L'Ermitage Hotel

National Labor Relations Board - Board Decisions

Apr 28, 1989

293 N.L.R.B. 924 (N.L.R.B. 1989)

924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ashkenazy Property Management Corporation
d/b/a L'Ermitage Hotel , Ashkenazy Enterprises
Inc, Ashkenazy Development Corporation, 9289
Burton Company d/b/a L'Ermitage Hotel and
Hotel and Restaurant Employees and Bartend-
ers Union, Local 11, AFL-CIO Case 31-CA-
10775
April. 28, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 21, 1988, Administrative Law
Judge Gerald A Wacknov issued the attached
Supplemental Decision in this proceeding The Re
spondent filed exceptions and a supporting brief,
and the General Counsel filed limited exceptions, a
supporting brief, and an answering brief
The National Labor Relations Board has delegat
ed 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 briefs and has
' The General Counsel was required by the United States Court of Ap
peals for the Ninth Circuit to proceed on a backpay specification consist
ent with the court of appeals earlier decision in Garment Workers Local
512 (Felbro) v NLRB 795 F 2d 705 (9th Cir 1986) with respect to back
pay entitlement of employees who are undocumented aliens As the
Board did not seek review of the Ninth Circuit s decision the admmistra
tive law judge was clearly bound and properly rejected the Respondent s
arguments that notwithstanding the Ninth Circuits decisions the discn
minatees involved in this proceeding should be denied reinstatement and
backpay if they are not lawfully entitled to be present and employed in
the United States We note that as in Garment Workers Local 512 supra
the discnmmatees in this proceeding all were originally hired by the Re
spondent prior to November 6 1986 the effective date of the Immigra
tion Reform and Control Act of 1986 Pub L 99-603 8 U S C § 1001 et
seq as amended
2 The Respondent has excepted to some of the judge s credibility find
mgs The Board s established policy is not to overrule an administrative
law judges credibility resolutions unless the clear preponderance of all
the relevant evidence 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 examined the record and find no basis for reversing
the findings
We find that the judge incorrectly used the first amended specification
in determining Maria Villalta s backpay Using the second amended speci
fication we find that Villalta is entitled to $10031 93 in backpay
We also note that the judge in his Appendix inadvertently stated the
amount due Flores as $12 503 09 rather than $12 503 99
We agree with the judge that the Respondent s letter of November 20
1986 to Flores was not a valid offer of reinstatement We do not howev
er rely on 15th Avenue Iron Works 279 NLRB 643 (1986) in making this
finding as the Board there adopted the administrative law judge s deci
sion on that issue in the absence of exceptions
In its exceptions brief the Respondent requests the Board to take Judi
cial notice of R Exh A pursuant to Federal Rules of Evidence § 201
This exhibit purportedly sets forth a list of hotels in the Los Angeles area
in 1981 The General Counsel objects to this request on the grounds that
the facts regarding the list of hotels are not generally known and are not
capable of accurate and ready determination by unimpeachable sources as
required by the Federal Rules of Evidence We find merit in the General
Counsel s position and deny the Respondents request In so doing we
note that the Respondent gives no explanation for its failure to introduce
decided to affirm the judge ' s rulings,' findings,2
and conclusions3 as modified below
1 With regard to Flores, the backpay specifica-
tion states that he had no earnings for the first
quarter of 1982 During the hearing , Flores testi-
fied that he worked as a quality control inspector
for the Papermate Company for the first couple of
months of 1982 He stated that he was paid $5 per
hour and worked 40 hours per week The Re
spondent produced a letter of recommendation
Flores received from Papermate dated February 8,
1982 Flores stated that he received that letter 1 or
2 weeks after he had left the company's employ
The letter stated that Flores had worked at Paper-
mate for the last couple of months We find that
Flores worked the first 5 weeks of 1982 and earned
$200 per week Based on this evidence we will
deduct $1000 from the amount owed to Flores
2 With regard to Maria Biodrawski, we find that
the week she spent in Oregon should not be count
ed in calculating the backpay owed to her Bio-
drawski testified that she accompanied her father
to Oregon because he had a court date there The
trip was made in order to conduct Biodrawski's fa-
ther 's business , it did not involve any business-relat
ed matters concerning Biodrawski directly She did
not search for work during that week Nor was she
available for work during that period Thus, 1
week's pay ($150 35) should be deducted from the
backpay due her
3 The Respondent in its exceptions to the
