Pollack Electric Co., Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1979

240 N.L.R.B. 476 (N.L.R.B. 1979)

476 46DECISIONS OF NATIONAI. ILABOR RELATIONS BOARD
Pollack Electric ('onmpany, Inc. and local Union No.
3, International Brotherhood of Electrical Workers,
AFI-CIO. ('ase 29 CA 3788
.lanuar% 31, 1979
SUJPP.EM I.NI'AI. DI[('ISION ANI) ORI)ER
BY MI M1RS P INl I I() M Rl't. ANt) IRt S\l 1
On December 14, 1978, Administrative l.aw Judge
Robert . Mullin issued the attached Supplemental
Decision in this proceeding. hereafter. Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(h) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental I)ecision in light of the excep-
tions and brief and has decided to affirm the rulings.
findings, and conclusions of the Administrative I.aw
Judge and to adopt his recommended Order.'
ORI)ER
Pursuant to Section 10(c) of the National ILabor
Relations Act, as amended, the National I.ahor Re-
lations Board adopts as its Supplemental O()rlder the
recommended Supplemental Order of the Adminis-
trative aw Judge and hereby orders that the Re-
spondent. Pollack Electric ('ompany, Inc.. Brookln,.
New York, its officers, agents. successors, and as-
signs, shall take the action set forth in said Supple-
mental Order
Resppondcrln ha, exeptetd 1ii tIhe 'dlllriiii I hIs iC .1 .Jud[i2s Cl'1111nCII
dail Ihat l hc Rcponl dc ni. Poll.ck Itl-c1clt ('l,,ai) 1inl\. Inc. lid 'il ,II
ccr,. ifcIIti. %Utccc\,,t. nd -sIgnl'" ihol.di be irdccl t IIIC I hk t is
ctrilillIIlltcs ul,l. ,lltendilllg Ihalt onrll Rcpol ltlclll c1l[ lI.lt l ill l d 11 1
thc tdIIctiilual .ageClii. fficCr. ndI c L s hu h ilci h ltilt f h,i kp.,I
\\'ilc c a igree that t t' Ii Cl iid IIf , ,ic II h biI I Ic I ii hiC I I II ic Ill lJiI I
Lip;Cl II f.ir the .I I (i lt l t, of lmictL pai\. 1ihe c nl TiC\ liclc- /Itt ii 11trlt 1
iffIC Il t. L rclill S I( [ Ilf c, f.al I o Citl ', ml til i]I t 1 tII s tI Ill Stiil ICllCllli
I)ccilml iin d rtd lr Auarrw,,iA I . 11 I I (,1() (I p .s X iii h, '
Ilt\l flts Illtd .lhlt[l/ *of RptlnlldCni 10.lJl llhl il Cc /P hi'1 1 Pi/ ( rZ/t?
r ,it t i,. It
4
NI R i 1 i 68 11,7). cull u/' itll ic,/ . 1 , il. s /'c/; , I" I
Io dl0i (.mpm 'I '% / R ti lg8 'd 44 1m-lh1 ( I I mo
SU I PIL. I MNIA L [)L( IS[I(N
SIAII Mi NI W I)l ( SI A I I 1 1 1 I 111 N I
RoHl KI I Ml m Il Adminrlllistratie 1.ax Jude: ()n ,I-
gust 25, 1975. the Board issued its D)ecision ad ()rder ill
this matter., directing the Respondent. Pollaick FLlectric
21'i N R 1217
24(0 NI.RIB No. 71
Company, Inc. (herein Pollack or Employer), inter alia, to
offer immediate and full reinstatement to George Handri-
nos. Steve Krellenstein. Gus Moustogiannis. Eugene Mor-
etti, homas Nastos, and Albert Rescigno and make them
whole for any losses resulting from Respondent's unfair
labor practices in violation of Section 8(a I 1) and (3) of the
National Labor Relations Act. On October 13. 1976. the
Utnited States Court of Appeals for the Second Circuit is-
sued its decree, enforcing in full all provisions of the afore-
said Order of the Board. I'he parties being unable to agree
on the amount of backpay due under the terms of the
Board's Order, on November 30, 1977. the Regional Direc-
tor for Region 29 issued a backpay specification. Respon-
dent duly filed an answer thereto. Thereafter, on April 26,
1978, the General Counsel filed a Motion for Sumrnar 5
Judgment with the Board. On August 18, 1978. the Board
denied this motion and remanded the case for a hearing
that would be limited to a determination of interim earn-
ings and net backpay due to the discriminatees in the un-
derlsing matter. Pursuant to this Order, the Regional Di-
rector issued a notice of hearing on August 29, 1978.
