The Original Oyster House

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1153 (N.L.R.B. 1986)

ORIGINAL OYSTER HOUSE
Louton, Inc., t/a The Original Oyster -House and
Delores DeGeer . Case 6-CA-15962
30 September 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 1 May 1986 Administrative Law Judge
Lowell Goerlich issued the attached decision. The
Respondent filed exceptions and a supporting brief
and the General Counsel filed an answering 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 briefs and has
decided to affirm the judge's rulings, fmdings,1 and
conclusions2 and to adopt 'the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Louton,
Inc., t/a The Original Oyster House, Pittsburgh,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
1 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91, NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In agreement with the judge, we find reasonable the General Counsel's
formula for calculating tip income. In adopting the ,fudge's factual find-
g the claimants' tip income, we are not unmindful of consid-ings regardin
erations pertaining to the claimants' contrary income tax disclosures to
the Internal Revenue Service. Consistent with Hacienda Hotel & Casino,
279 NLRB 601 fn 4 (1986), we shall, therefore, furnish a copy of this
supplemental decision to the Internal Revenue Service.
For the reasons set forth in his dissent in Hacienda Hotel & Casino,
supra at fn. 4, Chairman Dotson would compute backpay on the basis of
the claimants' reported tip income to the Internal' Revenue Service.
2 The judge -stated that the Respondent did not produce records of its
gross receipt sales. Although the Respondent did not produce records of
its overall sales, it did produce food sales and tip reports of certain mdi-
vidual waitresses. These records do not include sales figures for nonfood
items and several of the tip reports appear to have been prepared by the
Respondent's payroll service rather than by the individual waitress. We
have considered these reports and find they are insufficient to disturb the
judge's findings and conclusions regarding the claimants' tip earnings.
Matthew M. Franckiewicz, Esq., for the General Counsel.
Ronald Gilardi, Esq., of Pittsburgh, Pennsylvania, for the
Respondent.
Doreen Dunmire of Whitacre, Pennsylvania, Denise Chur-
chel and Delores DeGeer of Pittsburgh, Pennsylvania,
in propria persona
1153
DECISION IN BACKPAY PROCEEDING
LowELL GOERLICH, Administrative Law Judge. On
13 August 1985 a backpay specification' and notice of
hearing was issued alleging that a controversy had arisen
over the amount of backpay due under the terms of the
Board's Order herein.2
On 17 October and 19 November 1985, the matter
came on for hearing at Pittsburgh, Pennsylvania. Each
party was afforded a full opportunity to be heard, to call,
to examine and cross-examine witnesses, to argue orally
on the record, to submit proposed findings of fact and
conclusions, and to file briefs. All briefs have been care-
fully considered.
FINDINGS OF FACT,3 CONCLUSIONS, AND REASONS
THEREFOR
On 30 April 1984 the Board ordered the Respondent
to make discriminatees Doreen Dunmire, Denise Chur-
chel, and Delores DeGeer "whole for any loss of earn-
ings they may have suffered as a result of the Respond-
ent's conduct against them." (270 NLRB at 94.) The
Order was enforced by the United States Court of Ap-
peals for the Third Circuit on 1 May 1985. The discri-
minatees are waitresses who work or had worked for the
Respondent at its Monroeville branch, Monroeville,
Pennsylvania. The Board found (270 NLRB 87) that the
Respondent had violated the National Labor Relations
Act (the Acct) by reducing the work schedules of the dis-
criminatees and by terminating DeGeer and Dunmire.
The General Counsel's claim for backpay not only in-
cludes projected regular wages or base wages but also
tips. The Respondent contends that the backpay credit
for tips, if any, should be limited to the amount of tips
the discriminatees reported to the Internal Revenue
Service, whereas the General Counsel asserts that the
amount of tips should be determined from the written tip
records which each discriminatee maintained.
Dunmire produced a monthly diary for 1982. In addi-
tion to other things, Dunmire had entered in the diary
the amount of tips she had received each day she had
worked. For example, on 2 January 1982 Dunmire re-
corded tips of $54.
Clturchel produced a calendar for January to May
1984. Tips were recorded on the calendar. For example,
on 19 January 1984, $30 was recorded as tips. Churchel
also produced a small tablet on which tips for 1985 were
entered. She kept these records for "this lawsuit."