judge's decision argues that NLRB v Mercy Penin-
sula Ambulance Service, 589 F 2d 1014 (9th Cir
1979), compels a finding that Flores, Biodrawski,
Cayetano, Chavez, and Alvarenga failed to make
reasonable and diligent searches for work We dis
agree and find the searches for employment in this
case to be clearly distinguishable from the search
made by the discriminatee in Mercy
In Mercy the Board reversed the administrative
law judge s finding that the discriminatee was not
entitled to backpay for the period from his dis
charge until November 1974 due to his failure to
make a reasonable and diligent effort to search for
the list at the hearing where it would have been subject to examination
by opposing counsel
3 During the hearing counsel for the General Counsel introduced G C
Exh 12 which showed that discriminatee Cayetano earned $891 78 for
the first quarter of 1981 Cayetano worked at the Spires Restaurant
during that time and earned $475 53 This amount was taken into account
in the computation of his backpay The remainder $416 25 was accrued
vacation time earned by Cayetano while he was working for the Re
spondent The Respondent claims that this amount should be deducted
from the backpay it owes Cayetano We find no merit in the Respond
ent s claim The accrued vacation pay was earned while Cayetano was
working for the Respondent before the backpay period began That the
Respondent chose to wait until the backpay period to pay Cayetano does
not affect the backpay it owes him
293 NLRB No 114
L ERMITAGE HOTEL
work On appeal the Ninth Circuit reversed the
Board, ruling that the discnminatee willfully in-
curred the loss The discriminatee during June 1974
made only two phone calls In July he made only
three contacts In August he made only three con-
tacts in the span of 2 days In September, again he
made only three contacts that engaged approxi
mately 1-1/2 hours of his time This was typical of
the discriminatee's job search for the period of
June to November 1974 That scenario does not
describe the search made by the discriminatees in-
volved here
In finding that the discriminatees made sufficient
searches for work, the judge noted that the individ-
ual discriminatees contacted numerous potential
employers through various means Specifically, the
judge found that Flores sought and obtained work
during 12 of the 13 quarters for which he was enti-
tled to backpay and credited Flores' testimony that
he sought work on a regular basis Based on Bio-
drawski's testimony that during the period when
she was out of work she looked for work at hotels,
hospitals, and restaurants two to three times per
week, the judge found that Biodrawski had made a
reasonable search for work Cayetano' s uncontra-
dicted testimony that he sought work two to four
times a week at hotels and restaurants and regis-
tered with a private employment agency supports
the judge's finding that, with the exception of 6
months when he was in Mexico, Cayetano was eli-
gible for backpay for the periods when he was not
working The judge found that Chavez worked
steadily throughout the entire backpay period
albeit for less money than she earned when she
worked for the Respondent Though the judge
found that Alvarenga failed to pursue a reasonably
diligent search for work in 1982, the judge credited
Alvarenga's testimony that subsequent to 1982 he
looked for work about three times a week Based
on these findings the situation with regard to each
of the above-named discriminatees is obviously dis-
tinguishable from the facts in Mercy
ORDER
The National Labor Relations Board orders the
Respondent, Ashkenazy Property Management
Corporation d/b/a L'Ermitage Hotel, Ashkenazy
Enterprises Inc, Ashkenazy Development Corpo
ration, 9289 Burton Company d/b/a L'Ermitage
Hotel, Beverly Hills, California, its officers, agents,
successors, and assigns , to make whole the employ-
ees named below by paying them the amounts set
forth adjacent to their names, plus interest comput-
ed in the manner prescribed in New Horizons for the
925
Retarded,4 accrued to the date of payment, minus
tax withholdings required by law
Francisco Flores $11,503 99
Maria Guadalupe
Biodrawski (nee
Lupe Jacobo) 9,042 91
Alberto Cayetano 7,342 55
Irma Chavez
(a/k/a Maria
Rodriguez) 10,646 57
Maria Villalta 10,031 93
Sonia Moya 1,806 60
Oscar Alvarenga 7,985 09
The total backpay due to the discriminatees
listed below shall be paid to the Regional Director
for Region 31 and will be held in escrow for 1
year 5 In the event any or all the below named dis
criminatees appear to collect this backpay, the Re-
spondent will be offered an opportunity by the Re
gional Director to produce evidence and/or exam-
ine such discrimmatees about their interim earnings
Aladino Hammond $7,733 20
Adela Escalante 898 85
Concepcion Molina 1,939 30
Ana Ramirez 429 70
Gregoria Salazar 4,692 04
Maria Alvarez 1,442 20
Susana Andrade 381 30
Maria Chavez 384 65
Maria Sandoval 434 55
4 283 NLRB 1173 (1987)
5 Starlite Cutting 280 NLRB 1071 ( 1986) (Starlite 1) as amended 284
