Sanford Home For Adults

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1287 (N.L.R.B. 1986)

SANFORD HOME FOR ADULTS
Leon Arie Edrich and Ignatius Elefant , Co-Partners
d/b/a Sanford Home for Adults , Successor. and
Harry Mayer, Sidney Kopet, Israel Grauman,
Yehudis Bogomilsky and Alexander Sands, Co-
Partners d/b/a Sanford Home for Adults and
Local 144, Hotel, Hospital, Nursing Home and
Allied Health Services Union, Service Employ-
ees International Union, AFL-CIO
Local 6, International Federation of Health Profes-
sionals, International Longshoremen 's Associa-
tion, AFL-CIO and Local 144, Hotel, Hospital,
Nursing Home and Allied Health Services
Union, Service Employees International Union,
AFL-CIO. Cases 29-CA-6759 and 29-CB-
3543
31 July 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 24 December 1985 Administrative Law
Judge Harold B. Lawrence issued the attached sup-
plemental decision . The Respondent Union 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 decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings, findings,' and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that Respondent Employer Leon
Arie Edrich and Ignatius Elefant, Co-Partners
d/b/a Sanford Home for Adults, Successor: and
Harry Mayer, Sidney Kopet , Israel Grauman, Ye-
hudis Bogomilsky, and Alexander Sands, Co-Part-
ners d/b/a Sanford Home for Adults , Flushing,
New York, its officers, agents, successors, and as-
signs, and Respondent Union Local 6, International
Federation of Health Professionals , International
Longshoremen's Association , AFL-CIO, New
I We note that the judge inadvertently referred to Artcraft Upholstering
Co., 228 NLRB 462 (1977), as "Aircraft. Upholstering Co." We also note
that the citation for NLRB Y. Sanford Home for Adults and Local 6 is 669
F.2d 35 (2d Cir 1981), enfg. 253 NLRB 1132 (1981).
a In adopting the judge's recommended Order apportioning primary
and secondary liability for initiation fees, dues, assessments, and other
moneys paid by or withheld from employees in this case, we note that
this is a compliance proceeding and that the General Counsel's request
for such an order is consistent with the Board 's usual practice in the
compliance procedure. See Hermet Inc., 222 NLRB 29 fn. 1 (1976).
1287
York, New York, its officers, agents, and represent-
atives, shall take the action set forth in the Order.
Elias Feuer, Esq., for the General Counsel.
Morris Tuchman, Esq. (Brenda, Pilchiek, Strashun, Esq.),
of New York, New York, for the Respondent Employ-
er.
William Perry, of New York, New York, for Respondent
Local 6.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
In the proceeding underlying this backpay proceeding, it
was determined that on 31 August 1978 the Respondent
Employer, the Sanford Home of Adults,' had unlawfully
recognized the Respondent Union, Local 6 of the Inter-
national Federation of Health Professionals, International
Longshoremen's Association, AFL-CIO, as its service
and maintenance employees' exclusive collective-bargain-
ing representative, thereafter remitting to Local 6
moneys deducted from their wages; that Local 6 collect-
ed other moneys from the employees; and that Local 6
unlawfully procured the discharge of two employees on
19 October 1978. On 8 January 1981 the National Labor
Relations Board issued an order directing the Respond-
ents, jointly and severally, to reimburse all present and
former employees employed in the service and mainte-
nance unit of the Sanford Avenue, Flushing, New York
facility for all initiation fees, dues, and other moneys de-
ducted pursuant to the union-security provision of the
collective-bargaining agreement which Respondents had
entered into, to be computed in the manner set forth in
Seafarers, 138 NLRB 1142 (1962), and Florida Steel
Corp., 231 NLRB 651 (1977). In addition, Blanca Llanos
and Elena Munteanu, the discriminatees, were ordered
reinstated to their former or comparable employment,
and it was ordered that Respondents jointly and several-
ly make them whole for lost earnings to be calculated
with interest in accordance with F. W. Wooltwâ–ºrth Co., 90
NLRB 289 (1950), Florida Steel Corp., supra, and his
Plumbing Co., 138 NLRB 716 (1962). Sanford Home for
Adults, 253 NLRB 1132, 1140 (1981), enfd. 669 F.2d 35
(2d Cir. 1981).
An order of the Second Circuit Court of Appeals
granting enforcement was entered on 7 December 1981.
