EDP Medical Computer Systems

National Labor Relations Board - Board Decisions

Mar 14, 1991

302 N.L.R.B. 54 (N.L.R.B. 1991)

54
302 NLRB No. 7
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Supplementing 284 NLRB 1232 (1987), 284 NLRB 1286 (1987), and 293
NLRB 857 (1989).
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibity resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
The Respondent further excepted to the judge’s denial of its request for a
30-day postponement of the hearing in this case because of an emergency ap-
pendectomy that its co-counsel had recently undergone. We find no merit in
this exception in light of the assurances given to the judge by the Respond-
ent’s lead counsel at the beginning of the hearing that he had ‘‘no objection
to moving on with the case’’ and that he was ‘‘prepared to go forward today.’’
In identifying the discriminatees whose overtime hours were unlawfully
eliminated, the judge, at one point in his decision, mistakenly included Megaly
Lopez rather than Ivy Valentine. We also note that the correct backpay sums
which the Respondent shall pay to Haresh Manilal Shah and Mercedes
Herasme are $245.71 and $210, respectively, rather than the different amounts
specified by the judge in parts of his decision.
EDP Medical Computer Systems, Inc., Consumer
Subscription Center, Inc., and Consumers Sub-
scription Service, Inc. and Local 888, United
Food and Commercial Workers International
Union, AFL–CIO and Lawrence Wilson and
David Arguelles and Local 888, United Food
and Commercial Workers International Union,
AFL–CIO and Jorge Lee. Cases 29–CA–11726,
29–CA–11799, 29–CA–11827, 29–CA–11845,
29–CA–11909, 29–CA–11917, 29–CA–11996,
29–CA–12006, 29–CA–12077, 29–CA–12097,
29–CA–12099, and 29–CA–12151
March 14, 1991
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On August 3, 1990, Administrative Law Judge
James F. Morton issued the attached supplemental de-
cision on backpay.1 The Respondent filed exceptions
and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and brief and
has decided to affirm the judge’s rulings, findings,2
and conclusions as modified and to adopt the rec-
ommended Order as modified.
1. The Respondent excepts to the judge’s award of
backpay to David Burgos, contending that Burgos
failed to diligently seek interim work by unduly re-
stricting his job search to that of a ‘‘postage machine
operator.’’ We find merit in this exception.
At the time of his discharge, Burgos testified that he
had been employed for ‘‘close to a year’’ in the Re-
spondent’s office clerical department as a collections
agent for the New York City Environmental Control
Board (ECB). He testified in both the underlying un-
fair labor practice proceeding and the instant proceed-
ing that his duties in that capacity consisted of working
on the ‘‘accounts’’ of people who owed fines to ECB.
He explained that he would contact people, usually by
phone, ‘‘to tell them how much they owed, what the
violations are for, [and] could we establish some kind
of settlement.’’ He would then ‘‘write out a little card
stating what time I called them, what date. I put it in
my own little folder.’’ Those he did not reach by
phone were sent form letters with details of the above
information.
After his discharge, Burgos did not look for work as
a collections agent or for any related office clerical
work. Instead, he sought employment only as a postage
machine operator, a position he once held when the
Respondent’s business consisted of mailing out sub-
scriptions for magazines. He testified that he saw ‘‘a
couple of ads’’ for this type of work and obtained a
job as a casual employee for the U.S. Postal Service
for approximately 1 month during the Christmas sea-
son.
It is well settled that to be entitled to backpay a
discriminatee must make reasonable efforts to secure
interim employment which is substantially equivalent
to the position from which he was discharged. South-
ern Silk Mills, 116 NLRB 769, 773 (1956), enf. denied
242 F.2d 697 (6th Cir. 1957); NLRB v. Seligman &
Associates, 808 F.2d 1155, 1166 (6th Cir. 1986), cert.
denied 484 U.S. 1026 (1988). In determining the rea-
sonableness of these efforts, the Board takes into ac-
count factors such as the discriminatee’s skills and ex-
perience. Mastro Plastics Corp., 136 NLRB 1342,
1359 (1962).
