Bauer Group, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 2002

337 N.L.R.B. 395 (N.L.R.B. 2002)

BAUER GROUP 395
The Bauer Group, Inc., Bauer Communications, Inc.,
and Bauer Financial Reports, Inc., and Sangri­
ale Fulger. Case 12–CA–17150
February 27, 2002
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND
BARTLETT
On December 8, 1999, Adminis trative Law Judge
Richard J. Linton issued the attached supplemental deci­
sion. The General Counsel and the Respondent each
filed exceptions, supporting briefs, and answering briefs.
The Respondent filed a reply brief.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board orders that the
Respondent, The Bauer Group, Inc., Bauer Communica­
tions, Inc., and Bauer Financial Reports, Inc., Miami,
Florida, its officers, agents, successors, and assigns, shall
make whole the employee named below by paying her
the amount set forth opposite her name, plus interest as
1 In adopting the judge’s finding that the Respondent would not have
retained discriminatee Sangriale Fulger after it closed the survey room
in October 1995, we rely on the credited testimony of the Respondent’s
owner and president, Paul A. Bauer, and Fulger’s supervisor, Caroline
Jervey. Bauer testified that he was dissatisfied with Fulger’s work
before he learned of her protected concerted activity and that he wanted
to “get rid of” Fulger. Bauer further testified that he did not do so
because Jervey wanted to keep Fulger, but that he told Jervey that he
“didn’t want her for anything else” since he “wasn’t happy with her
performance.” Jervey’s test imony corroborated Bauer’s. Based on this
testimony, we agree with the judge that the Respondent has established
that it would have terminated Fulger when the survey room was closed.
2 The judge concluded that Fulger should be charged as unavailable
for work for 3 days in the third quarter of 1995 when she attended
depositions related to her civil rights action against the Respondent for
her unlawful discharge and for 7 days in the first quarter of 1996 when
she attended the trial in that case. Accordingly, the judge reduced her
gross backpay by $168 in the third quarter of 1995 and by $448 in the
first quarter of 1996. Because we agree with the judge that the backpay
period for Fulger ended when the survey room was closed on October
13, 1995, 2 weeks into the fourth quarter of 1995, we find it unneces­
sary to pass on the issue of whether Fulger was unavailable for the 7
days she spent at the trial of her lawsuit against the Respondent in
1996. Although the judge found that the deposition occurred in the
third quarter of 1995 and reduced Fulger’s third quarter gross backpay
by $168, the record shows that the deposition occurred in the fourth
quarter of 1995 and not the third quarter of 1995. Therefore, we have
restored that amount to her backpay total for the third quarter of 1995,
and have modified the judge’s recommended Order. We find it
unnecessary to pass, however, on whether Fulger was unavailable for
work for the 3 days of the deposition in the fourth quarter of 1995
because, as the judge found, her interim earnings for that quarter ex­
ceeded any gross backpay due.
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), accrued to the date of payment, minus tax
withholdings required by Federal and State laws:
Sangriale Fulger $6914
Shelley B. Plass, Esq. for the General Counsel.

Daniel F. Blonsky, Esq. (Aragon, Burlington, Weil & Crock­

ett), Miami, Florida, for the Respondent, Bauer.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
backpay case. It is a compliance proceeding to determine the
amount of backpay which the Respondent, The Bauer Group,
Inc., Bauer Communications, Inc., and Bauer Financial Re-
ports, Inc. (Bauer Group, Respondent or Company), owes to
Sangriale Fulger and Gregory Lyons as a result of unlawfully
discharging them during November–December 1994. Liability
was determined against Respondent Bauer Group in the under-
lying unfair labor practice case tried before Administrative Law
Judge David L. Evans in February–March 1998. Judge Evans
issued his decision (JD) on April 24, 1998 (with a correcting
erratum issued on June 26, 1998). Because the Company did
not file exceptions (did not appeal), the National Labor Rela­
tions Board, by its Order of June 10, 1998, adopted Judge Ev­
ans’ decision. The Board’s order, and the (corrected) decision
of Judge Evans, which are part of this record as GCX 1(a) 1, are
not reported in the Board’s bound volumes.
I presided at this 2-day trial in Miami, Florida on July 22–23,
1999, pursuant to the December 30, 1998 compliance specifica­
tion (CS), as subsequently amended, issued by the Regional
Director for Region 12 of the Board. The Regional Director
issued the compliance specification on behalf of the Board
pursuant to the authority granted by 29 CFR 102.54(a).
Respecting the issue of backpay, when the parties could not
agree on the amount of backpay due the two discriminatees, the
Regional Director issued the compliance specification. By her
order of July 20, 1999 (GCX 1m), the Acting Regional Director
issued an amendment to the compliance specification revising
the backpay figures. As reflected there, the total backpay fig­
ures claimed are: 2
Sangriale Fulger $26,652
Gregory Lyons 7,210
Shortly after the start of the backpay trial, the parties settled
as to Gregory Lyons, and his case was severed (in effect re­
manding to the Regional Director respecting compliance with
1 References to the two-volume transcript of testimony are by vol­
ume and page. Exhibits are designated as GCX for the General Coun­
sel’s and RX for those of the Company.
2 The figures are expressed in dollars only, no cents. This is consis­
tent with the Internal Revenue Service procedure American taxpayers
are familiar with in calculating their federal income taxes. The Region
apparently rounded pennies of line items to the nearest dollar. Thus, 50
cents and more are reflected at the next higher dollar, and 49 cents and
less are rounded to the next lower dollar. See Minette Mills, 316 NLRB
1009, 1010 fn. 2 (1995).
337 NLRB No. 50
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the terms of the settlement). (1:25–26) The settlement stipula­
tion, which I approved, is part of the record as General Counsel
Exhibit 2. Thus, the only case remaining is that pertaining to
Fulger. In the underlying unfair labor practice case, and in this
proceeding, the name of Sangriale Fulger has been spelled in
different ways. While the spelling in the case below, and in the
formal papers here, may not be the correct one, it is the one that
has been used. To be consistent with that spelling, and to avoid
confusion, I continue the spelling that has been used as re­
flected above.
By its amended answer of July 15, 1999, Company raises
numerous defenses. These principally include the defense that
Fulger failed to exercise reasonable diligence in searching for
work and that her job duties would have been eliminated no
later than October 16, 1995 when her position (rate surveyor)
was eliminated. Company asserts that Fulger is not entitled to
any backpay.
As reflected in the pleadings, and based on the findings in
the liability stage, Fulger’s backpay period begins on Novem­
ber 29, 1994, the date Company unlawfully discharged her. It
ends some 42 months later on May 18, 1998, the date Company
(by letter, GCX 3) unconditionally offered Fulger reinstate­
ment. But Fulger, having moved up, effective June 1, 1998
(RX 4 at 22; 1:154), to a salaried position paying her $24,000 a
year at her current interim employer, a position she still holds
(1:158), declined (1:30) the offer of reinstatement. Actually,
Company’s letter (GCX 3) offering reinstatement is dated May
8, 1998. The compliance specification uses the date of May 18
because that is the closing date given Fulger to respond to the
offer for a reinstatement date of May 26, 1998. (1:39–1:40)
On the entire record, including my observation of the de­
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and the Respondent Company, I
make these findings and conclusions.
FINDINGS OF FACT
I. GOVERNING LEGAL PRINCIPLES
The controlling legal principles are well settled by many
cases. Ten of the rules are listed in Minette Mills, 316 NLRB
1009, 1010–1011 (1995). Because all 10 rules are not involved
here, I quote only those that are, using the sequence numbers
set forth in Minette Mills. Thus:
First, when loss of employment is caused by a viola­
tion of the Act, a finding by the Board that an unfair labor
practice was committed is presumptive proof that some
backpay is owed. Arlington Hotel Co., 287 NLRB 851,
855 (1987), enfd. on point 876 F.2d 678 (8th Cir. 1989).
Third, in compliance proceedings, the General Counsel
bears the burden of proving the amount of gross backpay
due. Florida Tile Co., 310 NLRB 609 (1993); Arlington
Hotel, id. [I need not complete the quotation of Rule 3 be-
cause the Company here admits the gross backpay formula
as alleged in the compliance specification.]
