Superior Warehouse Grocers, Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1987

282 N.L.R.B. 802 (N.L.R.B. 1987)

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superior Warehouse Grocers, Inc. and Robert Te-
treault and Local 1428 , United Food and Com-
mercial Workers International Union, AFL-
CIO-CLC. Cases 21-CA-22061, 21-CA-22242,
21-CA-22370, 21-CA-22418, and 21-CA-
22555
22 January 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 9 September 1986 Administrative Law Judge
Burton Litvack issued the attached supplemental
decision. The Respondent filed exceptions and the
General Counsel filed limited exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion 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 recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Superior
Warehouse Grocers, Inc., Covina, California, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order.
Neil A. Warheit, Esq., for the General Counsel.
Norman E. Jones, Esq. (Jones, Jones, & Jones), of San
Simeon, California, for the Respondent.
Ira L. Gottlieb, Esq. (Taylor, Roth & Bush), of Los Ange-
les, California, for Local 1428, United Food and Com-
mercial Workers International Union, AFL-CIO-
CLC.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BURTON LrrvACK, Adminstrative Law Judge. On Oc-
tober 30, 1985, the National Labor Relations Board,
issued a Decision and Order,' finding that Superior
Warehouse Grocers, Inc. (the Respondent), discrimina-
torily discharged its employees, Karen Pedregon, Daniel
Lopez, Robert Tetreault, and Michael La Fond, in viola-
tion of Section 8(a)(1) and (3) of the National Labor Re-
lations Act. To remedy the unfair labor practices, the
Board, inter alia, directed Respondent to offer to em-
ployees Pedregon, Lopez, and Tetreault "immediate and
1 277 NLRB 18 (1985).
full reinstatement ... at its Los Angeles or Lynwood,
California, stores on the same basis that Respondent may
have offered other Covina store employees employment
opportunities at other stores on the closing of its Covina
store,"2 and to make the employees, including Tetreault,
"whole, together with interest required by law, for any
loss of earnings and benefits they suffered. as a conse-
quence of Respondent's discriminatory acts against
them.
The parties were unable to agree on the amount, of
backpay due to each individual under the terms of the
Board's Decision and Order and, on February 12, 1986,
the Regional Director for Region 21 of the Board ap-
proved a stipulation, executed by Respondent, which
document provided for the issuance of a backpay specifi-
cation. Pursuant to the document and as there existed a
controversy over the amount of backpay, due to each of
the four above-named employees (collectively the claim-
ants), on March 17, 1986, the Acting Regional Director
for Region 21 issued a backpay specification. Respondent
filed an answer, denying the accuracy of the backpay
amounts but not challenging the premises on which the
figures in the backpay specification were based or fur-
nishing appropriate supporting figures. Indeed, Respond-
ent averred that the paragraphs of the specification
"would be correct if the figures as given are found to be
true and correct." On due notice, a hearing was held
before me on May 28, 1986. All parties were afforded
full opportunity to argue orally their respective pretrial
positions, to examine and cross-examine witnesses, and to
submit briefs. Briefs were filed by the General Counsel
and by counsel for Local 1428, United Food and Com-
mercial Workers International Union, AFL-CIO-CLC
(the Union), and have been carefully considered. On con-
sideration of the entire record, including my observation
of the demeanor of the witnesses, I issue the following
supplemental decision.
A. Legal Setting
The Board has long held that " in a backpay proceed-
ing the General Counsel's sole burden is to show the
gross amounts of backpay due." Mastell Trailer Corp.,
273 NLRB 1190 (1984); and Dews Construction Corp., 246
NLRB 945 (1979). In its answer Respondent failed to
dispute the gross backpay figures3 for any of the claim-
ants. Accordingly, under the Board' s Rules and Regula-
tions, the gross backpay figures of the specification must
be deemed to be correct and true. Ricks Construction Co.,
272 NLRB 424, 426 (1984). With matters in this pos-
ture, "the burden is on the employer to establish facts
2 The record establishes that the four discriminatees, including La
Fond, had been employed at Respondent's Covina, California facility.
The location was closed by Respondent in November 1983. Discrimma-
tee Tetreault had been offered, and accepted, reinstatement at the Covina
store but, subsequently, voluntarily quit.
8 The General Counsel was permitted, at the hearing, to amend the
backpay specification in the following manner-regarding the fourth
quarter of 1983 financial records of claimant, Karen Pedregon , her gross
interim earnings were decreased; her travel expenses were increased, her
net interim earnings were decreased; and the net backpay was increased
to $1022. The specification was further amended concerning Pedregon,
increasing the backpay owed to her to $2164.90.
