Airport Park Hotel

National Labor Relations Board - Board Decisions

Mar 25, 1992

306 N.L.R.B. 857 (N.L.R.B. 1992)

857
306 NLRB No. 168
AIRPORT PARK HOTEL
1 296 NLRB 509 (1989).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall 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.
In adopting the judge’s findings regarding the claimants’ tip in-
come, we are not unmindful of considerations pertaining to the
claimants’ contrary income tax disclosures to the Internal Revenue
Service. Consistent with Hacienda Hotel & Casino, 279 NLRB 601
(1986), and Original Oyster House, 281 NLRB 1153 (1986), we
shall, therefore, furnish a copy of this supplemental decision to the
Internal Revenue Service.
3 As noted by the judge, the compliance officer made adjustments
to the backpay specification that allow for the Respondent’s normal
slow periods in September and October as they pertain to the hourly
tip income of the discriminatees. The judge, however, in calculating
the backpay totals inadvertently used the hourly tip income figures
from the original backpay specification, i.e., without the adjustments.
According to the amended backpay specification in the record, for
discriminatee Montero the third quarter hourly tip income figures for
1988 and 1989 should be $5.92, not $6.75; and for discriminatee
Bell-Nagy the third quarter hourly tip income figures for 1988 and
1989 should be $12.80, not $16.50. We have modified the rec-
ommended Order to provide the correct totals. 1 296 NLRB 509 (1989).
Lee Hotel Corp. d/b/a Airport Park Hotel and
Reinaldo Zamora. Case 31–CA–17151
March 25, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 13, 1989, the National Labor Rela-
tions Board issued a Decision and Order in this pro-
ceeding,1 in which it, inter alia, ordered that the Re-
spondent reinstate four employees and make them
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them by
the Respondent. On August 30, 1991, Administrative
Law Judge Gordon J. Myatt issued the attached sup-
plemental decision. The Respondent filed exceptions
and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel. The Board has considered the supplemental de-
cision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings,
findings,2 and conclusions as modified and to adopt
the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Lee
Hotel Corp. d/b/a Airport Park Hotel, Inglewood, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
‘‘Pay to the following named discriminatees the
amounts opposite their respective names, plus interest
accrued thereon to the date of payment as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987), minus income tax withholdings required by
Federal and state laws:
Pedro Montero $13,710.31
Reinaldo Zamora 14,993.18
Danelle Bell-Nagy 16,792.37
Robin Morrow 17,260.29’’
Amy Silverman, Esq., for the General Counsel.
Kenneth M. Simon, Esq., of Beverly Hills, California, for the
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. On Sep-
tember 13, 1989, the Board issued a Decision and Order in
this case which required Respondent to reinstate four em-
ployees and make them whole for any loss of earnings they
suffered as a result of the discrimination found to have been
committed by Respondent.1 Because of a controversy over
the amount of the backpay owed, the Regional Director for
Region 31 issued a backpay specification on April 10, 1990.
A hearing was held in this matter in Los Angeles, California,
on June 26 and 27, 1990, at which time the original speci-
fication was amended by the General Counsel. (See G.C.
Exh. 2 - Amended Appendix ‘‘A.’’)
All parties were represented by counsel and afforded op-
portunity to examine and cross-examine witnesses and to
present material and relevant evidence on the issues in con-
troversy. Briefs have been submitted and have been duly
considered.
On the entire record in this matter, including my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
A. The Issues Involved
1. Whether the formula utilized by the General Counsel to
determine the amount of gross backpay due the
discriminatees was appropriate.
2. Whether the amounts calculated as ‘‘tip income’’ in the
formula utilized by the General Counsel reasonably reflect
the tip income the employees would have earned but for the
discrimination against them.
3. Whether the discriminatees diligently sought interim
employment during the backpay period.
B. Background Facts
As noted in the decision in the underlying unfair labor
practices case, the facility of the Respondent involved here
is located in Inglewood, California. It is situated across the
street from the Great Western Forum and is separated by a
parking lot from the Hollywood Park Racetrack. The Los
Angeles Lakers professional basketball team and the Los An-
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 See generally NLRB Casehandling Manual, pt. 3, sec.
