281 N.L.R.B. 584 (N.L.R.B. 1986)

Ace Electric Construction Corp., Advance Electric Of New York, Inc., Ace Electric Of New York, Inc., And Worldwide Electric Construction Corp.

National Labor Relations Board - Board DecisionsSep 29, 1986

281 N.L.R.B. 584 (N.L.R.B. 1986)

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ace Electric Construction Corporation , Advance Electric of New York, Inc., Ace Electric of New York, Inc., Worldwide Electric Construction Corporation, and James A. Carfora , individually and as an alter ego of Ace Electric Construction Corporation, Advance Electric of New York, Inc., Ace Electric of New York , Inc., and Worldwide Electric Construction Corporation and Ronald Giambrone and David Khoury and Gerry Illiano and Miguel Rodriguez and Frank LaRosa. Cases 2-CA-17448, 2-CA-17449, 2- CA-17450, 2-CA-17451, and 2-CA-17452 29 September 1986 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND STEPHENS On 31 January 1985 Administrative Law Judge Howard Edelman issued the attached supplemental decision 1 setting forth the backpay he found due pursuant to an unpublished 1981 Order and Direc- tion in this proceeding .2 The Respondents filed ex- ceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, 3 findings,4 ' On 7 March 1985 the judge issued an erratum correcting an error in fn. 4 of his decision . The judge, however, inadvertently omitted reference to Case 2-CA-17452 in the erratum's caption. We correct this error Y The Board on 25 September 1981 adopted Administrative Law Judge Raymond P . Green's 20 August 1981 decision and recommended Order in this proceeding , and his 17 September 1981 erratum . No exceptions had been filed to Judge Green 's decision. On 23 March 1982 the United States Court of Appeals for the Second Circuit enforced the Board's Order in an unpublished decision. a The Respondents except to the judge 's failure to note in his decision that the Respondents filed a posthearing motion to continue the hearing "so that [a] substantial discrepancy in the testimony of the witness [discri- minatee Gerry] Illiano can be corrected ." The Respondents proffered ad- ditional documentary evidence in support of their motion, but did not contend the evidence was newly discovered or that the Respondents could otherwise adequately explain why they did not present the evi- dence at the hearing . Also, the Respondents ' motion actually sought to "correct[]" the figure given for Illiano 's gross backpay in the backpay specification, not Bhano 's testimony . The Respondents claimed the speci- fication should have been based on Illiano 's having earned $6 25 per hour in July 1980 , not $6 .50, and on Illiano 's having worked less than 55 hours per week . The Respondents , however, had withdrawn their answers to the specification in relevant part in a stipulation they entered with the General Counsel . On 30 July 1984 the judge issued an Order denying the Respondents' motion . We affirm the judge 's ruling. 4 The Respondents except to the judge's determination of discnmmatee Gerry Illiano's gross backpay. The Respondents contend the judge erred in basing Bliano's backpay determination on 55 -hour weeks , rather than 40-hour weeks , and by assuming that Illiano would have received a 25- cent-per-hour wage increase each yearly quarter The judge based his de- termination on the General Counsel 's backpay specification As discussed above, the Respondents withdrew their answers to the specification in relevant part in a stipulation they entered with the General Counsel Ac- cordingly , we adopt the judge's determination. and conclusions and to adopt the recommended Order as modified. r, ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Ace Electric Construction Corporation, Advance Electric of New York, Inc., Ace Electric of New York, Inc., Worldwide Electric Construc- tion Corporation, and James A. Carfora, individ- ually and as an alter ego of Ace Electric Construc- tion Corporation, Advance Electric of New York, Inc., Ace Electric of New York, Inc., and World- wide Electric Construction Corporation, New York, New York, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for the second para- graph of the judge's recommended Order: The Respondents shall pay to the Regional Director for Region 2 the net backpay found due employees David Khoury, Jose Gonzales, Robert Brinkman, and Frank LaRosa. The Re- gional Director shall place this backpay in escrow for a period not exceeding 1 year from the