vincent Sirangelo, Phillip
Emma, Angelo Servideo and Joseph Cillo d/b/a
Anna Erika Home for Adults and Local 1115,
Nursing Home and Hospital Employees Union.
Case 29–CA–13914
April 16, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 16, 1991, Administrative Law Judge
Raymond P. Green issued the attached supplemental
decision. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and brief and has decided to af-
firm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Joseph F. Sirangelo, Vin-
cent Sirangelo, Phillip Emma, Angelo Servideo and Jo-
seph Cillo d/b/a Anna Erika Home for Adults, Brook-
lyn, New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
April M. Wexler, Esq., for the General Counsel.
Gary C. Cooke, Esq. (Horowitz & Pollack, P.C.), for the Re-
spondent.
Richard Greenspan, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
backpay proceeding was heard by me in Brooklyn, New
York, on September 30 and October 18, 1991. The case
arises out of a Board decision at 298 NLRB 124 (1990),
wherein the Board ordered inter alia that the Respondent
make whole Eugene Wimmer and Steven Taylor for any loss
of earnings that they may have suffered because of their dis-
charges on February 6, 1989. The Respondent has waived its
rights under Section 10(e) and (f) of the Act to contest either
the propriety of the Board’s Order or the findings of fact and
conclusion of law underlying the above-noted Order.
The backpay specification as amended at the hearing al-
leged that the backpay period for both employees began on
February 6, 1989, when they were discharged and ended on
March 30, 1990, when they were offered reinstatement by
the Respondent. In both cases, the backpay formula was
based on the assumption that they would have worked a
standard 40-hour week plus any overtime hours worked by
a representative employee in the same job category. There-
fore, the measure of gross backpay per calendar quarter
would be their adjusted hours per week times their respective
hourly wage rates, multiplied by the number of weeks in
each quarter.
In the case of Wimmer no backpay is claimed after the
first quarter of 1989 because he obtained permanent employ-
ment elsewhere and received earnings in excess of those
earned while employed by the Respondent. It is conceded by
the General Counsel that during the backpay period,
Wimmer, during the first quarter, had earnings of $865. (It
is agreed that his rate of pay during this time would have
been $4.95 per hour.) The General Counsel contends that the
total net backpay due to Wimmer (without counting interest)
is $1,055.60.
The General Counsel contends that Taylor was hired to
work a 40-hour week and therefore his backpay should be
based on that figure. The General Counsel asserts that de-
spite a diligent search for work, Taylor had no interim earn-
ings during the first and third quarters of 1989. She con-
cedes, however, that he earned $1440 during the second
quarter of that year. She also concedes that no backpay is
due after the third quarter of 1989 because Taylor obtained
permanent employment elsewhere and earned a higher rate of
pay in his new job than he earned at the Respondent. In the
case of Taylor, the total net backpay (without counting inter-
est) is claimed to be $4220.
The Respondent asserts that the figure of 48.5 adjusted
hours per week credited to Wimmer is not justified by the
evidence. It claims that Taylor should not be credited with
40 hours per week because during the 3 weeks that he
worked before his discharge, he never worked 40 hours in
any week. It also sought to prove that Taylor had additional
interim earnings not reported to the General Counsel.
FINDINGS AND CONCLUSIONS
The Board has applied a number of different formulas to
determine the backpay of discriminatees. The aim of using
one formula as opposed to another, is to restore the
discriminatees, as accurately as possible, to the economic sit-
uation that they would have been in absent the illegal dis-
crimination against them. In this respect, the Board has
‘‘broad discretion’’ to shape or choose a formula designed to
most nearly approximate what the discriminatees would have
earned but for the illegal action against them. Bagel Bakers
Council of Greater New York v. NLRB, 555 F.2d 304, 305
(2d Cir. 1977); NLRB v. Brown & Root, Inc., 311 F.2d 447,
452 (8th Cir. 1963). In Brown & Root, the court stated inter
alia
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although there were many people who were hired to work as
porters during the backpay period, the payroll records show that only
a couple, Pair and Vilaverde, worked for any extended period of
time and they respectively worked 37 and 32 overtime hours after
Wimmer was discharged.
