Halpak Plastics

National Labor Relations Board - Board Decisions

Feb 12, 1991

301 N.L.R.B. 690 (N.L.R.B. 1991)

690
301 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
In adopting the judge’s finding that David Pietri made reasonable efforts to
find interim employment while awaiting reinstatement by the Respondent, we
note, in addition to the reasons set forth by the judge, that Pietri did in fact
work during 11 of the 12 quarters of the backpay period. See Southern House-
hold Products Co., 203 NLRB 881 (1973).
1 The only relevance of this information was for a possible collateral attack
on Pietri’s credibility; the information does not relate to the amount of back-
pay due in the instant proceeding.
2 The record is corrected so that at p. 25, L. 22, the date is ‘‘88.’’ Respond-
ent’s motion to reopen the record dated August 17, 1990, is granted, and the
summary of Halpak’s defined benefit pension plan is admitted into evidence
as R. Exh. 4.
Halpak Plastics, Inc. and Amalgamated Union,
Local 1, National Organization of Industrial
Trade Unions. Case 29–CA–12447
February 12, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 26, 1990, Administrative Law Judge
Eleanor MacDonald 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 the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions 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, Halpak Plastics, Inc.,
Oceanside, New York, its officers, agents, successors,
and assigns, shall pay David Pietri the sums set out in
the recommended supplemental Order.
Craig L. Cohen, Esq., for the General Counsel.
Suzanne Youssef, Esq. and Martin H. Scher, Esq. (Law Of-
fices of Martin H. Scher), of Carle Place, New York, for
the Respondent.
Wendell V. Shepherd, Esq. (Roy Barnes, P.C.), of New York,
New York, for the Charging Party.
SUPPLEMENTAL DECISION
ELEANOR MACDONALD, Administrative Law Judge. On
December 16, 1987, the National Labor Relations Board
issued its Decision and Order at 287 NLRB 700, finding that
Respondent Halpak Plastics, Inc. had unlawfully discharged
David Pietri and ordering Respondent to reinstate Pietri and
make him whole for any loss of earnings and other benefits.
On June 21, 1988, the United States Court of Appeals for
the Second Circuit enforced the Order of the Board. On Oc-
tober 31, 1989, the Regional Director for Region 29 issued
a backpay specification and notice of hearing alleging certain
amounts of backpay due to Pietri and reserving the right to
claim moneys or contributions due to Pietri under Respond-
ent’s pension plan. The specification was amended at the
hearing in certain minor respects. The net backpay claimed
on behalf of Pietri is $22,861.36. The backpay period ends
on February 16, 1989, the effective date of Respondent’s
offer of reinstatement to Pietri.
Respondent submitted an answer on December 7, 1989, al-
leging that the adjusted hours claimed on behalf of Pietri
were not properly calculated and that a different basis of cal-
culating the hours was called for by certain facts. The answer
alleged that Pietri’s interim earnings were understated and
that Pietri did not properly mitigate damages in that he re-
jected substantially equivalent employment in the second
quarter of 1988.
This matter was heard by me on April 4 and 16, 1990.
The record was kept open pending receipt of a copy of
Halpak’s pension plan and receipt of certain information
from the actuary responsible for administering that plan. On
April 26, 1990, Respondent requested that certain evidence
relating to Pietri’s membership in the pension plan of another
employer be received into evidence.1 By Order dated May
30, 1990, the information from the actuary was received into
evidence as Administrative Law Judge’s Exhibits 1 and 2,
the evidence proffered by Respondent was rejected, the
record was closed, and the date for the submission of briefs
was set for July 3, 1990. By Order of June 29, 1990, Re-
spondent’s request for reconsideration of the Order of May
30 was denied on the ground that the original request to
admit the evidence was not served on all the parties to the
proceeding and that the evidence was not newly discovered.
Additional time was granted for Respondent to submit a
copy of its pension plan and a new date for the submission
of briefs was set for September 10, 1990.
