Lord Jim'S

National Labor Relations Board - Board Decisions

Jan 10, 1986

277 N.L.R.B. 1514 (N.L.R.B. 1986)

1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lord Jim 's and Hotel and Restaurant Employees
and Bartenders Union , Local 2 . Case 20-CA-
15793
10 January 1986
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 1 October 1985 Administrative Law Judge
Richard D. Taplitz issued the attached supplemen-
tal decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed a
brief in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings, and conclusions and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Lord Jim's,
San Francisco, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order.
Andrew H. Baker, Esq., for the General Counsel.
Deborah E. Wilder, Esq. (Thierman, Simpson & Cook), of
San Francisco, California, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge, On
22 January 1982 the Board issued its Decision and Order
(259 NLRB 1162) directing Lord Jim's (Respondent) to
make Regan Foiles whole for any loss of pay and bene-
fits she may have suffered as a result of its unfair labor
practices. In a memorandum decision dated 29 June 1984
(No. 82-7240) the United States Court of Appeals for the
Ninth Circuit enforced the Board's Order.
A controversy having arisen over the amount of back-
pay due under the terms of the Board's Order, the Re-
gional Director for Region 20 issued a backpay specifica-
tion dated 5 April 1985. The backpay specification was
amended during the trial. Respondent filed an answer
that was also amended during the trial, which admitted
many of the allegations of the backpay specification. In
its answer, Respondent raised six affirmative defenses as
follows:
Affirmative Defenses
1. Foiles abandoned her job search on or before
January 1, 1981.
2. Foiles' attendance record with Respondent was
poor and must be taken into account by the Board
in calculating any backpay liability.
3. Foiles was sporadically employed during this
backpay period and willfully concealed earnings
from these interim jobs.
4. Foiles failed to make a reasonable effort to
secure other employment.
5. Foiles returned to school as a full-time student
on or before January 1, 1981.
6. Foiles left interim employment without good
cause.
In addition to its affirmative defenses, Respondent
argued during the course of the trial that there was no
backpay due because it had offered reinstatement to
Foiles shortly after the discharge. Evidence was taken on
that issue over the General Counsel's objection. That ob-
jection was based on the contention that such a defense
could only be raised if affirmatively pleaded in the
answer.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. A
brief, which has been carefully considered, was filed by
the General Counsel. Respondent filed a letter dated 15
July 1985 stating that it was not filing a brief, but asking
that notice be taken of certain decisions. There is no in-
dication on the letter that copies were sent to the other
parties and there is no certificate of service. By motion
dated 25 July 1985 the General Counsel seeks an order
striking Respondent's "post-hearing brief' on the ground
that Respondent failed to serve its brief on the General
Counsel. In a letter dated 29 July 1985, Respondent
states that its 15 July letter is not a brief and that the ad-
ministrative law judge may take judicial notice of case
law at any time. Section 102.42 of the Board' s Rules re-
quires that copies of all briefs shall be served on the
other parties and that a statement of such service shall be
furnished. Respondent's letter is tantamount to a brief,
and the Board's Rules with regard to briefs should apply
to it. In the absence of a statement of service of such
brief, it must be rejected. The General Counsel' s motion
is granted.
Upon the entire record of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following
A. The Applicable Principles of Law
When loss of employment is caused by a violation of
the Act, the finding by the Board that an unfair labor
practice was committed is presumptive proof that some
backpay is owed. NLRB v. Mastro Plastics Corp., 354
F.2d 170, 178 (2d Cir. 1965), cert. denied 384 U.S. 972
(1966). The General Counsel's primary duty in a backpay
proceeding is "to show the gross back-pay due each
claimant." J. H. Rutter-Rex Mfg. Co. Y. NLRB, 473 F.2d
223, 230 (5th Cir. 1973), cert. denied 414 U.S. 822 (1973).