282 NLRB No. 120
SUPERIOR WAREHOUSE GROCERS 803
which would . . . mitigate that liability." NLRB" a
Brown & Root, Inc,, 311 F.2d 447, 454 (8th Cir. 1963);
Mastell Trailer Corp., supra; Kansas Refined Helium Co.,
252 NLRB 1156, 1157 (1980). Therefore, at all times, the
burden was on Respondent, as urged by the General
Counsel, "to establish any facts which would mitigate
the existence of liability for a given discriminatee." Fur-
ther, when there exists uncertainties or doubts, such
should be resolved against Respondent, the wrongdoer.
Kansas Refined Helium, supra at 1157.
B. Karen Pedregon
The backpay specification, as amended at the hearing,
sets forth the backpay owed to claimant Karen Pedre-
gon, by Respondent, as $2164.90. Pedregon testified that
the amendment, increasing her mileage expenses, was ne-
cessitated by her miscalculation of the exact mileage to
and from her new employer for training purposes' during
the fourth quarter of 1983. The claimant further testified
that the distance from her residence to Respondent's
Covina facility was approximately 8 miles per round trip.
Later, she admitted informing the General Counsel that
this distance was closer to 6 miles, but " if you consider
that I had to drop my child off for child care its prob-
ably closer to eight or ten." The record establishes that,
if 6 rather than 8 miles had been used to calculate the
mileage expenses, Pedregon's expenses in that regard
would have been reduced by $13. Other than with
regard to her mileage expenses,Pedregon denied, ever
having been paid by her husband, an independent con-
tractor, for work or by the Union for picketing. Re-
spondent's representative, at the hearing, proffered no
position about what the accurate backpay amount, owed
to Pedregon by Respondent, should be, stating that such
would be set forth in a posthearing "document."
Based on the above discussion of the legal principles
involved, it is clear that Respondent possessed the
burden of establishing facts to mitigate its liability, set
forth in the backpay specification, regarding Pedregon.
Contrary to its stated intent, Respondent has taken no
position about the claimant's backpay and, except for
what was disclosed in the record, there is no claim, or
evidence, that the figure in the backpay specification is,
incorrect or that Pedregon did not exercise sufficient
diligence in mitigating Respondent's backpay liability to
her. Therefore, I find and conclude that, except for es-
tablishing a probable slight mileage expense miscalcula-
tion, Respondent failed to sustain its burden of proof
with regard to its backpay liability to Pedregon and that
she should receive the `amount claimed, reduced by the
amount of the slight mileage miscalculation.
C. Daniel Lopez
The backpay specification sets forth the-backpay owed
to claimant Daniel Lopez, by Respondent, as $2370.88.
The only issue raised about the validity of this amount
concerns payments Lopez received from the Union, for
picketing outside the Covina store subsequent to his dis-
charge. Under questioning by Respondent's representa-
tive, the claimant stated that he received $120 per week
from the Union during a 6-week period from mid-July to
the end` of ` August '1983 for the picketing. In fact, the
record discloses that Lopez received six checks, ranging
in amounts from $75 to $124 and totaling $619.50, and
that he was paid at a rate of $3 per hour for the picket-
ing.4 Although stating that he received no strike benefits
during the period of the picketing, Lopez also stated that
the payments were made from the Union's "strike relief
fund." With regard to a proper characterization of these
payments, the claimant maintained that the Union ' made
no tax deductions from the payments, gave him no W-2
or 1099 tax forms, "stated that the amount was not con-
sidered income, and did not tell him that he was an em-
ployee as a result of these payments." Further, Lopez
failed to include the $619.50 as income on his 1983 Fed-
eral income tax forms. Concerning the reason he en-
gaged in picketing, Lopez originally stated "everybody
in the shop wanted it to be a Union store and it was not"
and later, in answer to a leading question by me at the
hearing, explained " my termination and the fact that the
people inside the store were being treated wnfairly." He
could not recall the wording of the picket sign that he
carried.