As noted, Burgos did not look for a job as a collec-
tions agent or for a substantially equivalent office cler-
ical position. His stated reason for failing to look for
such jobs was ‘‘because I didn’t have enough experi-
ence in that field.’’ Burgos’ testimony in the unfair
labor practice proceeding, however, indicates other-
wise. There he testified that he held his collection job
for almost a year before his discharge and that the
‘‘learning stage’’ of the job ended sometime before he
returned from bereavement leave on March 4, 1985,
which was approximately 4 months after he began the
job. By September of that year, he testified that his su-
pervisor was checking his work only ‘‘once in a
while.’’ It appears, therefore, that contrary to his self-
evaluation, Burgos possessed the skills and, during his
year-long tenure, acquired the requisite experience to
seek employment as a collections agent or a similar of-
fice clerical employee.
We conclude, therefore, under the principles stated
above, that by confining his employment search to
postage machine operator jobs, Burgos failed to make
an adequate search for employment. See Knickerbocker
55EDP MEDICAL COMPUTER SYSTEMS
3 In light of this finding, we need not pass on the Respondent’s alternative
argument that the loss of the ECB contract resulted in the elimination of
Burgos’ job and his entitlement to backpay.
4 Our finding regarding the backpay periods for Smith, Valentine, and
Beradino does not affect the backpay amounts awarded by the judge because
the General Counsel did not seek backpay for these discriminatees beyond
these backpay periods.
In its brief in support of its exceptions, the Respondent contends for the first
time that Beradino’s backpay should be reduced for the 106 days that she was
allegedly absent from work during the backpay period and for the days she
attended the unfair labor practice hearing. This contention is rejected as un-
timely raised. Further, the record does not indicate which days, if any,
Beradino was absent from work, nor does it indicate whether under the Re-
spondent’s policies, Beradino would have been paid for any days absent from
work. Under these circumstances, the Respondent has failed to meet its burden
to show that Beradino’s backpay should be reduced for any absences.
Plastic Co., 132 NLRB 1209, 1219 (1961) (Anthony
Pavani). Accordingly, we deny his claim for backpay.3
2. We find merit in the Respondent’s exception to
the judge’s finding that its obligation to make whole
discriminatees Sarahnie Smith, Lynda Beradino, and
Ivy Valentine for lost overtime ‘‘may well be a con-
tinuing one.’’ The judge based this finding on the ab-
sence of any evidence that the Respondent has ceased
its unlawful practice of refusing to assign overtime to
the discriminatees. The backpay specification, how-
ever, states that Smith declined a valid offer of rein-
statement on November 30, 1986. Accordingly, the Re-
spondent’s backpay liability to Smith is tolled as of
that date. Valentine and Beradino both testified that
they left the Respondent for new employment in July
1986 and July 1989, respectively. The Respondent’s
backpay obligation to Valentine and Beradino is, there-
fore, cut off on those respective dates.4
3. The Respondent raises for the first time in its
brief in support of its exceptions that discriminatee
Larry Wilson is not entitled to backpay because his job
as a messenger to and from ECB was eliminated when
the Respondent lost ECB as a client. We reject this
contention.
In its answer the Respondent denied the net backpay
allegation regarding Wilson ‘‘for reasons addressed in
the affirmative defenses.’’ The loss of the ECB con-
tract, however, was not one of the affirmative defenses
specified by the Respondent, nor did the Respondent
seek to amend its answer or raise this defense during
the backpay hearing. Accordingly, the Respondent is
precluded from asserting this defense at this stage of
the proceeding. Southland Mfg. Corp., 193 NLRB
1036 fn. 3 (1971).
