Electric, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 315 (N.L.R.B. 2001)

ELECTRIC, INC. 315
Electric, Inc. and Cebcor Service Corporation and
International Brotherhood of Electrical Work-
ers, Local Union 654. Case 4–CA–24429
August 27, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On March 20, 2000, Administrative Law Judge George
Alemán issued the attached supplemental decision. The
General Counsel filed exceptions and a supporting 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 the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified herein and to adopt the recommended Order as
modified.
The General Counsel excepts to the judge’s recom-
mended Order that the amounts owed the backpay claim-
ants be placed in escrow for a period of 1 year in order to
afford the Respondents and/or the General Counsel an
opportunity to produce evidence and/or examine them
regarding their interim earnings. The General Counsel
contends that the judge relied on case law which is not
controlling and that his recommendation to place the
backpay awards in escrow is contrary to Board policy.
For the following reasons, we find merit in the General
Counsel’s exceptions and reverse that part of the judge’s
recommended Order placing the backpay awards in es-
crow.
As noted by the judge, the Respondents did not contest
the General Counsel’s calculations of the gross backpay
amounts for claimants James Conroy and Robert James,
but it did deny the validity of the General Counsel’s cal-
culations regarding interim earnings. The two backpay
claimants were not present during the compliance pro-
ceeding because neither the General Counsel nor the Re-
spondents requested their appearance. The judge found
that the General Counsel was under no obligation to pro-
duce Conroy and James at the hearing in order to be ex-
amined by the Respondents. Further, he rejected the
Respondents’ contention that the claimants’ absence
from the hearing impermissibly hampered the Respon-
dents’ efforts to prove that Conroy and James had in-
terim earnings. Rather, the judge specifically found that
“the burden of calling the discriminatees to prove they
had interim earnings rested exclusively with the Respon-
dents” and that there was “nothing in the record to sug-
gest that the Respondents made any effort to insure, ei-
ther through voluntary compliance or through issuance of
subpoenas, that the discriminatees would appear to tes-
tify.” The judge concluded that, “to the extent Respon-
dents felt disadvantaged by the discriminatees’ absence
from the hearing, this was a product of their own neglect
and nothing more.” The record supports, and we affirm,
this part of the judge’s analysis and findings.
However, we do not agree with the judge’s subsequent
determination to place the backpay awards in escrow.
The implementation of an escrow process would have the
unwarranted effect of negating the judge’s analysis set
forth above, by providing the Respondents a further op-
portunity to prove what they, without any basis, failed to
prove at the hearing. The hearing was held in Philadel-
phia, Pennsylvania, not far from where the discrimina-
tees apparently lived. There is no indication that the
General Counsel was hampered in obtaining the informa-
tion relevant to the compliance specification. The record
also shows that the Respondents knew where the claim-
ants were and how to contact them, because the Respon-
dents had made telephonic offers of employment to both.
Notwithstanding that knowledge and the proximity of the
hearing to the employees’ place of residence, the Re-
spondents made no effort to procure the employees’ at-
tendance at the hearing, either by request or subpoena.
In those circumstances, the escrow procedure used pri-
marily in cases where discriminatees are missing or fail
to respond to a subpoena by one or both parties is not
warranted.
Woonsocket Health Centre, 263 NLRB 1367 (1982),
on which the judge relied, involved unusual circum-
stances not present here. There, two discriminatees, who
had moved to Florida, did not attend the hearing in
Rhode Island. The judge, finding that the backpay speci-
fication contained too many factual uncertainties, refused
not only to issue a backpay award, but even to order that
the estimated award as set out in the specification be
placed in escrow. The Board found merit to the General
Counsel’s exception challenging the judge’s failure to
place the estimated backpay due in escrow. In directing
the employer to pay the estimated amount of backpay
due into escrow, the Board disagreed with the judge that
the backpay specification was too uncertain factually for
the amounts set forth to be placed in escrow. The Board
did however note that it could not then determine
whether the employees’ moving to Florida should toll the
backpay period. Woonsocket is therefore distinguishable
from this case in significant respects. Not only did the
discriminatees live at a great distance from the location
of the hearing, but their move had created issues not re-
solved by the record before the Board. Further, the Gen-
eral Counsel sought placement of money in an escrow
account because the judge had resolved uncertainties
335 NLRB No. 26
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 316
against the discriminatees and had placed the burden on
them, and at least implicitly on the General Counsel, to
establish the net backpay due.1
In sum, the Respondents did not carry out their respon-
sibility to obtain Conroy’s and James’ appearance by
either asking or subpoenaing them to attend the hearing.
