Opc Holdings, In., Successor With Liability To Jenkins Index Corp.

National Labor Relations Board - Board Decisions

Mar 3, 1987

283 N.L.R.B. 457 (N.L.R.B. 1987)

JENKINS INDEX CORP. 457
Jenkins Index Corporation ,, a Division of Universal
Paper Goods Company , Inc., Single Employers;
or in the alternative Universal Paper Goods
Company, Inc., a subsidiary of OPC Holdings,
Inc., successor with . liability to Jenkins Index
Corporation and Southern California Printing
Specialties and Paper Products Union, Local
388, affiliated - with the International Printing
and- Graphic Communications Union . Case 21-
CA-21994
3 March 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 11 July 1986 Administrative Law Judge
James M. Kennedy issued the attached supplemen-
tal decision.' The Respondent filed exceptions and
a supporting brief.
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
brief and has decided to affirm the judge' s rulings,
findings, 2 and conclusions, 3 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Jenkins
Index Corporation, a Division of Universal Paper
Goods Company, Inc., Single Employers or, in the
alternative Universal Paper Goods Company, Inc.,
1 The Board's Decision and Order is reported at 273 NLRB 736
(1984).
2 The Respondent, Jenkins Index Corporation , has excepted to some of
the judge 's credibility findings. The Board 's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Product.% 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.
a The Respondent has excepted to the judge's awarding Celedon Ar-
menta backpay for the period from 19 July through 1 November 1984. It
appears from the record that during this period Armenta may have re-
ceived vocational rehabilitation disability payments, and it is clear that a
permanent disability award was made by the State of California on 2 No-
vember 1984, the last day of the backpay period. With regard to this ex-
ception, the Respondent 's sole contention is its conclusionary claim that
the backpay period should end on 19 July 1984 rather than the 2 Novem-
ber 1984 date set forth in the backpay specification and accepted by the
judge. We find no basis in the record to establish that the backpay period
should end on any date prior to the date of the permanent disability
award. Moreover, we note that the Respondent has made no claim, and
the record does not indicate, that the vocational rehabilitation disability
payments constitute payment for wages lost by a claimant during the
backpay period and thus are deductible from the gross backpay amount.
See Canova Moving Co., 261 NLRB 639 (1982), enfd. 708 F 2d 1498 (9th
Cir. 1983).
a subsidiary of OPC Holdings, Inc., Successor with
liability to Jenkins Index Corporation, Montebello,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
William J. McCauley, Esq., for the General Counsel.
Norman"Jones, of San Simeon , California, for the Re-
spondent.
SUPPLEMENTAL' DECISION
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me at Los Angeles, California, on
June 11, 1986, pursuant, to a backpay specification and
notice of hearing issued by the Acting Regional Director
for Region 21 of the National Labor Relations Board, on
behalf of the Board, on February 19, 1986. The Board's
original order was entered on December 14, 1984, and is
reported at 273 NLRB 736. Thereafter, the entities col-
lectively described herein as Respondent entered into a
stipulation providing for the issuance of a backpay speci-
fication prior to obtaining court enforcement of the origi-
nal Board Order. That stipulation was approved by the
Board on December 19, 1985.
Among other things, the Board's original Order re-
quired Respondent to make whole three employees pur-
suant to its quarterly formula as set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), together with interest
thereon. The initial complaint was directed against "Jen-
kins Index Company" and the Board's original order di-
rected "Jenkins Index Company .. - ., its officers, agents,
successors , and 'assigns" to comply with the Order. In
the backpay specification, the Acting Regional Director
asserted, and Respondent admits, that at the time the
unfair labor practices were committed (February 17,
1983), Jenkins Index was a wholly owned division of
Universal Paper Goods Company, Inc. The Acting Re-
gional Director further asserted that as a result of a cor-
porate transformation occurring after the commission of
the unfair labor practices, Jenkins was completely
merged into Universal and ceased operating as a division
of Universal; he also asserts that Universal, in turn, is a
subsidiary of OPC Holdings, Inc., a holding company.
Respondent admits that as ' of July 1984 Jenkins had been
completely merged into Respondent Universal and had
ceased operating as one of its divisions. Respondent fur-
ther' admits that Universal is a successor for the purpose
of remedying Jenkins' unfair labor practices.
The General Counsel has waived its right to file a
brief; Respondent has filed a short brief challenging the
credibility of one claimant. It has been carefully consid-
ered.
The Evidence
At the outset of the hearing the General Counsel and
