La Favorita, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 902 (N.L.R.B. 1994)

902
313 NLRB No. 168
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge wrote a separate ‘‘Conclusion’’ concerning backpay
for Valentin Garcia and Petronilo Garcia. The Board refers to both
of these conclusions as the judge’s recommended Order.
1 As noted, the hearing in these matters was on June 9, 1993. At
the commencement, the General Counsel amended the specifications,
introduced the formal documents into evidence, and rested. The Re-
spondent then examined both discriminatees, and the General Coun-
sel cross-examined. Briefs were due July 28, following an extension
granted pursuant to the General Counsel’s request. On July 19, I re-
ceived from the General Counsel, a motion to reopen record to re-
ceive in evidence as G.C. Exh. 3, payroll summaries for three em-
ployees for the purpose of assisting me ‘‘as background to the alle-
gations in the specifications,’’ stating the exhibit ‘‘was not offered
into evidence at the hearing as a matter of inadvertence.’’ Although
it does not dispute the authenticity of the proffered exhibit, the Re-
spondent argues inadvertence is not a sufficient reason to allow its
admission nor is the concept of newly discovered evidence applica-
ble. Accordingly, Respondent contends it would be unfairly preju-
diced by its admission. Neither party has requested the hearing be
reopened and I believe it would be prejudicial to the Respondent to
receive the document without affording it full opportunity at a sup-
plemental hearing to also adduce additional evidence to meet the
General Counsel’s case. In my view the assistance the proffered doc-
ument would give me does not warrant the expense of a reopened
hearing. The General Counsel’s motion to reopen record for the pur-
pose of receiving G.C. Exh. 3 is denied. The General Counsel’s mo-
tion and Respondent’s response have been marked as rejected and
added to the formal file.
2 F. W. Woolworth Co., 90 NLRB 289 (1950).
La Favorita, Inc. and United Food & Commercial
Workers Union, Local #7. Cases 27–CA–11014–
8, 27–CA–11210, and 27–CA–11386
SUPPLEMENTAL DECISION AND ORDER
February 28, 1994
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On October 12, 1993, Administrative Law Judge
James S. Jenson issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
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.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, La Favorita, Inc., Denver,
Colorado, its officers, agents, successors, and assigns,
shall make whole the employees named below by pay-
ing them the amounts set forth opposite their names,
plus interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), accrued to the date of
payment, minus tax withholdings required by Federal
and state laws:
Valentin Garcia $7,476.00
Petronilo Garcia 10,982.37
A. E. Ruibal, for the General Counsel.
Sylvian R. Roybal, of Denver, Colorado, for the Respondent.
John Bowen, of Wheat Ridge, Colorado, for the Union.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. This supple-
mental proceeding to determine the amount of backpay due
Valentin Garcia and Petronilo Garcia, who were
discriminatorily terminated by the Respondent, was heard on
June 9, 1993, in Denver, Colorado.
The backpay specification in Cases 27–CA–11014–8 and
27–CA–11210 involving Valentin Garcia, issued on October
26, 1992, and was amended at the hearing. The backpay
specification in Case 27–CA–11386 involving Petronilo Gar-
cia, issued on January 28, 1993, and was also amended at
the hearing. Respondent filed timely answers to both speci-
fications and their amendments. All parties were afforded full
opportunity to be heard, to introduce evidence, and to exam-
ine and cross-examine witnesses. Briefs were filed by both
the General Counsel and Respondent, and have been care-
fully considered.
On the records before me, from my observation of the de-
meanor of the witnesses, and consideration of the contentions
and arguments of counsel and their briefs, I make the follow-
ing
FINDINGS OF FACT1
The Issues
Cases 27–CA–11014–8 and 27–CA–11210: Whether the
backpay for Valentin Garcia should be computed on a quar-
terly basis under the Woolworth formula,2 or total backpay
minus total interim earnings as approved by the Supreme
Court in Title VII cases.
Case 27–CA–11386: Whether Petronilo Garcia engaged
in a willful loss of earnings by quitting his job at the Shera-
ton Hotel, thereby terminating further backpay liability.
A. Legal Principles
It is well settled that the finding of an unfair labor practice
is presumptive proof that some backpay is owed, NLRB v.
Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965),
cert. denied 384 U.S. 972 (1965), and that in a backpay pro-
ceeding the sole burden on the General Counsel is to show
the gross amounts of backpay due—the amount the employ-
ees would have received but for the employer’s illegal con-
duct. Virginia Electric & Power Co. v. NLRB, 319 U.S. 533,
544 (1943). Once that is established, ‘‘the burden is upon the
employer to establish facts that would mitigate that liabil-
ity.’’ NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th
Cir. 1963). Any formula which approximates what
discriminatees would have earned had they not been dis-
criminated against is acceptable if it is not unreasonable or
arbitrary in the circumstances. The formula should be rep-
resentative of the discriminatee’s employment history and
take into account intermittency of employment. Iron Workers
903LA FAVORITA, INC.
3 See 306 NLRB 203 (1992).
Local 378 (Judson Steel), 227 NLRB 692 (1977). Where
awards may be only close approximations, the Board may
adopt formulas reasonably designed to produce such approxi-
mations. NLRB v. Carpenters Local 180, 433 F.2d 934 (9th
Cir. 1970). Another well-established principle is that ‘‘the
backpay claimant should receive the benefit of any doubt
rather than the Respondent, the wrongdoer responsible for
the existence of any uncertainty and against whom any un-
certainty must be resolved.’’
‘‘[T]he principle of mitigation of damages does not require
success; it only requires an honest good faith effort’’ NLRB
v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955). See
also Lloyd’s Ornamental & Steel Fabricators, 211 NLRB
217 (1974); United Aircraft Corp., 204 NLRB 1068 (1973).
My function is to consider whether the General Counsel’s
formula is the proper formula in view of all the facts ad-
duced by the parties and to make recommendations to the
Board as to the most accurate method of determining back-
pay. American Mfg. Co. of Texas, 167 NLRB 520 (1967).
B. Cases 27–CA–11014–8 and 27–CA–11210
Valentin Garcia’s backpay period began on December 18,
1989, and ended August 10, 1992, with Respondent’s offer
of reinstatement which was refused. The specification alleges
that Valentin would have been rehired on December 18,
1989, at the regular hourly rate of pay of $4.75, that the
overtime hourly rate is 1-1/2 times the hourly rate, and that
on April 1, 1991, he would have been entitled to a 25-cent-
an-hour raise. No evidence to the contrary having been of-
fered by Respondent, it is so found. The regular hours and
overtime hours the General Counsel has assigned to Valentin
are the quarterly average of regular and overtime hours
worked by employees Patricia Reyna, Luis Simental, and
Margarita Gonzales. In the absence of Respondent advancing
an alternative method, it is found that the General Counsel’s
method of determining regular and overtime hours is correct.
The specification does not claim any expenses as an offset
to interim earnings. The Respondent does not admit that the
interim earnings as alleged in the specification are complete;
however, no contrary evidence was elicited, nor was it shown
that Valentin failed to make a diligent search for work. Re-
spondent contends that Valentin is entitled to no backpay
since his interim earnings for the entire backpay period ex-
ceeded his gross backpay. This claim is grounded on the ar-
gument that the Board should not use the quarterly method
of computation in the manner set forth in F. W. Woolworth,
supra, but rather the total backpay minus total interim earn-
ings utilized in Title VII cases. The Board has, with court
approval, consistently applied the Woolworth formula since
1950 in literally thousands of cases, and its order in the un-
derlying unfair labor practice case, as enforced by the Tenth
Circuit Court of Appeals, ordered that backpay be computed
in that manner. Therefore, I reject the Respondent’s argu-
ment and shall compute the backpay in the manner specified
by the Board.
Conclusion
Based on the foregoing and the whole record, I conclude
that the Respondent’s obligation to make whole Valentin
Garcia shall be satisfied by payment to him the amount of
$7476 as detailed in the amended backpay specification, and
summarized in Appendix A, attached hereto, and that interest
shall be paid to him in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), accrued to
the date of payment, minus tax withholdings required by law.
