Sopps, Inc.

National Labor Relations Board - Board Decisions

Apr 15, 1971

189 N.L.R.B. 822 (N.L.R.B. 1971)

822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sopps, Inc. and Industrial Workers of Allied Trade,
Local 199, N.F.I.U. Cases 29-CA-1230 and
29-CA-1230-2
April 15, 1971
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On April 10, 1969, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding, i finding, inter alia, that Respon-
dent discriminatorily laid off and subsequently
discharged Marie Fontana in violation of Section
8(a)(3) of the National Labor Relations Act.
Pursuant to a backpay specification and appropri-
ate notice issued by the Regional Director for Region
29, a hearing was held before Trial Examiner William
W. Kapell on September 23, 1970, for the purpose of
determining the amount of backpay due Fontana.
On December 3, 1970, the Trial Examiner issued the
attached Supplemental Decision in which he awarded
backpay to Fontana. Thereafter, the General Counsel
and Respondent filed exceptions to the Trial Examin-
er's Supplemental Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Supplemental Decision, the exceptions
and briefs, and the entire record in these cases, and
hereby adopts the findmgs,2 conclusions, and recom-
mendations of the Trial Examiner, as modified
herein .3
The Trial Examiner, while awarding backpay to
Fontana for the first 2 days of the unfair labor
practice hearing in this case, which she attended
under subpena, denied her backpay for the last 5 days
of the hearing on the ground that, by continuing to
attend the hearing after being released from the
subpena, she voluntarily made herself unavailable for
potential employment on those 5 days. The General
Counsel excepts to this finding, contending that time
spent at an unfair labor practice hearing by a
discriminatee, whether voluntarily or involuntarily,
should not be deducted from gross backpay. We find
merit in this contention.
It is well settled that an alleged discriminatee is
entitled, as a matter of right, to remain in the hearing
room throughout the taking of testimony, since he is
regarded as a complainant, whether or not he is the
charging party.4 The alleged discriminatee, whether
or not subpenaed, remains part of the General
Counsel's case throughout the hearing; he may be
needed to rebut any defense presented by the
respondent. If the Board denies him relief, in whole or
in part, he will be an "aggrieved person" who can seek
review of the Board's order in a United States Court
of Appeals.5 For all these reasons, it is clear that a
discriminatee attending an unfair labor practice
hearing, although unavailable for remunerative em-
ployment, should not be placed in the same position
as a discriminatee who is disabled or has voluntarily
withdrawn from the labor market. Indeed the Board
has held that a discriminatee is justified in declining to
accept a job which would make it impossible for him
to attend a hearing.6 Accordingly, we hold that
Fontana is entitled to backpay for the entire period of
the hearing. The effect of this is to increase the
amount of backpay by $27.20 in the second quarter
and $40 in the third quarter, for a total of $67.20.
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Sopps, Inc., Brooklyn, New York, its officers, agents,
successors, and assigns, shall pay to Mane Fontana
the sum of $1,354.06, plus interest accrued to the date
of payment in accordance with the formula set forth
in Isis Plumbing & Heating Co., 138 NLRB 716, less
deductions for applicable taxes.
1 175 NLRB No 49
2 Footnote 3 of the Trial Examiner's Decision should correctly state
that "the General Counsel argues, in effect, that . Fontana would have
received an immediate increase to $68 a week ," rather than $66, as
inadvertently set forth by the Trial Examiner.
3 Respondent 's request for a rehearing is hereby denied, as the record
contains no evidence to support the allegation of fraud and the evidence
outside the record relied on by Respondent is clearly insufficient to
establish fraud
4 T I L. Sportswear Corp, 131 NLRB 176, 177, fn 1, Trettenero Sand &
Gravel Co, 129 NLRB 610 Walsh -Lumpkin Wholesale Drug Co, 129
NLRB 294, 295, Lewis Kariton, d/b/a Consolidated Frame Co, 91 NLRB
1295
5 See Kovach [Studebaker Corp,], v N L. R B, 229 F 2d 138 (C A 7),
Albrecht [Carnegie-Illinois Steel Corp J v N L.R B, 181 F 2d 652 (C A 7),
Jacobsen [Protective Motor Service Co J v N L R B, 120 F 2d 96 (C.A 3)
6 Alaska Steamship Co, 114 NLRB 1264 , 1267, West Texas Utilities Co,
109 NLRB 936, 946
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
WILLIAM W. KAPELL, Trial Examiner: This is a
supplemental proceeding instituted for the sole purpose of
determining the amount of backpay due Marie Fontana
under the terms of the Board's Order (175 NLRB No. 49).