Further, even if timely raised, we find that the Re-
spondent has failed to meet its burden of proving this
defense. As noted in the underlying unfair labor prac-
tice proceeding, Wilson had been employed in the Re-
spondent’s production department where he performed
both messenger and general maintenance work. 284
NLRB at 1257. One month prior to his unlawful dis-
charge, his messenger duties were unlawfully elimi-
nated and thereafter his work assignments consisted
solely of maintenance work. 284 NLRB at 1279. Wil-
son testified in the instant proceeding that on his rein-
statement he resumed some of his messenger work, al-
though not for ECB, which he understood was no
longer a client of the Respondent. It is clear, therefore,
that despite the loss of ECB, there was a job as a
messenger/maintenance worker to which Wilson could
and did return. Barberton Plastics Products, 146
NLRB 393, 394 (1964), enf. denied on other grounds
354 F.2d 66 (6th Cir. 1965).
4. We find no merit in the Respondent’s contention
that the refusal by Esther Shaw to honor its subpoena
to produce her letter of termination from Computer
Horizons, her interim employer, warrants the inference
that her discharge constituted a willful loss of earnings
which disqualifies her from receipt of backpay for the
period following her September 1989 discharge. The
Respondent, whose burden it is to prove willful loss of
earnings, does not meet that burden by relying solely
on business records, such as in this case, a letter of ter-
mination from the interim employer. Mid-America Ma-
chinery Co., 258 NLRB 316, 319 (1981). Accord:
P*I*E Nationwide, 297 NLRB 454 (1989), enfd. in
relevant part 923 F.2d 506 (7th Cir. 1991). Further, al-
though Shaw, acting on the General Counsel’s instruc-
tions that the Respondent’s subpoena was invalid, did
not produce the requested letter of termination, in her
testimony during the first day of the hearing she identi-
fied the individuals in the Parsippany, New Jersey of-
fice of Computer Horizons who effectuated her dis-
charge and who were responsible for her termination
letter. There is no evidence that the Respondent made
any attempt before the hearing resumed 2 weeks later
to contact those individuals or to produce them as wit-
nesses to testify about the particulars surrounding
Shaw’s discharge. We conclude, therefore, as in Mid-
America Machinery, that the Respondent has not sus-
tained its burden of proof that Shaw willfully failed to
maintain interim employment.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, EDP Medical Computer
Systems, Inc., Consumers Subscription Center, Inc.,
and Consumers Subscriptions Service, Inc., their offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order, except that David Burgos
shall not receive any backpay and the backpay amount
to be paid Mercedes Herasme is $210.
April M. Wexler, Esq., for the General Counsel.
Martin Gringer, Esq. and Claire E. Boland, Esq. (Kaufman,
Frank, Naness, Schneider & Rosensweig, P.C.), of Mel-
ville, New York, for the Respondent.
Larry Cary, Esq. (Vladeck, Waldman, Elias & Engelhard,
P.C.), of New York, New York, for the Charging Parties.
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See the Board decisions reported at 284 NLRB 1232 (1987), and 284
NLRB 1286 (1987), both enforced by the United States Court of Appeals for
the Second Circuit.
2 293 NLRB 857 (1989).
3 See Big Three Industrial Gas & Equipment Co., 263 NLRB 1189 (1982),
and cases discussed at 1197.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The Gen-
eral Counsel issued a backpay specification in these consoli-
dated cases seeking monetary awards against Respondent for
the discriminatees.1
Respondent’s amended answer thereto was stricken in part
in the Board’s Supplemental Decision and Order.2
At the hearing, the General Counsel amended the speci-
fication to bring it up-to-date as of then. Those amendments
related to the General Counsel’s contention that backpay
continues to accumulate for certain of the discriminatees and
to further concessions by the General Counsel which reduced
some backpay claims.
I heard this case in Brooklyn, New York, on February 20
and March 5, 1990. On the entire record, including my ob-
servation of the demeanor of the witnesses, and after due
consideration of the briefs filed by the General Counsel and
Respondent, I make the following
FINDINGS OF FACT
The backpay claims are divided into three categories—
those involving discharged employees, those involving em-
ployees whose regular work hours were reduced, and those
involving employees whose overtime work assignments were
discontinued.