Without any notice or request that they be present, we do
not agree that there was any “failure to appear” on either
Conway’s or James’ part that would warrant the imple-
mentation of an escrow process.
Our dissenting colleague acknowledges that Board law
placed the burden on the Respondents to call Conroy and
James, regardless of their status as “salts.” See Ferguson
Electric Co., 330 NLRB 514, 518–519 and fn. 16 (2000).
He suggests, however, that Respondent’s status as pro se
litigants justifies on equitable grounds the judge’s giving
“the Respondents another chance to produce the wit-
nesses.” But the judge himself did not invoke this ra-
tionale, nor does the record here support it. Indeed, as
already pointed out, the judge cited Respondents’ “own
neglect and nothing more” as the reason Conroy and
James did not testify.2 Respondents have filed no excep-
tions to this finding and no brief with the Board. We
have explained why the rationale on which the judge did
rely was incorrect. The partial dissent does not dispute
our reasoning in this respect.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Elec-
tric, Inc. and Cebcor Service Corporation, Royce City,
Texas, their officers, agents, successors, and assigns,
shall make whole James Conroy by paying him
$20,871.00 and shall make whole Robert James by pay-
ing him $6449.20. Both backpay amounts shall be with
interest to be computed in the manner prescribed in New

1 The judge’s reliance on Beckley Belt Services & Roofing Co., 289
NLRB 1179 (1988), is also misplaced. There, the claimant’s backpay
was placed in escrow when the backpay claimant did not comply with
General Counsel’s subpoena to testify at that proceeding, thereby deny-
ing the respondent an opportunity to cross-examine the claimant.
2 With respect to a compliance proceeding, the Board’s Casehan-
dling Manual Sec. 10629.4 states that:
Although the General Counsel may not call all or even any
discriminatees as witnesses, the respondent will often desire to
call discriminatees to prove its case. The Region’s trial attorney
should cooperate with the respondent in its efforts to obtain the
presence of the discriminatees to the extent that it is practicable
and reasonable to do so. [Footnote omitted.]
The General Counsel’s role, as the Board has observed, is “merely
advisory and cooperative.” Cornwell Co., 171 NLRB 342 fn. 2 (1968).
There is no suggestion here that the General Counsel failed to fulfill
this limited function.
Horizons for the Retarded, 283 NLRB 1173 (1987), less
any taxes withheld pursuant to Federal and State law.

CHAIRMAN HURTGEN, dissenting in part.
The judge decided to hold backpay in escrow, pending
appropriate examination of issues concerning interim
earnings by discriminatees Conroy and James. My col-
leagues reverse the judge. I would affirm.
In Ferguson Electric Co., 330 NLRB 514 (2000), I
concluded, inter alia, that the charging party (union)
should have the burden of producing evidence concern-
ing whether and to what extent the union had placed
limitations on the discriminatees’ search for work, where
the discriminatees were “salts.” My position was based
on the fact that the union was the possessor of such evi-
dence. In the instant case, the issue is admittedly differ-
ent. The issue concerns the amount (if any) of interim
earnings. However, the principle is the same. It is the
Union and the discriminatees who are the possessors of
the evidence.1
Thus, it would seem equitable to place the burden of
production of evidence on the Charging Party and the
employees. I recognize the Board law is to the contrary.2
However, Respondents appeared pro se at the hearing,
and was apparently unaware of its obligation to produce
the discriminatees. Thus, the discriminatees were not
present. In these circumstances, the judge essentially
gave Respondents another chance to produce the wit-
nesses and to examine them regarding interim earnings.