Prefatory to a discussion of respondents’ attack on the
formula employed by the Board in calculating the
amounts of the back pay awards, it is well to note that
the purpose of a back pay award is to make whole the
employee who has been discriminated against as the re-
sult of an unfair labor practice. The employee is enti-
tled [sic] to receive what he would have earned nor-
mally during the period of the discrimination against
him, less what he actually earned in other employment
during that period. Of course, an employee must use
reasonable diligence to find employment during the pe-
riod of discrimination. He is not entitle to back pay for
periods during which he voluntarily remained in idle-
ness.
In solving the problems which arise in back pay cases
the Board is vested with a wide discretion in devising
procedures and methods which will effectuate the pur-
poses of the Act.
Obviously, in many cases it is difficult for the Board
to determine precisely the amount of back pay which
should be awarded to an employee. In such cir-
cumstances the Board may use as close approximations
as possible, and may adopt formulas reasonable de-
signed to produce such approximations. . . . We have
held that with respect to the formula for arriving at
back pay rates or amounts which the Board may deem
necessary to devise in a particular situation, ‘‘our in-
quiry may ordinarily go no further than to be satisfied
that the method selected cannot be declared to be arbi-
trary or unreasonable in the circumstances involved.’’
[Case citations omitted.]
Further, once the General Counsel establishes the gross
backpay figure, the burden is shifted to the Respondent to
prove any diminution of the gross backpay either by way of
interim earnings, unavailability for work, or willful loss of
earnings. NLRB v. Mastro Plastics Corp., 354 F.2d 170 (2d
Cir. 1965), cert. denied 384 U.S. 972 (1966); Oil Workers
v. NLRB, 547 F.2d 598, 602–603 (D.C. Cir. 1976).
Respondent does not meet its burden of proof by pre-
senting evidence of lack of employee success in obtaining in-
terim employment or of so-called ‘‘incredibly low earnings,’’
but must affirmatively demonstrate that the employee did not
make reasonable efforts to find interim work.’’ NLRB v.
Miami Coca-Cola Bottling Co., 360 F.2d 569, 575–576 (5th
Cir. 1966).
In meeting this burden, Respondent cannot merely rely on
cross-examination of the claimant and allegedly impeaching
testimony. NLRB v. Inland Empire Meat Co., 692 F.2d 764
(9th Cir. 1982). The evidence must establish that during the
backpay period there were sources of actual or potential em-
ployment that the claimant failed to explore, and must show
if, where, and when the discriminatee would have been hired
had they applied. McLoughlin Mfg. Corp., 219 NLRB 920,
922 (1975); Isaac & Vinson Security Services, 208 NLRB
47, 52 (1973). Champa Linen Service Co., 222 NLRB 940,
942 (1976).
In the present case the evidence supports the General
Counsel’s proposition that the regular workweek for each of
the two employees was 40 hours. In this regard, Vincent
Sirangelo acknowledged that the regular workweek for its
employees was 40 hours and in the case of Taylor, he testi-
fied that although Taylor was primarily hired to be a driver,
he was given porter functions in order to bring him up to
a 40-hour week.
The payroll records do not mitigate against a finding that
the backpay formula should be based on a 40-hour week. In
the case of Taylor, he worked during only 3 complete weeks.
(Neither his first nor last week were full weeks.) In those 3
weeks, Taylor took 1 day off and therefore worked 38 hours,
32, and 39.7 hours in each of the weeks.
The record established that in late April 1989, the Com-
pany gave a 25-cent-per-hour raise to all employees who
stayed beyond their probationary periods. I therefore con-
clude that Taylor would also have received such a raise had
he not been discriminatorily discharged on February 6, 1989.
This would then have brought his wage rate to $4.25 after
May 1, 1989. Accordingly, on the basis that Taylor would
have worked 40 hours per week during the backpay period
and would have received a raise to $4.25 on May 1, 1989,
his gross backpay for the first quarter would be $1280; for
the second quarter—$2170; and for the third quarter—$2210.
(As noted above, no backpay is sought for Taylor after the
third quarter 1989.)
