G&T Terminal Packaging Co., Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 19, 2006

02-CA-026738 (N.L.R.B. Oct. 19, 2006)

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Bronx, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

G & T TERMINAL PACKAGING, INC.
AND MR. SPROUT, INC. TRAY WRAP, INC.
AND CHAIN TRUCKING, INC., A SINGLE
EMPLOYER AND G & T TERMINAL
PACKAGING CO., INC. AND ITS ALTER
EGO SLOW PACK, INC.

and Case Nos. 2-CA-26738
2-CA-27745
PAPER PRODUCTS AND MISCELLANEOUS 2-CA-28364
DRIVERS, WAREHOUSEMEN, HELPERS AND
MESSENGERS, LOCAL 27, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL-CIO,
now known as PRIVATE SANITATION UNION
LOCAL 813, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, AFFILIATED WITH THE AFL-CIO

and Case No. 2-CA-28360

DENNY LOPEZ, An Individual

Margit Reiner, Esq. and Joane Wong, Esq.,
Counsel for the General Counsel
Linda Strumpf, Esq. and Sarah R.
Smetana, Esq., Counsel for the Respondent
George A. Kirschenbaum, Esq., and
Edmond v. Pendleton, Esq., Counsel for the
Charging Parties

SUPPLEMENTAL DECISION

I. Statement of the Case

RAYMOND P. GREEN, Administrative Law Judge. A supplemental hearing in these
cases was held on various dates in August 2005 and in April May and June 2006.

Case No. 2-CA-26738 involves a Backpay Specification after the Board issued an
unpublished Decision and Order on July 15, 1994. In that case the Respondent was ordered to
make whole employees by making contributions, with interest, to the Welfare Trust Fund and
the Pension Fund as required under the terms of the Employer’s collective-bargaining
agreement with the Union effective from November 1, 1989 through October 31, 1992. The
Court of Appeals for the Second Circuit enforced the Board’s Order on September 20, 1994. In
this regard, the Respondent had ceased making payments to those funds on January 1, 1993.

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The Backpay Specification also asserted that the number of employee to be made whole
on account of the Respondent’s failure to make fund payments should not only include the
particular employees who were actually employed in the bargaining unit during the periods of
time that such payments were not made, but also a set of 22 additional employees who were
illegally discharged on April 17 and 19, 1995. 1

Finally the Backpay Specification in 2-CA-26738 alleged that the backpay and interest
continued to run until the Respondent complied with the underlying Board and Court Order.

The other cases, 2-CA-27745, 2-CA-28364 and 2-CA-28360, involved new and separate
allegations, which can be summarized as follows:

1. That G & T Terminal Packaging Co., Inc., along with a group of related companies,
(Mr. Sprout, Inc., Chain Trucking Inc., Tray Wrap Inc. and Slow Pack Inc.), constituted a single
employer.

2. That despite reaching a full and complete agreement on June 10, 2004, the
Respondent, since April 14, 1995, refused to execute the agreement.

3. That on April 17, 1995, the Respondent discharged a group of employees because
they engaged in a concerted protest regarding the Respondent’s refusal to execute the
aforesaid agreement.

4. That on April 17, 1995, the Respondents, unilaterally and without bargaining with the
Union, and for discriminatory reasons, transferred its potato-packaging machine to another
company.

5. That on April 19, 1995, the Respondent, for discriminatory reasons, refused to
reinstate all of the employees that it had discharged on April 17, 1995.

6. That in May 1995, the Respondent, in order to discourage union membership,
granted raises to certain of its employees.

I heard those cases on various days in December 1995 through March 1996 and issued
a Decision on September 9, 1995.

