J. L. Holtzendorff Detective Agency, Inc.Download PDFNational Labor Relations Board - Board DecisionsOct 19, 1973206 N.L.R.B. 483 (N.L.R.B. 1973) Copy Citation J. L. HOLTZENDORFF DETECTIVE AGENCY 483 J. L. Holtzendorff Detective Agency, Inc. and Earl L. Kelley. Case 21-CA-10389 October 19, 1973 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On August 21, 1973, Administrative Law Judge Herman Corenman issued, the attached Supplemental Decision in this proceeding- Thereafter, Respondent filed exceptions and a supporting brief and subse- quently the General Counsel filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the excep- tions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to ' Section 10(c) of the National Labor Relations Act as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, J. L. Holtzendorff Detective Agency, Inc., Los Angeles, California;. its officers, agents, successors, and, assigns, shall, take-the action set forth in the said recommended Order. Administrative Law Judge's Decision entitled "The Reme- dy." On March 9, 1973, the General Counsel of the Board approved a stipulation signed by the parties to this proceed- ing wherein Respondent agreed that the Board Order herein was valid and proper and stipulated that a backpay specifi- cation could`issue without prior judicial review of the Board Order, and that any future judicial review would be limited only to the amount of backpay ordered by the Board as a result of the backpay specification. Upon due notice, a hearing was held April' 19, 1973, on the issues joined by the liackpay specification and the Respondent's amended answer. The hearing was closed on April 19, 1973, but on order of the undersigned and pur- suant to due notice, was reopened and further hearing held on June 29, 1973, and the hearing closed on June 29, 1973. All parties were afforded full opportunity to call and exam- ine and cross-examine witnesses, to introduce evidence and to argue orally and submit briefs. Briefs filed by the General Counsel and the Respondent were carefully considered. Upon consideration of the entire record herein, and upon my observation of the witnesses as they appeared before me, I make the following findings of fact and conclusions of law. I find, as alleged in the backpay specification and not denied in the Respondent's answer, that prior to Kelley's discriminatory discharge on July 23, 1971, he regularly worked a 44-1/4-hour week for which he was paid an hourly rate of $1.90 per hour for 40 hours and an hourly rate of $2.85 per hour for 4-1/4 hours per week. Based upon Kelley's workweek and rate of pay, above admitted, the backpay ' specification set forth gross backpay, from which it deducted the net interim earnings of Kelley in each calen- dar quarter to show the net backpay in each calendar quar- ter due Kelley dating from Kelley's discriminatory discharge on July 23, 1971, to his reinstatement on January 7, 1973. For reasons hereinafter stated in this Decision, I am in agreement with, and find, that the backpay computations set forth in the backpay specification are true, and I there- fore find that Kelley's gross and net backpay by calendar quarters are as follows: SUPPLEMENTAL DECISION HERMAN C6RENMAN, Administrative Law Judge: This is a proceeding in a backpay specification issued March 20, 1973, by the Regional Director for Region 21 of the Board pursuant to Section 102.52, et seq, of the Board's Rules and Regulations, Series 8, as amended, for the purpose of de- termining the amount of backpay, if any,,due and owing which will make whole Earl L. Kelley who, pursuant to a Board Order, found at 200 NLRB No. 121, was reinstated to his job on January 7, 1973. In its Decision, the Board adopted as its order the recommended Order of the Admin- istrative Law Judge that the Respondent, J. L. Holtzendorff Detective Agency, Inc., offer to Earl L. Kelley immediate and full reinstatement to his former position or, if that posi- tion no longer exists, to a substantially equivalent position, and make him whole for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him, in the manner set forth in that section of the Cal. Gross Net Interim Net Qtr. Backpay Earnings Backpay 71-3 $ 881. 10 None $ 881. 10 71-4 1, 145.43 None I, 145.43 72-1 1, 145.43 $352.61 792. 82 72-2 1, 145.43 307. 61 837. 82 72-3 1, 145.43 639. 72 505. 71 72-4 1,145.43 693. 93 451. 50 73-1 88.11 30.24 57.87 Total Net Backpay $4, 672. 25 206 NLRB No. 50 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's Defenses The Respondent's amended answer in defense to the backpay specification alleges that the hours available for all employees of the Respondent were drastically reduced after Kelley's termination by virtue of the elimination of guard services. Although not specifically alleged in its answer, the Re- spondent sought to prove that Kelley would have been laid off for lack of work in November 1971. There is uncontradicted and credible evidence in the re- cord that some of the guard services furnished by the Re- spondent to the Pacific Telephone Company in San Diego were discontinued beginning with mid-November 1971 at the telephone company's request. Respondent's records dis- close that the cut in the guard service to the telephone company beginning in mid-November 1971 resulted in a reduction in the total hours of guard service from an aver- age of 1,112.75 hours per week to 899 hours per week. The uncontradicted evidence of Respondent's Executive Vice President Florence L. Powell that hours of work per week were reduced because of this cut in services-for'Paeific Telephone Company is credited and is supported by the stipulation of counsel showing the clear reduction in hours beginning November 13, 1971. However, the evidence clearly shows that there was guard service available for Kelley,' that guards with less senior=ity than Kelley were not laid off, and moreover, that new em- ployees were hired as guards notwithstanding the cut in services to the Pacific Telephone Co. Accordingly, I have discredited the testimony 'of Mr. Perry W. Lee, Respondent's supervisor in the San Diego area, that 12 employees were laid off as a result of the telephone compa- ny cutback and that Kelley would have been laid off in November 1971, as Lee's testimony is contradicted by the Respondent's