Domsey Trading Corporation

National Labor Relations Board - Administrative Judge Opinions

Jul 1, 2008

29-CA-014548 (N.L.R.B. Jul. 1, 2008)

JD(ATL)–24–08
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
DOMSEY TRADING CORPORATION, DOMSEY
FIBER CORPORATION AND DOMSEY INTERNATIONAL
SALES CORPORATION, A SINGLE EMPLOYER
and Case Nos. 29–CA–14548
29–CA–14619
INTERNATIONAL LADIES’ GARMENT 29–CA–14681
WORKERS’ UNION, AFL-CIO 29–CA–14735
29–CA–14845
LOCAL 99, INTERNATIONAL LADIES’ 29–CA–14853
GARMENT WORKERS’ UNION, AFL-CIO 29–CA–14896
29–CA–14983
29–CA–15012
29–CA–15119
29–CA–15124
29–CA–15137
29–CA–15147
29–CA–15323
Aggie Kapelman, Esq. & Kathy Drew King, Esq. 29–CA–15324
for General Counsel. 29–CA–15325
Paul A. Friedman, Esq., for Respondent. 29–CA–15332
Richard M. Greenspan, Esq., for Charging Party. 29–CA–15393
29–CA–15413
29–CA–15447
29–CA–15685
SECOND SUPPLEMENTAL DECISION
Statement of the Case
MICHAEL A. MARCIONESE, Administrative Law Judge. The Board issued its
Supplemental Decision and Order in this compliance case on September 30, 2007. Domsey
Trading Corp., 351 NLRB No. 33. The decision addressed the back pay claims of 202
discriminatees found to have been entitled to a remedy under the Board’s decision in Domsey
Trading Corp., 310 NLRB 777 (1993), enfd. 16 F.3d 517 (2d Cir. 1994). The Board resolved the
backpay claims of 31 discriminatees and remanded the remainder of the case for further
determination of a number of factual issues. The claims of all but 7 discriminatees were
remanded to the Board’s Regional Office to recalculate backpay based on the Board’s
determination that the strike benefits they received should be treated as interim earnings and
based on additional findings regarding individual discriminatee’s mitigation efforts or interim
earnings. On February 21, 2008, The General Counsel filed directly with the Board a Motion for
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Summary Acceptance of Region 29 Recalculations of Backpay Pursuant to Board Remand and
Issuance of a Second Supplemental Decision and Order.1 To date, the Board has not ruled on
the motion. The backpay claims of the remaining seven discriminatees were remanded to the
undersigned. This decision addresses only those issues remanded to me.
Unauthorized Aliens
The Board remanded authorization status issues regarding six discriminatees under the
Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002),
which was decided after I issued my supplemental decision on October 4, 1999. The
discriminatees whose status is at issue are:
Atulie Balan Marie Jose Francois
Bardinal Brice Rene Geronimo
Michelet Exavier Rose Marie Ste. Juste2
In remanding this portion of the case, the Board directed that the undersigned
administrative law judge “develop a complete factual record consistent with this supplemental
decision and to issue a second supplemental decision setting out his factual findings based on
that record. After the parties have had the opportunity to file exceptions if they so desire, the
Board will issue a Second Supplemental Decision resolving the legal issues based on the
judge’s Findings of Fact.”
On May 21, 2008, the General Counsel filed a motion to withdraw the back pay claims
for Exavier and Ste. Juste based on the results of the Region’s investigation. General Counsel
moved further that the claim for Geronimo be included with those of other missing
discriminatees and placed in escrow in accordance with the Board’s holding in Starlite Cutting I,
280 NLRB 1071 (1986), as clarified in Starlite Cutting II, 284 NLRB 620 (1987).3 In response to
my Order to Show Cause why General Counsel’s motion should not be granted, counsel for the
Respondent submitted a letter dated June 11, 2008 objecting to the request to place
Geronimo’s backpay in escrow. Respondent did not object to the withdrawal of the claims for
Exavier and Ste. Juste.4
Geronimo testified at the compliance hearing on May 15, 1998. When General Counsel
attempted to contact him after the Board issued its Supplemental Decision on September 30,
2007, he could no longer be found. As the Board noted in its supplemental decision, Geronimo
admitted using an invalid social security number when he worked for the Respondent, prior to
1991. However, the Board held that this fact, by itself, did not establish that he was not
authorized to work in this country during the backpay period. See Domsey Trading Corp., 351
supra, slip op., p. 7. Thus, it is necessary to locate him in order to determine whether he ever
acquired a valid social security number that would authorize him to work in the United States.5 I

