JLL Restaurant, Inc. d/b/a The Smokehouse Restaurant; Seth R. Morriss, Chief Executive Officer

National Labor Relations Board - Board Decisions

Dec 15, 2017

365 NLRB No. 166 (N.L.R.B. 2017)

365 NLRB No. 166
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Smoke House Restaurant, Inc. and Hotel Employees
and Restaurant Employees Union, Local 11,
AFL–CIO.1 Cases 31–CA–026240, 31–CA–
026418, and 31–CA–026285
December 15, 2017
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS MCFERRAN
AND KAPLAN
On February 26, 2013, Administrative Law Judge John
J. McCarrick issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief,
the General Counsel and the Charging Party each filed an
answering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,2 and
conclusions only to the extent consistent with this Sup-
plemental Decision and Order and to adopt the judge’s
recommended Order as modified and set forth in full
below.3
Judge McCarrick ordered the Respondent to pay, with
interest, approximately $1.25 million to the Union’s
Welfare Fund, approximately $213,000 to reimburse its

1 The Charging Party is now known as UNITE HERE Local 11.
2 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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.
3 We will modify the judge’s recommended Order to conform to the
Board’s standard language for supplemental orders in compliance pro-
ceedings. In addition, we will omit certain remedies the judge errone-
ously included in his recommended Order: the compound interest
remedy the Board adopted in Kentucky River Medical Center, 356
NLRB 6 (2010), and the tax-compensation and Social Security Admin-
istration–notification remedies the Board adopted in Latino Express,
Inc., 359 NLRB 518 (2012), reaffirmed in Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB 101(2014), and revised in AdvoServ
of New Jersey, Inc., 363 NLRB No. 143 (2016). These remedies were
not included in the Board’s Order in the underlying unfair labor prac-
tice case, which was enforced by the Court of Appeals for the Ninth
Circuit. Because the Board’s Order was enforced by the court of ap-
peals, we no longer have jurisdiction to modify it. See Scepter, Inc. v.
NLRB, 448 F.3d 388, 391 (D.C. Cir. 2006) (“The Board obviously
cannot modify an order . . . that the court has enforced in a final judg-
ment.”); NLRB v. Gimrock Construction, Inc., 695 F.3d 1188, 1192–
1193 (11th Cir. 2012) (same); Interstate Bakeries Corp., 360 NLRB
112, 112 fn. 4 (2014).
employees for premiums they paid for health insurance
coverage, and approximately $9600 to employee Lynne
Pearson to reimburse her for out-of-pocket medical ex-
penses. We affirm the two reimbursement awards,4 but
for the reasons stated below, we reverse the judge’s
award to the Union’s Welfare Fund.
Background
This case is before the Board on exceptions to Judge
McCarrick’s supplemental decision. The supplemental
decision addresses issues regarding the Respondent’s
compliance with remedies the Board ordered in the un-
derlying merits decision, which issued in 2006 and which
the Ninth Circuit enforced in 2009.5 Before turning to
the issues presented by the supplemental decision, we
will provide some context by briefly summarizing the
events that gave rise to this case as well as the Board’s
2006 merits decision.
Smoke House Restaurant was established in 1946 and
moved to its current location in Burbank, California, in
1949.6 For some years prior to 2003, it was owned and
operated by JLL Restaurant, Inc., d/b/a Smoke House
Restaurant (JLL). Hotel Employees and Restaurant Em-
ployees Union, Local 11, AFL-CIO (Union) represented
a bargaining unit of JLL’s employees. JLL and the Un-
ion were parties to a collective-bargaining agreement
(CBA) effective September 15, 1996, through September
14, 2001, and renewing automatically from year to year
thereafter absent termination or reopening.7 The CBA
provided healthcare benefits for JLL’s unit employees
through the Union’s Welfare Fund, and it required JLL to
pay into the Welfare Fund at a contractually specified
rate.
In 2002, JLL filed for bankruptcy. In February 2003,8
Smoke House Restaurant, Inc. (Respondent) offered to
purchase JLL’s assets. On April 2, the Union contacted
the Respondent and requested a meeting. The Respond-
ent denied the request. On or about April 10, the Re-
spondent and JLL executed a purchase and sale agree-

4 The Respondent did not except to the requirement in the judge’s
supplemental decision that it reimburse employees for their insurance
premiums and out-of-pocket medical expenses. To the contrary, the
Respondent acknowledged that the make-whole remedy in the Board’s
underlying order requires it to reimburse employees for “out-of-pocket
premium and medical payments they individually incurred” (R. Excep-
tions Br. at 8). The Respondent did except to the General Counsel’s
calculation of the amounts of those out-of-pocket costs and expenses.
We find those exceptions to be without merit.
5 Smoke House Restaurant, 347 NLRB 192 (2006), enfd. mem. 325
Fed. Appx. 577 (9th Cir. 2009).
6 See http://smokehouse1946.com/smokehouse_legacy.html (last
visited Sept. 26, 2017).
7 There is no evidence that either JLL or the Union ever terminated
or reopened the CBA.
8 All dates hereafter are in 2003 unless stated otherwise.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment. On April 21 and 23, the Union picketed the res-
taurant, and some employees of JLL took part in the
picketing. During and after the picketing, agents of JLL
made statements to JLL’s employees that violated Sec-
tion 8(a)(1) of the Act.9 Hard on the heels of these un-
lawful statements, a majority of JLL’s unit employees
signed a petition stating that they were choosing to end
their relationship with the Union.
In early to mid-April, the Respondent interviewed pro-
spective employees, including JLL’s employees. During
those interviews, the Respondent told JLL’s employees
that it was going to operate the restaurant as a nonunion
enterprise.
JLL ceased operations and closed the restaurant on
April 27. Just prior to closing the restaurant, JLL em-
ployed 70 bargaining-unit employees. The Respondent
hired 63 of JLL’s former unit employees.10 On May 1,
the Respondent opened the restaurant and commenced
operations. At that time, almost all the Respondent’s
employees were former unit employees of JLL who were
represented by the Union. The Respondent continued
providing the same dining services in the same location
for the same customer community, serving essentially the
same types of food and using the same equipment, inven-
tories, and facilities previously used by JLL.
On May 9, the Union requested recognition and bar-
gaining. In reliance on the union disaffection petition
signed by a majority of its employees, the Respondent
refused the Union’s request. The Respondent discontin-
ued making payments into the Union’s Welfare Fund that
JLL had made in accordance with the CBA, and the Fund
ceased furnishing healthcare coverage to the Respond-
ent’s unit employees.
 In its 2006 decision, the Board found and conclud-
ed in relevant part as follows.

9 Specifically, JLL’s agents directed employees to cease picketing,
threatened to discharge employees for engaging in union activity on
nonworking time, interrogated employees about their union activity,
threatened to discourage the Respondent from hiring employees be-
cause they engaged in union activity, threatened employees with job
loss and closure of the restaurant because they engaged in union activi-
ty, and coerced employees into signing a union disaffection petition.
The Board found that the Respondent was liable to remedy JLL’s unfair
labor practices under Golden State Bottling Co. v. NLRB, 414 U.S. 168
(1973). Smoke House Restaurant, 347 NLRB at 192 fn. 2.
10 The General Counsel alleged that the Respondent violated Sec.
8(a)(3) of the Act by refusing to hire seven former employees of JLL.
Administrative Law Judge Lana Parke found that the Respondent un-
lawfully refused to hire four of the seven, and Judge Parke dismissed
the allegations regarding the other three. Smoke House Restaurant, 347
NLRB at 205–207. The Board adopted Judge Parke’s findings, id. at
194-195, and the Ninth Circuit enforced them, NLRB v. JLL Restau-
rant, 325 Fed. Appx. at 578.
 The Respondent was a legal successor to JLL un-
der the Supreme Court’s decision in NLRB v.
Burns Security Services, 406 U.S. 272 (1972).11
 The disaffection petition signed by JLL’s employ-
ees (subsequently hired by the Respondent) was
tainted by JLL’s unlawful statements to its em-
ployees. Thus, the Respondent could not rely on
that petition to establish that the Union no longer
enjoyed the support of a majority of employees in
the bargaining unit.
 The Respondent violated Section 8(a)(5) of the
Act by refusing, on request, to recognize and bar-
gain with the Union.
 The Respondent violated Section 8(a)(1) of the
Act by stating to JLL’s employees during job in-
terviews that it was going to operate the restaurant
as a nonunion enterprise.
 As a result of the latter statement, the Respondent
forfeited the right of a Burns successor to set initial
terms and conditions of employment, in accord-
ance with Advanced Stretchforming International,
323 NLRB 529 (1997).12
 Because the Respondent forfeited the right to set
initial employment terms unilaterally, the Re-
spondent violated Section 8(a)(5) when it unilater-
ally discontinued payments to the Union’s Welfare
Fund.13
To remedy the 8(a)(5) violations, the Board ordered the
Respondent to (i) bargain with the Union, (ii) “retroactively