NLRB 620 (1987) (Starlite II) Starhte I overruled Duncan Foundry &
Machine Works 222 NLRB 768 (1976) and stated that in the absence of
a discnminatee a respondents backpay obligation will lapse at the end of
a l year escrow period Absent the discriminatee s showing by a prepon
derance of the evidence that there were compelling reasons to justify his
or her failure to come forward during that period a respondent shall not
remain obligated for the gross backpay amount specified for the discn
minatee after the end of the 1 year escrow period Subsequently the
Board issued an order in Starlite II clarifying the starting date of the I
year period In Starlite II the Board majority held that the 1 year escrow
period shall begin either when the respondent complies by depositing the
backpay into escrow or on the date the Board s Supplemental Decision
and Order becomes final including enforcement whichever is later The
provisions of Starlite I and II are applicable to the instant case with
regard to backpay owed to Aladino Hammond Adela Escalante Con
cepcion Molina Ana Ramirez Gregona Salazar Maria Alvarez Susana
Andrade Maria Chavez and Maria Sandoval Although Member Johan
sen dissented in Starltte II and would find that the 1 year escrow period
should begin on the date of issuance of the Board s Order affixing back
pay liability he nevertheless considers himself to be institutionally bound
to apply the rule of Starlite II in this case
Member Cracraft who did not participate in Starlite I agrees with
former Member Dennis dissent that backpay for unavailable discnmina
tees should not lapse after 1 year However so long as Starhte I remains
Board law Member Cracraft will apply the remedy set forth in that deci
sion
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ann L Weinman Esq and Richard S Zuniga Esq for
the General Counsel
Benjamin E Goldman Esq Angie Small Esq, and Mi
chael Lindsay Esq (Graham & James), of Los Angeles,
California, for the Respondent
Ellen Greenstone Esq (Greenstone, Hubel Holguin &
Garfield), of Los Angeles, California, for the Charging
Party
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GERALD A WACKNOV, Administrative Law Judge
The hearing in this matter was held before me on Febru
ary 16, 18, and 19, and March 29 and 30, 1988, in Los
Angeles, California, based on a backpay specification,
which issued on October 15, 1987, and was amended on
December 9 1987, alleging that the discnminatees as
found by the Board on February 1, 1984, in L Ermitage
Hotel 268 NLRB 744, enfd 796 F 2d 479 (9th Cir 1986),
were entitled to various amounts of backpay as a result
of their terminations in contravention of the Act
The parties were given a full opportunity to introduce
evidence, to examine witnesses, and to submit posthear
ing briefs Timely briefs were filed by the General Court
sel and counsel for Respondent
After the opening of the hearing, the parties reached
agreement on the backpay owed to 26 of 42 discrimina
tees Respondent has fully complied with the terms of
the settlement agreement and, pursuant to the parties
motion, the record is closed regarding those particular
dtscnmmatees i
Further, the General Counsels motion to delete Maria
Vasquez as a discnminatee from the backpay specifica
tion, based on her sworn affidavit of unwillingness to
appear for questioning and the small amount of her back
pay claim ($401 40) is granted
Respondent has contended from the outset of this pro
ceeding and continues to maintain, that at the time of
their discharges almost all the discriminatees were illegal
aliens and that, pursuant to the United States Supreme
Court s decision in Sure Tan Inc v NLRB 467 U S 883
(1984), they are deemed unavailable for work (and the
accrual of backpay) during any period when they are not
lawfully entitled to be present and employed in the
United States In Sure Tan, the dtscnmtnatees had left
the United States on their discharge and did not remain
in the United States during the backpay period
The Court of Appeals for the Ninth Circuit in Gar
ment Workers Local 512 (Felbro) v NLRB, 795 F 2d 705
(1986), distinguished the facts in Sure Tan and held that
in the case of dtscnmmatees who remain in the United
States, remedies afforded for violations of the National
Labor Relations Act are to be implemented regardless of
the workers immigration status During the initial com
phance stage of this proceeding the Board sought to
limit backpay based on its interpretation of Sure Tan
Thereupon, the Charging Party here brought a proceed
mg before the Ninth Circuit to compel compliance with
i Their names and the amounts they have received are contained in
G C Exits 14 and 15
its decision enforcing the Board s Order in the instant
case On May 8, 1987, the Ninth Circuit found merit to
the contention of the Charging Party and, inter alia, with
the acquiescence of the Board, has required that its
Felbro holding be applied to the discriminatees here
NLRB v Ashkenazy Property Management, 817 F 2d 74
(9th Cir 1987)