The formulas set out in the specification for determining
the gross backpay amounts due the discriminatees are admit-
ted to be appropriate. Respondent, however, asserted as an
affirmative defense that there was no overtime work avail-
able to be assigned to certain of the discriminatees. The
Board, in its Supplemental Decision and Order referred to
above, had denied the General Counsel’s motion to strike
that defense based on Respondent’s claim that ‘‘worsened
business conditions’’ after April 12, 1985, mitigated its li-
ability as to the elimination of overtime. This ruling was sub-
ject to a provision, discussed here.
Respondent also asserted that the discriminatees failed to
report all interim earnings and failed to diligently seek or ac-
cept employment during their respective backpay periods.
The pleadings also place in issue whether discriminatee Es-
ther Shaw received a valid reinstatement offer.
The General Counsel placed in evidence payroll records of
Respondent to support the pay rates and other data set out
in the backpay specification. The General Counsel also ar-
ranged to have the discriminatees present at the hearing in
order that they could be questioned by Respondent as to their
interim earnings, their efforts to seek work, and as to other
relevant matters. Respondent examined each of these
discriminatees.
The principles applicable to the discriminatees’ efforts to
secure work during their respective backpay periods are well
settled.3 Respondent has the burden of proving that a
discriminatee forfeited backpay by establishing a clearly un-
justifiable refusal on the part of the discriminatee to take de-
sirable new employment. It is not enough for Respondent to
show that a discriminatee had low interim earnings; Re-
spondent instead must affirmatively demonstrate that the
discriminatee neglected to make reasonable efforts to find in-
terim work. In determining the reasonableness of a
discriminatee’s efforts, his skills, qualifications and age are
factors to be considered, along with area labor conditions.
The test is whether the record as a whole establishes whether
Respondent met its burden that the discriminatee failed to
diligently seek interim employment. Any uncertainty in the
evidence is to be resolved against Respondent as the wrong-
doer.
Further, a discriminatee need not instantly seek new em-
ployment, nor seek employment in each and every quarter of
the backpay specification—rather, the entire backpay period
must be scrutinized; nor are claimants to be penalized for
poor recordkeeping uncertainty as to memory, or even exag-
geration, nor does a discriminatee need to have spent all of
every workday seeking employment. December 12, Inc., 282
NLRB 475, 477 (1986), and cases cited therein. Also, the
fact that a backpay claimant may be unable to recall the
names of employers contacted during the backpay period, oc-
curring years previously, would not be enough to meet the
burden of proving that a claimant did not reasonably search
for work. Arthur Briggs, Inc., 281 NLRB 789, 794 (1986),
and cases cited therein. Nor does a claimant forfeit backpay
simply because he did not register with a state employment
agency as that is but one of the factors to be weighed. Blue
Hills Cemetery, 240 NLRB 735, 736 (1979). An examination
of all relevant factors is required. Cornwell Co., 171 NLRB
342 (1968). There have been, however, occasions where one
factor has been cited as determinative where no
counterbalancing factors have been established. Thus, the
Board held that a claimant had incurred a willful loss of
earnings as he had filled out only one job application during
four consecutive calendar quarters of the backpay period and
as no offsetting factors were shown. Rainbow Coaches, 280
NLRB 166 (1986). Consequently, that claimant was awarded
no backpay for those four quarters. See also Flite Chief, Inc.,
246 NLRB 407, 410–411 (1979), where a discriminatee was
found not to have made a diligent search for employment
where she had sought work only once a month in each of
the 49 months of her backpay period. On the other hand,
where a claimant applied to five prospective employers over
a 4-month timespan, referred to newspaper advertisements
for job listings and asked friends for job leads, the Board
held that the employer in that case had failed to establish the
claimant did not make a reasonable search for work. See
Vanguard Oil, 246 NLRB 130, 133 (1979).
