Amshu Assiciates, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1978

234 N.L.R.B. 791 (N.L.R.B. 1978)

AMSHU ASSOCIATES, INC., ET AL.
Amshu Associates, Inc., and Spring Valley Garden
Associates; and Sam Halpern and Mark Weidman,
a Co-partnership, d/b/a Kennedy Realty Company
and Building Service Employees International
Union, Local 32E, AFL-CIO. Cases 2-CA-13401
and 2-CA-13422
February 8, 1978
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On October 26, 1977, Administrative Law Judge
Irwin Kaplan issued the attached Supplemental
Decision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Amshu Asso-
ciates, Inc., and Spring Valley Garden Associates;
and Sam Halpern and Mark Weidman, a Co-part-
nership, d/b/a Kennedy Realty Company, Spring
Valley, New York, its officers, agents, successors,
and assigns, shall pay the amounts set forth in the
said recommended Order.
I The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
2 In his recommended Order, the Administrative Law Judge inadvertent-
ly referred to interest to be paid at 7 percent; however, Florida Steel
Corporation, 231 NLRB 651 (1977), does not apply in supplemental
decisions involving cases wherein an earlier decision providing for 6-percent
interest payments has been enforced by a court of appeals.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: On June 25,
1975, the National Labor Relations Board, hereinafter
called the Board, issued its Decision and Order' directing
234 NLRB No. 125
Respondent,2 to reinstate and make whole, with interest,
employee Thomas Hopkins for any loss of earnings
suffered by reason of the discrimination against him. On
June 11, 1976, the Board's Decision and Order was
enforced by the United States Court of Appeals for the
Second Circuit.3 On November 29, 1976, the Supreme
Court of the United States denied certiorari.4 The parties
being unable to agree on reinstatement and on the amount
of backpay due, the Regional Director for Region 2 issued
a backpay specification dated January 21, 1977 (amended
at the hearing). The gross backpay specification included
the fair market value of a four room apartment and the
monthly value of gas, electric, and telephone utilities. The
net backpay as set forth in the backpay specification
included medical or insurance expenses. The aforemen-
tioned items had all been provided for Hopkins by
Respondent without charge. The Respondent filed an
answer thereto (amended at the hearing) denying, inter alia,
that Hopkins is entitled to any backpay because assertedly
Hopkins made no effect to mitigate damages by seeking
employment elsewhere. Further, Respondent denies that
the fair value of the apartment and utilities are proper
items includable in the gross backpay amount. The answer
contains no reference with regard to reinstatement or
medical benefits.
218 NLRB 831 (1975).
2 Kennedy Realty Company (herein Kennedy) was named in the
backpay specification as an additional Respondent and the caption herein is
as set forth in said backpay specification. The backpay specification alleges
that Amshu Associates Inc. (herein Amshu), and Kennedy constitute a
single employer within the meaning of the Act. Amshu's counsel asserted
that he was authorized to represent Kennedy and objects to naming
Kennedy as a Respondent as it was not named as a party in the earlier
hearing regarding the unfair labor practices. He concedes that Kennedy is a
successor to Amshu. The record reveals that on or about June 1, 1973,
Amshu conveyed to Kennedy the land, with buildings and improvements
thereon, situated at Old Nyack Turnpike, Spring Valley, New York, and
commonly referred to as Sleepy Hollow Gardens. Thomas Hopkins, the
discriminatee herein was employed as the resident superintendent from late
August 1973 to July 22, 1974, at Sleepy Hollow Gardens. Further, the
parties stipulated and I find that on or about May 1, 1975, Kennedy
conveyed the fee in Sleepy Hollow Gardens to Daniel Amster as trustee, and
subsequently Amster conveyed the property to George Rothman, but
Kennedy continued to manage the property as agent for Rothman. Still
further the parties stipulated and I find that Kennedy prepares the payroll,
issues checks, provides workman's compensation and other benefits and
employs Hopkin's replacement. The shareholders and officers of Amshu are
the following: Sam Halpern, president, Mark Weidman, vice president,
Harry Wilf, secretary, Meyer Gold, Jacob Burstyn, Arie Halpern, and
Joseph Wilf. The aforenamed individuals comprise the partnership in
Kennedy. Based on the findings in the earlier case (218 NLRB 831) and
supplemented further by the record in this case, it is clear that Sam Halpern
and Mark Weidman principally set and execute the labor relations policy
for Amshu and Kennedy. In view of the foregoing and the record as a
whole, I find that Amshu and Kennedy comprise a single employer within
the meaning of the Act. In any event the Board's Order herein is directed
against Amshu, its officers, agents, successors, and assigns and it is
conceded that Kennedy is a "successor" to Amshu. Since the principals for
both entities are the same and as Kennedy was named as a party in the
backpay specification, it cannot be denied that Kennedy had knowledge of
the earlier unfair labor practice litigation or that Kennedy was precluded
from contesting its liability in the backpay proceeding. Accordingly, I find
that Kennedy is properly designated a Respondent. Golden State Bottling
Co., Inc., Formerly Pepsi-Cola Bottling Co. of Sacramento v. N. LRB., 414
U.S. 168 (1973). See also Ponn Distributing, Inc. and Cott Corporation, 232
NLRB 482 (1977).
