Mid-Atlantic Restaurant Group LLC d/b/a Kelly's Taproom

National Labor Relations Board - Administrative Judge Opinions

Dec 20, 2018

04-CA-162385 (N.L.R.B. Dec. 20, 2018)

JD–82–18
Philadelphia, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MID-ATLANTIC RESTAURANT
GROUP LLC d/b/a/ KELLY’S TAPROOM
Respondent
and Case 4–CA–162385

ROBIN C. HELMS
Charging Party
Mark Kaltenbach, Esq.
for the General Counsel.
Nathan Schadler, Esq.,
for Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This is a compliance case
that deals with the amounts due to the Charging Party as a remedy for her unlawful
discharge by Respondent on April 30, 2015. The underlying Board case is reported at
364 NLRB No. 153 (2016), and it was enforced by the United States Court of Appeals
for the Third Circuit at 722 Fed.Appx. 288. The General Counsel issued a compliance
specification on June 28, 2018, setting forth the amounts due the Charging Party from
the date of her discharge until March 2, 2018, when she failed to respond to an offer of
reinstatement. Respondent filed an answer contesting, in part, the amounts in the
specification. A trial was held on the outstanding issues on November 15, 2018. After
the trial, the General Counsel and the Respondent filed briefs, which I have read and
considered.1
Based on the briefs of the parties and the entire record, including the testimony
of the witnesses and my observation of their demeanor, I make the following findings of
fact and conclusions of law.