The foregoing principles have been utilized in evaluating
Respondent’s contention that the discriminatees had failed to
diligently seek interim employment. Other principles, cited
below, govern the other issues in this case.
The first of the discriminatees to be considered are those
who had been discriminatorily discharged.
The discharged employees:
Esther Shaw: Shaw is a computer programmer who was
unlawfully discharged by Respondent on March 1, 1985. Re-
spondent asserts that her backpay period ended on August
31, 1987, when it offered her reinstatement. Respondent also
contends that she had not diligently sought interim employ-
ment.
57EDP MEDICAL COMPUTER SYSTEMS
In the underlying case, the Board found that Shaw brought
the Union into Respondent’s facility and that she was sum-
marily discharged by Respondent’s president, Bernard Gelb,
for having done so.
While she was in Respondent’s employ at its facility in
New York City, Shaw had been seeking work in other areas
of the United States. Two weeks after her unlawful dis-
charge, she obtained interim employment as a computer pro-
grammer in Denver, Colorado. Since then and until the third
quarter of the calendar year 1989, she worked as a computer
programmer in at least five other States. It was necessary for
her to relocate every 6 months in order to keep that position
and to support her two children. On September 1, 1989, she
lost her job because she did not possess the particular skills
required for it. She filed for unemployment insurance bene-
fits and received them as her termination was not because
she acted ‘‘in willful disregard of [the interim] employer’s
interest.’’ Since that layoff, she has been interviewed for pro-
gramming positions by several prospective employers. She
testified credibly that she had an interview scheduled with a
company for the day following the day she testified and that
she anticipated that she would then be given a starting date
for employment as a programmer with that company.
There is simply no probative evidence before me to find
that Respondent proved she did not make a good-faith effort
to secure interim employment.
Respondent separately contends that her backpay period
ended on August 31, 1987, when it made her an offer of re-
instatement. While the General Counsel concedes that the
offer was made, the General Counsel further contends that
she did not reject it but that, instead, Respondent’s failure to
respond to her inquiries thereto operated to continue the
backpay period until such time as Respondent tenders a valid
offer.
On August 31, 1987, Shaw was assigned by her interim
employer to a location in Helena, Montana. Respondent’s at-
torneys wrote her on that date ‘‘to offer [her] unconditional
reinstatement to [her] job . . . .’’ She was instructed to con-
tact Bernard Gelb by mail or phone by September 10, 1987,
‘‘so that [Respondent] can plan for [her] return to work.’’
Shaw instead wrote Respondent’s attorneys. She informed
them that Gelb’s ‘‘explosive termination of [her] employ-
ment caused numerous catastrophic traumas to [her family].’’
The record in the underlying case reveals that Gelb had dis-
charged her, telling her that she had resigned when she clear-
ly had not and that, when she told him in effect that she had
not, he repeated seven or eight times, ‘‘You don’t know
me.’’ In Shaw’s letter to Respondent’s counsel, she asked
that the ‘‘terms of [her] unconditional reinstatement to be
precisely defined.’’ In her letter she also referred to a news-
paper article about Bernard Gelb’s having been indicted by
a grand jury as a factor in her feelings in dealing with him.
She received no reply to her letter. Respondent takes the po-
sition that her failure to call Gelb himself ended her backpay
period and its obligation to offer her reinstatement.
At the hearing, Shaw testified that, when she got the Au-
gust 31 letter from Respondent’s counsel she was on an as-
signment in Montana which was due to end in April 1988
and that she was reluctant to ‘‘leave a client in the lurch with
a half-completed project’’ especially as her interim employer
had provided her with considerable assistance in relocating
her.
The Board, in L. A. Water Treatment, 263 NLRB 244,
246 (1982), observed that ‘‘an employer’s offer of reinstate-
ment must be ‘specific, unequivocal, and unconditional’ in
order to toll the backpay period.’’ It is the employer who
carries the burden of demonstrating a good-faith effort to
communicate the offer to the employees. An employer is re-
lieved of his duty to reinstate only when a proper offer is
made and unequivocally rejected by the employee. The
Board has also required that an offer of reinstatement must
allow the employee a reasonable time in which to make ar-
rangements to begin work. This requirement takes on a spe-
cial significance where, as in the instant case, the employee
has obtained other employment at the time the offer is made.