The record further discloses that, in the backpay speci-
fication, the $619.50 was not included in Lopez' interim
earnings during ' the appropriate backpay period. Con-
trary to the General Counsel and the Union, Respondent
argues that the moneys, which were received by Lopez
for picketing on behalf of the Union, should have been
so included. Neither the General Counsel nor counsel for
the ' Union, in their posthearing briefs, cited a Board or
court decision directly on point, and I was unable to
locate such a decision. What both counsel cited were
cases concerning the receipt of strike benefits by backpay
claimants, in which cases both the Board and the courts
have' held that such payments are not in the nature of
pay for interim employment and do not constitute inter-
im earnings. Florence Printing Co. v. NLRB, 376 F.2d 216
(4th_ Cir. 1967); Sioux Falls Stock Yards Co., 236 NLRB
543 (1978); My Store, Inc., 181 NLRB 321 (1970). How-
ever, analysis of the cited cases establishes that both the
Board and the United States Court of Appeals f'or the
Fourth Circuit were careful to distinguish the receipt of
strike benefits from payments, in the words of the Board,
"dependent on picketing or the performance of other
services by the, recipients" and, in the words of the
court, "as a condition precedent to, or as compensation
for, picketing." Sioux Falls Stock' Yards, supra at 549;
Florence Printing Co., supra at 218.
Herein, the record warrants the inference that the pay-
ments to Lopez were in the,nature of compensation for
his picketing duties., Thus, at the times of the picketing,
the Union was actively seeking to represent the employ-
ees at the Covina store of Respondent, and Lopez admit-
ted that the picketing primarily5 was motivated by orga-
? According to Lopez, the Union maintained exact records of the times
he engaged in picketing-" "they had given somebody a book that he
filled out every day stating we were there."
5 I place greater weight on Lopez' original response as to the purpose
of the picketing than his later response, prompted , I believe, by a leading
question from me.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nizational objectives-to the benefit of the Union for
whose benefit Lopez picketed. Further, the Union kept a
strict accounting of the times Lopez engaged in picket-
ing,, the claimant was paid by the hour, and he was
under no compulsion to repay any of the $619.50 to the
Union.6 Thus, unlike the situation in Florence Printing
Co., there exists record evidence "to show that services
were rendered in exchange for the benefits,"7 and I,
therefore, conclude that the money received by Lopez
from the Union was in the nature of pay for, interim em-
ployment-to be deducted from his due backpay as inter-
im earnings . Accordingly, Lopez is entitled to the
amount claimed, reduced by the $619.50 he received
from the Union for picketing.
D. Robert Tetreault
The backpay specification sets forth the backpay owed
to claimant, Robert Tetreault, by Respondent, as
$1616.77. As did Daniel Lopez, Tetreault picketed at Re-
spondent's Covina store on behalf of the Union; howev-
er, unlike the former, Tetreault was not compensated for
his services. The record reveals that the only employer
for whom the claimant worked during the backpay
period paid to him the exact amount of wages set forth
under the heading "gross interim earnings" in the back-
pay specification. Respondent offered not a scintilla of
evidence that the alleged backpay, figure, set forth in the
specification, is incorrect. Therefore, it must be conclud-
ed that Respondent failed to meet its burden of establish-
ing that said figure was wrong or that the claimant failed
to mitigate it, and it must be found that Tetreault is enti-
tled to the amount claimed.
E. Michael La Fond
The backpay specification sets forth as the amount of
backpay owed to claimant Michael La Fond, by Re-
spondent, the figure of $3278. La Fond did not testify at
the hearing. The record establishes that he currently re-
sides in Las Vegas, Nevada, and that the General Coun-
sel furnished his address to Respondent's representative
prior to the hearing. The latter stated that a subpoena
had been issued to La Fond on May 5, 1986, but that no
check, covering his travel and witness fees, accompanied
the subpoena. Subsequently, according to the representa-
tive, after La Fond telephoned his office and demanded
expense money, the representative, in turn, contacted Re-
spondent's office and asked that a check, covering air
fare and other expenses, be mailed to La Fond. The rep-
resentative stated that such was also sent by first class
and not certified mail. Concerning the matter of La
Fond's appearance at the hearing, the General Counsel
stated that the claimant spoke to him by telephone three
times prior to the hearing about La Fond's reluctance to
attend because of financial hardship and his options vis-a-
vis complying with a subpoena. Concerning whether La
Fond ever received a check covering his witness fee and
travel expenses, the General Counsel stated that the
former told him that he had received no such payment
6 My Store, Inc., supra at 330.
7 376 F.2d at 218.
and could not appear unless compensated as he is "a
single parent with a child to support,"
Faced with La Fond's failure to appear, the parties en-
gaged in "off the record", discussions to resolve the exact
amount of backpay owed to the claimant by Respondent.
In the course, of such discussions, La Fond's representa-
tive emphasized the necessity for having La Fond testify
because Respondent possessed information of possible
unreported interim earnings. Finally, Respondent's repre-
sentative agreed not to require La Fond to testify; in
return, the General Counsel agreed to reduce the alleged
backpay amount by $46; the amount set forth in the
backpay specification as mileage and parking expenses in-
curred by the claimant. This agreement was contingent
on La Fond's acceptance of the reduced backpay award.