Differences having arisen with respect to the amounts
payable under the order, the Regional Director issued a
backpay specification on 20 December 1983. An amend-
ed backpay specification and notice of hearing was
r On 31 July 1984 the Regional Director issued an order amending the
backpay specification to allege that until 1 October 1981, Harry Mayer,
Sidney Kopet, Israel Grauman, Yehudis Bogomilsky, and Alexander
Sands, copartners d/b/a Sanford Home for Adults, owned and operated
the business; that about 1 October 1981, Leon Arie Edrsch and Ignatius
Elefant, copartners d/b/a Sanford Home for Adults, purchased the bus
am and its assets and continued the same business as a successor employ-
er, and that the predecessor employer and the successor employer, col-
lectively called Respondent Employer, are each jointly and severally
liable for all backpay and other moneys due to the disc iminatees and
former and present employees
280 NLRB No. 140
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued on 28 December 1983 and on 31 July 1984 an
order was issued further amending it. I allowed further
amendments on written motion made on 2 January 1985
and on oral applications made during the course of this
backpay hearing on 15, 16 , and 18 April 1985.
Respondent Employer settled the backpay claim of the
two discharged employees by stipulation with the Gener-
al Counsel which was approved by me on 15 April 1985.
Local 6 did not join in the stipulation.
Local 6 twice interposed answers which failed to
comply with the requirements of Section 102.54(b) of the
Board's Rules and Regulations . The hearing was contin-
ued, however, in order to enable Local 6 to obtain legal
counsel and in order to enable the General Counsel to
obtain from the Respondent Employer and incorporate
in the record the specific information, respecting moneys
turned over by it to Local 6, needed to frame appropri-
ate relief.
Hearings were held before me at Brooklyn, New
York, and New York, New York, on 2 January, 13 Feb-
ruary, 15, 16, and 18 April, and 13 and 27 June 1985.
The parties were afforded full opportunity to be heard,
to call, to examine and cross-examine witnesses, and to
introduce relevant evidence . Opportunity to file posth-
earing briefs was afforded , but no briefs were filed.
On the entire record and based on my observation of
the demeanor of the witnesses and the manner in which
they gave their testimony, I make the following
FmmINGS OF FACT
1. JURISDICTION
I ruled at the hearing on 15 April 1985 that jurisdic-
tion existed over Local 6 in this backpay proceeding,
though Local 6 has repeatedly asserted , orally and in an
answer filed by it on 28 February 1985, that "No juris-
diction has been acquired over Local 6 since it has nei-
ther been properly nor timely served ." The General
Counsel proved unable to furnish satisfactory evidence
of claimed service by certified mail of the original back-
pay specification on Local 6 . Nevertheless, the backpay
specification had somehow found its way to the office of
an attorney named Saul Jakubowitz , which was not at
the same address at the office of Local 6 . He filed an
answer which raised no jurisdictional or other affirma-
tive defense. Nothing about the answer suggests any ir-
regularity . It was received by the General Counsel on 22
February 1984, is captioned with the caption and file
numbers of these proceedings as they appear on the
backpay specification, indicates concurrent service of
copies on the Charging Party and the attorney for the
Respondent Employer , and makes direct reference to
paragraphs I(a) and (b), 11(a), and (c), IV, V, and VI of
what it refers to as the complaint (the same terminology
employed in the answer which Local 6 filed on 28 Feb-
ruary 1985).
Local 6 was represented at the hearing by its presi-
dent, William Perry. He asserted that the answer had
been filed by Jakubowitz without authorization from
Local 6 and that Jakubowitz did not represent Local 6 in
these proceedings . No explanation whatsoever was of-
fered for his action and Local 6 did not produce Ja-
kubowitz to explain it, although I invited it to do so at
an adjourned date.
Because the General Counsel had , on 2 January 1985,
made a written motion to amend the backpay specifica-
tion, the proceedings were adjourned to 13 February.
The General Counsel utilized the time to effect service
of the backpay specification on Local 6 by certified mail,
on 3 January 1985 and personally (on Perry) on 4 Janu-
ary 1985.
Local 6 did not file an answer in response to the back-
pay specification . On 8 February 1985 the General Coun-
sel made a motion to deem the allegations of the backpay
specification admitted and to preclude Local 6 from of-
fering any proof, by reason of its failure to answer and
by reason of its failure to answer with specificity as re-
quired by Section 102.54 of the Board 's Rules and Regu-
lations.
On the reconvening of the hearing on 13 February
1985, the lack of specificity was discussed, as described
below . The proceedings were again adjourned, this time
to 20 March 1985 , and Local 6 was granted until 28 Feb-
ruary to interpose an answer . The answer which it
served , dated that date , preserved the jurisdictional ob-
jection, which it set forth in the language quoted above.