10530.1(c). Sec. 10540 sets forth the application of formula 2, which
is described as ‘‘Use of the discriminatee’s average hours of work
prior to the unfair labor practice.’’
3 The adjustment to the hours worked in the amended specification
relate to discriminatee Morrow only. The other adjustments for the
slow periods pertain to the tip income for all the discriminatees and
is treated subsequently in this decision.
4 Respondent also argues that the formula used by the General
Counsel violates the requirement in the Casehandling Manual that
the backpay period be ‘‘relatively short.’’ Respondent notes that the
backpay period here is for 18 months and contends that it is not
‘‘relatively short.’’
geles Kings professional hockey team play their home games
at the Forum. In the event either team reaches the playoffs
or the championship in their respective sport, the Forum is
their home ‘‘court’’ or ‘‘ice.’’ In addition, concerts and spe-
cial events, such as the Ice Capades, are held at the Forum.
The Hollywood Park racing season occurs twice during the
course of a year; once in June and again in December.
The four discriminatees whose backpay is at issue here
were the bartenders (Pedro Montero and Reinaldo Zamora)
and cocktail waitresses (Danelle Bell-Nagy and Robin Mor-
row) working in Respondent’s bar and lounge. The backpay
period set forth in the specification—May 9, 1988, to No-
vember 8, 1989—is not in dispute. Nor is the amount of in-
come earned during interim employment and the expenses
incurred in earning that income contested here.
C. The Appropriate Backpay Formula
It has been long established that the finding of an unfair
practice is presumptive proof that some backpay is owed.
NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir.
1965). Further, that in a backpay proceeding the burden is
on the General Counsel to establish the gross amounts of
backpay due the discriminatees; i.e., that which they would
have received but for the illegal conduct. Virginia Electric
Co. v. NLRB, 319 U.S. 533, 544 (1943). If in meeting this
burden, it is difficult to determine precisely the amount of
backpay due, the General Counsel ‘‘may use as close an ap-
proximation as possible and adopt formulas reasonably de-
signed to produce the approximate awards due.’’ NLRB v.
Brown & Root, 311 F.2d 447, 452 (8th Cir. 1963). See also
Trinity Valley Iron Co. v. NLRB, 410 F.2d 1161, 1177 (5th
Cir. 1969). Once the General Counsel has satisfied this re-
quirement, it becomes the Respondent’s burden ‘‘to establish
facts that would mitigate that liability.’’ NLRB v. Brown &
Root, supra. It is an equally well-settled principle that any
uncertainties are to be resolved against the Respondent, as
the wrongdoer, and in favor of the employee discriminatee.
NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th
Cir. 1966); A & T Mfg., Co., 280 NLRB 916 (1986).
Turning to the issues presented in this case, the compli-
ance officer for the General Counsel testified that he em-
ployed formula 2 of the NLRB Casehandling Manual as the
appropriate formula to reasonably approximate the backpay
due the discriminatees.2 The stated criteria for utilization of
this formula is: ‘‘(a) [It] is especially suitable for situations
characterized by changing rates of pay during the backpay
period; (b) The (Respondent’s) records show hours worked
prior to the unfair labor practice in sufficient detail; (c) The
business of the (Respondent) is not seasonal; (d) (The)
discriminatee was employed by the (Respondent) for a pe-
riod, prior to the unfair labor practice, sufficiently long to
show a typical working pattern; and (e) The backpay period
is relatively short and no significant changes were made in
hours of work.’’
In addition, the Casehandling Manual requires that several
other factors be considered when employing this formula.
They are:
1. Selection of the pre-unfair labor practice typical pe-
riod must be made to reflect neither excessively high or
low hours of work caused by special factors and must
be long enough to reflect the discriminatee’s typical
fluctuation of hours worked.
2. Overtime hours worked during the pre-unfair labor
practice period must be included in the average [hours
worked].