11 Under Burns, supra, and Fall River Dyeing and Finishing Corp.
v. NLRB, 482 U.S. 27 (1987), an employer that acquires, and continues
in substantially unchanged form, the business of a unionized predeces-
sor and hires as a majority of its workforce, or of a segment of its work-
force constituting an appropriate bargaining unit, the predecessor’s
union-represented employees is deemed a legal successor to the union-
ized predecessor, and it must recognize and bargain with the unit em-
ployees’ incumbent bargaining representative if and when that repre-
sentative demands recognition or bargaining. Generally, however, a
legal successor is not required to adopt its predecessor’s terms and
conditions of employment. Rather, the successor has the right to set its
own initial employment terms and to do so unilaterally, i.e., without
giving the union notice and opportunity to bargain.
12 As stated above, a legal successor under Burns generally is not
required to adopt its predecessor’s terms and conditions of employment
but has the right to set its own initial employment terms and to do so
unilaterally. However, under Advanced Stretchforming International,
supra, a successor forfeits this right if tells prospective employees that
it will operate nonunion.
13 Because the Ninth Circuit enforced the Board’s Order, we are
without authority to revisit the basis of the Board’s finding that the
Respondent violated Sec. 8(a)(5) when it discontinued payments to the
Welfare Fund—i.e., the holding of Advanced Stretchforming Interna-
tional that a legal successor who announces an intention to operate
nonunion loses its right under Burns to set initial employment terms.
We express no views as to whether Advanced Stretchforming Interna-
tional was correctly decided in this regard.
SMOKE HOUSE RESTAURANT, INC. 3
restore” JLL’s terms and conditions of employment, and
(iii) make employees whole for any losses incurred as a
result of the Respondent’s unilateral cessation of contribu-
tions to the Welfare Fund.14 Again, the Ninth Circuit en-
forced the Board’s order.
Discussion
The instant proceeding is a compliance proceeding. Its
purpose is to determine, and spell out in dollars-and-
cents terms, exactly what the Respondent must do to ful-
ly comply with the Board’s underlying 2006 order. The
starting point of this determination is the language of the
underlying order itself. Also, the Board’s administrative
law judges routinely include a “remedy” section in their
decisions that further defines and clarifies the respond-
ent’s remedial obligations; and the Board, in its decision
and order, may amend the remedy section of the judge’s
decision. Thus, in addition to examining the language of
the underlying order itself, the Board in a compliance
proceeding must also examine the remedy section of the
judge’s decision and any amendments the Board may
have made to that section.
In the instant case, Judge Parke ordered the Respond-
ent, in relevant part, to “retroactively restore the terms
and conditions of employment of the employees in the
unit as established by the collective-bargaining agree-
ment between JLL and the Union and make employees
whole for any losses they incurred as a result of unilat-
eral changes made thereto.” Smoke House Restaurant,
347 NLRB at 209. The Board adopted the judge’s order
“as modified,” id. at 192, but the Board did not modify
the just-quoted remedy, see id. at 192 fn. 2 (modifying
the judge’s recommended order to comply with the re-
medial time limits set forth in Indian Hills Care Center,
321 NLRB 144 (1996), and substituting new notices in
accordance with the “plain language” directives in Ishi-
kawa Gasket America, Inc., 337 NLRB 175 (2001), affd.
354 F.3d 534 (6th Cir. 2004)). The Board did not order
the Respondent to make the Union’s Welfare Fund
whole.
The remedy section of the judge’s decision is con-
sistent with her order. When a judge orders make-whole
contributions to one or more union funds, the remedy
section of the decision typically includes a requirement
that the respondent also pay additional amounts due the
funds in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979).15 Thus, if the language

14 347 NLRB at 209.
15 Fn. 7 in Merryweather Optical reads, in relevant part, as follows:
Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory
stage of a proceeding for the addition of interest at a fixed rate on un-
of the order in the 2006 decision left any uncertainty
whether Judge Parke or the Board intended to provide a
make-whole remedy for the Union’s Welfare Fund, a
citation to Merryweather Optical in the remedy section
of the judge’s decision, or an amendment of the remedy
section in the Board’s decision to add a citation to Mer-
ryweather Optical, would have clarified the judge’s and
the Board’s intentions. There is no citation to Merry-
weather Optical in the remedy section of the judge’s
decision.16 There is no amendment of that section in the
Board’s decision adding a citation to Merryweather Op-
tical.
After the General Counsel issued a compliance speci-
fication alleging that the Respondent owes $1.25 million,
plus interest, to the Union’s Welfare Fund, the Respond-
ent filed an amended answer to the compliance specifica-
tion pointing out that the Board’s order did not include a
remedy requiring payments to the Welfare Fund. Coun-
sel for the General Counsel responded by filing a motion
to strike this portion of the Respondent’s amended an-
swer, in which counsel attacked the Respondent’s state-
ment as follows:
A core premise of Respondent’s argument . . . flies in
the face of clear language of the Board’s Decision in
denying “that the Board’s ‘make whole’ order includes
a provision to make retro-premium payments to the
Trust Funds.” On the contrary, the May 31, 2006
Board Decision clearly and unambiguously states that
the make whole remedy is retroactive. The Board
adopted the portion of the ALJ’s Order recommending