Local 6 in effect argued that the original claimed defect
in service was not cured by subsequent service of the
amended backpay specification or by the service of the
motion in January 1985 , which was accomplished both
by mail and personally.
Local 6 is in error in this regard . This is not a civil
action in a court of record wherein failure to serve a
summons cannot be cured by subsequent service of
pleadings or amended pleadings and in which service of
a new summons begins an altogether new and distinct
civil action . This is an administrative proceeding and,
being a backpay proceeding , is one for which no statute
of limitations is prescribed . Assuming that the first serv-
ice of the backpay specification on Local 6 occurred be-
latedly, even as late as January 1985, jurisdiction over it
in these proceedings was nonetheless acquired . Further-
more, a backpay proceeding is an outgrowth of the un-
derlying proceeding which gives rise to the remedy. The
jurisdiction over Local 6 was thus already established.
See Jacobo Marti & Sons, 264 NLRB 30 (1982); World
Evangelism , 261 NLRB 609 (1982); Wayne County Legal
Services, 249 NLRB 1260 (1980).
In any event, I find that Local 6 did receive service of
the original backpay specification dated 28 December
1983 when it was originally issued. In the absence of
some sensible explanation of how the service of an
answer by an attorney came about, that circumstance is
conclusive. I find that Local 6 was served and appeared
voluntarily, having been effectively joined in these pro-
ceedings . Proper service would have to be found, along
with jurisdiction, as a result of the later service also.
U. OTHER ASSERTED DEFENSES
Respondent Local 6 contended that the General Coun-
sel was guilty of laches, that proof was lacking that it
had received the moneys it was being asked to refund to
the employees , and that the order issued by the circuit
SANFORD HOME FOR ADULTS
court of appeals, granting enforcement of the Board's
order, did not direct repayment by Local 6. None of
these contentions have merit.
It is well settled that the limitation contained in Sec-
tion 10(b) of the National Labor Relations Act is inappli-
IE cable to backpay proceedings. Aircraft Upholstering Co.,
228 NLRB 462 (1977). The defense of laches is not avail-
able in proceedings brought by agencies of the United
States Government. Nabors v. NLRB, 323 F.2d 686 (5th
Cir. 1963), modifying 134 NLRB 1078 (1961), cert.
denied 376 U.S. 911 (1964).
There is abundant evidence that, except for $86.40,
Local 6 received the moneys deducted from the employ-
ees' wages . The evidence includes testimony by Re-
spondent Employer's president, testimony by its account-
ant, and canceled checks made payable to Local 6 which
the testimony connected with entries in Respondent Em-
ployer's records. No one from the Respondent Union
took the stand to rebut it.
The final contention is based on a patent misreading of
the order of the court of appeals, which specifically iden-
tified Respondent Employer and Respondent Local 6 as
the Respondents in the proceeding before it. The court
of appeals summarized the Board's findings, noted that
the proceeding had come on to be heard "on the applica-
tion of the National Labor Relations Board for enforce-
ment of its Decision and Order, issued January 8, 1981"
and granted enforcement. The Board's Order specifically
called for reimbursement by the Respondent Employer
and the Respondent Local 6 jointly and severally.
M. THE DENIALS CONTAINED IN LOCAL 6'S ANSWER
The Jakubowitz answer, filed in response to the back-
pay specification dated 28 December 1983, admitted that
the appropriate measure of gross backpay was the hourly
rate multiplied by 40 and admitted the definition of net
interim earnings . It denied that the backpay period for
Llanos and Munteanu ran from 19 October 1978 to 22
June 1979 and that reimbursement was owned jointly
and severally to employees (then unidentified) for
amounts withheld for initiation fees, dues, assessments,
and other reasons connected with the agreement with
Local 6. Local 6 denied knowledge and information suf-
ficient to form a belief with respect to the allegations re-
specting the duration of backpay periods of Llanos and
Munteanu (which had already been expressly denied),
the computation of gross backpay, as set forth in the ap-
pendices to the specification, although no answer at all
was made to the allegations respecting the hourly rate of
pay and the weekly pay per 40-hour week, to, and the
computation of net backpay as set forth in the appendi-
ces.
On the basis of Perry's disavowal of Jakubowitz' au-
thority to file an answer on behalf of Local 6 and his
own default in answering, the General Counsel made a
written motion on 8 February to have the allegations of
the backpay specification deemed admitted. On 13 Feb-
ruary 1985 I denied the motion and adjourned the pro-
ceedings in order to allow time for Local 6 to retain
counsel and interpose an answer. The deadline for filing
an answer was extended to 28 February 1985.