3 538 F.2d 312 (C.A. 2, 1976).
4 429 U.S. 979 (1976).
791
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A hearing was held before me at New York, New York,
on April 6 and 7, 1977. Briefs, which have been carefully
considered, have been received from General Counsel and
Respondent.
Upon the entire record in this case, and from observation
of the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE ISSUES
The principal issues are: 5
(1) Whether Hopkins sustained a willful loss of earnings
throughout the entire backpay period.
(2) Whether the earnings of Hopkins' replacement is
properly a basis for determining gross backpay for all or
part of the backpay period.
(3) Whether Hopkins is entitled to the fair rental value of
the living quarters (apartment) including utilities which
Respondent provided him without cost as compensable
income for the backpay period.
(4) Whether Hopkins is entitled to reimbursement for
medical premiums and expenses incurred by him during
the backpay period.
(5) Whether Hopkins is entitled to reinstatement.
A. Whether Hopkins Willfully Lost Earnings
Thomas Hopkins and his wife resided at the Sleepy
Hollow apartments in Spring Valley, New York, in the
county of Rockland from September 1973, until Thomas
Hopkins was terminated on July 22, 1974. During the
aforesaid period, Mr. and Mrs. Hopkins apparently owned
a home in Yonkers, New York, in the county of Westches-
ter." They resided exclusively in Yonkers after Hopkins
was terminated. Hopkins credibly testified that after he
was terminated in 1976, he filled out an application for
employment as a superintendent at the New York State
Unemployment Office in Yonkers, New York, and collect-
ed unemployment benefits. He last appeared at the
unemployment office for the purpose of securing employ-
ment in August or September 1975. Additionally, during
the backpay period, Hopkins, on approximately five
occasions, visited real estate offices in an attempt to secure
employment as a superintendent, handyman, or some other
related position. He left his name and address at each place
but no offer was forthcoming. He did not have advance
information that there were openings but simply took a
chance that he might learn of a job opportunity. On one
occasion in 1975, Hopkins was interviewed by the manager
of Hudson House, an apartment house in Irvington, New
Jersey. Hopkins was not aware of any particular job
opening at the Hudson House, but he was inquiring as he
I Respondent in its brief argues that the unemployment compensation
received by Hopkins during the backpay period be offset against any
amount of backpay awarded. It has long been settled that unemployment
compensation is not interim earnings deductible from gross backpay. Gullett
Gin Company, Inc. v. N.LR.B., 340 U.S. 361 (19 51); Yanma Woodcraft, Inc.,
d/b/a Cal-Pacific Furniture Mfg. Co., 221 NLRB 1244 (1975). Accordingly,
Respondent's contention in this regard is rejected.
e The record is not clear whether Hopkins or his son owns the home.
Hopkins testified that while the house is in his name, his son bought the
house and he regards his son as the owner.
7 While in some areas Hopkins' testimony was confusing and he
had at other places. Hopkins also tried to secure employ-
ment by asking other superintendents, friends, and rela-
tives whether they knew of any superintendent or related
jobs. Thus friends of his recommended that he inquire
regarding a handyman position at Bellino Brothers and
Precision Valve Corporation, both factories in Yonkers,
New York. He was told that there were no openings. On
another occasion he applied for a position as boiler
maintenance man and operator at Sarah Lawrence College
which was also referred to him by a friend but he did not
get the job. He tried to secure related employment in
construction as a number of his relatives are involved in
that field but again there were no jobs for him. He
attributed this in large measure to his age. At the time of
the instant hearing, Hopkins was nearly 65 years old.
Building Service Employees International Union, Local 32
E, AFL-CIO (herein the Union), filed the underlying
charge on behalf of Hopkins and accordingly it was aware
that he was not working. In addition, after he was
terminated he contacted the local union at 149th Street,
Grand Concourse, Bronx, New York, and thereafter in
1975, called Kenneth Childers, the Union delegate in
Spring Valley, inquiring about jobs. He asked Childers to
let him know of any job opportunities. Hopkins did not
contact the Union in 1976 or thereafter.