Fourth, the burden is on the employer who committed
the unfair labor practice to establish facts that reduce the
amount due for gross backpay. Florida Tile, supra. Thus,
the burden of showing the amount of any interim earnings,
or a willful loss of interim earnings, falls to the Respon­
dent. Arlington Hotel, supra. Although it is the Respon­
dent’s burden to establish a discriminatee’s interim earn­
ings, if any, it is the General Counsel’s voluntary policy to
assist in gathering information on this topic and to include
that data in the compliance specification. Florida Tile, su­
pra; Arlington Hotel, supra; 3 NLRB Casehandling Man­
ual Secs. 10540.1 and 10629.9 (Sept. 1993). The volun­
tary policy is nothing more than an “administrative cour­
tesy.” Ryder System, 302 NLRB 608, 613 fn. 7 (1991),
enfd. 983 F.2d 705, 142 LRRM 2290 (6th Cir. 1993).
Fifth, even though a discriminatee must attempt to
mitigate his or her loss of income, the discriminatee is held
only to a reasonable assertion rather than to the highest
standard of diligence, and success is not the test of reason­
ableness. Florida Tile, supra; Arlington Hotel, supra. In­
terim employment means comparable work�substantially
equivalent employment. Thus, it is well established that a
discriminatee’s obligation to mitigate an employer’s back-
pay liability requires only that the discriminatee accept
substantially equivalent employment. Arlington Hotel,
supra.
Eighth, if a discriminatee incurs any reasonable and
necessary expenses in earning interim income (above what
would have been incurred working for the Respondent), it
is the General Counsel’s burden to establish the amounts
of those expenses. Arlington Hotel, supra. Such expenses
are deducted from interim earnings. They are not added to
gross backpay. 3 NLRB Casehandling Manual Sec. 10544
(Sept. 1993).
Tenth, as Respondent is the wrongdoer who caused the
discriminatees’ initial unemployment, any ambiguities,
doubts, or uncertainties are resolved against Respondent,
the wrongdoer, because an offending respondent is not al­
lowed to profit from any uncertainty caused by its dis­
crimination. Florida Tile Co., 310 NLRB 609, 610
(1993); Ryder System , 302 NLRB 608 and fn. 4 (1991),
enfd. 983 F.2d 705, 142 LRRM 2290 (6th Cir. 1993); Big
Three Industrial Gas, 263 NLRB 1189, 1190 fn. 8 (1982).
Respecting Rule 4, above, and the General Counsel’s policy
of voluntarily assisting in gathering information as to interim
earnings, I suggest that the Government has more of a reason
for doing this than simply one of “administrative courtesy.”
Thus, the Government has an interest in spending tax dollars
wisely. A disservice would be done both to the Agency and to
the taxpayers if the Government did not (as it ordinarily does)
gather information about interim earnings, only to learn at the
backpay trial that the discriminatee was mistaken about or had
concealed substantial amounts of interim earnings (with such
mistake or concealment possibly having blocked settlement
efforts). This is one reason why the Agency’s Compliance
Manual emphasizes the compliance officer’s investigation of
interim earnings. See 3 NLRB Casehandling Manual 10540
(Sept. 1993). As Finley Peter Dunne’s “Mr. Dooley” would
say (in proper text), “Trust everybody, but cut the cards.”
BAUER GROUP 397
II. THE EVIDENCE
A. The Six Witnesses
Six witnesses testified before me. For the first of the Gov­
ernment’s two witnesses, the General Counsel called Stephen
Jacoby, a supervisory examiner with NLRB Region 12 and the
Region’s Acting Compliance Officer from about July 1997 until
early April 1999. (1:28) It was Jacoby who gathered the infor­
mation for the compliance specification, did the computations,
and drafted the compliance specification, and the amendment to
the CS. Compliance Officer Jacoby explained the basis for each
liability allegation of the CS. The General Counsel next called
Fulger to testify about the limited interim expenses claimed for
her in the compliance specification. The General Counsel then
rested the Government’s case in chief, as did Fulger respecting
the Charging Party’s case in chief. (1:77–78)
Company then called Charging Party Fulger (to cover her
search for interim employment), Steven Boyar (an owner of the
employment agency which Fulger called upon for referrals to
interim employment), Dorothy McDaniel Stein (president of an
employment agency, called to give expert testimony about Ful­
ger’s chances for interim employment in the Miami area), Paul
A. Bauer (owner and president of Respondent and its component
entities, who describes his business and asserts that Fulger would
not have been transferred elsewhere in Company (to any of the
other corporate entities) at or before the department she had
worked in closed), and Caroline Jervey (an officer of Company
who reinforces Bauer’s testimony respecting Fulger, and giving
more details).
For the rebuttal stage, the Government recalled Compliance
Officer Jacoby and Charging Party Fulger and then (2:434)
closed. Company presented no surrebuttal. (2:434)
B. The Backpay Claimed
On a quarterly basis, the Government claims backpay for
Fulger (as listed in Appendix C to the July 20, 1999 amend­
ment to the CS) as follows:
Year Quar- Gross Interim Interim Net Net
ter Back- Earn- Ex- I/Earn- Back-
pay ings penses ings pay
1994 4 1288 0 12 0 1288
1995 1 3640 1642 0 1642 1998
1995 2 3880 1079 0 1079 2801
1995 3 1344 349 0 349 995
1995 4 4160 1582 0 1582 2578
1996 1 4160 2392 24 2368 1792
1996 2 4160 2392 0 2392 1768
1996 3 4160 2392 24 2368 1792
1996 4 2752 1478 0 1478 1274
1997 1 4160 1230 14 1216 2944
1997 2 4160 1950 0 1950 2210
1997 3 3840 1950 0 1950 1890
1997 4 4160 2700 0 2700 1460
1998 1 4160 2925 0 2925 1235
1998 2 2112 1485 0 1485 627
Total net backpay due Sangriale Fulger: $26,652
C. Numbers claimed reflect offsets applied
1. Introduction
Unlike the usual procedure of having the compliance specifi­
cation (CS) show (frequently by footnotes to the affected num­
bers) whatever adjustments have been made to the gross back-
pay or other categories of numbers, 3 the (July 1999) CS here,
with its appendices of quarterly forms, plus a summary table (as
shown above), does not do that. Instead, former Acting Com­
pliance Officer Jacoby testified that, in effect, the numbers
claimed by the Government already reflect the adjustments.
Respecting the gross backpay, although the pay rate and weekly
hours are given in paragraph 2 of the CS, the actual computa­
tion is not shown and a quarter of 13 weeks must be assumed in
order to match the gross backpay figures. Turn now to a listing
of the adjustments made to the December 1998 numbers as
reflected (in the totals, but not in the calculations) in the July
1999 numbers.
2. 3Q95
The first adjustment is for the third quarter of 1995 (3Q95).
Jacoby subtracted $2816 from the $4160 gross backpay to give
a new gross backpay figure of $1344 as the corrected (as of
July 1999) gross backpay for 3Q95. Thus, this is a $2816 ($8
per hour x 40 hours x 8.8) offset, or reduction, from the $4160
gross backpay based on an 8.8 week absence (vacation) by
Fulger (1:106–108) from the work force during the quarter.
(1:32–34, 111–113; 2:420) Paragraph 2 of the CS alleges that
Fulger’s pay rate was $7 per hour until May 22, 1995 when it
would have increased to $8 per hour for the balance of the
backpay period. By its answer, Company admits as to the $7,
but denies as to the $8. At this point I show the corrected fig­
ures as claimed by the Government.
3. 4Q96
Jacoby testified that the (July 1999) figures, as shown above,
already reflect the result of his having subtracted $1408 ($8 per
hour x 40 hours x 4.4) from the $4160 gross backpay (leaving
$2752) to account for a 4.4 week absence from the work force
in December 1996 because of complications (morning sickness)
from Fulger’s pregnancy. (2:421, Jacoby; 2:431, Fulger). A
second correction for the quarter was made to the original to
reflect interim earnings for 2 months ($1478), rather than 1
month, from Ultimate Life Services—so a reduction in net
backpay. (1:37–38, 40–42)
4. 3Q97
Finally, Jacoby (in drafting the July 1999 amendment) re­
duced the $4160 backpay for 3Q97 by $320 to $3840 based on
Fulger’s being unavailable to work for one week because of a
miscarriage in late September 1997. (2:422–423; RX 1 at 1)
3 So that everyone (ALJ included) can understand the numbers, the
Agency’s compliance manual calls for the calculations to be shown.