date of this Decision and Order to afford the General Counsel an opportunity to locate and examine these employees as to their inter- im earnings . Should the Regional Director de- termine that deductions are warranted, the amount so deducted shall be returned to the Respondents and the remainder paid to the employees. In the event the General Counsel at the end of the 1-year escrow period has failed to locate any of the employees, the awards for the employees not located shall lapse and the full net backpay for those em- ployees shall be returned to the Respondents. S We shall modify the judge 's recommended Order pursuant to our de- cision in Starlite Cutting, 280 NLRB 1071 (1986) Accordingly, the back- pay awards to unavailable discruninatees David Khoury, Jose Gonzales, Robert Brinkman, and Frank LaRosa shall lapse at the end of the 1-year escrow period that the Order establishes in the event the General Coun- sel has failed to locate the discrimmatees by that time Member Stephens recognizes that under the Board 's recently an- nounced policy in Starlite Cutting, the foregoing modification of the judge 's recommended Order is warranted . However , were his concurring and dissenting opinion in Starlite the prevailing view, the awards would not lapse at the end of the escrow period. Further, the Regional Director would be permitted to apply to the Board for a 1 -year extension of the escrow period and would impose upon the Respondents the burden to establish a justification for the extinction of backpay liability to the discn- minatees or a reduction in the amount owed Sandra Grossfeld, Esq., for the General Counsel. H. Elliot Wales, Esq., for the Respondent. 281 NLRB No. 94 ACE ELECTRIC CONSTRUCTION 585 SUPPLEMENTAL DECISION STATEMENT OF THE CASE HOWARD EDELMAN , Administrative Law Judge. This case was tried before me on July 2 and 3, 1984, in New York, New York. On September 25, 1981 , the National Labor Relations Board issued an Order and Direction directing Respond- ents Ace Electric Construction Corporation, Advance Electric of New York, Inc., Ace Electric of New York, Inc., Worldwide Electric Construction Corporation, and James A. Carfora, individually and as an alter ego of Ace Electrical Construction Corporation, Advance Elec- tric of New York, Inc., Ace Electric of New York, Inc., and Worldwide Electric Construction Corporation (the Respondents) to reinstate employee discriminatees Gerry Illiano, David Khoury , Miguel Rodriguez, Ronald Giam- brone, and Jose (Gonzales)' and to make whole the above-named discriminatees and Robert Brinkman and Frank LaRosa2 for their losses resulting from unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. On March 23 , 1982, the United States Court of Ap- peals for the Second Circuit entered a judgment enforc- ing in full the reinstatement and backpay provisions of the Board's Order. On March 9 , 1983 , a controversy having arisen over the amount of backpay due the above-named employee discriminatees under the Board's Order as enforced, the Regional Director for Region 2 issued the instant backpay specification and notice of hearing. On July 2, 1984, at the beginning of the instant hear- ing, the General Counsel moved to amend the backpay specification to delete from the specification the allega- tion that Ace Electric Power Corp . is a successor and alter ego of the Respondents, 3 and to delete the refer- ence to Ace Electric Power Corp. as such in the caption of the specification . The motion was granted without ob- jection by the Respondents ' counsel. A brief was submitted by the General Counsel. On consideration of the entire record, the above brief, and the demeanor of the witnesses I make the following FINDINGS OF FACT 1. NET BACKPAY OF MIGUEL RODRIGUEZ AND RONALD GIAMBRONE During the course of the hearing the Respondents stip- ulated the net backpay at the time of the hearing to be $2115 for Rodriguez and $364 for Giambrone. U. THE BACKPAY LIABILITY OF THE RESPONDENTS AS TO DISCRIMINATEES GIAMBRONE, KHOURY, GONZALES , AND RODRIGUEZ The specification sets forth backpay figures for the above-named discriminatees for the period of August 5, 1980, through December 31, 1982 . The amended specifi- cation sets forth backpay figures for Khoury and Gon- zales from January 1, 1983 , to June 30, 1984. The Re- spondents' counsel by a written stipulation withdrew their answer and amended answer with the exception that it was stipulated and agreed by the parties on the record