Avery Heights

National Labor Relations Board - Administrative Judge Opinions

Dec 27, 2006

34-CA-009168 (N.L.R.B. Dec. 27, 2006)

JD(NY)-51-06
Hartford, Connecticut
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

CHURCH HOMES, INC. d/b/a AVERY
HEIGHTS

AND CASE 34-CA-9168

NEW ENGLAND HEALTHCARE EMPLOYEES
UNION, DISTRICT 1199, SEIU

Darryl Hale, Esq., for the General Counsel
Michael C. Harrington, Esq., and Stephen
Rosenberg, Esq., (Murtha Cullina LLP),
of Hartford, Connecticut, for the Respondent
Kevin A. Creane, Esq., (Law Firm of John
Creane), of Milford, Connecticut,
for the Union

SUPPLEMENTAL DECISION

Statement of the Case

ELEANOR MACDONALD, Administrative Law Judge: On December 16, 2004 the
National Labor Relations Board issued its Order directing Respondent Church Homes, Inc.,
d/b/a Avery Heights, to offer Georgia Stewart Caldwell, Opal Clayton and Patricia Hurdle
immediate reinstatement and to make them whole for any loss of earnings and other benefits
resulting from Respondent’s unfair labor practices in violation of Section 8 (a) (3) of the National
Labor Relations Act.1 In a stipulation dated April 6, 2005 Respondent waived its right to contest
the propriety of the Board’s Order. Respondent reserved its right to a hearing to determine the
amount of backpay, expenses and benefits due to Caldwell, Clayton and Hurdle as well as
certain issues regarding the status of Caldwell.

A hearing was held before me on August 23, 2006 in Hartford, Connecticut to determine
the amounts due to Caldwell, Clayton and Hurdle. These three discriminatees were present at
the hearing and were called to testify by Respondent.

At the hearing Respondent and the General Counsel stipulated to a revised backpay
calculation. Thus, the backpay period for each discriminatee as well other matters related to the
various formulas applied and the calculations arrived at by the General Counsel are not before
me for decision. However, Respondent reserved its right to argue that the uniform/longevity
allowance in the collective-bargaining agreement should not be included in the award of back
pay and that the 18% interest rate in the trust agreement for the Union pension fund is punitive.
Respondent also reserved its right to urge that the discriminatees did not make a reasonably

1 343 NLRB No. 128.

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diligent search for comparable work.

Briefs were filed by the General Counsel and the Respondent on September 27, 2006.

Background

The issues in this case concern the reasonableness of the three discriminatees’ search
for interim employment, the possible effect of the lapse of Caldwell‘s Certified Nurse Assistant
(CNA) registration, the correct application of the uniform/longevity allowance payment contained
in the collective-bargaining agreement, and the effect of the Connecticut unemployment
insurance statutory scheme. In addition to these matters which were to a certain extent litigated
during the hearing, Respondent’s post hearing Brief urges that the 18% interest rate applied to
pension benefit payments is punitive and should be reduced to a remedial amount.

The three named discriminatees herein were all discharged based upon an allegation of
patient abuse. The alleged patient abuse, which was found by the Board not to have occurred,
consisted of mocking a patient by allegedly standing on the picket line and mimicking the
movements of a patient being treated with Ritalin. All three discriminatees participated in a
strike in beginning in 1999 and were terminated as described in the cited Board decision.
Respondent offered reinstatement to the three discriminatees on January 26, 2005.

I. Facts Relating to Mitigation of Backpay

Patricia Hurdle

Patricia Hurdle received an eighth grade education in Barbados and came to the United
States in 1972. Hurdle worked for Respondent Avery Heights from September 1972 until she
was terminated on January 25, 2000. Hurdle recalled that a number of years after she was first
employed by Respondent she received training at Avery Heights and became a registered CNA.

Hurdle provided Respondent’s Counsel with calendars on which she had made notes
concerning her search for work. Also present in the hearing room and available to all Counsel
was an affidavit signed by Hurdle concerning her search for interim employment. Hurdle
testified that she could not recall everything she had done over a five year period to search for
work. It was clear to me that Hurdle was an extremely cooperative witness who did her best to
answer the questions posed to her. Hurdle was the epitome of the truthful witness as evidenced
by her helpful and open demeanor while testifying and by her demonstrably strong efforts to
remember the facts in response to every question.

Hurdle received unemployment benefits for the first six months of 2000. In addition,
Hurdle received PTO benefits (paid time off and vacation) from Respondent in the first quarter
of 2000. She received payments for picketing activity from the Union.

Hurdle’s efforts to find interim employment were concentrated in the years before she
obtained a part-time job at Sunrise Assisted Living in November 2002. Hurdle stopped looking
for other work in November 2002 because the work at Sunrise was hard and she was required
to take a lot of training outside of her normal work schedule. Hurdle’s part-time work led to a
full-time job at Sunrise beginning in January or February of 2003.

Hurdle testified that in the three years before she obtained work at Sunrise she looked
for work by asking her friends if they knew of any jobs, by seeking work at nursing homes with
which she was familiar and by checking job listings in the free newspaper that was placed into

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her mailbox every week.

Hurdle could not recall where she worked from January to June 2000. She thought she
might have worked for Tender Loving Care, a part-time agency. On June 3, 2000 Hurdle began
a part-time private case job in Farmington. Hurdle was hired by the daughter-in-law of the
patient. Hurdle worked 3 ½ to 4 ½ hours per day on a sporadic basis. Occasionally she was
asked to work eight hours per day. She continued with this job in July and August and the first
part of September. Also in September 2000 Hurdle worked for Arden Court caring for
Alzheimer’s patients. This employer later called Hurdle to offer her work at a branch location in
Avon but Hurdle turned this down. Hurdle explained that Avon was too far from her home and
she was afraid to drive such a long distance in wintertime. On December 3, 2000 Hurdle filled
out an application for employment at Hughes Nursing Home. Hurdle was not hired by this
employer. Hurdle was also unsuccessful when she sought work at Bridges Nursing Home on
several different occasions over the course of three years.

In 2001 Hurdle worked part-time though an agency called Staff Builders. Staff builders
sent Hurdle to work in various nursing homes for a total of 20 assignments. Some of the places
to which Staff Builders wished to assign Hurdle were places she did not know how to get to and
she turned down these jobs. Hurdle worked for Staff Builders until she obtained work at Sunrise
at the end of 2002. The Staff Builders jobs varied from two days per week to six days per week
and involved all three shifts of the day. Hurdle filled out applications for permanent employment
at some places to which she was sent by Staff Builders, including Elm Hill Center. However,
these facilities did not offer employment to Hurdle. Hurdle also worked for a home health
agency called Tender Loving Care which provided her with more than five on-calls jobs.2 In
2001 Hurdle applied to three other employers but she was told they were not hiring. These
locations were MediPlex of Wethersfield on May 8, McLean Center on August 20 and Chelsea
Place on October 22.