See 3 NLRB Casehandling Manual 10621.5 (Sept. 1993).
Totals: 52,136 25,546 74 25,484 26,652
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D. Offsets Overlooked or Not Applied
On brief Company complains that gross backpay was not re­
duced for three additional times when Fulger was unavailable to
work. (Brief at 24) These occasions were 3 days in 3Q95 when
Fulger attended depositions in her race discrimination suit which
Fulger filed against Bauer Group over her discharge, 4 and the 7
days when she attended the trial of that lawsuit in 1Q96. (2:329–
332, 427–428) The third occasion was when Fulger suffered a
miscarriage in May 1997 (2Q97) and was unavailable for work for
3 days. (2:431)
As for the miscarriage, Jacoby agrees that if Fulger was un­
available to work as a result, then that time should be deducted
from the gross backpay. (2:416) Generally, backpay is tolled as
a result of pregnancy complications that result in work unavail­
ability. 3 NLRB Casehandling Manual 10546.3 (Sept. 1993).
As to the civil rights lawsuit, Jacoby was uncertain. (2:416)
On brief, the Government argues that Fulger should not be de­
clared as unavailable during her 10 days of attendance at her
civil rights litigation because that litigation resulted from Ful­
ger’s unlawful discharge. (Brief at 19 fn. 9) That argument con-
fuses apples with pumpkins. Whether the discharge was unlaw­
ful under the Civil Rights statute is something that would be
determined, and accounted for, there. I doubt that the Govern­
ment would have agreed to be bound here by the outcome there.
[Good thing.The jury found in Company’s favor. (2:329).]
Finding no merit to the Government’s argument, I further find
that Fulger should be charged as unavailable for work by attending
the proceedings in her civil rights lawsuit for 3 days during 3Q95,
or by $168 ($7 per hour x 24 hours) and 7 days during 1Q96, or by
$448 ($8 per hour x 56 hours). Additionally, her gross backpay
must be reduced for the 3 days she was unavailable in 2Q97, or by
$192 ($8 per hour x 24 hours), as a result of her miscarriage. Thus,
with the numbers for those quarters now revised, the corrected
figures are reflected in the following revised table:
Year Quar- Gross Interim Interim Net Net
ter Back- Earn- Ex- I/Earn- Back-
pay ings penses ings pay
1994 4 1288 0 12 0 1288
1995 1 3640 1642 0 1642 1998
1995 2 3880 1079 0 1079 2801
1995 3 1176 349 0 349 827
1995 4 4160 1582 0 1582 2578
1996 1 3712 2392 24 2368 1344
1996 2 4160 2392 0 2392 1768
1996 3 4160 2392 24 2368 1792
1996 4 2752 1478 0 1478 1274
1997 1 4160 1230 14 1216 2944
1997 2 3968 1950 0 1950 2018
1997 3 3840 1950 0 1950 1890
1997 4 4160 2700 0 2700 1460
1998 1 4160 2925 0 2925 1235
1998 2 2112 1485 0 1485 627
Totals: 51,328 25,546 74 25,484 25,844
4 In his decision at 4, 5, and 11, Judge Evans mentions the lawsuit.
Total net backpay due Sangriale Fulger: [Modified claim] $25,844
E. Fulger’s Interim Earnings
Much of the evidence relates to Fulger’s interim earnings
and her search for work. I need not cover this evidence in de-
tail for several reasons. First, Company apparently has misper­
ceived its burden of proof. Under Rule 4, above, it is Com­
pany’s affirmative burden to establish, by positive evidence,
that Fulger willfully failed to mitigate her damages. A party
does not carry its affirmative burden (does not generate positive
evidence) by calling its opponent and persuading the trier of
fact that its opponent’s assertions of good faith efforts are not
credible, when the discredited testimony is the only evidence
on the point in issue. NLRB v. Hawkins Construction Co., 857
F.2d 1224, 1227 fn. 3 (8th Cir. 1988); Roper Corp., 712 F.2d
306, 310 (7th Cir. 1983); Precision Industries , 320 NLRB 661
at 661 (1996) (disavowing ALJ’s implication that, disregarding
other evidence, he was required to find a violation of Sec.
8(a)(3) solely because he did not believe the testimony of Re­
spondent’s witnesses concerning reasons for the action at is-
sue), enfd. 118 F.3d 585 (8th Cir. 1997). Stated differently, a
Respondent cannot merely rely on its cross examination of
discriminatees (or its direct examination of them as witnesses
called under FRE 611(c)) “and their alleged impeaching testi­
mony to satisfy its burden of proof.” United States Can Co.,
328 NLRB 334, 338 (1999). Yet, in large measure, that is what
Company seeks to do here.
Similarly, Respondent misperceives discriminatee Fulger’s
obligation under Rule 5, above, to exercise reasonable diligence
in seeking interim employment. It avails a Respondent nothing
to introduce a batch of newspaper ads, such as RX 10 here.
Such advertisements of jobs in newspapers generally are irrele­
vant, and are so here, because the evidence does not show, for
example, whether the jobs would have been available had Ful­
ger applied, nor whether Fulger would have been hired had she
applied. United States Can Co., 328 NLRB 334, 344 (1999);
A.P.R.A. Fuel Oil Buyers Group, 324 NLRB 630, 632 fn. 3
(1997), enfd. 159 F.3d 1345 (2d Cir. 1998) (table).
To the same effect is testimony of most “experts” who com­
pare a discriminatee’s list of skills, education, age, and work
experience with the expert’s knowledge of the local job market.
Company called Dorothy McDaniel Stein (owner and operator
of an employment agency in the Miami area) as a vocational
expert who, in general, asserts that, with her skills, education,
and experience, Fulger should have been able to have found
comparable work rather quickly. Even assuming that Stein
would qualify as an expert (a point I need not reach), her evi­
dence is entitled to no weight for at least two reasons. First,
Stein simply points to a good economy, with plentiful jobs, and
opines that, had Fulger hustled (and particularly had she sought
Stein’s assistance), jobs were there for the taking. Thus, Stein
describes the market potential, and speculates on Fulger’s
chances. Such evidence by vocational experts is meaningless.
United States Can Co., 328 NLRB 334, 343–344 (1999); Food
& Commercial Workers Local 1357, 301 NLRB 617, 621–622
(1991); Delta Data Systems Corp., 293 NLRB 736, 736–738
(1989). Certainly it does not show a willful failure by Fulger.
What it does show is that Fulger, for a long time, was not suc-
BAUER GROUP 399
cessful in finding comparable work. But as Rule 5, above,
states, success is not the test of reasonable diligence.
The second reason I attach no weight to Stein’s testimony is
that she employed the wrong standard of diligence. Contrary to
the law’s standard of reasonable diligence, she espouses a stan­
dard of high, even highest, diligence. Never mind that you and
I might use that standard for ourselves, the standard under the
law for the general public is “reasonable” diligence. Rule 5,
above. Thus, Stein’s system defines job hunting as “a full-time
job,” “that’s what you do from morning to night, . . .” (1:257)
The law does not require such constant job hunting. December
12, 282 NLRB 475, 477 (1986). On this point the law recog­
nizes the obvious—Fulger, as well as most other discrimina­
tees, sometimes have to take part time jobs just to have some
money coming in so that they can survive. In their off time,
they look for work.
And this is what Fulger did. Initially, she registered with the
Florida Unemployment Commission. She had to submit
weekly work search reports to that government agency. (1:86–
88) That registration is prima facie evidence of a reasonable
search for employment. Allegheny Graphics , 320 NLRB 1141,
1145 (1996), enfd. 113 F.3d 845 (8th Cir. 1997). Fulger
checked the newspapers (1:83, 85, 104–105, 130, 139), called
friends (1:90, 139, 141, 114–115), and registered with one pri­
vate employment agency, “A Job For You.” [The latter re­
ferred Fulger to some temporary jobs that possibly could have
developed into full time jobs. Steven Boyar, an owner of that
employment agency, suggests that Fulger could have obtained
more job placements through his agency. (1:192) Such testi­
mony is rather similar to that of Dorothy McDaniel Stein. I
attach no weight to such speculation. In any event, Boyar con-
cedes that the computer notes of his employees may not be
complete concerning Fulger’s contacts with his agency (1:217–
218), and (1:191) that Fulger’s record with his employment
agency is not unusual when compared with other job applicants
using the placement services of “A Job For You.”]
