All Service Plumbing & Maintenance, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 2, 2013

15-CA-019433 (N.L.R.B. May. 2, 2013)

JD–33-13
Baton Rouge, LA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ALLSERVICE PLUMBING AND
MAINTENANCE, INC.
and Cases 15-CA-019433
15-CA-019456
15-RC-008819
UNITED ASSOCIATION OF JOURNEYMAN
AND APPRENTICES OF THE PLUMBING
INDUSTRY OF THE UNITED STATES AND
CANADA, LOCAL 198
Zachary E. Herlands and Charles R. Rogers, for the General Counsel.
Thomas R. Peak, Esq., Baton Rouge, LA, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This supplemental proceeding was
tried before me in New Orleans, Louisiana on March 12, 2013 pursuant to a compliance
specification and notice of hearing issued on December 31, 2012. The compliance specification
alleges the amount of backpay due under the terms of the National Labor Relations Board’s
Order (the Board’s Order), dated January 18, 2012, adopting the findings and conclusions set
forth by Administrative Law Judge Robert A. Ringler in his Decision, issued December 1, 2011.
Judge Ringler’s Decision in the above-captioned unfair labor practice proceeding directed
Allservice Plumbing and Maintenance, Inc. (the Company), its officers, agents, successors and
assigns, take certain affirmative action, including offering former employees Brady Barbour,
Doug Diamond, and Michael Grimes reinstatement to their former positions and making them
whole for any loss they may have suffered as a result of the Company’s unlawful layoff in
violation of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). In Barbour’s
case, there was an additional conclusion that Barbour’s layoff violated Section 8(a)(4) of the Act.
With respect to the remedy, Judge Ringler ordered that backpay be computed on a quarterly basis
from the date of the layoffs to the date when offers of reinstatement were made, less any net
interim earnings, as prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
JD-33-13
2
THE COMPLIANCE SPECIFICATION
The compliance specification alleges that the Company has refused to reinstate said 5
employees and provide the backpay due under the terms of the Board’s Order. Accordingly, the
compliance specification alleges, based on the calculations of Debra Warner, Region 15’s
Compliance Officer, that Barbour and Diamond are due accrued backpay since their layoff on
January 22, 2010, and Grimes since his layoff on February 11, 2010. The compliance
specification proposed to measure the gross backpay due the discriminateees based on the hours 10
and earnings of comparable employees (comparators) hired for plumbing work since they were
laid off. After computing gross backpay and interim earnings during the backpay period, net
backpay owed the discriminatees through August 18, 2012 was alleged as follows: Barbour –
$31,775; Diamond – $51,925; Grimes – $23,583. The total backpay alleged, as of August 18,
2012, was $107,283, plus daily compound interest accrued to the date of payment pursuant to the 15
Order.1
In selecting appropriate comparators, Warner relied on payroll records produced by the
Company through August 18, 2012. She relied on seniority to determine applicable journeyman
plumbers who worked subsequent to the layoff dates for Barbour on January 22 and Grimes on 20
February 11. With respect to Diamond, Warner relied on apprentices who worked subsequent to
his layoff on January 22.2 With respect to any backpay period that the Company did not employ
less senior plumbers and/or apprentices than the discriminatees, backpay was tolled until a less
senior plumber or apprentice was hired.3 Relying on Social Security Administration earnings
statements, Warner then discounted gross backpay by the discriminatees’ interim earnings, added 25
applicable expenses, and arrived at the aforementioned net backpay amounts. However, as the
Company has not offered reinstatement to the discriminatees, the backpay period continues and
the backpay amounts owed them continue to increase.4
THE COMPANY’S OBJECTIONS TO THE COMPLIANCE SPECIFICATION30
The Company, in its amended answer to the compliance specification, contends that the
backpay remedies proposed by the General Counsel are flawed because they fail to account for
the Company’s significant downturn in business in early 2010 and thereafter. The Company also
raised specific objections regarding the qualifications and performance of the discriminatees.5 As 35
I noted at trial, Judge Ringler previously concluded that the Company’s operations and employee
complement, as well as the alleged performance and qualifications of the discriminatees, did not

