Seaport Printing & AD Specialties Inc. D/B/A Port Printing AD and Specialties

National Labor Relations Board - Board Decisions

Dec 30, 2011

15-CA-017976 (N.L.R.B. Dec. 30, 2011)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SEAPORT PRINTING & AD SPECIALTIES, INC.,
d/b/a PORT PRINTING AD AND SPECIALTIES
and Case 15-CA-17976

LAKE CHARLES PRINTING AND GRAPHICS UNION,
LOCAL 260 affiliated with GRAPHIC COMMUNICATIONS
INTERNATIONAL UNION, AFL-CIO
ORDER
Employee Vince Mott’s Request for Review of the Acting General Counsel’s
decision sustaining the Regional Director’s compliance determination is granted and the
case is remanded to the Regional Director for appropriate action, as described below.
On December 28, 2007, the Board issued a decision in this case finding that the
Respondent violated Section 8(a)(5) and (1) by refusing to engage in effects bargaining
with the Union over the decision to lay off employees and by using nonunit employees
and supervisors to perform bargaining unit work without affording the Union an
opportunity to bargain with respect to this conduct and its effects. Port Printing Ad &
Specialties, 351 NLRB 1269, 1270. The Board ordered the Respondent, among other
things, to make unit employees whole for the loss of earnings and other benefits
attributable to its failure to bargain. Id. at 1271,1272. The Fifth Circuit enforced the
Board’s Order on December 8, 2009.1
On June 30, 2011, the Regional Director issued a compliance determination
letter to employee Vince Mott, setting forth the basis of her findings regarding the
appropriate reimbursement Mott is owed for backpay. The Regional Director found,

