Castaways Management

National Labor Relations Board - Board Decisions

Aug 14, 1992

308 N.L.R.B. 261 (N.L.R.B. 1992)

261
308 NLRB No. 50
CASTAWAYS MANAGEMENT
1 On April 29, 1992, Administrative Law Judge Lowell M.
Goerlich issued the attached decision. The Respondent filed excep-
tions and a supporting brief, and the General Counsel filed cross-
exceptions and an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel excepts to the judge’s inadvertent misspell-
ing of the names of two discriminatees. We find merit in this excep-
tion and modify the Order to reflect the correct spelling of the names
of discriminatees Maximino Gil and Carol White Wolfe. We further
modify the Order to reflect that the Starlite Cutting period for main-
taining an escrow account for an unavailable discriminatee is 1 year,
not 2 years as mistakenly stated by the judge.
1 The amendment reflects no change in gross backpay per se.
Thus, it reflects no change in tne starting and ending dates of the
backpay periods (that is, the dates when the discriminatees were
fired and the dates when the facilities they had worked at were
closed or, in one case, the date of reinstatement); no changes in the
wage rates at which gross backpay is calculated; and no changes in
the number of hours per week at which gross backpay is calculated.
2 Feigin had previously been unlocated.
3 The change in dates of the excepted period results in a net addi-
tion of one more day when discriminatee Feigin can collect backpay.
Castaways Management, Inc. and Hotel, Motel,
Restaurant & Hi-Rise Employees & Bartenders
Union, Local 355, AFL–CIO and Hotel, Resort
Service Union, Local 3 of Greater Miami &
South Florida Area. Cases 12–CA–8831, 12–
CA–8985, 12–CA–9184, and 12–CA–9179
August 14, 1992
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue in this case is the accuracy of the com-
putations of interim earnings and setoffs to gross back-
pay in the compliance specification as amended.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The Respondent, Castaways Management, Inc.,
Miami, Florida, its officers, agents, successors, and as-
signs, shall pay to the employees named below the
amounts set forth opposite their respective names, plus
interest accrued to the date of payment, minus taxes:
Kathleen Blenke $8,167
Kenneth Downes 1,843
Randy Feigin 5,743
Maximino Gil 12,956
Joan Grinon 5,003
Georgette Linder 4,253
Irene Marzio 4,210
Carol White Wolfe 691
An additional $30,975 shall be placed in an escrow
account with the U.S. Treasury, and held for 1 year
pending the submission of interim earnings information
by Andrea Mignoli. See Starlite Cutting, 284 NLRB
620 (1987).
Margaret J. Diaz, Esq., for the General Counsel.
Joel I. Keiler, Esq., of Reston, Virginia, for the Respondent.
Geof Bichlor, Esq., of Miami, Florida, for the Union.
SUPPLEMENTAL DECISION
LOWELL M. GOERLICH, Administrative Law Judge. This
matter is before me pursuant to the following order of the
Board dated June 12, 1991 (303 NLRB 374):
It is ordered that the General Counsel’s motion to
strike the Respondent’s answer is granted to the extent
that it addresses allegations of the compliance specifica-
tion pertaining to the computation of gross backpay.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Summary Judgment is granted except with
regard to allegations concerning the discriminatees’ in-
terim earnings.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 12 for the
purpose of issuing a notice of hearing and scheduling
a hearing before an administrative law judge, for the
purpose of taking evidence concerning the
discriminatees’ interim earnings. The judge shall pre-
pare and serve on the parties a decision containing find-
ings of fact, conclusions of law, and recommendations
based on all the record evidence. Following service of
the judge’s decision on the parties, the provisions of
Section 102.46 of the Board’s Rules and Regulations
shall be applicable.
In its decision, among other things, the Board stated:
As the Respondent has failed to deny specifically the
gross backpay allegations or to explain adequately its
failure to do so, we strike the Respondent’s answers to
the extent that they address those allegations of the
