Contemporary Guidance Services

National Labor Relations Board - Board Decisions

Oct 23, 1990

300 N.L.R.B. 556 (N.L.R.B. 1990)

556
300 NLRB No. 57
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Board’s Decision and Order affirmed the decision in the underlying
case issued by Administrative Law Judge Snyder on March 29, 1988.
2 Other contentions of Respondent which attempted to relitigate matters de-
cided in the underlying proceeding and enforced by the Second Circuit were
striken from Respondent’s answer.
3 I note that much of Respondent’s brief is based on assertions of fact that
are totally unsupported by the record before me. I have found the facts based
on the testimony and evidence and based on my credibility resolutions.
Contemporary Guidance Services, Inc. and Local
868, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO and Delores Beckham and
Kevin Mulvey. Cases 2–CA–21761, 2–CA–
21917, and 2–CA–21931
October 23, 1990
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On July 27, 1990, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Contemporary Guidance
Services, Inc., New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Gail I. Auster, Esq., for the General Counsel.
Bradley B. Davis, Esq., of New York, New York, for the Re-
spondent.
SUPPLEMENTAL DECISION
ELEANOR MACDONALD, Administrative Law Judge. On
September 29, 1988, the National Labor Relations Board
issued its Decision and Order at 291 NLRB 50, finding that
Respondent Contemporary Guidance had unlawfully dis-
charged Dolores Beckham and Kevin Mulvey, and ordering
Respondent to reinstate its employees and make then whole
for any loss of earnings or other benefits.1 On April 24,
1989, the United States Court of Appeals for the Second Cir-
cuit enforced the Order of the Board based on a consent
judgment. Through inadvertence, the consent judgment was
not entered at that time. On February 8, 1990, the parties
agreed to the entry by the court of the consent judgment to
be effective from April 24, 1989. On May 25, 1989, the Re-
gional Director for Region 2 issued a compliance specifica-
tion and notice of hearing alleging certain amounts of back-
pay due for the two employees named above and specifying
that as to Mulvey the backpay continues to accrue until a
valid offer of reinstatement is made to him.
Respondent filed an answer alleging that Mulvey was
given a valid offer of reinstatement, that state and Federal
regulations make it impossible to reinstate him to his former
position, that the computation of backpay includes improper
increases given without the consent of the Union, and that
neither Beckham nor Mulvey made adequate efforts to find
alternate interim employment.2 During the instant hearing,
Respondent amended its answer to state that Respondent
‘‘has adopted qualifications for recreation counsellors making
it impossible to reinstate Mr. Mulvey into any . . . position
at [Respondent’s facility], and further has abolished the posi-
tion of recreation counsellor at the Chelsea residence.’’
This matter was heard by me in New York, New York,
on November 27 and 28 and December 15, 1989.
On the entire record, including my observations of the wit-
nesses and on due consideration of the briefs filed by the
General Counsel and the Respondent in March 1990, I make
the following3
FINDINGS OF FACT
I. DOLORES BECKHAM
Respondent and the General Counsel agree that Beckham
was discharged on October 15, 1986, and that she was rein-
stated on November 19, 1988. The parties stipulated that
Beckham was earning $144 per week at the time of her dis-
charge in 1986 and that there were across-the-board increases
of 8 percent on July 1, 1987, 6 percent on July 1988, and
6 percent on July 1, 1989. The General Counsel claims that
Beckham is owed $14,096, plus interest, and that she is enti-
tled to vacation and benefits for sick days and personal days.
The General Counsel and Respondent stipulated that
Beckham is entitled to 19 days of vacation time, 3 days of
personal leave, and 12 days of sick leave for the backpay pe-
riod. The parties agreed that Respondent shall have the op-
tion of crediting Beckham with the accrued benefits or of
paying her the amounts outright. One day after entering into
the above stipulation, counsel for Respondent asserted on the
record that most employees work a 7-hour day and that the
stipulation referred to 7-hour days. After being pressed by
counsel for the General Counsel, counsel for Respondent
conceded that he should have specified an 8-hour day as to
most employees. The evidence shows that Beckham worked
10 hours per day; that is, on Saturday and Sunday from 8
a.m. to 6 p.m.