In such circumstances, the Board requires that the reinstate-
ment offer afford the employee an opportunity to make a
considered choice whether to retain his present employment
or to return to his former job. The offer must also allow the
employee to give reasonable notice to his current employer
should he choose the latter course.
Respondent’s failure to reply to Shaw’s inquiries and its
bland reliance on its own offer compel a finding that it had
no intention of affording Shaw a considered choice, as re-
quired. The letter its counsel wrote noted that Respondent
needed her timely response so that it could plan for her re-
turn. While it sought an accommodation from her respecting
its own plans, it had no interest in accommodating her con-
cerns. These concerns were clearly valid ones. In view of
Respondent’s unwillingness to address them, I find that the
August 31 letter was insufficient to toll Shaw’s backpay enti-
tlement or Respondent’s continuing obligation to offer her
reinstatement. See Pepsi-Cola Bottling Co. of Mason City,
Iowa, 251 NLRB 187, 192 (1980).
I therefore find that Shaw’s backpay period continues to
run and that she is entitled to the interim award sought for
her in the amended specification, with interest thereon until
paid.
Joy Scott: As set out in the underlying decision, Scott, a
data entry operator, was unlawfully discharged while she was
on a leave-of-absence in early 1985 in order to care for her
then terminally ill mother in England. She returned from
England on April 2, 1985, and was refused reinstatement
from her leave.
On June 1, 1985, she again went to England to care for
her mother. No backpay is sought for her from then and until
August 3, 1985, when she returned. She was offered rein-
statement on August 18, 1985. Backpay is sought for her for
the periods April 2 to June 1 and August 3 to 18, 1985.
Scott testified credibly that she had applied to employment
agencies and answered job advertisements for data entry op-
erators in New York City newspapers. Respondent has not
shown that Scott did not make a good-faith search for em-
ployment during her backpay periods as set out above. See
Teamsters Local 164, 274 NLRB 909, 913 (1985). Thus,
Scott is to be made whole by Respondent for her unlawful
discharge in the sum claimed for her in the amended speci-
fication, with interest.
Sarahnie Smith: Backpay is sought for Smith from the
date of her unlawful discharge, April 4, 1985, to the date Re-
spondent offered her reinstatement, November 30, 1986. Re-
spondent contends that, in that interval, she did not diligently
seek work.
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Prior to her unlawful discharge, Smith had applied for a
job with her present employer. Two weeks after her unlawful
discharge, she began working for that employer and has
worked steadily there since then. Respondent had not proved
its contention. Smith is to be awarded the sum sought for her
unlawful discharge, plus interest.
Megaly Lopez: Backpay is sought for her from her unlaw-
ful discharge on June 10, 1985, and until July 22, 1985, the
effective date of Respondent’s offer of reinstatement—a 6-
week period. Respondent’s answer avers that he failed in that
time, to diligently seek employment.
Lopez had, prior to her discharge, taken a test to become
a police officer. About 2 weeks after her discharge, she
learned that she passed the test and that she would begin
work with the police department on July 22.
The evidence is insufficient to establish that Lopez did not
diligently seek work in the 6-week backpay interval. The
Board has considered an analogous contention and rejected
it. Smith Mfg. Co., 277 NLRB 680, 681 (1985). I therefore
find that she is to be awarded the amount, with interest,
claimed for her as a result of her unlawful discharge.
Lawrence Wilson: Wilson had been discriminatorily dis-
charged on July 8, 1985, and was reinstated by Respondent
on September 10, 1987, to his job as a messenger and gen-
eral helper.
