Janitorial Environmental Services Co., Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 20, 2007

22-CA-026839 (N.L.R.B. Jul. 20, 2007)

JD(NY)–33–07
Clifton, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
JANITORIAL ENVIRONMENTAL SERVICES CO., INC.,
SUCCESSOR TO A&A MAINTENANCE
and Case No. 22-CA-26839
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 32BJ
Jeffrey P. Gardner, Esq., Newark, New Jersey
for the General Counsel
SUPPLEMENTAL DECISION
MINDY E. LANDOW, Administrative Law Judge. This supplemental proceeding was tried
before me in Newark, New Jersey on April 11, 2007.1 A compliance specification and notice of
hearing was issued on January 31, predicated upon a decision and order of the Board dated
February 21, 2006, directing that Janitorial Environmental Services Co., Inc., successor to A & A
Maintenance, its officers, agents, successors and assigns, herein referred to as Respondent,
take certain affirmative action, including making whole employees Daniel Enriquez, Roberto
Enriquez, Midolia Enriquez, Bettzaira Enriquez,2 Rodolfo Gonzales, Salvador Granados and
Daisy Martinez for their losses resulting from Respondent’s unlawful refusal to hire them in
violation of Section 8(a)(1) and (3) of the Act.3 On July 20, 2006, the Court of Appeals for the
Third Circuit entered its judgment enforcing in full the Board’s order. On March 7, Respondent
filed an answer generally disputing the calculations set forth in the worksheets appended to the
Region’s compliance specification and challenging the wage rate used to determine the gross
backpay amounts, as discussed below. Respondent also raised certain contentions regarding
the reinstatement dates of employees Granados and Gonzales which, after investigation, were
determined to be accurate. Consequently, at the hearing, the General Counsel amended its
compliance specification accordingly.4 On April 6, Counsel for the General Counsel was advised
that neither Respondent nor its counsel of record would be appearing at the hearing in this
matter. Respondent failed to appear at the hearing and thus has failed to present any evidence
in support of the assertions made in its answer. 5

1 All dates are in the year 2007 unless otherwise specified.
2 Bettzaira Enriquez is at times also referred to in the record as Bettzaira Enriquez Rodriguez.
3 The Board adopted the findings and conclusions of the administrative law judge that Respondent
violated Section 8(a)(1) and (3) of the Act by refusing to hire the above-named employees because they
had been represented by Service Employees International Union, Local 32BJ (the Union) and Section
8(a)(1) and (5) of the Act by refusing to recognize and bargain with the Union as the collective-bargaining
representative of employees in an appropriate unit.
4 The amendments resulted in a reduction in the amount of backpay owed to Gonzales but did not
affect the net amount due to Granados.
5 In its answer Respondent further alleged that “upon information and belief, discriminatees may not
be eligible to receive back pay because they are not eligible to work in the United States.”
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The Formula Utilized to Calculate Backpay
The full backpay period in this matter runs from January 3, 2005, when the Respondent
refused to hire the claimants until December 31, 2005, when Respondent ceased its cleaning
contract for the Linens-n-Things corporate offices located in Clifton, New Jersey.6 Regional
Compliance Officer Collette Sarro testified that she interviewed the seven named discriminatees
and computed their backpay. To compute the gross backpay for each quarter, she multiplied the
number of weeks in each calendar quarter by the hours worked by each discriminatee per
week,7 by the regular hourly rates as set forth in the collective bargaining agreement between
the Union and the Respondent which would have been in effect during the relevant time period.8
Thus, Sarro determined the gross backpay due to each discriminatee per quarter.
Sarro then subtracted interim earnings from the quarterly backpay due to each
discriminatee to determine the net backpay.9 The total backpay owed for each discriminatee
was determined by taking the sum of the total net backpay due for each relevant quarter. The
formula utilized by Sarro is consistent with that set forth in the Board’s Compliance Manual.
Analysis and Conclusions
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 (2nd Cir. 1965), cert. denied
384 U.S. 972 (1965). In compliance proceedings, the General Counsel has the burden of
showing only that the gross backpay amounts contained in a backpay specification are
reasonable and not an arbitrary approximation. Performance Friction Corp., 335 NLRB 117
(2001); La Favorita, Inc., 313 NLRB 902 (1994); Minette Mills, 316 NLRB 1009 (1995). Under
the circumstances herein, as outlined above, I find that the General Counsel has met its initial
burden.
Once the General Counsel has met its burden of proof, it then shifts to the Respondent
to adduce evidence to mitigate its liability or establish affirmative defenses. Basin Frozen Foods,
Inc., 320 NLRB 1072, 1074 (1996). Although Respondent, in its answer, “denies the factual
allegations made in [the Region’s] worksheets,” it has presented no evidence in support of this
contention or to establish that the formula employed by the Region is unreasonable or
arbitrary.10