According to the testimony of the compliance officer, he
used a representative period of 10 pay periods immediately
preceding the unlawful discharges. As the discriminatees
were paid twice a month, this meant the representative period
covered approximately 4-1/2 months. The number of hours
worked during the representative period by each
discriminatee was divided by five (the number of months in
the representative period) to get the monthly average hours
worked. This figure was then multiplied by 3 (the number
of months in a calendar quarter) and then divided by 13 (the
number of weeks in a calendar quarter) in order to ascertain
the weekly average of the hours worked by each
discriminatee. Based on Respondent’s answer to the original
specification and further investigation with the
discriminatees, the compliance officer amended the backpay
specification to reflect the slow periods in Respondent’s bar
and lounge business for the months of August and September
for three of the discriminatees and September and October
for the remaining discriminatee. (G.C. Exh. 2.)3
Respondent argues that the formula utilized by the General
Counsel fails to meet the criteria required by the
Casehandling Manual for the application of that formula. Re-
spondent contends the representative period only measures
the busy season of its bar and lounge business. By failing
to factor in the slow periods of the business, Respondent as-
serts the formula employed overstates the hours worked and
the wages and tips that would have been earned by the
discriminatees during the backpay period. Specifically, Re-
spondent argues that the representative period here does not
constitute ‘‘an appropriate period of time prior to the unfair
labor practice’’ nor is it ‘‘long enough to reflect the
discriminatee[s’] normal fluctuation of earnings’’ as required
by the Casehandling Manual. Respondent urges that the ap-
propriate measuring period for determining the hours and
earnings is the full calendar year preceding the discharges.4
The testimony of all the witnesses clearly establishes that
there was a period after the end of the basketball and hockey
season at the Forum and the conclusion of the summer racing
season at the Hollywood Park Racetrack when Respondent’s
bar business declined substantially. The area of dispute is
whether the slow periods occurred during the months of July
through October (as contended by Respondent) or August
and September (as contended by the General Counsel and the
discriminatees).
859AIRPORT PARK HOTEL
5 Because the weekly average encompasses a full calendar year, no
further adjustment is necessary to take into account the slow months
experienced in Respondent’s bar and lounge business.
Daniel Jones, Respondent’s former managing director and
currently general manager of a nearby hotel owned by Re-
spondent’s parent entity, testified that Respondent’s bar and
lounge business was heavily impacted by big events at the
Forum and Hollywood Park and was not significantly af-
fected by room reservations in the hotel itself. According to
Jones, there was a substantial drop in bar business from July
through September because there were few big-named events
at the Forum and the racing season ended at Hollywood Park
in June. Jones stated that $15,000 a month in bar revenue
was considered by Respondent to be a better than average
month. Jones testified that during the busy months, the basic
staffing of the bar consisted of one daytime bartender, one
and a half bartenders at night (the daytime bartender working
part of the night shift), and two cocktail waitresses. He fur-
ther testified that during the slow months, Respondent made
adjustments in the staffing and the opening and closing hours
of the bar and lounge. Thus, according to Jones, Respondent
would reduce the number of employees working each shift,
reduce the number of shifts, open the bar and lounge later
and close earlier, or use any combination of those arrange-
ments.
Sal Moustafa, executive vice president of Respondent’s
parent corporation and former comptroller of Respondent,
testified that Respondent’s busy season in the bar and lounge
began in November of each year and continued until late
June. According to Moustafa, during the busy period, Re-
spondent used two bartenders and one and a half or two
waitresses. He stated during the slow months this was re-
duced to one bartender and one waitress or one bartender
only.
Discriminatee Bell-Nagy, the full-time waitress in the bar,
testified that the slow months were August and September of
each year. She stated that during the slow months she would
leave early in order to give the part-time waitress (Morrow)
some hours, or if Morrow were not working, she would leave
and the bartender would serve the customers.
Respondent introduced into evidence a summary of its
monthly bar revenue for the years 1987, 1988, 1989, and the
first 5 months of 1990. This summary reveals a substantial
drop in bar revenue for the months of August and September
in 1987 and 1988 and for the months of August through Oc-
tober in 1989. (R. Exh. 3.)
Based on Respondent’s own records and the testimony of
Bell-Nagy, which I credit on this point, I find the General
Counsel correctly concluded that the slow periods in Re-
spondent’s bar business normally occurred during the months
of August and September of each year. Therefore, adjust-
ments were necessary to reflect this reduction in hours and
earnings in the specification. But the adjustments made here,
while affecting the tip income of all the discriminatees, only
related to the hours worked by discriminatee Morrow. Be-
cause of this, I agree with Respondent and find that the for-
mula, as calculated by the General Counsel, does not present
a reasonable approximation of the backpay due the
discriminatees. The formula, as applied here, overstates the
average hours projected to have been worked by the
discriminatees during the backpay period and consequently,
also overstates the projected tip income that would have been
earned by them.