Still further, with regard to Hopkins' efforts to secure
employment during the backpay period, he and his wife
canvassed the Herald Statesman, a Yonkers newspaper
which was delivered to his home every day. Hopkins
testified that from the time he was discharged he saw
approximately 25 advertised jobs for the position of
superintendent, some of which he was not qualified. For
example, the advertisement might indicate that a high
pressure license is needed for high pressure boilers, or that
the facility involved is centrally air-conditioned requiring
an air-conditioning license and Hopkins does not have
such licenses. Still other jobs may require a live-out
superintendent. In this regard, Hopkins had been a
resident superintendent for over 26 years and had always
shared an apartment with his wife on the premises. The
newspaper advertisements normally indicated whether an
apartment is available on the premises. Hopkins credibly
testified that while he did not respond to every job
advertisement in the newspaper for which he was qualified,
he did respond telephonically to many of them and no
offer was forthcoming. As previously stated, it was his view
that his age was a major factor in his inability to secure
employment. While he concedes that no one ever expressed
to him that his age was a factor, he was always asked how
many years experience he had, the age of his children, and
similar questions so that according to Hopkins his age was
apparent.
conceded that his "memory is not as good as it was at one time," I find that
overall his testimony reflected candor and is worthy of belief. It is noted that
the hearing was more than 2-1/2 years after his termination and it is
therefore not unusual that Hopkins experienced some difficulty recalling the
specific details of his search for work. See Southern Household Products
Company, Inc., 203 NLRB 881, fn. 4 (1973). Further, and while not
overriding, it is noted that the Administrative Law Judge in the earlier
unfair labor practice case (218 NLRB at 835) also credited Hopkins'
testimony. In view of the foregoing and on my observation of Hopkins'
demeanor, I credit his testimony in all material respects.
792
AMSHU ASSOCIATES, INC., ET AL.
Respondent argues in its brief, inter alia, that Hopkins
did not exercise due diligence in looking for openings as
evidenced by his failure to examine employment advertise-
ments in the Sunday edition of the New York Times.
According to Respondent, for the entire year following
Hopkins' discharge, the Sunday New York Times indicated
1,071 total openings for building superintendents. It is
significant to note, however, that even by Respondent's
account only two of these related to facilities in Rockland
County wherein Respondent is situated and another 66
involved Westchester County locations wherein Hopkins
resided.8 Respondent produced no evidence that Hopkins
was qualified to fulfill any of these so-called openings. In
this regard, it is noted that Hopkins was nearly 65 years old
and lacked certain licenses. In addition, Hopkins required
an apartment on the premises for him and his wife. Of
overriding significance however is that the record is devoid
of any evidence tending to show that even if Hopkins
applied, he would have been offered a job, or further that
he rejected any offer of employment. In any event, I know
of no requirement that Hopkins consult the New York
Times. 9 Accordingly, I find that Hopkins' failure to do so
does not warrant a negative inference with regard to his
efforts to secure interim employment. t0
Respondent questions Hopkins' search for interim em-
ployment noting in its brief that even by Hopkins' account
he only contacted the Union twice in 1974 and once in
1975. In this regard, the record reveals that the Union filed
the underlying unfair labor practice charge on Hopkins'
behalf. Thus, the Union was aware of Hopkins' circum-
stances at least at the time of the earlier unfair labor
practice hearing in early 1975. Contrary to Respondent, I
find it of no consequence that Hopkins could not recall at
the instant hearing the names of union delegates he
contacted in 1974, approximately 2-1/2 years earlier, with
regard to securing employment. Moreover, Hopkins' un-
controverted testimony reveals that he called and spoke
with Kenneth Childers, union delegate in 1975, regarding
employment, and asked him to let him know of job
opportunities. Childers testified during the earlier unfair
labor practice case. I reject Respondent's assertion that
Hopkins' failure to contact the Union more often is
evidence of a willful loss of earnings.
Respondent argues additionally that Hopkins' effort to
secure employment was too meager to justify any backpay.
Respondent relies on in re N.L.R.B. v. Seamprufe, Inc.
(Holdenville Plant)," wherein an employee who during the
s Respondent is relying on photocopies from microfilm of the Sunday
New York Times for the entire year following the discharge. The material
offered as Resp. Exh. 2 is rejected for the reasons stated below. Shortly
before the instant hearing closed, Respondent's counsel asked leave to
submit copies of employment advertisements appearing in the New York
Times, Rockland County Journal News, and Westchester County newspa-
pers by 12 noon the following day. He did not request a continuance but
merely time to show the newspaper advertisements to General Counsel.
Further, he asked for leave for respective counsel to argue in their briefs the
appropriate weight to be given such material. I have, in accord with General
Counsel's objection thereto, viewed the request untimely and noted that the
pleadings sufficiently delineated the issues herein so that surprise could not
be contended. However, Respondent was permitted to submit the material if
there was no objection to the authenticity, but with no assurance that the
exhibit would be received in evidence. After examining the photocopies
submitted, I find it difficult to read and in some instances impossible to
decipher. Further, the material was not provided in duplicate. Thus, General
46-month period between discharge and reinstatement
made altogether six applications for work at various
establishments, at intervals ranging from 5 to 14 months
and was denied backpay. However, the instant case is
distinguishable on the facts. Thus, Hopkins, unlike the
discriminatee in the aforecited case, has responded to
newspaper ads and has actively sought employment else-
where including 'registering with the New York State
Unemployment Office. Similarly, Respondent's reliance on
N.LR.B. v. Southern Silk Mills, Inc.,12 is distinguishable.