Yuri Feynberg, Respondent’s director of residential serv-
ices, testified that a day’s vacation referred to an 8-hour day,
‘‘unless the person is a part time employee whose vacation
time will be pro-rated in accordance with the number of
hours that employee works.’’ Respondent’s ‘‘Policies and
Procedures’’ provide that a part-time salaried employee who
works 20 or more hours per week on a permanent basis re-
ceives ‘‘sick personal and vacations days on a prorated
basis.’’ The record establishes that Beckham worked 10-hour
days rather than 8-hour days. Thus, her benefits should be
prorated accordingly.
557CONTEMPORARY GUIDANCE SERVICES
4 Respondent does not challenge the General Counsel’s method of com-
puting the backpay for Mulvey.
5 The Chelsea residence is on Ninth Avenue in New York City. It houses
developmentally disabled adults. In addition, certain offsite apartment resi-
dences clustered around the the main residence are considered part of the
Chelsea residence. The Chelsea residence proper is called ‘‘Chelsea I’’ and the
clustered apartments are called ‘‘Chelsea II.’’
Beckham was a weekend counselor who performed tasks
related to the care of moderately retarded residential clients
of Respondent. Beckham gave out medication, accompanied
clients on recreation trips, taught life skills, and helped with
the cooking and the selection of clothing and the like.
In addition to Beckham’s weekend job with Respondent,
Beckham is a full-time teacher in the New York City Public
School System. When school is not in session in the sum-
mer, Beckham holds full-time summer employment.
Beckham described her search for interim employment
after she was discriminatorily discharged by Respondent. She
looked at advertisements in the major New York City news-
papers as well as local newspapers. She also applied to two
department stores for employment for the 1986 holiday sea-
son. The department stores were not willing to employ her
for weekends only; they required weekday work as well. In
1987, Beckham continued to consult the newspapers every-
day; she also checked the school bulletin board for part-time
jobs, and she submitted a resume to the Shields Institute. In
the second quarter of 1987, Beckham obtained employment
at Clairol answering questions from consumers. The Clairol
job was 3 days a week from 6 p.m. to midnight. Beckham
had to quit this job after 4 weeks because the late hours
meant that she got home very late and could not carry on
her duties in school the next day. Beckham also obtained
work with an agency named Magi and she worked two Sat-
urdays training adults in a State program. Magi had no fur-
ther need for Beckham in 1987 after she completed the two
sessions. During the third quarter of 1987, in addition to con-
sulting the daily newspapers, Beckham applied for part-time
jobs with Federal Express, a correctional facility, and a com-
munity college. She was not successful in obtaining employ-
ment although she had several interviews. In the fourth quar-
ter of 1987, Beckham again checked newspaper advertise-
ments on a daily basis, she contacted friends in the mental
health field, and she had an interview at Adelphi University,
but she did not get a job.
Beckham continued consulting advertisements and submit-
ting resumes in the first quarter of 1988, but she did not ob-
tain employment. Respondent does not dispute the backpay
specification for the second quarter of 1988. In the third
quarter of 1988, Beckham registered with the New York
State Employment Service and she called the service regu-
larly to see if it had weekend employment for which she
might apply. One job in Beckham’s field was available, but
not for Saturday or Sunday. Beckham also sought work in
daycare programs during this time, but she was not success-
ful. In the fourth quarter of 1988. Beckham continued to look
in newspapers and she sent out resumes. In addition, a friend
gave her a lead for a tutoring position, but when Beckham
called the job had been filled. Finally, Beckham was rein-
stated by Respondent.
Beckham did not have copies of the advertisements she re-
sponded to nor did she have copies of most of the letters of
application she sent out. She did not retain most of the letters
of rejection.
Respondent’s brief misstates the testimony concerning the
number of hours worked by Beckham every week; I shall
disregard the argument made on this basis. In addition, Re-
spondent’s brief urges that Beckham should be denied back-
pay because she did not retain copies of letters and applica-
tions she prepared while she was seeking interim employ-
ment following her discriminatory discharge. This contention
is totally without merit. Respondent’s burden in this pro-
ceeding was to show that Beckham’s efforts to find interim
employment were not reasonably diligent. Manifestly, Re-
spondent did not meet this burden. Beckham was a strong
and convincing witness with a particularly impressive de-
meanor while testifying. There is no basis for discrediting
any of her testimony. I find that she was extremely diligent
in seeking interim employment. Respondent has not shown
that the General Counsel’s computations of backpay should
be changed. Therefore, in accordance with Appendix A of
the compliance specification, Respondent should pay to
Beckham $14,096 plus interest. Further, in accordance with
the stipulation entered into at the instant hearing, Respondent
should credit or pay to Beckham 19 days of vacation, 3 days
of personal leave, and 12 days of sick leave based on a 10-
hour workday.