Respondent excepts to the Ninth Circuit's interpreta
tion of the Sure Tan decision and sought to introduce
evidence during the course of the hearing of the immi
gration status of each discriminatee However, as a result
of the aforementioned proceeding Respondent has been
precluded from attempting to demonstrate the immigra
tion status of the discriminatees Nevertheless, it has been
permitted to inquire, in order to determine the discrimin
atees continued availability for work, whether they have
been outside of the United States during any portion of
the backpay period
A The Discriminatees Who Appeared at the Hearing
1 Francisco Flores
Francisco Flores was a houseman for Respondent The
backpay period for Flores extends from January 1, 1981,
through the second quarter of 1984 (13 quarters) and is
continuing because according to the General Counsel,
Respondent has not made a valid offer of reinstatement
to Flores Flores sought and obtained work during 12 of
the 13 quarters in 3 of the quarters his interim earnings
exceeded backpay in 3 quarters, his backpay exceeded
interim earnings only by about $300 or less and in 2
quarters his interim earnings were in excess of 50 percent
of gross backpay During the remaining quarters, his in
terim earnings were nominal Flores testified that he
looked for work on a regular basis
Respondent contends that Flores' backpay period must
end as of October 22 1982 when he was discharged
from a supervisor s job Flores testified that he was fired
by FMS Corporation after apparently working there
steadily for about 7 months Although Respondent main
tains that Flores was discharged for gross insubordinate
behavior, the only evidence of the reason for the dis
charge is the testimony of Flores to the effect that a new
manager was apparently dissatisfied with his job per
formance Clearly this is insufficient to warrant the toll
ing of backpay See Mid America Machinery Co, 258
NLRB 316, 319 (1981)
Flores began working for La Strega a restaurant, in
January 1984 He worked until May 6 1984 and was re
placed by another employee whom, according to Flores,
the owner considered to be a better employee Similarly,
contrary to Respondents contention this is not a valid
reason for tolling backpay
On November 20, 1986, Respondent sent the following
letter to Flores
As you may recall we previously tried to con
tact you by mail regarding reinstatement of your
position at L'Ermitage Hotel Since that time we
have been notified of a change in your address and
wish to inquire if you would be interested in resum
mg a position at the L'Ermitage Hotel at this time
L ERMITAGE HOTEL
If so, please contact us at (213) 854-1111 within 10
working days otherwise we will assume that you
are not interested
Such an inquiry whether an employee is interested in
employment is not a valid offer of reinstatement and is
clearly insufficient to toll backpay 15th Avenue Iron
Works, 279 NLRB 643, 645 (1986) Flatiron Materials
Co, 250 NLRB 554 (1980), Montgomery County MH/MR
Emergency Service, 239 NLRB 821, 827 (1978)
At the hearing however Flores testified that when he
received the letter he was working for another employer
and believed he was making more money than he could
have made in Respondent's employ Therefore, he did
not respond to the letter This admission, according to
Respondent, tolls its backpay liability even if the letter
was deficient Respondent s contention must be rejected
in light of the Board s recent decision in Consolidated
Freightways, 290 NLRB 771 (1988), in which the Board
held that an employer must first extend a facially valid
offer of reinstatement before we examine a discrimina
tee s reasons for declining the offer
Accordingly, I find that the total net backpay amount
for Flores through the second quarter of 1984 is that des
ignated in the revised backpay specification, namely,
$12,503 99
2 Maria Guadalupe Biodrawski (nee Lupe Jacobo)
Biodrawski was a floor supervisor for Respondent She
was discharged on January 1, 1981, but did not begin
looking for work until the fourth week in January Bio
drawski went to work for another employer during the
third quarter of 1981 and worked until the third quarter
of 1983 when she was terminated During this period,
her interim earnings exceeded backpay Biodrawski tests
feed that she was terminated because she was sick for a
week or two There is no record evidence that, as con
tended by Respondent, she voluntarily quit a compara
ble job without excuse and willfully incurred loss
Therefore, Respondent's contention that Biodrawski s
backpay should be tolled as of the date of her termina
tion is without merit
I find that Biodrawski made the necessary effort to
look for work during the remaining quarters and that the
one week she spent accompanying her father to Oregon
for a business related matter should not be deducted
from backpay as she was unemployed at the time
I find that $451 05 should be deducted from Biodraws
ki s total net backpay designated in the revised backpay
specification, namely $9,644 31, corresponding to 3