On the entire record, including my observations of the wit-
nesses and on due consideration of the briefs filed by the
General Counsel and the Respondent in September 1990, I
make the following2
FINDINGS OF FACT
A. The Specification
The General Counsel presented a witness to testify as to
the calculation of gross backpay on a quarterly basis. Based
on the payroll records provided by Respondent, the General
Counsel asserted that Pietri would have received one wage
increase during the backpay period; a number of employees
received merit increases during that time and some employ-
ees received more than one such increase. In the case of
Pietri, however, the General Counsel calculated that he
would have received an increase on February 10, 1987, at the
same time that two out of three employees received such in-
creases. The amount of the asserted increase was calculated
at 75 cents per hour, an average amount. From May 19,
1986, to February 9, 1987, wages were calculated to be
$11.50 per hour, the amount Pietri was earning at his dis-
691HALPAK PLASTICS
3 Pietri could not recall when this occurred but it was probably in 1988.
4 Scher stated that he only met with Pietri once, and that was in 1989, not
in 1988.
5 The decision of Administrative Law Judge Lawrence in the underlying
case is replete with references to Thomas and to his testimony. Thomas was
the supervisor who discharged Pietri after Respondent learned of his activity
in support of the Union.
charge, and from February 10, 1987, to February 16, 1989,
wages were calculated to be $12.25 per hour. The General
Counsel computed the quarterly gross backpay based on
Pietri’s regular workweek of 40 hours. Because Pietri worked
overtime on a regular basis, the General Counsel looked at
overtime work by comparable employees during the backpay
period to calculate average overtime hours; the average was
applied to calculate the number of overtime hours lost by
Pietri during the backpay period. Regular hours were cal-
culated at straight time pay, while overtime hours were cal-
culated at 1.5 times straight time. The sum of straight time
hours and overtime hours was used to calculate total adjusted
hours on a quarterly basis. After calculation of gross back-
pay, Pietri’s interim earnings were deducted and the net
backpay was calculated on a quarterly basis.
B. Pietri’s Search for Interim Employment
Pietri testified that he had been the head printer at Halpak.
He began work there in 1981 and was discharged in 1986.
Pietri had joined Halpak’s pension plan. His duties consisted
of setting up the machine for the other printers, supplying
them with information, and operating the machine himself.
Pietri stated that he has been in the printing business since
1953 and is not trained to do any other work. Pietri testified
that he has no experience in any type of printing other than
flexographic printing. He could have performed other func-
tions if he were properly trained.
Pietri testified about his search for work after his unlawful
discharge by Respondent. The week of his termination, he
found work at Arcon Mills running a machine and teaching
others how to print on a flexographic machine. Pietri worked
at Arcon until he was terminated in early 1988 following a
hospital stay of several days. He received a release to work
from his doctor but Arcon informed him that he was no
longer needed.
Following his discharge by Arcon, Pietri registered with
the New York State Division of Unemployment. He reported
to the job service office every week on Wednesday to see
if there was work for him. In addition to seeking employ-
ment through the state job service office, Pietri checked with
employers every week and he spoke to friends in the busi-
ness to see if they were aware of job opportunities. He re-
sponded to newspaper ads. Some employers were not inter-
ested in him and did not wish to interview him. Some em-
ployers offered him work in the flexographic printing field
but at rates of pay much lower than $11.50 per hour. Pietri
did not accept these offers which would have paid him less
than he was earning when he was unlawfully terminated by
Respondent. He was interviewed by A. Kimbell Co., which
was paying only $300 per week, but Kimbell did not offer
him a job. Pietri did not apply to any employment agencies.
In the third quarter of 1988, Pietri found a job at Reknown
Tag and Label by answering an ad in the newspaper.
Reknown only had part-time work available; sometimes this
was as little as 1 day per week and, on occasion, it might
be as much as 5 days. While working part time at Reknown,
Pietri continued to look for full-time work by scanning the
ads in the newspapers.
After Pietri’s eligibility for unemployment benefits ran out,
he was telephoned by Martin Scher, Esq. on behalf of Re-
spondent.3 Scher told him that he wanted to meet with him
concerning backpay; Scher asked Pietri about his employ-
ment history.
Scher, who represented Respondent in the underlying case,
testified that he met with Pietri on February 18, 1989, to dis-
cuss Pietri’s return to work at Halpak.4 According to Scher,
he asked Pietri about applying for work at K. Sidrane, Inc.
