G & T Packing Terminal, (2010)
G & T Terminal Packaging Co., Inc. and Mr. Sprout, Inc. and Tray Wrap, Inc., and Chain Trucking Inc., a single employer, and G & T Terminal Packaging Co., Inc., and Its Alter Ego Slow Pack, Inc. and Paper Products and Miscellaneous Drivers, Warehousemen, Helpers and Messengers, Local 27, International Brotherhood of Teamsters, AFLCIO, now known as Private Sanitation Union Local 813, International Brotherhood of Teamsters, affiliated with the AFLCIO and Denny Lopez. Cases 2CA26738, 2CA27745, 2CA28364, and 2CA28360November 30, 2010 SECOND SUPPLEMENTAL DECISION AND ORDER By Chairman Liebman and Members Pearce and Hayes On October 19, 2006, Administrative Law Judge Raymond P. Green issued the attached supplemental decision. The Respondent and the General Counsel each filed exceptions and a supporting brief. The General Counsel filed a brief in response to the Respondents exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the supplemental decision and the record in light of the exceptions and briefs and has decided to affirm the judges rulings, findings,1 and conclusions as modified below, and to adopt the recommended Order as modified and set forth in full below. As set forth fully in the judges decision, the Board remanded this case to him on November 24, 2004, to consider certain backpay issues raised by the United States Court of Appeals for the Second Circuit in NLRB v. G & T Terminal Packaging Co., 19 Fed.Appx. 16 (2d Cir. 2001).2 Except as noted here, we agree with the judges backpay determinations for 22 discriminatees whom the Respondent unlawfully discharged in April 1995 when closing its potato packaging machine operation and transferring the work performed on that operation to another company.3 In particular, absent any credible evidence to the contrary, we find that the judge reasonably concluded that the Respondent would have closed down its potato packing machine operations for legitimate economic reasons no earlier than January 31, 1996, that all of the discriminatees were qualified to perform other packing work for the Respondent, and that their backpay periods should be determined by reference to seniority.4 We also affirm the judges determination that the Respondents liability to the Unions Pension Fund should include annual interest at the rate of 7.8 percent,5 and his calculations of amounts due for discriminatees dental and optical expenses.6 We also agree with the judge, for the reasons he states, that backpay for Maria Garcia should extend from the date of her discharge through January 31, 1996, and should resume for the period of October 1, 1996, through the second quarter of 2003. Garcia never received an offer of reinstatement. The evidence shows that the Respondent, although it had Garcias last known address, mailed her reinstatement offer to the wrong employee at the wrong address, and that it made no effort to verify the accuracy of its mailing. The cases cited below by our dissenting colleague, are distinguishable. In each, the employer correctly mailed the reinstatement offer to the employees last known address, but the offer was never received for reasons apparently beyond the employers control. In these circumstances, we find here that the Respondent, as the wrongdoer, has not established an objective justification for shifting the burden of its error to Garcia.7 As of the date of the hearing on remand, the Region was unable to locate discriminatee Matilda Rodriguez. The judge incorrectly found that no claim was made on her behalf, when in fact the General Counsel claims $13,200 as the gross amount of backpay due her. To afford the General Counsel an opportunity to locate Matilda Rodriguez and ascertain her interim earnings, we shall order the Respondent to pay this discriminatees specified gross backpay to the Regional Director for Region 2 to be held in escrow for a period not to exceed 1 year. That 1-year period shall begin when the Respondent deposits the backpay into escrow or on the date this Second Supplemental Decision and Order becomes final, including enforcement thereof, whichever is later. Should the Regional Director determine that deductions are warranted, the amount so deducted shall be returned to the Respondent and the remainder paid to the discriminatee. In the event that the General Counsel, at the end of the 1-year escrow period, has failed to locate Matilda Rodriguez, her award shall lapse and her full gross backpay amount shall be returned to the Respondent. Starlight Cutting, 280 NLRB 1071 (1986), order amended by 284 NLRB 620 (1987); NLRB Casehandling Manual (Part Three) Compliance, Sections 10582.3, 10584. ORDER The Respondent, G & T Terminal Packaging Co., Inc. and Mr. Sprout Inc. and Tray Wrap Inc., and Chain Trucking, Inc., as a single employer, and G & T Terminal Packaging Co., Inc., and its alter