weeks' backpay as a result of her failure to look for
work during the first 3 weeks of January 1981 Thus, her
total net backpay is $9193 26
3 Alberto Cayetano
Cayetano was a houseman for Respondent He testified
that he looked for work throughout the backpay period
at times he was not working, except for 6 months during
the second and third quarters of 1981 when he was in
Mexico He had interim earnings in all but 1 of the re
maining 14 quarters and his interim earnings exceeded
backpay in 5 of those quarters Respondent maintains
927
that his backpay must be tolled as of August 1982 as he
was fired on that date for insubordinate behavior Caye
tano s testimony, however, indicates that his discharge
apparently stemmed from both an inability to get along
with a difficult supervisor and a lack of work Moreover,
on his discharge he was given a letter of recommenda
tion I find Respondents argument to be without merit
I concluded that Cayetano is entitled to the total net
backpay designated in the revised backpay specification,
namely $7342 55
4 Irma Chavez (a/k/a Maria Rodriguez)
Chavez worked under the name of Maria Rodriguez
while working for Respondent 2 She was a maid Her
backpay period extends from January 1, 1981, to August
20, 1985, and from April 1 to October 31, 1987 She ob
tained or is credited with interim employment during
those 22 quarters, and although her interim earnings
never exceeded backpay, the amount of interim earnings
in virtually all the quarters was about 75 percent of the
amount she would have received had she remained in
Respondents employ 3 Respondent maintains that
Chavez took herself out of the labor market by accepting
jobs with lower pay rather than searching for higher
paying jobs The record does not support Respondent s
contention as Chavez worked steadily and it would be
mere speculation to conclude that had she obtained
higher paying jobs, they would have provided her with
sustained employment She is entitled to the total net
backpay contained in the revised backpay specification
namely, $10,646 57
5 Maria Villalta
Villalta admits that she did not begin looking for work
until 3 weeks after her termination
Respondent contends that Villalta s backpay period
should be tolled in May 1984 when she was allegedly of
fered reinstatement Villalta testified that on receiving a
letter from Respondent dated December 6, 1984, stating
that This letter will serve as notification that a house
keeping position is available to you she went to the
hotel and had a conversation with Respondents execu
tive housekeeper, Denise Aquilar Villalta testified that
although she then had a full time job with another em
ployer she requested full time employment with Re
spondent Aquilar said this was not possible Villalta then
requested at least 2 days work per week and was told by
Aquilar that there were no part time jobs available
Aquilar testified that Villalta said she then had a full
time position, and asked for a part time position of 2
days per week Aquilar replied that Respondent did not
employ workers on a part time basis Aquilar testified
that she did not know that Villalta had worked there
previously and when Villalta said she had received a
letter from Respondent, Aquilar did not know what she
2 Respondent s beef indicates that Respondent is no longer contending
that Rodriguez never worked for the Company
8 The backpay specification credits Chavez with interim earnings she
would have received had she continued to work at the Pasadena Hilton
and at Crown Zipper her two interim employers rather than remain at
home for periods of time to take care of children
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was talking about Apparently Villalta did not have the
letter with her
I conclude that the Respondent has not sustained its
burden of proof Villalta appeared to be a credible wit
ness Indeed, she admitted that she did not look for work
during the first 3 weeks after her discharge Further,
Aquilar did not know anything about the letter or, ap
parently, that Respondent had made a written offer of
reinstatement to Villalta, and should have investigated
the matter further when she was told about the letter If
there was indeed a failure of communication , Respondent
must be held accountable for the adverse consequences
The record indicates that even though Villalta had full
time employment elsewhere she would have earned more
money in Respondents employ Therefore, it is reasona
ble to presume that she would have preferred a full time
job with Respondent Further, asking for 2 days' adds
tional work per week is not inconsistent with holding
down another full time job, and thus Villalta s version of
the conversation is plausible
I therefore conclude that, as alleged, Villalta s backpay
period is continuing, and that she is owed the amount set
forth in the revised backpay specification ($7009 45) less
3 weeks backpay for the first quarter of 1981 ($443 05)
or $6566 40
6 Sonia Moya
Moya apparently began working for Respondent less
