Providence Stereotypers' Union

National Labor Relations Board - Board Decisions

Nov 18, 1974

214 N.L.R.B. 1023 (N.L.R.B. 1974)

PROVIDENCE STEREOTYPERS' UNION
Providence Stereotypers' Union No. 53 a/ w Interna-
tional Stereotypers ' and Electrotypers' Union of
North America , AFL-CIO and The Evening Call
Publishing Company. Case 1-CB-2029
November 18, 1974
SUPPLEMENTAL DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On August 14, 1974, Administrative Law Judge
Benjamin K. Blackburn issued the attached Supple-
mental Decision in this proceeding.' Thereafter, Re-
spondent Union filed exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) 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 Decision in light of the excep-
tions and brief and has decided to affirm the rulings,
findings, and conclusions I of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Providence Stereotypers'
Union No. 53 a/w International Stereotypers' and
Electrotypers' Union of North America, AFL-CIO,
its officers, agents, and representatives, shall take the
action set forth in the said recommended Order.
' 202 NLRB 195 (1973)
2 Respondent contended, citing N L R B v Mastro Plastics Corporation,
354 F 2d 170 (C A 2, 1965), and N L R B v Patrick F Izzi, d/b/a Pat Izzi
Trucking Co, 395 F 2d 241 (C A 1. 1968), "that there is a burden upon the
Board to go forward with testimony for the employee as to interim
earnings," and that such burden was not met by the General Counsel, who
chose not to place discriminatee Fontaine on the stand but rather, chose to
rest on the pleadings Although we have not acquiesced in the Second
Circuit's view that the Board has the burden of producing a discriminatee
for examination in backpay proceedings (Sieve Aloi Ford, Inc, 190 NLRB
661 (1971) ), we note that the General Counsel made discrimmatee Fontaine
available at the hearing herein, but Respondent chose not to avail itself of
its opportunity to examine him as to any interim earnings in mitigation of
its backpay liability Consequently, we see no basis for Respondent's reli-
ance on Mastro Plastics or Izzi, supra
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
1023
BENJAMIN K. BLACKBURN, Administrative Law Judge:
This backpay proceeding grows out of a Board order is-
sued on March 5, 1973, requiring Respondent to make
whole Richard Fontaine for losses resulting from
Respondent's violation of Section 8(b)(1)(B) of the Nation-
al Labor Relations Act, as amended (202 NLRB 195
(1973) ). The backpay specification, issued on February 13,
1974, alleged the sum of $802.37 plus interest, but minus
tax withholding required by Federal and state laws, to be
due and owing Fontaine. Respondent's answer, dated
March 11, 1974, contained various allegations. On March
20, 1974, the General Counsel filed a Motion to Strike An-
swer and for Judgment Upon the Pleadings alleging
Respondent's answer lacked the specificity required by
Section 102.54(b) of the Board's Rules and Regulations,
Series 8, as amended. On March 29, 1974, Respondent filed
an Objection to Motion to Strike and for Judgment Upon
the Pleadings. On April 4, 1974, the Board transferred the
matter to itself and issued an order to show cause why the
General Counsel's motion should not be granted. On May
30, 1974, the Board denied the General Counsel's motion
and remanded the case to the Regional Director for Re-
gion I for hearing, saying:
The Board, having duly considered the matter, is of
the opinion that the Respondent's Answer to the
Backpay Specification and its response to the Notice
to Show Cause raise substantial and material issues as
to whether, and to what extent, the backpay has been
made up and the amount of interim earnings, which
issues cannot be resolved without a hearing.'
1 Interim earnings are hardly within the knowledge of the Respon-
dent and a denial thereof because of lack of knowledge is sufficient
under Section 102 54(b) of the Board's Rules and Regulations
The hearing was held at Providence, Rhode Island, on
July 15, 1974. At the outset the General Counsel stated that
Fontaine was present and available to testify if Respon-
dent so desired, took the position that, with respect to the
two issues mentioned in the Board's Order of May 30, the
burden of proof was on Respondent, and rested. Respon-
dent rested forthwith. A brief filed with me by Respondent
states, in pertinent part:
In its Answer, Respondent denied that the Regional
Director had determined an appropriate measure of
the earnings Fontaine would have received by com-
paring the earnings of Fontaine with one Edward
Bartnick one of a number of Stereotypers at the
Woonsocket Call. Respondent also denied that any
sum of money was due to the alleged discriminatee,
Richard Fontaine, as set forth in Paragraph 7. Re-
spondent also raised the issue as to the determination
of the back pay period and whether or not the back