Similarly, Company faults the number (as shown on the
work search forms (RX 1) which she submitted to NLRB Re­
gion 12) of Fulger’s job contacts over the course of her 42-
month backpay period. [On brief, Company counts 14, perhaps
on the basis that there may be 14 names. But some of the
names, such as the employment agency Fulger worked with,
were contacted more than once, and in different quarters, yield­
ing, by my count, at least double the contacts suggested by
Company.] In any event, Fulger’s efforts eventually paid off.
On March 5,1997 she was hired for part time work at Celebrity
Cruises at $6 per hour as a reservations agent. (1:142; RX 4 at
10) [“Part time” apparently can be a misleading term, for the
term, at least at Celebrity, apparently referred to the classifica­
tion rather than to the number of hours worked. (1:148).] Ful­
ger looked forward to the completion of her 90-day probation
period so that she could obtain group medical coverage.
(1:146) Initially she did not look for full time work elsewhere
because she wanted to gain the experience she needed to qual­
ify for a full time position with Celebrity. (1:147) Eventually
she began looking elsewhere for full time work, but, fortu­
nately, on October 20, 1997, Fulger was promoted by Celebrity
to full time with a wage increase to $6.65 per hour. (1:148; RX
4 at 16) [Although RX 4 at 16 was not one of the pages re­
ceived in evidence at trial, I receive it in evidence now because
it simply confirms the testimony.]
About February 1998 Fulger was loaned by Celebrity to
Royal Caribbean Cruises. Sometime that spring, or summer,
the two companies merged. While Fulger was on loan to
Royal, a vacancy developed in a salaried position for an auto­
mation support representative. On April 24, 1998 Fulger ap­
plied for the position and was hired, effective June 1, 1998, at
the annual salary of $24,000. (1:150–157; RX 4 at 21–22).
Fulger’s persistent efforts and eventual success bring up an-
other rule of law favoring her—a discriminatee’s work search
efforts are evaluated on the basis of the backpay period as a
whole, not on any isolated portions, even if there was no work
search in a quarter here or there. Acme Bus Corp., 326 NLRB
1, 4 (1998); Operating Engineers Local 68 (Ogden Allied
Maintenance Corp.), 326 NLRB 1, 4 (1998); Allegheny Graph­
ics, id. at 1144; Basin Frozen Foods, 320 NLRB 1072, 1074
(1996), mod. on other point mem, 139 F.32d 906 (9th Cir.
1998); 282 NLRB 475, 477 (1986). As the backpay table in
this case shows, except for the balance of the first quarter of her
discharge, 4Q94 (a time when she was depressed following her
discharge), Fulger had interim earnings in every quarter there-
after. Fulger did her best, and eventually her job hunting strat­
egy paid off when she was able to move up to successively
better positions, eventually even a permanent, salaried position
earning nearly double the $6.00 rate for the part time job that
eventually lead to her salaried position.
As noted earlier, after Company fired her, Fulger needed at
least a part time job because she needed money to survive.
Aside from the practical problems of little or no money to buy
gas to drive to a lot of job prospects (1:142), and mechanical
problems with her car (1:67–68; RX 1 at 10), Fulger had the
additional problem of whether to disclose or conceal from pro­
spective employers the fact that she had been fired by Company
(1:137, 163). In this connection, when Company fired Fulger,
it could have done itself a big favor by giving her some assis­
tance in finding work elsewhere. (After all, if the discharge
were found to be unlawful, the legal burden would be on Com­
pany to show that, for any periods of unemployment, Fulger
had willfully failed to mitigate her damages.) In short, it was in
Company’s best interests (in avoiding potential backpay liabil­
ity) to offer Fulger some assistance, or at least some sugges­
tions and guidance.
Instead, Company made Fulger’s situation even more diffi­
cult. First, the discharge occasion was “hostile.” (1:164) For
awhile, Fulger was depressed over her discharge. (1:137) To
avoid a prospective employer’s receiving a negative report
from Company [to avoid “compelled self defamation”], Fulger,
most of the time, did not show Company as a previous em­
ployer on her job applications. (1:162–163; 2:300) Actually,
Company’s policy respecting inquiries from prospective em­
ployers is to disclose, as to former employees, only their dates
of employment and rates of pay. (2:315) Unfortunately, Com­
pany did not provide to Fulger this critical information about its
policy. (1:162–164; 2:316)
Additionally, the thrust of Company’s criticism of the num­
ber of job contacts made by Fulger during her backpay period
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
disregards the extremely important point that it was not until 2
years after she filed her May 22, 1995 charge that she received
from NLRB Region 12 the Region’s first notice (GCX 7, letter
of May 29, 1997), with work search forms (Form NLRB 5224),
and cautions about the need to fill out the forms.
[The complaint in the underlying case did not issue until April
28, 1997.5 ] The 2-year delay in sending out the work search
forms comes from the fact that NLRB Regional Offices are
instructed to send out Form NLRB 5224 when (or shortly after)
a complaint issues in a case. 3 NLRB Casehandling Manual
10540.2 (Sept. 1993). That is NLRB Region 12’s practice.
(1:43–44, Jacoby) Thus, for her first 2 years, Fulger, who did
not make any work search records (other than what she submit­
ted to the Florida Unemployment office), had to rely on her
memory to fill out the batch of forms she received “after the
fact.” She did the best that she could. (1:74, 77, 88, 93–94,
104; 2:300–302, 306) The date stamp of NLRB Region 12 for
June 12, 1997 is on several of the forms in evidence. I find that
Fulger, doing her best, filled out these forms, as her memory
allowed, and submitted the first batch to Region 12 which
stamped their receipt as June 12, 1997.
[Although, as just explained, it is clear why NLRB Region
12 did not send out the work search forms until 2 years after
Fulger had filed her charge in the underlying case, it remains
unexplained, either in this record or in the judge’s decision in
the underlying case, just why some 2 years elapsed between the
time Fulger filed her charge and the date that the complaint
issued in the underlying unfair labor practice case. Although
the median time for the Agency’s Regional Offices to investi­
gate a case, reach a decision on the merits, and, in merit cases,
issue a complaint, has nearly doubled in the last few years, the
median time was still just 86 days for Fiscal Year 1997, which
closed on September 30, 1997. See 62 NLRB Annual Report
1997 at 10, Chart 6, and 164, Table 23 (1998).]
That Fulger could not recall many of the places she con­
tacted, particularly during the first 2 years, and that she did not
keep good records, is neither unusual nor surprising. Fulger
testified that she contacted more places than are shown in her
Form NLRB 5224 work search reports. (1:93–94, 104) In light
of Fulger’s not having any forms or instructions for the first 2
years of the backpay period, and that she did not keep good
records either before or afterwards, yet she contacted many
places or friends, found work, and eventually found an excel-
lent salaried opportunity, the fact that her work search forms
show only some of her contacts is at the point of being legally
irrelevant. It is well settled that poor recordkeeping and an
uncertain memory do not automatically classify a discrimina­
tee’s work search efforts as inadequate. United States Can Co.,
328 NLRB 334, 345, 356 (1999) (Robert Bennett; Carl Men­
hennet—claim of three job contacts per week by Menhennet,
but he could not recall a single one during three quarters in
1989; not unusual); Allegheny Graphics, 320 NLRB 1141,
1145 (1996), enfd. 113 F.3d 845 (8th Cir. 1997); Basin Frozen
Foods, 320 NLRB 1072, 1076 (1996), mod. on other point, 139
5 I take official notice of the date the complaint issued. By posthear­
ing correspondence, not part of the record, counsel advise that they
have no objection to my taking such official notice.
F.32d 906 (9th Cir. 1998) (table); December 12, 282 NLRB
475, 477 (1986).
Finally, Rule 10 (the “wrongdoer rule”) is a formidable
block against arguments based on uncertainties, speculations,
and criticisms of a discriminatee’s uncertain memory and
spotty records—especially where, as here, interim earnings are
recorded in virtually every quarter of the backpay period and
the discriminatee eventually, by her own efforts (and with no
help from the wrongdoer), finds a part time job that ripens into
a full time job that leads to a promotion to a salaried position.