According to Respondent, Hopkins should be charged with
not seeking other available, suitable employment. Respon-
dent, however, ignores the record. For example, Hopkins
credibly testified that he applied for employment as an
assistant super, a handyman at factories including Bellino
Brothers and Precision Valve, and even tried to obtain
employment in the construction industry to no avail.
Respondent while offering no affirmative evidence seems
to expect a diminution of backpay on the basis of its naked
assertion that Hopkins would have secured employment if
he exercised reasonable diligence. In this connection,
Administrative Law Judge Weil's following comments in
his decision in The Laidlaw Corporation 13 are noted:
Respondent apparently misconceives its burden herein
to show, by a preponderance of the evidence, whatever
mitigating circumstances exist. With the exception of a
bundle of unassimilated newspaper advertisement and
a letter from the state authorities concerning the
relative level of unemployment in Peru, Respondent
produced no evidence of any employment available to
any discriminatee, nor of the willful failure of any to
accept such employment. Where records exist, such as
hospital records, employment office records, earnings
records and the like, Respondent made no apparent
effort to secure them. It is not enough that Respondent
thinks that employees should have been able to secure
jobs. Suspicion and surmise are no more valid bases for
decision in a backpay hearing than in an unfair labor
practice hearing, and I decline to indulge in them.
It has been consistently held that in a backpay proceed-
ing the burden is on the General Counsel to show the loss
of earnings or other income (collectively gross backpay)
due the discriminatee, whereas the burden is upon the
employer to establish facts which would negative the
Counsel quite properly argues that the material was not available to him for
use in preparation of his brief. Still further, the exhibit is incomplete in that
it does not contain job advertisements from Rockland and Westchester
Counties as represented by Respondent's counsel. In these circumstances,
and noting the untimely nature of the offer, I find no justifiable basis for
receiving the material in evidence. Accordingly, Resp. Exh. 2 shall be
deemed a rejected exhibit.
9 Midwest Hanger Co. and Liberty Engineering Corp., 221 NLRB 911, 922
(1975), enfd. in relevant part 550 F.2d 1101 (1977); United Aircraft
Corporation, 204 NLRB 1068 (1973). Florence Printing Company, 158 NLRB
775, 777 (1966), enfd. 376 F.2d 216 (C.A. 4, 1967), cert. denied 389 U.S. 840.
o1 Airports Service Lines, Inc., 231 NLRB 1272 (1977); Midwest Hanger
Co., supra.
It 222 F.2d 858 (C.A. 10, 1955).
i2 242 F.2d 697 (C.A. 6, 1957).
13 207 NLRB 591, 594 (1973), enfd. 507 F.2d 1381 (C.A. 7, 1974), cert.
denied 422 U.S. 1042(1975).
793
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existence of liability to a given employee or which would
mitigate that liability. 14 For example, a respondent may
show that a discriminatee willfully incurred loss by a
clearly unjustifiable refusal to take new employment,' 5 but
this is an affirmative defense and the burden of proof is on
the respondent.1 6 The discriminatee, on the other hand,
must make a diligent or reasonable search for interim
work' 7 or reasonable efforts to mitigate his loss of
income.' 8 The test, then, is whether the claimant made a
diligent and reasonable search for employment or whether
he incurred willful losses.19 The foregoing principles serve
as parameters in evaluating the amount of backpay, if any,
due a claimant. However, their application to the facts
adduced in a given case sometimes prove difficult because
of the time lag between the hearing of the unfair labor
practice case and the backpay proceeding as memories
fade. It is largely for this reason that the courts and the
Board generally resolve conflicts in favor of the innocent
discriminatee. As expressed in United Aircraft Corpora-
tion,20 "[A]s the courts and the Board have generally
indicated, the backpay claimant should receive the benefit
of any doubt rather than the Respondent, the wrongdoer
responsible for the existence of any uncertainty and against
whom any uncertainty must be resolved."21
In applying the principles set forth above to the instant
case, it is noted that the discriminatee, Thomas Hopkins,
testified in support of the backpay specification (gross
backpay) and his efforts to secure employment. As previ-
ously noted, despite his inability to recall some names and
places, Hopkins credibly testified that he read the want ads
in the local newspaper and responded telephonically
thereto, consulted other superintendents, friends and rela-
tives, visited at least five real estate offices, appeared at the
Hudson House in Irvington, New Jersey, and Sarah
Lawrence College, made inquiries at several factories
including Bellino Brothers and Precision Valve, registered
with the New York State Unemployment Office and
contacted the Union all in the pursuit of jobs during the
backpay period. Thus, Hopkins' testimony establishes a
prima facie case for finding that he made a reasonably
diligent search to secure work. 22 Under applicable law as
set forth above, the burden shifts to the Respondent to
establish that Hopkins incurred willful loss of earnings. In
this regard, Respondent produced no probative evidence2 3
tending to show that there were jobs available which would
have been offered had Hopkins applied or that he rejected
any job offers. Respondent relied then on the testimony
14 DeLorean Cadillac. Inc.. 231 NLRB 329 (1977); Southern Household
Products Company, Inc., 203 NLRB 881, fn. 2 (1973); Midwest Hanger Co.,
supra.