6 The backpay period for Gonzales runs from January 3 to October 15 and the backpay period for
Grandados runs from January 3 to January 21, 2005.
7 The discriminatees worked as office cleaners for four hours per night, five days per week for a total
of 20 hours per week.
8 The underlying record establishes that under the predecessor employer, employees received the
wage rates set forth in this collective-bargaining agreement. The applicable provisions are in evidence
herein. The contractual wage rate was $7.00 per hour from January 1, 2005 through May 31, 2005, and
$7.75 from June 1, 2005 through December 31, 2005.
9 Sarro also determined that one employee, Martinez, was unavailable for work during a portion of
the backpay period, and was accordingly deemed ineligible to receive backpay during that period of time.
10 In its answer, Respondent asserts that gross pay calculations should be based upon the rate that
Respondent paid to its employees, i.e. $6.50 per hour, rather than the contractual wage rate. As the
Board recently held in Planned Building Services, 347 NLRB No. 64 (2006), in a compliance proceeding,
a successor respondent is entitled to present evidence that, had it lawfully bargained with the union, “it
would not have agreed to the monetary provisions of the predecessor employer’s collective-bargaining
agreement, and further establishing either the date on which it would have bargained to agreement and
Continued
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I therefore conclude that Respondent has failed to meet its burden to rebut the General
Counsel’s showing that the gross backpay amounts contained in its compliance specification
are reasonable and not an arbitrary approximation. Performance Friction Corp., supra. 11
Conclusion
On the above findings of fact and conclusions of law, and on the entire record, I issue
the following recommended 12
ORDER
IT IS HEREBY ORDERED that Respondent, Janitorial Environmental Services Co., Inc.,
successor to A & A Maintenance, and its officers, agents, successors and assigns, shall pay the
individuals named below the indicated amounts with interest to be computed in the manner set
forth in F.W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax withholdings required by Federal and state laws.
Daniel Enriquez $3,942.00
Roberto Enriquez 6,514.00
Midolia Enriquez 7,031.00
Bettzaira Enriquez 7,739.00
Rodolfo Gonzales 3,215.00
Salvador Granados 420.00
Daisy Martinez 6,375.00
Dated, Washington, D.C., July 20, 2007.
____________________
Mindy E. Landow
Administrative Law Judge
_________________________
the terms of the agreement that would have been negotiated, or on the date on which it would have
bargained to good-faith impasse and implemented its own monetary proposals.” Id., slip op. at 7. In this
case, the Respondent failed to appear or present such evidence, and accordingly has not met its burden
of proof in this regard. Under such circumstances, and in light of the fact that the Board’s Order in the
underlying case, as enforced by the Third Circuit, requires the Respondent to cease and desist from
unilaterally changing unit employees’ terms and conditions of employment, I find that the Region’s
reliance upon the collective bargaining agreement to establish the wages that they would have earned but
for Respondent’s discrimination against them is proper.
11 As noted above, Respondent further avers that “upon information and belief” the claimants may
not be eligible to receive backpay insofar as they are not eligible to work in the United States.
Respondent has presented no evidence to support this assertion, for which it bears the burden of proof.
Tuv Taam Corp., 340 NLRB 756, 761 (2003) (and cases cited therein). Accordingly, it is rejected.
12 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.