II. KEVIN MULVEY
A. Background
Mulvey testified that he was a recreation counselor for de-
velopmentally disabled adults: he planned day trips for cli-
ents of Respondent at the Chelsea I residence and he accom-
panied the clients on the trips. His regularly scheduled days
of work were Saturday and Sunday, 10 a.m. to 6 p.m. When
Respondent was short staffed he was often called in to work
as a counselor during the week for up to 24 or more addi-
tional hours. The parties stipulated that Mulvey was earning
$4.16 per hour at the time of his discharge and that the
across-the-board increases of 8 percent, 6 percent, and 6 per-
cent applied to his backpay as well. The General Counsel
claims that Mulvey is owed $5747, plus interest and that his
backpay continues to accrue so long as he has not been made
a valid offer of reinstatement. The backpay computation used
by the General Counsel is based on an average of 20 hours
of work per week.4
The decision of Administrative Law Judge Snyder in the
underlying case found that Mulvey was a ‘‘recreation coun-
selor at the Chelsea residence on weekends and Wednes-
days.’’5 This finding was not disturbed by the Board in its
Decision and Order that Mulvey be reinstated to his former
job or, if that no longer exists, to a substantially equivalent
position. The finding as to Mulvey’s job title and duties is,
of course, binding in the instant proceeding. Counsel for Re-
spondent stated on the record at the hearing before me that
Respondent does not claim that Mulvey was ever offered re-
instatement as a weekend recreation counselor.
Mulvey was discharged by Respondent on November 12,
1986. At that time he also had a part-time job as a ‘‘tele-
marketer’’ or telephone salesman from 6 to 11:30 p.m. 5
days per week. If he was asked to work extra hours at Re-
spondent’s facility, he did not attend the telemarketing job.
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The General Counsel contends that Mulvey may be reinstated to a position
at an intermediate care facility or a community residence.
7 The regulations became effective on January 31, 1988.
8 All that is required of Respondent is that it provide recreation services and
opportunities for its clients. However, if an employee is employed in the title
‘‘recreation counselor,’’ a job description must be maintained for the position.
9 These are Mulvey’s qualifications.
B. Efforts to Seek Interim Employment
After his discriminatory discharge by Respondent, Mulvey
asked the Union for help in finding part-time employment;
he also checked newspaper advertisements and spoke to
friends about finding work. He did not obtain part-time em-
ployment during the fourth quarter of 1986 but he continued
to work part time at the telephone selling job. From February
1987 to April 1988, Mulvey held a full-time job and was not
seeking part-time employment. The General Counsel does
not seek backpay for this period.
In the second quarter of 1988 after Mulvey was laid off
from his full-time job, he again maintained regular contact
with the union hiring hall and looked in one daily New York
City and two local newspapers for part-time employment. He
did not find a job. In the third quarter of 1988, he continued
looking for part-time work by scanning the help wanted ads
in the daily newspapers and keeping in touch with the Union.
He also interviewed at an alcoholic rehabilitation center for
part-time security work. He did not obtain part-time work
during this quarter. In the fourth quarter of 1988, Mulvey
continued to look for job openings in newspapers and
through the Union. Mulvey was interviewed by a hospital
and by a private guard agency for security work, He also
went to an interview at a museum. Mulvey obtained a job
at the A.S.P.C.A. where he worked for 1 day. Although he
loves animals, Mulvey found that he could not bear the noise
and the stench at the location, so he did not return to work
after the first day.
On January 12, 1989, Mulvey obtained work at the Na-
tional Organization for Women. He worked 20 hours per
week. In March 1989, Mulvey obtained full-time employ-
ment at the museum where he had been interviewed in 1988,
and he continued to work part time at the National Organiza-
tion for Women 8 hours per week at $6 per hour. In the third
quarter of 1989, he worked part time 20 hours per week and
in the fourth quarter of 1989, he worked 30 hours per week
at this part-time job.
Mulvey did not retain copies of any job applications he
submitted nor did he have copies of any rejection letters he
received.
C. Eligibility for Reinstatement
Mulvey testified that he has earned 124 college credits but
has not obtained any degree. From 1969 to 1971 he worked
in a hospital for the criminally insane; a part of the popu-
lation was mentally retarded.