For this reason I find, in agreement with Respondent, that
the weekly average of the hours worked during the full cal-
endar year preceding the unfair labor practices is a more ap-
propriate means of approximating the hours the employees
would have worked during the backpay period. There is no
indication in the record that Respondent’s bar business, nor
the hours the employees worked, fluctuated substantially
from year to year. Therefore, this average of the weekly
hours worked in the preceding year would more accurately
approximate the hours that would have been worked during
the backpay period, and would take into account the slow
months experienced in August and September. Respondent
supplied a summary setting forth the hours worked by the
discriminatees for the year 1987 and there is no dispute as
to the accuracy of this data. (See R. Exh. 4.)
On the basis of the above, the formula utilized by the
General Counsel will be altered to reflect the following aver-
age weekly hours for the discriminatees for each calendar pe-
riod:5
Pedro Montero 30.16
Reinaldo Zamora 33.67
Danelle Bell-Nagy 26.62
Robin Morrow 20.09
D. The Discriminatees’ Tip Income
Respondent contends the tip income set forth in the speci-
fication grossly overstates the tip income that would have
been earned by the discriminatees during the backpay period.
Respondent asserts that each of the discriminatees ‘‘unabash-
edly and freely admitted’’ they did not always report tip in-
come on their timecards or when they did, they entered
amounts far below that which was actually received. Further-
more, that the discriminatees also admitted they only re-
ported the amounts entered on their timecards when filing
their income tax returns with the Internal Revenue Service
(IRS); in contravention of the IRS requirement that such in-
come be reported fully. Therefore, according to Respondent,
the claim of the discriminatees that they received a substan-
tially larger amount in tip income than reported on their
timecards or to IRS must be rejected. Respondent argues that
the claim of higher tip income is an admission that the
discriminatees violated the Federal income tax laws and such
conduct should not be condoned by the Board. In addition,
Respondent contends the claim of higher tip income is based
solely on the unsupported statements of the discriminatees,
which Respondent asserts is unworthy of belief.
The compliance officer testified that he based the hourly
tip income of the discriminatees on their written representa-
tion of the amount of tips received during the representative
period. Montero, the evening bartender, testified he consist-
ently understated the amount of the tips he received when he
turned in his biweekly timecard. According to Montero, the
patrons of the bar and lounge during the Lakers, Kings, and
the Racetrack season were ‘‘big tippers.’’ He characterized
the customers who attended the big-named special events at
the Forum as big tippers as well. Montero stated he averaged
approximately $1000 a month in tips, although he acknowl-
edged that he received a lesser amount in tips during the
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The bartenders not only received tips directly from the customers
they served but also from a ‘‘split’’ of a portion of tips received by
each bar waitress. The amount of the ‘‘split’’ depended on the gen-
erosity of the individual waitress.
7 The General Counsel’s request that official notice be taken of
sec. 6053(c) of the IRS code is granted. This section provides for
employer allocation of 8 percent of gross receipts among the em-
ployees as tip income.
8 Hacienda Hotel & Casino, 279 NLRB 601 (1986). (Then Chair-
man Dotson dissenting.)
9 Id. at fn. 4.
slow periods of August and September.6 Of this amount, he
more often than not reported an amount of $50 on his time-
card. Montero stated that Han Park, Respondent’s personnel
director, instructed him not to report more than $60 in tips
per pay period. Montero also testified that when he received
his W-2 forms from Respondent for tax purposes each year,
the forms did not allocate any amount for tip income based
on Respondent’s gross receipts from the bar.7
Zamora testified he averaged approximately $200 a week
in tips. As in the case of Montero, he stated the tip income
was less during the slow months but increased sharply when
big-named events occurred at the Forum. Zamora admitted
that he grossly underreported his tips on his timecard and ar-
bitrarily stated even amounts on the card. Zamora also ac-
knowledged there were occasions when he did not report any
tips on his card because he forgot to do so. This was true
even though Park issued a written memorandum to all
‘‘tipped employees’’ in June 1987 reminding them to report
all tip income on their timecards. (R. Exh. 9.)