15 Phelps Dodge Corporation v. N.LR.B., 313 U.S. 177, 199-200(1941).
11 N.L.R.B. v. Mooney Aircraft, Inc., 366 F.2d 809, 813 (C.A. 5, 1966);
Southern Household Products, supra.
1" N.L.R.B. v. Arduini Manufacturing Corp.. 394 F.2d 420, 423 (C.A. I.
1968): The discriminatee "is held . . . only to reasonable exertion in this
regard, not the highest standard of diligence."
is Oil, Chemical and Atomic Workers International Union, AFL-CIO
(Kansas Refined Helium Co.), 547 F.2d 598 (C.A.D.C., 1976).
19 Midwest Hanger Co., supra.
20 204 NLRB 1068 (1973).
21 Case citations omitted.
22 Vanguard Oil and Service, Inc., and Vanco Heating, Plumbing and
Welding Co., 231 NLRB 146 (1977).
23 Respondent's collection of want ads from the New York Times for
adduced from Hopkins on cross-examination to show that
he did not diligently look for work. As Hopkins' testimony
is credited and noting his advanced age and other limita-
tions, I find that Respondent failed to establish that
Hopkins did not make a diligent search for employment
during the backpay period.24
B. Whether the earnings of Hopkins' Replacement
Is Properly a Basis for Determining Gross Backpay
Hopkins commenced working for Respondent in Sep-
tember 1973 at $110 per week. 25 From September 1973, to
July 22, 1974, the date of Hopkins' discharge, he received
two weekly wage increases, one consisting of $5 and
another of $10. Thus, Hopkins' salary was $125 a week at
the time of his termination. It is undisputed that Simon
Weisman 26 replaced Hopkins as superintendent. The
credited facts in the unfair labor practice decision reveal
that Weisman commenced working on or about July 1,
1974, as Hopkins' assistant.2 7 The parties stipulated and I
find that Weisman's starting salary was $130 per week, it
increased to $140 in January 1975, and further increased to
$150 in August 1975, which is the amount he is presently
earning.
General Counsel's original backpay specification in
pertinent part reads as follows:
11. Measure of Gross Backpay
(b) As a consequence of Respondent's failure to
furnish the appropriate records relating to wages and
overtime hours worked by its comparable employees
during the backpay period, a complete determination
of backpay due and owing cannot be made at this time.
Accordingly, said amounts are not set forth or included
in the Specification herein. The determination of such
additional backpay owing to the discriminatee is
specifically reserved, and notice hereby is given of
intent to amend this Specification where appropriate,
based upon the best available information, be it
Respondent's records or otherwise.
At the instant hearing, General Counsel amended the
sepcification to conform Hopkins' wages to that of Weis-
man, his replacement. Thus, General Counsel argues that
Hopkins' wages should be noted at $130 instead of $125 at
the time he was discharged, $140 from January 1975 to
reasons previously stated was rejected as an exhibit. See fn. 8, supra. In any
event in the circumstances of this case, the exhibit by itself would have
limited probative value. See Midwest Hanger Co., supra at 922, and other
cases previously cited in fn. 9. Further, it is noted that 1974 and 1975 were
years of high unemployment in New York City. the area covered by the
New York Times. In 1975 unemployment increased to an average of 10.6
percent. See Vanguard Oil and Service, Inc., supra.
24 See Isaac and Vinson Security Services, Inc., 208 NLRB 47, 52 (1973);
Airports Service, Lines, Inc., supra
25 He also received as compensation Living quarters including utilities
without charge. These items will be discussed in a separate section below.
26 The spelling appears as conformed herein. In the instant transcnpt the
spelling is "Wizmtan." As Weisman did not testify at either hearing I have
conformed the spelling in the manner it appears in the unfair labor practices
decision.
27 218 NLRB at 835.
794
AMSHU ASSOCIATES, INC., ET AL.
August 1975, and $150 from August 1975, until the present
time.
Mark Weidman, vice president of Amshu and a principal
and partner of Kennedy, testified on behalf of Respondent.