Yury Feynberg, the director of residential services for Re-
spondent, testified that Respondent operates community resi-
dences such as Chelsea and also three intermediate care fa-
cilities. According to Feynberg, only the intermediate care
facilities employ recreation counselors at the present time.6
At the Chelsea residence, the weekend personnel perform
recreational duties in addition to their other duties.
Feynberg testified that Respondent changed its job descrip-
tion for recreation counselor after October 1988 in order to
comply with Federal regulations issued at that time. The job
description dated June 1984 for ‘‘recreation counselor’’ stat-
ed the qualifications for the position as follows:
A minimum of a Baccalaureate degree in recreation,
art, music or physical education, or an Associate degree
in recreation and one year of experience in recreation,
or a high school diploma with two years experience in
recreation, or one year experience plus completion of
comprehensive in-service training in recreation, or dem-
onstrated proficiency and experience in conducting ac-
tivities in one or more recreation programs.
The newly adopted job description for ‘‘recreation coun-
selor’’ states the job qualifications as follows:
A minimum of a bachelor’s degree in recreation or in
a specialty area such as art, dance, music, physical edu-
cation, etc.— one year of experience in mental retarda-
tion and a driver’s license.
Judy Trent, a regional director of the New York State Of-
fice of Mental Retardation and Developmental Disabilities
(OMRDD), is in charge of program certification. Trent ex-
plained that this means that she is a manager in the division
of quality assurance with the responsibility for the survey
and certification of programs such as the Chelsea residence
operated by Respondent. It is Trent’s responsibility to en-
force state and Federal regulations relating to programs such
as that maintained by Respondent at its Chelsea residence.
The OMRDD issues regulations. Part 686.6 (a)(2) of these
regulations requires community residences such Chelsea to
develop and implement personnel policies which deal with,
inter alia, ‘‘qualifications, education and skills required’’ for
staff members.7 Trent testified that Respondent is required to
maintain employee job descriptions. OMRDD is concerned
about employee qualifications only when the applicable regu-
lations are specific as to the requirements for a particular job
function. Trent stated that part 686 of the regulations does
not specify any particular qualifications for the position of
recreation counselor; in fact, the regulation does not even re-
quire such a position to be maintained by Respondent.8 If a
person employed as a recreation counselor is performing the
job adequately, OMRDD would not be concerned with the
employee’s level of education or other qualifications. Trent
also testified that no Federal regulations set qualification re-
quirements for a recreation counselor. Thus, Respondent was
free, as far as state and Federal oversight were concerned, to
set any educational requirements for the position of recre-
ation counselor at any of its facilities at issue here.
Trent stated that Respondent was able, under applicable
regulations, to employ a part-time recreation counselor with
a high school degree and a minimum of 8 months’ experi-
ence at any of its facilities at issue here.9 Respondent need
not require that a recreation counselor at any of its facilities,
either community residences or intermediate care facilities,
possess a baccalaureate degree or a degree in recreation.
Trent testified that as to an intermediate care facility, the
Federal regulations require that each one shall employ at
least one qualified mental retardation professional on the
staff. The qualified professional may be trained in any one
of a number of disciplines. If the agency decides that the
559CONTEMPORARY GUIDANCE SERVICES
10 Mulvey would have met this standard. 11 There is no longer a Chelsea III.
qualified professional shall be a professional recreation staff
member, then the individual must have a bachelor’s degree
in recreation or in a specialty area such as art, dance, music,
or physical education. There is no requirement of any level
of experience in the Federal regulations for the professional
recreation staff member. Respondent has not asserted nor has
it presented any evidence that at any of its intermediate care
facilities it has decided that the qualified mental retardation
professional on staff shall be a professional in the field of
recreation.
Trent also testified that Respondent is free to require its
weekend counselors to perform recreation activities at any of
its facilities at issue here without meeting the qualifications
for a professional recreation staff member.
Trent compared the two job descriptions for recreation
counselor quoted above; she testified that there was nothing
in state or Federal regulations which required Respondent to
amend the qualifications set forth in the 1984 job description
so as to make them more rigorous.
Respondent also employs staff in the title of ‘‘Counselor.’’
The June 1984 job description stated the qualifications for
this position as:
A minimum of a high school diploma and one year
work experience in a program(s) for the mentally re-
tarded.
In 1986, Respondent issued a job description for ‘‘Week-
end counselor’’ which provides that the qualifications are:
A minimum of a high school diploma.