1 After the hearing, the General Counsel moved to correct the transcript as follows: The word
Kaltenbach be replaced with the word Schadler at page 11, lines 2, 5, 7 and 15; page 12, lines 2, 4, 9, 13
and 15; and page 13, line 1. Also the word Schadler be replaced by the word Kaltenbach at page 12, lines
8, 12 and 14. There was no opposition to the motion and the motion is granted.
JD–82–18
2
Background
Charging Party Robin Helms (hereafter, Helms) was hired by Respondent as a
part-time bartender at Kelly’s Taproom in March 2014. She worked there until her 5
discharge on April 30, 2015. She was discharged for complaining on behalf of herself
and other employees about the scheduling of employees. The more lucrative shifts at
Kelly’s were those starting at 5 pm on Thursdays, Fridays and Saturdays because these
were the shifts that, due to their volume, elicited the most tips, the major part of a
bartender’s earnings. Helms, who worked mostly on those shifts, and her supporters10
were concerned that new hires might be assigned the more lucrative shifts at the
expense of the more senior bartenders. After considering all of the evidence in the
underlying case mentioned above, the Board found that Helms was unlawfully
discharged. The details of the discharge and the events leading up to it are set forth in
the decision of Administrative Law Judge Mark Carissimi, which was essentially15
adopted by the Board in the underlying case. Judge Carissimi credited Helms’s
testimony in that case and rejected Respondent’s alleged reasons for her discharge as
pretexts.
The compliance specification contains the following breakdown of net backpay20
due Helms, to which must be added excess tax liability and interest:
Exhibit 2 (Robin Helms' Backpay Calculations)
Quarter/Year Weeks Weekly Pay Eamings
Swig Event &
Staffing
Coordination,
LLC
Guadagnini
Newtown, Inc. Net Backpay
2nd/2015 8.67 $338.04 $2,930.81 $2,930.81
3rd/2015 13 $338.04 $4,394.52 $4,394.52
4th/2015 13 $338.04 $4,394.52 $1,658.00 $2,736.52
lst/2016 13 $338.04 $4,394.52 $190.00 $4,204.52
2nd/2016 13 $338.04 $4,394.52 $3,545.63 $848.89
3rd/2016 13 $338.04 $4,394.52 $1,435.00 $2,959.52
lst/2017 13 $338.04 $4,394.52 $4,299.07 $95.45
2nd/2017 13 $338.04 $4,394.52 $4,039.85 $354.67
3rd/2017 13 $338.04 $4,394.52 $2,406.72 $1,987.80
4th/2017 13 $338.04 $4,394.52 $2,708.77 $1,685.75
lst/2018 9 $338.04 $3,042.36 $1,907.38 $1,134.98
Totai $23,333.43
JD–82–18
3
Evidence in the Compliance Hearing
At the compliance hearing, the General Counsel offered the testimony of Helms,
together with documents setting forth some of her applications for employment. Helms 5
testified that, when she worked for Respondent at Kelly’s Taproom, she mainly worked
as a part-time bartender on Thursday, Friday and Saturday nights, until she left Kelly’s
at about 2 am the next morning. She worked these shifts on a regular basis because
she had two very young children and she had childcare availability at those times. She
did occasionally work other shifts when asked to do so and if she could arrange child 10
care for those other shifts. Kelly’s Taproom, a pub-style bar-restaurant, is located in
Bryn Mawr, a suburb of Philadelphia, a 20 to 40 minute drive from Helms’s home.
Helms did not have to drive through the city to get to Kelly’s and her parking did not
present safety problems when she ended her regular shifts in the early morning hours.
Tr. 23-29. 15
Immediately after her discharge, Helms updated her resume and starting seeking
new employment as a part time bartender. She mainly checked for such jobs on Craig’s
List, a website that advertises many things, including jobs. But she also asked people
she knew in the industry about their knowledge of such jobs. Tr. 31-39. Helms testified 20
that she checked Craig’s List for bartending jobs at least 5 times every week. Tr. 39.
She sent applications when she saw jobs that had comparable hours and conditions to
the one she had at Kelly’s and she sent her first application within a week of her
discharge. Tr. 42-44. After she contacted the Board about her original case, she
started keeping documentary evidence of her job searches and those are in the record 25
as G.C. Exh. 4. But that exhibit does not reflect all of Helms’s Craig List efforts to obtain
interim employment. Tr. 49-51.
In the roughly 4 quarters at issue here, the ones immediately after her discharge,
Helms’ applications resulted in 8 to 10 interviews, 6 to 7 in person and 3 to 4 by 30
telephone. Tr. 51-52. Her first interview, shortly after her discharge, was at a place
whose owners knew the owners of Kelly’s. She was asked why she left Kelly’s,
answered truthfully, and she did not get that job. On another occasion, she actually
worked an unpaid so-called “training shift” at a restaurant before being told that the job
required day time employment, something she could not do because of her child rearing 35
responsibilities. On the occasions that required her appearance for a personal interview
at the location of a potential job, she made specific arrangements for childcare. Tr. 53-
57. During 2 of the 4 quarters at issue, Helms actually worked at a bartending job as an
independent contractor and her earnings were deducted from the backpay owed by
Respondent. The job, however, had sporadic hours, unlike her work at Kelly’s, and, 40
while she performed that work, she continued her job search for a regular part-time
bartender position. Tr. 61-63. She finally obtained such a job in March of 2016, with
Teca Newtown Square. She obtained that job from a Craigs List ad. It approximated
the hours and conditions of her former job at Kelly’s and effectively ended Respondent’s
backpay liability. Tr. 63-67.45
JD–82–18
4
I credit Helms’s testimony set forth above, which was very detailed and candid,
and fully supported by documentary evidence. She was a truthful witness with an
impressive demeanor, whose testimony survived vigorous cross-examination. Indeed,
the essentials of her testimony on direct were confirmed on cross-examination. For 5
example, in an apparent effort to impeach her testimony, Respondent’s counsel pointed
out her testimony in the underlying liability case where she set forth her hours of work at
Kelly’s. But that testimony was consistent with her testimony in this case that she
worked primarily the Thursday, Friday and Saturday night shifts and worked other shifts
when asked and when she could get childcare. Tr. 75-78. Respondent’s counsel also 10
asked questions on cross-examination that seemed to suggest that Helms should have
sought jobs as a server. But Helms credibly answered that she never worked a
scheduled shift at Kelly’s as a server and only did so as part of her bartending duties.
Tr. 71-72.
15
The only other witness in this case was Angie Mitchell, who was called by
Respondent. She co-owns Kelly’s with her husband. They also owned two other bar-
restaurants in the Philadelphia area. Mitchell did not undercut Helms’s testimony.
Indeed, in significant parts, she corroborated Helms. For example, she corroborated
Helms’s testimony about her primary shifts and occasional work on other shifts at 20
Kelly’s. Tr. 108. Mitchell also explicitly confirmed that Helms was a bartender (Tr. 121).
But she also seemed to suggest that Helms was also sometimes a server. Much of
Mitchell’s testimony in this respect, however, was questionable, particularly in
describing the documentary evidence (R. Exh. 2) submitted to support her testimony.
Neither Mitchell’s testimony nor the documentary evidence showed any significant work 25
as a server apart from whatever serving was attendant to Helms’s bartending duties.
Tr. 109-114. Indeed, R. Exh. 2 confirms that Helms worked almost exclusively as a
bartender. The exhibit lists only two occasions during the period covered in that
document where Helms worked as a server and those were for a total of less than 7
hours. 30
Mitchell also testified that she seeks part-time bartenders by using Craig’s List.
Tr. 119-120. This confirms that Helms’s job search by that method was reasonable.
Significantly, none of Mitchell’s testimony goes to the issue of willful loss of earnings.
Her testimony about her own hiring practices or available jobs at the 3 restaurants she 35
and her husband own does not relate to Helms’s job search or available comparable
jobs elsewhere. Certainly Respondent never offered to rehire Helms in the 3
restaurants owned by Respondent. Mitchell also testified generally about the use of
Craig’s List for bartenders’ jobs. But that testimony was unspecific and lacked sufficient
detail to be useful. To the extent that Mitchell’s testimony can be read to contradict 40
Helms or otherwise impugn her job search, I find that Mitchell was an unreliable witness
and do not credit her testimony.2