According to Weidman, Hopkins would not have received
further wage increases although he concedes that Hopkins
knew his trade. Weidman claims that Respondent does not
have a policy with regard to wage increases. According to
Weidman, a "super" generally has to ask for an increase
and he'll get one if its deserved. Weidman testified that
Hopkins got wage increases to make him feel better
because his salary was low. Weidman admits that he was
not the one who granted or decided to give either Hopkins
or Weisman wage increases. Further, Weidman admits that
the decision to grant wage increases was not discussed with
him. In these circumstances Weidman's denial that Hop-
kins would have received further wage increases is hardly
convincing.2s
Respondent argues in its brief, additionally, that Hop-
kins would not have earned Weisman's salary because
Weisman and his wife, unlike Hopkins and his wife, were
available on the premises 6 days a week to handle
complaints from tenants. I find no merit to this contention.
The record reveals that at all material times Hopkins and
his wife maintained an apartment at Respondent's facility.
It is noted that Respondent claimed in the unfair labor
practice case that Hopkins and his wife were not residing
on the premises, but in their house in Yonkers and that this
contention was rejected therein.
With regard to whether it is appropriate for the General
Counsel to include wage increases or Hopkins' replace-
ment's salary in gross backpay, the following excerpt from
the Board's Decision in Lee Cylinder Division of Golay &
Co., Inc., et al.,29 is noted:
It has long been recognized that "in applying its
authority over backpay orders, the Board has not used
stereotyped formulas but has availed itself of the
freedom given it by Congress to attain just results in
diverse, complicated situations." As in all cases of
discriminatory discharge, the reasonableness of the
remedy must comport with the Board's duty to bring
about "a restoration of the situation, as nearly as
possible, to that which would have obtained but for the
illegal discrimination." In attempting to attain a just
result, the Board has long included in its backpay
formulas allowances for wage increases. Therefore, the
General Counsel acted well within his authority by
including the wage raises in his specification.30 [Em-
phasis supplied.]
In the instant case, Weidman testified that Hopkins'
replacement, Weisman, was receiving the prevailing salary
for a super. In view of the foregoing, and noting that
28 I find the testimony of Weidman to be unresponsive, unconvincing,
and unreliable. His responses on cross-examination and to me did not nng
of candor. In this category, I would include his assertion that wage increases
were given to Hopkins to make him feel better. Later, on cross-examination.
Weidman stated he did not know why Hopkins received raises. It is also
noted that Administrative Law Judge Barban in his decision (218 NLRB at
835) in a key area commented "lWeidman I did not express that certainty
and definiteness that would inspire confidence."
29 184 NLRB 241, 242 (1970).
Weidman conceded that Hopkins knew his trade, and had
already received two wage increases, I find that the use of
Weidman's salary (Hopkins' replacement) as a basis for
determining Hopkins gross backpay is reasonable and
proper.31 Accordingly, Hopkins' wages reflected in the
amended backpay specification (attached hereto as Appen-
dix A) is hereby adopted.
A. Whether Hopkins Is Entitled to the Fair Rental
Value of the Apartment Including Utilities
It is undisputed that Respondent provided a four room
apartment, with the use of utilities, i.e., telehpone, gas, and
electricity, for Hopkins and his wife, without cost. Further,
the parties stipulated, and I find that the fair market value
of the apartment is $290 per month and utilities $35 per
month. Thus the fair market value of the living quarters is
$325 per month. Still further, Weidman testified that the
apartment was part of the compensation provided Hopkins
as superintendent.
Respondent in its brief argues that Hopkins is not
entitled to the fair market value of the apartment because
he assertedly never surrendered possession thereto. In
support of this contention Respondent relies on Weidman's
testimony who stated that Hopkins would have been
permitted to reside in the same apartment (without cost)
and that it was available to him until August 1975. In this
connection Weidman points out that Hopkins had put a
lock on the door and never returned his key. According to
Weidman, after consulting with his attorney, he, Weidman,
with the help of Superintendent Weisman, and one or two
other individuals entered the apartment and removed some
personal belongings of Hopkins. The apartment was
shortly thereafter rented to another tenant.
I find that Respondent's assertion that Hopkins would
have been permitted the continued use of the apartment
notwithstanding his discharge largely illusory. The fact that
Hopkins assertedly placed a lock on the door and failed to
return his key is hardly persuasive evidence that the
apartment continued to be his (without cost).3 2 On the
other hand the evidence is quite convincing that Respon-
dent intended Hopkins to vacate.
Thus by letter dated July 8, signed by Williams Leflein,
assistant vice president of Amshu, Hopkins was advised:
Prior to the time you were employed in September
1973, you were informed that your position would be
one of resident superintendent. You were given, at
considerable cost to us, apartment No. 20 Luney Court,
and you told us, prior to being employed, that you
would, in fact, move in with your family upon com-
mencing work.
Since that time, we have continually demanded that
the move into the apartment be made because your
30 Case citations have been omitted.
31 Local 294, International Brotherhood of Teamsters, Chauffeurs. Ware-
housemen and Helpers of America (Rubber City Express). 222 NLRB 155
(1976); Lee Cylinder Div. of Golay, supra. Cf. Big Three Industries. Inc.. 219
NLRB 881 (1975).