1289
On that date, Local 6 served an answer, subscribed by
Perry as president, which contained the same admissions,
denials, and denials of knowledge and information suffi-
cient to form a belief as the Jakubowitz answer, except
that this time the duration of the backpay period for
Elena Munteanu was expressly denied. In addition, the
new answer asserted the above-mentioned affirmative de-
fenses of lack of jurisdiction and laches.2
Neither of the answers interposed on behalf of Local 6
stated the basis for disagreement with the allegations
which had been denied. No detailed statement of Re-
spondent Local 6's position was set forth with respect to
any matter denied, nor was any set of contrary figures
provided. The hourly rates of pay for Llanos and Mun-
teanu were admitted by reason for the failure to deny
them; the same is true for their weekly earnings (par.
11(b), alleging hourly and weekly rate of pay at time of
discharge). The denial of the allegation relating to the
moneys for which reimbursement was sought was patent-
ly sham, as the remittances to Local 6 were matters
within its own knowledge. The failure to respond to the
allegations respecting unlawful deductions and remit-
tances to Local 6 admitted the essence of the allegations,
but the failure to supply the data available to it from its
own books and the refusal to honor a subpoena issued to
Local 6 by the General Counsel compelled the General
Counsel to conduct a protracted examination of the Re-
spondent Employer to obtain the same data. The failure
of Respondent Local 6 to furnish different figures, both
in its answer and in the course of the hearing, left uncon-
troverted the data supplied by the Respondent Employer
and relied on by the General Counsel.
IV. THE OBLIGATIONS WHICH HAVE BEEN
ESTABLISHED BY ADMISSION AND BY PROOF
The Discriminatees
The amended backpay specification and notice of hear-
ing issued on 28 December 1983 alleged backpay owing
to Blanca Llanos by reason of the discrimination against
her in the amount of $3433, and to Elena Munteanu, dis-
criminatee, in the amount of $2573.
On 15 April 1985 I approved a written stipulation en-
tered into between the General Counsel, Respondent
Employer, and Local 144, the Charging Party. By its
terms, the stipulation pertains solely to settlement of the
backpay claims of the discriminatees, Llanos and Mun-
teanu . Moneys are payable thereunder by Respondent
Employer and are accepted by the Regional Director in
satisfaction of the Respondent Employer's liability to
make the discriminatees whole for the losses resulting
from their discharges . The stipulation is stated to contain
the entire agreement of the parties with respect to the re-
instatement and backpay provisions of the Board's Order.
It deals solely with that obligation. The Respondent Em-
2 The answer filed by Perry appears to take no cognizance of the re-
numbering of the paragraphs of the backpay specification provided for in
the order amending backpay specification dated 31 July 1984 and served
on Local 6 by registered mail on 10 August 1984 . I have treated the
answer as responsive to the allegations of the backpay specification as
originally numbered.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer consequently remains liable with Respondent
Local 6, jointly and severally, on the remaining claims.
The stipulation fixed the amount owing to Llanos at
$3078, with interest to 31 January 1985 in the sum of of
$1590.60, making a total of $4668.60, and fixed the
amount owing to Munteanu at $2300, with interest to 31
January 1985 in the sum of $1181 .40, making a total of
$3481.40. The Respondent Employer also obligated itself
to deduct requisite social security and Federal , state, and
local withholding taxes from the wage portions of the
backpay and transmit them to the various governmental
authorities, and to make payment of the Respondent Em-
ployer's share of the social security taxes.
The admission of this stipulation into evidence rein-
forced and completed the General Counsel's prima facie
case respecting these backpay provisions and placed the
burden of mitigating or avoiding the liability squarely on
Local 6.
Because the administrative law judge in the underlying
proceeding found the Respondent guilty of unlawfully
procuring the discharges of Llanos and Munteanu on 19
October 1978, Respondent Local 6 is chargeable with
knowledge of the commencement date of their backpay
periods. A similar situation prevails with respect to the
termination date of the backpay period. The General
Counsel alleged backpay periods for both the discrimina-
tees from 19 October 1978 to 22 June 1979, "the effec-
tive date of Respondent 's offer of reinstatement." The
date on which the judge issued his decision with a rec-
ommended Order directing reinstatement was 23 January
1980. The Board adopted the recommended Order on 8
January 1981. The General Counsel thus alleged a termi-
nation date well before either decision . The stipulation
completes the picture, for the terminal dates are implicit
in the computation of the net backpay sums for which
the Respondent Employer stipulated to settle the claims
with the General Counsel.