None of these problems would be a problem had the Respon­
dent not violated the law by discharging Sangriale Fulger in the
first place. No amount of legal argumentation can obscure the
fact that the primary cause of all the problems here is that
unlawful act of discharge. The law does not permit a wrong-
doer to profit from its illegal activity.
In light of the foregoing, and all the record, I find that Com­
pany has failed to show that, during the backpay period, San­
griale Fulger willfully failed to mitigate her damages or that she
failed to exercise reasonable diligence in seeking interim em­
ployment.
F. Fulger’s Interim Expenses
The compliance specification shows only $74 in interim ex­
penses (for gasoline or mileage expenses), and, of this, only
$62 is claimed as an offset against interim earnings. Recall
from Rule 8, above, interim expenses are deducted from interim
earnings; they are not added to gross backpay. (1:38, Jacoby)
Aside from its denial of the allegations respecting expenses, on
brief Company does not bother to contest the matter. Neverthe­
less, there is one problem associated with the claim for the
expenses that the Government’s case does not address. The
oversight pertains to the part of Rule 8 declaring only those
expenses eligible that exceed the expenses the discriminatee
would have incurred had she remained working for the Re­
spondent. As Fulger testified that her daily commute while
working for Company was 40 miles roundtrip (1:66), only that
mileage exceeding the daily 40 miles qualifies as an allowable
interim expense.
Turn now to the first expense listed, that of $12 in 4Q94. I
need not cover the brief testimony for this 4Q94 expense for the
simple reason that no interim earnings are listed, and it is not
claimed there in computing the net backpay. Its presence
among the numbers is confusing, and I therefore shall delete
that $12 from the backpay table.
For 1Q96 the CS claims a $24 expense for 80 miles of travel
on a single day. (1:62–63, 69) Disallowing half of that ex­
pense, I find the allowable expense to be $12. [If the Govern­
ment actually made the proper deduction in its calculations
(there is no evidence that it did), but did not show them on the
CS, that is unfortunate, for discriminatee Fulger must now pay
for the same gasoline a second time.] I make the same finding
regarding the $24 expense claimed for one day of travel, at 80
miles, in 3Q96. (1:64–65, 68–69)
Finally, we have the 1Q97 expense of $14. This occurred
when Fulger drove some 45 miles over the course of several
days. (1:65–66) I shall disallow the $14 because it is less than
she would have spent had she not been fired. That brings the
BAUER GROUP 401
backpay table to show a total of $24 as allowable interim ex­
penses, with the new numbers shown for the corrected claim by
the Government in the table that appears in a moment. First,
however, some adjustments are necessary for interim income
not reported.
G. Interim Income Not Recorded
The record reflects , and Acting Compliance Officer Jacoby
concedes (2:417), that Fulger earned some $857 on temporary
jobs obtained through the “A Job For You” employment agency
that is not recorded on her work search forms. [I credit Fulger
in her testimony that she recorded what she could recall. (1:74,
77, 88, 93–94, 104–105; 2:300–302, 306).] This additional
income came as follows: 2Q95, $241; 4Q96, $436, and 1Q97,
$180. Note that all three quarters occurred before, even well
before, Fulger received, in May 1997, the work search forms
and instructions from NLRB Region 12. Although the Gov­
ernment, on brief, does not move to amend the compliance
specification to make these adjustments, and to show the cor­
rected numbers, I do so in the revised table that follows (both as
to the revised interim expenses and the unrecorded interim
income of $857):
Year Quar- Gross Interim Interim Net Net
ter Back- Earn- Ex- I/Earn- Back-
pay ings penses ings pay
1994 4 1288 0 0 0 1288
1995 1 3640 1642 0 1642 1998
1995 2 3880 1320 0 1320 2560
1995 3 1176 349 0 349 827
1995 4 4160 1582 0 1582 2578
1996 1 3712 2392 12 2380 1332
1996 2 4160 2392 0 2392 1768
1996 3 4160 2392 12 2380 1780
1996 4 2752 1914 0 1914 838
1997 1 4160 1410 0 1410 2750
1997 2 3968 1950 0 1950 2018
1997 3 3840 1950 0 1950 1890
1997 4 4160 2700 0 2700 1460
1998 1 4160 2925 0 2925 1235
1998 2 2112 1485 0 1485 627
Totals: 51,328 26,403 24 26,379 24,949
Total net backpay due Sangriale Fulger: [Corrected per findings] $24,949
H. Whether Net Income, Rather Than Gross Income, Reported
Company contends (Brief at 21–22) that Fulger recorded her
net pay, not her gross pay, and that, therefore, all the figures
shown for interim earnings in the compliance specification, as
amended, should be increased “accordingly.” [Company does
not suggest the numbers to use.] The testimony of Fulger on
which Company relies for this contention is her part time work
at Eckerd Drugs during 1Q95 and 2Q95 shown as $83 per week
(1:95–96; RX 1 at 19–22), and her hourly work at Celebrity
Cruises starting in 1Q97 (1:149).
Regarding her work at Eckerd, Fulger does indicate
that the $83 a week she recorded was after taxes. (1:95–
96) She worked at minimum wage. I take official notice
that, in 1995, the federal minimum wage was $4.25 per
hour. See the Department of Labor’s website at
www.dol.gov/dol/esa/public/minwage/press.htm. As Fulger’s
regular week at Eckerd was 20 hours, her regular weekly gross
would have been $85. Apparently her taxes (probably only
Social Security taxes) would have been $2.00 per week, leaving
her with a net of $83. Fulger also suggests that in some weeks
she may have worked more than 20 hours, but the record is
ambiguous as to that point.
Although the $2 a week would seem to be de minimis under
the law, the real problem, in determining the numbers, is that
Company did not discharge its burden of showing what Ful­
ger’s gross earnings were at Eckerd Drugs. Company could
have subpenaed an Eckerd official, but apparently did not do
so. [Company did seek to offer a letter (RX 2 – Rejected) from
Eckerd Corporation showing the dates of Fulger’s employment
there (but nothing about earnings), but, on the Government’s
hearsay objection, I excluded the document. (1:103).] Com­
pany also could have subpenaed Fulger to produce copies of
her federal tax returns (and required her to obtain copies of
them, and the W-2 forms, from the IRS). Company apparently
only requested production. (1:128, 143–144; 2:308–309)
Because Company did not carry its burden to show Fulger’s
earnings at Eckerd, I shall not speculate on the number of
weeks that Fulger worked there. Thus, there is no basis for me
to add $2.00 a week (largely a de minimis amount in any
event), for an unknown number of weeks, to Fulger’s interim
earnings. In short, I find that, in effect, Company waived its
opportunities respecting any discrepancy as to Fulger’s interim
earnings at Eckerd Drugs.
Respecting the other cited reference (1:149) pertaining to
Celebrity Cruises, Company apparently attempts to interpret a
vague phrase there by Fulger, “After the pay taken out . . .” as
meaning that Fulger recorded on the work search reports (RX
1), as to Celebrity, only her net pay, not her gross pay. There is
some basis in the record for concluding that such occurred.
Thus, in addition to the cited reference in Company’s brief,
elsewhere Fulger indicates that the weekly income of $225,
which she reported by telephone to Jacoby on December 18,
1997 (RX 7), “possibly” was take-home pay. (2:306–307)
As pointed out earlier, on October 20, 1997 Fulger was pro­
moted by Celebrity to full time status with an increase in pay to
$6.65 per hour. Fulger acknowledges that full time was 40
hours per week. (2:307) Fulger’s pay apparently was increased
to $7 an hour about December 1997. (RX 7; 2:306–307) At $7
per hour, a 40-hour week would yield gross pay of $280—not
$225. Multiply the $280 by 13 weeks gives us a per-quarter
gross interim earnings of $3640, not the $2925 listed on the
compliance specification’s Appendix A-14 and Appendix C for
1Q98. [This was not simply an error in arithmetic by NLRB
Region 12. Region 12 simply accepted without question the
figures submitted to it by Fulger. (1:31, 45–46). Indeed, that
was Region 12’s pattern. Thus, while it may not be Region
12’s normal practice to contact interim employers for confirm­
ing data, and such was not done here (1:45), the Agency’s
Compliance Manual, section 10540.4, not only calls for it to be
done, but, at Appendix 2, supplies a sample letter for that pur­
pose. Again, although it may not be the normal practice for
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Region 12 to obtain a copy of the discriminatee’s federal tax
return and W-2 forms as a secondary source for confirming
data about interim earnings (1:46), the Agency’s Compliance
Manual, Sections 10540.4 and 10531.3, describes them as such
when interim employers have not furnished such information.]