2 Mitchell also testified that the turnover rate among the part-time bartenders she employs at her bar-
restaurants is high. Tr. 116-118. The point of that testimony is unclear to me. But, while it is
undoubtedly true, it lacks any relatedness to Helms’s job search and does not show that Helms’s job
search was not reasonable.
JD–82–18
5
Respondent asserts that R. Exh. 2 shows that Helms worked a quarter of her
shifts at Kelly’s on a day other than Thursday, Friday and Saturday (Brief at p. 10). But
there is no specific breakdown or analysis of the exhibit to support that assertion.
Indeed, the exhibit itself has questionable reliability. It does not cover the first half of 5
Helms’s employment at Kelly’s; its entries begin on November 1, 2014, coinciding, for
the most part, with the period during which Helms was protesting that newer employees
were given the more lucrative shifts to her detriment—a protected activity for which she
was unlawfully discharged by Respondent. Moreover, there are errors in the exhibit, as
pointed out in the cross-examination of Mitchell. See Tr. 122-124. For example, there 10
are entries for 4 consecutive days in early November 2014 showing that Helms worked
24 hours each day, a clear impossibility. And some entries appear to be duplicates. My
own analysis of R. Exh. 2 shows that, even given the limited period covered by the
exhibit, when Helms worked on shifts other than her regular shift, the hours were much
fewer. In any event, nothing in the exhibit contradicts Helms’s credible testimony that 15
she worked these other shifts only when asked and when she could easily obtain child
care assistance.
Discussion and Analysis
20
Respondent concedes that some backpay is owed Helms as a result of her
discriminatory discharge. It does not take issue with the backpay calculations or the
interim earnings set forth in the compliance specification. Nor does it take issue with
the net backpay figures set forth above. It contends only that Helms incurred a willful
loss of earnings at the beginning of her unemployment from the second quarter of 2015 25
through the first quarter of 2016, even though she had interim earnings in two of those 4
quarters and had substantial interim earnings during the rest of the backpay period. Tr.
7-10; G.C. Exh. 2.3
It is well settled that it is Respondent’s burden to show that backpay should be 30
reduced because of a discriminatee’s willful loss of interim earnings. Although the
discriminatee must make reasonable efforts to secure interim employment, it is
Respondent’s burden to demonstrate affirmatively that she failed to exercise reasonable
diligence in searching for work. The Board has stated that “a respondent’s contention
that a discriminatee has failed to make a reasonable search for work generally has two 35
elements—one, that there were substantially equivalent jobs within the relevant
geographic area and, two, that the discriminatee unreasonably failed to apply for those
jobs.” Teamsters Local 25, 366 NLRB No. 99, slip op. 2 (2018). It is not sufficient
simply to show that some jobs existed, but they must be substantially equivalent jobs,
including pay, working conditions, commutes, work locations, hours, shift scheduling 40
and benefits. Id. at slip op. 2-3.

