Domsey Trading Corp., (2007)

Docket Number:29-CA-14548

Domsey Trading Corporation, Domsey Fiber Corporation and Domsey International Sales Corporation, and International Ladies’ Garment Workers’ Union, AFL-CIO and Local 99, International Ladies’ Garment Workers’ Union, AFL-CIO. Cases 29-CA-14548, 29-CA-14619, 29-CA-14681, 29-CA-14735, 29-CA-14845, 29-CA-14853, 29-CA-14896, 29-CA-14983, 29-CA-15012, 29-CA-15119, 29-CA-15124, 29-CA-15137, 29-CA-15147, 29-CA-15323, 29-CA-15324, 29-CA-15325, 29-CA-15332, 29-CA-15393, 29-CA-15413, 29-CA-15447, and 29-CA-15685

September 30, 2007


By Chairman Battista and Members Schaumber and Walsh

On October 4, 1999, Administrative Law Judge Michael A. Marcionese issued the attached supplemental decision. Thereafter, the Respondent and the General Counsel filed exceptions with supporting briefs and answering briefs. The Respondent also filed a reply brief.

The National Labor Relations Board has delegated 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, findings,1 and conclusions only to the extent consistent with this Supplemental Decision and Order.

i. prior board decision

This compliance proceeding addresses 202 discriminatees found to be entitled to a remedy under the Board’s decision in Domsey Trading Corp., 310 NLRB 777 (1993), enfd. 16 F.3d 517 (2d Cir. 1994), which held that the Respondent violated the Act by, inter alia, discharging employees Giles Robinson and James Anthony Charles because they engaged in union activities. Those discharges, which occurred on December 1, 1989 and January 17, 1990 2 respectively, were, in part, the cause of an unfair labor practice strike that commenced on January 30 and ended on August 10, when the Union made an unconditional offer to return the striking employees to work.

On August 13, 132 of the former strikers reported for work at the Respondent’s facility. Although as unfair labor practice strikers the employees were entitled to immediate reinstatement, the Respondent conditioned their return to work on the completion of applications for reinstatement and the production of INS “green cards.” Thus, the Board found that the Respondent did not make a valid offer of reinstatement on August 13.3 After August 13, the Respondent sent letter offers of reinstatement to some of the former strikers on a “piecemeal” basis4 and then unlawfully discharged 13 of the former strikers whom it had reinstated.

ii. issues presented

The Respondent does not dispute the gross backpay amount set out in the compliance specification, but challenges the judge’s findings regarding certain alleged offsets and the adequacy of individual discriminatees’ mitigation efforts during the backpay period, which, for most of the unreinstated strikers, ran from August 13, 1990 to August 20, 1991, the date the Respondent made a valid offer of reinstatement to the former strikers as a group. 5

The first of the Respondent’s primary arguments is that the judge erred in finding that strike benefits received by discriminatees between August 13, 1990 and February 1, 1991 were collateral benefits not deductible from backpay.6 For the reasons set out in Section III, we reverse the judge in part and find that the strike benefits paid to certain individuals (the non-machinist discriminatees) were interim earnings properly deductible from backpay.7 However, we adopt the judge’s finding that the strike benefits received by other individuals (the machinists) were collateral benefits not deductible from backpay.8 We shall remand the case to Region 29 for a recalculation of the backpay owed the affected discriminatees.

A second primary argument of the Respondent is that certain discriminatees were not authorized to be present and employed in the United States during the backpay period. This argument raises the issue of whether the Supreme Court’s decision in Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002), which issued after the judge’s supplemental decision in this case, affects the judge’s finding that the Respondent owed backpay to certain discriminatees who lacked lawful work authorization during the backpay period. For the reasons set out in Section IV, we find that Hoffman precludes an award of backpay to the four discriminatees who admitted during the compliance proceedings that they were unauthorized to work during the backpay period. We also find, for reasons set out in Section IV, that issues have been raised regarding the authorization status during the backpay period of six discriminatees. Accordingly, we shall remand these discriminatees to the judge for the purpose of affording the parties an opportunity, including a reopening of the hearing if necessary, to develop a full and complete factual record on these issues. Thereafter, the judge shall forward to the Board a second supplemental decision setting forth only findings of fact on these issues. The parties may then file exceptions in accordance with Section 102.46 of the Board’s Rules and Regulations. Absent settlement, the case will be transferred back to the Board whether or not exceptions have been filed, and the Board will resolve the legal issues.