277 NLRB No. 176
LORD JIM'S
Once the General Counsel has established gross backpay,
the burden is on Respondent to establish affirmative de-
fenses that would mitigate its liability. NLRB v. Brown &
Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). Respondent
has the burden of establishing such matters as willful loss
of earnings. Electrical Workers IBEW Local 3 (Macy &
Co.), 275 NLRB 990 (1985).' Respondent also has the
burden of establishing interim earnings to be deducted
from the backpay award beyond that which is admitted
in the backpay specification. NLRB v. Mooney Aircraft,
366 F.2d 809, 812-813 (5th Cir. 1966). Respondent has
the burden of proving that the backpay period termina-
tion date is other than that alleged in the backpay specifi-
cation. Mastell Trailer Corp., 273 NLRB 1190 (1984).
When there are' uncertainties or ambiguities, doubt
should be resolved in favor of the wronged party rather
than the wrongdoer. United Aircraft Corp., 204 NLRB
1068 (1973). A discriminatee is required to make a good-
faith effort in searching for interim employment but the
success of that effort is not the measure of the sufficiency
of the search. Aircraft & Helicopter Leasing, 227 NLRB
644, 646 (1976), enfd. 569 F.2d 351 (9th Cir. 1978).
Based on the testimony of Foiles, the admissions in the
answer, the presumptions arising in backpay hearing, and
the case law set forth above, the General Counsel has es-
tablished the gross backpay. The only issues in this case
are those raised by the affirmative defenses in Respond-
ent's answer as amended and, arguably, the question of
the termination date for backpay.
B. Facts and Conclusions
1. Respondent's alleged offer of employment to
Foiles
The backpay specification as amended alleges: "Foiles
backpay period begins October 21, 1980 and ends on
March 14, 1982, the date of her last opportunity to
accept the offer of reinstatement made to her by Re-
spondent." Respondent's answer to that allegation reads:
"Respondent denies each and every allegation contained
in paragraph 1. Ms. Foiles abandoned her search for em-
ployment on or before January 1, 1981, returned to
school as a full-time student on or about January 1, 1981,
left interim employment without good cause, concealed
interim earnings, and therefore is not .entitled to any
backpay." Nothing in Respondent's answer as amended
suggests that Foiles was offered reinstatement prior to 14
March 1982.
Section 102.54 of the Board's Rules requires a great
deal of specificity with regard to answers to a backpay
specification. In the absence of such specificity, the alle-
r As the Board held in that case
It has long been held that a respondent may mitigate its backpay
liability by showing that a discriminatee "willfully incurred" a loss
of earnings by a "clearly unjustifiable refusal to take desirable new
employment "2 However, this is an affirmative defense and the
burden is on the respondent to show that the discnmmatee "neglect-
ed to make reasonable efforts to find interim work."
2 Aircraft it Helicopter Leasing, 227 NLRB 644, 646 (1976), citing
Phelps Dodge Corp v. NLR 8, 313 F 2d U S 177, 199-200 (1941).
a Id. citing NLRB v Arduini Mfg. Co, 394 F 2d 420, 422-423 (1st
Or. 1968).
1515
gations in the backpay specification "shall be deemed to
be admitted to be true." In such a situation the Board
may make findings without the taking of evidence, and
Respondent is precluded from introducing any evidence
controverting said allegation. 2
Respondent's answer is clearly insufficient under the
Board's Rules to raise any issue with regard to the dates
of the backpay period. Those dates, as set forth in para-
graph I of the backpay specification as amended, are
deemed to be accurate. However, as I did allow evi-
dence to be taken on that issue and as I am reluctant to
dispose of the matter purely on a procedural ground
when an evaluation can be made on the merits, a brief
discussion of the evidence is warranted.