C. Case 27–CA–11386
Petronilo Garcia’s backpay period began April 5, 1990,
when Respondent unlawfully discriminated against him by
reducing his hours of work,3 and ended December 7, 1992,
with Respondent’s offer of reinstatement which was refused.
The amended specification alleges that Petronilo’s rate of
pay from April 5, 1990, to March 31, 1991, was $4.60 per
hour, that the overtime hourly rate is 1-1/2 times the hourly
rate, and that on each of the following dates, April 1 and
September 13, 1991, and July 24, 1992, he would have been
entitled to a 25-cent-per-hour raise. No evidence to the con-
trary having been offered by Respondent, it is so found. The
regular hours the General Counsel has assigned to Petronilo
are the quarterly average of regular hours worked by Patricia
Reyna, Louis Simental, and Margarita Gonzales; the over-
time hours for the second quarter of 1990 are based on the
average of overtime hours of Margarita Gonzales and Louis
Simental; and the overtime hours for the remaining quarters
are based on the quarterly average of those two individuals
and Patricia Reyna. In the absence of Respondent advancing
an alternative method, it is found that the General Counsel’s
method of determining regular and overtime hours is correct.
The specification does not claim any expenses as an offset
to interim earnings. While the Respondent does not admit
that the interim earnings as alleged in the specification are
complete, no contrary evidence was elicited, nor was it
shown that Petronilo failed to make a diligent search for
work. The record shows that on June 28, 1990, Petronilo
commenced working at the Sheraton Hotel for $4.50 per
hour and that he was discharged effective August 6, 1990,
for failing to call in or show up for work, having told his
employer that he was going to Mexico and would return in
early August. His earnings record from the Sheraton shows
that for the 2-week period ending August 4, 1990, he worked
35.25 hours for which he was paid $158.63. His total Shera-
ton earnings were $825.77. The record shows Petronilo had
been scheduled for an orientation at the Sheraton on July 24,
which was rescheduled for July 31. Prior to that date, how-
ever, he had found another job with Cornerstone Foundation,
where he commenced working on July 31, 1990, and worked
until hired by Pormor Construction during the fourth quarter
of 1990 and worked until the third quarter of 1991 when he
started with Eaton Metal Products. He worked at Eaton
Metal Products until November 5, 1991, when he went to
Mexico for 2 months, thereby removing himself from the
labor market. The General Counsel properly excludes that
period from the backpay computation. Petronilo commenced
working again for Pormor Construction on January 3, 1992,
where he continued to work throughout the backpay period.
The Respondent argues that Petronilo should be denied
backpay after August 6, 1990, when he was terminated by
the Sheraton Hotel for ‘‘No Call, No Show.’’ His termination
date and date of starting to work for Pormor coincide. Fur-
ther, the fact the Sheraton Hotel may have terminated him
does not constitute a willful loss of earnings. E.g., Harvest
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Queen Mill & Elevator Co., 90 NLRB 320, 338 (1950)
(discriminatee Cook discharged for refusing to work on Sun-
days); Mastro Plastics Corp., 145 NLRB 1710, 1716 (1964)
(discriminatee Vargas discharged from several interim jobs,
one for being in jail for 10 days); Barberton Plastics Prod-
ucts, 146 NLRB 393, 396 (1964) (discriminatee discharged
for unsatisfactory performance); Webb Mfg. Co., 174 NLRB
37, 38 (1969) (discriminatee Cline fired for unsatisfactory
work); Artim Transportation System, 193 NLRB 179, 183
(1971) (discriminatee discharged after argument with super-
visor over working conditions). In any event, it is clear that
Petronilo did not remove himself from the labor market by
virtue of the Sheraton Hotel termination. Although Respond-
ent also refers to Petronilo’s termination by Eaton Metal
Products for not reporting or calling in, the General Counsel
has excluded from the gross backpay computations, the pe-
riod from November 5 to December 31, 1991, when he went
to Mexico and thereby removed himself from the labor mar-
ket for that 2-month period. In sum, the Respondent has
failed to show a willful loss of earnings or that Petronilo had
interim earnings not reported.
