Consolidated Delivery & Logistics, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 18, 2007

22-CA-023543 (N.L.R.B. Sep. 18, 2007)

JD(NY)–42–07
Teterboro, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CONSOLIDATED DELIVERY &
LOGISTICS, INC.
and Case No. 22-CA-23543
TEAMSTERS LOCAL UNION NO. 481,
A/W INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
Robert Gonzalez, Esq., Newark, NJ, for the General Counsel
Alex Tovitz, Esq., (Jasinski & Williams, P.C.), Newark, NJ,
for the Respondent
SECOND SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
Steven Fish, Administrative Law Judge. On May 15, 2002 the Board issued a Decision
and Order (337 NLRB 524), finding that Respondent, Consolidated Delivery & Logistics Inc.,
violated Sections 8(a)(1) and (3) of the Act, by discharging and refusing to reinstate 13 strikers,
and ordering Respondent to make whole the discriminatees for their losses resulting from the
Respondent’s unfair labor practices.
On May 16, 2003 the United States Court of Appeals for the District of Columbia entered
a Judgment enforcing the Board’s Order (63 Fed. Appx. 50).
On April 30, 2004 the Regional Director for Region 22 issued a Compliance Specification
and Notice of Hearing. After Respondent filed an Answer and a letter supplementing its
Answer, the General Counsel, on December 13, 2004 filed a Motion for Partial Summary
Judgment. The Board issued a Supplemental Decision and Order, dated April 28, 2005, (344
NLRB # 67), in which it granted General Counsel’s Motion in part, (dealing with the Backpay
period), but denying the motion with respect to other allegations.
Subsequent to the Board’s ruling, the Director issued an Amended Compliance
Specification on September 27, 2006. A hearing was held before me on June 13, 2007. Briefs
have been filed, and have been carefully considered. On the entire record, including my
observation of the demeanor of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
I. THE SETTLEMENT
In the Amended Compliance Specification, issued on September 27, 2006, the Director
computed back pay for the thirteen discriminatees as $59,820.18, plus interest. Sometime in
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April of 2007, Respondent’s attorney met with the attorney for the Union, in an attempt to
resolve the outstanding issues, remaining in said Amended Compliance Specification. An
agreement was reached between Respondent and the Union.
The written Agreement, which was presented to the Region on April 23, 2007 for its
approval, provided for the payment of $2,000 to each of the discriminatees, for a total of
$26,000. The Agreement also provides that the Union agrees to withdraw the charges herein
and inform “Counsel for the General Counsel that settlement is the desired outcome of the
Union and its members in order to avoid the uncertainty, inconvenience, and cost of proceeding
to a compliance hearing”. Further, the Agreement provides that Respondent cannot make
payments to the discriminatees, without receiving properly executed W-9 forms from each of the
discriminatees, and that if any of the alleged discriminatees cannot be located within 12 months,
Respondent is under no obligation to make any payments to said alleged discriminatees, and all
back pay is waived for such discriminatees.
The Agreement also contains the following provision:
The parties agree not to make public, or to disclose to any third party in any
manner, except pursuant to a court order or a valid subpoena, the specific terms or
discussions leading up to this Agreement, or the specific terms of this Agreement, but
rather agree that they shall remain strictly confidential. The parties represent that
they will not, in any way, publicly make or solicit any comments, statements or the like
that are derogatory or detrimental to the good name or reputation of either party.
The Agreement was never signed by anyone from the Union, although the Union’s
attorney confirmed to Respondent’s attorney that the Union was agreeable to its terms. During
a conference call with the undersigned, prior to the trial, the Union’s attorney confirmed that the
Union was agreeable to the terms negotiated. During that same conference call, both the
attorney’s for the Union and Respondent, conceded that none of the discriminatees had been
spoken to about the terms of the Agreement, and that neither the Union nor Respondent had
obtained the approval of any of the discriminatees to the terms of the Agreement.
Respondent’s attorney, in this proceeding, conceded that Respondent had not contacted
the discriminatees, as he explained “in an abundance of caution, and frankly, to avoid any
appearance of coercion”. Respondent did not explain however, why it did not insist that the
Union obtain the approval of the discriminatees, before entering into the Agreement.
The Region after reviewing the proposed Agreement, refused to approve it and
Respondent’s attorney was so notified by Counsel for the General Counsel. According to
Counsel for General Counsel, the total amount due, including interest at the time of the trial was
$80,747.
During the conference call detailed above, Respondent’s attorney did assert that
someone from Respondent, who was not named, allegedly had some contact with some
unnamed discriminatees, and were allegedly told by these discriminatees, that they “wanted
money” and were interested in reaching a settlement. As a result Counsel for the General
Counsel, Robert Gonzalez attempted to contact some discriminatees, to ascertain their position
vis á vis the proposed settlement. According to Gonzalez, he was able to contact five
discriminatees, José Balazar, Juan Guzman, David Maldonado, Avelino Rodriguez and Phillip
Torres. Gonzalez asserts that he told all five employees that at the time the Respondent owed
$82,000, and was offering approximately 25% of that figure to each employee. According to
Gonzalez, all five employees rejected the offer. Rodriguez and Phillip Torres were subpoenaed
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by Respondent and testified as witnesses in this proceeding. Rodriguez testified that Gonzalez
told him prior to the trial, that Respondent was willing to settle for 25%, and that he had told
Gonzalez, that he was not agreeable to such a settlement. Rodriguez further testified that he
computed the 25% figure to be $1,700 for each employee.
Phillip Torres testified, in response to question from Respondent, that he had a
conversation with Gonzalez about settlement, wherein Gonzalez told him that he could be paid
$2,000 and would not have to appear and testify. Torres was not asked by Respondent his
response to Gonzalez, or if he was agreeable to the terms.
Two other discriminatees, José Torres, and José Salinas also testified, pursuant to
subpoenas from Respondent. Respondent asked José Torres if he had any conversations with
Gonzalez about settlement or whether he was aware that Respondent was offering $2,000 to
each employee to settle the case. José Torres replied no to both questions. Salinas was also
asked if he was aware that Respondent was offering a settlement, rather than having Salinas
appear as a witness. Salinas replied “No”. Respondent’s attorney did not ask Salinas, Phillips,
José Torres, or Rodriguez, whether or not they would agree to accept $2,000 as a full
settlement for each of their claims.
Respondent at the commencement of the trial, renewed its request made during the
conference call, that I approve the settlement agreement agreed upon by Respondent and the
Union. I rejected that request, principally because Respondent had not procured the agreement
of any of the discriminatees, but stated that I would consider again the issue, after full briefing. I
have reviewed the cases cited by Respondent, and conclude that my ruling at trial should not be
changed. I therefore, reaffirm my decision to reject the proffered settlement agreement.
Respondent argues under the principles of Independent Stave Co., Inc., 287 NLRB 740
(1987) (Settlement approved, although providing for only 10% of back pay), and American
Pacific Concrete Pipe, 290 NLRB 623, 629 (1988) (Settlement approved in Compliance case,
calling for approximately 50% of amount of back pay owed), that the settlement should be
approved. In this regard, Respondent notes the following language from American Pacific,
supra at 624.
Backpay litigation also entails risks and uncertainties that must be considered in
evaluating the appropriateness of accepting a settlement agreement in lieu of
pursuing further litigation. For example, a backpay claim cannot be perfected if it is
shown that the discriminatee failed to mitigate losses, or the discriminatee’s testimony
about his interim employment is discredited. Further… even if the discriminatee
prevails at every step of the process, and in every particular of his backpay claim, he
often must wait years to receive any backpay. If, in the interim, the employer’s
business has declined, the discriminatee may receive less than he won through
litigation. These hazards are present to varying extents in all backpay litigation.
Respondent further argues that the record herein establishes several significant risks in
this proceeding, including two discriminatees not cooperating, risking not recovering any
monies, substantial issues concerning the formula used by the Region, as well as its decision to
pro-rate interim earnings, plus issues of mitigation. While I agree with Respondent that some of
those issues are substantial,1 this finding is insufficient to justify acceptance of the settlement.

1 Indeed, as I outline below, I agree with Respondent’s formula for measuring gross
backpay.
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While Respondent is correct that the principles of Independent Stave, supra are
applicable to Compliance proceedings, American Pacific, supra, nonetheless the risks of
litigation are significantly different in a Compliance case, since liability has been determined,
and there is no dispute that at least some backpay is due and owing. Beverly California Corp.,
329 NLRB 977, 986 (1999), enfd. 253 F.3d 291, 295 (7th Cir. 2001) (Board with Court approval,
disapproves settlement for between 15 to 17% of backpay, agreed upon by discriminatees).