The judge ordered that the backpay be held in escrow
pending that examination. I believe that the judge’s or-
der was correct, and I would not reverse him.
My colleagues note that the judge did not cite Respon-
dents’ pro se status as the basis for his “escrow” order.
They also note that, under Board law, Respondents had
the burden of calling Conroy and James. However, as
pro se parties, Respondents could reasonable expect that
the General Counsel (who proceeded on behalf of Con-
roy and James) would bring them to the hearing at which
their backpay would be litigated. However, they did not
appear. Accordingly, as a matter of fundamental fair-
ness, I would give Respondents a chance to request their
presence. Under the Casehandling Manual, the General
Counsel would then likely produce the two employees,
and the backpay issues would be fairly litigated. My
colleagues have closed that avenue.
1 The Union refers the employees to jobs, and the employees earn
the wages
2 I am not suggesting that this was the fault of the General Counsel.
ELECTRIC, INC. 317

Elana Hollo, Esq., for the General Counsel.
Charles Stevenson, for Cebcor Service Corp.
Carolyn Thumann, for Electric, Inc.
SUPPLEMENTAL DECISION
GEORGE ALEMÁN, Administrative Law Judge. A hearing
in the above-captioned matter was held on February 28, 2000,
in Philadelphia, Pennsylvania, pursuant to a compliance speci-
fication issued on October 27, 1999 by the Regional Director
for Region 4 of the National Labor Relations Board (the Board)
alleging that the Respondents, Electric, Inc. and Cebcor Service
Corporation, as joint employers, owed discriminatees James
Conroy and Robert James certain backpay pursuant to an un-
published Order issued by the Board in this case on April 23,
1997, enforced by judgment of the United States Court of Ap-
peals for the 5th Circuit on October 9, 1998. In their answer to
the compliance specification, the Respondents admit that the
formula used by General Counsel to determine the gross back-
pay amounts due the discriminatees is appropriate, but denies
that the amounts alleged to be owed to Conroy and James are
accurate because they do not reflect the interim earnings of
these individuals.
All parties were afforded a full and fair opportunity at the
hearing to call and examine witnesses, and to present oral as
well as written evidence. At the conclusion of the hearing, I
issued a bench decision, found at transcript page 43, line 7
through page 47, line 20, pursuant to Section 102.35 of the
Board's Rules and Regulations, finding that the Respondents
had not shown that James Conroy and Robert James had in-
terim earnings which should be deducted from their gross
backpay amounts, and that the Respondents therefore remained
liable to James Conroy and Robert James for the amounts of
backpay set forth in the Compliance Specification, with inter-
est.1 That decision, as corrected, is hereby certified as accurate
and is attached hereto and marked “Appendix.”

1 During the hearing, I denied the Respondents' request for a "recess"
purportedly to obtain documentary evidence to show that Conroy, in his
capacity as union president and organizer, had received wages from the
Union which they claim constituted interim earnings which should have
been, but were not, deducted from his gross backpay amount. The
Respondents had ample time before the start of the hearing to obtain
any such documentary evidence but failed to do so, and offered no
explanation as to why they could not have done so. In light of these
facts, the Respondents' belated request for a "recess" to obtain such
evidence was properly denied. See, United Enviro Systems, 323 NLRB
83, 86–87 (1997). More importantly, however, in Ferguson Electric
Co., 330 NLRB 514 (2000) the Board, as the General Counsel correctly
pointed out at the hearing, held that such earnings by a union organizer
is akin to earnings obtained by employees who engage in "moonlight-
ing" outside their regular employment and are not "interim earnings"
which must be deducted from gross backpay. Here, the Respondent
conceded at the hearing that Conroy had held the position of union
president/organizer since 1988. Therefore, assuming arguendo that
Conroy did receive wages from the Union in connection with his activi-
ties as union president and organizer, said wages presumably were
being paid to him long before he applied, and was unlawfully rejected,
for a position with the Respondents. In these circumstances, I find, as
argued by the General Counsel at the hearing, that the evidence the
Respondents sought to obtain during the requested "recess" pertaining
[Recommended Order omitted from publication.]
