J. L. Holtzendorff Detective Agency, Inc.

National Labor Relations Board - Board Decisions

Oct 19, 1973

206 N.L.R.B. 483 (N.L.R.B. 1973)

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.