than a month prior to her discharge Although not a stat
utory supervisor, Moya was a floor or desk supervisor
for Respondent and was paid $4 per hour, whereas most
of the rank and file employees were paid $3 25 per hour
Moya testified in English without an interpreter Her
husband worked at a job from 4 p in to midnight, appar
ently throughout the backpay period
The backpay specification shows that for 4 years (16
quarters-from January 1 1981 to December 20 1984)
Moya was able to find only limited employment Moya
testified that on a fairly regular basis, she applied in
person for various jobs looked for others by answering
newspaper want ads in person and by telephone and just
drove around and walked into various prospective em
ployers premises She further testified that she registered
for unemployment and went to the unemployment office
about four times in 1981 She had no documentary evi
dence that she registered with the unemployment office
and testified that she threw the registration card away
She apparently did not collect unemployment During
the first quarter of 1981 she worked for the San Fernan
do Sheraton Hotel for 3 days and earned $47 15 She
stopped looking for a job thereafter because of pregnan
cy complications She had a baby on September 5 1981
and testified that she began seeking work again in mid
October 1981, but was unable to find work During the
first quarter of 1982, she earned $455 ($35 per week)
cleaning a private home 1 day a week During this time,
she was also staying at home taking care of her child
During the second quarter of 1982 she earned $840
taking care of two other children in her home She
found no work during the third and fourth quarters of
1982 During the first quarter of 1983 she earned $420
taking care of one child in her home Thereafter for the
three subsequent quarters, she did not work During the
first quarter of 1984, she worked at McDonald s Restau
rant on a part time basis for about a month, and earned
$151 13 Thereafter, for the next three quarters, she again
took care of children in her home, and earned $450,
$675, and $650, respectively in each quarter
During the course of the backpay period, the Regional
Office sent a series of quarterly compliance forms to
Moya The forms request, inter alia, that the employee
lists all places of employment The forms further state as
follows
If you were without employment at any time during
this period, make a complete list on the reverse side
of this form of all names of employment agencies
employers, want ads and others where you sought
work, giving addresses and dates of contact Under
the law, in order to have any claim for backpay
which may be due you, it is your responsibility to
continue your search for employment during pen
ods when you are unemployed or only temporarily
employed
The reverse side of the form contains three columns, one
for each month of the quarter, wherein the employee is
to list the places where he/she sought work During
each of the six quarters after her pregnancy complica
tions when Moya was unemployed and was actively
seeking work, she listed from seven to nine places where
she sought work She also listed seven places during the
first quarter of 1982 when she was doing cleaning work
at a private residence 1 day a week However during
the seven quarters when she was working at McDonald s
or caring for children at her home, the listings all but
stopped Thus, for the first month of the second quarter
of 1982 (April), she states Make [sic] several phone
calls to places where I ve applied for jobs and for the
second and third months (May and June) of that quarter
she states Taking care of two kids at home $70/wk'
For the first quarter of 1983 when she earned $420
taking care of one child at home, she does not list the
names of any places she looked for work For the first
quarter of 1984 when she worked part time at McDon
ald s for a month and earned $151, she does not list any
places she looked for work Nor does she list any places
for the second and third quarters of 1984 when she was
caring for children During the fourth quarter of 1984,
however, the record shows that she was caring for chil
dren and earned $658 (although the form she submitted
does not reflect this) and she lists 13 places where she
sought work
Moya testified that she was able to look for work
while she was caring for children by making phone calls
to prospective employers Also, her husband, who
worked at night would sometimes care for the children
during the day thus enabling her to look for work
I conclude from the foregoing that at all times when
Moya was taking care of children she considered this to
be sufficient interim employment and did not make a dili
gent search for work Thus on the compliance form for
the second quarter of 1982 where she was requested to
list places where she sought work she stated, Taking
L ERMITAGE HOTEL
care of two kids at home As noted, on other compli
ance forms when she was taking care of children or
