Metro Demolition Contracting Corp.

National Labor Relations Board - Administrative Judge Opinions

Nov 12, 2009

29-CA-027317 (N.L.R.B. Nov. 12, 2009)

JD(NY)–39–09
Maspeth, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
METRO DEMOLITION CONTRACTING CORP.,
PHANTOM DEMOLITION CORP., CIRCLE
INTERIOR DEMOLITION INC., WORLD CLASS
DEMOLITION CORPORATION, ALTER EGOS
and Case Nos. 29-CA-27317
29-CA-27375
29-CA-27472
PRIVATE SANITATION UNION LOCAL 813,
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL-CIO
Kathy Drew-King, Esq., Brooklyn, New York
for the General Counsel
SUPPLEMENTAL DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. This supplemental proceeding was heard
before me on September 23, 2009, in Brooklyn, New York. A compliance specification and
notice of hearing was issued on October 23, 2008, based upon an unpublished order of the
Board dated September 13, 2007 adopting, in the absence of exceptions, the administrative law
judge’s decision. The judge found that the named Respondents were alter egos and ordered
that they offer discriminatees Joseph Angrisani and Jack Baiamonte reinstatement to their
former, or substantially equivalent positions of employment and make them whole for the
discrimination against them. The judge further ordered that Respondents give retroactive effect
to the collective-bargaining agreement between Metro Demolition Contracting Corp.,
(Respondent Metro Demolition) and Private Sanitation Union Local 813, affiliated with the
International Brotherhood of Teamsters, AFL-CIO (the Union) effective July 1, 2005 through
June 30, 2008 (the “2005 collective-bargaining agreement), making whole unit employees for
any loss of earnings and other benefits because of Respondents' failure to apply the terms and
conditions of the collective-bargaining agreement. Respondents were further ordered to make
payments to any benefit funds established by the 2005 collective-bargaining agreement. On
December 6, 2007, the United States Court of Appeals for the Second Circuit entered its
judgment enforcing the Board’s Order.
I. Background
The compliance specification herein issued on October 23, 2008. After requesting, and
receiving, an extension of time to file an answer, on November 24, Respondents filed an answer
denying the compliance specification without providing alternate calculations or the basis of their
disagreement with the compliance specification’s backpay and other calculations. By letter
dated November 25, counsel for the General Counsel notified Respondents that the answer
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failed to meet the specificity requirements of Section 102.56 of the Board’s Rules and
Regulations, and afforded the Respondents additional time to file an amended answer. No
amended answer was filed.
On December 15, 2008, the General Counsel moved for partial summary judgment (the
Motion)1 and on December 18, the Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the General Counsel’s Motion should not be granted.
On March 13, 2009, the Board accepted the Respondent’s opposition to the Motion, and the
General Counsel filed a reply to Respondent’s opposition.
On July 16, 2009, the Board issued a Supplemental Decision and Order, granting in part
and denying in part the General Counsel’s Motion.2 The issues denied and reserved for hearing
before an administrative law judge included paragraph X of the compliance specification, which
alleges that there is a 20 percent liquidated damages obligation under the 2005 collective-
bargaining agreement for any delinquency in contributions to contractual benefit funds that are
not received by the 15th of each month. In addition, the Board noted that its grant of summary
judgment as to paragraphs VII, VIII and IX did not preclude the Respondents from contesting
whether amounts to be contributed to contractual benefit funds for Angrisani and Baiamonte
should be reduced by amounts contributed to these funds by interim employers. The Board also
declined to include in its Order the amounts owed to the discriminatees and benefit funds as the
General Counsel had not sought to include its summary paragraph setting forth such amounts in
its Motion.
At the hearing, the Respondents did not appear in person or by counsel.3 Counsel for
the General Counsel moved to amend the compliance specification, which is the backpay
computation for Jack Baiamonte, to include additional interim earnings that had not been
previously accounted for.4 Neither Angrisani nor Baiamonte testified regarding their search for
interim employment. At the hearing, counsel for the General Counsel made a closing
statement in lieu of filing a brief in this matter.
II. Facts
A. Liquidated Damages
In paragraph X of the compliance specification, the General Counsel alleges that
“Section 23(d) of the 2005 [collective-bargaining agreement] requires that Respondents pay
Health Insurance and/or Severance Fund and/or Pension Fund liquidated damages at the rate
of 20% for any contribution delinquency that is not received ‘by the 15th of each month.’” The
Respondents’ answer denied this allegation and, referencing the 2005 collective-bargaining
agreement, contended that the claimed liquidated damages “are discretionary in nature” and are
“only imposed after arbitration.” The Board found that this answer was sufficient to raise a
litigable issue of fact. 354 NLRB no. 48, slip op. at 3.