In the summer of 2002 Hurdle began a part-time job at Greenwood (Lexington
Healthcare Group, Inc.), from 7 am to 3 pm on a per diem basis. Hurdle was not recalled by
Greenwood after working there four or six weeks. Hurdle explained that on one occasion she
received a warning notice because a nurse had a disagreement with her over an assignment
that had been given to Hurdle by someone other than the nurse. Hurdle testified that the
account of the incident on the warning notice was not accurate. After this incident Hurdle was
performing a task that involved moving a patient using a Hoyer lift. Hurdle could not find anyone
to help her move the patient so she operated the lift by herself. The patient was bumped during
the procedure and Hurdle informed management in case the patient should later be discovered
to have a bruise on her body. Hurdle was given a warning notice for failing to have another
person assist her and she was counseled always to obtain assistance when using the lift. The
warning notice indicated that “ 0 [no] bruises noted at this time” on the patient. A few days later
Hurdle received a letter dated July 24, 2002 stating that her “employment was no longer
needed” at Greenwood, thanking her for her hours of service and wishing her good luck in the
future. This letter does not state that Hurdle was discharged and it gives no reason for the fact
that her services were no longer needed. I note that neither of the warning notices from
Greenwood indicates that Hurdle was discharged or that further discipline was contemplated.

In 2002 Hurdle applied for work at Elm Hill and Mercy Knoll. Hurdle had worked some
shifts in those facilities though Staff Builders. Elm Hill informed Hurdle that they were not hiring.

2 Some of Hurdle’s W2 forms in evidence suggest that Staff Builders and Tender Loving
Care may have been the same or related companies.

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On November 4, 2002 Hurdle received a card saying that there was no hiring at Mercy Knoll. In
2002 the Union sent Hurdle to apply for a job at Rocky Hill and Hurdle was informed that she
would be hired there. However, another employee bumped into the job vacancy and Hurdle lost
her opportunity to work at Rocky Hill. Hurdle applied to several other facilities before she was
hired by Sunrise at the end of 2002. Hurdle contacted Hamilton Heights, Brook View and Trinity
Hill, but she did not fill out applications at these places because she was informed that they
were not hiring. Hurdle filled out applications at Laurel Gardens, Brittany Farms and Bridges
Assisted Living but she was not hired by either of these employers.

Georgia Stewart Caldwell

Georgia Stewart Caldwell testified that she completed her high school education in the
United States and immediately began to work for Respondent on October 13, 1975.3 Until she
was terminated on January 25, 2000, Caldwell had not held any other employment.

Caldwell received PTO from Avery and strike benefits from the Union for the first quarter
of 2000. She picketed during her normal working hours from 7 am to 3 pm. At first the picketing
lasted about 40 hours per week but gradually the picket line activity declined to just three days
per week.

Caldwell testified about her search for work. Present in the hearing room and available
to all counsel were notes Caldwell had made from memory as well as a compilation of monthly
calendars kept contemporaneously with the events recorded for each date. The calendars list
the names of the prospective employers whom Caldwell contacted. Caldwell testified that she
used the calendars to prove to the Connecticut State Unemployment Insurance authorities that
she was conducting a search for work.

Because Caldwell had never worked anywhere else but Avery Heights she was not
familiar with other health care employers in her area. As a result, Caldwell relied on a list of
health care facilities provided by the Union which showed both Union and non-Union employers
and their telephone numbers. Caldwell did not contact every facility on this list because some of
them were too far away. Although Caldwell has a driver’s license she cannot drive long
distances. Caldwell testified that in addition to the Union list she consulted the Hartford Courant
for want ads listing CNA positions.4

Caldwell testified that she conducted her search for interim employment by telephoning
prospective employers. If the employer stated that there were no openings she did not fill out
an application. However, if the employer stated that it was hiring she would travel to the
location and fill out an application for employment.

Caldwell testified that she had a number of interviews at places listed on her calendars
including various health care facilities and Sears, Marshalls, Old Navy and some fast food
outlets. At interviews with Mediplex of Wethersfield and Mediplex of Newington she was asked
why, after having worked 24 years for one employer, she was now searching for a new job.

3 Caldwell was occasionally referred to by her maiden name of Stewart.
4 Caldwell picketed during the strike. She took a lunch breach while on the picket line and
she went to the Union hall during this time to search the want ads in the Hartford Courant.
Caldwell visited prospective employers on days when she was not picketing and after 3 pm on
days when she had picket line duty. On occasion, Caldwell left the picket line to search for
work.

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Caldwell would always reply that she had been terminated for alleged patient abuse consisting
of mocking a patient on the picket line. Caldwell always told prospective employers that she
would never have engaged in any kind of abuse and that her case was going through the court
system. Caldwell testified that she had only one employer reference to give prospective
employers and that was the Respondent in this case. Caldwell testified that after she was
terminated by Respondent she was never offered a job as a CNA nor did she obtain a job with a
non health care employer.

Caldwell’s calendars show the following efforts to find interim employment:

January 2000: Telephone calls to Andrew House, Optimum Care, Greenwood, Elm Hill,
Miller Memorial, Jefferson House, Kimberly Hall and Windsor Hall, none of which were hiring.
Application submitted to Adams House.
February 2000 : Telephone calls to Mediplex Newington, Mediplex Wethersfield,
Windsor Rehab, Blair Manor, Alexandria Manor, Grove Hill Clinic, Windsor Hall, Bloomfield
Health Care and Sterling Manor, but no openings at any facility.
March 2000: Telephone calls to Wintonberg Health Care, Hebrew Home, Chelsea
Place, Mercy Knoll, Hughes, Brookview, and Kettlebrook, none of which were hiring.
Applications submitted to St. Mary Home and Trinity Hill.
April 2000: Telephone calls to Olympus Health Care, Bidwell, McLean, Bel-Air Manor,
Brittany Farm, Maple View Manor, Fox Hill and Parkway Pavilion, none of which were hiring.
Application submitted to Salmon Brook.
May 2000: Telephone calls to Center for Optimum Care, Andrew House, Adams House,
Mediplex Wethersfield, Elm Hill and Blair Manor, none of which were hiring. Application
submitted to Kimberly Hall.
June 2000: Telephone calls to Windsor Hall, Miller Memorial, Jefferson House,
Greenwood and Alexandria Manor, but no openings at any facility.
July 2000: Telephone calls to Bloomfield Health, Grove Hill, Chelsea Place, St. Mary
Home, Windsor Rehab, and Mercy Knoll, none of which were hiring.
August 2000: Telephone calls to Mediplex of Greater Hartford, Salmon Brook, Hughes,
Kettle Brook, Bel-Air Manor and Mercy Knoll, none of which were hiring.
September 2000: Telephone calls to Mt. Sinai, Chelsea Place, Windsor Hall and Elm
Hill, none of which were hiring. Applications submitted to Kimberly Hall and Sears.
October 2000: Telephone calls to Kimberly Hall, Windsor Rehab, Blair Manor, Elm Hill,
Adams House and Andrew House, but no openings at these facilities.
November 2000: Telephone calls to Mediplex Wethersfield, Center for Optimum Care,
Mediplex Newington, Greenwood, Windsor Hall and Kimberly Hall, none of which were hiring.
December 2000: Telephone calls to Miller Memorial, Elm Hill, Haven East Hartford and
Blair Manor, but no openings at these facilities. Applications filled out at Alexandria Manor and
Andrew House.
January 2001: Telephone calls to Olympus Bidwell Health Care, Jefferson House,
Salmon Brook and Brittany Farm, none of which were hiring. Applications filled out at Olympus
Health Care Victorian and Olympus Westside Health Care.
February 2001: Telephone calls to Adams House, Fox Hill, McLean, St. Elizabeth health
Care, Maple View and Windsor Rehab but no openings at these facilities.
March 2001: Telephone calls to Mediplex of Greater Hartford, Mediplex of Newington,
Trinity Hill, Elm Hill Nursing Center, Mercy Knoll, Salmon Brook and St. Elizabeth health Care
Center, but they were not hiring.
April 2001: Telephone calls to Blair Manor, Alexandria Manor, Windsor Rehab, Maple
View Manor, Olympus Health Care Farmington and Olympus Health Care Westside, but there
were no openings at these facilities.
May 2001: Telephone calls to Adams House, Hughes, Windsor Hall (twice), Jefferson

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House, Kimberly Hall, and Alexandria Manor. The calendar entries for this month and all
subsequent months do not indicate whether the employers were hiring and whether Caldwell
filled out any applications.
June 2001: Telephone calls to Salmon Brooks, Blair Manor, Bel-Air Manor, Brittany
Farm, Andrew House and Bloomfield Health Care.
July 2001: Telephone calls to Riverside Health, Manchester Manor, Greenwood,
Optimum Care, Elm Hill, Parkway Pavilion Health Care and Windsor Rehab.
August 2001: Telephone calls to St. Mary, Grove Hill, Mediplex Wethersfield, Windsor
Rehab, Chelsea Place, Mediplex Newington and Greenwood.
September 2001: Telephone calls to Kimberly Hall, Wendy’s, Grove Hill, Bel-Air Manor,
Olympus Health Care Westside, Mercy Knoll and McDonalds.
October 2001: Telephone calls to Sears, Windsor Rehab, Marshall, Subway, Old Navy
and Andrew House.
November 2001: Telephone calls to Blair Manor, Windsor Rehab, Alexandria Manor,
Andrew House and Jefferson House.
December 2001: Telephone calls to Subway, Sears, TJ Maxx, Old Navy, St. Mary
Home and Marshalls.
January 2002: Telephone calls to Old Navy, Windsor Hall, Marshalls, Kimberly Hall,
Hughes, Subway and McLean.
February 2002: Telephone calls to McDonalds, Jefferson House, Elm Hill, Wendy’s,
Sears, Alexandria Manor and Bel-Air Manor.
March 2002: Telephone calls to Mercy Knoll, Sears, Bloomfield Health, Andrew House,
Grove Hill Clinic and Chelsea Place.5
April 2002: Telephone calls to Subway, Alexandria Manor, Wendy’s, Marshalls, Windsor
Rehab, Kimberly Hall and Blair Manor.
May 2002: Telephone calls to Andrew House, Mediplex Newington, Mediplex
Wethersfield, Haven West Hartford, Haven East Hartford and Elm Hill.
June 2002: Telephone calls to Kettle Brook, Trinity Hill, Haven, Maple View, Adams
House, Mt. Sinai and Salmon Brook.

Caldwell stopped making calendar entries after June 2002 because she was frustrated
by her failure to obtain work. However she continued searching for work until the end of 2002
when she ceased her search and became a full-time organizer for the Union.

Caldwell testified that when she began work for Respondent in 1975 she was not
required to hold any type of state licensure or registration. Sometime in the 1980’s the State
instituted a licensing requirement for the CNA position. Avery Heights provided the mandated
classroom instruction for its CNA employees. Caldwell took the evening classes provided by
Respondent and she became licensed. Caldwell had believed that in order to keep her
registration up to date she had to perform 12 hours of “in-service training’ every year.
Respondent had provided this training to Caldwell on a regular basis. Caldwell believed that a
CNA had actually to be employed in order to receive the training because she herself had
always received the mandated training on the job. After she was terminated by Respondent,
Caldwell applied for work at a health care facility named Haven of West Hartford and she was
asked about her license during an interview. Caldwell replied that she believed she was OK but
Haven told her that her registration had lapsed. Later, Caldwell learned that she had to take the
“in-service training” every 24 months to keep her license and that she did not have to be actually
employed in order to maintain her license.

5 Caldwell was granted an interview at Sears on March 8, 2002. She was asked whether
she had any retail experience.

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Caldwell stated that when she was offered reinstatement by Respondent she returned to
work and then she successfully took a written test for the CNA license. Her registration was
reinstated by the State.

Dr. Miriam Parker, the Administrator of Avery Heights, testified about the Connecticut
Public Health Code’s requirement for CNA registration. In order to maintain the registration a
CNA must work at least one shift in a continuous 24 month period. Dr. Parker testified that
when Caldwell returned to work it was learned that her registration had expired on November
16, 2001. The Public Health Code permits a CNA to be employed without a current registration
for 120 days as long as the certification is obtained within the 120 day period. The CNA must
have some class instruction and she must pass a test. Dr. Parker testified that just as Caldwell
was put to work at Avery Heights she similarly could have been hired by any another employer
as a CNA as long as she took the test and became re-registered within a 120 day period.