More importantly, the Respondent has failed to secure the agreement of any of the
discriminatees to the proposed settlement. I find this to be a critical defect in Respondent’s
position. Fishbach Lord Electric (Local 112 IBEW), 300 NLRB 474 fn.2, and 476 – 477 (1990),
enfd. 992 F.3d 990, 992 – 993 (9th Cir. 1993) (Board refuses to approve settlement calling for
payment of $125,00 of backpay, which amounted to 50% of backpay due, because
discriminatees did not agree, as well as the fact amount provided for in the agreement was
deemed to be “unreasonable”)
Respondent argues that its failure to obtain the discriminatees was justified by its view
that it wished to avoid an assertion that it was coercing employees. It further asserts that it
relied on the Union or the General Counsel to obtain such approval. I cannot agree.
It is Respondent’s burden to establish that the proposed settlement meets the
Independent Stave, criteria, and it cannot transfer that obligation to the Union or General
Counsel. If Respondent failed to contact employees, out of fear of being accused of coercing
employees, it could have and should have made sure that the Union had obtained the approval
of the discriminatees, before presenting the agreement for approval. Here the evidence
discloses that the Union made no attempts to ever contact any discriminatee, in order to obtain
their approval, and undisputedly no such approval by any discriminatee was obtained. Further I
note that four discriminatees testified in this proceeding as witnesses, pursuant to subpoenas
served by Respondent. While Respondent did ask these employees about their conversations
with the Region with respect to the settlement, it did not ask any of them whether they were
willing to accept $2,000 in order to settle their claim.2
Respondent also relies on the alleged misrepresentation of General Counsel when the
Agent spoke to several employees about the settlement, as well as the fact that the Region did
not contact any employees, until after it rejected the proposed settlement. Respondent notes
that General Counsel told five discriminatees that the settlement represented 25% of the total
due. It also notes that one discriminatee calculated the amount to be $1,700, and that even
under General Counsel’s calculations, the amount of $2,600 represented 32% of the amount
due, including interest. Finally, Respondent observes that eight of the thirteen discriminatees,
were never contacted by General Counsel. None of these contentions, singularly or collectively
are persuasive. I again emphasize that it is Respondent’s burden, as the party urging that the
settlement be approved and deferred to, and it cannot transfer that burden to General Counsel.
While it might have been a good idea for General Counsel to attempt to contact the
discriminatees before rejecting the agreement, it was not obligated to do so. Whatever General
Counsel may have said to some of the discriminatees, the fact remains that Respondent has not

2 In this regard I note that American Pacific relied upon by Respondent is distinguishable.
There the single discriminatee, as well as the Union, agreed to the settlement. The Board
emphasized that the discriminatee had been made aware of the particular risks of litigation in
his case, as well as Respondent’s poor financial condition, and agreed with the concurrence of
the Union to accept 50% of the amount due. Here none of the discriminatees were made aware
of any risks and did not agree to the settlement.
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obtained the consent of any of them to the proposed agreement. I again note that Respondent
had the opportunity at trial to ask four of the discriminatees, if they were agreeable to accept
$2,000 in full settlement of their claim, but it failed to do so. I also note the Union’s failure to
obtain the approval of any of the discriminatees, as well as the fact that the Union has
apparently abandoned representation of the unit, since the plant has closed, and the fact that
the Union made no appearance at the trial. Nor did the Union submit a brief or any other
document, urging me to approve the settlement that it agreed upon with the Respondent.
These facts demonstrate that little significance should be given to the fact that the Union, as
Charging Party, agreed to the settlement, and that more significance should be given to the
absence of agreement by any of the discriminatees to the proposed settlement.
Accordingly, I conclude that based on the foregoing, the amounts agreed upon of 32% of
backpay due, was unreasonable in these circumstances, and the settlement should not be
approved, without the agreement of the discriminatees. Beverly California, supra, and Fishbach
Lord, supra.3
I therefore affirm my decision to reject the proposed Settlement Agreement.
II. THE FORMULA
Respondent operated a driving and delivery business, that provided services from
multiple terminals, including a terminal known as the “Neuman” Terminal. The Union called an
economic strike at such terminal, and in August of 1999, Respondent discharged 13 strikers,
found by the Board to be in violation of Section 8(a)(1) and (3) of the Act. During the strike,
Respondent began using a labor supplier, Labor Ready, to provide temporary replacements,
and continued using Labor Ready until the Neuman Terminal closed in February of 2000.
The initial backpay specification issued by the Region, alleged that the backpay period
ended on February 21, 2000, when the Terminal closed, and that the “appropriate measure of
gross backpay due each discriminatee is the hours worked (40) per week multiplied by the
hourly rate, times the number of weeks in the backpay period for each calendar quarter”.
Subsequently, after the Respondent filed its Answer, the General Counsel filed a Motion
for Partial Summary Judgment, alleging that Respondent had failed to file a “sufficiently specific”
Answer to the General Counsel’s formula.
The Board in its decision, issued on April 28, 2005, denied General Counsel’s Motion in
that respect concluding that Respondent did make sufficiently specific objections to General
Counsel’s formula, by submitting invoices from Labor Ready, and contending that the
appropriate measure of backpay should be the hours worked by Labor Ready employees during
the relevant period. The Board decided that a hearing is required to determine the number of
total hours worked by the discriminatees, and or how the total number of hours would be
allocated among the discriminatees.
After the Board’s denial in part of the Partial Summary Judgment Motion, the Region’s
Compliance Officer, Collette Sarro determined to accept Respondent’s assertion that the
appropriate measure of backpay should be the Labor Ready hours, and recalculated the figures,

3 I would also note the existence of a “confidentiality” clause in the proposed agreement. In
my view, the Board should not be a party to any such agreement, which restricts the exercise of
protected conduct by employees.
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based on records from Labor Ready. On December 23, 2005, she wrote a letter to David
Jasinski, Respondent’s attorney, summarizing her tentative calculations, and asking for his
position. The letter states that she determined that Labor Ready used 35 replacement
employees between August 10, 1999 and February, 2000 for a total billable regular hours of
7480.75 and overtime hours of 532.5. She proposed that the hours be divided equally among
the thirteen employees at their rates of pay of the time of the discharge.
Jasinski replied by letter dated January 10, 2006. It reads as follows:
I am in receipt of your letter dated December 23, 2005 concerning the above
referenced matter. In your letter, you have recommended that the original backpay
claim of 14976 total hours be reduced to reflect the actual hours worked by Labor
Ready employees for a total of 7480.75 hours and 432.45 overtime hours. Although
we agree that the actual number of hours worked by the Labor Ready employees is
appropriate for purposes of division, your calculations nevertheless fail to address
mitigation of damages by the Charging Party. To date, we have not received any
evidence of mitigation by the individuals. It is our understanding that many of these
individuals voluntarily moved to other areas of the country. We suspect the only
reason for the relocation was for employment. Such information is clearly relevant to
this issue.
Finally, we would wish to avoid further litigation in this matter. Nevertheless, we
are prepared to go to hearing on the issue of damages, if necessary.
If you have any questions, or would like to discuss this matter further, please feel
free to call my self or Peter Dugan. I can be reached at (973) 824-9700.
On September 27, 2006, the Director issued an Amended Compliance Specification, in
accord with the recommendation of its Compliance Officer. It alleged that by dividing up the
regular and overtime hours worked by Labor Ready employees, by 13, each discriminatee was
credited various regular and overtime hours, and the calculations were made depending on the
rate of pay for each discriminatee. Overtime was calculated by multiplying their pay rate by 1½
times the overtime hours, per quarter. The Specification also claimed some interim expenses
for certain employees. The total amount of hours claimed by the Specification was 7474.75
regular hours and 530.45 overtime hours.
Respondent filed an Answer dated October 16, 2006, in which it denied the allegations
contained in paragraph 2 through 4 of the Compliance Specification, which paragraphs detail
the formula used by the Region. On December 7, 2006, Counsel for General Counsel sent a
letter to Respondent’s attorney, asserting that Respondent’s denial of paragraph 2 through 4 are
insufficient, and stating that it intended to move for Summary Judgment, if Respondent fails to
correct these deficiencies.
On December 22, 2006, Alex Tovitz, Respondent’s attorney4 wrote a letter and stated
that it should be treated as an amendment to Respondent’s Answer. In the letter, Respondent
asserts that no overtime pay should be included in the backpay calculation, and that all the
hours should be calculated as straight time hours, since Labor Ready provided a much smaller
complement of employees. Tovitz argues that “had each of the discriminatees remained

4 Tovitz is a member of the same firm as David Jasinski, who filed the Answer and who
wrote the earlier letter to the Region.