lawfully withheld fund payments. We leave to the compliance state
[sic] the question of whether Respondent must pay any additional
amounts into the benefit funds in order to satisfy our “make-whole”
remedy. These additional amounts may be determined, depending
upon the circumstances of each case, by reference to provisions in the
documents governing the funds at issue and, where there are no gov-
erning provisions, to evidence of any loss directly attributable to the
unlawful withholding action, which might include the loss of return on
investment of the portion of funds withheld, additional administrative
costs, etc., but not collateral losses.
16 In relevant part, the remedy section of the judge’s decision directs
the Respondent to “make whole unit employees for losses resulting
from its unlawful unilateral changes in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), with interest to be comput-
ed in the manner prescribed in New Horizons, 283 NLRB 1173
(1987).” There is no citation to Merryweather Optical. Moreover, just
as there is no mention in the judge’s recommended order of a make-
whole remedy for the Union’s Welfare Fund, so also there is no men-
tion of such a requirement either in the remedy section of her decision
or in an amendment of the remedy section in the Board’s decision and
order. In this regard, Judge McCarrick’s supplemental decision mis-
characterizes the Board’s decision and order. He states that “[t]he
Board directed . . . contributions and reimbursements to be computed as
prescribed in Ogle Protection Service” (emphasis added). As we have
just seen, however, neither Judge Parke nor the Board directed the
Respondent to make any contributions to the Union’s Welfare Fund.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that “Respondent shall . . . . on request of the Union,
retroactively restore the terms and conditions of em-
ployment of the employees in the unit as established by
the collective bargaining agreement between JLL and
the Union and make employees whole for any losses
they incurred as a result of unilateral changes made
thereto.”
(Emphasis in original.) Counsel persuaded Judge McCar-
rick, who agreed with the General Counsel’s argument, as
does the dissent. But notwithstanding the General Coun-
sel’s whistling-past-the-graveyard overstatement, the Re-
spondent’s amended answer to the compliance specification
does not “[fly] in the face” of the language of the Board’s
2006 decision. To the contrary, the Respondent is exactly
right.
Again, there is no mention of making the Union’s
Welfare Fund whole anywhere in the 2006 decision and
order, nor is there any indirect indication—through cita-
tion of Merryweather Optical, supra—that the judge or
the Board intended the order to encompass payments to
the Welfare Fund. Moreover, the General Counsel’s
attempt to fabricate such a requirement out of language
requiring the Respondent to “retroactively restore” the
unit employees’ terms and conditions of employment
makes no sense. If the Respondent gives the Union’s
Welfare Fund $1.25 million (plus interest) now, this
would not “retroactively restore” the unit employees’
terms and conditions of employment as established by
the collective-bargaining agreement between JLL and the
Union. Specifically, such a payment would not “retroac-
tively restore” unit employees’ healthcare coverage un-
der the Welfare Fund during the backpay period alleged
in the compliance specification: May 2003 through Au-
gust 2012. No payments to the Fund made now can “ret-
roactively restore” healthcare coverage that did not exist
during that nine-plus-year period. The Board has certain
powers, but among them is not included the power to
reverse time, go back to May 1, 2003, and create a paral-
lel reality in which the employees never lost coverage
under the Welfare Fund. Thus, the Board’s order to “ret-
roactively restore” the terms and conditions of employ-
ment established by the CBA between JLL and the Un-
ion cannot reasonably be read to require a make-whole
award to the Welfare Fund that will not achieve such a
retroactive restoration.
The dissent would find to the contrary, citing as au-
thority Wayne Stead Cadillac, 303 NLRB 432 (1991).
That case is inapplicable. Indeed, it did not even involve
a make-whole remedy for a union benefit fund. In
Wayne Stead Cadillac, the Board affirmed the judge’s
finding that the employer unlawfully discharged three
employees. To remedy that violation, the judge ordered
the employer, among other things, to offer the employees
reinstatement “and make them whole for losses sustained
by reason of the discrimination against them . . . as set
forth in the remedy section of this decision.” 303 NLRB
at 440. In the remedy section of his decision, the judge
said that the three employees were to be made whole “for
any loss of earnings they may have suffered.” Id. at 439.
Excepting, the charging party union asked the Board to
modify the judge’s order “to include explicit reference to
pension and health and welfare fund benefits.” Id. at 432
fn. 3. The Board declined the request, stating that “the
language in the judge’s remedy is broad enough to en-
compass such relief.” Id. Thus, the issue in Wayne
Stead Cadillac was whether an order requiring the em-
ployer to make employees whole “for losses sustained by
reason of the discrimination against them . . . as set forth
in the remedy section of this decision” encompassed lost
benefits as well as lost wages where the remedy section
did not specifically refer to benefits. In other words, in
Wayne Stead Cadillac, the issue was what the make-
whole remedy for the employees included: wages only,
or wages plus benefits? Here, in contrast, the issue is not
what the make-whole remedy for employees includes,
but whether a make-whole remedy for employees implies
a remedy for a different recipient altogether, a union
benefit fund. Thus, Wayne Stead Cadillac is inappo-
site—and common sense dictates that a remedy for em-
ployees does not and cannot imply a remedy for an en-
tirely different nonemployee recipient, i.e., a union fund.
Moreover, even if the Board inadvertently omitted a
make-whole remedy for the Union’s Welfare Fund from
the 2006 order, and even if we wished to correct that
inadvertent omission now, we lack authority to do so.
Again, the Board does not have jurisdiction to modify a
court-enforced order. See fn. 3, supra. Because the
Board’s 2006 order did not contain a make-whole reme-
dy for the Fund, and the Ninth Circuit enforced the
Board’s order, we are without jurisdiction to modify the
court-enforced order by requiring the Respondent to pay
into the Fund. Simply put, our hands are tied. Accord-
ingly, we will issue an order limited to those amounts
necessary to make the unit employees whole for their
insurance premium payments and out-of-pocket medical
expenses.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Smoke House Restaurant, Inc., Burbank,
California, its officers, agents, successors, and assigns,
shall make whole the individuals named below by paying
them the amounts following their names, plus interest as
SMOKE HOUSE RESTAURANT, INC. 5
prescribed in New Horizons, 283 NLRB 1173 (1987),
minus tax withholdings required by federal and state
laws.
Employee Make-whole amount
Arevalo, Sebastian $2,672.06
Avila, Luis $2,573.07
Banda-Cervantes, Rafael $1,548.94
Buell, Elizabeth $115.12
Bueno,Jose $5,276.69
Colazzo-Martino, Christine $545.70
Crimo, Yvonne $5,395.06
Cuevas, Jose $21,268.33
De La Cruz, Mary $5,414.74
De La Luevanos, Eleazar $3,397.83
Del Sol, Antonio $1,093.86
Denniss, Judith $3,611.74
Garcia, Alfredo J. $220.75
Garcia, Rodolfo $2,686.73
Hernandez, Jose Luis $975.60
Herrera, Arturo $1,765.88
Herrera, Jose A. $5,572.96
Iuorno, Angela $661.96
Lake, Michael $903.54
Lima, David $2,590.50
Lopez, Jason A. $294.42
Lopez, Jose M. $14,845.64
Lopez, Juan J. $2,621.84
Lopez, Manuel $2,522.81
Lowman, Kellie $70.82
Martinez, Francisco $1,367.31
Martinez, Ismael V. $5,866.74
Martinez, Uriel $5,967.90
McMillan, Gary $5,507.16
Medina, Oscar $175.32
Mendoza, Shelley $3,068.47
Mier, Fernando $8,073.33
Mier, Hector $1,280.17
Munoz, Jose Luis $1,832.11
Munoz, Leopoldo $6,625.28
Munoz, Roman $1,143.77
Nava, Sabino $1,296.53
O’Leary Marcus $3,139.77
Orozco, Ismael $7,380.25
Ortiz, Alberto $4,625.07
Oxenham, Alicia $1,066.56
Pearson, Lynne $11,349.23
Peinado, Paul $145.35
Perez, Ramiro $226.20
Puente, Jesus $5,874.03
Puente, Rito $8,136.54
Rodriguez, Hector $521.92
SaIdana, Vicente $2,082.74
Salomon, Hector M. $6,470.49
Sanchez, Francisco $2,648.33
Scott, Derrick $694.00
Sheifer, Stephanie $2,814.22
Solis, Alberto $3,781.89
Solis, Elizondo $5,975.71
Solis, Rosa $260.80
Street, Linda $14,723.25
Strutt, Rachel $163.00
Suarez, Jose $5,906.00
Valdez, Faustino $3,397.83
Vasquez, Alfredo M $967.47
Total: $223,201.33
Dated, Washington, D.C. December 15, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
Unlike my colleagues, I would affirm the judge’s find-
ing that the Board’s 2006 Order requires the Respondent
to reimburse the Union’s health and welfare trust fund
for losses under the terms of the last collective-
bargaining agreement in effect between the Respondent’s
predecessor and the Union.
In its original decision in Smoke House Restaurant,
347 NLRB 192 (2006), enfd. mem. sub nom. NLRB v.
JLL Restaurant, Inc., 325 Fed.Appx. 577 (9th Cir. 2009),
the Board ordered the Respondent to, as relevant here,
“retroactively restore the terms and conditions of em-
ployment of the employees in the unit as established by
the collective-bargaining agreement between JLL [the
Respondent’s predecessor] and the Union and make em-
ployees whole for any losses they incurred as a result of
unilateral changes made thereto.” The terms of that col-
lective-bargaining agreement obligated the Respondent
to contribute, on behalf of its employees, to the Union’s
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
health and welfare trust fund; however, it is undisputed
that the Respondent has failed to do so since 2003.
In my view, the “make employees whole” language in
the Board’s 2006 Order suffices to require the Respond-
ent to reimburse the Union’s trust fund as part of the re-
lief ordered for employees, notwithstanding the absence
of any specific reference to that fund in the Order. My
colleagues disagree, emphasizing that neither the 2006
Order nor the judge’s “remedy” discussion underlying
that Order references the fund. But our precedent coun-
sels against such an overly restrictive reading of the Or-
der. In Wayne Stead Cadillac, for example, the Board
found it unnecessary “to include explicit reference to
pension and health and welfare fund benefits . . . because
such fringe benefits are routinely includible under a
make-whole order.”1 Thus, the 2006 Order supports re-
quiring the Respondent to make all delinquent payments
to the Union’s trust fund, again for the benefit of the bar-
gaining-unit employees.
My colleagues further object that the Board no longer
has jurisdiction “to modify” its 2006 Order because it has
been enforced by the Ninth Circuit.2 But I am not advo-
cating for a “modification” of the 2006 Order. Rather,
consistent with our precedent and generally applicable
legal principles, the Board need only “clarify” the terms
of that Order to ensure that the employees receive full
make-whole relief.3 Notably, making this clarification
would be consistent with both the Respondent’s and the
Ninth Circuit’s understandings that the 2006 Order did
require such payments to the Union’s fund. In its brief to
the court, the Respondent devoted no less than five pages
to arguing that it should not be required to reimburse the
trust fund (and did not so much as hint at the notion that
the Order did not encompass the reimbursements).4 The
Ninth Circuit found that it was jurisdictionally barred
from entertaining the Respondent’s arguments, but stated
that the Respondent could present at least some of these
arguments to the Board in the compliance proceeding,
thereby at least implicitly recognizing that such reim-
bursements fell within the scope of the Board’s Order.5

1 303 NLRB 432, 432 fn. 3 (1991).
2 See generally Scepter, Inc. v. NLRB, 448 F.3d 388 (D.C. Cir.
2006) (Once a Board order is enforced, the Board no longer has juris-
diction to modify it).
3 See Wayne Stead Cadillac, above. Cf. Arlington Indus., Inc. v.
Bridgeport Fittings, Inc., 759 F.3d 1333, 1337 (Fed. Cir. 2014) (“The
focus of the clarification-or-modification analysis is whether there
were changes to the original injunction that ‘actually altered the legal
relationship between the parties.’”).
4 Brief of Respondent, 2008 WL 4678750.
5 JLL Restaurant, Inc., supra, 325 Fed. Appx. 577. I agree with the
judge, however, that the court’s statements on this point are dicta and
that the Respondent’s arguments cannot be raised for the first time on
compliance.
Finally, there is no merit to my colleagues’ argument
that it would be illogical to clarify the Board’s 2006 Or-
der now to require reimbursement of the Union’s fund.
The purpose of ordering retroactive contributions to a
health and welfare fund is not to retroactively provide
employees with health coverage (which, as the majority
notes, is impossible), but to protect the employees’ future
interests in an adequately funded trust fund.6 We can
accomplish that legitimate remedial objective today.
For those reasons, I would join the judge in requiring
the Respondent to reimburse the Union’s trust fund. Do-
ing so is consistent with Board precedent, reflects the
understanding of both the Respondent and the Ninth Cir-
cuit, and is necessary to make the employees whole.
Dated, Washington, D.C. December 15, 2017
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
Nicole Pereira, Esq., for the Acting General Counsel.
Leon Jenkins, Vice President, of the Smokehouse Restaurant,
Burbank, California, for the Respondent.
Ellen Greenstone, Esq. (Rothner, Segall, & Greenstone), of Los
Angeles, California, for the Charging Party.
Kirill Penteshin, Esq. (UNITE HERE, Local 11), of Los Ange-
les, California, for the Charging Party.
Henry M. Willis, Esq. (Schwartz, Steinsapir, Dohrmann &
Sommers), of Los Angeles, California, on behalf of UNITE
HERE Trusts.
SUPPLEMENTAL DECISION
JOHN J. MCCARRICK, Administrative Law Judge. On May
31, 2006, the Board issued its Decision and Order1 finding that
Smokehouse Restaurant (Respondent) committed unfair labor
practices including unlawfully failing to apply the terms of the
collective-bargaining agreement between its predecessor, JLL
Restaurant, Inc. (Predecessor) and Hotel Employees and Res-
taurant Employees Union, Local 112 (Union) and unilaterally
changing terms and conditions of employment. The Board
directed, inter alia, that Respondent retroactively restore the
terms and conditions of employment of the employees in the
unit as established by the collective-bargaining agreement be-
tween Respondent and the Union, and make whole unit em-
ployees for losses resulting from Respondent’s unlawful unilat-
eral changes made thereto, contributions and reimbursements to
be computed as prescribed in Ogle Protection Service, 183
NLRB 682 (1970), with interest to be computed as prescribed