Opal Clayton

Opal Clayton was educated in Jamaica and took a CNA course when she arrived in the
United States. She worked for Respondent from August 22, 1996 until she was discharged on
February 22, 2000. After her discharge Clayton received unemployment benefits. Clayton
testified that the Connecticut State agency monitored her search for work and she was required
to show that she was actively searching for jobs. Clayton attended a State hearing where she
proved that she had applied for work in various places. In addition, the State agency provided
Clayton with the names of prospective employers. Clayton did not receive any money from the
Union for picketing.

Before Clayton was first employed by Respondent in 1996 she had begun working one
eight-hour shift per week at Trinity Hill.6 Clayton continued to work part-time at Trinity Hill even
after she began to work at Avery Heights.

Clayton prepared a document showing details of her search for work after she was
terminated by Respondent. The first date listed is March 1, 2001, but Clayton stated that was
not the first day that she tried to find a job. Clayton testified that she had listed most of the
places where she inquired about work but that she had forgotten some others. Clayton began
to look for work shortly after she was terminated. She did not limit her search to nursing homes,
also applying to hospitals such as St. Francis and Mount Sinai. Clayton applied for both CNA
and housekeeping positions. Clayton found prospective employers by looking in the yellow
pages and by reviewing want ads in the free newspapers and in the Hartford Courant. Clayton
telephoned prospective employers to inquire whether they were hiring. Clayton would fill out an
application if the facility was hiring.

Clayton testified that her search for work decreased a little bit when she gave birth to her
daughter in July 2000. She began looking for work a week or two after she gave birth. Clayton
stated that if she had been offered a job three weeks after giving birth she would have taken it
and she would have been able to take full-time work. Clayton took a leave from her part-time
job at Trinity Hill when she gave birth. She could not recall how long that leave lasted.

Clayton stated that in 2000 she worked only at Trinity Hill, a continuation of her part-time
work. In 2001 she worked for an agency called Maxim Health Care which sent her to a nursing

6 The employees at Trinity Hill belong to the Union.

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home for eight hours. She could not accept the other jobs offered by this agency because they
were too far away in towns with which she was not familiar and she could not get a ride to those
places. Clayton recalled that she was interviewed at Manchester Hospital, Kimberly Hall,
Jefferson House, Bloomfield Health Care, Alexandria Manor, Wintonbury and Hebrew Home.
She applied to Kettlebrook and Greenwood but she could not recall whether she had been given
an interview at those facilities. In 2000 and 2001 Clayton also applied for work at CVS, JC
Penney, Sears, Wendy’s, McDonalds, TJ Maxx, Burger King, Filenes and Marshalls.

On June 1, 2001 Clayton was hired by The Atrium for a full-time CNA position. At this
time she stopped looking for other work. Clayton left The Atrium in 2003 when she was able to
bid into a full-time position at Trinity Hill with higher pay, Union benefits and a more convenient
location.

Availability of CNA Positions During the Back Pay Period

After the discriminatees testified herein, Counsel for Respondent called Christine Moody
to testify that she had reviewed advertisements in the Hartford Courant from the period January
2000 through December 2002. Moody summarized those items which mentioned CNA
positions, whether listed under “nurses”, “health aides”, “LPN” or “CNA”. Moody prepared a
summary document in both chronological and alphabetical form which showed listings she
found in the Hartford Courant.7 Moody included in the summary document any listing she
believed to be in the greater Hartford area either based on an address or based on a telephone
area code. Some of the included listings were in towns that were not very close to Hartford.8
Moody did not telephone the advertisers to check whether they were actually hiring CNA
employees nor did she check where the actual jobs were located. Some of the advertisers were
staffing agencies and some of them stated that they were seeking applicants “statewide.” At
least one of the listings was placed by St. Elizabeth Health Care on May 13, 2001 seeking
“permanent replacement of workers on strike.”

I note that although the discriminatees mentioned seeking work at some of the
employers listed in Moody’s summary, Counsel for Respondent did not ask any of the
discriminatees whether they had applied for jobs at the other facilities listed in Moody’s
summary.

After the discriminatees testified herein Counsel for Respondent stated that he wished to
call several witnesses. These witnesses would testify that they were employed by various
facilities that had filled CNA positions during the back pay period. The witnesses would testify
as to the number of CNA employees hired at their respective facilities. Counsel for Respondent
stated that none of his prospective witnesses would be able to testify about matters relating
specifically to the three discriminatees and their particular search for work. None of these
prospective witnesses would have any information about the inquiries for employment made by
the discriminatees because health care facilities do not retain employment applications for any
significant length of time. I ruled that Respondent would not be permitted to call these
witnesses because the witnesses could not offer testimony relating to the discriminatees. I
ruled that general information about the number of CNA positions filled would not show that the
discriminatees would have been hired to fill those positions had they applied during the back

7 This document was admitted into evidence as Respondent’s Exhibit # 12.
8 Discriminatees are not required to accept employment where they would encounter
transportation difficulties due to the location of the employment opportunity. Parts Depot, 348
NLRB No. 9, slip opinion page 3 (2006).

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pay period. Further, any testimony that an employer would have hired an applicant years ago
would be speculative and inadmissible. Since the witnesses were not being called to offer
testimony specific to the three discriminatees these witnesses would not be able to shed any
light on a purported willful failure to mitigate damages during the back pay period. Parts Depot,
348 NLRB No. 9, fn 6 (2006).

Counsel for Respondent made an offer of proof that if his prospective witnesses had
been permitted to testify they would have shown that I Care hired 400 CNAs at its nine facilities,
that Brittany Farms hired 70, that Brook hired 60 and that Maxim hired over 100. Counsel for
the Union pointed out that both Clayton and Hurdle worked for some of these employers or their
subsidiaries.