However, it appears that, in obtaining the claimant's con-
currence, the Union's attorney questioned him as to the
validity of Respondent's claimed information. When I
asked "on the record" if he intended to present evidence
regarding the validity of the reduced backpay award,
Respondent's representative seized on the, attorney's ac-
tions and stated that he would not do so inasmuch as it
would be futile to question La Fond regarding matters
about which the claimant had prior knowledge. In any
event, Respondent presented no evidence in support of
its interim earnings assertion or contrary to the alleged
gross backpay figure.
There is, of course, no record evidence mitigating the
alleged backpay amount owed to La Fond by Respond-
ent, and Respondent possessed the burden of proof in
that regard. Based on the foregoing, the real issue con-
cerns any possible prejudice to Respondent 'and whether
such, in some unspecified manner , bears on the backpay
award to La Fond. In short, having considered the
record as a whole, I fail to perceive how, if at all, Re-
spondent has been prejudiced. The central fact is that,
for whatever reason, Respondent's representative know-
ingly, waived the right to call La Fond as a witness in
exchange for a concession from the General Counsel. In
this regard, I note that the obligation to produce the dis-
criminatees at a backpay proceeding rests on the employ-
er. Woonsocket Health Centre, 263 NLRB 1367 (1982).
Herein, Respondent did little to assure the presence of
La Fond. Thus, the subpoena, which was assertedly
mailed to him, was sent by first class mail and not by
certified mail . Accordingly, there exists no actual proof
of service. Further, the requisite witness fees were not
enclosed and, when assertedly sent, the payment was
again sent by first class and not certified mail . Again,
noting the General Counsel's report of La Fond' s denial
of having received any check from Respondent, there is
no evidence that he ever received any payment for wit-
ness fees and travel expenses. In these circumstances, Re-
spondent seems to have profited from its agreement with
the General Counsel inasmuch as it could not reasonably
have expected to obtain enforcerpent of its subpoena for
La Fond if he failed and refused to appear. Next, the ap-
parent intended inference to be drawn from the "on the
record" comments of Respondent's representative is that
had La Fond answered its questions regarding unreport-
ed interim earnings negatively, the responses would have
SUPERIOR WAREHOUSE GROCERS
been fabrications, given the claintaiit's prior -knowledge
of the nature of the questions. Contrary to Respondent, I
cannot, and do not, draw any conclusions as to La
Fond's credibility, having never observed his testimonial
demeanor. Further, I do not subscribe to the rather
bleak, pessimistic, and self-serving view of human nature,
espoused by Respondent's representative, that individuals
have a proclivity to fabricate about matters adverse to
their own interests. Finally, I note that Respondent's rep-
resentative had ample opportunity to present evidence-
other than La Fond's testimony-regarding unreported
interim earnings or any other matter pertinent to reduc-
ing the gross backpay award. Such was his burden of
proof; yet, no such evidence was adduced. Clearly, if
Respondent possessed this- information, it would have
been-or should have been-readily available, and there
would not have, been the need, for reliance on a per-
chance admission by' La Fond. In these circumstances,
one is left with the impression that whatever would have
been posed to La Fond would have been unsubstantiated
conjecture and that had he denied the assertions, such
would have been uncontroverted., Accordingly, noting
the burden of proof placed on Respondent and the lack
of any perceived prejudice, I find that La Fond is enti-
tled to the backpay figure to which he agreed in ex-
change for Respondent's. waiver of its right to require his
testimony.
On these findings of fact and conclusions of law and
on the entire, record, I issue the following recommend-
ed"
805
-On - -t a findings -of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER
The Respondent, Superior Warehouse Grocers, Inc.,
Covina, California, its officers, agents, successors, and as-
signs shall make whole the claimants by payment to
them of the following amounts:
Karen Pedregon $21151.90
Daniel Lopez $1751.38
Robert Tetreault $1616.77
Michael La Fond $3232.00
These sums shall be payable to each claimant, with in-
terest computed thereon in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp„ 231 NLRB 651 (1977). There shall be deduct-
ed from the above amounts social security taxes and
income taxes as required by Federal and state laws.9
8 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 to them shall be deemed waived for all pur-
poses.
9 I shall deny the umon attorney's request that Respondent be ordered
to reimburse the Union for attorney's fees. Whatever the motivation of
Respondent, its arguments , at least with regard to three of the claimants,
were not frivolous.