Victor's Caf 52, Inc., 753 (2002)

Docket Number:02-CA-25886

Victor's Café 52, Inc. and Hotel and Restaurant Employees Local 100, AFL-CIO and Leonardo B. Luberta. Case 2-CA-25886

November 22, 2002


On November 15, 1999, Administrative Law Judge Howard Edelman issued the attached supplemental decision. The General Counsel and the Respondent filed exceptions and supporting briefs, and the Respondent filed a memorandum in opposition to the General Counsel's exceptions.

The National Labor Relations 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 for the reasons set forth below, and to adopt the recommended Order.

The judge's decision and the parties' exceptions present significant issues arising out of discriminatee Alexis Raimundo Baute's admission at the compliance hearing that he made it known to potential witnesses that he would pay $1000 for testimony corroborating his assertions that when the Respondent discharged him, he was working three shifts per week as a busboy and seven shifts per week as an expediter.2 These issues fall into two areas: first, whether the judge erred in finding that the General Counsel's gross backpay specification was inaccurate insofar as it calculated Baute's backpay based on shifts worked as a busboy; and second, whether the judge erred in including in his supplemental decision sharp criticisms of counsel for the General Counsel and her trial strategy, and if so, whether his decision should be withdrawn and the case remanded for decision to another judge.

After careful consideration, we agree with the judge, but for different reasons, that Baute's gross backpay should not reflect work as a busboy. Further, we find it unnecessary to remand the case to another judge, but we disavow the judge's criticisms of counsel for the General Counsel.

A. Factual Background

Baute was employed at the Respondent's restaurant for about 4 months when the Respondent discharged him on

1 The General Counsel and the Respondent have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Drywall Products, 91 NLRB 544 (1950), enfd. 188

F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

2 An expediter relays customers' orders from waiters to kitchen personnel. An expediter is paid less than a busboy per shift, and, unlike a busboy, does not share in tips.

July 15, 1992, in violation of Section 8(a)(3) and (1) of the Act.3 According to the findings in the underlying unfair labor practice proceeding, Baute began work for the Respondent as a dishwasher, and about 2 months later was promoted to expediter. Baute was unavailable to testify in the underlying proceeding,4 and the judge made no findings of fact with respect to whether he had worked as a busboy. However, Baute gave his occupation as busboy on his union authorization card, signed on July 10, 1992, and on his affidavit provided, in connection with the underlying proceeding, on August 13, 1992. The judge in the underlying proceeding also found that the Respondent had kept no records of Baute's rate of pay or job classification and made all payments to him "off the books."5

The General Counsel calculated Baute's gross backpay on the basis of his representations to the compliance officer that he was working seven shifts per week as an expediter and three shifts per week as a busboy, at a higher rate of pay and a share of the tips. The General Counsel also relied on Baute's affidavit and union authorization card. Because the Respondent maintained no records with respect to Baute's employment, the General Counsel's ability to marshal other documentation in support of Baute's claims was limited. In its answer to the backpay specification, as amended at the compliance hearing, the Respondent admitted that Baute had worked as an expediter at the time of his discharge, but denied that he had been paid at the busboy rate for any shifts.

At the compliance hearing, Baute and two former coworkers, Wilbur Burdon and Humberto Hernandez, testified that Baute had trained as a busboy and worked as one (as well as an expediter) at the time of his discharge. In rebuttal, the Respondent proffered the testimony of its former maitre d', Ray O'Campo, and a waiter, Leandro