Morrow also admitted she did not report the true amount
of her tips on her timecard. According to Morrow, she aver-
aged approximately $500 a week in tips. During the slow pe-
riods that she worked, Morrow stated she averaged $250 a
week in tips. The timecards indicate that Morrow only re-
ported $100 as the amount she received biweekly in tips.
Morrow further testified that Respondent never allocated an
amount for tips on her W-2s and consequently she never de-
clared the tip income on her tax returns.
Bell-Nagy described Respondent’s operation as a ‘‘ridicu-
lously good tip bar’’ because the patrons, for the most part,
were gamblers with ‘‘no value for money.’’ Bell-Nagy stated
she received at least $550 a week in tips except for the slow
months of August and September. Of this amount, she con-
sistently reported $100 on her biweekly timecard. Bell-Nagy
further testified she made it a practice to keep a record of
all her tips and gross sales each year until she received her
W-2s from Respondent; at which time she would destroy her
record. She stated she did this to make certain Respondent
did not exceed the 8-percent allocation for tip income re-
quired by IRS. According to Bell-Nagy, however, Respond-
ent never made any allocation on her W-2 forms for tip in-
come but included the amount she declared on the timecards
as part of her gross wages. Bell-Nagy further stated that
when she questioned Respondent’s comptroller about this,
she was told not to be concerned because she was listed as
a ‘‘banquet employee.’’
Having observed all the discriminatees during the course
of their testimony, I credit their statements regarding the
amount of tip income they regularly received at Respond-
ent’s establishment. Even though none of the discriminatees
produced any written record of tips earned, each steadfastly
adhered to his or her statements concerning the amount of
tip income generated by the clientele of the bar and lounge.
This is true despite the fact that the discriminatees were
aware that they were testifying under oath in this proceeding
and their statements were a matter of public record which
could subject them to possible prosecution and penalties for
failing to report their full income to the IRS. See Original
Oyster House, 281 NLRB 1153 (1986). In addition, I find
the calendar of the events at the Forum (G.C. Exh. 5) for the
year and a half preceding the unlawful discharges, as well
as Respondent’s summary of monthly revenue (R. Exh. 3),
supports the discriminatees’ testimony that the Forum and
Racetrack events generated a lively bar business that pro-
duced lucrative tips.
As to Respondent’s contention that the tip income must be
limited to the amount claimed on the discriminatees’ time-
cards and reported on their Federal income tax returns, this
argument must be rejected. This same contention was raised
and rejected by a Board majority in Hacienda Hotel & Ca-
sino.8 There the Board held that while it was not unmindful
of (the discriminatee’s failure to accurately report her tip in-
come on her Federal income tax returns), it had become a
matter of public record in the Board proceeding and a copy
of the Board’s decision would be forwarded to the IRS.
Thus, the Board decided that a discriminatee’s failure to ac-
curately report tip income was a matter best left to the IRS.
To do otherwise would ‘‘frustrate the purpose of the Act by
allowing the Respondent as wrongdoer to benefit from [the
discriminatee’s] failure to accurately report her income to the
IRS.’’9 This rationale was subsequently reiterated by the
Board in Oyster House, supra at fn. 1. Therefore, the same
argument presented here by Respondent must likewise be re-
jected.
E. The Interim Employment of the Discriminatees
Respondent contends that the discriminatees failed to make
a diligent search for interim employment during the backpay
period and, therefore, sustained a willful loss of earnings
which would reduce the amount of backpay each was entitled
to receive. Longstanding case law places the burden on Re-
spondent to affirmatively establish that the discriminatees did
not exercise reasonable diligence in securing substantially
equivalent employment during the interim period. Kawasaki
Motors Mfg. Corp., U.S.A. v. NLRB, 850 F.2d 524 (9th Cir.
1988); NLRB v. Mooney Aircraft, 366 F.2d 809 (5th Cir.
1966); Colorado Forge Corp., 285 NLRB 530 (1987); Rain-
bow Coaches, 280 NLRB 166 (1986). On the basis of the
record here, I find that Respondent has failed to meet this
burden regarding each of the discriminatees.