1 589 F.3d 812.
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among other things, that the appropriate backpay period is from October 16, 2005, the
date the Respondent resumed printing work, through February 1, 2008, the date the
Respondent offered Mott full reinstatement to his job performing printing work; that the
appropriate measure of gross backpay was days worked by Lannis Soileau, the only
full-time employee performing printing work during the entire backpay period; and that
the collective-bargaining agreement requires the Respondent to pay a day’s pay for any
employee ordered to report to work. The Region concluded that for each day Soileau
worked, eight hours of regular pay at $12.85 per hour should be included in the
calculation as well as all overtime worked by Soileau and holiday and sick leave pay. In
this regard, the Region found that the Respondent paid Mott outstanding sick leave and
vacation pay at the time of his layoff and that additional accrual of vacation and sick
leave for purposes of back pay commenced on Mott’s anniversary date of May 26,
2007, through the end of the backpay period. Taking into account Mott’s interim
earnings, the Region determined that the total backpay owed Mott was $13,814.73, plus
interest.
By letter dated July 4, 2011, Mott appealed the Regional Director’s findings to the
Office of Appeals. Mott’s appeal letter states, in relevant part, that the Region’s
calculations contain mathematical errors; the Region used incorrect hourly pay and
overtime rates; vacation and sick leave were not calculated for the correct time period;
overtime was calculated on a weekly basis rather than a daily basis as required by the
contract; and interim expenses should not be disallowed when backpay is less than
interim earnings and expenses combined. Mott contends that the correct amount of
backpay owed him is $19,977.73.
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In support of his appeal, Mott submitted 16 exhibits, including corrected copies of
the compliance determination with mathematical errors highlighted; documentation
purporting to show that he was paid for accrued vacation and sick leave time through
October 15, 2005, rather than May 20, 2006, as determined by the Region; a copy of
comparable employee Lannis Soileau ‘s timecards, showing overtime hours worked that
the Region did not credit to Mott; and a copy of Memorandum GC 11-08 giving
guidance on the reimbursement of interim work related expenses.
By letter dated August 25, 2011, the Office of Appeals denied Mott’s appeal
“substantially for the reasons in the Regional Director’s June 30, 2011, letter.” The
Office of Appeals stated, however, that with respect to Mott’s contentions challenging
the hourly pay rate used to project gross backpay, the Region conducted a subsequent
investigation and verified that Mott’s claim that backpay should be calculated based on
$12.95 an hour, rather than $12.85 an hour, was correct. The denial letter indicated
that the Region then revised the figures accordingly and applied the rates to all
calculations. The letter also stated that gross back pay was calculated in accordance
with the contract at 8 hours a day for any day in which a comparable employee reported
to work and that overtime was also calculated for any day in which a comparable
employee worked over 8 hours. With respect to Mott’s contentions about calculations of
vacation and sick leave, the denial letter stated that the calculations were based on
additional accrual of vacation and sick leave commencing on Mott’s anniversary date of
May 26, claiming that “this information was communicated to you via email in April 2011
and you did not raise any challenges.” Finally, the denial letter stated that the Region
also reviewed the previously performed calculations and found an error in the fourth
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quarter 2005 gross wages where the holiday pay was not added to the total figure. The
Region subsequently corrected this error. The denial letter indicated that the Region’s
revised backpay calculation was $14,524.04.
The Office of Appeals’ denial letter did not explain or even mention the
discrepancies in the timecards Mott submitted regarding the Region’s calculation of his
overtime hours. Nor did it address his contentions that interim expenses should not be
disallowed when backpay is less than interim earnings and expenses combined.
On September 5, 2011, Mott, acting pro se, filed the instant request for review.
Mott maintains that the Regional Director’s revised calculation was incorrect for the
following reasons:
(1) the statement in the Appeals denial letter that he did not challenge the
April 2011 email concerning the dates used for calculating his vacation
and sick leave is incorrect. In support of his appeal, Mott provides
emails he sent to the compliance officer which he contends show that
he did in fact challenge the dates the Region used to calculate his
accrual of vacation and sick leave on several occasions in 2010 and on
May 4, 2011. Mott argues the emails show that he offered to provide
the Region with documentation of the dates he contends are correct for
calculating the vacation and sick leave pay owed him. He also
provides an email response from the Region stating that Mott could
provide the documentation after he received the compliance
determination letter.
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(2) the Region’s overtime calculation is incorrect because the Region’s
calculations reflect overtime paid on hours worked in excess of 40
hours a week rather than in excess of 8 hours a day as required by the
contract.
(3) other computation errors exist in the Region’s calculations, but the
Region only corrected the item regarding the fourth quarter 2005
holiday pay.
(4) the Region erroneously limited his interim expenses.
Having duly considered the matter, we grant Mott’s Request for Review. On the
issue of vacation and sick leave, Mott’s appeal provides documentation showing that,
contrary to the determination of the Office of Appeals, he did in fact contest the date the
Region used for calculating when his vacation and sick leave pay accrual commenced.
An email dated January 10, 2011, from the Region’s compliance officer to Mott states,
in relevant part: “Respondent (Seaport Printing) further advised that your anniversary