1 The General Counsel has subsequently amended the motion on two occasions, most
recently on May 30, 2008.
2 General Counsel has advised that Ms. Ste. Juste correct name is Rose Marlene Ste.
Juste.
3 A copy of General Counsel’s Motion is attached to this decision as Appendix A.
4 A copy of the Respondent’s letter is attached as Appendix B.
5 At the hearing in 1998, Geronimo testified that he obtained a different, perhaps valid,
social security number in 1992. This is similar to the situation of other discriminatees who
obtained valid social security numbers during or after the backpay period.
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therefore reject the Respondent’s contention that the record evidence is sufficient to determine
that Geronimo was not authorized to work at any time during the backpay period.
Although the Respondent suggests that Geronimo has failed to participate in the
proceedings after the remand, it is unknown whether this failure was deliberate. Because of the
length of time it took the Board to issue its supplemental decision, it is possible he disappeared
without ever knowing that the Board had issued its decision. It would be unjust to penalize him
for the delay occasioned by the Board’s deliberations in this case. Accordingly, I shall grant the
General Counsel’s motion and recommend to the Board that the back pay owed to Geronimo,
as re-calculated to deduct any strike benefits he received, shall be placed in escrow along with
the backpay of other missing discriminatees.
With respect to the other three discriminatees whose authorization status is in dispute,
the General Counsel obtained evidence after the remand that each had obtained a valid social
security number, authorizing him or her to work in the United States, either before or during the
backpay period. On May 21, 2008, the General Counsel filed a motion, designated a joint
motion although the Respondent had not signed it, proffering this evidence and requesting that
factual findings be made based thereon.6 The Respondent, in its response to my Order to Show
Cause why this motion should not be granted, submitted the June 11 letter referred to above,
stating that it did not oppose this motion as to these three individuals (see Appendix B).
Accordingly, I shall grant the motion and receive into evidence the attachments thereto showing
the status of these three discriminatees.
Based on this new evidence, I make the following factual findings:
Atulie Balan obtained a valid social security number, authorizing her to work in the
United States, on September 20, 1990. Her backpay period would thus begin on
that date and, as previously found, end with her reinstatement by the Respondent
on April 2, 1991.
Bardinal Brice received a valid social security number authorizing him to work in the
United States on January 22, 1991. His backpay period commenced on that date.
Marie Josee Francois received her social security number on January 12, 1984 and
was thus legally entitled to work in this country throughout the backpay period.
In the absence of objection, I shall also accept the General Counsel’s recalculation of
the backpay amounts for Balan, Brice and Francois, reflecting the new evidence and deducting
strike benefits each received.
Louis Antoine Dormeville
The Board also remanded the backpay claim of Dormeville to the undersigned for the
limited purpose of recalculating, if necessary, the amount of backpay he was owed after
deducting workers’ compensation benefits he received as a replacement for wages. Counsel for
the General Counsel had excepted to my calculation and the Board was unable to determine
whether my calculation was correct. As part of the “Joint Motion” General Counsel filed on May
21, counsel for the General Counsel has conceded that the amounts I deducted were correct.

6 A copy of General Counsel’s “Joint Motion” with attachments, is attached to this decision
as Appendix C.
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Dormeville’s backpay claim has been reduced however, by the amount of strike benefits he
received.
Conclusion
In sum, the backpay claims for Exavier and Ste. Juste are withdrawn, those for Balan,
Brice and Francois are reduced to reflect their periods of ineligibility to work, if any, and the
claim for Geronimo shall be treated like those of other missing discriminatees. Finally,
Dormeville’s backpay, as originally calculated, is correct, with the exception that strike benefits
he received have now been deducted from gross backpay. The amounts now owed under the
Board’s initial order in this case, exclusive of interest, are as follows:
Atulie Balan $5,500.95
Bardinal Brice $4,401.00
Louis Antoine Dormeville $ 928.75
Marie Josee Francois $5,457.10
The backpay claim for Rene Geronimo, which was $9,047.20, shall be reduced by
deducting any strike benefits he received, and the resulting amount placed in escrow in
accordance with Starlite Cutting I, supra, as clarified in Starlite Cutting II, supra.
Dated, Washington, D.C. , July 1, 2008.
____________________
Michael A. Marcionese
Administrative Law Judge