On September 23, 1970, a hearing was held before me in
Brooklyn, New York. All parties participated and were
189 NLRB No. 129
SOPPS , INC. 823
afforded full opportunity to present relevant evidence.
Upon consideration of the entire record , including briefs
filed by the General Counsel and Respondent, I make the
following findings and conclusions:
1. THE REMEDIAL ORDER RELATING TO BACKPAY
Respondent was found to have violated , inter alia,
Section 8(a)(3) of the Act by discriminatorily laying off
employee Marie Fontana on Tuesday, February 6, 1968,1
and discharging her on Friday, February 16. Respondent
was ordered to make Fontana whole for any loss of pay
suffered as the result of the discrimination practiced against
her.
II. THE PAYBACK SPECIFICATION
Controversy having arisen over the amount of backpay
due to Fontana , the. Regional Director issued a Backpay
Specification , as amended at the hearing, setting forth the
B. The Wage Rates of Respondent's Employees
1. At the time of her discharge , Fontana , the highest
paid nonsupervisory female and most senior worker, was
receiving a weekly wage of $64 a week.
2. During the week in which Fontana was laid off,
employee Mary Lancaster received a wage increase from
$64 to $68 a week during the backpay period.
3. Absent the discrimination against her, Fontana
would have received a wage increase from $64 to $68 a
week during the backpay period.
4. Effective the week ending February 9, female
employees (other than Lancaster ) were granted a wage
increase of 10 cents an hour , thereby increasing their
weekly wage from $60 to $64 a week, and that thereafter
within 60 to 120 days these employees received a further
increase from $64 to $66 a week.3
following:
A. The Backpay Period C. The Backpay Computations
The backpay period began on February 7 and terminated The net backpay due to Fontana 4 during the backpay
on October 21.2 period is based upon the following computations:
For first quarter (2/7/68--3/31/68)
Gross backpay:6-2/5 weeks 4/ at $68 week $435.20
Interim Earnings: none -0-
Net Backpay $435.20
For second quarter (4/1/68--6/30/68)
Gross Backpay: 13 weeks at $68 per week $884.00
Interim Earnings: Tru-Pac, Inc., 80 Richard $605.12
N.Y.BrooklynSt. ,,
Net Backpay $278.83
For third quarter (7/1/68--9/30/68)
Gross Backpay: 13 weeks at $68 per week
Interim earnings : Tru-Pac , Inc., $114.07
Bridge Binding Inc., 360 Furman
Street, Brooklyn, N.Y. $220.50 $334.57
Net Backpay $549.43
For fourth quarter (10/1/68--10/21/68)
Gross Backpay: 3 weeks at $68 per week $204.00
Interim Earnings: Tru-Pac, Inc. $153.45
Net Backpay $ 50.55
I All dates hereafter refer to the year 1968 unless otherwise noted.
2 Although Respondent in its answer denied that allegation, it was
conceded at the hearing.
3 In support of his contention that Fontana 's weekly pay loss dunng
the backpay period should be fixed at $68 a week, the General Counsel
argues , in effect, that , in view of the increases granted to the lower paid
employees from $60 to $64 a week during the week of February 9,
Fontana would have received an 'immediate increase to $66 a week, and
with greater likelihood an increase to $70 a week , if Lancaster was worth
and given $68 a week.