Applying a 20 percent tax rate to the $3640 gives us an after-
tax figure of $2912 ($3640 x 80%)—very close to the $2925
listed in the compliance specification for 1Q98. Assuming that
the $225 figure is accurate, the actual rate of deduction (pre­
sumably for taxes) would be 19.64285 percent ($3640 – 2925 =
$715 ÷ 3640 = 19.64285).
If Fulger reported all her Celebrity income at approximately
80 percent, then a 25 percent increase of the Celebrity earnings
shown in the CS ($2925 x 25% = 731 + 2925 = $3656 for
1Q98), applied to all quarters at Celebrity from 1Q97 forward,
would be appropriate. (Actually, the exact multiplier would be
24.444444%. [$3640 – 2925 = 715 ÷ 3640 = 19.64285% x
3640 = 714.99974, or $715 + 2925 = $3640].)
However, I shall postpone further discussion of this subject
until I address the topics that follow, especially the one dealing
with closing of the survey room. For if Fulger would not have
been retained beyond the October 1995 closing of the survey
room, any discrepancy in Fulger’s reporting of her income at
Celebrity Cruises, starting in 1Q97, would be moot.
I. The Pay Increase
Recall that the backpay period begins on November 29, 1994
and closes on May 18, 1998. As part of the Government’s
burden of proof, the General Counsel alleges, in paragraph 2(d)
of the compliance specification, that from November 29, 1994
to May 21, 1995, Fulger would have been paid at the rate of
$7.00 per hour (Company so admits in its answer), and at the
rate of $8.00 per hour (Company denies) from May 22, 1995 to
May 18, 1998. The $1.00 per hour increase is the issue here.
In arriving at his conclusion respecting the pay increase for
Fulger, Acting Compliance Officer Jacoby testified that he so
concluded primarily because, as reflected in President Paul A.
Bauer’s May 19, 1998 letter (GCX 4) to Jacoby, rate surveyor
Luis Alvarez received a $1.00 pay increase on May 22, 1995.
(1:47) Jacoby considered Alvarez to be a “direct comparator.”
(1:48, 51)
As Judge Evans noted in his decision (JD) of April 24, 1998
at 2 (GCX1a), Fulger was hired by Company as a rate surveyor
on May 16, 1994 at $6.00 per hour. “About two months” after
Fulger began working at Company, she received a $1.00 per
hour wage increase. Although that would place Fulger’s wage
increase about mid-July 1994, the more specific reference in
Judge Evans’ JD is at page 8 where he refers to a memo by
Jervey that the $1.00 pay raise for Fulger was granted on Au-
gust 16. The August 16 date is consistent with Jervey’s testi­
mony here. (2:383). I find that the date of Fulger’s pay in-
crease was August 16, 1994.
In mid-August Jervey was “extremely happy” with Fulger’s
work performance. (JD at 8, line 7) Some 2 months later, on
October 14, Jervey gave Fulger another review in order to give
Fulger the opportunity “to improve on several points,” with one
of those points being that Fulger now needed too much supervi­
sion. (JD at 8, lines 8–9) By November 28 it reached the point
of a reprimand of Fulger by Jervey because of low productivity
and excessive tardiness. (JD at 2, 8. Although Judge Evans,
JD at 2, refers to the (reprimand) meeting as having occurred
on November 16, elsewhere, JD at 3, 8, he makes clear that it
was on November 28.) Moreover, it is apparent that it was not
until that November 28 meeting that Company had any idea
that Fulger was talking with other employees about wages.
This is so because it was at that meeting that Fulger said she
knew what another employee was earning, and, at that point,
Fulger asked for another pay increase for herself. Jervey
promptly denied Fulger’s request for a pay increase. (JD at 2,
3, 8) The point of this summary is that Fulger, who, as a wit­
ness, made an unfavorable impression on Judge Evans (JD at
11), clearly was heading down the road toward termination
because of her poor work performance. Company simply shot
itself in its own foot when it included, as one of the grounds for
her discharge (JD 13, 14) her discussion of wages with other
employees.
When Fulger was fired on November 29, 1994, she had been
with Company some 6.5 months. Bauer asserts that Company’s
practice is to give a $1.00 per hour increase to employees after
the completion of their 3-month probationary periods, and to
review them for the possibility of another raise between 9
months to 1 year later. (2:313–314) Caroline Jervey’s experi­
ence is that Company’s practice has not been an automatic 1
year review after the probationary period (and no mention of it
occurring before a year later), and thereafter it is “sporadic.”
(2:382) Counting 9 months from mid-August 1994 lands us at
mid-May 1995. Thus, under President Bauer’s own descrip­
tion, in theory Fulger could have received another $1.00 per
hour raise as early as mid-May 1995 (or as late as mid-August
1995, or none at all).
Turn now to Luis Alvarez, the “direct comparator.” Alvarez
was hired February 17, 1995 at $7.00 per hour, and 3 months
later, effective May 22, 1995, his pay rate was increased to
$8.00 per hour. (GCX 4 at 4; GCX 9) On cross examination,
Jacoby conceded that he was unaware that Fulger had received
a pay increase in August 1994. (1:49–50) Thus, comparing
their 3-month probationary terms, both Fulger and Alvarez
received hourly pay increases of $1.00. Look now at the 12-
month mark. Alvarez, the “direct comparator,” did not receive
another pay increase. Thus, in his 13 months with Company,
Alvarez received only the one pay increase in May 1995.
(GCX 9) This is so even though, as we see in the next section,
Bauer did everything he could to keep Alvarez on the payroll
because he considered Alvarez to be such a good and diligent
employee. (2:348–349, 352, 363)
In this compliance proceeding, I ordinarily would attach lit­
tle, if any, weight to Bauer’s descriptions (2:349–351, 354) of
Fulger’s insufficiency for anything beyond survey work (and
even as to that he is dubious), or to Jervey’s assertion (2:383)
that Fulger had a lot of problems that needed correcting. This
is so because, in addition to the fact that Jervey did not fare so
well herself before Judge Evans, under Rule 10 all doubts about
what would have occurred had there been no unlawful dis­
charge are resolved against the wrongdoer who created the
situation. Thus, we can never know for certain what would
BAUER GROUP 403
have developed because Company unlawfully fired Fulger.
That illegal action is the cause of any doubts.
However, we are not limited here to post-discharge state­
ments of a self-serving nature. [Most evidence offered is in-
tended to be self-serving.] Instead, we know from Judge Ev­
ans’ decision that in October 1994 Jervey did a discretionary
performance review of Fulger and told her that she needed to
improve on several points, including the fact that she needed
too much supervision. A bit over a month later, on November
28, Jervey reprimanded Fulger, telling her that she needed to
improve her productivity and reduce her tardiness. (JD at 2, 3,
8) As Judge Evans notes, aside from the matter that Fulger had
been discussing wages with other employees, Company “had its
other problems with Fulger . . . .” (JD at 13, 14)
In short, I find it very reasonable, even required, that I con­
sider the evidence that company had counseled and then repri­
manded over her work performance and attendance even before
(in the same interview as the November 28 reprimand) Com­
pany had any indication that Fulger was discussing wages with
other employees. Moreover, as that pre-knowledge counseling
(October 1994) and reprimand (November 28, 1994) bear di­
rectly on the issue here, I now attach weight to the criticisms by
Bauer and Jervey respecting Fulger’s work performance. I also
note that, in concluding that Fulger would have received a
$1.00 per hour pay increase in May 1995, Jacoby did not con­
sider Fulger’s work performance at company. (1:50–55) Fi­
nally, and in considering her demeanor as acceptable before
me, I credit Jervey in her testimony (2:383) that, “at the rate she
was going,” Fulger would not have received a pay increase in
August 1995 (when Jervey assets that Fulger would have be-
come potentially eligible for her next one).