II. Conclusions

The legal principles governing the determination of back pay were set forth at length in
Minette Mills, Inc., 316 NLRB 1009, 1010-1011 (1995), which also provided extensive citations
that I will not repeat here. The principles relevant to the instant proceeding are: 1) A finding by
the Board that an unfair labor practice was committed is presumptive proof that some backpay
is owed; 2) The General Counsel bears the burden of proving the amount of gross backpay due;
3) The burden is on the employer who committed the unfair labor practice to establish facts,
including the amount of any interim earnings or a willful loss of interim earnings, that reduce the
amount due for gross backpay; 4) Even though a discriminatee must attempt to mitigate her loss
of income, the discriminatee is held only to a reasonable rather than to the highest standard of
diligence, and the discriminatee is required to accept only substantially equivalent employment;
5) when a discriminate voluntarily quits interim employment the burden shifts to the General
Counsel to show that the decision to quit was reasonable; 6) a discharge from interim
employment, without outrageous conduct, does not constitute a willful loss of employment; 7) as
Respondent herein is the wrongdoer who caused the discriminatees’ initial unemployment, any
ambiguities, doubts or uncertainties are resolved against Respondent because an offending
employer is not allowed to profit from any uncertainty caused by its discrimination. The
sufficiency of a discriminatee’s efforts to mitigate backpay are determined with respect to the
backpay period as a whole and not based on isolated portions of the backpay period. Electrical
Workers IBEW Local 3 (Fischbach & Moore), 315 NLRB 1266 (1995). Registration with a state
unemployment agency is prima facie evidence of a reasonable search for employment.
Midwestern Personnel Services, Inc., 346 NLRB No. 58, slip opinion at 4 (2006). Employees
are not disqualified from backpay “because of their poor record-keeping or uncertainty as to
memory.” Allegheny Graphics, 320 NLRB 1141, 1145 (1996), enfd. sub nom. Package Service
Co. v. NLRB, 113 F.3d 845 (8th Cir. 1997).

Patricia Hurdle

Hurdle’s testimony shows that in the three years before she obtained a full-time job at
Sunrise in early 2003 she searched for work by speaking to friends, checking nursing homes
with which she was familiar and checking listings in a weekly newspaper. Hurdle qualified for
State unemployment benefits. Hurdle could not recall where she worked from January to June
2000, but she believed she obtained work through a part-time agency. Hurdle was able recall
private patients and agencies for whom she worked after June 2000 in addition to the part-time
per diem job at Greenwood. The record demonstrates that throughout the three year period
before early 2003 Hurdle was listed with various agencies and that she was receiving work from
those agencies. Hurdle was able to list various facilities where she inquired about work and
various facilities where she filled out an application but was not hired. Hurdle’s efforts would
have led to a full-time job at Rocky Hill in 2002 had not a worker with seniority bumped into the

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position. Hurdle’s efforts to find full time-employment were crowned with success when a part-
time job at Sunrise, with additional training, led to a full time job in early 2003.

Respondent argues that Hurdle’s search for employment was not reasonable because in
the three years before she obtained full-time work at Sunrise Hurdle sought work from only 18
employers. This mischaracterizes Hurdle’s testimony. First, Hurdle stated that she could not
recall where she worked from January to June 2000; this testimony indicates that she did work
and thus that she sought work from January to June 2000.9 Second, Hurdle’s testimony shows
that she worked for six employers whom she could recall.10 Thus, she had sought employment
for these six jobs. Third, Hurdle sought work at 13 facilities that she could recall, inquiring at a
number of these places multiple times over the course of three years.11 Moreover, Hurdle could
not recall all the places she checked including some where she had been sent by an agency on
a per diem basis. Thus, Hurdle’s testimony shows that she applied at 19 employers that she
could recall and an untold number that she could not recall. There is no support for
Respondent’s assertion that this was an average of one employer every two months. Hurdle
repeated her efforts at many of the facilities, inquiring at some of them at least three times. The
Board has remarked that the fact that a discriminatee could not remember with specificity the
details of his search for work “is attributable to the nearly 5-year delay between his search for
work and the date of his testimony and does not provide sufficient evidence to support a finding
that [the discriminatee] failed to mitigate.” Midwestern Personnel Services, Inc., supra, at 4.

Respondent urges that Hurdle’s efforts were unreasonable because she did not check
the over 70 nursing homes in Hartford County. I reject this assertion. Even if it were found that
Hurdle did not contact a sufficient number of prospective employers, it was Respondent’s
burden to show that the nursing homes it refers to were within a reasonable distance of Hurdle’s
home and accessible to Hurdle given her driving and navigating ability. Respondent did not
question Hurdle with respect to these 70 employers when it called her to testify. Respondent
urges that Hurdle should be faulted for failing to consult the Hartford Courant and the internet,
rather than the free newspaper placed in her mailbox once a week. There is no evidence in the
record to show that the Hartford Courant and the internet are better sources of CNA
employment than the weekly newspaper. The fact that Hurdle was asked to fill out applications
at many of the facilities where she made inquiries shows that Hurdle was able to find employers
who were hiring even if they did not hire Hurdle.

Indeed, the reasonableness of Hurdle’s efforts is further demonstrated by the fact that
Hurdle found employment and was employed on a per diem basis from 2000 through 2002 and
that Hurdle began a full time job in early 2003 which she held until her reinstatement to Avery
Heights.

Respondent asserts that Hurdle lost her per diem job at Greenwood by engaging in
deliberate misconduct. Although Respondent states that Hurdle was insubordinate to a nurse,
Hurdle testified that this was not true and Respondent called no witness to contradict Hurdle.
As noted above, I found Hurdle to be a credible witness. Respondent presented no evidence to
support its assertion that failing to ask for help with the Hoyer lift was a well known and sure
cause of discharge in the health care industry. As discussed in more detail above, there is no

9 Further, Hurdle’s receipt of State unemployment benefits shows that she was able to prove
to the State agency that she was searching for work.
10 These were TLC, a private case, Arden Court, Staff Builders, Sunrise and Greenwood.
11 These were Hughes, Bridges, Elm Hill Center, MediPlex, McLean, Chelsea, Mercy Knoll,
Rocky Hill, Hamilton Heights, Brook View, Trinity, Laurel Gardens and Brittany Farms.

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evidence that when Greenwood wrote to Hurdle thanking her for her work and saying she was
no longer needed this was because of the two warning notices issued to Hurdle. It was
Respondent’s burden to present evidence linking the two warnings with the letter. Thus, there is
no evidence that Hurdle was discharged for any conduct in which she may have engaged.

In summary, I find that Hurdle’s efforts to find interim employment were reasonable and
that she did not willfully cause the loss of her per diem employment at Greenwood.

Georgia Stewart Caldwell

Respondent asserts that Caldwell did not conduct a reasonable search for employment
because she picketed every day at least 40 hours per week. The record shows that Caldwell
picketed from 7 am to 3 pm with time off for lunch. Caldwell stated that at first the picketing
lasted 40 hours per week but gradually it declined to just three days per week. Caldwell
telephoned prospective employers to inquire about work and she traveled to those facilities that
were hiring and told her to fill out an application. Caldwell left her picketing activities on
occasion to search for work. Thus, even when picketing 40 hours per week at the beginning of
the strike and later when only picketing three days per week, Caldwell was able to check for
jobs and make telephone calls at lunch and after 3 pm. After 3 pm and on days when she was
not picketing, Caldwell was free to fill out applications. This is not an unreasonable amount of
time during which to conduct a job search.