Respondent entered into a stipulation with respect to
two of the three individuals entitled to backpay. After a
modification which appears in Appendix A, the parties
agreed that Ambrosio Contreras is entitled to net back-
pay of $19,367.92. In addition, they agreed that Michael
Negrete is entitled to net backpay of $16,254.92. Accord-
283 NLRB No. 67
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ingly, a' supplemental order will be entered liquidating
backpay in those, amounts, for those two individuals.
The third individual is Celedon Armenta. The General
Counsel has set forth Armenta's backpay period as begin-
ning on February 10, 1983, when he was discharged, and
ending on November 2, 1984, the date on which he was
granted a disability insurance award.' The Respondent
seeks to reduce backpay by asserting that Armenta was
disabled and unable to return to work as of November 2,
1984. The evidence shows that Armenta actually suffered
his industrial injury in 1981, more than a year before his
unlawful discharge. It further shows that he had surgery
in 1982 and returned to work on full duty in August of
that year. Armenta testified he worked continuously
from that date until he was unlawfully discharged on
February 10, 1983. He says from that time on he was
fully capable of performing all aspects of his job, those
of a maintenance mechanic, and as late as 1985 when he
actually 'returned to work for a short period he contin-
ued to be able to perform those duties. Respondent has
offered no contrary evidence.
I conclude that although Armenia suffered an industri-
al accident in 1981 and although he had surgery in 1982,
the injury was corrected and that at all times he was able
to perform his job and could have done so from the time
he was discharged until the end of the backpay period as
alleged.
Respondent also challenges the validity of those fig-
ures in Appendix A relating to Armenta which show
that he had no interim earnings during the entire year of
1984. Armenta testified he was not employed during that
time and his only income was approximately $4200 from
some rental property which he and his family own. The
parties are in agreement that the rental income would
not be considered interim earnings as the property was
generating income before the discrimination. Respondent
subpoenaed certain of Armenta's bank records in an
effort to establish that he had received additional income
from. employment and from other sources. It is true that
during this period Armenta's checking and savings ac-
counts show substantial deposits. Nonetheless, Respond-
ent was unable to show that these deposits came- from
employment. Armenta stated that some of the moneys
deposited were given him by his three adult sons, one of
whom works for an aerospace manufacturer and who
' Armenta has not challenged the propriety of this event as ending the
backpay penod.
earns a salary of - approximately $45,000; another, of
whom works for'the corporate office of a fast-food chain
and who earns between $35;000 and $40,000; and a third
who is in the military service. He testified that these
three have told him that they did not want him spending
his own money or depleting the family estate as they
expect it to be part of their inheritance. Accordingly,
Armenta says, he had accepted their- assistance. Their as-
sistance appears in both savings and checking deposits.
In addition, he says, before his unlawful discharge his
wife had approximately $15,000 in cash which she kept
in a safety deposit box. He says his wife, who handles
the family finances, on various occasions during the
backpay period, withdrew certain sums from the safety
deposit box. She placed them either in the savings ac-
count for short periods or into short-term certificates of
deposit which were frequently "rolled over." He says
the deposits shown in the savings account appear to be
substantial but, in reality, amount only to the same
money being deposited several times. Although available,
Respondent offered no bank records in evidence. As Re-
spondent was unable to demonstrate any other source of
these deposits, I conclude that it has failed to meet its
burden of proving that Armenta had interim earnings in
1984.
In conclusion - I find that the backpay specification
with respect to Celedon Armenta is correct and that he
is entitled to net backpay totaling $39,244.02 According-
ly, I issue the following recommended supplemental
ORDER
Based on the foregoing findings of fact and conclu-
sions of law it is ordered that the Respondent, Jenkins
Index Corporation, a Division of Universal Paper Goods
Company, Inc., Single Employers; or, in the alternative
Universal Paper Goods Company, Inc., a subsidiary" of
OPC Holdings, Inc.; Successor with Liability 'to Jenkins
Index Corporation, Montebello, California, shall pay the
following named employees net backpay in the amounts
set forth opposite their names, together with interest as
required by the Board under Florida Steel Corp.,, 231
NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716
(1962):
Celedon Armenta '$39,244.02
Ambrosio Contreras 19,367.92
Michael Negrete 16,254.92