32 It is noted in the earlier decision (218 NLRB 834, supra) that Hopkins
bedroom furniture was moved from the apartment within a week of his
discharge.
795
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
availability at the building is imperative for its efficient
and safe operation.
It having become apparent that you have no inten-
tion of residing at the building, 33 it has been necessary to
replace you with a new superintendent who will reside on
the premises.34
You will be relieved effective July 22, 1974. [Empha-
sis supplied.]
Respondent apparently not satisfied that Hopkins had
departed fast enough after his discharge on July 22
commenced a civil court action 3 days later to evict
Hopkins from the premises and to receive $295 in rent
assertedly due it.35 In these circumstances it is illogical to
maintain that Hopkins was free to enjoy the use of the
apartment with utilities as he had prior to Respondent's
discriminatory discharge.
As to whether the value of the apartment including
utilities are compensable, the following comment on wages
in W. C. Nabors d/b/a W. C. Nabors Company36 is
particularly relevant:
It has long been settled under uniform holdings of the
Board and the courts that wages, as construed under
the National Labor Relations Act and independent of
the construction of that term under other legislative
enactments, State or Federal, includes emoluments of
value arising out of the employment relationship in
addition to or supplementary to the actual rate of pay
per hour worked or per unit produced. Thus, the term
"wages" has been construed to include pension plans
(Inland Steel Company v. N.L.R.B., 170 F.2d 247 (C. A.
7), cert. denied 336 U.S. 960), group health and
accident insurance programs (W. W. Cross and Compa-
ny, Inc. v. N.L.R.B., 174 F.2d 875 (C.A. 1)), merit
increases (N.L.R.B. v. J. H. Allison & Company, 165
F.2d 766 (C. A. 6), cert. denied 335 U.S. 814, rehearing
denied 335 U.S. 905), and a Christmas bonus (N.L.R.B.
v. Niles-Bement-Pond Company, 199 F.2d 713 (C. A. 2)).
[Emphasis supplied.]
In the instant case it is clear that the use of the living
quarters without cost was directly derived from the em-
ployment relationship. Thus Weidman testified that the
apartment was provided for Hopkins as part of his
compensation as superintendent.
In view of the foregoing, and the record as a whole I find
that the amount of $325 per month is properly included as
gross backpay as set forth in the amended backpay
specification (Appendix A).37
33 Respondent's contention at the hearing of the unfair labor practice
was rejected as pretextual. It was noted therein that Hopkins and his wife
resided at the apartment.
34 G.C. Exh. 2.
35 G.C. Exh. 3.
3s 134 NLRB 1078, 1086 (1961), enfd. as modified 323 F.2d 686 (C.A. 5,
1963), cert. denied 376 U.S. 911 (1964).
3? See, e.g., Nickey Chevrolet Sales, Inc., 195 NLRB 395, 397 (1972); Folk
Chevrolet, Inc., 176 NLRB 278 (1969); DeLorean Cadillac, supra; W C.
Nabors Company, supra.
B. Whether Hopkins Is Entitled Reimbursement for
Medical Premiums and Expenses Incurred by Him
During the Backpay Period
It is undisputed that Hopkins was covered by Respon-
dent's group medical and insurance benefits under the New
Jersey Blue Cross-Blue Shield medical plan. Further, it is
undisputed that Hopkins was not required to make any
contributions to the plan. Hopkins' uncontroverted testimo-
ny reveals that after he was discharged, he continued his
coverage privately, with the same insurer at the cost to him
at approximately $120 per quarter. The $120 premium each
quarter would amount to $1,200 for 10 quarters covered by
the original backpay specification. The parties stipulated
and I find that $1,206 is the fair and accurate unreimbursed
medical or insurance expenses. The parties further stipulat-
ed that if a finding is made that the aforesaid medical
expenses is properly reimbursable, the amount of $1,206
should be awarded. Respondent in its brief asserts that
there is no evidence that proves such expenses to have been
actually incurred. I find otherwise. Hopkins' uncontradict-
ed testimony reveals that he incurred a cost at the rate of
approximately $120 per quarter for essentially the same
protection Respondent provided without cost to him prior
to his discharge.
In view of the foregoing, and noting that the parties
stipulated that $1,206 is the fair and accurate amount of
unreimbursed medical or insurance expenses, I find that
$1,206 should also be included in Respondent's backpay
liability. 38
C. Reinstatement and Computation of Backpay
Respondent in its brief denies that Hopkins is entitled to
reinstatement and any backpay. For the reasons stated
previously I have found that the gross backpay due
Hopkins for the backpay period should be based on the
earnings of his replacement,3 9 and $325 per month added
thereto comprising the fair rental value of the apartment
($290 per month) including utilities ($35 per month).
Further, a sum of $1,206 in medical expenses incurred by
him 4' is also included.