In Section V, we discuss, as necessary, backpay issues relating to the 101 of the 202 named discriminatees (including Robinson and Charles) considered individually in the judge’s decision. As to the remaining 101 discriminatees, we adopt the judge’s findings that 12 discriminatees are owed no backpay and that the Respondent has satisfied its backpay obligation to three other discriminatees (see Supp. J.D. at Sec. VII A).9 We also adopt the judge’s finding that the backpay owed to 46 discriminatees who could not be located should be placed in escrow in accordance with the Board’s holding in Starlite Cutting I, 280 NLRB 1071 (1986), as clarified in Starlite Cutting II, 284 NLRB 620 (1987) (see Supp. J.D. at Sec. VII B). We shall, however, first remand those missing discriminatees’ awards to Region 29 for a recalculation of backpay, given our finding that the strike benefits of non-machinists are interim earnings.10

Finally, as the judge explained, there were 40 discriminatees who either returned to work for the Respondent or who found interim employment shortly after the backpay period commenced. The Respondent’s sole defense as to these discriminatees was that their strike benefits should be deducted from their gross backpay (see Supp. J.D. at Sec. VII C). Since we find merit in the Respondent’s argument that the non-machinists’ strike benefits were interim earnings, we shall remand 37 of these 40 discriminatees’ awards to Region 29 for a recalculation of the backpay owed.11 Two discriminatees, Chano (Feliciano) Reyes and Rene Rochez, were machinists. We therefore exclude them from the remand order. As to discriminatee Adeline Duvivier, we note that the General Counsel and the Respondent entered into a stipulation at the compliance hearing on the backpay owed her (see Supp. J.D. at Sec. VII C n. 23). We therefore exclude her from the remand order.

iii. strike benefits12

As noted above the Union paid strike benefits to the former strikers from August 13, 1990, when the Respondent refused to reinstate them, to February 1, 1991. The benefit amount and conditions for payment differed for individuals who worked in machinist classifications and those who did not. The majority of the former strikers were non-machinists, and, for them, the amount of strike benefits paid each week depended on the number of days they reported to the former picket line.13 Non-machinists received $12 a day ($60 a week) for reporting to the picket line Monday-Friday, and $72 if they also reported on the weekend (one or both days). They had to sign in at the former picket line each day, and also sign a voucher or ledger each Friday when the payments were distributed. The non-machinists generally went to the Respondent’s facility about the time that they would have reported for work, and they generally left at the end of the workday. A large majority of them testified that while they were at the former picket line, they sang, chanted, carried signs, and/or marched.

The machinists, by contrast, received $200 or more per week in strike benefits. They did not have to sign in every day at the picket line, but signed a voucher at the end of the week to receive their strike benefits. Their payments were not reduced for days that they were absent from the former picket line. Finally, some of the machinists testified that they were flexible in the hours they remained at the line, arriving later and/or leaving earlier than non-machinist former strikers.

A. The Applicable Analysis

Where strikers receive benefits from a union that are in exchange for or contingent upon services provided to the union, the Board treats the benefits as interim earnings deductible from backpay. Rice Lake Creamery Co., 151 NLRB 1113, 1131 (1965), enfd. as modified 365 F.2d 888, 893 (D.C. Cir. 1966). However, if the sums received represent collateral benefits flowing from the association of the discriminatees with their union, they are not deductible. Id. The burden is on the respondent to prove that the benefits are interim earnings. Id.

In assessing whether the particular strike benefits at issue are properly characterized as interim earnings or collateral benefits, the Board looks to the totality of the circumstances, including factors such as what the picketers were told by the union about the benefits,14 the picketers’ understandings of what was required to qualify for the benefits,15 whether the amount of the benefits was tied to time spent on the picket line,16 and whether the benefits were paid from a fund to which the picketers had contributed.17 Where the weight of the evidence is to the contrary, mere conclusory testimony that picketing was or...

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