No backpay is sought for the weeks from February 6
through May 16, 1986, because he was in military service
then. Nor is a backpay award sought for the period between
July 13, 1986, through July 24, 1987, because he had been
awarded backpay therefor in a separate proceeding based on
a contempt citation.
Wilson testified credibly that he held a number of odd jobs
during his backpay period. Earnings therefrom have been
credited to Respondent towards any award sought on Wil-
son’s behalf. He had interim earnings while working at a re-
tail establishment during a Christmas season and he worked
1 day for United Parcel Service. He testified that he did not
register with the New York State Division of Unemployment
Compensation because of the ‘‘red tape’’ involved.
The underlying decision in this case reveals that Smith’s
work habits had not been particularly exemplary. As the
cases noted above indicate, a discriminatee’s training, back-
ground, qualifications, and overall abilities, or lack thereof,
are proper matters to be taken into account in deciding
whether it has been shown that the discriminatee did not
make a good-faith effort to find interim employment. In that
context, I find that Respondent has not proved that Wilson
failed to seek work in good faith. I further find that he is
thus entitled to the amount claimed for him, with interest
thereon, to remedy his unlawful discharge. Respondent con-
tends that no backpay is due him for days he spent testifying
against Respondent, citing Iowa Beef Processors, 255 NLRB
1328 (1981). Respondent however, failed to show that it oth-
erwise would not have reimbursed him for the days he was
not at work when testifying.
David Burgos: Respondent had discharged Burgos because
of his union activities and because he testified at a Board
hearing. His backpay period ran from October 10, 1985, to
June 13, 1986. He received a backpay award, in a related
contempt proceeding, for the period after June 13, 1986, and
no award for that subsequent time is sought now.
Burgos testified credibly before me that he had registered
for job referrals with the New York State Department of
Labor, Unemployment Insurance Division, that he referred to
job advertisements in newspapers, and that he had worked as
a casual employee, during his backpay period, with the
United States Postal Service.
Respondent has not shown that Burgos failed to seek in-
terim employment and I thus find that he should receive the
award claimed for him in the specification, with interest
thereon.
Jorge Lee: Lee was discriminatorily discharged on No-
vember 18, 1985. His backpay period ended on August 31,
1987, on receipt of Respondent’s valid offer of reinstatement.
While Respondent contends that Lee failed to seek equiva-
lent employment during the period referred to above, the evi-
dence is that he has worked virtually throughout the whole
of that period and that, in a majority of the calendar quarters,
his interim earnings exceeded the sums he would have
earned had he been in Respondent’s employ during those
quarters.
There has been no showing by Respondent that Burgos
had failed to diligently seek interim employment.
Respondent has also contended that the job Burgos held
when he was discharged was later terminated for economic
reasons. The evidence it proffered thereon consisted of
conclusary hearsay, and uncorroborated testimony given by a
witness whose testimony in the original hearing had been en-
tirely discredited. I find no merit to Respondent’s contention.
Burgos is to receive the sum, with interest, as sought for
him to make him whole for his unlawful discharge.
The second group of employees for whom backpay is
sought are:
Employees Whose Regular Hours had Been Reduced
In the underlying case, the Board found that certain em-
ployees had their regular work hours unlawfully reduced for
the weeks ending March 15, 22, and 29, 1985. Respondent’s
answer, seeking to relitigate its claim of economic hardship
was stricken by the Board in its Supplemental Decision and
Order, discussed above. The awards as sought to remedy this
violation are to be granted.
The names of the employees to be so made whole, with
interest, are listed below and, alongside, the respective
amounts of the awards:
Marline Nosel $308.85
Anna Goodall 198.00
Linda Jackson 154.28
Lucila Maisonave 290.00
Haresh Manilal Shah 245.91
Mercedes Herasme 210.00
Sarahnie Smith 405.00
Megaly Lopez 466.57
Ivy Valentine 617.45
Lynda Berardino 447.00
The third group for whom backpay is sought are:
Employees Whose Overtime Hours Were Curtailed
The Board had found that Respondent unlawfully elimi-
nated Linda Berardino’s overtime hours on March 1, 1985,
those of Sarahnie Smith also as March 1, 1985, and those
59EDP MEDICAL COMPUTER SYSTEMS
4 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.