The concession of liability is a judicial admission. Re-
spondent Local 6 argued, correctly, that it was not
bound by the stipulation . It is true that admissions there-
in contained did not constitute admissions by Respondent
Local 6, and the liability assumed by Respondent Em-
ployer was not thereby also assumed by Local 6. But the
issue is not whether Local 6 was "bound," but whether
the stipulation may be considered as part of the evidence
supporting the General Counsel' s prima facie case. I be-
lieve its admission had precisely that effect. The General
Counsel was not obligated to do more than show the
gross amount of backpay due to each discriminatee; the
stipulation showed the net amount due. A prima facie
case for backpay was made out on proof of discrimina-
tion and application for reinstatement ; the backpay speci-
fication and the stipulation showed the amount claimed
to be owing. The burden of either negating or mitigating
that financial liability thereon rested squarely with Re-
spondent Local 6. The General Counsel was under no
obligation to establish the truth of all the information
supplied in the specification simply because it was there.
NLRB v. Brown & Root, 311 F.2d 447, 454 (8th Cir.
1963). In the face of the stipulation, Respondent Local 6
had the burden of introducing contrary or explanatory
evidence . See Borg-Warner Corp., 113 NLRB 152, 154
(1955), affd. 231 F.2d 237 (7th Cir. 1956) (compelling the
observation that if such a burden rested on a charging
party who was allied with a General Counsel , then it
certainly rests on Respondent Local 6 in this case). In al-
leging a backpay period considerably shorter in duration
than is apparent from either decision cited, the General
Counsel did not assume the burden of mitigating the
period for which Local 6 is liable. The burden remains
with Local 6.
The failure of Local 6 to meet that burden is apparent.
Arie Edrich, one of Respondent Employer's principals,
was present throughout the hearing. The accountant for
the Respondent Employer attended and testified . Never-
theless, Respondent Local 6 did not avail itself of these
or any of the other opportunities afforded it to contest
the General Counsel's allegations . Respondent Local 6,
represented by its president , participated fully in the pro-
ceedings , examined all proffered exhibits and objected to
some, cross-examined the witnesses produced by the
General Counsel , including Edrich and the accountant
for the Respondent Employer, and presented a defense
case in which it recalled Edrich to the witness stand.
However, not a single question was put to Edrich or to
the accountant about the backpay period or about any
aspect of the backpay computation . No evidence was in-
troduced by Local 6.
The net result was that the Respondent Local 6 utterly
failed to raise any serious question respecting the amount
of its liability for backpay to the two discriminatees. It
utterly failed to meet the burden imposed on it of intro-
ducing contrary evidence to rebut the General Counsel's
case or other evidence to clarify the material facts. At
the same time, however, I must take cognizance of the
fact that the General Counsel offered no evidence which
established any greater liability than that set forth in the
stipulation . Accordingly, I find the Respondent Local 6
liable for only the amount set forth in the stipulation.
I conclude, therefore , that Llanos is entitled to net
backpay in the amount of $3078, with interest and that
Munteanu is entitled to net backpay in the amount of
$2300.
As noted, the stipulation deals only with the backpay
obligation. It does not incorporate another agreement be-
tween the General Counsel and the Respondent Employ-
er which was reported to me at the hearing on 2 January
1985. At that time, I was informed by the General Coun-
sel that the Respondent Employer had agreed to pay, in
addition to the total backpay to the discriminatees, the
General Counsel's court costs. The amount allocable to
the costs, which were incurred in the proceedings in the
Court of Appeals for the Second Circuit, amount to $350
and are reflected in the stipulation by the total amount
payable, which is $8500 (the amount due to the discri-
minatees under the stipulation, including interest to 31
January 1985, was $8150). The signed stipulation is thus
consistent with the overall settlement agreement as re-
ported on the record. Accordingly, in the recommended
Order set forth, I have directed payment by the Re-
spondent Employer of court costs in the amount of $350.
SANFORD HOME FOR ADULTS
Deductions from Wages for Transmittal to Local 6
In the amended backpay specification and notice of
hearing issued on 28 December 1983, the Regional Di-
rector alleged that the amount of initiation fees, dues, as-
sessments, and other moneys, if any, paid by or withheld
from employees for Local 6, and the names of the
present and former employees who must be reimbursed,
were unknown and claims would be asserted when the
amounts unlawfully deducted were known , and would be
set forth in an appendix to the backpay specification.
On 2 January 1985 the General Counsel made a writ-
ten motion to amend the backpay specification to allege
specific amounts owing to named employees for specified
periods as set forth in an appendix to the motion. The
motion was granted . The motion, in a footnote numbered
"1," asserted that the Respondent Union, having unlaw-
fully received such moneys, "has the primary obligation
to disgorge those moneys , together with interest." The
backpay specification was subsequently amended at the
hearing to include an express allegation to that effect.