Spiro Tamourantzis is the owner of Respondent. Ta-
mourantzis testified that in late October or early Novem-
ber 1980, which was about 2 weeks after Foiles left Re-
spondent's employ, and on a number of occasions there-
after, he offered Foiles reinstatement, He also testified
that he had an ex-manager, Bill Carlson, call Foiles on
the telephone and offer her reemployment. Foiles, in her
testimony, acknowledged that Tamourantzis asked her to
come back to work. She also averred that she asked Ta-
mourantzis when she should come back, and Tamourant-
zis told her to call his accountant, Jack Lapidos, and talk
to him. He said that Lapidos handled it. According to
Foiles, she called Lapidos who told her that she would
have to drop her National Labor Relations Board case in
order to come back. He also told her that she could not
have her job back as long as there was any union case,
either hers or the Union's. She testified that on other oc-
casions Lapidos told her that he would help her find a
job with a different employer if she disassociated herself
2 Sec 102 54 of the Board's Rules reads in part:
(b) Contents of the answer to specification -The answer to the spec-
ification shall be in writing, the original being signed and sworn to
by the respondent or by a duly authorized agent with appropriate
power of attorney affixed, and shall contain the post office address
of the respondent The respondent shall specifically admit, deny, or
explain each and every allegation of the specification , unless the re-
spondent is without knowledge , in which case the respondent shall
so state, such statement operating as a denial Denials shall fairly
meet the substance of the allegations of the specification denied
When a respondent intends to deny only a part of an allegation, the
respondent shall specify so much of it as is true and shall deny only
the remainder . As to all matters within the knowledge of the re-
spondent , including but not limited to the various factors entering
into the computation of gross backpay , a general denial shall not suf-
fice As to such matters , if the respondent disputes either the accura-
cy of the figures in the specification or the premises on which they
are based, he shall specifically state the basis for his disagreement,
setting forth in detail his position as to the applicable premises and
furnishing the appropriate supporting figures.
(c) Effect offailure to answer or to plead specifically and in detail to
the specification.-If the respondent fails to file any answer to the
specification within the time prescribed by this section , the Board
may, either with or without taking evidence in support of the allega-
tions of the specification and without notice to the respondent, find
the specification to be true and enter such order as may be appropri-
ate. If the respondent files an answer to the specification but fails to
deny any allegation of the specification in the manner required by
subsection (b) of this section , and the failure so to deny is not ade-
quately explained, such allegation shall be deemed to be admitted to
be true, and may be so found by the Board without the taking of
evidence supporting such allegation , and the respondent shall be pre-
cluded from introducing any evidence controverting said allegation.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the Union. Foiles denied in her testimony that she
had a conversation about reinstatement with Carlson.
Neither Carlson nor Lapidos testified.
Tamourantzis, in his testimony, denied that he told
Foiles to talk to Lapidos shortly after she was fired. I
have little hesitancy in crediting Foiles over Tamourant-
zis. Foiles' demeanor on the stand was such as to inspire
confidence in her veracity. The same was not true with
regard to Tamourantzis. I credit Foiles' assertion that she
did not receive any unconditional offer of reinstatement
until the one that is mentioned in the backpay specifica-
tion. She was offered reinstatement on condition that she
and the Union give up their rights under the National
Labor Relations Act. Such an offer is far from uncondi-
tional, and it is insufficient to terminate a backpay obliga-
tion. Tri-State Truck Service, 241 NLRB 225 (1979), enf.
denied on other grounds 616 F.2d 65 (3d Cir. 1980). I
find that the backpay period is as stated in the backpay
specification.
2. The affirmative defenses
Two of Respondent's affirmative defenses may be sum-
marily disposed of. Affirmative defense 2 alleges that
Foiles' attendance record with Respondent was poor and
must be taken into account by the Board, in calculating
any backpay liability. When Foiles was working for Re-
spondent, she had regularly scheduled hours from 10
a.m. to 6 p.m. on Saturdays and Sundays and she also
filled in on occasion on a weekday, for a total of 21
hours per week. The backpay specification seeks backpay
on the basis of the 21-hour week. There is no evidence in
the record with regard to Foiles' attendance record with
Respondent when she was employed. There is some evi-
dence that she had been employed on a number of sepa-
rate occasions since she originally worked for Respond-
ent in 1972. Some years she worked for Respondent 5 or
6 months and in other years, only 2 or 3 months. There
is no evidence, however, to indicate that in the absence
of the unlawful discharge she would not have continued
to work throughout the entire backpay period. Respond-
ent has failed to meet its burden of proof with regard to
affirmative defense 2.