As Hopkins was terminated on July 22, 1974, the gross
backpay is computed on the basis of the 10.2 weeks
remaining in the third quarter at the replacement's rate of
$130 per week, plus living quarters at $325 per month.
Thus, Hopkins gross backpay for the third quarter of 1974
is $205 (weekly living quarters, plus wages) times 10.2
weeks, or $2,091. The remaining quarters set forth in the
backpay specification reflect the upward adjustment in the
replacement's salary (wage increases). In this connection, it
is noted that the replacement's salary was $140 in January
1975, and increased to $150 on August 1, 1975. The total
·3 Bowen Transports, Inc.. 196 NLRB 665, 666, 670 (1972); DeLorean
Cadillac, Inc., supra Cf. Rice Lake Creamery Company, 151 NLRB 1113,
1129 (1965), enfd. 365 F.2d 888 (C.A.D.C., 1966); Lee Cylinder Div. of Golay,
supra, wherein employees, unlike the instant case, were required to pay part
of the insurance premiums as a condition to coverage.
39 See 222 NLRB at 159-160.
4O It is noted that the Respondent set forth no alternative formula. In the
circumstances of this case I am satisfied that the method selected by the
General Counsel is not arbitrary or unreasonable. See N.LR.B. v. Brown &
Root, Inc., 311 F.2d 447, 452 (C.A. 8, 1963).
796
AMSHU ASSOCIATES, INC., ET AL.
amount of wages and living quarters from July 22, 1974, to
the end of the first quarter 1977 as set forth in Appendix A
is $30,771. Added thereto is $1,206 for unreimbursed
medical or insurance expenses. As there have not been any
interim earnings I find that the net amount of backpay due
and owing the claimant through the first quarter 1977 is
$31,977 plus interest at the rate set forth below.
As noted above Respondent asserts that Hopkins is not
entitled to reinstatement. In this regard it argues that
Amshu sold the premises to Kennedy and that Kennedy
was untimely named herein a Respondent. As I have
previously determined that Amshu and Kennedy comprise
a single employer within the meaning of the Act and,
further, that Kennedy was properly named a Respondent,
this contention is rejected.41 Accordingly, as no uncondi-
tional offer of reinstatement has been made, I find that the
backpay has not been tolled. Further, I find that backpay
should be increased, less interim earnings, in the same
manner as set forth herein for each calendar quarter until
reinstatement is offered in accordance with the Board
Order which previously issued in this case.
On the basis of the foregoing findings of fact, conclu-
sions, and the entire record in this proceeding, and
pursuant to Section 10(c) of the National Labor Relations
Act, I issue the following recommended:
ORDER 42
Thomas Hopkins whole by payment to Thomas Hopkins
any additional sums, plus interest, accruing to him after
March 31, 1977, less interim earnings, in the manner set
forth herein until such time as said Respondent shall offer
Hopkins full and immediate reinstatement in accordance
with the National Labor Relations Board's Decision and
Order in 218 NLRB 831. There shall be deducted from the
amounts due any tax withholding required by law.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
APPENDIX A
Gross
Period Backpav
1 974
3d Qtr. $2,091
4th Qtr. 2,665
122k
let Qtr.
2d qtr.
3d Qtr.
4th Qtr.
let Qtr.
2d Qtr.
3d Qtr.
4th Qtr.
1977
It is hereby recommended that Respondent Amshu
Associates Inc., and Spring Valley Garden Associates, and
Sam Halpern and Mark Weidman, a Co-partnership,
d/b/a Kennedy Realty Company, Spring Valley, New
York, their officers, agents, successors, and assigns, shall
offer Thomas Hopkins immediate and full reinstatement to
his former job or, if that job no longer exists, to a
substantiahly equivalent job, without prejudice to his
seniority or other rights, privileges, or working conditions.
IT IS HEREBY FURTHER ORDERED that said Respondent, its
officers, agents, successors, and assigns, shall pay to
Thomas Hopkins the sum of $31,977 plus interest at 7
percent in the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), and Florida Steel Corporation,
231 NLRB 651 (1977).
IT IS HEREBY FURTHER ORDERED that said Respondent, its
officers, agents, successors, and assigns, shall make
41 See fn. 2, supra.
42 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
2,795
2,795
2,875
2,925
2,925
2 ,925
2,925
2,925
1lt Qtr. $2,925
Interim Net
Earning Beckpay
0 $2 091
0 2,665
0
0
0
0
0
0
0
0
2,795
2, 795
2,875
2,925
2,925
2,925
2,925
2,925
0 S 2.925 jJ
$30,771
Plus backpay after March 31,
1977
Plw unreiabursed medical or
insurance expfense and
other fees 1.206
$31,977
Plus appropriate interest
/ The amount of net beckpay appears
"as aaded. mhe smended backpay
specificacti errineously con-
tained the amoiut of $2,929.00.
797