1 The Company presented no alternative to Warner’s application of the comparator method pursuant
to “Section 10540.3 of the NLRB Casehandling Manual Part 3, Compliance Proceedings (Compliance
Manual), Formula Three.”
2 I found Warner’s testimony extremely credible and corroborated by the payroll evidence provided
by the Company. (GC Exh. 2(a) and (i); Tr. 21-24, 153.)
3 GC Exh. 2(i); Tr. 24, 46, 110-111.
4 The Company did not challenge any of the General Counsel’s evidence or calculations relating to
interim earnings and applicable expenses. (GC Exh. 5-9.)
5 R. Exh. 1-5, 24.
JD-33-13
3
justify laying them off in January and February 2012. Whether the same economic circumstances
continued after February 2012 is an issue for determination in this proceeding.6
In his findings regarding the Company’s layoff practices, Judge Ringler acknowledged
the contention of Luke Hall, the Company’s vice president and general manager, that the 5
Company generally follows a policy of “[laying] off its workers, in accordance with a ‘last hired,
first released’ system,” but “that this system does not always work, and that he also considers the
ratio of helpers, laborers, apprentices, and plumbers needed for upcoming projects.”7 With
respect to Hall’s contention that the discriminatees were laid off because he was employing too
many workers and the Company was not being awarded bids at that time, however, Judge 10
Ringler found that the stated reasons were contrary to the credible evidence, pretextual and
unlawful.8
The Company contends that it is a much smaller business operation now than it was in
January and February 2010 when the discriminatees were laid off. The employee roster as of 15
January 11, 2010 consisted of 17 employees, including Barbour, Diamond and Grimes.9 A
review of the payroll records reveals that the Company’s workforce thereafter did, indeed,
fluctuate after that time. For purposes of determining a make-whole remedy, however, Luke
Hall’s lack of credibility in the unfair labor practice proceeding, as well as the current
proceeding, warrants continued reliance on seniority-based hiring, that is, the last-hired, first 20
released system, without exception for alleged qualifications and performance issues that Hall
never addressed prior to February 2012.10
In addition to its substantive objections, the Company also contests the Board’s
jurisdiction in this proceeding. Relying on the Court of Appeals’ recent decision in Noel Canning 25
v. NLRB, 705 F.3d 490, 507 (DC Cir. 2013) ruling that the Board currently lacks a quorum of
three members, the Company contends in its post-hearing brief that the Board’s January 18, 2012
Order is invalid, must be vacated and cannot be enforced. In addition to the fact that it failed to
amend its answer to plead such a defense, the Company’s argument lacks merit. Board judges
are bound to apply established Board precedent which neither the Board nor the Supreme Court 30
has reversed, notwithstanding contrary decisions by courts of appeals. See, e.g., Waco, Inc., 273
NLRB 746, 749 fn. 14 (1984); Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979),
enfd. 640 F.2d 1017 (9th Cir. 1981 and Iowa Beef Packers, 144 NLRB 615, 616 (1963, enfd. in
part 331 F.2d 176 (8th Cir. 1964). Most recently, in G4S Regulated Security Solutions, 359
NLRB No. 101, slip op. at 1, fn. 1 (2013), the Board rejected this argument on the ground that 35
the “decision conflicts with the decisions of at least three other courts of appeals” (citations

6 I used February as a benchmark because that is the month when Grimes, the last of the three
discriminatees, was laid off.
7 GC Exh. 2(a) at 11.
8 GC Exh. 2(a) at 19-23
9 Joint Exh. 1.
10 Just as Judge Ringler did, I also found Hall to be a less than credible witness. In this particular
proceeding, his credibility was diminished significantly by his partial compliance with the General
Counsel’s subpoena duces tecum, coupled with his disavowal of payroll records that he did produce. As
such, I did not credit any of his testimony that sought to inject variable considerations into the seniority
system.
JD-33-13
4
omitted) and this issue “remains in litigation, and pending a definitive resolution, the Board is
charged to fulfill its responsibilities under the Act.” (citation omitted).

BRADY BARBOUR
5
Barbour’s backpay period started when he was laid off on January 22, 2010. Gross
backpay was determined by relying on the earnings of the following journeyman plumbers as
follows: Brian Hernandez for the period of January 25 to June 6, 2010, except for the week
ending March 27, 2010, when Lawrence Vince is used as the comparator; Raymond Machuca for
the period of June 7 to August 1, 2010; Detric Jackson for the period of August 2, 2010 to 10
August 13, 2011,11 except the week ending July 2, 2011, when Vincent Foulcard was used as the
comparator; Vincent Foulcard for the period of August 14 to October 22, 2011; and Claude
Norris for the period of October 23, 2011 to August 18, 2012. In addition, the amounts were
adjusted for annual increases to salary as reflected by the salaries of comparable employees
throughout the backpay period.12 Barbour’s gross backpay was not tolled throughout the backpay 15
period because the Company continued to employ plumbers with less seniority than Barbour.13As
a result, after discounting Barbour’s gross backpay by his interim earnings, and after adding
expenses, his net backpay totals $31,775 as of August 18, 2012.
DOUG DIAMOND
20
Diamond’s backpay period started when he was laid off on January 22, 2010. Gross
backpay was determined by relying on the earnings of the following apprentice plumbers as
follows: Ricky Pourciau for the period of January 30 to October 9, 2010, except the week ending
May 17, 2010 when S. Graves used was used as the comparator; Claude Norris II for the period
of October 11, 2010 to October 15, 2011; and Howard Hall for the period of October, 16, 2011 to 25
August 18, 2012.14 In addition, the amounts were adjusted for annual increases to salary as
reflected by the salaries of comparable employees throughout the backpay period. Diamond’s
gross backpay was not tolled throughout the backpay period because the Company continued to
employ apprentices with less seniority than Diamond.15 As a result, after discounting Diamond’s
gross backpay by interim earnings, and after adding applicable expenses, his net backpay totals 30
$51,925 as of August 18, 2012.16