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employed and worked the hours worked by Labor Ready employees, they would not have been
eligible for any overtime pay”.
Tovitz sent letters to the Region, dated February 21 and 28, 2007, requesting that these
letters be further treated as amendments to Respondent’s Answer. In these letters, Respondent
reiterated its position that the 530.63 overtime hours claimed by the Region should be treated
as straight time, which Respondent contends, reduces the amounts claimed for these hours
from $7,833.60 to $5,303.51.
Compliance Office Sarro testified how she reached her decision to credit each of the
discriminatees with both overtime and regular hours. She testified that she utilized the number
of hours (regular and overtime) worked by Labor Ready employees, and since she did not know
which employees would have worked regular hours and which would have been assigned
overtime, she took the sum total and divided it equally among the 13 discriminatees. Sarro
conceded that Labor Ready had fewer than 13 employees working on any particular day, and
that normally employees do not receive overtime unless they worked over 40 hours per week.
However, Sarro added that she did not know which employees would have been assigned
overtime, and had no information as which employees had skills which might have made
overtime more likely for them, so she thought it was reasonable to simply divide all the hours
worked by Labor Ready employees, including overtime, equally among the 13 discriminatees.
Sarro also testified that if she had treated the total hours of the Labor Ready employees, as
straight time, as Respondent contends is appropriate, it would result in 22 hours per week for
each employee.
I have carefully examined the Labor Ready records of the employees utilized working for
Respondent, and it reveals that in most weeks, Respondent employed from 6 to 7 employees,
for from 3-5 days. In some weeks Respondent used 8 or 9 Labor Ready employees, but in
most of those weeks, one or more employees worked only one or two days. Most significantly,
the overtime hours paid to Labor Ready employees, in virtually every case, was paid only after
the employee worked forty hours per week. In this regard, General Counsel correctly notes,
that replacement employee John Caraballo worked 32 hour during the week of October 25
through 29, but received 2 hours of overtime for that week. Labor Ready’s records for that week
reveals that Caraballo was paid for 8 regular hours on October 26, 1999, 9 hours on October
27, 8 on October 28 and on October 29, he was paid for 7 regular hours and 2 overtime hours.
No testimony or other evidence was offered by Respondent to explain this discrepancy.
However, the records reveal that Respondent was billed for 0 hours of overtime for Caraballo for
that day and week, suggesting the strong possibility of a clerical error as an explanation of why
Caraballo was paid 2 hours overtime, although he did not work over 40 hours that week. The
record further demonstrates that in every other instance where overtime hours were paid, the
column for overtime billed, corresponded to overtime hours paid. The records revealed a
number of days where employees worked from 9-12 hours, but were not billed or paid overtime
for those days, unless their hours exceeded 40 hours in that week.
The Board’s objective in Compliance proceedings is to restore, to the extent feasible, the
status quo by restructuring the circumstances that would have existed had there been no
discrimination. Phelps Dodge Corp., NLRB, 313 U.S. 177, 194 (1991); Performance Friction
Co., 335 NLRB 11 (2001). Determining what would have happened absent a Respondent’s
unfair labor practices, however, is often problematic and inexact. Several equally valid theories
may be available, each one yielding a somewhat different result. Alaska Pulp Co., 326 NLRB
522, 523 (1998). The General Counsel is allowed wide discretion in selecting a formula, and
generally any formula that approximates what the discriminatees would have earned had they
not been discriminated against is acceptable if it is not unreasonable or arbitrary. Weldun
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International, 340 NLRB 666, 672 (2003); Performance Friction, supra. This does not mean,
however, that the Board will always approve the General Counsel’s backpay formula even if it is
reasonably designed to arrive at the appropriate amount of backpay due. Alaska Pulp, supra.
Rather, where the Respondent, as here, urges the Board to adopt an alternative formula, the
Board must determine the “most accurate” method of determining backpay. Performance
Friction, supra; Alaska Pulp, supra; Weldun International, supra. If due to the variables
involved, it is impossible to reconstruct with certainty what would have happened in the absence
of the Respondent’s unfair labor practices, the Board will resolve uncertainly against the
Respondent whose wrongdoing caused the uncertainty. Weldun International, supra; La
Favorita Inc., 313 NLRB 902, 903 (1994); Alaska Pulp, supra.
In applying the above principles to the instant case, I conclude that Respondent’s
alternative formula represents the “most accurate” method for determining backpay for the
thirteen discriminatees. The General Counsel’s formula using the hours worked by Labor
Ready employees, concluded that both straight and overtime hours paid to Labor Ready
employees, should be utilized and divided equally among the discriminatees. However, the flaw
in that calculation, is that it is most unlikely, that any of the discriminatees would have received
any overtime hours, had they continued to work for Respondent, absent the discrimination
against them, because Respondent used approximately 50% fewer Labor Ready employees to
perform the necessary work during the backpay period. Thus had all thirteen discriminatees
continued to work for Respondent, as alleged in the Specification, it is extremely unlikely that
based on the number of hours available, any of them would have worked the over forty hours
per week, necessary to obtain overtime pay.
In this regard, General Counsel points to the fact that one replacement employee,
Caraballo received overtime pay, after working 32 hours, and argues that since Respondent
never provided an explanation as to how Labor Ready employees were paid for overtime, i.e.
over 40 hours a day or over 8 hours a day, or some other formula, this ambiguity should be
resolved against the Respondent. Campbell Electric, 340 NLRB 825, 826 (2003).
I do not agree.
Although General Counsel is correct that Respondent did not produce a witness to
explain how Labor Ready employees were paid overtime, or to explain why Caraballo received
overtime pay, after working 32 hours, it did produce the records from Labor Ready, which
incidentally were used by General Counsel in making its calculations. These records establish
clearly that virtually all overtime was not paid, until an employee worked over 40 hours per
week. The also showed numerous employees working over 8 hours a day, without receiving
any overtime pay. While Caraballo’s pay for one week represented an exception to this rule, I
have concluded above that the most likely explanation for this discrepancy was a clerical error.
Since I conclude that overtime would not have paid until employees worked over 40 hours per
week, I find it highly improbable that if all thirteen employees continued to be employed by
Respondent, as the Specification alleges, that any of them would have worked over 40 hours a
week, and would therefore not have received any overtime pay. I therefore find that
Respondent’s proposed formula, of computing the total hours worked by Labor Ready
employees as straight time, for all the discriminatees, to be the “most accurate” method of
determining backpay. Local 135 Laborers (Bechtel Power Co.), 301 NLRB 1066, 1072-1074
(1991); Frank Mascali Construction, 289 NLRB 1155, 1161 (1988); J.S. Alerici Construction,
249 NLRB 751 (1980); American Mfg. Co. of Texas, 167 NLRB 520, 521 (1967).
Accordingly, I shall recompute the gross backpay due, using the average of 22 straight
time hours per week, which is the figure agreed upon by the Compliance Officer, as the
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appropriate average for all hours worked by Labor Ready employees each week.
III. THE PARTIAL OFFSET FOR INTERIM EARNINGS
Compliance Officer Sarro testified that although the discriminatees all worked 40 hours
when they worked for Respondent, she prorated interim earnings by 50%. The reason for this
decision was that since it was concluded that each employee would have worked 20 hours per
week, if they had continued to be employed by Respondent, during the backpay period, that
interim earnings should be prorated for each employee.
Respondent objects to this decision, contending that this calculation represents a
“windfall” to the employees, since in some cases their interim earnings would have exceeded
their gross backpay in the Specification. Notably, Respondent cites no authority for its
assertion.
General Counsel cites EDP Medical Computer Systems, Inc., 293 NLRB 857, 858
(1989) (Employee worked 32 hours per week for Respondent. Interim earnings in excess of 32
should not be deducted to reduce backpay liability) and United Aircraft Corp., 204 NLRB 1068,
1073 (1973) (Excess overtime on interim job not considered interim earnings. “A backpay
claimant who chooses to do the extra work and earn the added income made available on the
interim job may not be penalized by having those extra earnings deducted from the gross
backpay owed by Respondent”).