date was in May thus vacation accrual would have commenced in May 2006 as you
were paid all vacation pay through May 2006 owed to you at the time of your layoff.
Please provide position on this issue as well." Mott’s reply, also dated January 10,
2011, states: "As far as the vacation they contend was paid to me through May 2006, is
false. The only vacation and sick leave time paid was the amount accrued up until my
layoff, none after." (Mott’s unlawful layoff occurred in October 2005).
In a second email sent to the Region’s compliance officer, dated May 4, 2011,
Mott states: “on one of the last emails you said something about gloria payed me
vacation and sick time thru may 2006. I have proof including a check stub that I was
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only payed for vac & sick time accrued thru october 2005. If you want that
documentation please let me know.” The Regional Attorney’s reply email, dated May 5,
2011, states, “Mr. Mott, once you get the Compliance Determination letter that deals
with the backpay area in your email, if you deem it necessary, you can include the
referenced document and explain its relevance.”
The Office of Appeals denied Mott’s appeal on this issue stating: “With respect to
your contentions about calculations of vacation and sick leave, the investigation
disclosed that the calculations were based on accrual commencing on your anniversary
date of May 26. The investigation disclosed that this information was communicated to
you via email in April 2011 and you did not raise any challenges.” However, the emails
discussed above show that Mott did raise challenges on several occasions, before the
compliance determination letter was sent and after (as the email from the Regional
Attorney advised him). Yet the denial letter states simply that Mott “did not raise any
challenges” to the dates used for the calculation and denies his appeal on that ground
alone. Under these circumstances we cannot determine whether the Regional Director
used the correct date for calculating the accrual of Mott’s vacation and sick leave pay,
and we therefore remand this issue to the Regional Director for further explanation and
appropriate calculations, if needed.
With respect to overtime pay, the Regional Director and the Office of Appeals
stated that overtime was calculated for any day in which comparable employee Lannis
Soileau worked over 8 hours. Mott contends, however, that the Region’s overtime
calculations reflect overtime paid on hours worked in excess of 40 hours a week rather
than in excess of 8 hours a day as stated in the contract. In support of his appeal Mott
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attached copies of Lannis Soileau’s timecards from October 17, 2005 to June 15, 2006.
A review of a random sample of these cards appears to support Mott’s analysis. For
example, for the pay period ending November 30, 2005, the timecard shows that
Soileau worked nine and a quarter hours on one day and eight and three quarters of an
hour on another day, for an apparent total of 2 overtime hours for the pay period. Yet
the Region gives no credit for overtime for that period. We acknowledge that the
timecard does not designate that extra time as overtime, and therefore there may be
some reason that Mott’s contentions are incorrect.
However, in denying Mott’s appeal regarding overtime pay, the Appeals denial
letter stated simply that “overtime was also calculated for any day in which a
comparable employee worked over 8 hours.” Although Mott supplied the copies of the
timecards with his appeal, the denial letter does not mention the timecards and does not
explain the discrepancies. Because the denial letter failed to address Mott’s
submissions or provide any explanation of the apparent difference in calculations, we
are unable to determine from the record before us whether there is merit to Mott’s
contention, and we therefore remand this issue to the Regional Director for further
explanation and appropriate calculations, if needed.
Mott’s request for review also contends that the Regional Director’s revised
computations contain mathematical errors, and requests that the Board review the
documents he submitted on appeal and make the necessary corrections. The denial
letter stated: “the Region also reviewed the previously performed calculations and found
an error in the fourth quarter 2005 gross wages where the holiday pay was not added to
the total figure. The Region subsequently corrected this error.” Mott contends that
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additional errors were not corrected. However, it appears that the Region did make
numerous corrections when it recalculated the backpay. Nevertheless, we remand this
issue also for additional review by the Region.
Finally, Mott states that “I would like to address the issue of limits [the Region]
has placed on my interim expenses.” Mott references Memorandum GC 11-08 giving
guidance on the reimbursement of interim work related expenses. The memorandum,
dated March 11, 2011, states that “effective with the issuance of this memorandum,
search-for-work and work-related expenses will be calculated separately from backpay
and will be charged to Respondent regardless of whether the discriminatee received
interim earnings during the period.” The Region, however, did not calculate Mott’s
interim expenses separately from his backpay and in five quarters gave him no credit for
interim expenses. Moreover, the Office of Appeals failed to address this issue in its
denial letter. We therefore remand this issue to the Regional Director for further
explanation and appropriate calculations, if needed.
Accordingly, for the reasons discussed above, we remand this proceeding to the
Regional Director for Region 15 for further action consistent with this decision. On
remand the Regional Director shall issue an amended compliance determination
addressing (1) the appropriate date to be used for calculating Mott’s vacation and sick
leave pay and (2) the basis for the Region’s overtime calculations. The Region shall
also recalculate Mott’s interim expenses in accordance with Memorandum GC 11-08
and make further computation revisions consistent with this Order.
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Dated, Washington, D.C., December 30, 2011.
Mark Gaston Pearce, Chairman
Craig Becker, Member
Brian E. Hayes, Member