3 Victor's Café 52, Inc., 321 NLRB 504 (1996).

4 Id. at 508 fn. 5.

5 During Baute's employment with the Respondent, he was not in possession of the documentation required to work legally in the United States. See id. at 508, 514. According to the undisputed testimony of the Respondent's manager, Clara Chaumont, about 2 or 3 weeks after his discharge, Baute informed her that he had straightened out his immigration papers and wished to return to work. Id. at 509. In the underlying proceeding, the Respondent argued that Baute was an undocumented alien and was "thus not entitled to reinstatement and backpay." 321 NLRB 504 fn. 3. The Board left the determination of reinstatement and backpay to compliance, citing A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995). At the compliance hearing, the Respondent informed the judge that it had withdrawn its defense to the compliance specification based on Baute's ineligibility to work. A.P.R.A. was subsequently en-forced by the U.S. Court of Appeals for the Second Circuit, A.P.R.A. Fuel Oil Buyers Group v. NLRB, 159 F.3d 1345 (1998), and then reversed in Hoffman Plastic Compounds, v. NLRB, 535 U.S. 137 (2002). Based on Chaumont's testimony that Baute had corrected his undocumented status, and the Respondent's withdrawal of its defense in the compliance hearing, we find that the issue of his right to backpay is not before us.

Espinal, that, although Baute had trained as a busboy for a little over a week, he was never compensated as one and was working solely as an expediter when he was discharged.

With respect to the testimony of Bordon and Hernandez that he had worked as a busboy, Baute testified that when he learned that the Respondent had denied that he was a busboy, he sought proof that he had done so. He had no documentation other than his union authorization card. The compliance officer told him that he would need witnesses to corroborate his assertions. Baute telephoned O'Campo and Pedro Martinez, a former coworker still employed by the Respondent. Baute testified that he called O'Campo because he believed that O'Campo would remember that he had been a busboy. Baute offered O'Campo $1000 to testify that he worked as a busboy and an expediter when he was discharged, and requested that O'Campo ask other employees who remembered Baute to get in touch with him about testifying on his behalf.

Baute also contacted Pedro Martinez, a current employee of the Respondent. Martinez, according to Baute, remembered that he had worked as a busboy but was afraid to testify. As with O'Campo, Baute asked Martinez if he knew of anyone who would remember Baute and could testify that he had worked as a busboy. Baute told Martinez that he would pay such persons for "whatever the expenses they would need and for the inconvenience of testifying," but testified that he did not mention a figure to Martinez.

Wilbur Bordon called Baute after having learned from Martinez of Baute's situation. Baute testified that he asked if Bordon remembered that he had worked as a busboy. Bordon answered that he did and was willing to testify to that effect if Baute would pay him for the days he missed work. Baute testified that he did not mention a specific amount to Bordon, and planned to pay Bordon for time lost from work in appearing at the hearing and providing an affidavit.

Leandro Espinal, another current employee, also learned from Martinez of Baute's situation and contacted Baute. Baute offered Espinal $1000 to testify on his behalf and requested that Espinal give his telephone number to anyone who remembered him from his employment at the restaurant.

Baute testified that he never offered money to induce, or expected anyone to provide, false testimony on his behalf. He admitted that potential expenditures for testifying at the hearing would not reach $1000, but stated that he offered this amount because he did not believe anyone would come forward under any other circumstances. He also testified that he did not believe that he had done anything

wrong in making the offer, as he was seeking truthful testimony, not false witness.

Based in large part on Baute's offer of money in exchange for testimony, the judge discredited the General Counsel's witnesses, credited O'Campo and Espinal, and found that Baute had never worked for Respondent as a busboy. He found that, to the extent it projected earnings based on work as a busboy, the backpay specification did not accurately reflect Baute's gross weekly wages. Thus, the judge revised the specification to reflect gross backpay based only on shifts worked as an expediter.

In exceptions, the General Counsel contends that Baute worked both as an expediter and as a busboy; that notwithstanding the offer of compensation, Baute, Bordon, and Hernandez were credible witnesses; that Baute's offer should not form the basis for finding that Baute was not entitled to backpay; and that Baute's affidavit and union authorization card provide independent reliable support for the backpay specification. As noted above, the General Counsel also excepts to the judge's use of injudicious language in characterizing Baute's integrity and her own conduct of the case, and urges, in the alternative, that this language be stricken or that the supplemental decision be withdrawn and the case remanded to another judge.

The Respondent argues that because Baute suborned perjury on the...

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