when she worked part time at McDonald s for a month,
she did nc t list any prospective employers I therefore
find that Respondent has sustained its burden of proof in
this regard
The record shows that except for child care jobs for
which Moya earned from about $1 to $2 per hour (de
pending on whether she was taking care of one or two
children), and the one housecleaning job at $35 per week
for 1 day s work per week she was able to earn less than
$200 in 4 years According to the revised backpay speci
fication, she is owed $26,311 57 Moya, while in Re
spondent s employ, was earning more than some 85 per
cent of the other discriminatees She was a floor desk su
pervisor and, unlike some of the employees, was able to
speak English well enough to testify without an inter
preter She testified that she had frequent access to a car
during the day as her husband worked at night, and
looked for jobs as a maid, waitress, cashier or any other
type of job at various locations throughout the Los An
geles area, including Hollywood, Santa Monica, Beverly
Hills, and Glendale I find that the foregoing facts are
sufficient to warrant the finding that Moya's testimony
that she made a diligent search for work is unreliable and
that Respondent has sustained its burden of proof It is
simply inconceivable that she was not able, at least pen
odically during the backpay period, to find unskilled
work in the greater Los Angeles area where there are
literally thousands of such jobs When asked to explain
her inability to find work, Moya testified that she was
just unlucky In the absence of a more plausible explana
tion, I am constrained to conclude that she simply did
not make the requisite effort
Based on the foregoing, I find that Moya is entitled
only to $633 85 for the first quarter of 1981 and $1172 75
for the fourth quarter of 1984 I find that she sought
work during this latter quarter because the compliance
form unlike those other forms during the period when
she was caring for children listed the names and ad
dresses of some 13 employers, and Moya appeared to
have a clear recollection of having personal interviews
with two of the prospective employers listed Thus she
is owed $1806 60
7 Oscar Zetino Alvarenga
Alvarenga worked as a houseman for Respondent
since 1979 and was earning $3 35 per hour at the time of
his discharge He testified that upon his discharge he reg
istered at the unemployment office and was sent to some
places to apply for work He applied for various types of
jobs His compliance form for the first quarter of 1981
lists only one employer, and Alvarenga was unable to
recall the names of other places he looked for work He
began working for Hillcrest Motor Company the second
quarter of 1981 and he worked there until February
1982, when he was laid off for lack of work He again
registered with the unemployment office and was unable
to find work until about March 1983 when he began
working for Dollar Rent A Car He was terminated for
insubordination on August 18 1983 Regarding this
termination Alvarenga testified that his manager was
929
giving him a hard time and was making racial remarks
against Latinos He broke his wrist in 1984 and was
unable to work for 8 months thereafter
Alvarenga specifically testified that he does not re
member looking for work in 1982 at places that are not
listed on the compliance forms he submitted He listed
no prospective employers on the compliance form for
the first quarter of 1982 and listed only the Employment
Development Department on the compliance form for
the second quarter For the third and fourth quarters he
listed only four prospective employers
I conclude that Respondent has shown that Alvarenga
did not make sufficient efforts to look for work during
1982 after he was discharged from Hillcrest Motor Com
pany and that he is entitled to no backpay for the four
quarters of that year However, although the compliance
forms for the subsequent quarters list only from zero to
three prospective employers, Alvarenga testified that he
contacted about three employers per week during this
time Although he was able to identify only several of
these employers, nevertheless he seemed to recollect the
details of some interviews Therefore I find that the Re
spondent has not sustained its burden of proof by show
ing that Alvarenga s search for work during this period
of time was deficient Further, it is clear that due to his
injury he was not available for work beginning in May
1984 and continuing until the end of that year As a
result, his total backpay amount is $7985 09
B The Remaining Discriminatees
There are nine discriminatees who have not been lo
cated The General Counsel requests that the backpay
amounts contained in the revised backpay specification
for each employee except for Aladino Hammond (infra)
be placed in an escrow account pursuant to the Board s
decisions in Starlite Cutting, 280 NLRB 1071 (1986), and
284 NLRB 620 (1987) As to missing discriminatee Ham
mond, the General Counsel requests that his backpay