To conclude on this issue, I find the evidence insufficient to
support the Government’s burden. Pay increases 9 months to 1
year after the initial pay increase were not automatic, particu­
larly as company’s business took a downturn, as the wage his-
tory of the Government’s own “direct comparator” (Luis Alva­
rez) demonstrates. That specific evidence, combined with the
credited testimony of Caroline Jervey that it is unlikely Fulger
would have received a pay increase in August 1995, far out-
weigh any support the Government can draw from the general­
ized testimony by Bauer that there can be pay increases 9 to 12
months after the first increase.
Agreeing with Company’s position, I therefore find no basis
for including a May (or August) 1995 pay increase of $1.00 per
hour (to $8.00 per hour) for Fulger. Accordingly, I shall revise
the backpay table to reflect numbers based on a pay rate of
$7.00 per hour throughout Fulger’s backpay period.
J. Company Closes the Survey Room
1. Introduction
As established and admitted in the underlying case, and as
reflected in the decision on that case, at all relevant times Com­
pany has been composed of three corporate entities—The
Bauer Group, Inc., Bauer Communications, Inc., and Bauer
Financial Reports, Inc.—and they constitute “a single inte­
grated business enterprise and a single employer within the
meaning of the Act.” (JD at 2) Paul A. Bauer is the sole share-
holder and president of all three companies. (2:310)
The Bauer Group “is simply a management firm that I use to
consolidate those things like payroll, insurance, rent, and then
allocate to the other two companies their appropriate pay­
ments.” (2:311, Bauer) In his decision, Judge Evans notes that
The Bauer Group employed no employees. (JD at 2)
Bauer Financial Reports “analyzes banks and credit unions,
using data provided by the Government, which we purchase.
We analyze them and we have a rating system from zero to five
stars where we rate them. The primary business is that we sup-
ply reports to banks on other banks, either for compliance or for
competitive analysis.” (2:311) The receptionist for all three
companies worked directly for Bauer Financial Reports. (JD at
2)
Bauer Communications (since the earlier trial named Bauer
Newsletters) is a newsletter publisher publishing financial
newsletters for corporate and consumer investors, for bank
presidents, and “at one time we had an on-line service for [bank
CD] rates.” Judge Evans notes that, in 1994, Bauer Communi­
cations employed six employees, with Caroline Jervey being
the managing editor. That is the entity that directly employed
Fulger. (JD at 2) Bauer recalls that in 1994 Bauer Communi­
cations had some four to five rate surveyors, three sales per-
sons, a computer “maven,” and a switchboard operator. (2:312)
The three companies share office space in Coral Gables, Flor­
ida. (JD at 1; 2:311) Bauer estimates that in 1994 the group of
companies had about 15 employees, including himself. (2:311)
Today, or as of our trial, the total number of employees was
down to 5, including Bauer. (2:311)
Fulger was employed by Bauer Communications as a rate
surveyor from May 16, 1994 (2:356) through November 29,
1994. Her duties consisted of receiving a printout of banks,
telephoning the bank’s contact person, obtaining jumbo CD
rates and consumer CD rates, entering those rates into a com­
puter, and serving as a relief receptionist. (JD at 2; 2:312–313,
Bauer)
2. Cyberspace spelled with red ink
Compared to the printed newsletters, which requires Com­
pany to survey rates only once a week, the survey room work
was for an internet service, “CD ONLINE” (RX 14), that pro­
vided continuous rates to customers in cyberspace. (2:317,
376–378) The daily (constant) surveying was a “tremendous”
job, and Company had to hire employees to staff the survey
room. (2:317) Responding to a newspaper ad (GCX 16;
2:355–357), Fulger was one of those hired.
But as sometimes happens in the plans of mice and men,
something was overlooked. That something was that most of
the customers for the on-line service were simply Company’s
print customers shifting over to the cyberspace service. That
shifting generated no additional income, yet the on-line service
itself was very costly to maintain. Bauer Communications was
slowly [not the “closely” rendering at 2:318] killing itself fi­
nancially. (2:317–318, Bauer; 2:368, Jervey) That entity’s
1995 federal tax return (RX 8) is in evidence and shows a loss
of nearly $7000 for the year. (2:318)
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In view of the red ink flowing from its venture into cyber­
space, Company began reducing the operation by attrition.
(2:317, 363) From a high of four or five (2:312) rate surveyors
in 1994, Company was down to one, Luis Alvarez, as of April
17, 1995, when David Garcia was terminated. (GCX 4: GCX
8; 2:348) From April 17, 1995 to the closing of the survey
room in mid-October 1995, Alvarez “did all the surveying on
his own.” (GCX 4 at 1; 2:312, 316, 360, 362–363) Bauer testi­
fied that, “I went out of my way to try to keep Alvarez” (2:349)
because he was n “exceptionally conscientious young man”
(2:348), a “very diligent” employee (2:349), a “good worker”
(2:363).
Company disconnected the telephone service and closed the
survey room on October 13, 1995 (RXs 11, 12, 13; 2:360, 368–
376). In addition to the rate surveyors who (with the exception
of Luis Alvarez) had been laid off or terminated, in January
1998 Company laid off the remaining two sales persons,
thereby leaving Bauer as Company’s “sales office.” (2:312,
361–362; GCX 18 at 2). [GCX 18 is a two-page document that
Jervey prepared for her own use for this trial. The document
lists all employees who worked from November 29, 1994 to
July 22, 1999. Jervey also submitted the document to Com­
pany’s attorney. By inadvertence a copy of the document was
turned over with other items in response to a subpena duces
tecum from the Government. At trial counsel objected on the
basis of attorney work product, although I stated that it ap­
peared that the privilege which was applicable, if any privilege
attached, was that of attorney client. The General Counsel
argued waiver. I received GCX 18 subject to briefing. (2:399–
409) Although the General Counsel addressed the matter in the
Government’s brief (Brief at 10 fn. 5), Company failed to do
so. Accordingly, treating the matter as abandoned by Com­
pany, I now receive GCX 18 without limitation.]
The record shows that some of the short-term employees,
who had on occasion did some survey work, also did some
clerical work for Bauer Financial Reports (BFR). And in his
effort to keep a good employee, Bauer transferred Luis Alvarez
to BFR to do general office work as well as the, apparently, one
day a week surveying for the printed newsletter—“because I
wanted him.” (GCX 4 at 1; GCX 9; 2:352, 413–414) Unfortu­
nately, Alvarez was unsuccessful in the general office work,
and he was laid off on March 15, 1996. (GCX 4)
Respecting the question of whether Company would have
transferred Sangriale Fulger to Bauer Financial Reports, as it
did Luis Alvarez, the answer is a vigorous “No” from Bauer
and Jervey. Thus, “Ms. Fulger would never have worked for
Bauer Financial Reports, the other company or Bauer Group. I
wouldn’t have had her.” (2:349) Asked why, Bauer responded
that he wanted to get rid of Fulger right after the summer [early
September, presumably], and the only reason they retained her
was that Jervey said that Fulger did good surveying work.
Bauer told Jervey that he would not have Fulger anywhere else.
“I was very unhappy with Sangria’le Fulger.” This largely was
because, as Bauer describes, Fulger created problems by going
to lunch with the receptionist when they were supposed to re­
lieve each other. Bauer fired the office manager, Betty
McDavit, in October 1994 for failing to control the situation.
“And Ms. Fulger used to goof off most days at 4:00 o’clock.
She thought the work day was over at 4:00 o’clock. She was to
me, a terribly disappointing employee.” (2:349–351)
Caroline Jervey was in charge of the survey room (2:350,
Bauer; 2:368, Jervey; JD at 2 lines 26–27, 36), and, Bauer testi­
fied (2:351–352), Jervey wanted to keep Fulger because it is
difficult to find employees who will do the work of constantly
telephoning banks. Not wanting to “second guess” his manag­
ing editor (JD at 2, lines 26–27; 2:366–367) of Bauer Commu­
nications, Bauer did not overrule Jervey. (2:351) Nevertheless,
Bauer told Jervey, “You keep her. You keep her for yourself.”