5 In accordance with New Horizons for the Retarded, 283 NLRB 1173
(1987), January 1, 1987, shall be computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest on amounts accrued prior to January 1, 1987 (the effective
date of the 1986 amendment to 26 U.S.C. § 6621) shall be computed in ac-
cordance with Florida Steel Corp., 231 NLRB 651 (1977).
Backpay will continue to accrue for several violations, still unremedied, as
mentioned above.
of Megaly Lopez on March 15, 1985. The Board, in its Sup-
plemental Decision and Order, discussed above, denied the
General Counsel’s motion to strike Respondent’s affirmative
defense thereto—that ‘‘worsened business conditions’’ since
April 12, 1985, eliminated overtime assignments. The
Board’s Order, however, allowed Respondent to offer evi-
dence in support of the defense ‘‘provided that such evidence
was not and could not have been raised in the underlying
proceeding.’’
Administrative Law Judge Fish noted in the underlying
case, 284 NLRB at 1241–1242 that, in May and June 1985,
Respondent had increased the overtime hours of other em-
ployees, including a programmer. Judge Fish noted too that
Respondent’s efforts respecting the reduction in overtime
‘‘was, to say the least, inconsistent.’’ He had reviewed the
testimony of Judith Gelb, Respondent’s secretary-treasurer
who is also its personnel director. She had testified before
Judge Fish that a decision was made in February 1985 to
eliminate overtime because of reported financial difficulties.
The officials she named as having so told her testified before
Judge Fish but made no reference to that matter. In fact, its
vice president of operations, Matthew Saffern, testified at the
original hearing that, so far as he was aware, no decision was
made to either reduce or eliminate overtime. He had attrib-
uted the elimination of overtime to a decision to eliminate
a process of verification and, even there, he could not recall
when that took place. Judge Fish rejected the evidence Re-
spondent had proffered.
At the hearing before me, Judith Gelb acknowledged that
she knows nothing about data processing. She testified also
that Saffern told her that one-third of the work in his section
had been lost. No documentation was offered to support that
testimony nor did Saffern testify to corroborate it or to ex-
pand on it. Further, on reviewing her own records, Gelb ac-
knowledged that Respondent now employs more data entry
employees than it did in 1985. Lastly, Berardino testified for
the General Counsel that, as late as 1989, Respondent has
‘‘sent out’’ computer work.
Respondent submitted no probative evidence to support its
affirmative defense. If anything, Gelb’s testimony before me
is but a version of the testimony she gave before Judge Fish
and is thereby separately found to be without merit as it is
encompassed within the proviso to the Board’s order relating
to this affirmative defense as quoted above.
I therefore find that the three discriminatees affected by
the unlawful reduction in overtime hours (Berardino, Smith,
and Valentine) are to be made whole therefor, with interest,
as set out in the amended specification. There is no evidence
that Respondent has ceased its unlawful practice and its obli-
gation to make whole discriminatees therefor may well be a
continuing one.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, EDP Medical Computer Systems, Inc.,
Consumers Subscription Center, Inc., and Consumers Sub-
scription Service, Inc., their officers, agents, successors, and
assigns, shall pay to the employees named below the sums,
respectively listed alongside each name, with interest.5
Esther Shaw $25,027.44
Joy Scott 2,335.46
Sarahnie Smith 9,305.84
Megaly Lopez 1,780.79
Lawrence Wilson 6,980.45
David Burgos 6,874.00
Jorge Lee 4,766.13
Ivy Valentine 6,667.76
Lynda Berardino 72,267.00
Marilyn Nosel 308.85
Anna Goodall 198.00
Linda Jackson 154.28
Lucila Maisonave 290.00
Haresh Manilal Shah 245.71
Mercedes Herasme 198.00