Respondent Employer interposed an answer on 22 Janu-
ary 1985 denying the correctness of the amounts alleged
but conceding the correctness of the footnote ; on 2 May
1985 the denial was withdrawn.
Upon applications by the General Counsel made at the
hearing, motions were granted amending the schedule
appended to the original motion . Amendments were ap-
proved in this fashion on 15 , 16, and 18 April 1985 for
the purpose of conforming the schedule to the General
Counsel 's recalculation of the amounts owing , correcting
clerical errors, and including additional data supplied by
the Respondent Employer. Accordingly, my findings
herein reflect the adjustment of the fourth quarter deduc-
tion in 1979 for Teresa Krolik from $28.80 to $19.20; the
correction of the total of the deductions for Rosa Itur-
alde to $98.40; and the correction of the total of the de-
ductions for Sophie Wargacki in 1980 and through the
third quarter of 1981 to $154.
I have not , however, made findings which sustain all
the allegations as so amended . Thus, on the basis of the
checks which Respondent Employer drew to the order
of Local 6 of 14 December and 21 December 1981, in
the aggregate amount of $287.60 , the General Counsel
moved to amend the specification to allege that that
amount, instead of the $288 originally alleged , as deduct-
ed from employees ' earnings in the fourth quarter of
1981. The amendment is reasonable , but the allegation as
amended conflicts with the Respondent Employer's
records of the deductions which it made and evidence is
lacking about whose reimbursement should be reduced
by this amount, which is immaterial in any event.
Another instant in which I have adhered to the origi-
nal allegation is the General Counsel 's amendment relat-
ing to the sums deducted during the first and second
quarters of 1982. The allegation , as it stands admitted
and uncontroverted for reasons already discussed, was
that the deductions had amounted to $249 .60; deductions
had been made from the wages of 10 employees in the
first quarter of 1982 , amounting to $172 . 80 and from the
wages of 8 employees in April , the last month in which
such deductions were made for Local 6, in the amount of
$76.80 . This is reflected in Respondent Employer's
1291
records. I have no difficulty in finding, on the basis of
these figures, that because Respondent Employer remit-
ted only $163.20 to Local 6 for all of 1982, it is primarily
liable for reimbursement to the extent of $86.40. Howev-
er, I cannot agree with the General Counsel that the fig-
ures support an amendment to the effect that deductions
totaling $76 . 80 were made in February 1982, a month for
which records were not available. The General Counsel's
speculation to this effect would require a calculation of
total 1982 reimbursable deductions in the amount of
$326.40 ($96 in January and $76. 80 in each of the months
of February, March, and April) as compared with the
original allegation of $249.60 based on the known deduc-
tions for January, March, and April 1982. The General
Counsel's amended figure conflicts with the other evi-
dence , while the original allegation is consistent with it.
The Respondent Employer issued checks as follows:
#1142 12/14/81 for Dec ........................................ $105.60
#1158 12/21/81 for Oct. and Nov ........................ 182.00
#1242 4/22/82 ................................................... 163.20
Total ............................................ $450.80
The General Counsel had deduced a primary obliga-
tion of $86.40 on the part of Respondent Employer from
the fact that only $163.20 had been remitted to Local 6
from the total of $249.60 deducted in 1982. If that
amount is added to the total of the checks, an overall ob-
ligation of $537.20 results for that period. The original
allegation of $288 for the fourth quarter of 1981 and
$249.60 for 1982 totals $537.60. (The discrepancy of 40
cents results from my adherence to the $288 figure in-
stead of the figure of $287. 60 as requested by the Gener-
al Counsel.)s
Accordingly, I find that the sum which must be reim-
bursed amounts to $4576.40, payable to the employees
named in the amounts set forth opposite their names in
the recommended Order , based on the calculations con-
tained in the appendix annexed to this decision.
REMEDY
The Respondents' obligations to the backpay claimants
and to the employees from whose wages unlawful de-
ductions were made will be adequately discharged by
their payment to the claimants of the respective amounts
set forth in the stipulation entered into between Re-
spondent Employer and the General Counsel, the terms
of which have been summarized above and in the Ap-
pendix which is annexed hereto and made part of this de-
cision . The Appendix hereto sets forth the calculations of
the sums owing to the employees therein named by
reason of the unlawful deductions made from their
wages . Of the total sum of $4576 .40 which I have deter-
3 At the time the amendment was allowed, permission was granted for
the General Counsel to file a posthearing exhibit, for which Exh. 13 was
reserved, in which the February deductions would be allocated to vari-
ous employees. Local 6 was to have the right to rebut it if so advised.