Affirmative defense 3 alleges that Foiles was sporadi-
cally employed during the backpay period and willfully
concealed earnings from those interim jobs. The backpay
specification admits certain interim employment and de-
ducts the interim earnings from the gross backpay. There
is absolutely no evidence that Foiles willfully concealed
earnings. Respondent again has failed to meet its burden
with regard to that affirmative defense.
All the other affirmative defenses relate to the allega-
tion that Foiles willfully incurred a loss of interim earn-
ings in various ways. Affirmative defense 5 alleges in
substance that Foiles made herself unavailable for interim
employment by returning to school as a full-time student
on or before 1 January 1981. Affirmative defenses 1 and
4 allege in effect that Foiles did not make a good-faith
effort in seeking interim employment because she aban-
doned her job search about 1 January 1981 and because
she failed to make a reasonable effort to secure other em-
ployment. Affirmative defense 6 alleges that Foiles left
interim employment without good cause.
Affirmative defense 5 alleges that Foiles returned to
school as a full-time student on or before 1 January 1981.
Foiles acknowledged that she did attend a full-time pro-
gram at San Francisco State from January 1981 to Janu-
ary 1982 to obtain her teaching credentials. She began a
master's program in 1976 and graduated in Augut 1979.
In 1980 she worked as a teachers aide going from school
to school for handicapped children. As noted above, Re-
spondent unlawfully discharged Foiles from a position
where she worked about 21 hours a week with about 16
hours on weekends, and about 5 hours during the week.
Foiles credibly testifed that she was able to attend a full-
time program at school and still work those hours. The
General Counsel does not seek backpay on a full-time
basis but only for those hours that Foiles would have
worked if she had not been unlawfully discharged. The
situation here is comparable to that in J. L. Holtzendorff
Detective Agency, 206 NLRB 483, 485 (1973), enfd. 85
LRRM 2769, 75 LC ¶ 10,568 (9th Cir. 1974), when the
Board adopted the decision of the administrative law
judge which read:
The fact that Kelley was looking for night work
while attending school does not negate his availabil-
ity for work for the purposes of this case, inasmuch
as it was while attending day school that Kelley
was engaged in nighttime work with the Respond-
ent....
Respondent has not sustained its burden with regard to
affirmative defense 5.
Affirmative defense 6 alleges that Foiles left interim
employment without good cause. The only ' evidence in
that regard related to Foiles' employment with Hog
Heaven where she worked during the fourth quarter of
1980.3 Her duties for Hog Heaven were those of a
busboy and bathroom cleaner. Part of her job was to
carry heavy garbage pails full of pork bones. She found
the work difficult, strenuous , and dirty. As a result she
voluntarily left that employment. The position from
which she had been unlawfully discharged was that of a
cocktail waitress at an elegant, well-lighted, and well-ap-
pointed cocktail lounge. As was held in Big Three Indus-
trial Gas, 263 NLRB 1189, 1211 (1982), an unlawfully
discharged employee's duty to mitigate backpay requires
such a person to seek and remain on jobs that are sub-
stantially comparable to the one occupied before the un-
lawful discharge. There is no obligation to remain on a
job that is substantially more onerous than the one from
which that person was discharged. Chem Fab Corp., 275
NLRB 21, 24 (1985). In the instant case I find that
Foiles' employment at Hog Heaven was not substantially
equivalent to the job with Respondent, that the work
was far more odious to her than that which she had pre-
viously performed, and that she had a reasonable basis
for leaving that employment. As indicated below, she
continued to look for interim employment after leaving
that job. The fact that she voluntarily left her employ-
3 Earnings from that job have been subtracted from gross backpay in
the backpay specification.