Montero: The undisputed evidence reveals that very short-
ly after his discharge, Montero began working at the
Stouffers Concource Hotel. Because he worked on split
shifts, he was not available to search for employment else-
where. Montero testified that on the days he was not as-
signed to work, he remained at home to be ‘‘on call’’ in the
event he was needed as a replacement at Stouffers. Due to
reduction in his income, Montero’s wife had to secure em-
ployment. As a result, throughout the backpay period
Montero continued to work split shifts at Stouffers and sub-
sequent employers in order to care for his children while his
wife was at work. The record reveals that Montero was em-
861AIRPORT PARK HOTEL
10 At the time of the instant hearing, Morrow, who had been rein-
stated by Respondent, left Respondent’s employment for a full-time
position with Epicurean at the racetrack. According to Morrow, it
normally took 2 to 3 years for a waitress to go from part-time to
full-time status at the racetrack.
ployed in this fashion for each quarter of the backpay period.
(R. Exh. 2(d).)
On the basis of the above, I find that Respondent has not
established that Montero did not diligently search for interim
employment or that he sustained a willful loss of earnings.
To the contrary, Montero was gainfully employed in a simi-
larly equivalent position almost immediately after his unlaw-
ful discharge. The fact that he was initially hired to work
split shifts and continued to work in this manner, after his
wife had to secure a job, in order to care for their children,
does not demonstrate a lack of diligence or a willful loss of
earnings. Accordingly, Respondent’s argument in this regard
is without merit.
Zamora: Zamora did not immediately secure another full-
time position until early September 1988. He credibly testi-
fied that he worked part-time at the Hacienda Hotel and drew
unemployment compensation from May to September. He
did so because he was hoping to secure a full-time position
at the Hacienda. On September 9, Zamora became employed
on a full-time basis at a Howard Johnson Hotel, where he
remained for the balance of the backpay period. He also con-
tinued to work part time at the Hacienda. Thus, the record
does not establish that Zamora failed to make a reasonably
diligent search for equivalent interim employment or that he
willfully incurred a loss of earnings. Rather, he was gainfully
employed throughout the entire backpay period, and indeed,
held a full-time and a part-time position simultaneously for
the great majority of the backpay period. The fact that he
was only employed part time from May until September
1988 and drew unemployment compensation does not dem-
onstrate a lack of diligence. The Board looks at the backpay
period as a whole and not isolated portions to determine if
there has been a diligent search and an effort to secure in-
terim employment. Colorado Forge, supra; Kawasaki Mo-
tors, supra. In view of this, I reject Respondent’s arguments
concerning Zamora’s interim employment and earnings.
Morrow: The record indicates that Morrow worked as a
part-time waitress for an employer (Epicurean) that had the
bar concessions at the Los Alamitos and Hollywood Park
racetracks. As a part-time employee, Morrow was ‘‘on call’’
and subject to assignment at either racetrack on a 2- to 3-
hour notice. She also had to be available for possible work
at the racetracks on the weekends. When she was at Los
Alamitos, Morrow worked from 3 p.m. until midnight. At
Hollywood Park, her hours were from 10 a.m. until 6 p.m.
Morrow testified that she retained her on-call status with Epi-
curean for approximately 2 years in anticipation of receiving
a job as a full-time waitress at the racetrack.10
The records submitted by Morrow to the compliance offi-
cer disclose that she applied for jobs as a waitress with a
number of employers from the time of her discharge until
March 1989 without success. (See R. Exh. 1.) At the hearing
Morrow also testified that she applied for jobs with other
employers, but did not list them because she could not re-
member their names. In April 1989, Morrow secured a job
as a waitress at an establishment called the San Franciscan,
where she remained employed until reinstated by Respond-
ent. The record shows that Morrow had net interim earnings
of $500.51, $350.23, and $130.25 for the 2nd and 4th quar-
ters of 1988 and the 1st quarter of 1989, respectively.
Respondent contends that Morrow’s low level of interim
earnings during various portions of the backpay period estab-
lish a lack of diligence in searching for interim employment,
and demonstrates a willful loss of earnings which should re-
duce the amount of backpay to which Morrow is entitled.
Neither the record evidence nor the case law supports this
contention.
