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

National Labor Relations Board - Board Decisions

Apr 27, 1989

293 N.L.R.B. 857 (N.L.R.B. 1989)

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