amount be reduced because the record evidence indicates
that he has been out of the country and unavailable for
work since some time in 1981 As the record evidence
does not clearly show when Hammond left the country
in 1981, the General Counsel has arbitrarily assumed that
he left on December 31 of that year and that the amount
placed in escrow should be computed accordingly Thus,
according to the General Counsel the amount placed in
the escrow account for Hammond should be $7733 20
Respondent takes the position that since it is unknown
when Hammond left the country it must be presumed
that he either left immediately after his discharge on Jan
uary 1, 1981, or did not search for work because he was
preparing to leave the country and therefore is not enti
tied to any backpay
Respondent contends that the parties stipulated that
four other discriminatees have permanently settled in a
foreign country and are similarly not entitled to backpay
According to Respondent, Adela Escalante with a back
pay claim of $898 85, has resettled in Cancun Mexico
Concepcion Molina with a backpay claim of $1939 30
has resettled in El Salvador Ana Ramirez with a back
pay claim of $429 70 has resettled in El Salvador and
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gregona Salazar, with a backpay claim of $4 692 04, has
resettled in Canada The record shows that the stipula
tion referred to by Respondent (Tr 155) involved a list
of discnminatees who were unavailable or out of the
country, and whom the General Counsel has been
unable to contact Thus, the record does not show
whether or when any of the discnminatees, named
above, have settled in a foreign country Apparently, Re
spondent has learned the whereabouts of the four named
discriminatees from prehearing discussions with other
discnminatees but, as noted, the record contains no evi
dence of this Thus, based on the record, and unlike the
situation with Aladino Hammond, the only conclusion
that may be drawn is that these four discriminatees are
simply unaccounted for to date Further, there are four
additional individuals to be added to this list of discn
minatees whose whereabouts are unknown, namely,
Mana Alvarez, with a backpay claim of $1442 20, Susana
Andrade, with a backpay claim of $38130, Maria
Chavez, with a backpay claim of $384 65, and Maria
Sandoval, with a backpay claim of $434 55
As the burden of proof in mitigating backpay liability
is placed on Respondent, I agree with the General Court
sel's position that the aforementioned amounts of back
pay, including the amount for Aladino Hammond, should
be placed in escrow for the named discriminatees under
the provisions of Starlite Cutting, supra Respondent as
serts that this instant case is distinguishable from the
Starlite Cutting decision because Respondent has proper
ly filed and served subpoenas on all the discnminatees
who have not been located and, further, because Starlite
Cutting does not provide for a hearing before an adminis
trative law judge if and when the discnminatees are lo
cated Contrary to Respondents position, no precedent
has been cited to me distinguishing between situations
where, as in Starlite Cutting, Respondent did not file an
answer to the backpay specification, or where as in the
instant case, Respondent has litigated the matter fully
and has attempted to subpoena the discnminatees Fur
ther, Starlite Cutting does not appear to place the ulti
mate determination as to the amount of backpay with the
Regional Director or to preclude a further hearing
before an administrative law judge if an issue as to the
amount of backpay arises after the discriminatees are lo
cated
ORDER4
The Respondent, Ashkenazy Property Management
Corp d/b/a L Ermitage Hotel, Ashkenazy Enterprises
Inc, Ashkenazy Development Corporation, 9289 Burton
Company d/b/a L Ermitage Hotel Beverly Hills, Cali
forma, its officers, agents, successors, and assigns, shall
1 Pay to each discriminatee the sum set opposite his
or her name appearing below on the attached net back
pay recapitulation marked Appendix, together with in
terest computed in the manner prescribed in Florida Steel
Corp, 231 NLRB 651 (1977), and New Horizons for the
Retarded, 283 NLRB 1173 (1987)
2 Remit the escrow amounts set forth in the Appendix
to the Regional Director for Region 31, the amounts to
be held in escrow for the discriminatees pending further
efforts to locate them and accurately determine their
backpay
4 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 objections to them shall be deemed waived for all pur
poses
APPENDIX
1 Net Backpay
Name Net Backpay
Francisco Flores $12,503 09
Mana Guadalupe
Biodrawski (nee Lupe
Jacobo) 9,193 26
Alberto Cayetano 7 342 55
Irma Chavez (aka 10,646 57
Maria Rodriguez)
Maria Villalta 6,566 40
Sonia Moya 1,806 60
Oscar Alvarenga 7 985 09
2 Escrow Account
Aladino Hammond $7,73320
Adela Escalante 898 85
Concepcion Molina 1 939 30
Ana Ramirez 429 70
Gregoria Salazar 4 692 04
Maria Alvarez 1,442 20
Susana Andrade 381 30
Maria Chavez 384 65
Maria Sandoval 434 55