6 See generally Arandess Management Co., 337 NLRB 245, 247
(2001).
1 Smoke House Restaurant, 347 NLRB 192 (2006).
2 Now known as Unite Here! Local 11.
SMOKE HOUSE RESTAURANT, INC. 7
in New Horizons, 283 NLRB 1173 (1987). Thereafter on May
12, 2009, the United States Court of Appeals for the Ninth Cir-
cuit issued its Memorandum and Judgment3 enforcing the
Board’s Decision and Order.
This case was tried in Los Angeles, California, on September
25 and 26, 2012, upon the second amended compliance specifi-
cation and notice of hearing, as amended (specification) issued
on June 29, 2012, by the Regional Director for Region 31.4
The specification alleges that Respondent owes contributions to
the Los Angeles Hotel-Restaurant Employer-Union Welfare
Fund (Trust Fund) pursuant to the terms of the collective-
bargaining agreement between Respondent and the Union for
the period set forth in appendix A to the specification. It is
further alleged that Respondent owes medical expenses and
insurance premiums to bargaining unit employees as set forth in
appendix B to the specification.
On July 18, 2012, Respondent filed its answer to the compli-
ance specification and in a rambling and obtuse manner denied
that it owed bargaining unit employees reimbursement for med-
ical expenses or insurance premiums or owed trust fund contri-
butions to the Trust Fund.
Since the Court’s judgment enforcing the Board’s Order, Re-
spondent has failed to comply with the Board’s Order to rein-
state the terms and conditions of employment as set forth in the
collective-bargaining agreement.
The issues here for resolution are the amounts Respondent
owes to the Trust Funds and the amounts owed to bargaining
unit employees for medical expenses and health insurance pre-
miums.
All parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses, and having con-
sidered the post-hearing briefs of the parties, I make the follow-
ing:
FINDINGS AND CONCLUSIONS
A. Facts
1. The trust fund benefits
In its May 31, 2006 Decision and Order in Smoke House
Restaurant, supra at 205, the Board affirmed the administrative
law judge’s April 6, 2004 Decision finding that Respondent
was obligated to adopt the terms of its predecessor, JLL’s col-
lective-bargaining agreement as a consequence of Respondent’s
unlawful conduct in telling JLL employees that it would oper-
ate the restaurant without a union. Respondent was required to

3 Ninth Circuit No. 07-74755, Unpublished Memorandum filed May
12, 2009.
4 At the trial on September 25, 2012, counsel for the Acting General
Counsel moved to amend the compliance specification by adding up-
dated appendices A and B, reflecting revisions to the backpay contribu-
tion and backpay calculations found in the second amended compliance
specification. The amendment was granted. Also on November 19,
2012, counsel for the Acting General Counsel filed a Motion to Amend
Appendix B of the second amended compliance specification. Amend-
ed Appendix B does not change any of the data or the grand totals
stated in AGC Exh. 12, it only provides subtotals for each of the affect-
ed employees. There being no opposition, the Motion is granted.
follow the terms and conditions of employment established by
JLL’s contract with the Union until a new agreement or im-
passe was reached. The administrative law judge found:
As a consequence of Respondent’s unlawful conduct in tell-
ing JLL employees it would operate the Restaurant without a
union, Respondent lost the privilege of setting initial terms
and conditions of its employees when it assumed control of
the Restaurant on April 30. Instead, Respondent was required
to follow the terms and conditions of employment established
by JLL’s contract with the Union until such time as Respond-
ent negotiated a new contract with the Union or negotiated to
impasse.
In Smokehouse, supra at 209, the Board affirmed the admin-
istrative law judge, who required Respondent to make whole
employees for losses resulting from its unilateral changes:
(b) On request of the Union, retroactively restore the terms
and conditions of employment of the employees in the unit as
established by the collective-bargaining agreement between
JLL and the Union and make employees whole for any losses
they incurred as a result of unilateral changes made thereto.
The term of the collective-bargaining agreement between
JLL and the Union was September 15, 1996, to September 14,
2001, with a clause providing for automatic renewal. There is
no evidence that either party gave notice to terminate the col-
lective-bargaining agreement. The agreement provided that
Respondent was obligated to make health and welfare contribu-
tions to the health and welfare funds.5 It is undisputed that
since at least May 1, 2003, until the present, Respondent has
made no contributions to the Trust Funds.6
It is undisputed that on December 1, 2003, Respondent im-
plemented their own health care coverage requiring premium
deductions from employee paychecks.7
The parties stipulated that the calendar quarters set forth in
appendix A, column 1, of the second amended compliance
specification represent the relevant calendar quarters during the
liability period of May 1, 2003, through August 31, 2012.8
May 1, 2003, is the date the Board found the unilateral changes
took place.
The parties stipulated that the figures set forth in appendix A,
column 2, of the second amended compliance specification
accurately represent the hours worked by unit employees for
each calendar quarter based on Respondent’s payroll docu-
ments.
However, Respondent does not stipulate to the hours worked
by employee Lynne Pearson (Pearson) on grounds that she was
not an employee of Respondent during the relevant time period.
Respondent presented no probative evidence to support this
contention. Rather, the record reflects that Pearson, who
worked for Respondent as a server, is listed on Respondent’s
payroll documents, and was paid for hours worked, during May
1, 2003, through January 2007, with the exception of the pay

5 Jt. Exh 1, attachment 8 at pp. 8–10.
6 On April 1, 2012, the Trust Fund merged into UNITE HERE
HEALTH.
7 Jt. Exh. 1, attachment 4.
8 Jt. Exh. 1.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
periods during the third quarter of 2005, the fourth quarter of
2005, and the first quarter of 2006.9
Board Agent Danielle Pierce (Pierce), who is responsible for
all of the compliance cases in Region 31, testified concerning
the methodology she used in formulating and calculating the
backpay liability owed to the Trust Fund. Pierce used May 1,
2003, for the backpay period to commence since the Board
concluded that was when Respondent ceased making payments
to the Trust. She made calculations for the calendar quarters
through August 2012 based on payroll data supplied by Re-
spondent, and determined that liability continues to accrue
since Respondent has failed to date to reinstate the contractual-
ly required trust fund contributions. Pierce included the num-
ber of regular, overtime, and other hours worked by all bargain-
ing unit employees that appear within Respondent’s payroll
documents, in each pay period, and added all those values for
each pay period within each quarter. Pierce used the hourly
rate per bargaining unit employee at which Respondent was
obligated to make contributions as provided for in the JLL-
Union collective-bargaining agreement, $1.43, for the entire
backpay period. Pierce multiplied the hours worked, column 2
of appendix A, times rate, column 3 of appendix A to arrive at
the gross total for each calendar quarter. The Board agent added
all the gross totals, of each calendar quarter, to arrive at the
total contributions, $1,250,118.36, owed to the Trust Fund.
2. The reimbursement of employees’ health premiums
a. Health premiums
The parties stipulated that the employees listed in appendix
B, column I of the compliance specification represent Respond-
ent’s bargaining unit employees who were employed by the
Respondent for part or all of the period from December 1,
2003, through at least August 2012, and who paid health insur-
ance premiums.10 The parties further stipulated that the calen-
dar quarters listed in appendix B, column 2 of the second
amended compliance specification represent the relevant calen-
dar quarters where employees paid health insurance premi-
ums.11 The backpay period begins on December 1, 2003, and
runs through the end of August 2012.12 Pierce testified that the
only gaps in appendix B, column 2, occur where there were no
premium deductions being made from the employee’s pay dur-
ing a given quarter. The parties stipulated that the figures set
forth in appendix B, column 3, of the second amended compli-
ance specification accurately represent the premium expenses
paid by employees by payroll deduction for each calendar quar-
ter of the contribution period based on Respondent’s payroll
documents.13
In appendix B, column 3, Pierce included payments deducted
from each employee’s paycheck for health insurance premiums
during the relevant calendar quarter. These calculations were
based upon Respondent’s payroll documents from December 1,
2003, until July 2011. After July 2011, the Board agent used