I agree with General Counsel. EDP Medical, supra and United Aircraft are dispositive,
and have been followed in numerous cases. Tulatin Electric, 331 NLRB 36, 43-44 (2000)
(Extra money earned by discriminatees working for interim employers, not deducted from gross
backpay); Regional Import & Export Trucking Co., 318 NLRB 816, 818 (1995) (Pay earned at
interim employer for hours in excess of those hours that discriminatee would have worked at
Respondent Employer is considered supplemental income and should not be deducted as
interim earnings); Seattle Seahawks, 304 NLRB 627 (1991) (Income earned by football player
for playoff game at interim employer, not considered interim earnings, since the Respondent,
the discriminatees old team did not make the playoffs. Board concludes that income from
playoff games was earned during time, he would not have been working for Respondent, and
treated as “earnings derived from working at an interim job that affords the opportunity to work
more than claimant would have worked for the discriminating employer, or at times when the
latter did not have any work available, such earnings are not deducted from backpay”); Henry
Colder Co., 186 NLRB 1088, 1089-1090 (1970) (Earnings by discriminatees outside “full
working hours”, not deducted from backpay); NLRB v. Miami Coca-Cola Co., 360 F.2d 569,
573-574 (5th Cir. 1996) (Rule requiring deduction of interim earnings applies only to earnings
during the hours when the employee would have been employed by the Employer, citing the
Supreme Courts decision in Phelps Dodge Corp., v. NLRB, 313 U.S. 177, 198 fn.7, 61 S. Ca.
845 (1941)). See also Section 105554.3 of the Compliance Manual, cited in Seattle Seahawks,
supra, which states that “if it is determined that gross backpay is based on a reduced workweek
of 30 hours only those earnings derived from the first 30 hours of interim employment should be
offset against gross backpay”.
Accordingly, based on the above precedent, the Specification was correct in prorating
interim earnings, based upon the amount of hours the discriminatees would have worked for
Respondent. However, I agree with Respondent that, in view of my conclusion as detailed
above, that the gross formula was not “the most accurate”, and that the appropriate formula,
should have been 22 hours per week, straight time for each discriminatee, that the amount of
the proration must be changed. Thus since I conclude that employees would have worked 22
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hours per week for Respondent, and not the 20 hours calculated in the Specification, I find that
the 50% reduction of interim earnings should be reduced to 45%. (18 hours per week reduction,
rather than 20).
IV. THE DISCRIMINATEES
1. JOSÉ BALAZAR, FABIAN GUEVERA, JUAN GUZMAN, RICHARD JEANS, DAVID
MALDONADO, ISAAC ROSARIO, RICHARD SILVA
The Backpay Specification, as amended at the opening of the trial, alleged varying
amounts of moneys for these seven discriminatees, based upon the formula, which I have found
not to be the “most accurate”, and prorating the interim earnings by 50% for each of these
discriminatees. I have also concluded above, that the proration of interim earnings should be
45% and not 50%, as alleged in the specification.
It is therefore necessary for me to recalculate the gross backpay and the proration for
interim earnings for each discriminatee, in accordance with my findings above.
Respondent did not subpoena any of these seven discriminatee, and presented no
evidence concerning mitigation of damages, concerning these seven individuals. Therefore,
since it is Respondent’s burden to establish mitigation, it is concluded that all seven of these
discriminatees made reasonable efforts to obtain interim employment during the backpay
period.
In recomputing backpay, based on my findings detailed above, it is necessary to multiply
the total hours worked per employee, (adding the regular and overtime hours) by the rate of pay
for each employee. The amounts of hours are 158 for the 3rd quarter of 1999, 295 for the 4th
quarter of 1999, and 164 hours for the first quarter of 2000.
For employee José Balazar, whose rate of pay was $9.50 per hour, his gross backpay is
$1,501.00 for the third quarter of 1999, $2,802.50 for the fourth quarter of 1999, and $1,558.00
for the first quarter of 2000.
Balazar had interim earnings of $122.00 for the third quarter of 1999, which were not
prorated, since he only worked for one day. Thus for that quarter, his net backpay is now
$1,379.00. For the fourth quarter of 2000, Balazar had interim earnings of $4,475.94. This
figure must be prorated by 45%, as I have detailed above, not by 50% as in the Specification.
Thus his net interim earnings for the fourth quarter should be $2,461.76, and his total backpay is
$340.74 for that quarter. For the first quarters of 2000, his interim earnings even under the
Specifications computation, exceeded his gross backpay for that quarter, so I need not
recompute this quarter’s proration, and conclude consistent with the Specification, that Balazar
is entitled to no backpay for the first quarter of 2000. Accordingly, I conclude that the total
backpay due for Balazar is $1,719.74.
Turning to discriminatee Fabian Guevara, his rate of pay of $10.50 per hour, computes
to gross backpay of $1,659.00, $3,097.50, and $1,722.00 for the third and fourth quarters of
1999, and the first quarter of 2000, respectively. His prorated interim earnings should be
$1,337.60, $739.20 and $1,584.00 respectively for these quarters. The Specification also listed
for Guevara interim expenses of $338.50 for Union dues and initiation fees, for one of his
interim employers, which it deducted from the interim earnings for this discriminatee. These
allegations of the Specification were denied in Respondent’s Answer.
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Sarro testified that Guevara incurred these expenses in 1999 and 2000, as reflected in
the Specification. Respondent did not object to this testimony, nor did it cross examine Sarro
with respect to these issues, nor demand the production of any documents relating to Guevara’s
expenses. It also did not contest these expenses in its brief. In these circumstances, I
conclude that Sarro’s hearsay, but unobjected to testimony, is sufficient to establish that
Guevara incurred these expenses as reflected in the Specification. James Heavy Equipment
Specialists, 337 NLRB 910 fn. 1 (1999) (Hearsay testimony can be relied upon, where no
objection to testimony at hearing); Accord U. S. Ecology, 331 NLRB 223, 224 (2000); and Iron
Workers Local 46, 320 NLRB 982, fn.1 (1996), enf. denied on other grounds 149 F.3d 93 (2nd
Cir. 1998).
Therefore, in accordance with the Specification, I shall deduct $307.00 of interim
expenses ($250 for Union initiation fees and $57.00 for Union dues from Guevara’s interim
earnings of $1,337.60 in the third quarter of 1999, resulting in net interim earnings of $1,030.60
for Guevara for this quarter. Similarly, for the fourth quarter of 1999, $31.50 for Union dues
should be deducted from Guervara’s interim earnings of $739.20, resulting in a net interim
earnings of $707.70 for this quarter. Guevara incurred no interim expenses in the first quarter of
2000, so his prorated interim expenses is as noted $1,584.00.
The above analysis results in Guervara’s net backpay for the third quarter of 1999 of
$628.40 ($1,030.60 - $659.00). For the fourth quarter of 1999, Guervara’s backpay is
$3,097.50 minus $707.70, which equals $2,389.80. For the first quarter of 2000, Guevara is
entitled to $1,722.00 minus $1,584.00, which equals $138.00. The total backpay due to
Guevara is $3,156.20.
Discriminatee Juan Guzman also made $10.50 per hour, while working for Respondent.
Therefore his gross backpay is the same as that of Guevara, $1,659.00, $3097.50 and
$1,722.00 for three quarters in the Specification. He had no interim earnings for the third and
fourth quarters of 1999. Thus his backpay for these quarters is $1,659.00 and $3,097.50
respectively. For the first quarter of 2000, Guzman had interim earnings of $3,016.00. After the
appropriate proration, that figure is reduced to $1,658.80. Since that figure exceeds Guzman’s
gross backpay for that quarter, Guzman’s backpay entitlement is 0 for the first quarter of 2000.
Guzman’s total backpay is therefore $4,756.50.
Richard Jeans also was paid $10.50 by Respondent, so his gross backpay is the same
as that of Guzman and Guevara. Jeans had no interim earnings for the third and fourth quarters
of 1999, so his backpay is, like Guzman $1,659.00 and $3,097.50 respectively for these
quarters. For the first quarter of 2000, Jeans had interim earnings of $1,120.00. After the
appropriate proration, that figure is reduced to $616.00. Thus his backpay for this quarter is
$1,106.00. The total backpay for Jeans is therefore $5,862.50.
David Maldonado’s salary at Respondent was $9.00 per hour. Thus his gross backpay
computes as $1,422.00, $2,655.09 and $1,476.00 for the three quarters involved here. He had
no interim earnings for the third quarter of 1999, so his backpay for that quarter is $1,422.00.
For the fourth quarter of 1999 and the first quarter of 2000, Maldonado had interim earnings of
$6,697.30 and $2,945.95 respectively. After proration, these figures are reduced to $3,683.51
and $1,620.27 for these quarters, resulting in no backpay for Maldonado for either quarter. His
total backpay is $1,422.00.
Isaac Rosario, like Maldonado was paid $9.00 per hour by Respondent. His gross
backpay is the same as Maldonado’s, $1,422.00 $2,655.00 and $1,476.00 for the three quarters
in question. Rosario had interim earnings in the third quarter of 1999 of $732.75. $2,017.13 in
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the fourth quarter, and $394.20 for the first quarter of 2000. After the appropriate proration,
these figures are reduced to $403.01, $1,109.42, and $216.80 respectively. Backpay for
Rosario is therefore, $1,018.99 for the third quarter of 1999, $1,545.58 for the forth quarter, and
$1,259.20 for the first quarter of 2000, and a total backpay of $3,823.77.