DeGeer also kept records of her tips on a calendar for
1982. For example, on 16 January 1982 she entered $52
on the calendar for tips received. These tips, as recorded
by the discriminatees, were used by Compliance Officer
John P. O'Connell in projecting the tip's earnings during
1 An amendment to the backpay specification was issued 7 October
1985 which, together with the specification, is referred to as the specifica-
tion in this decision.
2 270 NLRB 87 (1984).
' The facts herein found are based on the record as a whole and the
observations of the witnesses . R. Exh. 10 (DeGeer's tax returns for 1982,
1983, and 1984) and R Exhs. 11-14 (Dunmire's tax return for 1981, 1982,
1983, and 1984) have been made a part of the record and have been re-
viewed. The General Counsel's objection thereto is overruled.
281 NLRB No. 154
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the backpay periods. Thus, to reach the amount of back-
pay claimed in the specification, the General Counsel
projected the tips and regular earnings of the discrimina-
tees and deducted therefrom any interim earnings. The
formula employed by the General Counsel in projecting
the discriminatees' backpay is not claimed by the Re-
spondent to be unreasonable. The Respondent states in
its posttrial brief, page 9, "The General Counsel in com-
puting backpay in this case, took an average number of
hours worked by the discriminatees, based upon the
base-hourly rate. Standing alone, this method does not
seem unreasonable." (Emphasis added.)
I agree4 with the Respondent that the General Coun-
sel's formula is reasonable. The formula is the most accu-
rate under the circumstances and conforms with the ap-
proved-Board methods for computing backpay. Thus, I
find that the General Counsel has established a prima
facie case.
Once a gross backpay figure has been determined,
based on the amount a discriminatee would have earned
in the absence of discrimination by a respondent, less net
interim earnings, "the burden is on Respondent to prove
that the claimant willfully incurred loss of earnings
during the backpay period, or for some other reason is not
entitled to receive backpay for the period of discrimina-
tion." (Emphasis added.) Brown & Root, Inc., 132 NLRB
486, 495 (1961), enfd. 311 F.2d 447 (8th Cir. 1963).
In its brief the Respondent has given several reasons
why the discriminatees are not entitled to the full
amounts of backpay claimed by the General Counsel.
Those reasons shall be considered seriatim as they appear
in the Respondent's posttrial brief.
First: As noted above the Respondent concedes that
the method of computing backpay, standing alone, does
not seem unreasonable. However, the Respondent urges
that the testimony of the discriminatees about their tip
earnings be discredited and poses this question, "Which
version of the facts is true? What they told the Internal
Revenue or what they told Judge Goerlich." (R. post-
trial Br. 10.)5 Having viewed the discriminatees' demean-
or with great care, I find and conclude that each was
telling the truth in this proceeding in regard to the
amount of tips received by them. Other factors buttress
this conclusion.
Dunmire's tip entries were in existence at the time
Compliance Officer O'Connell first telephoned Dunmire
to inquire about the tips (Dunmire read the tip amounts
to him over the telephone). DeGeer's tip entries were in
existence on 24 May 1983. (When she was asked on that
date at the prior hearing about her tips she replied, "I
would have to get my book. I don't have it on me. I
kept track of my tips.")
Additionally, the gross receipt records of the Respond-
ent's sales were not produced so that the accuracy of the
* As the Board stated in American Mfg. Co of Texas, 167 NLRB 520
(1967)
[I]t is for the Trial Examiner to consider whether the General Coun-
sel's formula is the proper one . and to make recommendations to
the Board as to the most accurate method of determining the
amounts due
5 The discrimmatees did not report the full earnings they each claimed
as tips in their income tax returns
amount of tips claimed could be checked with a reasona-
ble percentage figure.