APPENDIX
[Errors in the transcript have been noted and corrected.]
43
Okay, having heard—having allowed the parties an opportu-
nity to present their case, I’m issuing a Bench Decision in the
matter. Typically I’ll issue a written decision, but I think the
issues are not very complicated here and are pretty straight
forward, so I’m issuing the following Bench Decision.
This matter was first raised before Administrative Law Judge
Michael J. Miller back in 1997, March 7th, to be exact. Judge
Miller issued a decision in the matter against Electric, Inc. and
Cebcor Services finding that the Respondents had violated
Section 8(a)(1) and (3) of the National Labor Relations Act by
refusing to offer discriminatees Robert James and James Con-
roy employment because of their membership in the union, the
Brotherhood of Electrical Workers of Local Union 654. The
parties were afforded an opportunity at that time to present
evidence, after which the Judge issued his decision to which no
exceptions were filed. The Board thereafter affirmed Judge
Miller’s decision in 1997.

to Conroy's union wages was irrelevant as such wages did not consti-
tute interim earnings under Ferguson Electric, supra.
I reject as without merit the Respondents' implicit suggestion at the
hearing that the discriminatees' absence from the hearing hampered
their efforts to prove that the discriminatees had interim earnings. The
General Counsel, it should be noted, was under no obligation to pro-
duce the discriminatees at the hearing to be examined by the Respon-
dents regarding their interim earnings. Steve Aloi Ford, 190 NLRB 661
(1971); also, Domsey Trading Corp., 325 NLRB 429, 430 (1998);
Colorado Forge Corp., 285 NLRB 530, 541 (1987); O.K. Machine &
Tool Corp., 279 NLRB 474, 480 (1986). Rather, the burden of calling
the discriminatees to prove they had interim earnings rested exclusively
with the Respondents. Superior Warehouse Grocers, 282 NLRB 802,
804 (1987); Ace Electric Construction Corp., 281 NLRB 584, 585
(1986). I find nothing in the record to suggest that the Respondents
made any effort to insure, either through voluntary compliance or
through the issuance of subpoenas, that the discriminatees would ap-
pear to testify. Thus, to the extent Respondents felt disadvantaged by
the discriminatees' absence from the hearing, this was a product of their
own neglect and nothing more.
In light of Conroy's and James' failure to appear at the hearing, and
consistent with established Board policy, I shall recommend that the
amounts of backpay set forth in the Compliance Specification for these
individuals be paid to, and be held in escrow by, the Regional Director
for Region 4 for a period not exceeding 1 year from the date of this
supplemental decision. Woonsocket Health Centre, 263 NLRB 1367
(1982); also Beckley Belt Services And Roofing Co., Inc., 289 NLRB
1179 (1988). The 1-year period will commence when the Respondents
comply by depositing the backpay in escrow, or on the date the Sup-
plemental Decision and Order in this case becomes final, including
enforcement, whichever is later. Starlight Cutting, 284 NLRB 620
(1987); Iron Workers Local 373 (Building Contractors), 295 NLRB
648, 656 (1985). In the event any or both of the discriminatees appear
to collect their backpay, the parties will be offered an opportunity by
the Regional Director to produce evidence and/or examine said dis-
criminatees regarding their interim earnings. Woonsocket Health Cen-
tre, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 318
The General Counsel thereafter petitioned for enforcement
before the Fifth Circuit U.S. Court of Appeals. My understand-
ing is that
44
no opposition was filed thereto and the Fifth Circuit entered a
judgment against the Respondents on October 9th, 1998.
The General Counsel thereafter, following an investigation,
issued a compliance specification on October 27th, 1999 setting
forth the amount of back pay owed to Mr. James and Mr. Con-
roy. As set forth in the specification, and correct me if I’m
wrong Ms. Hollo, but Mr. James’ back pay totals $6,449.20 and
that’s not including interest?
MS. HOLLO: Correct.
JUDGE ALEMAN: And, the specifications set forth for Mr.