LORD JIM'S
ment at Hog Heaven does not affect the amount of back-
pay due.
Affirmative defenses 1 and 4 allege that Foiles aban-
doned her job search on or before 1 January 1981 and
that she failed to make a reasonable effort to secure
other employment. The only evidence with regard to
those assertions is the testimony of Foiles under direct
and cross-examinations and the documents that Foiles
submitted to the General Counsel, which were offered
by Respondent and received in evidence as Respondent's
exhibits. That evidence establishes that in every month
for which backpay is claimed Foiles made a serious
effort to obtain interim employment. She contacted po-
tential employers on the telephone, answered ads, and
made personal visits. In addition to seeking work as a
cocktail waitress, she sought work as a store clerk, food
waitress, dress shop clerk, teacher, counselor, model, and
temporary employee. She sought work by registering for
referral with the Union and also by registering with a
number of employment agencies. At the hearing Re-
spondent argued that there are approximately 650 bars in
San Francisco and that Foiles improperly limited her
search for employment to a small number of them. Foiles
acknowledged in her testimony that she did not seek
work at cocktail lounges which she considered to be in
dangerous neighborhoods and that she did not apply for
work in places where she would feel unsafe. She de-
scribed Respondent's bar as an elegant, beautiful, and
clean place with antique furniture. It was in a good
neighborhood with a sophisticated clientele and conven-
ient as indicated above„ Foiles' obligation to mitigate
backpay only required her to seek substantially equiva-
lent employment. Respondent has not established that
Foiles abandoned her job search or failed to make a rea-
See generally Isis Plumbing Co., 138 NLRB 716, 717-721 (1962)
If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
1517
sonable effort to secure other employment. Highview,
Inc., 250 NLRB 549, 550-551 (1980); Aircraft & Helicop-
ter Leasing, supra; cf. Electrical Workers IBEW Local 3
(Macy & Co.), supra.
C. Conclusionary Findings
In sum, I find that the General Counsel has established
the gross backpay due Foiles, the Respondent has failed
to establish its affirmative defenses, and that the backpay
specification as amended correctly states the amount of
backpay due Foiles.
I further find that Respondent's obligation to Foiles
will be discharged by the payment to her of the sum of
$6462.77, plus interest as prescribed in Florida Steel
Corp., 231 NLRB 651 (1977),4 to accrue commencing
with the last day of each calendar quarter of the backpay
period on the amount due and owing for each quarterly
period as is set forth in "Appendix" of the backpay spec-
ification, a copy of which is attached, and continuing
until the date this decision is complied with, minus any
tax withholding required by Federal and state laws.
On the basis of the foregoing findings and conclusions,
and on the entire record of this proceeding, I issue the
following recommendeda
ORDER
The Respondent, Lord Jim's, San Francisco, Califor-
nia, its officers, agents, successors, and assigns, shall satis-
fy its obligation to make Regan Foiles whole by payment
to her of backpay in the amount of $6462.77, plus inter-
est, in the manner set forth in the section of this decision
entitled Conclusionary Findings, minus any tax withhold-
ings required by Federal and state laws.
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
YEAR QTR.
GROSS INTERIM DEDUCTIBLE
EARNINGS EXPENSESBACKPAY
NET
INTERIM
EARNINGS
NET
BACKPAY
1980 IV 1215.00 613 .041 42.812 570.25 644.77
1981 I 1579.50 - 0 - - 0 - - 0 - 1579.50
1981 II 1579.50 16.003 2004 1400 1565 50
1981 III -0- -0 - - 0- -0- -0-
1981 IV 1458.00 - 0- 3.005 -0- 145800
1982 I 1215.00 - 0 - 4.008 - 0 - 121500
TOTAL NET BACKPAY $6462.77
1 Employers. ABAR Personnel Agency, Hog Heaven, Sound Spirits
2 Employment Agency Fee ($5), Uniform Hog Heaven ($37.81).
3 Employer: Carolyn Hall
4 Bus Fare
5 Bus Fare
6 Bus Fare