1 The General Counsel did not seek summary judgment on the following paragraphs of the
compliance specification: paragraphs IV (Interim Earnings), V (Net Backpay) and XI (Summary).
2 The Motion was granted with respect to paragraphs I (Discriminatees), II (Backpay Period), III
(Computation of Gross Backpay), VI (Backpay Due), VII (Contributions Owed to the Local 813 Health
Insurance Fund); VIII (Contributions Owed to the Local 813 Severance Fund) and IX (Contributions Owed
to the Local 813 Pension Fund) of the compliance specification.
3 By letter dated September 21, 2009, Respondents’ counsel of record withdrew from representing
Respondents in this matter.
4 This amendment is reflected in a revised “Appendix B” introduced into the record at the hearing.
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The 2005 collective-bargaining agreement provides for monthly employer contributions
to three Union benefit funds: the Private Sanitation Union Local 813 Insurance and Trust Fund;
the Local 813 and Local 1034 Severance and Retirement Trust Fund and the Pension Trust
Fund Private Sanitation Union Local 813 (the Health, Severance and Pension funds,
respectively and collectively, the Funds). There is a default provision which the General Counsel
relies upon to support its claim that liquidated damages should be part of the make whole
remedy here, which provides as follows:
In the event the Employer is in default of any contributions due the Funds, it shall be
liable and shall pay to the respective Funds as to which there is a default, an additional
20% of the amount due as liquidated damages for the additional bookkeeping or
processing expense required by the Funds. A default shall occur when payment is not
actually received by the 15th of each month.
The sole witness presented by the General Counsel was Minerva Rivera, assistant to
the administrator for the Local 813 Funds. She has held this position for 27 years and, in that
capacity, oversees the collection of monies due to the Funds.
Rivera testified that the 2005 collective-bargaining agreement contains a liquidated
damages provision, as set forth in paragraph 23(d) (quoted above). Payment to the contractual
benefit funds is due on the 10th of every month. In the event an employer has not remitted such
payments by the 15th day of each month, liquidated damages are charged. Rivera testified that
the fund administrator does not have discretion over the assessment of such liquidated
damages. Nor is an arbitration award required to enable the Funds to impose liquidated
damages.
Rivera further testified that the Fund has a collection committee comprised of a union
trustee and an employer trustee. This collection committee is empowered to waive the
imposition of liquidated damages. Rivera testified that no such vote had been held to waive the
assessment of liquidated damages for Respondent Metro Demolition.
III. Analysis and Conclusions
A. Backpay Owed to Respondents’ Employees
In the litigation of a compliance matter, the General Counsel bears the burden of
establishing the gross backpay due to each discriminatee. J.H. Rutter Rex Mfg. Co. v. NLRB,
473 F.2d 223, 230-231 (5th Cir.) cert. denied, 414 U.S. 822 (1973). Once the gross backpay
amounts are established, the burden shifts to the employer to establish facts that would negate
or mitigate its liability. United States Can Co., 328 NLRB 334, 337 (1999), enfd. 254 F.3d 626
(7th Cir. 2001). Thus, in challenging the General Counsel’s calculations, the burden is on the
employer who committed the unfair labor practice to establish facts that reduce the amount due
for gross backpay. Atlantic Limousine, 328 NLRB 257, 258 (1999), enfd. 243 F. 3d 711 (3d Cir.
2001); Florida Tile Co., 310 NLRB 609 (1993), enfd. 19 F.3d 36 (11th Cir. 1994). Any uncertainty
about how much backpay should be awarded a discriminatee should be resolved in his or her
favor and against the respondent, whose violation caused the uncertainty. Alaska Pulp Corp.,
326 NLRB 522 (1998), enf. in part, 231 F.3d 1156 (9th Cir. 2000); Intermountain Rural Electric
Ass’n., 317 NLRB 588, 590-591 (1995), enfd. mem. 83 F.3d 432 (19th Cir. 1996).
In the instant case, the Board has already found that the General Counsel has met its
burden in establishing the amounts of gross backpay due to the discriminatees herein. With
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regard to the unit as a whole, the Board’s grant of partial summary judgment is sufficient to meet
the General Counsel’s initial burden. Thus, the only issues remaining for litigation involve the
mitigation of Respondents’ obligation, an issue to which the Respondent bears the burden of
proof and has presented no evidence.
As noted above, discriminatees Angrisani and Baiamonte did not testify herein regarding
their search for work. In St. George Warehouse, 351 NLRB 961, 964 (2007), the Board altered
the burden of production of evidence relating to the issue of mitigation. Where a respondent
produces evidence that there were substantially equivalent jobs within a relevant geographic
area during the backpay period, the burden will then shift to the General Counsel to produce
evidence concerning the discriminatee’s job search. In this case, however, Respondents have
not have not come forward with any evidence regarding the availability of substantially
equivalent employment; thus, any further burden on the General Counsel, beyond the initial
establishment of gross backpay, has not been triggered.5
Accordingly, I find that the General Counsel has established that the amounts set forth in
paragraph XI (Summary) of the compliance specification, as amended, are due to the named
discriminatees.
B. Liquidated Damages
As noted above, the General Counsel seeks, as part of the remedy herein, payment of
contractually-mandated liquidated damages to the Union Funds. In its answer, Respondent
asserted that such liquidated damages are discretionary and subject to an arbitrator’s award.
The plain language of the relevant contract provision, taken together with the testimony
adduced at the hearing is sufficient to establish that liquidated damages are traditionally
assessed under such circumstances. The default provision, quoted above, is not subject to an
arbitrator’s award and, in this instance, there is no evidence that the liquidated damages
assessment has been waived. By its terms, article 23(d) provides that such liquidated damages
are to compensate the funds for bookkeeping and processing expenses caused by an
employer’s default.
In Ryan Iron Works, 345 NLRB 893, 894-895 (2005), the Board held that liquidated
damages set forth in a compliance specification were remedial and that such payments were
necessary to make the benefit fund whole. There, the fund’s rules and regulations specified
liquidated damages in the amount of 20 percent. In determining whether the payment of
liquidated damages was appropriate, the Board relied, in part, upon the following passage from
Merriweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979):
[T]he Board does not provide at the adjudicatory stage . . . for the addition of interest at
a fixed rate on unlawfully withheld fund payments. We leave to the compliance [stage]
the question of whether Respondent must pay any additional amounts into the benefit
funds to satisfy our “make whole” remedy. These additional amounts may be
determined, depending upon the circumstances of each case, by reference to the
provisions in the documents governing the funds at issue and, where there are no
governing provisions, to evidence of any loss directly attributable to the unlawful
withholding action . . .