9 Id., attachment 4.
10 Jt. Exh. 1.
11 Id.
12 GC Exh. 12.
13 Jt. Exh 1.
the Trust Fund’s summary plan document and its attachments
as well as the Respondent’s payroll documents to determine the
premium expenses listed in column 3. For all premium expens-
es after July 1, 2011, the Board Agent relied on an attachment
to the Trust Fund summary plan description which reflected
required employee premium contribution amounts and resulted
in a monthly deduction to the premium costs.
The computed amount of backpay owed to the listed em-
ployees for reimbursement of health insurance premiums is
$213,610.74.
b. Out-of-pocket medical expenses
Employee Lynne Pearson
Only Respondent’s employee Pearson reported medical ex-
penses. Pierce included all reimbursable medical expenses to
her in appendix B, column 4 of the second amended compli-
ance specification.14 At the hearing, the parties stipulated that
Pierce’s calculations were accurate based on the underlying
documents.
Pierce was unable to determine the specific health care plan
that Pearson had selected prior to the Respondent’s unilateral
change in health care plans on December 1, 2003. However,
under the Trust Fund plan, there were four medical plans offer-
ing different levels of coverage prior to and at the time of the
Respondent’s unilateral change.15 Accordingly, Pierce selected
the Kaiser plan B as the most representative plan as it offered
the highest level of coverage to the employees. Under Kaiser
plan B, employees were(?) had prescription drug coverage with
a $10 prescription copay, payable by the employee.
Also under the Kaiser plan B option, dependents were cov-
ered at no cost to the employee. Pierce made this determination
based on the language in the Trust Fund summary plan descrip-
tion16 which does not require payment for dependents. Under
the summary plan description dependents are defined as lawful
spouses and unmarried children 19 years old or younger. Addi-
tionally, children over the age of 19 are covered under the Trust
Fund plan if they are a disabled dependent.
Pierce determined that Pearson’s backpay period ran from
March 1, 2003, through January 2007, during the time she was
employed by the Respondent and receiving paychecks accord-
ing to Respondent’s payroll documents.17
Pearson testified without contradiction, and I credit her tes-
timony, that she paid for prescription drugs for herself. These
expenses are set forth in a summary of her expenses she ob-
tained from both CVS and COSTCO pharmacies.18
Pearson’s Dependent Daughter19
During the backpay period, Pearson also paid for prescrip-
tion drugs for her daughter. Pearson testified without contra-

14 GC Exh.12.
15 Jt. Exh. 1, attachment 7(a).
16 Id.
17 Jt. Exh. 1, attachment 4.
18 GC Exhs. 5 and 7.
19 Because of HIPPA medical information privacy concerns, Pear-
son’s daughter’s name was redacted from the exhibits received. How-
ever, I reviewed, in camera, unredacted copies of the daughter’s medi-
cal records to verify that they were hers.
SMOKE HOUSE RESTAURANT, INC. 9
diction, and I credit her testimony, that her daughter was born
in 1986, and has been diagnosed by her physicians with epilep-
sy, fibromyalgia, pain, muscle spasms, an overactive bladder,
and allergies. In addition in about 2006, Pearson’s daughter
was found disabled based upon both epilepsy and fibromyalgia
by the Social Security Administration and receives disability
benefits.
Pierce determined that prior to May 1, 2003, Pearson’s
daughter was covered by two health insurance plans, Blue
Cross Blue Shield and the Trust Fund plan. It was concluded
that this concurrent insurance provided that any medical ex-
penses incurred would first be covered by the primary insur-
ance under the particular terms of that policy including deduct-
ibles and copays. The amount left over, rather than just being
the patient’s responsibility to pay, is covered by the secondary
insurance policy.
Typically a dependent child would no longer be eligible for
coverage over the age of 19 under the Trust Fund plan. How-
ever, according to the Trust Fund summary plan document, if a
child is disabled the plan is not age limited. In view of her
impairments and the Social Security Administration’s finding
of disability in 2006, Pierce reasonably made her calculations
assuming that Pearson’s daughter was disabled.
Pearson testified without contradiction that her daughter took
prescription medications during the relevant backpay period. In
addition, the Blue Cross Blue Shield explanations of benefits
treatment records20 for her daughter reflect that Pearson paid
for numerous medical expenses for her daughter during the
liability period. These included medical expenses where Pear-
son paid the deductible and copayment amounts. Similarly,
Pearson paid the copayment amounts listed on CVS Pharmacy
summary of prescription documents,21 on behalf of her daugh-
ter, during the liability period. She also paid the copayment
amounts listed on a Costco pharmacy statement,22 on behalf of
her daughter, during the liability period.
The medical expenses calculated for both Pearson and her
daughter amount to $9,590.59, plus interest.
Pierce added the premium expenses, column 3,23 amended
appendix B, to the medical expenses, column 3, amended ap-
pendix B, to arrive at the premium & medical expenses owed to
each employee for each calendar quarter. Pierce then added all
the premium & medical expenses, to arrive at the grand total,
$223,201.33, owed to bargaining unit employees.
B. Analysis
1. The legal framework
It has been well established where an unfair labor practice
has been found, backpay is presumptively owed by the offend-
ing employer in a backpay proceeding. La Favorita, Inc., 313
NLRB 902, 902 (1994), enfd. 48 F.3d 1232 (10th Cir. 1995),
citing NLRB v. Maestro Plastics Corp., 354 F.2d 170, 178 (2d
Cir. 1965), cert. denied 384 U.S. 972 (1966).
It is the purpose of the compliance proceedings to restore the

20 GC Exh. 6.
21 Id.
22 Id.
23 GC Exh. 12.
status quo ante by restoring the circumstances that would have
existed had there been no unfair labor practices. Hubert Dis-
tributors, Inc., 344 NLRB 339, 341 (2005); Alaska Pulp Corp.,
326 NLRB 522, 523 (1998), citing Phelps-Dodge Corp. v.
NLRB, 313 U.S. 177, 194 (1941).
The General Counsel’s burden in a compliance proceeding is
to demonstrate the gross amount of backpay due. In demon-
strating gross amounts owed the General Counsel need not
show an exact amount, rather an approximate amount is suffi-
cient. Laborers Local 158 (Worthy Bros.), 301 NLRB 35, 36
(1991). The General Counsel’s burden of proof is met by em-
ploying a formula designed to produce a reasonable approxima-
tion of what is owed. Reliable Electric Co., 330 NLRB 714,
723 (2000).
While the Act provides the Board broad authority to fashion
a make-whole remedy, this authority does not extend to the
imposition of punitive measures. Republic Steel Corp. v.
NLRB, 311 U.S. 7, 12 (1940); Aneco, Inc. v. NLRB, 285 F.3d
326, 329 (4th Cir. 2002). Each backpay remedy must be suffi-
ciently tailored to expunge only the actual, and not merely
speculative, consequences of the unfair labor practices. Sure-
Tan, Inc. v. NLRB, 467 U.S. 883, 902–904 (1984).
a. Trust fund payments
The Board has long held that when a respondent unlawfully
ceases making required contributions to benefit funds on behalf
of employees, the appropriate remedy is to require that the fund
be made whole for the missed payments. Triple A Fire Protec-
tion, Inc., 357 NLRB 693, 695 (2011). A Respondent must
make the trust funds whole on behalf of employees possessing
a nonspeculative future economic interest in those funds. Stone
Boat Yard, 264 NLRB 981, 983 (1982), enfd. 715 F.2d 441 (9th
Cir. 1983), cert. denied 466 U.S. 937 (1984). Where employ-
ees hold a nonspeculative interest in a pension or health fund,
ordering Respondent to reimburse that fund is remedial because
such contributions “insure the fund’s financial viability neces-
sary to satisfy employees’ future needs.” Sedgwick Realty LLC
and R & S Management A/K/A Arandess Mgt. Co., 337 NLRB
245, 247 (2001). The Board does not require employees to be
certain to benefit from a trust fund before ordering contribu-
tions to that fund on their behalf. Kenmore Contracting Co.,
303 NLRB 1, 2 (1991). In Kenmore Contracting Co., the
Board stated, “The Board’s established premise that such em-
ployees may have a future interest in the funds is sufficient
linkage to warrant that the trust fund contributions be paid.” Id.
In Kraft Plumbing & Heating, Inc., 252 NLRB 891, 891 fn.
2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), the Board set
forth the remedy for a Respondent’s unilateral discontinuance
of contributions to benefit funds provided for in a collective-
bargaining agreement and for reimbursement to employees for
third party premiums paid to continue medical coverage:
[M]ake whole the employees in the appropriate unit by trans-
mitting the contributions owed to the Union’s health and wel-
fare, pension, industry and apprenticeship funds pursuant to
the terms of its collective bargaining agreement with the Un-
ion, and by reimbursing unit employees for any medical, den-
tal or any other expenses ensuing from Respondent’s unlaw-
ful failure to make such required contributions. This shall in-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
clude reimbursing employees for any contributions they
themselves may have made for the maintenance of the Un-
ion’s health and welfare, pension, industry and apprenticeship
funds after Respondent unlawfully discontinued contributions
to those funds; for any premiums they may have paid to third-
party insurance companies to continue medical and dental
coverage in the absence of Respondent’s required contribu-
tions to such funds.
b. Medical expenses
The Board has held that employees should be made whole
for expenses they incurred due to the loss of medical insurance
due to a respondent’s unlawful action. Reimbursement in-
cludes costs employees paid for medical services that would
have been reimbursed under terms of respondent’s medical
insurance plan. Goya Foods of Florida, 356 NLRB 1461, 1464
(2011).
Additionally, respondents must reimburse employees for
premiums paid to maintain comparable health insurance, to the
extent the premiums exceeded those paid when employed prior
to the unlawful conduct. See RMC Constructors, 266 NLRB
1064, 1066 (1982).
In Kraft Plumbing & Heating, Inc., supra, the Board also
held that employees were entitled to reimbursement for, “any
medical or dental bills they have paid directly to health care
providers that the contractual policies would have covered. All
payments to employees shall be made with interest.”
2. Respondent’s defenses
Respondent raised numerous defenses to its backpay liabil-
ity, none of which have merit.
a. Ninth Circuit law is binding in this proceeding
Respondent contends that this proceeding is bound by the
unpublished Memorandum Decision24 of the Ninth Circuit
Court of Appeals in the enforcement action in Smokehouse
Restaurant, supra.
In its Memorandum Decision at page four, the Court noted:
We lack jurisdiction to review Smoke House’s challenges to
certain remedies ordered by the Board. See NLRB v. Sambo’s
Restaurant, Inc., 641 F.2d 794, 795–796 (9th Cir. 1981) (ap-
plying jurisdictional bar to issues or remedies). As the gov-
ernment points out, however, we note that following the
Board’s decision in this case, it has established a compliance
proceeding action to determine the ultimate amount of Smoke
House’s financial liability under the “make whole” order, and
to align “make whole” orders with Ninth Circuit Law. See
Planned Building Services, Inc., 347 NLRB [670, 710] fn. 23
[(2006)] (citing Advanced Stretchforming, 233 F.3d 1176,
1181–1183 (2000); Kallmann v. NLRB, 640 F.2d 1094, 1102–
1103 (9th Cir. 1981). In that proceeding, Smoke House may
present its arguments regarding whether the expired collective
bargaining agreement’s provisions regarding medical benefits
had already been changed by JLL, whether Smoke House
would have agreed to the terms of the previous collective bar-
gaining agreement, and when it would have reached an