(2:351) And if Jervey, in any effort to find a place for Fulger
when the survey room closed, had asked to have Fulger trans­
ferred to one of Bauer’s other companies, Bauer “would have
said no.” “I didn’t want her for anything else. I wasn’t happy
with her performance.” (2:354) Agreeing with Bauer that Ful­
ger would not have been transferred because Bauer did not
want her, Jervey observes that she would not even have sug­
gested such for fear of losing her own job. (2:381–382)
3. Discussion
Recall that staffing of the survey room dropped to one em­
ployee (Luis Alvarez) on April 17, 1995 when David Garcia
was fired. (2:410; GCX 18 at 1) It can be asked whether, had
Fulger still been on the payroll following Garcia’s termination,
she or Alvarez would have been laid off or transferred. At this
point the evidence becomes too speculative even though Jervey
asserts (2:414) that, as an employee, Alvarez was superior to
Fulger. Very likely, at that point, Fulger would have been laid
off. A small doubt remains, however. Perhaps Jervey could
have persuaded Bauer to let Fulger remain on the BCI payroll,
doing some of the survey work, with both Alvarez and Fulger
also doing some of the clerical work for BFR (as some of the
recent hires, who did not last long, had been doing). Jervey
could have been successful in this effort only so long as Bauer
would have thought the situation was temporary until the sur­
vey room closed. Although such a possibility is highly
unlikely, given Bauer’s strong opposition to Fulger, the wrong-
doer rule (Rule 10, above) requires that all doubts as to events
be resolved against the wrongdoer. Resolving those doubts
against Company, I find that Fulger would have remained on
the payroll until the survey room was closed on October 13,
1995. At that time she would have been terminated, and not
transferred to either of the other Bauer companies. Although
Alvarez did some survey work thereafter, it apparently was part
of the weekly surveying for the printed periodicals. (2:317,
Bauer; 2:396–397, Jervey)
The Government argues (Brief at 12–13) that Company’s
May 8, 1998 letter (GCX 3) offering reinstatement to Fulger
“as a rate surveyor for Bauer Communications, Inc. at $7.00 per
hour to begin May 26, 1998. You will be employed by The
BAUER GROUP, Inc.” in fact “demonstrates the existence of
the same or an equivalent position for Fulger to assume.” Not
so. Bauer testified (2:319–320) that there was no job available
for Fulger and that he was required to make the offer by
Jacoby’s letter (RX 9) of May 12, 1998 (by which Jacoby ad-
vised that he had been assigned to secure compliance with
Judge Evans’ decision). Obviously, what Bauer means is that
he (no doubt after consulting with his lawyer) had decided not
BAUER GROUP 405
to appeal Judge Evans’ decision of April 24, 1998 (a fact that
led to the Board’s June 10, 1998 adoption order) and he there-
fore sent the May 8 letter offering reinstatement as required by
Judge Evans’ order. That is, the letter was sent to close the
backpay period, not because there in fact was a job available.
Indeed, as Jervey’s document (GCX 18) of employees hired
discloses, by October 1996 the general office classification was
down to three employees. One of those resigned on November
10, 1997, and another (hired November 4, 1997) on November
25, 1998. That left Miriam S. Anon, rehired November 5,
1996, as the only employee classified as “general office.” Only
one shipping employee, Aldo N. Egas (hired February 12,
1996) remained after February 1996. The last of the customer
sales representative departed with the closing of the sales office
on January 7, 1998. Other than two general office employees
(Miriam Anon and one other), and the one shipping employee,
the only other persons employed by Company as of May 1998
were in the “professional” classification—Paul A. Bauer, Karen
L. Dornway (position not described in the record), and Caroline
P. Jervey. (GCX 18) Thus, the record shows very clearly that
Company, which already had drastically cut back all its work-
force, and which would lose its next to last general office em­
ployee on November 25, 1998, had no substantially equivalent
job available in which to place Fulger in May 1998.
The Government’s final argument (Brief at 11–13) seems to
be that Company, as a single employer, would be liable for
backpay, under the remedial order, so long as there was any
substantially equivalent position at any of Company’s corporate
entities which Fulger could have filled. As a practical matter,
that means any general office position (Bauer Financial Re-
ports). As we have seen, that would have been out of the ques­
tion given Bauer’s opposition to her—an opposition, I find,
based on her poor work performance.
Does the remedial order override Bauer’s (lawful) opposition
to Fulger’s employment anywhere outside the survey room?
Company (Brief at 19) relies on facility-closing cases, analogiz­
ing the closing of the survey room to such cases. Such reliance
is misplaced. A better comparison is with those cases involving
a curtailment of operations. See, for example, Thalbo Corp.,
323 NLRB 630, 636–637 (1977) (immaterial that hotel con­
tracted out operation of bar and food service where hotel had
other jobs available, eventually offering the discriminatee,
Paulette DiMilta, a position at the front desk), enfd. on point
171 F.3d 102, 113–114 (2d Cir. 1999).
The closer question is whether an employer who already had
begun nondiscriminatory disciplinary actions against the future
discriminatee forfeits its lawful rights of discipline merely be-
cause, as Company did here, it later adds one unlawful ground
to the mixture. That is, does that one unlawful ground taint
everything so that the employer cannot be heard to say, at the
compliance proceeding, “The department where she was work­
ing is the only one where I would tolerate her presence—union
or no union.”
Compare Wellstream Corp., 321 NLRB 455, 46–462 (1996),
where Judge Lawrence W. Cullen found that the earlier unlaw­
ful motivation still tainted its opinion in the compliance case.
A big difference, however, is that Wellstream apparently ad­
vanced the same reasons earlier found pretextual. In our case,
as is reflected in Judge Evans’ decision, Company had “other
problems” with Fulger aside from the one found to be unlawful.
Wellstream stands, in part, for the proposition that a respondent
has the right to prove that the discriminatee would have been
laid off (had he or she not been unlawfully terminated) for non-
discriminatory reasons. In effect, that proposition is an applica­
tion of the test for a Respondent’s affirmative defense as articu­
lated in Wright Line, 251 NLRB 1083 (1980).
Applying that test here, I find that Company proved that it
would have terminated Fulger on October 13, 1995 when it
closed its survey room. In making this finding, I recognize that
President Bauer never asserts that he would have disregarded
Fulger’s earlier protected activities in deciding that he would
not have accepted Fulger in a transfer from the survey room. I
have weighed that fact. Similarly, I have weighed the fact that
there is nothing in writing by Bauer, before Company gained
knowledge of Fulger’s protected activities in the underlying
case, in which he expresses his discontent with Fulger’s work
performance. Bauer was president, but Jervey was the depart­
ment manager. Thus, it is not likely that Bauer would have
seen any need to put any of his comments about Fulger to
Jervey in writing. In any event, in light of Bauer’s vigorous
and detailed opposition to Fulger, and the documented dates of
an October 14, 1994 counseling and November 28, 1994 repri­
mand as reflected in Judge Evans’ decision, it seems clear that
the protected activities of Fulger that came to light during and
after the reprimand of November 28, 1994 played no part in
President Bauer’s opposition to any transfer by Fulger. Addi­
tionally, I credit both Bauer and Caroline Jervey in their testi­
mony respecting this matter based on their demeanor and on all
the record.
In light of the foregoing, and of all the record, I find that the
backpay period for Sangriale Fulger ended on October 13, 1995
(that is, 2 weeks into 4Q95), and I shall adjust the numbers to
reflect my findings (including the finding that Fulger’s pay rate
would have remained at $7.00 per hour throughout the backpay
period) as shown in the following revised backpay table.
III. Final Backpay Table
Year Quar- Gross Interim Interim Net Net
ter Back- Earn- Ex- I/Earn- Back-
pay ings penses ings pay
1994 4 1288 0 0 0 1288
1995 1 3640 1642 0 1642 1998
1995 2 3880 1320 0 1320 2560
1995 3 1008 349 0 349 659
1995 4 560 1582 0 1582 0
T otals: 10,376 4652 0 4652 6746
Total net backpay due Sangriale Fulger: $6746
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 6
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, 29 CFR 102.46, the findings, conclusions, and
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER agents, successors, and assigns, shall pay backpay as follows,
The Respondent, The Bauer Group, Inc., Bauer Communica- with interest as computed in New Horizons for the Retarded,
tions, Inc., and Bauer Financial Reports, Inc., its officers, 283 NLRB 1173 (1987), and less taxes withheld as required by
law:
recommended Order shall, as provided in Sec. 102.48 of the Rules, 29 Sangriale Fulger $6746

CFR 102.48, be adopted by the Board and all objections to them shall

be deemed waived for all purposes.