Conroy’s back pay entitlement in the amount of $20,871 ex-
cluding interest.
MS.HOLLO: Correct, Your Honor.
JUDGE ALEMAN: The parties were served—duly served
with a copy of the compliance specification as indicated by the
return receipts showing proof of service. It was sent by certi-
fied mail, return receipt requested, and that’s been entered into
evidence as part of General Counsel’s Exhibit GC-1.
The Respondents, in fact, filed an answer to the compliance
specification in which they do not dispute and do not contest
the manner in which the General Counsel arrived at the back
pay figures—the gross back pay figures and the only issues
raised by the Respondents in their answer goes to the question
of whether or not these individuals had interim earnings which
were not reflected in the compliance specification.
45
The General Counsel presented no witnesses at the hearing
and relied on the presumption that the General Counsel meets
its burden simply by establishing that the gross back pay fig-
ures are accurate and that the manner in which they were com-
puted was appropriate. The Respondent has not objected to that
and, in fact, concedes as much in its answer. Therefore, I find
that the General Counsel has met her burden of proof with re-
spect to the amounts set forth in the compliance specification.
The burden under Board Law then shifts to the—it’s not a
shifting burden, its really a burden of proof that gets imposed
on an employer with respect to whether or not an individual has
mitigated his liability. Let me just read from a decision issued
by the Board, it’s a supplemental decision issued by the Board
on September 39th, 1997 in the case of A.P.R.A. Fuel Oil Buy-
ers Group, Inc., 324 NLRB 630 (1997). There, the Board
adopted Administrative Law Judge Raymond Green’s decision
which set forth, as follows, the appropriate burdens of parties in
a compliance proceeding. Thus, once the General Counsel has
shown the gross back pay due, as occurred in this case, the
Employer has the burden of establishing affirmative defenses
which would mitigate its liabilities, including willful loss of
earnings, and the interim earnings which must be deducted
from the back pay award. The Respondent and Employer does
not meet its burden of
46
proof by presenting evidence of the lack of employee’s success
in obtaining interim employment or so-called incredibly low
earnings, but must affirmatively demonstrate that the employee
did not make reasonable efforts to find interim work. Signifi-
cantly, the judge also noted that an employer cannot merely
rely on cross examination of the claimant and allegedly im-
peaching testimony. The evidence must establish that during
the back pay period there were sources of actual or potential
employment that the claimant failed to explore and must show
if, where, and when the discriminatee would have been hired
had they applied.
Basically that’s the standard that the Board uses in compli-
ance proceedings. Here, the Respondent has presented abso-
lutely no evidence whatsoever to show that either Mr. James or
Mr. Conroy had interim earnings which were not reflected in
the compliance specification numbers. The Respondents sug-
gest that because Mr. Conroy worked for the union, that that
somehow—that some inference should be drawn that therefore
there were interim earnings. However, the Respondent’s bur-
den is to produce—to come forth with this evidence, and not
just rely on speculation or conjecture, which, I find, is all that
has been presented in this case.
The Respondent also suggest, implicitly, that because—is it
Mr. Conroy that had all of this property, sir? Mr. Stevenson?
MS.THUMANN: Yes.
47
JUDGE ALEMAN: Mr. Conroy had certain properties, he
presumably would not have accepted a job offer in Texas; again
the claim lacks evidentiary support and is based on sheer specu-
lation. The bottom line is if you—if an Employer wishes to toll
its back pay liability, it has an obligation to at least make a
good faith offer of employment and not simply to speculate that
it need not do so because the individual would not, in any
event, have accepted any such offer. That argument, in my
view, is a very feeble one which, as previously noted, was re-
jected in United States Can Company, 328 NLRB No. 45
(1999), which addressed that particular issue.
So, I find no merit whatsoever to the Respondent’s defense.
In fact, I find no defense whatsoever was presented in this case,
that the General Counsel has made out a prima facie case, and
that the Employer is, in fact, liable for the amounts set forth in
the compliance specification.
ORDER
It is ordered that the Respondents comply with the Compli-
ance Specification and pay the amounts owed to the individuals
named therein.