ego, Slow Pack, Inc., Bronx, New York, their officers, agents, successors, and assigns, shall make payments in the manner described below, with interest.8 The backpay amounts owed are as follows: Sabina Cabrera $5,354.00 Antonio Castillo 14,700.00 Marcos Delgado 14,834.00 German Diaz 13,010.00 Erlinda Espinoza 13,200.00 Maria Garcia (Now Carmen Dominguez) 67,936.00 Mercedes Garcia 8,712.00 Ana Hernandez 13,200.00 Estate of Casimiro Hernandez 15,540.00 Denny Lopez 16,950.00 Primitivo Lopez 15,330.00 Leonardo Morel 7,260.00 Beatriz Olivo 7,216.00 Benita Olivo 7,216.00 Juana Olivo 7,216.00 Jose Rafael Ortega 15,500.00 Carlos Santana 13,480.00 Claudio Santiago 13,330.00 Leyda Triunfel de Nelson 7,216.00 Estefania Acevedo 600.00 Ramona Escaboza 140.80 Francisco Rodriguez 126.00 Matilda Rodriquez 13,200.00 Total $291,266.80 The amount due Matilda Rodriguez shall be paid to the Regional Director for Region 2 to be held in escrow for a period not to exceed 1 year. The 1-year escrow period shall begin upon the Respondents compliance by payment of the backpay for deposit into escrow or the date that the Boards Second Supplemental Decision and Order becomes final, including enforcement thereof, whichever is later. The amounts due the Pension Fund are as follows: For 1996 $8, 535.62 For 1997 24,112.00 For 1998 23,864.00 For 1999 23,320.00 For 2000 12,104.00 For 2001 19,744.00 For 2002 16,824.00 For 2003 17,976.00 For 2004 19,766.00 For 2005 17,515.00 Total $183,760.62 The amounts due for unreimbursed dental and optical expenses are as follows: Nancy Amparo $144.00 Ramona Escaboza 365.00 Nicholas Ramos 465.00 Thelma Severino 2,149.00 Total $3,123.00 Total Backpay $478,150.42 Dated, Washington, D.C. November 30, 2010 Wilma B. Liebman, Chairman Mark Gaston Pearce, Member Brian E. Hayes, Member (seal) National Labor Relations Board Margit Reiner, Esq. and Joane Wong, Esq., for the General Counsel. Linda Strumpf, Esq. and Sarah R. Smetana, Esq., for the Respondent. George A. Kirschenbaum, Esq. and Edmond V. Pendleton, Esq., for the Charging Parties. SUPPLEMENTAL DECISION Statement of the Case Raymond P. Green, Administrative Law Judge. A supplemental hearing in these cases was held on various dates in August 2005 and in April, May, and June 2006. Case 2CA26738 involves a backpay specification after the Board issued an unpublished Decision and Order on July 15, 1994. In that case, the Respondent was ordered to make whole employees by making contributions, with interest, to the Welfare Trust Fund and the Pension Fund as required under the terms of the Employers collective-bargaining agreement with the Union effective from November 1, 1989, through October 31, 1992. The Court of Appeals for the Second Circuit enforced the Boards Order on September 20, 1994. In this regard, the Respondent had ceased making payments to those funds on January 1, 1993. The backpay specification also asserted that the number of employee to be made whole on account of the Respondents failure to make fund payments should not only include the particular employees who were actually employed in the bargaining unit during the periods of time that such payments were not made, but also a set of 22 additional employees who were illegally discharged on April 17 and 19, 1995. Finally, the backpay specification in Case 2CA26738 alleged that the backpay and interest continued to run until the Respondent complied with the underlying Board and court Order. The other cases, Cases 2CA27745, 2CA28364 and 2CA28360, involved new and separate allegations, which can be summarized as follows: 1. That G & T Terminal Packaging Co., Inc. along with a group of related companies (Mr. Sprout, Inc., Chain Trucking Inc., Tray Wrap Inc., and Slow Pack Inc.), constituted a single employer. 2. That despite reaching a full and complete agreement on June 10, 2004, the Respondent, since April 14, 1995, refused to execute the agreement. 3. That on April 17, 1995, the Respondent discharged a group of employees because they engaged in a concerted protest regarding the Respondents refusal to execute the aforesaid agreement. 4. That on April 17, 1995, the Respondents, unilaterally and without bargaining with the Union, and for discriminatory reasons, transferred its potato-packaging machine to another company. 5. That on April 19, 1995, the Respondent, for discriminatory reasons, refused to reinstate all of the employees that it had discharged on April 17, 1995. 6. That in May 1995, the Respondent, in order to discourage union membership, granted raises to certain of its employees. I heard those cases on various days in December 1995 through March 1996 and issued a decision on September 9, 1995. On August 20, 1998, the Board issued its Decision and Order in those cases at 326 NLRB 114. Basically, the Board affirmed...
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