Feynberg testified that the new job description for recre-
ation counselor quoted above was drafted in October 1988
and approved by Respondent’s board of directors in Decem-
ber 1988. I note that the document is undated although all
the other job descriptions in Respondent’s files bear a date
of adoption or revision. Further, the purported 1988 revision
is on different paper and written in a different style from all
the other job descriptions placed into evidence.
On November 10, 1988, counsel for Respondent wrote to
the Regional Office that Mulvey was not eligible for rein-
statement because he did not meet the qualifications for the
position of a residence counselor (a high school diploma and
1 year working in a program for the mentally retarded). En-
closed was the 1984 job description for counselor quoted
above. Significantly, Respondent did not draw to the Re-
gion’s attention the 1986 job description for weekend coun-
selor, also quoted above, which requires only a high school
diploma but not 1 year’s experience.10 Also, Respondent did
not cite the 1984 job description for recreation counselor pur-
suant to which Mulvey was hired in December 1985 and
under which he was still qualified.
In its letter to the Region, Respondent did not enclose the
new job description for recreation counselor which, accord-
ing to Feynberg, was in the process of being approved by
the Board and which required a baccalaureate degree and
some experience. If this new job description had been in
draft form when Respondent communicated with the Re-
gional Office in November 1988, Respondent would have
used the qualifications statement to buttress its position that
Mulvey was not eligible for reinstatement. I conclude that
Feynberg’s testimony that the new job description was draft-
ed in October and approved by the Board in December 1988
is not accurate. I conclude that the purported 1988 revision
was made solely for the purpose of denying reinstatement to
Mulvey and to defeat the processes of the Board. Although
Feynberg testified that the revision was made to comply with
Federal regulations, Trent convincingly gave expert testi-
mony that this was not true.
It is obvious that Respondent was attempting to use any
reason or excuse to avoid reinstating Mulvey. Respondent
cited an inapplicable job qualification for counselor, Re-
spondent did not inform the Regional Office of its current re-
quirements for recreation counselor or weekend counselor
and Respondent drafted new requirements solely to prevent
Mulvey from being reinstated by Respondent.
Feynberg testified that the Chelsea I and II residences now
employ approximately 18 counselors.11 According to
Feynberg, there is no need to employ recreation counselors
at Chelsea I, because the clients’ level of function has im-
proved since the time they entered the facility 14 years ago.
Then Feynberg conceded that of the 14 clients at Chelsea I,
only 2 or 3 have been there for 14 years. Feynberg could not
say when the others came. At first Feynberg testified that the
clients take recreational trips unaccompanied by a staff mem-
ber. Then he changed his testimony to state that the weekend
counselors at Chelsea perform recreation functions as needed
and that they do in fact accompany the clients on trips.
Respondent operates three intermediate care facilities. At
the Barry location, there are 25 counselors, including 6
weekend counselors. The position of recreation counselor
was vacant at the time of the hearing. At the Schaffner loca-
tion, Respondent employs 20 counselors, including 4 week-
end counselors of whom 1 is a recreation counselor. At the
East Village facility, there are 25 counselors, or whom 5 are
weekend counselors. The position of recreation counselor
was vacant.
Feynberg testified that since December 1988, Respondent
has applied the revised December 1988 criteria to all job ap-
plicants for the position of recreation counselor. This asser-
tion is not supported by Respondent’s own personnel records,
further buttressing my finding that the revision of 1988 is a
sham.
The evidence shows that on March 4, 1989, Respondent
hired Jerzy Magda as a weekend recreation counselor at the
Barry location. His application lists his college education as
‘‘medical academy in Krakow, Poland.’’ His work history is
described as ‘‘maintenance.’’ The application was left blank
in the area that was reserved for ‘‘subjects of special study
or research work.’’ Feynberg testified that Magda was a
medical doctor specializing in physical therapy, with 6 years’
experience in physical therapy. Then Feynberg changed his
testimony to say that Magda had knowledge of physical ther-
apy and recreation and that he was a recreational therapist
working with the handicapped. I do not credit Feynberg.
Magda did not list any specialty on his application; he indi-
cated 6 years of attendance at a medical academy but no
work experience with the handicapped. Further, Feynberg
changed his description of Magda’s expertise to suit Re-
spondent’s position in this case. Clearly, Magda did not meet
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 There is no record evidence before me to permit me to make any distinc-
tion, for purposes of reinstating Mulvey, between the desirability of Chelsea
I or an intermediate care facility.