3 In its brief (pp. 7-8), Respondent erroneously suggests that Helms should be faulted for not
obtaining interim employment within two weeks of her unlawful discharge. That is not the law and the
cases cited by Respondent make clear that the two week period refers to the required beginning of the
search for interim employment. See Domsey Trading Corp., 351 NLRB 824, 831-832 (2007). Helms
clearly satisfied the latter requirement, as shown in the factual statement above.
JD–82–18
6
Although the discriminatee must put forth an honest, good faith effort to find
interim work, success is not required. Doubts, uncertainties, or ambiguities are resolved
against the wrongdoing respondent who unlawfully caused the discriminatee’s loss of
employment. Moreover, the sufficiency of the search for employment is measured by 5
the backpay period as a whole, not by an isolated portion of the backpay period.
Midwestern Personnel Services, 346 NLRB 624, 625 (2006); and Bauer Group, 337
NLRB 395, 396 (2002). What constitutes a reasonable effort depends on all the
circumstances. Lucky Cab Company, 366 NLRB No. 56, slip op. 4 (2018). See also
NLRB v. Jackson Hospital Corp., 557 F.3d 301, 307-308 (6th Cir. 2009), where the 10
Court emphasized that the reasonableness of the effort to find interim employment must
be evaluated “in light of the individual’s background and experience and the relevant job
market.”
Applying the principles set forth above to the facts in this case, I find, based on 15
the credited testimony of Helms, as well as the supporting documentary evidence she
provided of her job search, that Helms made an honest and reasonable search for
interim employment that was substantially equivalent to her prior employment with
Respondent. This included the limitations in geographical area, days, hours, and other
working conditions inherent in her prior job. It also included due accommodation for her 20
child care needs, an accommodation that was part of her prior job. See Essex Valley
Nurses Assn., 352 NLRB 427, 438-439 (2008). Of course, she eventually found such a
job, which cut off Respondent’s back pay liability.
I also find that Respondent has failed to meet its burden to show that Helms did 25
not make a reasonable search or otherwise incurred a willful loss of earnings.
Respondent did not attempt to show the availability of even one substantially equivalent
job that Helms failed to apply for or rejected. Nor did it show the details of any such job,
including its hours, geographic area, wages or working conditions. Respondent did not,
for example, specifically question Mitchell on this point or submit independent or 30
documentary evidence on the matter. Its arguments, whether in connection with
questions during the hearing or in its post-hearing brief, amount to little more than
speculation and supposition.4

4 In questioning during the hearing and in its brief (p. 11), Respondent suggested that, because
Sunday was the one day her husband was available to baby sit all day, Helms should have affirmatively
asked potential employers whether she could work that day. It appears that Respondent expected Helms
to give up her only day for family time—the Biblical day of rest—in order to cut its monetary liability.
However, the extent of Helms’s Sunday work at Kelly’s is unclear on this record. But, if and when she
did work on Sundays, it would have been only if she were asked and if she could obtain child care
assistance. In any event, it was not required that Helms exhaust all possibilities in her search for
employment. It is up to Respondent to show that Helms’s overall search was unreasonable. But, even
focusing on Sunday work, Respondent has not shown that Sunday work was available and offered to
Helms and refused by her. Nor is there a showing that such work was offered and refused as part of other
shifts that would have been comparable to her work at Kelly’s.
JD–82–18
7
Thus, Respondent failed utterly to meet its burden in this respect. Accordingly, I
find that Helms is entitled to the full amount sought in the compliance specification.
ORDER5
Respondent, Mid-Atlantic Restaurant Group LLC d/b/a Kelly’s Taproom, its
officers, agents, successors and assigns, shall:
1. Make whole Robin Helms by pay her $23,333.43, plus interest as 10
prescribed in New Horizons, 283 NLRRB 1173 (1987), and Kentucky River Medical
Center, 356 NLRB 6 (2010), minus tax withholdings required by Federal and State law.
2. Reimburse Robin Helms for the adverse tax consequences of the lump
sum backpay award, as prescribed in AdvoServ of New Jersey, Inc., 363 NLRB No. 15
143 (2016).
Dated at Washington, D.C., December 20, 2018.
20
Robert A. Giannasi
Administrative Law Judge25