that the only issue to be litigated was the interim earnings of the discriminatees. Accordingly, I conclude that paragraph I of the speci- fication which sets forth that the backpay periods of Giambrone, Khoury, Gonzales, and Rodriguez com- mence on August 5, 1980, to the date of the hearing and in futuro until the Respondents make a valid offer of re- instatement, is admitted . In this connection the Respond- ents did not introduce evidence of any offer of reinstate- ment to the above-named discriminatees. As noted above Brinkman and LaRosa were previously reinstated . There- fore their backpay period is from August 5 to 30, 1980, the date of their reinstatement. I further conclude that the measure of gross backpay, paragraph II of the specification, which is calculated on a projection of the discriminatees ' weekly salary and based on a 25-cent-per-hour increase per quarter is ad- mitted. With respect to discriminatees Giambrone and Rodri- guez, the Respondents stipulated that the total net back- pay due them at the time of the hearing was $364 and $2115 plus interest respectively . Accordingly, I conclude that the net backpay due Giambrone at the time of the hearing is $364, backpay to continue in futuro until a valid offer of reinstatement be made to him. I also con- clude that the net backpay due Rodriguez is $2115, back- pay to continue until a valid offer of reinstatement is made to him.4 Discriminatees LaRosa , Khoury, Brinkman, and Gon- zales did not appear at the hearing although the General Counsel asserts she issued subpoenas to all of them but Gonzales, whose address was unknown . It does not appear that the Respondents ' counsel made any attempt to subpoena the above-named discriminatees . The Re- spondents contend that the above-named discriminatees should not receive any backpay or, in the alternative, the proceedings be severed until such time as they appear. The Board has consistently held that the burden falls on the respondent to establish facts which will mitigate its backpay liability . Included in this burden is the respond- ent's responsibility to subpoena those discriminatees whose backpay it disputes and wishes to litigate. Woon- socket Health Centre, 263 NLRB 1367 (1982); Brown & Root, 132 NLRB 486 , 497-498 ( 1961). Therefore, consistent with Board policy , I shall award the above-named discriminatees the amount of backpay set forth in the specification,5 and shall order the Re- spondents to pay such amounts to the Regional Director for Region 2, to be held in escrow for a period not ex- ceeding 1 year from the date of this decision. In the event any or all the above-named discriminatees appear ' At the time the above decision issued, Jose Gonzales ' last name was unknown. 2 Brinkman and LaRosa were discharged on August 4, 1980, and rein- stated by the Respondents on August 30, 1980. 3 Par . VI(C) of the specification. 4 Rodriguez and Brinkman were present at the hearing although their presence is not indicated in the record. 5 As to all of the above-named discriminatees, the net backpay set forth in the specification equals the gross backpay. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to collect this backpay, the Respondents will be offered an opportunity by the Regional Director to produce evi- dence and/or examine such discriminatees concerning their interim earnings , Woonsocket Health Centre, supra. As set forth in the specification, the backpay to be held in escrow by the Regional Director is set forth below: LaRosa $ 1,102 Khoury6 52,258 Brinkman 646 Gonzales 44,800 and the first two quarters of 1984 , Miano testified his travel expenses were $25 per week or $325 per quarter. The following sets forth a computation of Illiano 's gross backpay, his interim earnings , and net backpay. Computation of Gross Backpay for Gerry IllianoBased on His Projected Earnings Gross Backpay Period Back- pay III. BACKPAY-GERRY ILLIANO As set forth above, the Respondents withdrew their answer and amended answer with the exception that the issue of interim earnings of the discriminatees could be litigated . During the course of this hearing , the Respond- ents thereafter attempted to challenge the gross backpay of Illiano by the introduction of a paycheck to Illiano dated August 5, 1980, which sets forth a pay rate of $6.25 per hour . The specification and amended specifica- tion set forth a pay rate beginning August 6 of $6.50 per hour . It is the Respondents ' contention that the $6.50- per-hour