On November 20. 1978. pursuant to the aforesaid notice,
a hearing in this case was held in Brooklyn, New York. At
the outset of of the hearing the parties requested time for a
conference to narrow the issues. Thereafter, the General
('ounsel moved a minor amendment to the backpay spec-
ification. There being no objection, this motion was grant-
ed. Respondent thereupon moved for permission to with-
draw its answer. This motion was also granted. The parties
then having nothing further to offer, the undersigned stat-
ed that in view of Respondent's withdrawal of its answer.
the backpay specification of the General C('ounsel as
amended at the hearing, stood undenied and that thereaf-
ter a decision would be served upon the parties. The hear-
ing was then closed, all attorneys for the parties having
waived their right to file briefs.
Upon the entire record, the Administrative Law Judge
makes the following:
IlINDIN(iS )I iA( I
In its Decision the Board found, inter allial, that on De-
cember I, 1973. Respondent discriminatorily laid off Han-
drinos. Krellenstein, Moretti Moustogiannis. Nasto, and
Rescigno all in violation of Section 8(a)(3) and ( I) of the
Act. The Board entered the conventional order requiring
that Respondent offer immediate reinstatement to the
aforenamled individuals and make them whole for all losses
resulting from the illegal discrimination against them. As
noted earlier, the Board's Order was enforced by a decree
of thie I nited States (' urt of Appeals for the Second (Cir-
CUll.
As Respondent has wsithdrawn its alns.er to the backpa
sp,,ification, the prox isions set forth in that document are
deellied admitted.
The backpa period foir each of the claimlants begins on
l)ecemlber 1973. the (date of the dlisLriminator) laNoff.
and terminates on r about No\enmhcr 1976. the date o
thei placenlent o a preferential hiring list.
POLLACK FL.El'T'RICCO., INC 477
I'he data set forth in the General ('ounsel's hackpax
specification. as amended. are now adopted as the findings
and conclusions of the undersigned. I'he document itself
appears hereinafter as an Addendum attached hereto.
('oncl Usions
The finding of the Board that an employee was discrimi-
natorily discharged is presumptive proof that some back-
pay' is owed. N'.I. .B. v. Matro Pla.tics Corp., 354 F.2d
170., 178 2d Cir. 1965), cert. denied 384 U.S. 972 (1966). In
the backpa proceedings, the General Counsel's burden is
"to show the gross hack-pay due each claimant." J. II.
Rutter Rex Manufacturing Compan y. Inc. v. N.L.R. B., 473
F.2d 223, 230 (5th Cir. 1973), cert. denied 414 U.S. 822
(1973). The General Counsel has met his burden in this
case. The backpay period and the weekly pay that the dis-
criminatees would have received but for the unfair labor
practices has been established as set forth in the Adden-
dum to this Decision. The General Counsel's backpay
specification calculates the Gross gackpay, allowable ex-
penses. and interim earnings in conformity with the
Board's order.
Once the General Counsel established the gross backpa)
due under the Board's order. the burden was on Respon-
dent to set forth any affirmadie defenses that would miti-
gate its liahility, such as unavailability of work because of
nondiscriminatory factors, willful loss of earnings. and in-
terim earnings to he deducted from the hackpav award.
N...R.B. v. Brown & Root. Inc., etc., 311 F.2d 447. 454 (8th
Cir. 1963): N.L.R.B. v. Mooney Aircraft. inc., 36( F.2d 809.
812 813 (5th Cir. 1966). Insofar as there are uncertainties
or ambiguities, the Board has held "the backpay claimant
should receive the benefit of any doubt rather than the
Respondent. the wrongdoer responsible for the existence of
any uncertainty and against whom any uncertainty must
be resolved." ULnited Aircraft (Crporatlion, 204 NLRB 1068
(1973).
In conformity with these guidelines, and in the light of
the findings reached by the adoption of the backpay speci-
fications, it is now found that the General Counsel has
established the backpay due Htandrinos. Krellenstein, Mor-
etti, Moustogiannis. Nasto, and Rescigno. Further, in the
present state of the record, no evidence has been offered to
mitigate Respondent's backpay liability or to diminish the
amount set forth as due. It is now found that the hackpa
specification, attached hereto in relevant part as the Ad-
dendum to this Decision. correctly states the amount due
each of the aforesaid discriminatees.
Reconm mendations
()n the hb;sls of the foregoinLg findings of factl. concll -
sions of law,. and the entire record in this procceding, and
pursuant to Section 10(c) of the Act. there is issued the
foll ou i recom mended:
()RI)Il
Iollack Ilectric (oniepali;. . Inc.. its officers. agcents. slic-
cessors. iand aSSigulls. shll I paIX to each of ilhe ndrliiduals
named below the amounts set forth opposite their names:'
George Handrinos
Steven Krellenstein
Eugene Moretti
Gus Moustogiannis
Thomas Nastos
Albert Rescigno
$3,281
1,984
7.864
2'.578
5,.531
5,803
ADD NI)UM
RE: Pollack El'ctriw ('ompatir. Ic.