4 Fontana was permitted to work on Tuesday and Wednesday, February
13, and 14, and was off due to illness on February 15. For administrative
convenience the General Counsel treats the 5 days on which she was
permitted to and did work during the period February 7 through 16 as I
week in the first quarter making a total of 6-2/5 weeks . According to my
calendar calculations the gross backpay during this quarter should be
computed on the basis of 7 weeks not 6 -2/5 weeks , thereby increasing the
gross backpay to $476.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. RESPONDENT'S CONTENTIONS
Respondent, in substance, contends (1) that, absent the
discrimination, Fontana would not have received a wage
increase to $68 a week, and (2) that Fontana is not entitled
to backpay because she did not diligently seek employment
during the backpay period, thereby incurring a willful loss
of -earnings. Respondent also claims that its backpay
obligation cannot exceed $650. This contention is based on
the testimony of its president, Julius Jacobs, asserting that
on October 1 he overheard a telephone conversation from
his lawyer to Board Attorney Beatrice Kornbluh in which
she agreed with his attorney that her records also indicated
Fontana's backpay amounted to approximately $650. Even
if that testimony were credited, the Board would not be
estopped from proving the correct amount of the backpay.
See. N.L.R.B. v Baltimore Transit Co., 140 F.2d 51, 54-55
(C.A. 4). Futhermore, if the aforesaid conversation consti-
tuted an attempt to settle the matter, it would be
inadmissable.
IV. THE EVIDENCE CONCERNING RESPONDENT'S
CONTENTIONS
In support of its contention that Fontana would not have
merited or been granted the wage increase to $68 a week
given to Lancaster, Respondent claims that Lancaster was
granted the increase because she undertook new duties
previously performed by employees Sullivan and Shogrin
following their discharge during the week of February 9.
Furthermore, Fontana would not have been considered for
the increase because she smoked on the job in violation of a
company safety rule and also had a bad record of
absenteeism. Fontana credibly testified on rebuttal that
there was no such company rule, that the employees
smoked without company objection or interference, and
that she was never reprimanded for smoking. She also
testified that upon returning to work on February 13 and 14
she noted that Lancaster's duties had not changed, and that
she continued to work on the bagging machine and coasters
as she had previously done. As for the comparable work
records of Fontana and Lancaster, it appears, and I find,
that Fontana had been employed by Respondent for about
a year and a half compared to Lancaster's 6 to 8 months of
service, that Fontana was the last employee laid off in
December 1967 and the first reemployed during January
1968, that she received the largest Christmas bonus ($20) in
1967 whereas Lancaster received none, and that at the time
of her discharge her wage was $64 compared to $60 for
5 Jacobs admitted that, after admonishing Fontana in the fall of 1967
about her absenteeism, there was a marked improvement in her record and
thereafter he had no cause to reprimand her about it.
6 Administrative notice is taken of the Board's official records stating
Lancaster. As for Fontana's absenteeism, company records
demonstrated that, during the last quarter of 1967 and the
early part of 1968, her working record was at least equal to
if not better than Lancaster's .5
With respect to Fontana's diligence in seeking employ-
ment during the backpay period, it appears that upon her
layoff she immediately registered at the State Employment
Service, and that she unsuccessfully sought employment at
various firms, including five which she identified after
having her recollection refreshed from a statement she had
supplied to the Board in 1968. She, however, was unable to
recall any of the details concerning the places where she
sought employment either upon referral from the State
Employment Service or on her own, pleading that the
passage of time had blurred her memory. Information
elicited by mail by the Board from Tru-Pac, Inc., indicates
that she was employed by that firm from April 18 to
September 10 when she quit, and that she was rehired on
September 25 until beyond October 21, the cutoff date for
backpay when she declined an offer of unconditional
reinstatement. Her earnings at Tru-Pac were $605.12,
$114.07, and $664.95 for the second, third, and fourth
quarters, respectively, of 1968, as set forth in the Backpay
Specification. While employed at Tru-Pac, she took a week
off in an unsuccessful attempt to obtain a better paying job,
and, upon applying at Tru-Pac for reemployment, the
Company deferred rehiring her for another week. During
layoffs at Tru-Pac, she obtained employment at Bridge
Binding Co., earning $220 during the third quarter of 1968.