11 The Company objected to the use of Jackson as a comparator for Barbour and Grimes because he
had seniority over both. However, Warner credibly relied on Jackson because he was rehired on June 28,
2010 after being separated from the Company for nearly a year. (Tr. 42, 103.) In the absence of reliable
evidence of a Company practice to the contrary, I find that Grimes and Barbour would have had seniority
over Jackson.
12 GC Exh. 2(a) and (i); Tr. 25-41.
13 GC Exh. 2(i), Appendix 1.
14 The Company objected to the use of Howard Hall as a comparator because, with an initial hire date
of March 5, 2007, he was more senior to Diamond; Howard Hall was hired on March 5, 2007, while
Diamond began working on July 13, 2009. (R. Exh. 24 at 8.) That objection is unfounded, however, as
Warner credibly explained that Howard Hall worked as a laborer from March 2007 until he was
promoted to apprentice after Diamond was laid off. (Tr. 113-114.) The initial payroll records provided
by the Company, upon which the compliance specification was based, confirms Howard Hal’s promotion
to apprentice on January 2, 2011. (GC 2(i), Appendix 1 at 20.)
15 GC Exh. 2(a) and (i), Appendix 1; Tr. 50-58, 122-123.
16 Diamond’s net backpay is subject to a significant reduction in the event that pending requests for
JD-33-13
5
MICHAEL GRIMES
Grimes’s backpay period started when he was laid off on February 11, 2010. Gross
backpay was determined by relying on the earnings of the following journeyman plumbers as 5
follows: Detrick T. Jackson for the period of June 28 to July 31, 2010; Vincent Foulcard for the
period of August 2, 2010 to August 13, 2011, except for the week ending July 2, 2011; Jervier
Maxwell for the period of March 4 to May 5, 2012;17 Vincent Foulcard for the period of July 15
to August 18, 2012. In addition, the amounts were adjusted for annual increases to salary as
reflected by the salaries of comparable employees throughout the backpay period. Grimes’ gross 10
backpay was tolled for four separate periods during which the Company did not employ any
plumbers with less seniority: February 11 to June 28, 2010, the week of June 26, 2011, August
13, 2011 to March 4, 2012, and May 5 to July 15, 2012. As a result, after discounting Grimes
gross backpay by his interim earnings, and after adding expenses, his net backpay totals $23,583
as of August 18, 2012.1815
LEGAL ANALYSIS
In compliance proceedings, the Board seeks to place the discriminatees, as nearly as
possible, in the same financial position they would have enjoyed but for the illegal
discrimination. Phelps-Dodge Corp. v. NLRB, 313 NLRB 177, 194 (1941). A backpay award, 20
because of the wrongful conduct necessitating its calculation, almost always involves some
ambiguity and estimation, and therefore, is meant to be a reasonable approximation. Cobb
Mechanical Contractors, 333 NLRB 1168 (2001). In seeking to objectively reconstruct backpay
amounts as accurately as possible the General Counsel may properly adopt elements from the
suggested formulas of the parties. Performance Fiction Corporation, 335 NLRB 1117 (2001), 25
citing Hill Transportation Co., 102 NLRB 1015, 1020 (1953).
The Region has the burden of establishing gross backpay. Minette Mills, Inc., 316 NLRB
1009, 1010-1011 (1995). However, forecasting the future business climate and employee
complement of a Company is often difficult, if not an impossible endeavor. Accordingly, the 30
General Counsel is allowed a wide discretion in picking a formula.” See Moran Printing, 330
NLRB 376 at 376-377 (1999). The standard merely requires that the gross backpay amounts
contained in a backpay specification be reasonable and not arbitrary approximations. Bagel
Bakers Council of Greater New York v. NLRB, 555 F.2d 304, 305 (2d Cir. 1977); Performance
Friction Corp., 335 NLRB 1117 (2001); Hacienda Hotel and Casino, 279 NLRB 601, 603 35
(1986); Virginia Electric Co. v. NLRB, 219 U.S. 532, 544 (1984).
Once the General Counsel has introduced the gross pay due to each discriminatee, the
burden shifts to the respondent to establish affirmative defenses that would eliminate or