Case No. 29 ('A 3788
1. THE B(ACKPA PERIOD
The backpay period for each of the claimants begins on
D)ecember . 1973, the date of their discriminators laoff.
and terminates on or about November I. 1976. the date of
their placement on a preferential hiring list.
Employees Handrinos, Moustogiannis, and Nastos were
recalled to work for I day on December 7, 1973 and were
discriminatorily discharged on that date. Their earnings for
that date have been credited as interim earnings for the 4th
quarter of 1973.
Employees Rescigno and Krellenstein were recalled on
December 7. 1973. and thereafter orked through on or
aboul Januar I I. 1974. hese earnings have been credited
to interim earnings for the 4th quarter of 1973 and the first
quarter of 1974. as applicable.
II. (CO.IPUT'7.4 ON OF GROSS B.4 ('AP,l '
(a) An appropriate measure of the gross backppal which
each claimant would have earned during his hackpil pe-
riod, is his prediscrimination weeklS salar, times the num-
her of weeks it is determined he would have worked using
the method described below. computed on a calendar
quarterl basis.
(b) The prediscrimination weekl, salaries of the claim-
ants were as follows:
Thomas Nastos
George Handrinos
Albert Rescigno
Gus Moustogiannis
Eugene Moretti
Steven K rellensltem
$120
12()
I ()
I (X)
I ()
. .X)
I() ffective January I. 1975. the i:air l.ahor Standards
Act was amnended hb increasing the miinium wage from
I l111" ic .t*ll t rin .\ictt 'nb. .1H tJc .1I "l",tIIi I h ?, 1ll 46 i I r1 ,
Rliie.lr illnd Kc .sullw A)( 111 \,1Hlla .ll r Bl lilll I T 1 Hli I 11 I Ild 1lt
h. ..... I iI I, Jrij d l,, lll ll. lliItI d SI 11 [I )c IIl1iI ( idIr Il 'l'll \,ie ,' nIk'\ I , I t
cd In Se, 112 48 {of Ih, Rtjlc, .111i R1'/u.tttlmx bt ,i i ed has,11, L [h,,t1
,Ieiq i E THIC 1Irf. Idr l lll"Ie J01 i1n I l n. II, IIC 1 (>Il ,I , l iI ll, loe ll e 1I1r1jr c
1lei 1 t ll ll C I, fl llI' ltll i .h 11.1 11 1 () .4 0 I }3. h l i111 l .tl
i
.- .,, i, (rd, &lh /~, 11 '/1.mt .x- 1A1, ,11-,n ( I ;s x Ri fe I , 'I I
tl'lh': ,adt /,i I, * .,,.l',,,t 2 l R l ,~ I K B I Il hcc 11,[ ! t
*]il[C , I" ,Lkk
POLLACK El ECIRIC CO.. INC 477~'
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$2.00 to $2.10 per hour. Krellenstein's salary was equiva-
lent to $2.00 per hour. Accordingly, his weekly rate of pay
was required to be increased to $84.00 per week.
(d) Effective January I, 1976, the Fair Labor Standards
Act was amended by increasing the minimum wage from
$2.10 per hour to $2.30 per hour. Accordingly,
Krellenstein's weekly salary was required to be increased
to $92.00 per week.
(e) The Administrative Law Judge in his Decision, which
was affirmed by the Board and the Court of Appeals.
found that the Employer herein, "followed the deliberate
policy of reducing the amount of new or added business
.... " Based on the above finding and in view of the fact
that Respondent Employer continued to operate at a re-
duced level of activity without rehiring any of the discrimi-
natees herein during the period since December 1973, an
appropriate measure of the volume of employment which
would have been available to the claimants, absent the dis-
crimination against them, is I week's work for each claim-
ant in every week that both the employer, Ralph Pollack,
and the foreman, John Amorgianos, appear on the payroll.
(f) Therefore, the gross backpay has been computed by
multiplying the weekly rates of pay listed above by the
number of weeks, determined as described above, on a cal-
endar quarterly basis, as set f(-rth in Appendices A through
F. [Omitted from publication.]
Ill. INTERIM EARNINGS
The interim earnings of the claimants during the back-
pay period, as presently known or estimated, are reported
in Appendices A through F.
IV. NET BACKPA Y
Net backpay is gross backpay less interim earnings, com-
puted on a calendar quarterly basis. Computation of net
backpay is set forth in Appendices A through F. [Omitted
from publication.]
V. SUMMARY
Summarizing the facts herein and the computations set
forth above and in the Appendices, the obligation of Re-
spondent to make the discriminatees whole pursuant to the
Board's Order will be discharged by payment to the dis-
criminatees named below of the amounts set opposite their
names, plus interest accrued to the date of such payment,
minus the tax withholdings required by Federal and state
laws:
Thomas Nastos
George Handrinos
Albert Rescigno
Gus Moustogiannis
Eugene Moretti
Steven Krellenstein
$5,531
3,281
5,803
2,578
7,864
1,984
I