Respondent faults Caldwell for contacting only 39 of the 70 nursing homes in Hartford
County. Respondent did not question Caldwell concerning her failure to contact more than 39
nursing homes and thus did not meet its burden to show that her search for work was
unreasonable based on the number of employers contacted. Respondent did not show that the
nursing homes not contacted by Caldwell were within reach of her home consistent with her
driving ability. Respondent erroneously states that Caldwell was interviewed at only Mediplex of
Wethersfield and Mediplex of Newington. In fact, Caldwell testified that she was interviewed at
a number of health care facilities listed on her calendars but she could not recall which ones.
Caldwell could only recall the names of three: Mediplex of Wethersfield, Mediplex of Newington
and Haven of West Hartford. Further, Caldwell testified that she was interviewed at Sears,
Marshall, Old Navy and some fast food outlets.

The fact that Caldwell was not successful in obtaining interim employment until the end
of 2002 does not show that her efforts to find work were not reasonable. Bauer Group, 337
NLRB 395,396 (2002), Minette Mills, supra. It should be recalled that Caldwell had only one
reference to give prospective employers for her 24 year work history, and that employer was the
Respondent which had discharged her for alleged patient abuse.

Respondent urges that because Caldwell’s CNA registration lapsed on November 16,
2001 her back pay should cease as of that date. However, Respondent did not show that the
lapse of Caldwell’s certification made her unemployable as a CNA. In fact, Respondent’s own
witness testified that Caldwell could have been hired as a CNA by any health care employer and
that she could have worked for 120 days in that capacity so long as she renewed her license
within the 120 day period. This is exactly what happened when Respondent itself reinstated
Caldwell. As her uncontradicted testimony showed, Caldwell readily underwent the training and
took the test and she obtained a valid registration. In summary, the testimony presented by
Respondent showed that the lapse of Caldwell’s registration had no effect on the ability of a
prospective employer to hire Caldwell as a CNA. I find that Respondent has not met its burden
to show that Caldwell failed to make reasonable efforts to search for work during the backpay
period.

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Opal Clayton

Respondent asserts that Clayton did not make reasonable efforts to find a job from
February 2000 to February 2001 and that her back pay should be tolled for this period.
Respondent also asserts that Clayton voluntarily quit her job at Atrium in 2003 which reduced
her income in 2004 and that as a result “any award should be reduced.” Respondent concedes
that Clayton made reasonable efforts to find a job from March 2001 to June 2001.

With respect to the period before March 2001, the record shows that Clayton collected
unemployment benefits and continued with her part time job at Trinity Hill. However,
Respondent faults Clayton for failing to keep notes of her job search during that time although
she said she generally did keep such notes. The record shows that in order to receive
unemployment benefits Clayton had to satisfy the State Agency that she was looking for
employment through appropriate job searches, including inquiries at prospective employers
suggested by the Agency itself. Clayton testified that the State held a hearing where she
proved that she had applied for work in various places. The fact that in 2006 Clayton may not
have had the records she used to satisfy her obligation to the State Agency in 2000 and early
2001 does not show that she did not make a reasonable job search. I credit Clayton’s testimony
that she began looking for work soon after she was terminated by Respondent by consulting the
yellow pages and by reviewing want ads in the Hartford Courant and the free newspapers.
Clayton telephoned prospective employers to see if they were hiring and she filled out
applications where she was told she could do so. Clayton applied for both CNA and
housekeeping positions at nursing homes and at hospitals. Also, in 2000 and 2001 Clayton
applied to CVS, JC Penney, Sears, Filenes, Marshalls and various fast food establishments.
Clayton recalled interviews at seven health care facilities and she was not certain about two
others where she had applied. In 2000 and 2001 Clayton worked for Trinity Hill and an agency
called Maxim Health Care. She had to turn down some assignments from Maxim because of
transportation difficulties.

Respondent also refers to Clayton’s testimony that she stopped looking for work for a
week or two when she gave birth in July 2000. Clayton testified that if she had been offered a
full time job three weeks after giving birth she would have taken it. Respondent argues that
“such a claim is simply not credible.” It is well-known that many women, including lawyers,
return to work a week after giving birth. It is obvious that many women return to the physically
taxing duties involved in taking care of numerous children and a household as soon as they
arrive home after giving birth. In contrast, certain women may not be able to return to work
soon after childbirth, but that is a matter for individual determination. There is no general rule to
apply in all such cases. It was Respondent’s burden to show that in July 2000 Clayton could not
have returned to work as a full time CNA three weeks after giving birth. Clayton testified that
she took a leave of absence from Trinity Hill after giving birth, but she could not recall the length
of this leave. If Respondent had wished to cast a valid doubt on Clayton’s testimony that she
would have returned to work after three weeks, Respondent could have offered records to show
the length of Clayton’s maternity leave from Trinity Hill. Branding Clayton’s testimony as “simply
not credible” does not meet Respondent’s burden of proof on this issue. In the absence of any
probative evidence to the contrary I shall rely on Clayton’s testimony that she would have
returned to work three weeks after giving birth. Clayton testified that she searched for work up
to the time she gave birth and resumed her search shortly afterwards. I do not find that Clayton
removed herself from the labor market in the year 2000.

Clayton began working at the Atrium on June 1, 2001. Respondent faults Clayton for
leaving this employment in 2003, which, it claims, resulted in smaller earnings in 2004. Clayton

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testified that she resigned from the Atrium when she bid into a full-time position at Trinity Hill
with higher pay, Union benefits and a more convenient location.12 Respondent points out that in
2003 Clayton earned $22,434.63 from Trinity Hill and $10,901.43 from the Atrium for a total of
$33,336.06. In 2004 Clayton earned $28,541.55 from Trinity Hill, a decrease of $4794.51 from
her total earnings in 2003. I do not find that Clayton’s action in going from two part-time jobs to
one full time job was unreasonable even though it resulted in some loss of earnings. Clayton
was entitled to seek a job comparable to that from which she was unlawfully discharged by
Respondent, that is, a full-time job with Union benefits. Trinity Hill offered such a comparable
position. Further, the Trinity Hill job paid more per hour than the Atrium part-time job and was in
a more convenient location. I do not find that Clayton improperly failed to mitigate her back-pay
claim by resigning from the Atrium in order to work full-time at Trinity Hill. Respondent has not
met its burden to show that Clayton improperly failed to mitigate backpay during the relevant
period.