Social Security Administration earnings statements justify such a revision. (GC Exh. 2(i), Appendix 3;
GC Exh. 7; Tr. 79, 283.)
17 The Company objected to the use of Maxwell as a comparator because it alleged that he was only a
weekend employee. That objection lacks merit. Warner credibly testified that she used Maxwell as a
comparator because he was listed as a plumber and had less seniority because March 4, 2012 is the first
time he showed up on the payroll records provided by the Company. (Tr. Tr. 47, 112, 122.)
18 GC Exh. 2(i), Appendix 1 and 4; GC Exh. 5-6; Tr. 42-49.
JD-33-13
6
otherwise reduce its backpay liability. Church Homes, 349 NLRB 829, 838 (2007); Centra, 314
NLRB 814, 819-820 (1994); Florida Tile Co.,310 NLRB 609 (1993); Hacienda Hotel and
Casino, supra at 603. Any uncertainties in the amount of backpay due are resolved in favor of the
discriminatees and against the respondent. Alaska Pulp Corp., 326 NLRB 522, 523 (1998);
Minette Mills, Inc., supra at 1010-1011; United Aircraft Corp., 204 NLRB 1068 (1973). 5
The General Counsel has met its burden of proof with the submission of a reasonable
compliance specification specifying the amounts of backpay for each discriminatee. The method
of calculating backpay utilized by the Region’s compliance officer is a reasonable approach to
the Company’s fluctuating business and is based on the Company’s payroll records and Social 10
Security Administration earnings statements. The Company did not challenge either the method
used to compute gross backpay or interim earnings used in arriving at net backpay owed each
discriminatee.
Notwithstanding the General Counsel’s proof, the Company contends that its backpay 15
liability is tolled because the discriminatees would have been laid off for lawful reasons during
future periods. See Comar, Inc., 349 NLRB 342, 361 (2007); Weldun International, Inc., 340
NLRB 666, 674 (2003). In his decision, however, Judge Ringler concluded that the Company’s
operations and employee complement were pretextual for its laying off the discriminatees in
January and February. As such, Judge Ringler’s decision, as the law of the case, negates any 20
argument regarding the Company’s operations and employee complement prior to and including
February 2012. For that reason, I precluded its attempts to relitigate that issue. Transp. Serv. Co.,
314 NLRB 458, 459 (1994); Sumco Mfg. Co., 267 NLRB 253, 254 fn. 2 (1983).
Regarding the backpay period since March 2012, the payroll records demonstrate that, 25
except for the four tolled periods applicable to Grimes’ backpay, the Company has continued to
employ plumbers and apprentices with less seniority that the discriminatees. The Company failed
to meet its burden for tolling backpay since it presented no alternative calculations or
comparators. Flaum Appetizing Corp., 357 NLRB No. 162, slip op. at 2 (2011); South Coast
Refuse Corp., 337 NLRB 841 (2002). It did, however, challenge the use of several comparators, 30
which I determined to be unfounded.19 Under the circumstances, Warner reasonably relied on
comparators for the backpay period calculations. John T. Jones Construction Co., Inc., 352
NLRB 1063, 1068 (2008); Kan. Refined Helium Co., 252 NLRB 1156, 1157 (1980).
CONCLUSION35
The General Counsel met his burden of showing the amount of gross backpay due to
Barbour, Diamond and Grimes. Moreover, after deducting interim earnings during the backpay
period, the General established their net backpay. The Company did not meet its burden of
establishing any affirmative defenses to mitigate its liability. Accordingly, I accept the backpay 40
specification in all respects, and conclude that Barbour, Diamond and Grimes are entitled to the
full amount of net backpay calculated by the Region.

19 See footnotes 11, 14 and 17.
JD-33-13
7
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended20
ORDER
5
It is hereby ordered that the Respondent, Allservice Plumbing and Maintenance, Inc.,
New Orleans, Louisiana, its officers, agents, successors, and assigns, shall pay Brady Barbour
the sum of $31,775, Doug Diamond the sum of $51,925, and Michael Grimes the sum of
$23,583, for a total amount of backpay of $107,283,21 together with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky 10
River Medical Center, 356 NLRB No. 8 (2010), enf. denied on other grounds, Jackson Hospital
Corp. v. NLRB, 647 NLRB F.3d 1137 (D.C. Cir. 2011) accrued to the date of payment and minus
tax withholding required by Federal and State laws.
The Company shall file a report with the Social Security Administration allocating 15
backpay to the appropriate calendar quarters. The Company shall also compensate the
discriminatees for the adverse tax consequences, if any, of receiving one or more lump-sum
backpay awards covering periods longer than 1 year. Latino Express, 359 NLRB No. 44 (2012).
Dated, Washington, D.C. May 2, 201320
________________________________
Michael A. Rosas
Administrative Law Judge25

20 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.
21 As noted above, this amount only covers net backpay through August 18, 2012 but continues to
accrue until valid offers of reinstatement are made.