compliance specification and deem those allegations of
the second amended compliance specification to be ad-
mitted as true.
On January 22, 1992, the Regional Director for Region 12
issued an amendment to the second amended compliance
specification. This amendment reflects certain changes in
setoffs to gross backpay.1 More specifically, certain changes
are set forth in this document with respect to interim earn-
ings figures for discriminatee Blenke, Downes, Gil, Grinon,
and Marzio. Additionally, interim earnings figures for
discriminatee Feigin are set forth for the first time.2 Finally,
a change in the dates of the excepted period for
discriminatees Feigin (when he was unavailable for work due
to an injury) at the end of 1979 and beginning of 1980 is
also reflected.3
This matter came on for hearing before me in Miami,
Florida, on February 24 and 25, 1992. Each party was af-
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 There being no objection to General Counsel’s motion to correct
transcript, the motion is granted and the transcript is corrected ac-
cordingly.
5 ‘‘We have heretofore held, with court approval, that in a backpay
proceeding the burden is on the General Counsel to show only the
gross amounts of backpay due.’’ United States Air Conditioning
Corp., supra at 1280.
forded a full opportunity to be heard, to call, 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 carefully considered.
FINDINGS OF FACT,4 CONCLUSIONS, AND REASON
THEREFOR
By the testimony of Ginnie Daniel, compliance officer, the
General Counsel offered prima facie proof of the amount of
gross backpay due5 and owing the discriminatees and that the
method of computing the backpay was reasonable and a fair
base was employed for arriving at the gross backpay due
each discriminatee. Thus, the burden shifted to the Respond-
ent ‘‘to establish facts which would negative the existence of
liability to a given employee or which would mitigate that
liability.’’ United States Air Conditioning Corp., 141 NLRB
1278, 1280 (1963), enfd. 336 F.2d 215 (6th Cir. 1964).
In the case of NLRB v. Moone Aircraft Corp., 366 F.2d
809 (5th Cir. 1966), the court commented:
While the General Counsel has the burden of prov-
ing unlawful discrimination on the part of the employer,
and hence that backpay is due, the employer usually
has the burden of establishing affirmative defenses
which would mitigate his liability. NLRB v. Miami
Coca-Cola Bottling Co., supra [360 F.2d 569]; NLRB v.
Brown & Root, Inc., 8 Cir. 1963, 311 F.2d 447. Among
these affirmative defenses are availability of jobs be-
cause of nondiscriminatory factors, the employees’ in-
terim earnings to be deducted from the backpay award
. . . . The cases are unanimous that the Employer must
establish these defenses by a preponderance of the evi-
dence NLRB v. Miami Coca-Cola Bottling Co., supra;
NLRB v. Master Plastics Corp., 2 Cir. 1965, 354 F.2d
170); NLRB v. Brown & Root, Inc., supra.
The fact that the General Counsel included deductions of
interim earnings in his backpay computation in no manner
lessened the Respondent’s burden.
The Respondent cross-examined the compliance officer
whose testimony stood fast. The Respondent offered the tes-
timony of Charles A. Kramer, a former president of Southern
Hotel and Motel Association and a former partner in the
Shelbourne Hotel. Kramer testified that 1977 through 1981
were the ‘‘best years [he] could recall’’ for the hotel business
and hotels generally had ‘‘staffing problems.’’ Additionally,
the Respondent offered the testimony of its counsel who tes-
tified that he had been informed that discriminatee
Maximilliam Gil had been discharged for theft.
The Respondent rested without calling any of the
discriminatees whom it declined to call as witnesses.
The Respondent’s evidence was of little probative value
being void of any valid reasonable inferences, and contrib-
uted nothing to validly impeaching the computations set forth
in the specification.
Accordingly, there being no material and credible evidence
presented in this case which supports a finding that the Gen-
eral Counsel’s computations are not drawn according to law
or technically correct, I adopt them and approve them.
[Recommended Order omitted from publication.]