Richard Silva’s rate of pay at Respondent was $9.50 per hour. That results in gross
backpay figures of $1,501.00 and $2,802.00 for the third and fourth quarters of 1999, and
$1,558.00 for the first quarter of 2000.
In the initial and amended backpay Specifications, no interim earnings were listed for
Silva. However, shortly before the trial, the Region received information that Silva had interim
earnings for an employer (Comet Messenger) in all three quarters. Consequently the
Specification was amended at the trial to reflect these earnings. The amendment indicates that
Silva had earnings at Comet of $1,344.00 for the third quarter, $4,224.00 for the fourth quarter
of 1999, and $2,304.00 for the first quarter of 2000. The amendment also reflects that Silva
incurred $200.00 in interim expenses in the third quarter of 1999. Sarro testified that her files
reflect that the $200.00 figure for interim expenses was due to a $200.00 union initiation fee,
since Comet was a “Union job”. Once again Respondent did not object to Sarro’s hearsay
testimony concerning Silva’s interim expenses, so it has therefore waived that objection. U.S.
Ecology, supra; James Heavy Equipment, supra. I therefore find as in the case of Guevara, as
detailed above, that General Counsel has established that Silva incurred this expense, and that
the $200.00 should be deducted from SiIva’s prorated interim earnings.
These calculations establish that for the third quarter of 1999, Silva had interim earnings
of $1,344.00, which after the appropriate proration comes to $739.20. The $200.00 interim
expense must be further deducted, resulting in a figure of $539.20 as net interim earnings for
this quarter. Subtracting that figure from the gross backpay of $1,501.00, results in $961.80 as
backpay due for Silva for this quarter.
For the fourth quarter of 1999, Silva had interim earnings of $4,224.00. After proration,
this amount is reduced to $2,323.20. This figure after subtraction from Silva’s gross backpay of
$2,802.00, comes to $478.80 for that quarter. Silva received $2,304.00 in interim earnings for
the first quarter of 2000. After proration, this figure is reduced to $1,267.20. His backpay for
that quarter is therefore $290.80. ($1,558.00 - $1,267.20). The total backpay for Silva is
therefore $1,731.40.
2. AVELINO RODRIGUEZ, JOSÉ SALINAS, PHILLIP TORRES, JOSÉ TORRES
A. JOSÉ TORRES
José Torres was paid $8.50 per hour when employed by Respondent. Therefore his
gross backpay, in accordance with my findings above, based upon straight time hours, is
$1,393.00, $2,507.50 for the third and fourth quarters of 1999 respectively, and $1,394.00 for
the first quarter of 2000.
José Torres testified concerning his efforts to acquire interim employment. After his
discharge, he immediately applied for unemployment benefits, and searched for work through
the Agency, which constitutes prima facie evidence of a reasonable search for employment.
Mid Western Personnel Services, 346 NLRB #8, Slip op. at 4 (2006); Allegheny Graphics, 320
NLRB 1141, 1145 (1996), enfd. Sub nom, Package Service v. NLRB, 113 F.3d 845 (8th Cir.
1997).
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During the third quarter of 1999, José Torres applied for work at various places,
including Cablevision, Ford, and Cabrini Hospital. He obtained a job starting on 11/1/99 at
Otto’s Restaurant as a valet parking driver. The Amended Specification included interim
earnings for José Torres of $1,800.00 for the period of 11/1/99 to 12/31/99, based upon a
weekly salary of $200.00 per week. During his testimony, José Torres admitted that he
received tips on that job, of between $10.00 and $20.00 per day, which had not been included in
the Specification. Attached to General Counsel’s Brief, was an amendment to the Specification,
which included tips for Torres of $15.00 per day, added to his interim earnings. Thus the total
adjusted interim earnings for Torres for this quarter is $2,475.00.
Torres left the job at Otto’s in order to obtain another job at Paramount Ambulette, as an
ambulette driver, where he worked from January 1, 2000 through the end of the backpay period.
His interim earnings for this period was $2,240.00.
It is clear and I find that José Torres, made reasonable efforts to search for work during
the backpay period,5 and he should receive backpay as reflected in the Specification, as
amended, minus the deductions that I have discussed above, with regard to the use of straight
time hours, and the appropriate proration of interim earnings.
I find therefore that since for the third quarter of 1999, José Torres had no interim
earnings, he is entitled to $1,343.00 for that quarter. For the fourth quarter of 1999, Torres
received interim earnings, including tips, of $2,475.00. After the appropriate proration, this
figure is reduced to $1,361.25. His net backpay for the quarter is $1,146.25. For the first
quarter of 2000, his interim earnings after proration is $1,232.00. His backpay for this quarter is
$162.00. The total backpay for José Torres is therefore $2,651.25.
B. PHILLIP TORRES
Phillip Torres earned $10.50 per hour while employed by Respondent. His gross
backpay in accord with my prior discussion, based on straight time hours is $1,659.00,
$3,097.50 and $1,722.00 for the three quarters in question.
Torres applied for unemployment and obtained a job starting September 1, 1999. He left
that position for another job on December 13, 1999, where he worked until he obtained a third
job, starting on January 1, 2000.
Respondent does not contest the reasonableness of Phillip Torres’s job search, but
argues that since there is no gap in his employment from September 1, 1999 through the end of
the backpay period, and his interim earnings exceeded his gross backpay in each quarter, he
should be entitled to no backpay.
However, this contention is another attempt by Respondent to argue that the interim
earnings should not be prorated. I have already dealt with that issue above, and concluded that
proration was appropriate, albeit with a slight modification, reflecting the correct number of
hours worked. I therefore reject Respondent’s contention that any backpay for Phillip Torres
would be a “windfall”. Accordingly, I find that Phillip Torres’s interim earnings for the third
quarter of 1999, after the appropriate proration is $830.02. His backpay for that quarter is
$828.98.

5 I note that Respondent does not contend otherwise.
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Torres received interim earnings in the fourth quarter of 1999, of $4,385.36, which
should be reduced to $2,411.94 after the appropriate proration. Thus his backpay for that
quarter is $685.56. For the first quarter of 2000, Torres received $2,352.50 in interim earnings.
After the proper proration, the figure is reduced to $1,293.87, resulting in backpay for Torres for
that quarter $428.13. The total backpay for Phillip is therefore $1,942.67.
C. JOSÉ SALINAS
José Salinas also earned $10.50 per hour while employed by Respondent, so his gross
backpay, calculated based on straight time hours is $1,659.00, $3,097.50 and $1,722.00 for the
three quarters in the Specification.
Salinas testified that during the backpay period, he searched classified advertisements
in newspapers and visited various businesses looking for work, such as Strauss, Cablevision
and a number of tow truck companies. Salinas admitted that at some point he took a six month
course to learn cable repair given by Time Warner Cable. He attended this class every day for
six months and was living at home and being supported by his mother when taking this course.
Salinas also testified that he obtained a job with Tome Warner Cable, immediately after finishing
the course. However, Salinas was not certain as to when he took this course. He testified that
he believed that it was sometime in 1999 or in 2000, and at another point in his testimony, he
stated that he believed that the course started two or three months after he was terminated from
Respondent.
The Specification lists no interim earnings for Salinas for either the third or fourth quarter
of 1999, and interim earnings for Salinas from Newman Distributors, from January 2, 2000
through February 21, 2000. Although at one point in his testimony, Salinas testified that he
believed that he worked for Newman, a couple of weeks after his termination, Salinas was
clearly mistaken in that testimony, since Social Security records reflect that he did not work for
Newman until 2000, and the Region’s files reflect that he worked for Newman in 2000, and for
some time after February 21, 2000, as well. Salina’s Social Security records reflect that he
earned $6,141.00 for Time Warner Cable in 2000. Salinas testified that he worked for Time
Warner from four to six months.
Salinas also testified that he continued to look for work, even while he was taking the
cable repair course, and would have left the class if he had obtained a job.6 Salinas further
testified that at that point, he was primarily looking for jobs in the cable industry, but he did
mention a number of other companies where he applied for work, while taking the class, such
as various towing companies and Strauss.
Based on the above facts, Respondent asserts based on section 15060.5 of the
Compliance manual, that backpay should be tolled during any period where the discriminatee is
taking courses on a full time basis.