5 As the compliance specification reflects, the General Counsel has taken into consideration the
interim employment of discriminatees Angrisani and Baiamonte and their earnings for such employment.
See Florida Tile, supra.
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Here, the 2005 collective-bargaining agreement sets forth Respondents’ obligation to
pay liquidated damages in the event of a default, thus this document “show[s] an agreed upon
method for determining the additional costs to the funds.” The stated purpose of the liquidated
damages provision is to reimburse the Funds for additional costs incurred by virtue of
Respondents’ default. Thus, “it is appropriate that the remedy . . . take that agreement into
consideration.” Ryan Iron Works, supra at 895 (quoting Peerless Roofing Co., Ltd., 247 NLRB
500, 505 (1980), enfd. 641 F.2d 734 (9th Cir. 1981)).
Accordingly, I find that the liquidated damages sought by the compliance specification
are an appropriate part of the make-whole remedy herein.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended6
ORDER
It is hereby ordered that Respondents Metro Demolition Contracting Corp., Phantom
Demolition Corp., Circle Interior Demolition Inc., World Class Demolition Corporation, alter egos,
and their officers, agents, successors and assigns shall pay the individuals named below the
indicated amounts of total gross backpay and other reimbursable sums, with interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), accrued to the date of
payment and minus tax withholdings as required by federal and state law.
Joseph Angrisani $ 32,550.76
Jack Baiamonte $ 63,513.18
Renato Cassara $ 2,272.00
Angel Castro $ 572.50
Dominick Derosa $ 478.00
Dennis Freeman $ 505.00
Stanislaw Jablonski $ 3,984.00
Andrew Kluzinski $ 8,255.00
Francesco Lopis $ 10,645.50
Wieslaw Paliwoda $ 4,611.50
Roberto Pilatasig $ 1,544.00
Michael Puccio $ 14,054.00
Joroslaw Sierzputowfki $ 168.00
Degnis Tello $ 58.00
Francisco Zhagnay $ 132.50
Respondents shall also pay to the below-described Union benefit funds the following sums,
including liquidated damages:7
Private Sanitation Union Local 813 Insurance and Trust Fund: $112, 991.40

6 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 purposes.
7 The compliance specification reflects that the contributions owed on behalf of Angrisani and
Baiamonte to the Funds have been reduced by contributions paid by interim employers.
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Local 813 and Local 1034 Severance and Retirement Trust Fund: $ 27,872.00
Pension Trust Fund Private Sanitation Union Local 813: $ 44,160.80
Liquidated Damages [20 percent of Insurance, Severance
And Pension Liability]: $ 37004.84
Dated, Washington, D.C., November 12, 2009.
____________________
Mindy E. Landow
Administrative Law Judge