13 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 objec-
tions to them shall be deemed waived for all purposes.
Respondent’s purported revised criteria of 1 year’s experi-
ence in mental retardation.
Moreover, Respondent’s records reveal that it has hired
counselors who lack 1 year’s experience working with the
mentally retarded. Employee Robert Butcher was hired by
Feynberg himself on June 29, 1989, as a part-time overnight
counselor. Butcher listed no experience with the mentally re-
tarded on the papers submitted with his application. Then, in
October 1989, Feynberg approved his change in status to a
full-time overnight counselor. At that point, Butcher had
barely 4 months’ experience with the mentally retarded. On
May 1, 1989, Feynberg approved the hiring of James Collins
as a weekend counselor; Collins listed no experience with the
mentally retarded, but like Mulvey he had experience at a fa-
cility dealing with criminals. On June 16, 1989, Feynberg ap-
proved the hiring of Naomi Mack as a part-time weekend
counselor; she listed 3 months’ training in mental retardation
at a trade school but no other qualifying experience. The ex-
amples cited here do not exhaust other similar examples to
be found in Respondent’s personnel records.
D. Discussion and Conclusions
It is clear from the brief discussion of the evidence above,
that Respondent’s personnel practices with regard to quali-
fications for hiring are not uniform and do not adhere to Re-
spondent’s purported job descriptions and standards. Re-
spondent cannot be said to have shown that Mulvey is not
eligible for reinstatement. All that was shown was that Re-
spondent had tried to mislead the Regional Office and me
about its personnel requirements and practices. By contrast,
the General Counsel has shown that state and Federal regula-
tions do not bar Mulvey’s reinstatement. Further, given Re-
spondent’s clear desire to avoid reinstating Mulvey and its
willingness to go to any lengths to rid itself of him, I am
convinced that Respondent abolished the position of weekend
recreation counselor at Chelsea so that it could argue that
there was no position at Chelsea I to which Mulvey could
be reinstated. It is clear from Feynberg’s testimony that the
weekend counselors at Chelsea I perform recreation services,
and Trent testified that Respondent is obligated to furnish
those services. Feynberg’s asserted reasons for the abolition
of the recreation counselor’s position were retracted by him
on the witness stand, and he offered no other convincing ra-
tionale for eliminating Mulvey’s position.
To sum up, I find that Mulvey is eligible for reinstatement
as a recreation counselor at Chelsea I or at one of Respond-
ent’s intermediate care facilities.12 Mulvey is also eligible for
reinstatement as a weekend counselor at Chelsea I or at Re-
spondent’s intermediate care facilities. Because Respondent
discharged Mulvey from Chelsea I, and as I have found that
Respondent abolished the position of weekend recreation
counselor at Chelsea I in order to avoid reinstating Mulvey,
I find that a proper offer of reinstatement to Mulvey must
be reinstatement to his former position at Chelsea I. Re-
spondent has never made such a proper offer of reinstate-
ment.
Further, I find that Respondent has not shown that Mulvey
did not make a reasonably diligent search for interim em-
ployment after his discriminatory discharge. Mulvey testified
convincingly about his search for work and his occasional
successes. There is no requirement such as is urged by Re-
spondent that he keep a diary of all of his efforts. The Gen-
eral Counsel’s calculations of net backpay are reasonable and
Respondent has not shown by any competent proof that they
should be altered in anyway. Thus, Mulvey is entitled to net
backpay of $5747 plus interest pursuant to the amended
backpay calculations through the fourth quarter of 1989, and
his rights are reserved in futuro until Respondent makes a
proper offer of reinstatement.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Contemporary Guidance Services, Inc.,
New York, New York, it officers, agents, successors, and as-
signs, shall pay to Dolores Beckham the sum of $14,096 plus
interest and, at its option, shall either credit Beckham with
or pay to Beckham a sum equal to 19 days of vacation, 3
days of personal leave, and 12 days of sick leave calculated
on the basis of a 10-hour workday. Respondent Contem-
porary Guidance Services, Inc., New York, New York, its of-
ficers, agents, successors, and assigns, shall pay to Kevin
Mulvey the sum of $5747 plus interest; Respondent remains
responsible for complying with the Board’s reinstatement
Order, 291 NLRB 50 (1988); Mulvey’s rights are thus re-
served in future. Interest shall be computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), and accrued to the date of payment, minus the
tax withholdings required by Federal, state, and local laws.