pay rate set forth in the specification should in- stead be $6 .25 per hour and that each quarterly pay rate thereafter be reduced by 25 cents . An examination of the Respondents ' answer and amended answer did not raise this alleged error in connection with Illiano 's August 5, 1980 pay rate and therefore he cannot do so now. Mi- chael M. Schaefer, 261 NLRB 272, 274 (1982). Moreover, when the Respondents withdrew their answers, the alle- gations set forth in the specification were in fact admit- ted and cannot now be litigated . Summerfield Industries, 240 NLRB 180 (1979). In any event , I find the Respond- ents' evidence inconclusive . Accordingly, I conclude that Illiano's gross backpay is as set forth in the specification and amendment thereto. At the hearing , the Respondents stipulated to the gross interim earnings as set forth in the specification and amended specification . The Respondents contest Illiano's travel expenses set forth in these specifications . It is this limited issue that was litigated during the course of the hearing. Illiano credibly testified without contradiction that during his employ with the Respondents he incurred no travel expense as his apartment was located directly over the Respondents ' facility. Therefore , any travel expenses incurred during his interim employment would be de- ducted from his interim earnings . Aircraft & Helicopter Leasing & Sales, 227 NLRB 644 (1976). Illiano further credibly and without contradiction testi- fied that for the third quarter of 1980 through August 31, 1981, he incurred travel expenses of $15 per week or $195 per quarter . For the period October 1 to December 31, 1981 , his average travel expense was $25 per week or $325 per quarter . For the entire year 1982 and for the first three quarters of 1983 , Illiano's interim earnings ex- ceeded his gross backpay . For the fourth quarter of 1983 6 The amounts set forth opposite discnminatees Khoury and Gonzales reflect the backpay period from August 5, 1980 , to June 30, 1984, as set forth in the specification and amended specification 1980 3d Q (8/6-9/30) (8wks. x 55 hrs . x $6.50) ....................... $2860 4th Q (13 wks . x 55 hrs. x $6.75) ..................................... 4826 1981 1st Q (13 wks . x 55 hrs . x 7.00) ....................................... 5005 2d Q (13 wks. x 55 hrs . x 7.25) ........................................ 5184 3d Q (13 wks . x 55 hrs. x 7.50) ........................................ 5363 4th Q (13 wks . x 55 hrs . x 7.75) ....................................... 5541 1982 1st Q (13 wks . x 55 hrs . x 8.00) ....................................... 5720 2d Q (13 wks . x 55 hrs. x 8.25) ........................................ 5899 3dQ(13wks . x55firs . x8.50) ........................................ 6078 4th Q (13 wks . x 55 hrs. x 8.75) ....................................... 6256 1983 1st Q (13 wks . x 55 hrs . x 9.00) ....................................... 6435 2d Q (13 wks . x 55 hrs . x 9.25) ........................................ 6614 3d Q (13 wks . x 55 hrs. x 9.50) ........................................ 6792 4th Q (13 wks . x 55 hrs. x 9.75) ....................................... 6971 1984 1st Q (13 wks . x 55 hrs . x 10.00) ...................................... 7150 2d Q (13 wks. x 55 hrs . x 10.25) ...................................... 7328 Computation of Interim Earnings for Gerry Illiano Period Interim Employer 1980 3d Q (8/6-9/30)... Turner (9/1-9/30) (6.75/hr x hrs.) ............... $967 Less travel expenses ...................................... -60 Net Earnings .................................................. 907 4th Q........... Turner (10/1-12/24X6.75/hr x hrs.)............ 3273 Remark (12/26-12/31) (6.75/hr x hrs.) ....... -128 3393 Less travel expenses ...................................... -195 Net Earnings .................................................. 3198 1981 1st Q ............ Remark ........................................................... 3247 Less travel expenses ...................................... - 195 Net Earnings .................................................. 3052 2dQ ............ Remark ........................................................... $3174 Less travel expenses ...................................... -195 Net Earnings .................................................. 2979 3dQ ............ Remark ........................................................... 