24 GC Exh. 1(c).
agreement on new terms with the union or reached a bargain-
ing impasse.
Notwithstanding the footnote by the Ninth Circuit panel not-
ing that its Memorandum Decision was of no precedential val-
ue, the Court was without jurisdiction in the enforcement pro-
ceeding to consider issues of remedy. Accordingly, the Court’s
pronouncement that Respondent could present evidence con-
cerning the predecessor collective bargaining agreement as well
as the standard for formulating an appropriate remedy in the
compliance proceeding were dicta and not binding in this pro-
ceeding.
Moreover, an administrative law judge is required to follow
established Board precedent which neither the Board nor the
Supreme Court has reversed, notwithstanding contrary deci-
sions by courts of appeals. Waco, Inc., 273 NLRB 746, 749 fn.
14 (1984); Los Angeles New Hospital, 244 NLRB 960, 962 fn.
4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981).
b. The Board’s Decision and Order does not require
Respondent to make the trusts whole
In Respondent’s answer to the second amended compliance
specification as well as in its brief, it contends that the Board’s
Order does not require Respondent to pay back premiums to the
Trust Fund. While the Board Order does not explicitly require
the Respondent to make the Trust Funds whole, the Board’s
Order implicitly contains such a requirement. As the Board
found in Triple A Fire Protection, Inc., 357 NLRB 693, 695
(2011), when a respondent unlawfully ceases making required
payments to benefit funds on behalf of employees, the appro-
priate remedy is to require that the fund be made whole for the
missed payments.
Here the Board found respondent violated the Act when it
failed to apply the predecessor’s collective-bargaining agree-
ment to bargaining unit employees. The Board specifically
ordered Respondent to make whole employees for losses result-
ing from its unilateral changes:
(b) On request of the Union, retroactively restore the terms
and conditions of employment of the employees in the unit as
established by the collective-bargaining agreement between
JLL and the Union and make employees whole for any losses
they incurred as a result of unilateral changes made thereto.
The employee losses included lost medical benefits due to Re-
spondent’s failure to make trust fund payments. In order to
restore the status quo, Respondent must make trust fund pay-
ments in order to restore employee benefits under the trusts.
c. Unit employees do not possess a nonspeculative interest
in the trust
Respondent contends that the General Counsel has failed to
establish that Respondent’s employees possess a nonspecula-
tive future economic interest in the trust funds.
A Respondent must make the trust funds whole on behalf of
employees possessing a non-speculative future economic inter-
est in those funds. Stone Boat Yard, 264 NLRB 981, 983
(1982), enfd. 715 F.2d 441 (9th Cir. 1983), cert. denied 466
U.S. 937 (1984). Where employees hold a nonspeculative in-
terest in a pension or health fund, ordering Respondent to reim-
SMOKE HOUSE RESTAURANT, INC. 11
burse that fund is remedial because such contributions “insure
the fund’s financial viability necessary to satisfy employees’
future needs.” Sedgwick Realty LLC & R & S Management
A/K/A Arandess Mgt. Co., 337 NLRB 245, 247 (2001). The
Board does not require employees to be certain to benefit from
a trust fund before ordering contributions to that fund on their
behalf. Kenmore Contracting Co., 303 NLRB 1, 2 (1991). In
Kenmore Contracting Co., the Board stated, “The Board’s es-
tablished premise that such employees may have a future inter-
est in the funds is sufficient linkage to warrant that the trust
fund contributions be paid.” Id.
Here Respondent’s own payroll records25 together with the
terms and conditions of employment in its predecessor’s collec-
tive-bargaining agreement26 with the Union and the trust health
plan summary27 establish that Respondent’s employees were
entitled to health care coverage under the trust.
Respondent’s reliance on Centra, Inc., 314 NLRB 814, 818–
820 (1994), and Lawrenceville Ready-Mix Co., 305 NLRB
1010 (1991), for the proposition that its employees do not pos-
sess a nonspeculative interest in the trust fund is misplaced.
Centra, supra at 819, found that present employees in the bar-
gaining unit, who through a collective-bargaining agreement
were covered by the extant health plans, had a nonspeculative
interest in the vitality of the health trust. Manhattan Eye, Ear
& Throat Hospital, 300 NLRB 201 (1990), is also distinguish-
able since the employees in that bargaining unit were no longer
represented by the union and had disclaimed interest in the trust
funds. Similarly, Lawrenceville Ready-Mix Co., 305 NLRB
1010 (1991), is not persuasive. In that case, the entire purpose
of the Board’s remand was to inquire whether the employer
concluded an agreement effective on or before the date it dis-
continued payment into the union-negotiated health and welfare
plan. Such proof, if any, would limit the employer’s obligation
to benefits paid out by the fund before execution of the alleged
agreement. Likewise Sedgwick Realty LLC and R & S Man-
agement A/K/A Arandess Mgt. Co., supra, is of no avail to Re-
spondent since, unlike here, the Board found the employees in
Sedgwick were not covered by the health care plan and thus had
no nonspeculative interest.
I find that Respondent’s employees possess a nonspeculative
interest in the trust fund.
d. Failure to calculate accurately employee premium and
medical expenses
Respondent’s argument in its brief is not clear. I cannot de-
termine if Respondent is contending that the calculations for
premium expenses employees paid for the Respondent’s unilat-
erally imposed health care plan and out-of-pocket medical ex-
penses are inaccurate or if Respondent is referring to the con-
tribution amounts it was required to pay to the trust. If Re-
spondent is referring to the premium payments employees were
required to make for the Respondent’s unilaterally imposed
health care plan, those amounts were stipulated to in Joint Ex-
hibit 1, paragraph 17. If Respondent is referring to trust fund