Uniform/Longevity Allowance

Article XX of the Collective Bargaining Agreement provides in relevant part as follows:

Uniforms/Longevity

1. In lieu of furnishing uniforms, the Home shall provide a uniform/longevity
allowance as follows upon successful completion of the probationary period:

Full-Time Part-Time

0-4 yrs. $198 $110
5-9 yrs. $298 $210
10-14 yrs. $442 $310
15+ yrs. $586 $410

2. The uniform/longevity allowance shall be paid 50 percent in the first payroll
period in January and 50 percent in the first payroll period of July in each contract year.

Dr. Parker testified that CNA employees are required to wear a uniform consisting of
solid pants and colorful tops. Employees are not required to furnish proof that they have
purchased a uniform in order to receive the allowance.

Respondent argues that “during the back-pay period … Avery Heights did not require
[the discriminatees] to wear CNA uniforms. Accordingly, Avery Heights should not be required
to provide those employees with uniform allowances for the back-pay period.”

Not surprisingly, the collective-bargaining agreement does not deal directly with the
issue before me. However, certain sections of the contract provide some guidance as to
whether the parties intended to link the payment of the uniform/longevity allowance to the actual
wearing of uniforms during a specified time period. Other portions of the contract I have
considered are as follows:

Article VII Seniority

12 The record does not show the exact date of Clayton’s resignation from Atrium nor the
exact date of her full-time employment at Trinity Hill.

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1. Definition. Seniority shall be defined as the length in time an Employee has
been continuously employed in any bargaining unit capacity by the Home. …

2. Accrual. … b. Seniority shall continue to accrue during any leave of absence
with pay; during any leave of absence without pay for maternity, paternity and family
leave, disability leave, military, Union business and educational leave for a period of up
to twelve (12) months and up to six (6) months for other leaves as set forth in Article VI
and during any period of continuous layoff not to exceed twelve (12) months. 13

Article XV Paid Leave

This Article provides 3 days with pay for funeral leave and one day for paternity
leave. In addition the Article provides

2. Jury Duty Leave. An Employee who has completed his probationary period
and who is called to serve as a juror shall receive his regular pay less his pay as a juror
for each work day while on jury duty, provided that such payment by the Home shall not
exceed eight (8) hours per day or forty (40) hours per week. …

It is evident that seniority continues to accrue during leaves with pay and without pay,
within certain time limitations. In addition, the jury duty paid leave is without any time limitation.
An employee sitting as a juror on a lengthy trial would continue to receive pay and accrue
seniority even if the trial lasted for many months. The language of the uniform/longevity
allowance quoted above is based on seniority alone and does not depend on an employee’s
actually having been at work. Under the plain language of the contract an employee who had
recently returned from a lengthy paid leave as a juror or a lengthy unpaid leave for the military
or maternity would be entitled to receive the uniform/longevity allowance based on his or her
seniority. Thus, I find no expressed intent in the collective-bargaining agreement to deny the
uniform/longevity allowance to employees who have not actually been required to wear a
uniform for any one of a number of reasons. No relevant past practice was adduced by
Respondent at the hearing. Of course, the fact that the contract limits the accrual of seniority
during certain paid or unpaid leaves has no bearing on the instant case where Respondent’s
unlawful action in discharging the discriminatees resulted in their being absent from the
workplace for a number of years. I conclude that Respondent has not met its burden of showing
that payment of the uniform/longevity allowance is dependent on whether an employee actually
was required to wear a uniform for a relevant time period.

State Unemployment Benefit Payments

Respondent asked Dr. Parker a number of questions about unemployment insurance.
Dr. Parker testified that as a non-profit institution the Respondent was permitted under
Connecticut law to elect a “direct pay” status with regard to the State unemployment insurance
scheme. Thus, Respondent does not pay unemployment insurance tax to the State on behalf of
its employees. However, when the State Agency finds that a claimant who has worked for
Respondent is eligible for unemployment benefits the State bills Respondent for the amount of
the benefits received by the claimant. Dr. Parker did not testify concerning the amounts paid by
Respondent to the State of Connecticut to fund the unemployment insurance benefits received
by Hurdle, Clayton and Caldwell.

13 Article VI pertains to probationary employees.

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The direct pay status of Respondent was first raised in its Amended Answer which
asserted that the backpay awarded to the discriminatees should be reduced by unemployment
compensation benefits received “which were paid directly by Avery Heights.” Further in a pre-
hearing conference call with all parties participating, Counsel for the General Counsel stated
that unemployment insurance payments received by the discriminatees were not offset against
backpay in the instant specification.14 During this conference call Counsel for Respondent
stated that he would prove the direct pay status of Respondent. Counsel for Respondent stated
that after the discriminatees received their backpay pursuant to the instant proceeding the State
of Connecticut would move to recoup the unemployment insurance benefits paid to the
discriminatees. Counsel stated that Respondent would then move to recoup the amounts it paid
to the State Agency. Counsel also stated that he had a legal argument to make concerning the
general rule that unemployment benefits were not offset against backpay: this argument would
have been based on the “direct pay” status of Respondent.

Following receipt of the transcript in the instant hearing I sent a letter to all parties
concerning this issue and what I described as an inadvertent omission in the proof offered by
Respondent.15 I suggested that the parties agree on a mechanism for supplying the missing
information about the recoupment feature of the State law. I suggested that counsel could
stipulate to the applicable State regulation and that counsel could stipulate to a statement by Dr.
Parker describing the workings of the recoupment mechanism. No such stipulation was
proposed by Respondent.

Instead, Respondent’s post hearing Brief presented a legal argument to support its
position that the unemployment benefits paid to Hurdle, Clayton and Caldwell should be offset in
computation of the backpay due herein. On October 5, 2006 Counsel for the General Counsel
moved to strike portions of Respondent’s Amended Answer and Brief based on Respondent’s
failure to supply “appropriate supporting figures” with respect to its argument for offsetting
unemployment compensation benefits from the backpay to be awarded herein.16

On October 10, 2006 Counsel for Respondent served an Objection to Counsel for the
General Counsel’s Motion.17 This Objection states, inter alia, that the Connecticut “Department
of Labor can identify the exact amounts paid by Respondent” for each of the discriminatees.
Apparently, Respondent did not seek this information from the State Agency in response to the
ALJ letter of August 30. The Objection further states that if the Board does not offset the
unemployment benefits from the instant award of backpay then “the State of Connecticut will
independently recover the sums paid” from the discriminatees and the Respondent will “be
credited” by the State.