She also testified that she attended the hearing of the
related unfair labor practice case on June 25 through July 3
and testified on behalf of the General Counsel.6
V. CONCLUSIONS
I find that the comparative work records of Fontana and
Lancaster establish that Fontana, a more experienced and
longer tenured employee, was regarded and treated as the
more valuable employee as is indicated by their respective
wage rates, layoff and reemployment records, and bonus
payments. I find further that Respondent failed to prove
either that Fontana's absentee record was worse than
Lancaster's or that there was a company no-smoking rule
which she disregarded. I, therefore, conclude that, but for
her layoff and discharge, Fontana would have been given
the wage increase of $68 a week given to Lancaster during
the week ending February 9.7 I conclude that the method
used in determining Fontana's gross backpay is a fair and
reasonable one in the circumstances herein.
that she was subpenaed to testify at that hearing and was paid for 2 days
attendance on June 25 and 26.
' It is significant to note that Respondent failed to show what wage rate
Fontana would have gotten had she not been discriminated against.
SOPPS , INC. 825
In determining whether or not there was a willful loss of
earnings, applicable law holds that it is an affirmative
defense and the burden of proving it is on the employer.
N.L.R.B. v. Mooney Aircraft, Inc., 366 F.2d 809 (C.A. 5).
Thus, once the General Counsel has shown the gross
amount of backpay, as found herein, the burden is on the
employer to negate or mitigate liability to an employee.
N. L. R. B. v Brown & Root, Inc., 311 F.2d 447 (C.A. 8).
Finally, "any uncertainty is resolved against the wrongdoer
whose conduct made certainty impossible." N.L.R.B. v.
Miami Coca-Cola Bottling Co., 360 F.2d 569 (C.A. 5).
Respondent contends that Fontana's unemployment
during much of the backpay period gives rise to a
presumption that she failed to seek work or that she
willfully incurred loss of earnings. I find no merit to such a
presumption. Success in finding employment is not equated
with a good-faith effort in seeking work. Mastro Plastics
Corp., 136 NLRB 1342, enfd. 354 F.2d 170 (C.A. 2), cert.
denied 384 U.S. 972. Nor do I find any merit in
Respondent's contention that it be accorded special
consideration in proving its defense because it was unable
to locate the employers to whom Fontana allegedly applied
for employment, or to obtain records from the State
Employment Service because they were not kept for more
than a year, or to obtain records of her interim employment
because no longer kept by those employers. Respondent
alone was responsible for creating the situation in which it
finds itself.
Fontana's loss of work for 2 weeks as the result of
obtaining a leave of absence from her job while at Tru-Pac
to seek more remunerative employment elsewhere would, if
successful, have further reduced Respondent's liability. Her
commendable attempt should not react to her detriment
because it failed to materialize. Nor can it be asserted that
she thereby willfully incurred a loss of earnings. Further-
more, it was not proven by Respondent that the loss of her
earnings for the second week resulted from causes other
than a lack of work.
I find that Fontana's presence for the entire duration of
the unfair labor practice hearing made her unavailable for
remunerative employment. As indicated by Board records
she was subpenaed for only 2 days which, presumably, were
only 'required by the General Counsel in proving his case.
She, however, voluntarily made herself unavailable for
potential employment on June 27 and 28 and on July 1, 2,
and 3. I, accordingly, find that she is not entitled to
backpay for a period of 2 days in the second quarter
amounting to $ 27.20 and 3 days in the third quarter
amounting to $40. Except as found above, I conclude that
Respondent did not prove by the preponderance of the
evidence that Fontana failed to exercise reasonable efforts
to obtain employment or willfully incurred loss of earnings
during the backpay period.
I, therefore, find and conclude that the following
amounts constitute the backpay computations for the
respective quarters of 1968.
Gross Interim Net
Quarter Backpay Earnings Backpay
First quarter $476.00 (7 weeks at $68) None $476.00
Second $856.00 (12-3/5 weeks at $68) $605.12 $251.68
Third It $843.30 (12-2/5 weeks at $68) $334.57 $508.63
Fourth m $204.00 (3 weeks at $68) $153.45 50.55
$1,286.86
On the basis of the foregoing, I hereby issue the following shall pay to Marie Fontana the sum of $1,286.86 plus interest
recommended:
ORDER
accrued to the date of payment in accordance with the
formulas set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716, less
deductions for applicable taxes.
Sopps, Inc., its officers, agents, successors, and assigns,