However, there are several problems with Respondent’s contentions. First of all the
record is unclear as to precisely when Salinas took the Cable TV course. Salinas did testify that
he believed that the course was sometime in 1999 or 2000, and was two or three months after
his discharge. However, Salinas was clearly uncertain as to the dates, and his testimony as to
when he worked for Newman was contradicted by Social Security records, which demonstrated
that he worked for Newman in 2000. Other documents in the Region’s file confirm that Salinas

6 The classes were free.
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worked for Newman from January 1, 2000 to February 21, 2000 and for sometime thereafter.
That being the case, I conclude that the most probable sequence of events is that Salinas’
course was after his employment at Newman ended, and therefore outside the backpay period.
While the record is not clear with respect to this issue, I make this finding based on the fact that
Salinas worked for Newman from January 1, 2000 to February 21, 2000, and he started working
for Time Warner immediately after the course ended. I note that it is Respondent’s burden to
establish any reduction in backpay, based on failure to mitigate damages. Mid Western
Personnel Services, supra, at 2. Therefore, it is Respondent’s burden to prove that the course
was taken by Salinas during the backpay period. It has failed to meet this burden.
Furthermore, doubts, uncertainties and ambiguities are resolved against Respondent, the wrong
doer. Ibid.
Moreover, even if it is concluded that Respondent has established that Salina’s course
was taken during the backpay period, I agree with General Counsel that his entitlement to
backpay would not be diminished. Notably, the same section of the Compliance manual cited
by Respondent, also states that this normal policy, (tolling backpay where a discriminatee is a
full time student), “may be rebutted if the discriminatee can demonstrate an availability for
employment through such actions as continued efforts to seek employment or an established
willingness to leave school at any time for employment”. Here, Salinas credibly testified that he
continued to look for work, even while attending the course, and that he would have accepted a
job, if he had found one. In these circumstances, consistent with the manual, I find that
Salinas’s backpay should not be tolled. American Compress Warehouse, 156 NLRB 267, 275
(1965); Lozano Enterprises, 152 NLRB 258, 259 (1965). Moreover, the Board has repeatedly
held that a discriminatee “is entitled to seek retraining in order to improve his prospects for
finding suitable employment”. Alaska Pulp, supra, 326 NLRB at 531; E & L Plastics, 314 NLRB
1056, 1058, 1059 (1994); J.C. Holtzendorff Detective Agency, 206 NLRB 483, 484-485 (1973).
Here, Salinas was seeking retraining to improve his prospects for employment, by attending the
course given by Time Warner Cable. Indeed he did obtain employment as a result of taking a
course, albeit after the backpay period ended. Accordingly, his attendance at this course,
whether or not it took place during the backpay period, does not toll Salinas’s backpay.
Respondent also argues that Salinas’ admission that he did not seek driver positions,
serves to extinguish his backpay, since he did not look for a substantially equivalent position. I
disagree. I conclude that Respondent has not shown that Salinas failed to make a reasonably
diligent effort to obtain substantially equivalent employment. Respondent failed to show that the
jobs for which Salinas applied,7 were significantly different either in terms of pay rates or the
nature of the work. Moran Printing, supra, 330 NLRB at 377, Rainbow Coaches, 280 NLRB
166, 182 (1986) enfd. 628 F.2d 1357 (4th Cir. 1980). Further, there is no requirement that
claimant must seek precisely the same type of interim employment from which he has been
discharged. E&L Plastics, supra, at 1058; De Jana Industries, 205 NLRB 845, 846, fn.6 (1991);
Associated Grocery, 295 NRLB 806, 810 (1989). Respondent has not shown that Salinas “had
extensive experience in a specialized field”, that might require him to seek interim work in that
specialty. Associated Grocery, supra, at 811.
Accordingly based on the foregoing analysis and authorities, I find that Respondent has
fallen short of its burden of establishing that Salinas’s backpay should be tolled or extinguished.
Therefore, I recommend that Salinas be awarded $1,659.00 and $3,097.50 respectively for the
third and fourth quarter of 1999, since he had no interim earnings for these quarters. For the
first quarter of 2000, his interim earnings of $870.00 after proration is reduced to $478.50.

7 He applied for jobs as tow truck driver, Cable Television and at Strauss.
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Subtracting that figure from Salinas’ gross backpay of $1,772.00 comes to $1,243.50 for that
quarter. I recommend that his total backpay is $6,000.00.
D. AVELINO RODRIGUEZ
Avelino Rodriguez earned $10.50 while employed by Respondent. His gross backpay,
in accordance with my findings, comes to $1,659.00, $3,047.50 and $1,722.00 for the three
quarters in question. He had no interim earnings in the third quarter of 1999. Rodriguez filed
for unemployment and received benefits therefrom until his first interim job in October of 1999.
While he was unemployed, Rodriguez continued to search for work, and applied for jobs at
several employers, including Home Depot, B & B Auto Parts and a School Bus company on
Garrison Avenue. He was unsuccessful in his applications for these positions.
In October of 1999, Rodriguez obtained a job at Cathedral Maintenance Co., located in
Spring Valley, NY, as a maintenance employee, cleaning a school. His salary was $8.00 per
hour, and he worked 40 hours a week, Monday through Friday.
Rodriguez quit the job at Cathedral Maintenance, sometime in November of 1999.
Rodriguez testified that he quit because the job was “too far away”. He further testified that
when he worked for Respondent, his commute from his home to the job was from 15 to 25
minutes. At his job for Cathedral Maintenance, his commute ranged from 40-45 minutes. In the
backpay form submitted by Rodriguez to the Region, he stated that he “quit the job at Cathedral
Maintenance because it was too far away, and little money”.
After being unemployed for about three weeks, Rodriguez obtained a job at Jead Auto
Supply, in the Bronx. This job consisted of loading and unloading trucks, and paid Rodriguez
$8.00 per hour for a 40 hour work week. Rodriguez worked for several weeks during November
and December 1999 for Jead until he quit sometime in December of 1999. Rodriguez testified
that he quit because it was “too much work”, and it was on the outside, and because the boss
was mean. On cross examination by General Counsel, Rodriguez testified that when he worked
for Respondent he did not work outside, other than the three or four minutes it took for him to go
from the truck to the pharmacies. However, while working for Jean, Rodriguez spent from 6-8
hours outside. However, when asked again why he left Jead, Rodriguez responded, “because it
was too much work in the morning. The boss and his son they were mean”.8
In 2000, Rodriguez continued to search for work immediately after quitting Jead, and
listed several companies where he looked for jobs in January and February of 2000. He did not
obtain another position until April of 2000, after the end of the backpay period.
Respondent does not contest Rodriguez’s efforts to look for work, nor does it contend
that his backpay should be reduced for the third quarter of 1999, where he had no interim
earnings. Therefore, I find that Rodriguez is entitled to his gross backpay of $1,659.00 for that
quarter.
Respondent does contend however, that Rodriguez unjustifiably quit his employment
from both Cathedral and Jead, and that therefore his backpay should be cut off when he
resigned from these positions. Parts Depot, 348 NLRB No. 9 Slip op. at 3 (2006); Sorenson
Lighted Controls Inc., 297 NLRB 282, 283 (1989); Holiday Radio, 275 NLRB 1342, 1343 (1985).

8 I note that in the backpay form filled out by Rodriguez, and sent to the Region, the reasons
given for quitting Jead were, “too much work – no money”.
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General Counsel argues that Rodriguez was justified in quitting both positions, since a
backpay claimant is not required to accept or retain interim employment that is substantially
more onerous. Pope Concrete Products, 312 NLRB 1171, 1173 (1993); Chem Fab Corp., 275
NLRB 21, 24 (1985).
Where a discriminatee, without good cause, quits a comparable job with an interim
employer, he has incurred a willful loss of earnings, warranting a reduction in backpay. Met
Food, 337 NLRB 109, 114 (2001); Glover Bottled Gas, 313 NLRB 43 (1993); Shell Oil Co., 218
NLRB 87 (1975); Parts Depot, supra.
Where it is shown that a discriminatee has quit a comparable position, the burden shifts
to General Counsel to establish that the quit was reasonable. Big Three Industrial Gas, 263
NLRB 1189, 1199 (1982). I note however, that contrary to Respondent’s assertion, a finding
that a quit is such circumstances is not reasonable, does not cut off backpay, but merely
requires that the amount of lost interim earnings be calculated and offset against gross backpay
as though actually earned by the discriminatees. Parts Depot, supra, Slip op at 3; Sorenson
Light Controls, supra, at 283; Knickerbocker Plastic Co., 132 NLRB 1209, 1212-1215 (1953).
However, a discriminatee is under no obligation to retain nonequivalent employment.
Met Food, supra, at 114; Glover Bottled, supra; Churchill’s Supermarkets, 301 NLRB 722, 725
(1991); Newport News Shipbuilding, 278 NLRB 1030, 1022 (1986); Florida Steel Co., 234 NLRB
1089, 1092 (1978).