25 Jt. Exh. 1, attachment 4.
26 Id. at attachment 8.
27 Id. at attachment 7.
contributions it is irrelevant what health care plan employees
may have chosen. Again Respondent stipulated to the hours
worked by unit employees during the relevant backpay period.
The collective-bargaining agreement between JLL and the Un-
ion establishes the amount per hour Respondent was required to
contribute, $1.43. Moreover, only one employee, Lynne Pear-
son claimed out-of-pocket medical expenses, as discussed be-
low. Respondent is apparently of the impression that the Gen-
eral Counsel must establish that the trusts actually made pay-
ments of medical expenses for employees during the backpay
period or somehow establish that Respondent’s unilaterally
imposed medical plan would have offset employee costs. This
is ludicrous. Since no trust contributions were made by Re-
spondent, its employees were not enrolled in any trust fund
covered plans after May 1, 2003.
Respondent stipulated that appendix B, column 3, of the sec-
ond amended compliance specification accurately represent the
premium expenses paid by employees for each calendar quarter
of the backpay period. Moreover there was no evidence ad-
duced by Respondent that any health care premiums paid by
unit employees did not occur until after December 1, 2008.
Before May 1, 2003, employees made no payments for health
care premiums. The Trust Fund summary [lan description does
not mention any employee contributions only employer pay-
ments.
Respondent’s argument that the General Counsel failed to
accurately calculate employer hourly contributions to the trusts,
or employee premiums and medical expenses fails. I find that
back pay is owed to the listed employees for monthly premiums
paid are in the amount of $213,610.74.
e. Respondent’s predecessor JLL and the Union reached im-
passe or changed the terms of the predecessor’s collective-
bargaining agreement prior to May 1, 2003
Based upon the Ninth Circuit’s Memorandum Decision, Re-
spondent contends that it may raise as an affirmative defense
that the expired collective-bargaining agreement provisions
regarding health care benefits had already been changed by its
predecessor JLL in 2002. Notwithstanding my finding that the
Ninth Circuit’s Memorandum Decision, insofar as it addressed
compliance issues, is dicta and therefore not binding, issues
litigated and decided in an unfair labor practice proceeding may
not be re-litigated in the ensuing backpay proceeding. Paoli-
celli, 335 NLRB 881, 883 (2001). In Smoke House Restaurant,
347 NLRB 192 (2006), the Board found that in 2003 the Re-
spondent unlawfully failed to apply the terms of the collective-
bargaining agreement between JLL and the Union and unilater-
ally changed terms and conditions of employment. Since the
Board has already determined that the collective-bargaining
agreement remained in effect as to Respondent, Respondent’s
assertion that JLL changed the collective-bargaining provisions
regarding health care or that JLL and the Union reached im-
passe prior to May 1, 2003, cannot be re-litigated in this pro-
ceeding.
f. An impasse existed between Respondent and the Union after
May 1, 2003
Respondent takes the position that Respondent would not
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have agreed to the economic terms of the previous collective-
bargaining agreement and that it reached impasse with the Un-
ion, citing Planned Building Services, 347 NLRB 670, 676
(2006).
In Planned Building Services, the Board reviewed what the
appropriate make-whole remedy was when a successor em-
ployer discriminatorily denied employment to its predecessor’s
employees and violated its duty to bargain by unilaterally set-
ting initial terms and conditions of employment. In Planned
Building Services, the Board modified its traditional make-
whole remedy. The Board, supra at 676, stated its new formula
in successorship cases:
Accordingly, we will issue an order consistent with our tradi-
tional remedy in cases like this one. But we will then permit
the Respondent, in a compliance proceeding, to present evi-
dence establishing that it would not have agreed to the mone-
tary provisions of the predecessor employer’s collective-
bargaining agreement, and further establishing either the date
on which it would have bargained to agreement and the terms
of the agreement that would have been negotiated, or the date
on which it would have bargained to good-faith impasse and
implemented its own monetary proposals. (Fn. omitted.)
Of course application of this formula presumes that the parties
are engaged in good-faith bargaining. The trier of fact is to
speculate if and when impasse would have been reached, or
when a respondent would not have agreed to the economic
terms of a predecessor’s collective-bargaining agreement. The
burden is on the Respondent to establish the elements set forth
in Planned Building Services.
However, where there are unremedied unfair labor practices,
the Board has held that there can be no impasse. In Titan Tire
Corp., 333 NLRB 1156, 1159 (2001), the Board concluded that
unremedied unfair labor practices, including refusal to furnish
information during bargaining, precluded a finding that the
parties had reached impasse. Thus the Respondent violated
Section 8(a)(5) and (1) by unilaterally implementing its final
offer.
In the instant case Respondent has failed and refused for
over 6 years to comply with the Board’s Order that it remedy
its unfair labor practices, including restoring the terms and
conditions of employment established in its predecessor’s col-
lective-bargaining agreement with the Union. Rather, the rec-
ord reflects that it has engaged in a game of delay. Respondent
has refused to reimburse the trust funds for over 9 years of
contributions but has attempted to condition further bargaining
upon the Union compromising the amount of contributions
ordered by the Board.28 Respondent’s refusal to date to remedy
the unfair labor practices found by the Board, particularly rein-
stating the terms and conditions of employment established
under its predecessor’s collective-bargaining agreement with
the Union, goes to the heart of good-faith bargaining and pre-
cludes a finding that Respondent and the Union could have ever
reached a good faith impasse.
However, I allowed Respondent to adduce evidence subse-

28 See R. Exhs. T, X, Y, Z, HH, BB-1, CC, EE, FF, GG.
quent to May 1, 2003,29 in order to meet the requirements in
Planned Building Services that it would not have agreed to the
monetary provisions of the predecessor employer’s collective-
bargaining agreement or the date on which it would have bar-
gained to good-faith impasse and implemented its own mone-
tary proposals.
Respondent’s arguments to the contrary, I find no probative
evidence that the parties reached impasse, entered into a collec-
tive-bargaining agreement or that Respondent established it
would not have agreed to the economic terms of the predeces-
sor collective-bargaining agreement.
The record reflects that between May 1, 2003 and 2007,
there were several meetings between Respondent and union
representatives.
At a meeting on May 1, 2003, health care issues were dis-
cussed. Respondent’s Chief Financial Officer Leland Spencer
(Spencer) stated that Respondent could not tell the Union what
their position on health care coverage would be until Respond-
ent determined their financial status in the next 3 to 6 months.
At another meeting in June 2003, the Union requested that
Respondent resume making contributions for health insurance
and to negotiate a new contract. Spencer told the Union that
the Respondent could not make such a decision until they knew
what the restaurant’s financial future was going to be. In addi-
tion Spencer told the Union that Respondent would not make
trust contributions for health insurance until its financial status
was clear.
At a meeting in May 2004, Respondent claims they present-
ed the Union with a new contract proposal. However, no con-
tract was offered into the record.
There is no evidence of any negotiations between the parties
from 2004 to 2006. Spencer claims there was a meeting at an
unknown time in 2007. Respondent admitted that no agree-
ment was ever reached with the Union. This evidence is insuf-
ficient to meet Respondent’s burden under Planned Building
Services to establish that an impasse was or would have been
reached.
There was considerable correspondence between the Union
and Respondent during the period May 2003 to 2010. See Joint
Exhibits 1 and 2 and Respondent’s Exhibits L, R-HH. Most of
the correspondence deals with demands for reinstatement of the
terms and conditions of employment contained in the JLL col-
lective-bargaining agreement and whether there could be good-
faith bargaining until Respondent had fully remedied its unfair
labor practices as found by the Board and Court. There is no
dispute that Respondent failed to reinstate health care contribu-
tions to the trust fund. There is no evidence of any meaningful
or good-faith bargaining in the correspondence.
While Respondent contends that they tendered premium
payments to the Trust Fund for coverage of unit employees on
July 9, 2007, these premiums were rejected by the Union and
the Trust Fund. The amount tendered did not represent any-

29 While I initially ruled that no evidence of impasse prior to Janu-
ary 2004, the date of the trial before Judge Parke, would be received
(Tr. p. 34, LL. 11–18 and p. 35, LL. 4–8), I later allowed Respondent to
offer evidence of negotiations between it and the Union after May 1,
2003 (Tr. p. 209, LL. 13–19).
SMOKE HOUSE RESTAURANT, INC. 13
thing approaching the full amount owed to the Trust Fund for
the period May 1, 2003, to July 9. 2007, but represented only 5
months of contributions. Spencer admitted that the trust fund
did not cash checks the Respondent tendered and coverage was
never reinstated to the employees and employees could not
individually apply for benefits under Trust Fund rules and regu-
lations.
Respondent has presented insufficient evidence to meet its
burden under Planned Building Services to demonstrate that it
would not have agreed to the monetary provisions of the prede-
cessor employer’s collective-bargaining agreement. Spencer’s
testimony that he could not tell the Union what their position on
health care coverage would be until Respondent determined
their financial status in the next 3 to 6 months nor telling the
Union that the Respondent could not make a decision on rein-
stating health care coverage until they knew what the restau-
rant’s financial future was going to be is too uncertain for me to
conclude that Respondent would not have accepted the eco-
nomic terms of the collective-bargaining agreement. There is
no other evidence concerning Respondent’s financial condition.
I refused to receive into evidence a 2009 profit and loss state-
ment30 of Respondent. There is no evidence that there was any
ongoing bargaining between the Union and Respondent in
2009. Further there is no evidence that Respondent claimed
they were unable to meet any of the Union’s economic de-
mands due to economic circumstances. Finally the Respond-
ent’s isolated 2009 profit and loss statement, standing alone,
does not establish that Respondent would not have met the
economic terms of its predecessor’s collective bargaining dur-
ing the period 2003 to the present. There is no evidence in this
record that Respondent at any time told the Union that its fi-
nancial position precluded it from meeting the Union’s eco-
nomic terms.
Furthermore, as noted above, Respondent presented insuffi-
cient evidence to establish when it would have bargained to
good-faith impasse and implemented its own monetary pro-
posals. There is simply no evidence of good-faith bargaining in
this case. Likewise, Respondent presented insufficient evi-
dence to establish that after May 1, 2003, it and the Union
reached an impasse in negotiations on any subject so that it was
free to enact its last best offer. Taft Broadcasting Co., 163
NLRB 475, 478 (1967).
g. It would be punitive to have a make-whole remedy beyond
the expiration of the collective-bargaining agreement
Respondent cites Ninth Circuit cases for the proposition that
there can be no make-whole remedy beyond the term of a col-
lective-bargaining agreement. NLRB v. Advanced Stretchform-
ing International, Inc., 233 F.3d 1176, 1182 (9th Cir. 2000);
Rayner v. NLRB, 665 F.2d 970, 976 (9th Cir. 1982); Kallmann
v. NLRB, 640 F.2d 1094 (9th Cir. 1981); NLRB v. Dent, 534
F.2d 844 (9th Cir. 1976).
The Board’s traditional remedy in cases where a successor,
because it has committed unfair labor practices, is not allowed
to set initial terms and conditions of employment is to order
restoration of those terms and conditions of employment until a