Pietri told him that he did not apply for work at Sidrane be-
cause he did not like a certain individual named Thomas
working at that company. According to Scher, Thomas had
worked at Halpak and then moved to Sidrane. Scher could
not recall whether Thomas was the one who was found to
have discharged Pietri in the underlying case.5 Pietri also
told Scher that he had turned down work that paid only
$7.50 or $8.50 per hour. Pietri said he consulted the news-
paper ads only once a week because the ads only change
once a week.
On cross-examination by counsel for Respondent, Pietri
testified that he was familiar with a company named K.
Sidrane, Inc., having worked there before being employed by
Respondent. Pietri testified that Sidrane had a weekly ad in
the newspaper for printers. Pietri did not apply for a position
with Sidrane. Pietri denied telling Attorney Scher that he did
not seek employment at Sidrane because an individual named
Thomas worked there. Pietri stated that he informed Scher
that he had once worked for Sidrane and that he left Sidrane
when conditions were bad and he was on unfriendly terms
with an officer of the company.
Hal Kaplan, the president of Respondent, testified that
when he hired Pietri, the latter said he had experience on the
flexographic machine and did not claim that he could operate
other types of equipment. Kaplan stated that flexographic
printing is similar to other types of printing.
C. The Wage Increase
Kaplan testified that Respondent’s policy concerning wage
increases was that they were given ‘‘to employees who show
certain signs of improvement or doing a decent job.’’ Fur-
ther, employees hired at a low rate are given increases to
reach the rate promised when they were first hired. In 1987,
Pietri was earning a lot more than other employees due to
his many years of experience. Other employees in the print-
ing department were Florentin Toc, who received an increase
after having worked for Respondent for a short while, and
Jimmy Dean, who was given a raise after going several years
without any raise. A third printer, Kenneth Costa, did not re-
ceive a raise. Kaplan did not give any reason Costa did not
receive an increase. On cross-examination by counsel for the
General Counsel, however, Kaplan conceded that from 1986
to 1989 all the printing employees of Respondent received at
least one raise in pay. Kaplan testified that Pietri earned
more when he was terminated than he had when he began
to work for Respondent in 1981.
Seymour Naps, plant manager of Respondent since May
1987, testified that he is an electronic engineer by training.
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The record does not disclose the precise reasons for Pietri’s leaving Halpak
after his reinstatement.
7 An enrolled actuary is co-licensed by the Department of Labor and the In-
ternal Revenue Service to practice before the Internal Revenue Service in con-
nection with defined benefit pension plans.
8 The plan sponsor of a defined benefit plan is required to contribute a sum
each year sufficient for the plan to meet its future liabilities. The sum varies
with the liabilities and with the performance of the assets already in the fund.
9 This amount would be the same if Pietri had continued in Respondent’s
employ for any length of time until August 31, 1989, the plan anniversary
date. See ALJ Exhs. 1 and 2.
He learned to operate the presses in 1-1/2 days. Naps testi-
fied that the Respondent did not give uniform wage in-
creases. There was no company policy relative to highly paid
employees. However, Naps tried to conduct a yearly review
of employees, but he did not always grant a yearly increase.
Naps supervised Pietri during his brief reinstatement.6 He
stated that he would not have given Pietri an increase at that
time because his work was below standard, he did not follow
directions, and he had a bad attitude.
D. The Pension Plan
Ronald Meyers, an enrolled actuary, is the chief actuary
for the organization which administers Respondent’s pension
plan.7 This plan is a defined benefit plan; that is, it is de-
signed to produce a monthly benefit to participants at the re-
tirement age of 65 years.8 A participant in the plan does not
have an account balance, but has a portion of the assets that
are provided by the employer to fund the plan. Meyers stated
that when Pietri was discharged by Respondent, he was enti-
tled to a monthly benefit of $121.67 per month. Based on
the actuarial and interest assumptions mandated in the plan,
this was worth $8728 at the time of Pietri’s termination.
Meyers later calculated that if Pietri had been employed until
February 16, 1989, he would be entitled to a monthly retire-
ment benefit of $191.50 at age 65.9 The present value of that
benefit is $16,130.61. Pursuant to the plan, according to
Meyers, lump sums under $3500 may be paid out by the
plan trustee. But precedent of the plan provides that sums
over $3500 may not be paid out prior to the 65th birthday
of the participant. If the trustee were to break this precedent,
it would be obliged to pay out all other such sums in the
future in order to avoid acting in a discriminatory manner.