personnel records which show otherwise. (See G.C. Exh. 6.) The seniority list, identified in the record as General Counsel's Exhibit 6, which shows hiring dates, termination, dates, and reasons for leaving, shows, that the cutback in guard services for the telephone company resulted in only two layoffs for lack of work; namely, Murphy (seniority No. 23) and Johnson (seniority No. 46),,but seven new employ- ees were hired after November 1971 before Kelley was reinstated January 7, 1973. Additionally, it is noted that Kelley, with a seniority No. 28, had greater seniority than Johnson (seniority No. 46). Moreover, when the cutback in guard services occurred in November 1971, Kelley had greater seniority than 10 , other employees. Additionally, General Counsel's Exhibit 6 shows that there was a large turnover of guards resulting from quits, retirements, and discharge for cause, as well as a large number of new hires. It is thus clear that there was guard work available for Kelley, during the entire backpay period dating from i The Respondent's personnel records from which the seniority list, which appears in the record as G.C. Exh. 6, was constructed, show that in the period between Kelley 's discharge on July 23, 1971, and his reinstatement on Janu- ary 7, 1973, 26 new employees were hired . This fact shows conclusively that during the backpay period, guard work was available for Kelley with the Respondent. Kelley's discharge on July 23, 1971, to his reinstatement on January 7, 1973. In backpay proceedings the burden, of proof lies with the Respondent employer to show that backpay is not due be- cause of lack of work. I find that the Respondent has not sustained that burden of proof. On the contrary, the evi- dence shows that guard service was available for Kelley after his discharge. See NLRB. v. Ellis & Watts Products, Inc., 344 F.2d 67, 69 (C.A. 6, 1965); N.L.K.B. v. Mastro Plastics Corporation, 354 F.2d 170 (C.A. 2, 1965), cert. de- nied 384 U.S. 972 (1966); The Madison Courier, Inc., 202 NLRB No. 115; N.LR.B. v. The Madison Courier, Inc., 472 F.2d 1307 (C.A.D.C., 1972). The Respondent's answer to the backpay specification also alleges that Kelley is not entitled to backpay, alleging that he could have obtained employment if he had sought it.. The Respondent further alleges in its Answer that it is informed and believes that during the majority of the calen- dar quarters in question, Kelley was employed or was a full-time student. Kelley appeared as a witness called by the General Coun- sel and testified credibly and without contradiction that he began employment with the Respondent on February 1S, 1971, as a guard in San Diego working nights from 6 p.m. until 2:15 a.m. at one location and 5 p.m. to 2:15 a.m. at another location. He began° attending San Diego Mesa Col- lege during the day in the first week of June 1971. He continued there throughout the first and second summer sessions, and during the fall semester he concurrently at- tended San Diego State College during the daytime from 9 a.m. to 2 or 3 p.m. After his discharge from the Respondent on July 23, 1971, Kelley sought other employment by, among other means, applying for employment at the Cali- fot'nia unemployment office where he was referred to the California Human Resource and Development office where he completed written application forms. Kelley also sought employment lead's through the newspaper advertisements and through the placement center at the college: He applied for work at foodstores, a veterinary hospital, K-mart, and a number of hospitals. In the summer of 1972, Kelley worked part time assisting the custodian of a synagogue, and he attended summer camp, for the Air Force ROTC program of the State' College for 24-28 days. Kelley took a leave of absence from his work to attend the ROTC en- campment.2 Kelley quit his part-time janitorial job with the synagogue to take a more promising job as a guard with a guard agency where he remained until the Respondent of- fered him reinstatement to his job, in January 1973. Kelley also looked for employment in numerous- establishments, including a number of convalescent hospitals and acute hospitals, as well as the Pacific Telephone Company. He also applied at several privately, operated employment agen- cies. Kelley testified that while attending school, he request ed evening- work but "would have taken anything I could get." I am satisfied , and I find, that during Kelley' s unem- 2 At' the time of the hearing on June 29, 1973, Kelley indicated by his testimony that he might receive unemployment benefits of $30 weekly from the State of New Mexico . Kelley testified, however, that he had as yet received no benefits from New Mexico . Unemployment benefits, if received, are not deductible from the backpay due Kelley Gullett Gin Co., 340 U.S. 361 (1951). J. L. HOLTZENDORFF DETECTIVE AGENCY ployment caused by his discharge from the Respondent, he was at all times available for employment , remained in the labor market and diligently searched for work . The Respon- dent has failed to establish any facts in mitigation of the backpay liability, as is its burden under established legal authority. See, for example , N.L.R.B. v. Mastro Plastics Corp., supra; N.L.R.B. v. Brown & Root, Inc., 311 F .2d 447, 454 (C.A. 8, 1963); The Madison Courier, Inc., supra. The fact that Kelley was looking for night work while attending school does not negative his availability for work for the purposes of this case , inasmuch as it was while attending day school that Kelley was engaged in nighttime work with the Respondent as a private guard . Cf. American Compress Warehouse, 156 NLRB 267. Upon the basis of the foregoing findings of fact , conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, there is hereby issued the following recommended: SUPPLEMENTAL ORDER 3 485 J. L. Holtzendorff Detective Agency, the Respondent herein, its officers, agents, successors, and assigns, shall pay to Earl L. Kelley the sum of $4,672.25 with interest at the rate of 6 percent per annum in accordance with the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716. There shall be deducted from the amount due Kelley any' tax withholding required by law. 3 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. Copy with citationCopy as parenthetical citation