In the case of Wimmer, his records show that during the
quarter ending September 25, 1988 (prior to his discharge),
he worked 40 or more hours in 5 weeks, in excess of 39
hours in 3 weeks, and 31 hours during a week where 1 day
was a holiday. He worked overtime during 5 of the 13 weeks
and worked 36.5 or fewer hours in only 4 weeks. In the next
quarter ending December 1988, Wimmer’s records show that
he worked 40 or more hours during 6 weeks, in excess of
39 hours in 3 weeks, and that he worked 32 or more hours
in 2 other weeks in which there was a holiday. Of the quar-
ter’s 13 weeks, Wimmer worked overtime in 5 weeks, and
worked 32 or fewer hours during only 2 weeks.
In my opinion, Wimmer would have continued to work
overtime after his discharge. In calculating the amount of
overtime hours that Wimmer probably would have worked,
the General Counsel chose Anthony Pair, another employee
in Wimmer’s job classification, who worked regularly after
Wimmer was discharged.1 As I believe that the overtime
hours worked by Anthony Pair are representative of the num-
ber of such hours that someone in Wimmer’s position would
probably have worked during the overtime period, I conclude
that it is reasonable to use Pair’s overtime hours as the basis
for calculating Wimmer’s lost overtime hours.
Using Pair’s hours, the record shows that after Wimmer
was discharged, and for the remainder of the first quarter of
1989, Pair worked 37 overtime hours. Since there were 8
weeks left in the quarter after Wimmer was fired, it is appro-
priate to divide 37 into 8 which averages out to 4.625 over-
time hours during the backpay period. By multiplying 4.625
times 1.5 (representing wages at the overtime rate), this
equals 6.94 hours. To arrive at Wimmer’s average adjusted
hours during the backpay period we then add 6.92 to 40 to
give 46.9 hours per week. As Wimmer’s pay rate was $4.95
at the time of his discharge, his average weekly earnings dur-
ing the backpay period would be $232.16. Multiplying that
135ANNA ERIKA HOME FOR ADULTS
2 In Newport News Shipbuilding, 278 NLRB 1030 fn. 1 (1986), the
Board held that a discharge from interim employment will only toll
backpay when the respondent has established that the discharge was
for willful or gross misconduct.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
number by the 8 weeks remaining in the quarter after
Wimmer was fired, gives $1857.24. Taking away the 2 hours
that he worked during his final week of employment yields
a gross backpay figure for Wimmer in the amount of
$1,857.25 - $9.90 = $1,847.34.
The Respondent has not, in my opinion, met its burden of
showing that either Wimmer or Taylor failed to make an
adequate search for work or had additional interim earnings
than what was listed in the backpay specification. In fact,
Wimmer began working, albeit on a part-time basis, within
2 weeks of his discharge. (By the end of the first quarter,
Wimmer had obtained permanent employment at the New
York Shipyard Corp.) Taylor began working in June 1989 at
Dave’s Produce at $90 per day. In the latter regard, Taylor
conceded that he was discharged from his job at Dave’s
Produce after 4 weeks and he further conceded that he was
accused of stealing. Taylor denied however, that this was so
and the Respondent has not shown that Taylor’s discharge
was caused by his alleged misconduct.2
The evidence shows that Wimmer had interim earnings
during the backpay period of $865. Therefore, his net back-
pay would be $1,847.34 minus $865 = $982 not including
interest.
The evidence also shows that Taylor had interim earnings
during the second quarter of the backpay period of $1440.
Accordingly, his net backpay is as follows:
Year Qtr. Gross Backpay Interim Earn-ings Net Backpay
1989 1st $1,280.00 $.00 $1,280.00
2d 2,170.00 1,440.00 730.00
3d 2,210.00 .00 2,210.00
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Joseph F. Sirangelo, Vincent Sirangelo,
Phillip Emma, Angelo Servideo and Joseph Cillo d/b/a Anna
Erika Home for Adults, Brooklyn, New York, its officers,
agents, successors, and assigns, shall
1. Make payment to Eugene Wimmer the sum of $982
plus interest, less tax withholding required by Federal and
state laws.
2. Make payment to Steven Taylor the sum of $4220 plus
interest, less tax withholding required by Federal and state
laws.