Meyers testified that the trustee would be engaging in dis-
crimination, from the point of view of the plan, if it paid out
a lump sum over $3500 because the interest on the sum paid
out to Pietri would be lost to the other plan participants. Fur-
ther, spousal consent is now necessary to a participant’s re-
ceipt of a lump sum over $3500 in lieu of a monthly payout
and the lack of such consent would bar the trustee from mak-
ing a lump-sum payment to Pietri.
The General Counsel seeks an order requiring Respondent
to contribute to the pension plan amounts necessary for the
payment of a pension to Pietri once he reaches age 65 of a
monthly benefit of $191.50 in accordance with the terms of
the plan.
E. Discussion and Conclusions
I find that General Counsel has shown that Pietri would
have received a wage increase of 75 cents on February 10,
1987. All of Respondent’s printers received at least one wage
increase between 1986 and 1989. Respondent does not dis-
pute that 75 cents was the average wage increase given dur-
ing that period. I do not give any weight to Naps’ testimony
that Pietri was not a good worker during his short reinstate-
ment in 1989. The question before me requires a finding
whether Pietri would have received an increase in 1987. Re-
spondent has not shown that he would not have been granted
the increase. I note that although it may be difficult to meet
this burden, that is a consequence of Respondent’s unlawful
action which it alone must bear.
At the hearing, counsel for Respondent stated his intention
to introduce Respondent’s payroll records to show that dur-
ing the backpay period Respondent’s employees in the print-
ing department worked less than 40 hours per week as a re-
sult of layoffs and a fall in business. Based on those records,
counsel for Respondent asserted that the General Counsel’s
calculations on backpay are in error. When asked by the ad-
ministrative law judge how he was intending to prove his
case given his intention not to have a witness testify con-
cerning the payroll records and what they were purported to
show, counsel for the Respondent replied that he would ex-
plain the records in his brief. The administrative law judge
cautioned counsel that it was his burden, and not the burden
of the court, to make the appropriate calculations based on
the records. Counsel was specifically cautioned that it was
his task to go through the records and explain what they
mean and that he could not merely place the records in evi-
dence and rely on a flat statement to convince the judge.
Counsel was told that it was his job to go through the
records and show how they supported his contention that em-
ployees worked less than 40 hours per week. Later in the
hearing, counsel for Respondent was again cautioned that the
administrative law judge would not pore over the payroll
records to try to determine which employees worked a cer-
tain number of hours and earned a certain amount per week;
counsel was told ‘‘that is something that you have to do.’’
Respondent contends that General Counsel erred in basing
the specification on a 40-hour workweek resulting in 520
straight time hours per quarter. It urges that there were lay-
offs during the backpay period. I cannot find that there were
any layoffs because no witness testified to this fact; it is an
unsupported assertion in Respondent’s brief. Nor do the pay-
roll records establish that there were layoffs. The payroll
records show that many employees worked 40 regular hours
per week, and they also show that some employees did not
work 40 hours per week for certain weeks. But the payroll
records do not show that the employees working less than 40
hours per week were on layoff. For aught that appears in the
evidence before me, these employees were unavailable for
work for other reasons. Moreover, Pietri was the head printer
and there is no evidence before me to show that even if there
had been a layoff Pietri would have been affected in a man-
ner similar to the less senior printing department employees.
A similar analysis must be applied to Respondent’s con-
tention that Pietri would not have worked the overtime hours
claimed by the General Counsel in the specification. The
payroll records show that employees worked certain overtime
hours for each quarter in the backpay period. The General
Counsel found the average overtime hours worked per quar-
ter by the employees and applied this to the backpay calcula-
tions for Pietri. Respondent’s answer provides average over-
time hours that, in some quarters, are identical to the General
Counsel’s figures and, in some other quarters, are different
from General Counsel’s figures. But nowhere does Respond-
693HALPAK PLASTICS
10 I do not credit Scher’s testimony that Pietri told him he did not apply
to Sidrane because an individual named Thomas worked there. My observation
of Scher and my reading of his testimony convince me that his recollection
is inaccurate.