On October 12, 2006 Counsel for the General Counsel moved to strike Respondent’s
Objection.18 On October 18, 2006 Respondent served a further Objection.19 This Objection
relates that after January 2000, when the Union ended the strike, many employees were not
immediately reinstated by Respondent due to the hiring of permanent replacements.
“Accordingly, along with Ms. Clayton, Ms. Hurdle, and Ms. Stewart, Avery Heights paid

14 See Gullett Gin Co. v. NLRB, 340 U.S. 361 (1951).
15 This letter dated August 30, 2006 is hereby admitted into evidence as ALJ Exhibit # 1.
16 The Motion of October 5, 2006 is hereby admitted into evidence as ALJ Exhibit # 2.
17 The Objection of October 10, 2006 is hereby admitted into evidence as ALJ Exhibit # 3.
18 The Motion of October 12, 2006 is hereby admitted into evidence as ALJ Exhibit # 4.
19 The Objection of October 18, 2006 is hereby admitted into evidence as ALJ Exhibit # 5.

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Unemployment Compensation benefits for many employees at that time and is not certain now
as to the exact amount paid to each claimant.” The Objection further points out that Clayton’s
tax returns for 2000 and 2001 show that she received certain amounts of unemployment
compensation in each of those years.

It is clear that Respondent bears the burden of proving any offset against the backpay to
be awarded to the discriminatees. Indeed, pursuant to Sec. 102.56 of the Board’s Rules and
Regulations Respondent’s Answer should have contained the precise figures to support its
unemployment insurance offset argument. The record contains no proof of the amounts paid by
Respondent to the State of Connecticut with respect to any unemployment insurance benefits
awarded to the discriminatees. Indeed, Respondent states that it does not know the exact
amounts it paid to the State Agency with respect to these unemployment benefits. The fact that
Clayton’s tax returns show certain amounts of unemployment compensation received does not
prove that Respondent paid those sums.

Given this failure to prove the actual amounts paid by Respondent to fund the
unemployment benefits to the discriminatees it is unnecessary for me to consider whether,
under the circumstances of this case, sums paid by Respondent to the State of Connecticut for
unemployment insurance benefits are a proper deduction from the backpay due to the
discriminatees. I shall not make any change to the back pay specification stipulated to by the
parties in this regard. It is also unnecessary for me to rule on the motions and objections
relating to this issue.

I note that, if Respondent’s description of the recoupment mechanism described in its
Objection dated October 10, 2006 is correct, Respondent will ultimately be credited with the
proper amounts by the State of Connecticut.

Interest Rate for Unpaid Pension Benefits

Article XXI of the collective-bargaining agreement requires Respondent to make monthly
contributions to the New England Pension Fund. Paragraph 2 provides that “The New England
Pension Fund shall be held and administered under the terms and provisions of the Agreement
and Declaration of Trust, and any amendments thereof, which provide for equal representation
by the Union and the employers contributing to said Fund….” Thus, the collective-bargaining
agreement incorporates the trust documents by reference.

There is no dispute that the trust documents for the New England Pension Fund provide
a rate of 18% interest on delinquent payments to the Fund. Under Merryweather Optical Co.,
240 NLRB 1213, 1216 fn.7 (1979), the interest rate which should be applied in backpay cases to
make whole the pension fund “may be determined, depending upon the circumstances of each
case, by reference to provisions in the documents governing the funds at issue and, where
there are no governing provisions, to evidence of any loss directly attributable to the unlawful
withholding action….”

Respondent asserts that the Board should abandon the above-quoted rule of
Merryweather Optical and Respondent also asserts that the interest rate of 18% is punitive and
not remedial. Respondent argues that the Board should apply a remedial interest rate such as
the short-term Federal rate used to determine the interest on backpay.

Even if the Board were to abandon the reasoning of Merryweather Optical, Respondent
would still bear the burden of proving that, in the circumstances of this case, the 18% interest
rate for unpaid pension benefits is not remedial. As the Board stated in Ryan Iron Works, Inc.,

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354 NLRB No. 56, slip opinion p. 4, (2005), cited in Respondent’s Brief, “in compliance
proceedings the party offering an affirmative defense against the amount specified in a
compliance specification has the burden of proving the mitigation of that amount. Here, the
Respondent contends that the 20 percent … is excessive, but has presented no evidence that a
lesser amount would be sufficient to make the fund whole.”

Respondent cites NLRB v. G & T Terminal Packaging, 246 F. 3d 103 (2nd Cir. 2001),
where the court granted enforcement of the Board’s Order in an unfair labor practice case but
denied enforcement of that portion of the Order which affirmed the ALJ and required the
employer to pay 18% annual interest to the pension fund. The court explained that this issue
had not been litigated in the unfair labor practice case. The court stated, “The record before us
is insufficiently developed for us to determine whether the 18 percent interest rate bears some
reasonable relationship to the actual losses suffered by the funds due to the Company’s
underpayments, or whether it amounts to a punitive measure against the Company.” 246 F.3d
at 128.

Pursuant to the guidance provided by the Board and the Second Circuit in the cited
cases, Respondent could have developed the record in the instant compliance proceeding to
enable me to determine whether the 18% interest rate is punitive and does not bear a
reasonable relationship to the actual losses suffered by the pension fund. However,
Respondent presented no evidence and called no witnesses on this issue. Respondent did not
meet its burden to show that the 18% interest rate specified in the trust documents is punitive
rather than remedial. I shall not make any change to the interest rate used in computing the
back-pay specification.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended20

ORDER21

Respondent Church Homes, Inc. d/b/a Avery Heights, its officers, agents, successors
and assigns shall pay the individuals named below the indicated amounts of total gross backpay
and other reimbursable sums, with interest as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), accrued to the date of payment and minus tax withholding required by law.

Patricia Hurdle $129,956

Georgia Stewart Caldwell $96,080

Opal Clayton $60,375

Respondent shall pay to the New England Pension Fund on behalf of the individuals
named below the indicated amounts, plus interest accrued to the date of payment as required
by the Funds’ Policy on Collections at the rate of 1.5% per month or 18% per year.

20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended 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.
21 The amounts listed in the Order include appropriate interest calculated as of August 31,
2006.

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Patricia Hurdle $19,835

Georgia Stewart Caldwell $12,949

Opal Clayton $12,675

Dated, Washington, D.C., December 27, 2006.

____________________
Eleanor MacDonald
Administrative Law Judge