SHIRLEY EXPRESS LLC AND RLS TRANSPORTATION LLC.

National Labor Relations Board - Administrative Judge Opinions

Mar 6, 2018

22-CA-141644 (N.L.R.B. Mar. 6, 2018)

JD(NY)-06-18
Newark, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH
SHIRLEY EXPRESS, LLC and
RLS TRANSPORTATION, LLC as a
single and/or joint employers
and Case No. 22–CA–141644
Case No. 22–CA–149763
BUILDING MATERIAL TEAMSTERS LOCAL 282
Henry J. Powell, Esq.,
for the General Counsel.
Ronald L. Tobia, Esq.,
for the Respondent.
Travis Mastroddi, Esq.,
for the Charging Party.
DECISION AND ORDER
LAUREN ESPOSITO, Administrative Law Judge. On November 9, 2016, the Board
issued a Decision and Order approving a formal settlement stipulation between Counsel
for the General Counsel (General Counsel), Shirley Express, LLC and RLS
Transportation, LLC as single and/or joint employers (Respondent), and Building
Material Teamsters Local 282 (Charging Party), and entering a consent order in Cases
22–CA–141644 and 22–CA–149763. The consent order required in part that
Respondent make whole Ariel Coira, Javier Madrid, Carlos Ruiz, Benjamin Pizzaro and
Javier Diaz for wages lost because they were discharged in retaliation for their activities
on behalf of Charging Party, with the amounts to be determined in a compliance
hearing.
On October 25, 2017, the Regional Director, Region 22, issued a compliance
specification and notice of hearing, and on November 28, 2017, Respondent filed an
answer. This case was tried before me on February 6, 2018, in Newark, New Jersey,
and at the hearing General Counsel introduced as part of the formal papers an
amended compliance specification and notice of hearing. GC Exh. 3; Tr. 6-7. General
Counsel further introduced a stipulation executed by Respondent and Charging Party
providing that the methodology as set forth in the February 6, 2018 amended
compliance stipulation to calculate the backpay owed to the discriminatees is valid and
accurate. GC Exh. 2; Tr. 6-7. The stipulation further provides that Respondent does
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not contest the backpay owed to each of the discriminatees, including interest, tax
liability, gross backpay owed, interim expenses and interim earnings as of February 6,
2018, which consists of a total of $88,848.00. GC Exh. 2; Tr. 6-7. The parties waived
the filing of posthearing briefs, but requested until February 20, 2018, to attempt to
reach a settlement. The parties were unable to settle the matter, and as a result I am 5
issuing the instant Decision and Order.
The gross backpay due to the discriminatees – Ariel Coira, Javier Madrid, Carlos
Ruiz, Benjamin Pizarro and Javier Diaz – is the amount of earnings they would have
received but for Respondent’s discrimination against them. Pursuant to the February 6, 10
2018 amended compliance specification and the parties’ stipulation, the backpay
periods for the discriminatees are as follows:
Name Backpay period
Ariel Coira Beginning November 23, 2014 and ending on July 8, 201415
Carlos Ruiz Beginning November 23, 2014 and ending on July 8, 2015
Benjamin Pizzaro Beginning November 24, 2014 and ending on July 8, 2015
Javier Madrid Beginning November 23, 2014 and continuing until a valid
offer of reinstatement
Javier Diaz Beginning November 23, 2014 and continuing until a valid 20
offer of reinstatement
GC Exh. 3, ¶ 1. The average earnings of comparable employees performing the same
or similar work during the backpay periods set forth above constitutes an appropriate
measure of the gross backpay due the discriminatees. Pursuant to the amended 25
compliance specification and the parties’ stipulation, Formula Two, NLRB Casehandling
Manual Part 3, Section 10540.3 was used to make this determination. Thus, gross
backpay was computed on a calendar quarterly basis using Respondent’s payroll
records for comparable employees that worked during the backpay periods set forth
above. Pursuant to the amended compliance specification and the parties’ stipulation, 30
calculations of a weekly payroll average based on Respondent’s November 2014 to
December 2016 payroll records were used to determine average weekly payroll for the
time period January 2017 to September 2017. GC Exh. 3, ¶ 3, appendix A; GC Exh. 2.
Net backpay is the difference between gross backpay based on the average 35
earnings of comparable employees performing the same or similar work during the
backpay periods discussed above, and the discriminatees’ interim earnings during the
backpay periods. Pursuant to the amended compliance specification and the parties’
stipulation, appendix B to the amended compliance specification accurately sets forth
the discriminatees’ interim earnings during the backpay period, and accurately indicates 40
the amount of wages owed to each discriminatee for their respective backpay period.
GC Exh. 3, ¶ 4–5, appendix B; GC Exh. 2. Pursuant to the amended compliance
specification and the parties’ stipulation, appendix B also accurately sets forth interim
expenses incurred by Javier Madrid during the backpay period, that Madrid would not
have incurred but for Respondent’s unlawful conduct. GC Exh. 3, ¶ 6, appendix B; GC 45
Exh. 2.
JD(NY)-06-18
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Pursuant to Tortillas Don Chavas, 361 NLRB 101 (2014), the discriminatees are
entitled to compensation for the adverse tax consequences of receiving a lump-sum
backpay award in a calendar year other than the year in which the income would have
been earned had the Act not been violated. Pursuant to the amended compliance
specification and the parties’ stipulation, the compensation in the instant case which the 5
lump-sum backpay award represents should have been earned in the years 2014
through 2017, as opposed to solely in 2018. Pursuant to the amended compliance
specification and the parties’ stipulation, the excess tax award for each discriminatee
has been determined based upon the federal and state taxes calculated if the
discriminatee had earned the relevant compensation throughout the backpay period, 10
and the federal and state taxes calculated based upon the relevant lump-sum payment
made solely in 2018. GC Exh. 3, ¶¶ 7–11, appendix B; GC Exh. 2.
Based upon the foregoing methodology for calculating the amounts due to the
discriminatees pursuant to appendix B of the February 6, 2018 amended compliance 15
specification and the parties’ stipulation, the amounts owed are as follows:
Backpay Interest on Interim Excess Tax
Name Owed1 Backpay Expenses Liability
20
Ariel Coira $27,363 $3,026 --- $587
Carlos Ruiz $4,307 $517 --- $86
Benjamin Pizarro $15,122 $1,697 $5,757 $368
Javier Madrid $8,692 $848 --- $144
Javier Diaz $18,864 $1,144 --- $32625
GC Exh. 3, appendix B; GC Exh. 2.

1 Minus tax withholdings required by Federal and State law.
JD(NY)-06-18
4
ORDER2
Shirley Express, LLC and RLS Transportation, LLC, as a single and/or joint
employers, its officer, agents, successors, and assigns, must pay to the individuals 5
below the amounts specified after their names.
Backpay Interest on Interim Excess Tax
Name Owed3 Backpay Expenses Liability
10
Ariel Coira $27,363 $3,026 --- $587
Carlos Ruiz $4,307 $517 --- $86
Benjamin Pizarro $15,122 $1,697 $5,757 $368
Javier Madrid $8,692 $848 --- $144
Javier Diaz $18,864 $1,144 --- $32615
Dated, Washington, D.C., March 6, 2018
20
Lauren Esposito
Administrative Law Judge

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections shall be waived for all purposes.
3 Minus tax withholdings required by Federal and State law.
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