30 R Exh. MM.
new agreement or impasse has been reached. State Distributing
Co., 282 NLRB 1048, 1048 (1987). In Planned Building Ser-
vices, 347 NLRB 670, 676 (2006), the Board modified this
remedy, acknowledging that some courts of appeals, including
the Ninth Circuit in the Kallman line of cases have rejected this
remedy as punitive. Thus the Board established a new test for
remedies in these cases providing that respondents may offer
evidence to establish, inter alia, when and if a collective-
bargaining agreement or impasse would have been reached.
As noted above, an administrative law judge is required to
follow established Board precedent which neither the Board nor
the Supreme Court has reversed, notwithstanding contrary deci-
sions by courts of appeals. Waco, Inc., 273 NLRB 746, 749 fn.
14 (1984); Los Angeles New Hospital, 244 NLRB 960, 962 fn.
4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981).
Since Planned Building Services has not been reversed by
the Supreme Court, I am bound to follow it even though it may
be inconsistent with Ninth Circuit law. Therefore, Respond-
ent’s argument must fail.
h. GC and Union impeded negotiations
Respondent contends that the General Counsel and the Un-
ion impeded negotiations and caused an impasse by contending
that there could be no bargaining until Respondent made the
trust fund whole pursuant to the Board’s Order herein.
Respondent’s argument is wholly lacking in merit. It is ir-
relevant what position the Union took with respect to compli-
ance. This proceeding does not contemplate the merits of an
unfair labor practice. I have already found that no impasse
could have taken place in this case where Respondent had un-
remedied unfair labor practices outstanding. Moreover, alleged
misconduct of a charging party is not a defense in an unfair
labor practice proceeding. Greyhound Lines, 319 NLRB 554,
555–557 (1995). Further, there is absolutely no evidence of
any misconduct on the part of the General Counsel, only an
insistence that Respondent fully remedy unfair labor practices
found by both the Board and the Court. Respondent’s own
recalcitrance to abide by the law is the sole cause of trust pay-
ments having continued to accrue for over 9 years.
i. Pearson is not an employee
As noted above, the evidence establishes that Pearson held
the position of server at Respondent’s restaurant both before
and during the relevant backpay period. Respondent provided
no probative evidence that Pearson was not its employee. Re-
spondent’s own payroll records show that she was receiving
paychecks from the Respondent from May 1, 2003, through
January 2007, with the exception of the third and fourth quarter
of 2005, and first quarter of 2006. Respondent’s argument is
without merit.
j. Pearson’s expenses
Respondent contends that the General Counsel failed to es-
tablish the out-of-pocket medical expenses of Pearson. Re-
spondent’s argument that Pearson failed to provide evidence
that an alleged Workers Compensation settlement or an alleged
private mold lawsuit compensated her for her out-of-pocket
medical expenses turns the law on its head. First, there is no
evidence of any award in any Worker’s Comp claim for pre-
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
scription drugs nor, despite Respondent’s misrepresentation of
the record, is there any evidence of a settlement of a private
mold lawsuit providing for prescription drug payments to Pear-
son or members of her family. It was Respondent’s burden to
establish an offset against Pearson’s claimed out-of-pocket
medical expenses, and Respondent has failed to satisfy that
burden.
Contrary to Respondent’s contention, Pearson did provide
evidence of her out-of-pocket medical expenses. While Pear-
son no longer has original receipts for prescriptions or medical
treatment, she had probative written summaries from both her
pharmacies where she purchased prescription drugs and from
her health care provider for treatment. Respondent’s argument
that these documents do not comport with Federal Rules of
Evidence are misplaced. First the records appear to be docu-
ments kept by both the pharmacies and health care provider in
the regular course of business. Pearson testified credibly that
she herself obtained these records from her pharmacies and
medical provider. Moreover, after 9 years Respondent should
not be able to profit from the absence of Pearson’s original bills
and preclude Pearson’s recovery of out-of-pocket medical costs
caused by Respondent’s wrongdoing.
Finally, Respondent fails to understand that it just makes no
difference what trust health plan Pearson was covered by before
Respondent ceased making trust contributions. The General
Counsel does not have to show that if Respondent’s employees
were still covered by one of the trust health plans they would
have had more or less out-of-pocket expenses. Respondent’s
employees as a result of Respondent’s unfair labor practices
were without trust coverage.
k. Respondent’s inability to pay
In Respondent’s answer to the second amended compliance
specification31 they raise an affirmative defense that to require
Respondent to pay approximately $1,663,916.81 in back pay-
ments to the Trust Funds would be unnecessarily harsh, puni-
tive, and unfair to Respondent, and create an undue hardship
forcing the restaurant to close, and declare bankruptcy.
This argument addresses an issue I cannot resolve. In a
compliance proceeding, the judge simply quantifies respond-
ent’s existing burden. The judge has no authority to increase or
reduce a respondent’s liability but simply has the responsibility
to measure it. A respondent’s inability to pay does not consti-
tute a defense to the determination of backpay liability. Star
Grocery Co., 245 NLRB 196, 197 (1979); Coal Rush Mining,
Inc., 341 NLRB 32, 33 fn. 2 (2004). Accordingly, the evidence
Respondent offered to support its inability-to-pay argument is
immaterial to any issue properly before me and I reject Re-
spondent’s defense without regard to that evidence.
Based on the record as a whole, I conclude that the General
Counsel has proven the allegations raised in compliance speci-
fication paragraphs I and II, as modified by General Counsel’s
Exhibits 11 and 12.
Calculations
This supplemental decision addresses the periods alleged in
the specification, May 1, 2003, through August 2012, for Trust

31 GC Exh. 1(u).
Fund payments and December 1, 2003, through August 2012,
for premium and medical expenses. Respondent will satisfy its
make-whole obligations for this period by payment of the fol-
lowing amounts, together with interest:
SMOKE HOUSE RESTAURANT, INC. 15
Employee Premium Expenses Medical Expenses Total
Arevalo, Sebastian $2,672.06
Avila, Luis $2,573.07
Banda-Cervantes, Rafael $1,548.94
Buell, Elizabeth $115.12
Bueno,Jose $5,276.69
Colazzo-Martino, Christine $545.70
Crimo, Yvonne $5,395.06
Cuevas, Jose $21,268.33
De La Cruz, Mary $5,414.74
De La Luevanos, Eleazar $3,397.83
Del Sol, Antonio $1,093.86
Denniss, Judith $3,611.74
Garcia, Alfredo J. $220.75
Garcia, Rodolfo $2,686.73
Hernandez, Jose Luis $975.60
Herrera, Arturo $1,765.88
Herrera, Jose A. $5,572.96
Iuorno, Angela $661.96
Employee Premium Expenses Medical Expenses Total
Lake, Michael $903.54
Lima, David $2,590.50
Lopez, Jason A. $294.42
Lopez,Jose M. $14,845.64
Lopez, Juan J. $2,621.84
Lopez, Manuel $2,522.81
Lowman, Kellie $70.82
Martinez, Francisco $1,367.31
Martinez, Ismael V. $5,866.74
Martinez, Uriel $5,967.90
McMillan, Gary $5,507.16
Medina, Oscar $175.32
Mendoza, Shelley $3,068.47
Mier, Fernando $8,073.33
Mier, Hector $1,280.17
Munoz, Jose Luis $1,832.11
Munoz, Leopoldo $6,625.28
Munoz, Roman $1,143.77
Nava, Sabino $1,296.53
O’Leary Marcus $3,139.77
Orozco, Ismael $7,380.25
Ortiz, Alberto $4,625.07
Oxenham, Alicia $1,066.56
Pearson, Lynne $1,758.64 $9,590.59 $11,349.23
Peinado, Paul $145.35
Perez, Ramiro $226.20
Puente, Jesus $5,874.03
Puente, Rito $8,136.54
Rodriguez, Hector $521.92
SaIdana, Vicente $2,082.74
Salomon, Hector M. $6,470.49
Sanchez, Francisco $2,648.33
Scott, Derrick $694.00
Sheifer, Stephanie $2,814.22
Solis, Alberto $3,781.89
Solis, Elizondo $5,975.71
Solis, Rosa $260.80
Street, Linda $14,723.25
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Strutt, Rachel $163.00
Suarez, Jose $5,906.00
Valdez, Faustino $3,397.83
Vasquez, Alfredo M $967.47
Grand Total: $213,610.74 $9,590.59 $223,201.33
Grand total premium expenses: $213,610.74
Grand total medical expenses: $9,590.59
Grand total funds contributions: $1,250,118.36
Grand total premium expenses,
medical expenses and
fund contributions: $1,473,319.69
REMEDY
Respondent shall file a report with the Social Security Ad-
ministration allocating backpay to the appropriate calendar
quarters. Respondent shall also compensate the discrimi-
natee(s) for the adverse tax consequences, if any, of receiving
one or more lump-sum backpay awards covering periods longer
than 1 year, Latino Express, Inc., 359 NLRB 518 (2012).
Respondent will discharge its make-whole obligations, for
the periods alleged in the compliance specification, May 1,
2003, through August 2012, for Trust Fund payments and De-
cember 1, 2003, through August 2012, for the premium and
medical expenses, together with interest as prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010),
enf. denied on other grounds sub.nom. Jackson Hospital Corp.
v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.32
ORDER
It is hereby ordered that Respondent, Smoke House Restau-
rant, Inc., its officers, agents, successors, and assigns, shall pay
the individuals named above under the heading “Calculations”
the amounts specified therein, together with interest as pre-
scribed in New Horizons, above.
Dated, Washington, D.C. February 26, 2013

32 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.