pay had, in fact, been made up. Counsel for the Re-
gional Director apparently felt that the Order of the
214 NLRB No. 155
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board of May 30, 1974, de-
termined the only issues which were to be tried and
resolved by the Administrative Law Judge. Assuming
this to be true, the initial burden of going forward
does not shift to the Respondent. The Petitioner still
has the obligation of introducing evidence to establish
a prima facie case that Richard Fontaine was entitled
to back pay. The method of calculation and the pre-
cise amount due are matters of varying interpretation
and both parties have the right and obligation to intro-
duce evidence to establish their position. In this case,
the union has alleged consistently that it provided am-
ple opportunities to work overtime to Fontaine so that
he more than reestablished his position on the extra
work list.
The general rule in back pay cases is:
"The burden respecting gross back pay rests upon
the general counsel, while the Respondent bears the
untimate [sic] burden of proving mitigating factors."
See N.L.R.B. v. Mastro Plastics, 354 F.2d 170.
The Regional Counsel has apparently applied Sec-
tion 102.54(c) of the Board's Rules and Regulations to
Respondent's Answer and made a determination that
Respondent's denial of the allegations in the back pay
specification is not sufficient to place these matters in
issue. A careful reading of the Order of the Board of
May 30, 1974, does not permit that conclusion.
Before Respondent has the obligation to introduce
evidence establishing the amount of back pay that has
been made up and the amount of interim overtime
earnings Fontaine received, there must first be evi-
dence that Fontaine was, in fact, entitled to some back
pay figure and the method by which that figure is de-
termined should be the subject of an evidentiary hear-
ing. The reluctance of the Regional Director to pro-
ceed with this case has been apparent since its twelfth
hour continuance of the first hearing scheduled in the
case and its reluctance to proceed with an evidentiary
hearing on July 15, 1974. Whatever these reasons may
be, they are not sufficient to shift the burden of pro-
ceeding to the Respondent, before the Regional Coun-
sel has established a prima facie case.
The First Circuit in NLRB. v. Izzi, 395 F.2d 241
(C.A. 1, 1968), cited Mastro Plastics with approval and
ruled:
"That there is a burden upon the Board to go for-
ward with testimony from the employee as to their
interim earnings" even though the untimate [sic]
proof on this issue is upon the Respondent. In this
case, the Regional Director has unilaterally and ar-
bitrarily determined that the period of comparison
should be the first two quarters of 1972 between
Fontaine and Edward Bartnick. Mr. Bartnick, evi-
dence would show, was the number one man in
working overtime. The determination of alleged
back pay as set forth in Paragraphs 2, 3, 4 and 5
were denied by the Respondent in its Answer. The
Respondent also denied the determination of the
back pay period as set forth in Paragraph 6 A of the
Petitioner's back pay specification. Once denied,
these issues are properly before the Administrative
Law Judge for proof by way of records and oral
testimony and, of course, the Respondent then has
the opportunity to cross-examine the witnesses who
attempt to establish these facts. For whatever rea-
son the General Counsel's representative chose not
to do this, and instead apparently chose to rest upon
the pleadings, treating the pleadings as something
similar to a sworn bill in equity.
Upon the entire record,' especially the brief from Re-
spondent set forth in part above, I make the following:
FINDINGS AND CONCLUSIONS
The Amount of Backpay Due
Respondent has the burden of proof as to whether, and
to what extent, the backpay has been made up and as to
the amount of interim earnings. It has elected not to intro-
duce any evidence with respect to those or any other issues.
For this reason, there is no basis in this record for any
finding other than that the backpay specification correctly
sets forth the amount of money due Richard Fontaine
pursuant to the Board's outstanding order in this case.
N.L.R.B. v. Patrick F. Izzi, d/b/a Pat Izzi Trucking Compa-
ny, 395 F.2d 241 (C.A. 1, 1968) is not apposite. Therefore,
I find the sum of $802.37, plus interest at the rate of 6
percent per annum computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962), until
the date of payment of all backpay, is due Fontaine from
Respondent. Payment of this sum shall be less any taxes
required to be withheld by Respondent under Federal,
state, and local law.
Co The Charging Party's motion for judgment in favor of the General
unsel, which I took under advisement at the hearing, is disposed of by my
findings and conclusions herein