Based upon this precedent, I conclude that neither of the interim jobs secured by
Rodriguez can be considered substantially equivalent or comparable to his position at
Respondent. He received $10.50 per hour, while being employed by Respondent as a driver.
His interim positions at Cathedral as a maintenance employee cleaning a school, and at Jead
unloading and loading trucks, both at $8.00 per hour, are clearly not substantially equivalent
positions. Met Food, supra, at 114 (Wages of $1.00 per hour less than at Respondent);
Newport News, supra, at 1033 (Discriminatee who had been employed as a welder, justified in
quitting interim position at a gas station, Janitorial-Maintenance Company and at 7-11
Convenience Store); Lozano Enterprises,152 NLRB 258, 260 (1965) (Linotype operator justified
in quitting janitorial job).
I therefore need not decide whether or not Rodriguez’s decisions to quit these interim
jobs were “reasonable”, since neither of them were substantially equivalent to his job while
employed by Respondent. Therefore, he was under no obligation to retain such positions. Met
Food, supra; Glover Bottled Gas, supra; Newport News, supra.
Accordingly, I shall not reduce Rodriguez’s backpay because of his decisions to quit
these jobs. I shall however, as discussed above appropriately prorate his backpay for the fourth
quarter of 1999, which changes his prorated interim earnings to $2,416.15 for that quarter. Hs
backpay for that quarter therefore is $681.35. For the first quarter of 2000, Rodriguez had no
interim earnings. I find that he adequately searched for work during that quarter, and he should
be awarded $1,722.00 as backpay.9 I therefore recommend a total backpay of $4,062.35 for
discriminatee Avelino Rodriguez.

9 As noted above, Rodriguez’s backpay for the first quarter of 2000, should not be reduced
by his quitting non equivalent interim positions in 1999.
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3. MIGUEL VEGA AND LUIS ORTIZ
Miguel Vega and Luis Ortiz were paid $9.00 and $9.50 per hour respectively, while
employed by Respondent. The gross backpay is therefore $1,422.00, $2,655.09 and $1,476.00
for Vega and $1,501.00, $2,802.50 and $1,558.00 for Ortiz, for the three quarters set forth in the
Specification.
No interim earnings are listed for either of these discriminatees in the Specification.
However, neither of them testified at the instant hearing, Respondent served a subpoena10 on
Vega, along with a check for witness and mileage fees and a covering letter from Respondent’s
attorney. The subpoena was delivered and signed for on March 1, 2007.
The trial was subsequently postponed due to ongoing settlement negotiations. It was
rescheduled for June 13, 2007. Respondent’s attorney sent a letter to Vega by both regular
mail and certified mail, dated June 5, 2007. The letter reminds Vega that he had previously
been served with a subpoena to appear before the Board, and states that he is required to
appear on the rescheduled date of June 13, 2007. The letter also states that as a courtesy, he
was enclosing an additional copy of the subpoena previously served.11
Respondent’s attorney stated at the trial that he had no proof that Vega received the
June 5, 2007 letter reminding him to appear on June 13, 2007. He claims however that it was
sent by both regular mail and certified mail, to the same address in Clifton, New Jersey where
the subpoena had been previously sent and received.
The initial Specification, issued on April 20, 2004, listed Vega as an “unlocated
discriminatee”. However, as a result of a software program utilized by the Region, an address
for Vega was ascertained sometime in late 2006. Vega was sent backpay forms by the Region
to fill out, including a Social Security release form. Vega signed the Social Security release
form and returned it to the Region in February of 2007. The Region subsequently received from
Social Security, a document which reflects that Vega had earnings in 1999 and 2000, but the
form does not specify what months were covered. The Region then made several unsuccessful
attempts to contact Vega and ascertain specific information from him as to precisely when he
worked for these employers. On March 26, 2007 Sarro sent Vega a letter, detailing the
Region’s efforts to obtain this information, as well as threatening him that his backpay could be
eliminated if he does not contact the Region. The letter reads as follows:
Dear Mr. Vega:
As you are aware, this office prosecuted a case against Consolidated Delivery &
Logistics in which we allege that the company unlawfully terminated employees who
engaged in a strike at the employer’s facility. As a result of our prevailing in that
litigation, this office is determining what, if any, backpay is due you in this matter.
Over the past several years, we had unsuccessfully attempted to contact you at
various addresses without any response from you. It is your responsibility to keep us
informed of your whereabouts during the processing of this matter. If you cannot be
located, you may forfeit you entitlement to backpay. In the event of a change of

10 At that time the trial was scheduled to commence on March 7, 2007.
11 Notably, Respondent did not introduce into the record, a copy of the subpoena, served
upon Vega.
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address, please notify this office immediately at the above address.
In February 2007, we received your Social Security Authorization form but none
of the other interim earnings information mailed to you on December 22, 2006 at this
address. Trial Attorney Robert Gonzalez reached you by telephone and you agreed
to cooperate. However, no further documents or information has been received
concerning your interim earnings between August 1999 and February 21, 2000. Mr.
Gonzalez contacted you in early March and you stated that you were going on
vacation and agreed to cooperate and provide the necessary information concerning
your interim earnings. In addition, telephone messages have been left with your
father. To date, we have not received any additional documents or correspondence
from you. The remaining documents should also be completed and returned to this
office. Our fax number is 973-645-3784.
This is to notify you that failure to provide this office with the requested
information concerning your employment history may result in your right to
backpay being eliminated or compromised without any further communication
with you. Your cooperation returning the remaining forms on or before Friday, March
20, 2007 is requested. If you have any questions, please feel free to contact me at
(973) 645-3784 or Trial Attorney Robert Gonzalez at (973) 645-6454.
Very truly yours,
Collette Sarro
Compliance Officer
Vega did not respond to this letter. Robert Gonzalez, attorney for the General Counsel,
had several telephone conversations with Vega’s father on March 13, May 22 and June 12,
2007, in which he informed Vega’s father that Vega should make efforts to contact Gonzalez
regarding the trial, that it was necessary for Vega to appear at the trial on June 13, 2007, and to
contact Gonzalez in order to supply additional information. Sarro placed a telephone call to
Vega on April 1, 2007, requesting that he return her call. Vega did not return Sarro’s call, nor
did he contact Gonzalez.
Initially, the Region, as a result of its tracking system, believed that Luis Ortiz was living
in Florida. However, Sarro finally contacted that Luis Ortiz, and ascertained that although he
had worked for Respondent, he was terminated in 1998. Thus he was not the right Luis Ortiz.
Further efforts by the Region, finally revealed the correct address for the Luis Ortiz involved, as
Taylor Street, in Newark, New Jersey. On March 5, 2007 Robert Gonzalez dropped off the
Region’s backpay forms at that address, with the following cover letter.
Mr. Ortiz:
I am an attorney with the National Labor Relations Board. In 2001, this office
prosecuted a case against Consolidated Delivery & Logistics in which we alleged that
the company unlawfully terminated employees who engaged in a strike at the
employer’s facility. As a result of our prevailing in that litigation, this office is
determining what if any backpay is due you in this matter.
In order for us to determine this I have enclosed information which you must
complete and return back to me by March 14, 2007. If you have any questions
please contact me at 973-645-6454.
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Very truly yours,
Robert Gonzalez
Board Attorney
Ortiz did not respond to this letter, or to two subsequent phone messages, left by
Gonzalez. Thus on March 26, 2007, Sarro sent the following letter to Ortiz.
Dear Mr. Ortiz:
As you are aware, this office prosecuted a case against Consolidated Delivery &
Logistics in which we allege that the company unlawfully terminated employees who
engaged in a strike at the employer’s facility. As a result of our prevailing in that
litigation, this office is determining what, if any, backpay is due you in this matter.
Over the past several years, we have unsuccessfully attempted to contact you at
various addresses without any response from you. It is your responsibility to keep us
informed of your whereabouts during the processing of this matter. If you cannot be
located, you may forfeit your entitlement to backpay. In the event of a change of
address, please notify this office immediately at the above address.
On March 5, 2006, Trial Attorney Robert Gonzalez dropped off the discriminatee
information at home address, along with a cover letter, requesting that you complete
and return these documents no later than March 14, 2007. Thereafter, on March 9,
2007, Trial Attorney Gonzalez left a message on your telephone requesting that your
(sic) contact this office and left a phone message with your mother at her home. To
date, we have not received any documents or correspondence from you. It is
requested that you immediately complete and return the Social Security Authorization
form. Our fax number is 973-645-3784. The remaining documents should also be
completed and returned to this office.