However , no additional exhibit has been filed.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mined to be owing ,' Respondent Local 6 is primarily
liable for 'repayment of $4490 and Respondent Employer'
is primarily liable for repayment of $86 .40. Although
both are jointly and severally liable for the entire obliga-
tion, I concur with the position of the General Counsel
that each is primarily -liable for -reimbursement of that
portion -of the moneys which it received . 'Loft Painting
Co., 267 NLRB 74 ( 1983); Wismer & Becker, 228 NLRB
779 (1977). 1
Respondent Employer is also liable to the General
Counsel for court costs in the amount of $350•and I have
made provision therefor in the recommended Order.
Interest shall be computed and paid on such amounts,
by Respondent Employer in accordance with 'its stipula-
tion of settlement of the backpay claims insofar as the
same is applicable, and otherwise the claimants shall be
jointly and severally liable for interest in accordance
with Seafarers Great Lakes District, 138 NLRB 1142
(1962), Florida Steel Corp., 231 NLRB 651 (1977), and
Isis Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed'
ORDER
Respondents Sanford Home for Adults and Local 6,
International Federation of Health Professionals, Interna-
tional Longshoremen 's Association, AFL-CIO, and their
officers, agents, successors; and assigns, jointly and sev-
erally, shall
1. Make whole Blanca Llanos and Elena Munteanu,
backpay claimants involved in this proceeding , by pay-
ment to them of the following amounts of net backpay
together with interest to be computed in the manner set
forth in the remedy section of this decision minus tax
withholding and other sums required to be withheld by
Federal, state, and local laws:
(a) Respondents shall pay to Blanca Llanos the sum of
$3078, with interest. ' • A, '
(b) Respondents shall pay to Elena Munteanu the sum
of $2300, with interest.
2. Respondents shall jointly and severally reimburse
the following named employees and former employees
for initiation fees, dues, 'assessments, and other moneys
paid by or withheld from them, as follows
* If no exceptions are filed as.provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order ' shah , 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-
po ,
Nehmet R. Bacu $ 28.80
Ana Maria Blackman 117.60
Anna Borawska 220.80
Helen Brady 9.60
Betty Cope 9.60
Luzmira Delucia 146.40
Grace Dey 55.20
•Danuta Dobrowska 38.40
Raul Alcides
Echeverri 338.80
Gloria Esobar 38.40
Georgina Fuentes 57.60
Roberto Gonzalez 88.80
Pat Gonzalez 9.60
Andrei Grygo 38.40
Marina Guzman 192.40
Rosa Ituralde 98.40
Janina Jamiolkovska 86.40
Miroslaw Kotarske 28.80
Stefan Krasinsky 163.60
Teresa Krolik 19.20
Jan Kumik 134.40
Alcee Marice 28.80
Michael Mayer 338.80
Efrain Melendez 154.00
Maria Aida Mendoza 182.80
Ryszard Michalczyk 67.20
Jose Moreno 88.80
Maria Ola
• Orolhowska 19.20
Bertha Pagoulatos 338.80
Theresa Pinkway 19.20
Wanda Redutta 172.80
Olga Royas 19.20
Amparo Salazar 9.60
Pedro Sanchez 386.80
Wilhemina Seddoh 365.20
Irena Smogoreszka 134.80
Gisele Maria
Theodore 60.00
Sophie Wargacki 211.60
Regina Zdrodowska 57.60
Total . $4,567.40
Of such ' sum, Respondent Local 6 shall be primarily
liable , and Respondent Employer secondarily liable, for
the repayment of $4490 and Respondent Employer shall
be primarily liable, and Respondent Local 6 secondarily
liable, for repayment of $86.40.
3. Respondent Employer shall pay to the General
Counsel the sum of $350 in satisfaction of its obligations
for court costs in connection with proceedings had in the
Second Circuit Court of Appeals.