Conclusion
Respondent’s obligation to make whole Petronilo Garcia
shall be satisfied by payment to him the amount of
$10,982.37 as detailed in Appendix B, attached hereto, and
that interest shall be paid to him in the manner prescribed
in New Horizons for the Retarded, supra, accrued to the date
of payment, minus tax withholdings required by law.4
lllllll
4 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 objec-
tions to them shall be deemed waived for all purposes.
APPENDIX A
Cases 27–CA–11014–8 and 27–CA–11210
VALENTIN GARCIA
Yr./Qtr. Total Regular Pay Total Premium Pay Total Gross Backpay Total Interim Earnings Net Backpay
89/4 $380 $491.19 $871 - 0 - $871
90/1 2,470 2,405.88 4,876 $1,314.51 3,561
90/2 2,470 1,830.56 4,301 3,710.64 590
90/3 2,470 2,423.84 4,894 4,135.23 759
90/4 2,470 2,037.83 4,508 3,656.11 852
91/1 2,470 2,223.21 4,693 4,218.90 474
91/2 2,600 1,855.35 4,455 5,049.30 - 0 -
91/3 2,600 3,006.45 5,606 5,238.04 368
91/4 2,600 1,747.50 4,348 4,503.25 - 0 -
92/1 2,600 1,284.53 3,885 4,764.91 - 0 -
92/2 2,600 975.90 3,576 5,337.36 - 0 -
92/3 1,800 584.63 2,385 3,767.13 - 0 -
TOTALS $27,530 $20,866.87 $48,397 $7,476
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APPENDIX B
PETRONILO GARCIA
Case 27–CA–11386
Calendar Qtr. Hours Rate Gross Back-pay Source Earnings Expenses Net Interim Earnings Net Backpay
1990/2d 474 $4.60 $2,180.40 La Favorita (Actual) - 0 -
249 6.90 1,718.10 $2,980.80 $2,980.80 $917.70
$3,898.50
1990/3d 520 4.60 $2,392.00 La Favorita (Actual)
339 6.90 2,339.10 69.60
$4,731.10 Sheraton 825.77 - 0 -
Cornerstone 1,512.50
$2,407.87 2,407.87 2,323.23
1990/4th 520 4.60 $2,392.00 Pormor 60.00
285.81 6.90 1,972.09 Cornerstone 1,898.01 - 0 -
$4,364.09 $1,958.01 1,958.01 2,406.08
1991/1st 520 4.60 $2,392.00 Pormor Const. 2,584.63 - 0 - 2,584.63
311.81 6.90 2,151.49
$4,543.49 1,958.86
1991/2d 520 4.85 $2,522.00 Pormor Const. 3,748.00 - 0 - 3,748.00
247.38 7.28 1,800.93
$4,322.93 574.93
1991/3d 400 4.85 $1,940.00 Pormor Const. 1,914.50 - 0 - 3,629.06
308.35 7.28 2,244.79 Eaton Metal Product 1,714.56
120 5.10 612.00 $3,629.06
92.51 7.65 707.70 1,875.43
$5,504.49
1991/4th 200 5.10 $1,020.00 Eaton Metal Product 1,071.54
89.62 7.56 685.59 (out of labor market
11/5–12/31)
$1,705.59 - 0 - 634.05
1992/1st 520 5.10 $2,652.00 Pormor Const. 3,670.13 3,670.13
171.27 7.65 1,310.22
$3,962.22 - 0 - 292.09
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APPENDIX B—Continued
PETRONILO GARCIA
Case 27–CA–11386
Calendar Qtr. Hours Rate Gross Back-pay Source Earnings Expenses Net Interim Earnings Net Backpay
1992/2d 520 5.10 $2,652.00 Pormor Const. 4,534.00 4,534.00
130.12 7.65 995.42 - 0 -
$3,647.42 - 0 -
1992/3d 120 5.10 $612.00 Pormor Const. 5,228.00 5,228.00
51.51 7.65 394.05
440 5.35 2,354.00 - 0 -
130.13 8.03 1,044.94 - 0 -
$4,404.99
1992/4th 400 5.35 $2,140.00 Pormor Const. 4,792.00 - 0 - 4,792.00
174 8.03 1,397.22 - 0 -
(10 wks.
to 12/7)
$3,537.22 - 0 -
Net Backpay $10,982.37