First, the case law does not apply the highest standard of
diligence to an employee’s search for interim employment,
but only requires ‘‘reasonable exertions in this regard.’’ Col-
orado Forge, supra (and the cases cited therein). See also
Rainbow Coaches, supra. What is required is ‘‘an honest and
good faith effort’’ and the ‘‘ultimate test’’ is ‘‘whether [the
efforts] are consistent with the inclination to work and to be
self-supporting.’’ Kawasaki Motors, supra at 527.
Applying the case law to the facts here, it is evident that
Respondent has not established that Morrow failed to engage
in a diligent search for interim employment. Morrow secured
a waitress position with Epicurean shortly after her discharge
and pursuant to the practice followed at that establishment,
had to be on-call, with short notice, as a part-time waitress
for several years in order to secure a full-time position. The
fact that her interim earnings were low during this period
does not demonstrate that Morrow was incurring a willful
loss of earnings but, rather, that she was putting in the time
necessary to secure a full-time position with an establishment
she desired. Nor was she completely removed from the job
market at this time. By the list in evidence and by her testi-
mony, which I credit, it is evident that she was actively seek-
ing interim employment during the time available to her. Nor
does the fact that Morrow could not recall the names of all
the establishments she contacted during this period invalidate
this conclusion. Ben Susan Restaurant Corp., 296 NLRB 997
(1989). That Morrow ultimately secured a position with
longer hours at the San Franciscan in April 1989 while still
seeking a full-time position with Epicurean—which she re-
ceived after her reinstatement by Respondent—only serves to
further support the conclusion that Morrow actively sought
and obtained interim employment.
In sum, I find Respondent has not established that Mor-
row’s efforts to secure interim employment were less than
diligent or that she incurred a willful loss of earnings during
the backpay period.
Bell-Nagy: The record discloses that Bell-Nagy secured
substantially equivalent full-time employment shortly after
she was discharged by Respondent and maintained full em-
ployment throughout the backpay period. Respondent has of-
fered nothing to refute this evidence. Therefore, it is clear
that Respondent has fallen far short of sustaining its burden
regarding the interim earnings of Bell-Nagy.
CONCLUSIONS OF LAW
1. The formula utilized by the General Counsel does not
reasonably approximate the hours the discriminatees would
have worked during the backpay period in this matter.
2. The amount calculated as the rate of hourly tip income
for each discriminatee in this matter reasonably approximates
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
12 Interest is to be computed as provided in the Board’s Order
dated September 13, 1989.
the hourly rate of tip income the discriminatees would have
earned during the backpay period.
3. The Respondent has not sustained the burden of estab-
lishing that the discriminatees failed to diligently seek sub-
stantially equivalent interim employment or that they in-
curred a willful loss of earnings.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Lee Hotel Corp. d/b/a Airport Park
Hotel, Inglewood, California, its officers, agents, successors,
and assigns, shall
Pay to the following named discriminatees the amounts of
money set opposite their respective names, and detailed in
Appendices A–D, plus interest accrued thereon to the date of
payment,12 less income tax withholdings required by Federal
and state laws:
Pedro Montero $14,360.70
Reinaldo Zamora 14,993.18
Danelle Bell-Nagy 18,072.79
Robin Morrow 17,260.29
APPENDIX A
PEDRO MONTERO
YR./QTR. HOURLYRATE
HOURLY
TIP IN-
COME
HOURS
PER
WEEK
WEEKS
PER QTR.
GROSS
BACKPAY
INTERIM
EARNINGS
INTERIM
EX-
PENSES
NET IN-
TERIM
EARNINGS
NET
BACKPAY
1988
2 $6.59 $6.75 30.16 7 $2,816.34 $1,056.95 $17.50 $1,039.45 $1,776.89
3 ’’ 6.75 ’’ 13 1,282.40
2,358.78
5,230.35 22.60 34.00 3,629.78 1,600.57
4 ’’ 6.75 ’’ ’’ 95.00
1,449.60
5,230.35 790.98 - 0 - 2,335.58 2,894.77
1989
1 ’’ ’’ ’’ ’’ 1,751.20
5,230.35 75.50 - 0 - 1,826.70 3,403.65
2 ’’ ’’ ’’ ’’ 2,443.16
5,230.35 1,202.00 - 0 - 3,645.16 1,585.19
3 ’’ ’’ ’’ ’’ 1,654.52
5,230.35 1,122.59 - 0 - 2,777.11 2,453.24
4 6 2,414.01 1,767.62 - 0 - 1,767.62 646.39
Total Net
Backpay: $14,360.70
APPENDIX B
REINALDO ZAMORA
YR./QTR. HOURLYRATE
HOURLY
TIP IN-
COME
HOURS
PER
WEEK
WEEKS
PER QTR.