4910 Less travel expenses ...................................... -285 Net Earnings .................................................. 4624 4th Q ........... Exceeded Gross Backpay ............................. 0 ACE ELECTRIC CONSTRUCTION 587 Computation of Interim Earnings for Gerry Illiano-Continued Period Interim Employer 1982 Interim earnings exceeded gross backpay for each quarter in 1982. 1983 Interim earnings exceeded gross backpay for quarters 1-3 in 1983. 4th Q ........... Remark ........................................................... 6894 Less travel expenses ...................................... -325 Net Earnings .................................................. 6569 1st Q............ Remark ........................................................... 7159 Less travel expenses ...................................... -325 Net Earnings .................................................. 6834 2d Q ............ Remark ........................................................... 7357 Less travel expenses ...................................... -325 Net Earnings .................................................. 7032 Computation of Net Backpay for Gerry Illiano Period GroseBackpay Interim Earnings Net- Backpay 1980 3d Q ......................................... $2860 $907 $1954 4th Q ........................................ 4826 3198 1628 1981 1st Q ......................................... 5005 3052 1953 2d Q ......................................... 5184 2979 2205 3d Q ......................................... 5363 4625 738 4thQ ....................................... - - - 1982 1st Q........................................ - - - 2dQ ........................................ - - - 3dQ ......................................... - - - 4th Q ........................................ 6971 6569 402 1983 1st Q ......................................... 7150 6834 316 2d Q ......................................... 7328 7032 296 Total Net Backpay.......... $9491 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondents, Ace Electric Construction Corpora- tion, Advance Electric of New York, Inc., Ace Electric 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 pur- of New York, Inc., Worldwide Electric Construction Corporation, and James A. Carfora, individually and as an alter ego of Ace Electric Construction Corporation, Advance Electric of New York, Inc., Ace Electric of New York, Inc. and Worldwide Electric Construction Corporation, their officers, agents, successors, and as- signs, shall pay to the employees involved in the pro- ceeding the sums set opposite their names, together with interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977), less any tax withholdings as are required by Federal and state laws. The amounts ordered to be paid the several discriminatees, subject to the foregoing deductions, are as follows: Miguel Rodriguez Ronald Giambrone David Khoury Jose Gonzales Gerry Illiano Robert Brinkman Frank LaRosa $2,115 and in futuro until a valid offer is made to him by the Respondents. $364 and in futuro until a valid offer is made to him by the Respondents. $52,258 and in futuro until a valid offer is made to him by the Respondents. $44,800 and in futuro until a valid offer is made to him by the Respondents. $9491 and in futuro until a valid offer is made to him by the Respondents. $646 $1102 The backpay due discriminatees Khoury, Gonzales, Brinkman, and LaRosa shall be paid to the Regional Di- rector for Region 2 and will be held in escrow for a period not exceeding 1 year from the date of this deci- sion. In the event any or all the above-named discrimina- tees appear to collect this backpay, the Respondent will be offered an opportunity by the Regional Director to produce evidence and/or examine such discriminatees concerning their interim earnings. In connection with discriminatees Rodriguez, Giam- brone, Khoury, Gonzales, and Illiano, their backpay will continue from July 1, 1984, until the date that a valid offer of reinstatement has been made to the discrimina- tee. In this regard , the Respondents shall be ordered to present evidence to the Regional Director for Region 2 that such valid offer of reinstatement has been made. Ad- ditional backpay owing by the Respondents shall be computed pursuant to the same formulas set forth in the instant specification . The Regional Director will provide the Respondents an opportunity to produce evidence and/or to examine such discriminatees concerning their interim earnings for this period.