11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
ent explain what method it used to arrive at the different av-
erage overtime figures. I have analyzed the payroll records
for certain of these quarters and I cannot understand what
computation Respondent may have used to arrive at the fig-
ures in its answer. Respondent was cautioned twice that it
must provide both facts and a rationale to support its answer
if it wished to dispute the amounts claimed by the General
Counsel. This it has failed to do. Therefore, I find that the
General Counsel has correctly calculated the gross backpay
due to Pietri.
The General Counsel has the burden of proof to show that
Respondent was guilty of an unfair labor practice and the
General Counsel has the further burden of proof to show the
gross amounts of backpay due to an unlawfully discharged
employee. ‘‘When this has been done, however, the burden
is upon the employer to establish facts which would negative
the existence of liability to a given employee or which would
mitigate that liability.’’ NLRB v. Brown & Root, 311 F.2d
447, 454 (8th Cir. 1963). In the instant case, the General
Counsel has shown the gross amounts of backpay due per
quarter. Respondent must now show that Pietri did not miti-
gate damages.
The facts show that immediately after his unlawful dis-
charge by Respondent, Pietri found full-time employment
with Arcon which he held until he was terminated following
an illness in early 1988. Respondent has not shown that dur-
ing this period Pietri failed properly to mitigate damages.
After his discharge from Arcon, Pietri registered with the
State Division and reported weekly to the job service. He
checked with various employers every week, spoke to friends
in the business, and he consulted newspaper advertisements
on a weekly basis. It is well established that an unlawfully
discharged employee is required to make ‘‘reasonable exer-
tions’’ to find interim employment while awaiting reinstate-
ment by the employer; he is not held to the highest standard
of diligence and any uncertainty in the evidence is resolved
against the wrongdoer. Rainbow Coaches, 280 NLRB 166,
180 (1986). I find from the evidence before me that Pietri
did make the required reasonable exertions to find interim
employment.
Pietri testified that he received and rejected offers to work
in his field at rates much lower than the $11.50 per hour he
had been earning when Respondent unlawfully discharged
him. Although the record does not show the wages actually
being offered, Scher testified that Pietri told him he had re-
fused employment that paid only $7.50 or $8.50 per hour.
The difference between these wages and the hourly wage of
$11.50 Pietri was earning when he was unlawfully dis-
charged or the $12.25 wage he would have earned after hav-
ing received a raise from Respondent in 1987 was substan-
tial. I find that Pietri was not required to accept employment
which would have reduced his wages by such significant
amounts. Waukegan-North Chicago Transit Co., 235 NLRB
802 fn. 4 (1978).
Although Respondent argues that Pietri refused work at A.
Kimbell Co., the evidence shows that Pietri was never of-
fered a job by that company. Respondent makes much of the
fact that Pietri did not apply for work at K. Sidrane, Inc.,
a company that weekly advertised for printers. Pietri testi-
fied, and I credit him, that he did not apply for a job at
Sidrane because he had once worked for that company and
had resigned when conditions deteriorated and he was on bad
terms with an officer of the firm.10 I need not consider
whether it was wrong for Pietri to omit Sidrane from his
search; before such a determination is necessary, Respondent
must show that Sidrane would have offered Pietri a position
had he applied for work. Rainbow Coaches, supra at 189.
Similarly, Respondent argues that Pietri should have
searched for work not only in his own field of flexographic
printing but also in other printing fields. Respondent urges
that Pietri could have easily learned a new field. Respond-
ent’s argument on this point must also fail. There is no evi-
dence in the record to show that there was an employer in
the printing field, paying wages similar to those Pietri had
earned at Halpak, and willing to offer Pietri a job in a related
field and to train him to perform that job. It was Respond-
ent’s burden to show that such a potential employer for Pietri
existed during the backpay period. Respondent did not meet
that burden.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Halpak Plastics, Inc., Oceanside, New
York, its officers, agents, successors, and assigns, shall pay
to David Pietri the sum of $22,861.36 plus interest. Interest
shall be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), and accrued to the
date of payment, minus the tax withholdings required by
Federal, state, and local laws. Respondent shall contribute to
its defined benefit pension plan such amounts as shall be
necessary for the payment to David Pietri once he reaches
the age of 65 a monthly benefit of $191.50.