GROSS
BACKPAY
INTERIM
EARNINGS
INTERIM
EX-
PENSES
NET IN-
TERIM
EARNINGS
NET
BACKPAY
1988
2 $6.51 $5.55 33.67 7 $2,842.42 $275.00 $25.00 $250.00 $2,592.42
3 ’’ ’’ ’’ 13 300.00
5,278.78 839.75 - 0 - 1,139.75 4,139.03
4 ’’ ’’ ’’ ’’ 5,278.78 3,686.00 - 0 - 3,686.00 1,592.78
863AIRPORT PARK HOTEL
APPENDIX B—Continued
REINALDO ZAMORA
YR./QTR. HOURLYRATE
HOURLY
TIP IN-
COME
HOURS
PER
WEEK
WEEKS
PER QTR.
GROSS
BACKPAY
INTERIM
EARNINGS
INTERIM
EX-
PENSES
NET IN-
TERIM
EARNINGS
NET
BACKPAY
1989
1 5,278.78 3,609.75 - 0 - 3,609.75 1,669.03
2 5,278.78 3,211.00 - 0 - 3,211.00 2,067.78
3 5,278.78 3,371.25 - 0 - 3,371.25 1,907.53
4 6 2,436.36 1,411.75 - 0 - 1,411.75 1,024.61
Total Net
Backpay: $14,993.18
APPENDIX C
DANELLE BELL-NAGY
YR./QTR. HOURLYRATE
HOURLY
TIP IN-
COME
HOURS
PER
WEEK
WEEKS
PER QTR.
GROSS
BACKPAY
INTERIM
EARNINGS
INTERIM
EX-
PENSES
NET IN-
TERIM
EARNINGS
NET
BACKPAY
1988
2 $4.43 $16.50 26.62 7 $109.69
218.75
123.39
3,900.10 1,846.15 53.00 2,495.68 1,404.42
3 ’’ ’’ ’’ 13 203.00
300.00
7,243.04 2,500.00 - 0 - 3,003.00 4,240.04
4 ’’ ’’ ’’ ’’ 1,195.00
51.72
7,243.04 2,043.55 - 0 - 3,290.27 3,952.77
1989
1 ’’ ’’ ’’ ’’ 345.00
7,243.04 1,875.00 - 0 - 2,220.00 5,023.04
2 ’’ ’’ ’’ ’’ 1,362.52
67.31
7,243.04 2,100.00 17.00 3,790.52 3,452.52
3 ’’ ’’ ’’ ’’ 4,725.00
1,715.50
473.76
7,243.04 1,250.00 55.00 8,109.26 - 0 -
4 ’’ ’’ ’’ 6 3,342.94 3,923.10 - 0 - 3,923.10 - 0 -
Total Net
Backpay: $18,072.79
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX D
ROBIN MORROW
YR./QTR. HOURLYRATE
HOURLY
TIP IN-
COME
HOURS
PER
WEEK
WEEKS
PER QTR.
GROSS
BACKPAY
INTERIM
EARNINGS
INTERIM
EX-
PENSES
NET IN-
TERIM
EARNINGS
NET
BACKPAY
1988
2 $4.16 $12.50 20.09 7 $2,342.90 $520.51 $20.00 $500.51 $1,842.39
3 ’’ ’’ ’’ 13 4,351.09 1,408.27 25.00 1,383.27 2,967.82
4 ’’ ’’ ’’ ’’ 4,351.09 380.23 30.00 350.23 4,000.86
1989
1 ’’ ’’ ’’ ’’ 4,351.09 170.25 40.00 130.25 4,220.84
2 ’’ ’’ ’’ ’’ 1,380.00
4,351.09 299.53 20.00 1,360.00 2,991.09
3 ’’ ’’ ’’ ’’ 4,351.09 3,402.50 - 0 - 3,402.50 948.59
4 ’’ ’’ ’’ 6 2,008.20 1,734.50 15.00 1,719.50 288.70
Total Net
Backpay: $17,260.29