This is to notify you that failure to provide this office with the requested
information concerning your employment history may result in your right to
backpay being eliminated or compromised without any further communication
with you. Your cooperation in returning the above forms on or before Friday, March
30, 2007 is requested. If you have any questions, please feel free to contact me at
(973) 645-3784) or Trial Attorney Robert Gonzalez at (973) 645-6454.
Very truly yours,
Collette Sarro
Compliance Officer
Ortiz did not respond to this letter, and did not appear at the trial. Respondent did not
subpoena Ortiz, and the record does not establish whether or not Ortiz was aware of the date of
the trial, or that he was told that he was required to be present. Respondent contends that it did
not subpoena Ortiz, because it did not have Oritz’s current address, because General Counsel
did not supply it to Respondent. Respondent contends that the only document supplied to it by
the Region concerning addresses, listed Ortiz as living in Florida.
Based upon the above facts, Respondent contends that backpay for both of these
discriminatees should be forfeited by virtue of their non cooperation with the Region, including
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the failure of Vega to comply with a properly served subpoena. Schnabel Associates, 291
NLRB 648, 655 (1988); Parts Depot, supra, 348 NLRB No. 9, n. 19 (2006).
Respondent also relies on the Compliance manual which does distinguish between
missing and uncooperative discriminatees. In that regard, the relevant portions of the manual
states as follows:
10592.9 Missing Discriminatees or Claimants
Particularly in cases involving more than one discriminatee, it is important not to
delay resolution of the case because the Region cannot locate one or more
discriminatees. The Region may calculate the backpay due missing discriminatees
using the methods set forth in Section 10562.4.
In cases involving a missing discriminatee, the Region should arrange to obtain
backpay in a form that places it in escrow, rather than as a check payable to the
discriminatee. See Section 10580 regarding escrow accounts, and Section 10582.3
regarding disbursement of backpay from an escrow account when a missing
discriminatee is located. See Section 10584 regarding the elimination of a missing
discriminatee’s backpay entitlement after the Respondent has otherwise fulfilled it
compliance obligations.
10592.10 Uncooperative Discriminatees or Claimants
In circumstances where the discriminatee does not cooperate, the Regional
Director has authority to compromise or eliminate backpay and to forgo an offer of
reinstatement if such resolution results in substantial compliance with a Board order
or with appropriate remedial standards. The Region may take this step only if it
knows the address of the discriminatee, no evidence suggests that the refusal to
cooperate serves to subvert the Board’s processes and the discriminatee has been
given written notice of the consequences of his or her refusal to cooperate.
General Counsel argues on the other hand, that there is no distinction between a
missing and uncooperative discriminatee, in terms of remedy, and that in either case, the Board
orders the escrow remedy, provided for in Starlite Cutting Inc., (Starlite I), 280 NLRB 1071
(1986); Starlite Cutting Inc., (Starlite I), 284 NLRB 620 (1987); Beckley Belt Services, 289 NLRB
1179 (1988); Steve Aloi Ford, 190 NLRB 661, 662 (1971).
I agree with General Counsel that Respondent’s citation of Schnabel Associates, supra,
is not persuasive. There, the ALJ, without citing any authority, extinguished a backpay claim of
a discriminatee, who had been subpoenaed, but did not appear. The ALJ found that his
backpay was extinguished “by his failure to cooperate with the Board during the compliance
stage of the instant case”. Id. at 655.
The Board however pointedly stated that it adopted the Judge’s finding as to this
discriminatee, “in the absence of exceptions”. Fn. 1 at 648. Therefore that case has no
precedential value as to this issue.
On the other hand, the cases cited by General Counsel, are squarely in point, and
represent Board decisions, ordering the Starlite escrow remedy in cases where the
discriminatee has not cooperated. Beckley Belt, supra (Board orders escrow remedy for
discriminatee, who did not appear at hearing, although he was subpoenaed); Steve Aloi Ford,
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supra, (Board reverses ALJ’s decision to dismiss backpay specification because lone
discriminatee failed to appear, although trial had been postponed at discriminatees request, and
orders escrow remedy) See also, L-Ermitage Hotel, 293 NLRB 924, 924-930 (1989) (Escrow
remedy applied, even though discriminatees had been subpoenaed by Respondent).
Parts Depot, supra does not, as General Counsel correctly asserts, stand for the
proposition that a discriminatee’s backpay is extinguished if he does not cooperate. However,
Parts Depot, supra did reverse an ALJ’s decision to order the normal Starlite remedy, and
decided to sever the case of that discriminatee. I find this to be a rather mystifying decision,
particularly in the absence of any explication of the majority’s reasoning nor an explanation of
why Starlite was not followed. Thus in footnote 19, Chairman Battista and Member Schaumber
stated that they would not resolve backpay for a discriminatee “whose whereabouts are
presently unknown”. These members concluded that the backpay for that individual, “raises
significant issues of law and policy. Those issues include the question of which party has the
burden of proof concerning whether a discriminatee has reasonably searched for work during
the backpay period”. The Board therefore ordered the backpay issues relating to that
discriminatee “be severed and resolved as soon as possible”. Member Liebman relying on
Starlite, supra, would have affirmed the Judge and placed the amounts for that employee in
escrow.
What is mystifying to me about this decision, is the fact that Starlite, supra is
longstanding board law, and in fact the escrow procedure refined in Starlite was in place long
before, and has been supported by the Courts. Brown and Root, Inc., 132 NLRB 486, 495
(1961) enfd. 311 F.2d 447, 455 (8th Cir. 1963). It is thus doubtful that the Board meant to
reverse such longstanding precedent, which has been consistently applied,12 and normally it
does not do so, without a full Board or at least a 3 member decision, with a full explanation and
a clear reversal of precedent. Here the Board majority did not say that Starlite was being
reversed, nor did it explain why Starlite was not being followed. The members merely
concluded that in this particular case the discriminatee’s entitlement to backpay “raises
significant issues of law and policy”. The Judge’s decision does not give much guidance, since
it merely rejected the assertion of Respondent that the Region “only half heartedly sought to
locate” the discriminatee, without detailing any facts relating to that issue. This suggests to me
that perhaps the Board majority, had some qualms about that finding of the Judge, and decided
to sever, rather than order the normal escrow remedy, for this reason. In any event, I conclude
that in the absence of a clear reversal of Starlite, that Parts Depot must be considered rather an
exception to Starlite, based on something in the record that led the majority to conclude that a
severance was appropriate.
I find that the record here certainly raises substantial issues as to the backpay for these
discriminatees. Clearly, both of them have been less than cooperative with the Region,13 and
the record reveals the Vega had a substantial amount of interim earnings in 1999 and 2000,14
making it highly likely, that at least some of these earnings were during the backpay period. In
these circumstances, consistent with Parts Depot, supra, I shall recommend that the backpay
for Vega and Ortiz be severed and “resolved as soon as possible”. In that connection the
Region should continue to pursue contacting these discriminatees, and obtaining interim
earnings information from them, and if necessary, issue a notice of hearing to enable
Respondent to question these employees as to their efforts to search for work. If the

12 Cable Car Advertisers, 336 NLRB 927, 934 (2002).
13 I do note though, that Vega did sign and return the release form for Social Security.
14 The Social Security report listed $34,815.99 of earnings for 1999 and 2000 for Vega.
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discriminatees continue to refuse to cooperate, the Region should consider exercising the
discretion afforded it, under 10592.10 of the manual and compromise or eliminate their
entitlement to backpay.
Based on the above findings of fact and conclusions of law and based on the entire
record, I hereby issue the following recommended 15
ORDER
IT IS HEREBY ORDERED that the Respondent Consolidated Delivery and Logistics and
Velocity Express Corporation,16 its officers, agents, successors, and assigns, shall pay the
individuals named below the amounts of backpay, with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173, (1987), minus tax withholding required by Federal and State
laws.
José Balazar $1,719.74
Fabian Guevara $3,156.20
Juan Guzman $4,756.50
Richard Jeans $5,862.50
David Maldonado $1,422.00
Avelino Rodriguez $4,062.35
Isaac Rosario $3,823.77
José Salinas $6,000.00
Richard Silva $1,731.40
José Torres $2,651.25
Phillip Torres $1,942.67
TOTAL $37,128.38
IT IS FURTHER ORDERED that the determination of the backpay due to Luis Ortiz and
Miguel Vega shall be severed and remanded to the Region for further processing consistent
with this opinion.
Dated, Washington, D.C., September 18, 2007.
____________________
Steven Fish
Administrative Law Judge

15 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.
16 The parties stipulated that Velocity Express is the parent company of Respondent, and
agrees to assume any liability that may arise in this proceeding.