Finally, the discriminatees stuck with their testimony
when faced with the possible prosecution for perjury or
income tax evasion when it was disclosed that the full
amount of their tips had not been reported to the Inter-
nal Revenue Service.6
Second: The Respondent maintains that Dunmire's
backpay should be terminated as of November 1982 be-
cause she testified at such time she would not return to
work even if offered reinstatement . Assuming, arguendo,
that Dunmire had indicated that she would not return to
work, her backpay would not have been tolled until she
received an unconditional offer to return to work from
the Respondent. Cf. Burnup & Sims, Inc., 157 NLRB 366
(1966), enfd. 383 F.2d 987 (5th Cir. 1967). "The Board
has long held that `[o]nly when a proper offer is made
and unequivocally rejected by the employees is the em-
ployer relieved of the statutory duty to reinstate."' W. C.
McQuaide, Inc., 239 NLRB 671 (1978). In the backpay
proceeding of J. H. Rutter-Rex Mfg. Co., 194 NLRB 19,
26 (1971), it is stated:
The fact that Cherie (as claimed by the Respond-
ent) confirmed to a Board attorney in 1961 that she
would not accept an offer of reinstatement from the
Respondent and thereby showed no interest in re-
turning to the Respondent's employ is irrelevant to
the issues of this case. See Heinrich Motors, Inc., 166
NLRB 783; Burnup & Sims, Inc., 157 NLRB 366,
affd. 383 F.2d 987 (C.A. 5).
See also Central Cartage, Inc., 236 NLRB 1232, 1260
(1978); Don Pizzolato, Inc., 249 NLRB 953, 956 (1980);
Food & Commercial Workers Local 464 (Pathmark), 237
NLRB 16, 17-18 (1978). The Respondent's contention is
not well taken.
Third: The Respondent claims that DeGeer's backpay
should be cut off (it does not set an exact date) because
"She, in fact, has not worked as a waitress since the
early part of 1983. In 1984, she told a disinterested party
that because of her back problem, she could not function
as a waitress." (R. posttrial Br. 12.) The Respondent
states that DeGeer had a degenerative disc disease.
The General Counsel points out that the DeGeer's dis-
charge she has had neither surgery, hospitalization, nor
medical treatment for her back with the exception of an
X-ray occasioned when she fell out of a window on her
current job. In DeGeer's current employment as a bridal
consultant , DeGeer must constantly bend over to adjust
bridal gowns, get on her knees to straighten trains, climb
6 The case of Wagner Industrial Products, 162 NLRB 1349 (1967),
which the Respondent cites as authority for my discrediting the discn-
mmatees, is unlike the instant case In that case the witness had plead
guilty to nine counts of an indictment in which the witness had been
charged with engaging in a scheme to defraud the United States by filing
fraudulent claims for the refund of gasoline taxes, 115 claims under 14
aliases in the amount of $59,364 60 Moreover, the witness never appeared
before the trial examiner Thus, the trial examiner never had an opportuni-
ty to judge the truthfulness of the witness based on demeanor as was the
case in the instant proceeding Other factors are also present which con-
tributed to the truthfulness of the discriminatees in the instant case which
were not present in the Wagner Industrial Products Co, case, supra
ORIGINAL OYSTER HOUSE
on stools and reach in the air to get veils and hats from
storage, climb into the display window, and carry bridal
gowns, which weigh up to 20 pounds. Moreover,
DeGeer held two waitress jobs after she was discharged
by the Respondent. Apparently the Respondent hangs its
claim that DeGeer was physically unable to perform
waitress work on the testimony of Louis J. Dinzeo
(whose testimony was denied by DeGeer) in which
Dinzeo testified that while "just sort of shoot the breeze"
DeGeer said she had a "little bit of a back problem."
"[S]he said she had a back problem, had a problem lift-
ing heavy things and was not able to waitress." At the
time DeGeer was doing "salad bar work, odds and ends"
on Sundays for Dinzeo's brother Vic.
Dinzeo's testimony was indefinite whether DeGeer ac-
tually said that she could not do waitress work. He testi-
fied, "I think she said it but, like I says, I can't guarantee
that she said it."
In view of DeGeer's more positive testimony and the
fact that I find no basis for discrediting her, I find that
the proof does not establish that DeGeer was physically
unfit to perform the job of waitress during her backpay
period and that she was unavailable for work. The Re-
spondent's objection on this ground is not well taken and
is denied.