Name 4 978 1979 1st 2d Q , 3d Q 4th Q 19801st 2d Q 3d Q 4th Q
1981 1st 2d Q 3d Q 4t98Q 19821st 2d Q Total Due
Ana `
Maria
Black-
man....... $21.60 $19.20 $28.80 $28.80 $19.20 $117.60
Rosa
Itur-
aide....... 21.60 19.20 28.80 28.80 - - - - - = - - - - - 98.40
Grace
Dey....... 16.80 19.20 19.20 - - - - - - - - - - - 55.20
Bertha -
Pagou=
latos...... 21.60 19.20 28.80 28.80 28.80 $28.80 $28.80 $28.80 $19.20 $28.80 $38.80 $28.80 $9.60 - - 338.80
Jose - - '
Moreno 21.60 19.20 28.80 19.20 - - - - - - - - - - - 88.80
Luzmira
Delu-
cia ......... 21.60 19.20 28.80 28.80 28.80 19.20 - - - - - - - 146.40
Roberto
Gonza- -
lez......... 21.60 19.20 28.80 19.20 - - - - - - - - - - - 88.80
Pedro - - -
San-
chez ...... 21.60 19.20 28.80 28.80 28.80 28.80 28.80 28.80 19.20 28.80 38.80 28.80
Michael - -
Mayer... 21.60 19.20 28.80 28.80 28.80 28.80 28.80 28.80 19.20 28.80 38.80 28.80 9.60 - - 338.80
Raul
•
Al- -
cides
Eche-
verri ...... 21.60 19.20 28.80 28.80 28.80 28.80 28.80 28.80 19.20 28.80 38.80 28.80 9.60 - - 338.80
Gisele
Maria
Theo- " - "
dore ...... 21.60 19.20 19.20 - - - - - - - - - - - - 60.00
Wilhel- - - '
mina
Seddoh. - 19.20 28.80 28.80 28.80 28.80 28.80 28.80 19.20 28.80 38.80 28.80 28.80 $19.20 $9.60 365.20
Teresa - _ - - ' _
Krolik... - - - 19.20 - - - - - - - - - - - 19.20
Maria
O1a - • . • •
Orol-
howska. - - - 19.20 - - - - - - - - - - - 19.20
Janina
Jamiol-
kovska.. - - - 9.60 28.80 28.80 19.20 - - - - - - - ' 86.40
Wanda
Re-
dutta ..... - - - 9.60 28.80 28.80 28. 80 28 .80 .19.20 28:80 172.80
Name 1978 19791st 2d Q 3d Q4th Q Q 4th Q
19801st
Q 2d Q 3d Q 4th Q
1981 1st 2d Q 3d Q 1 h Q 19821st 2d Q Total Due
Andrei
Grygo... 28.80 9.60 38.40
Alcee
Marice.. 28.80 - - - - - - - - - 28.80
Anna
Bor-
awaka.... 9.60 28.80 28. 80 28 .80 19.20 28.80 19.20 28.80 19.20 9.60 220.80
Regina
Zdro-
dowska. 9.60 28.80 19.20 - - - - - - - 57.60
Pat
Gonza-
lez ......... 9.60 9.60
Jan
Kumik.. 28.80 28.80 19.20 28.80 28.80 - 134.40
Miroslaw
Ko-
tarske.... 9.60 19.20 - - - - 28.80
Irena
Smo-
goreszka. - 28.80 19 .20 28. 80 38.80 19.20 134.80
Stefan
Kra-
sinsky.... 9.60 28.80 19.20 28. 80 38.80 28.80 9.60 163.60
Danuta
Do-
browska. 9.60 28.80 - - - - - - 38.40
Georgina
Fuentes. 9.60 28.80 19.20 - - - 57.60
Marina
Guzman. - 19.20 19.20 28. 80 38 . 80 28.80 28.80 19.20 9.60 192.40
Maria
Aida
Men-
doza...... .60 8.80 9.20 8.80 8.80 8.80 8.80 82.80
Efrain
Melen-
dez ........ 9.60 28.80 19.20 28.80 38.80 28.80 154.00
Sophie
War-
gacki..... 9.60 28.80 19.20 28.80 38.80 28.80 28.80 19.20 9.60 211.60
Ryszard
Mi-
chalczyk. 9.60 28.80 19.20 9.60 67.20
Olga
Royas ... 9.60 9.60 19.20
Nehmet
R.
Bacu ..... 19.20 9.60 28.80
1978Name 4th Q
19801st 1981 1st19791st 2dQ 3dQ 4th Q 2dQ 3dQ 4th Q 2dQ 3d Q
Q QQ
1981
4th Q
1982 1st
Q
2dQ Total Due
Helen
Brady....
9.60 9.60
Betty
cope.....
9.60 - - 9160
Gloria
Esobar..
Theresa
9.60 19.20 9.60 38.40
Pink-
way.......
9.60 9.60 - 19.20
Amparo
Salazar..
Pedro
9.60 - - 9.60
San- 28.80 19.20 9.60 386.80
chez ......
Total.
$4,567.40