Fourth: Relying on American Navigation Co., 268
NLRB 426 (1983), the Respondent maintains that
DeGeer should be denied backpay for the second and
third quarters of 1984 because she did not reveal that she
had earnings in these quarters.
During DeGeer's testimony, she stated that she filled
in at the Italian Club for Dinzeo's Aunt Mary on about
10 occasions. Apparently, Vic Dinzeo, DeGeer's "very
good" friend for 15 years, operated the Italian Club.
("[I]t's like a bar, restaurant, sandwiches, that type of
thing.") DeGeer testified:
Well, we had been very good friends for many
years. He has done many good favors for me, and
he called me to let me know that his Aunt Mary
... had hurt her wrist and could not work in the
kitchen, being that I wasn't working, would I come
in and help out his mother in the kitchen. And I
said, yes, I would.
Now, this was not full-time work. This was not
even a job. It was a favor. I went in off and on
when she needed me . . . I was not paid per se
.... [W]e never spoke about money. When I did
it, I did it as a favor because he is a friend.
After helping Dinzeo three times, Dinzeo came to De-
Geer's house and brought her a "couple bags of grocer-
ies" and an envelope with $20 in it. Altogether DeGeer
received from Dinzeo "[p]ossibly $50 or $60." There
were times when DeGeer received nothing for helping
in the kitchen.
Apparently Dinzeo did not treat the money given to
DeGeer as wages . The money, as were the groceries,
was in the nature of a gift for DeGeer's having per-
formed a favor for Dinzeo . Moreover, DeGeer made no
attempt to conceal her receipt of the money for she dis-
1155
closed it to the General Counsel on direct examination. I
do not find that DeGeer willfully deceived the Board.
In American Navigation Co., supra at 428, the Board
said , "This remedy will be applied , of course, only in
cases where the claimant is found to have willfully de-
ceived the Board , and not where the claimant , through
an inadvertence, fails to report earnings."
The Respondent's request that DeGeer 's backpay be
forfeited for two quarters in 1984 is denied.
Fifth: Finally, the Respondent 's requests that Dun-
mire's testimony concerning earnings should be stricken
and disregarded because, by invoking the fifth amend-
ment as to her tax returns, she wanted to shield herself
against discrepancies in her testimony which is "funda-
mentally unfair" and offends the constitutional right of
cross-examination.
While Dunmire first agreed to furnish her income tax
returns, she reneged for these reasons as expressed on the
record . Louis J. Grippo, president and majority stock-
holder of the Respondent, said to Dunmire a recess, "I
will see you in tax court ." Later Dunmire signed the
form which permitted the Respondent to obtain her
income tax returns from the Internal Revenue Service.
Her returns were obtained and, over the objections of
the General Counsel , have been made a part of the
record.
Thus, it appears that the Respondent has been preju-
diced in no manner by Dunmire 's stance taken on her
income tax return.?
The Respondent 's request is denied.
How the Internal Revenue Service treats the discri-
minatees is wholly within its jurisdiction . The jurisdic-
tion which I exercise is confined to the direction and an
order of the Board which is to determine the amount of
backpay which will compensate the discriminatees for
the discrimination to which they have been exposed.
(See Board Rules and Regulations Secs . 102.52 and
102.59 .) This I have done.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed8
ORDER
The Respondent, Louton, Inc. t/a The Original Oyster
House, Pittsburgh, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall pay to Delores DeGeer the
sum of $15,199.16; to Doreen Dunmire the sum of
$25,446.77; and to Denise Churchel the sum of $471.08,
plus interest,9 accured thereon to the date of payment
7 Judge Goerlich said- " . . now what I propose to do is to close the
record and then in the event, Mr. Gilardi, that you are of the opinion
that you need to interrogate any of the witnesses in regard to the income
tax forms, then I will expect you to file a motion to reopen the record at
that time " I have received no such motion.
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.
Interest is to be computed as provided in the enforced Order
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minus social security and income tax deductions, if any , benefits and medical expenses in the amount of $580, plus
as required by state or Federal law. Additionally, the interest thereon at the appropriate rate.'°
Respondent shall pay Delores DeGeer health insurance I find no present need for recommending the visitator-
ial clause requested by the General Counsel.
10 This claim has not been contested in the Respondent's posttnal
bnef.