On August 20, 1998, the Board issued its Decision and Order in those cases at 326
NLRB 114. Basically, the Board affirmed most of my earlier conclusions including my
recommendation that (a) the Respondent, upon the Union’s request, execute the agreement
reached on June 10, 1994; (b) that the Respondent reinstate the employees who were illegally
discharged and not thereafter reinstated; and (c) that the Respondent, which had, on April 17,
1995, unilaterally transferred the potato packaging machine to a company called M & M
because of anti-union reasons,2 be ordered to restore that operation.3

1 The parties agreed on the amounts owing to Estafania Acevedo, Romana Escaboza and Francisco
Rodriguez. I will therefore not discuss their claims.
2 In my original Decision and based on the testimony of G & T’s owner, I concluded that G & T had at
a minimum continued to make, after the discharges on April 17, 1995, 40 to 60 percent of its previous
potato sales through M & M after the potato-packaging machine was dismantled and sent to M & M. I
also found, based on Spinale’s testimony, which otherwise was evasive and untrustworthy, that at some
point in May 1995, he resumed some potato packaging by hand. The Court noted, however, that at oral
Continued

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In addition to adopting the backpay award in the old case, (2-CA-26738), the Board
adopted the make whole remedy for the violations found in the other and newer unfair labor
practice cases. The remedy for these new cases included the obligation to make the
employees whole, with interest, for the difference between what they actually earned and what
they should have earned by virtue of the new contract, including payments to the funds set out
in the new collective bargaining agreement that ran for a fixed term retroactive from October 1,
1992 to September 30, 1995, with automatic renewals from year to year thereafter in the
absence of a reopening.

On March 14, 2001, the Second Circuit Court of Appeals issued a Decision in NLRB v.
G&T Terminal Packaging Co., Inc., 246 F.3d 103 that partially granted enforcement of the
Board’s Decision. However, the Court made the following statements:

1) We DENY enforcement insofar as the Order requires the Company to
reinstate its potato-packaging operation and to rehire the 22 employees who
used to operate the potato-packaging machine, and REMAND to the Board
with instructions to arrive at a remedy that will effectuate the general
reparative policies of the Act by making the employees whole without
imposing an undue burden on the employer;

2) We DENY enforcement insofar as the Order requires the Company to pay
specific amounts to the pension and welfare fund, and REMAND to the Board
for re-calculation of these amounts consistent with this opinion; and

3) We DENY enforcement insofar as the Order requires the Company to pay
18 percent interest on the amounts owed to the pension and welfare funds
and REMAND to the Board for further development of the record on this
matter.

Before reaching these conclusions, the Court made a number of subordinate findings,
which I think are relevant to the remand.

The Court noted that although G & T’s owner, Anthony Spinale, claimed that a group of
employee, (22 in number), were discharged on April 19, 1995 for the legitimate reason that the
Company no longer had any potato-packaging work for them to do, the ALJ, (me), had ample
reason to discredit his testimony and to conclude that Spinale’s decision to dismantle the
machine and send the parts to M & M on April 17, 1995, was motivated by the indication that the
Union was serious about pressing him to sign a contract. As noted by the Court, “the record
supports the ALJ’s conclusion that the Company failed to demonstrate by a preponderance of
the evidence, as it must, “that it would have done what it did, when it did, in the absence of the
[employees’] union activities.” “In short, the evidence in the record adequately supports the
ALJ’s finding that a group of employees was discharged on April 17, 1995 and not rehired as a
result of its protected activities.”

_________________________
argument, Counsel for the Respondent insisted that the Company had resumed only about five percent of
its pre-April 17, 1995 potato packaging operation. Such an assertion was never made at the original
hearing and the testimonial admissions by the Respondent’s owner were to the contrary.
3 Although finding that the Respondent, on April 19, reinstated 30 of the protesting workers, the
Board and the reviewing Court concluded that the Respondent did so without regard to seniority.

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The Court concluded that the Respondent also violated the Act by not recalling the
employees discharged on April 19, 1995, in order of seniority. It rejected the Respondent’s
argument that it had no obligation to rehire in order of seniority because the parties’ inability to
reach an agreement meant that there was no seniority clause in effect. Having concluded that
the parties had reached a contract, which the Respondent unlawfully refused to execute, the
Court stated: “[W]e do not disturb the conclusion that the company violated the Act by rehiring
employees without regard to seniority.” 4

Notwithstanding the conclusions that the 22 employees were illegally discharged and
illegally passed over for reinstatement because of a breach of the seniority provisions of the
contract, the Court refused to enforce that portion of the Board’s Order that required the
Company to restore the potato packaging operation and to rehire the 22 illegally fired
employees. In so doing, the Court stated:

In short the Company has demonstrated by a preponderance of the evidence
that to purchase a new machine and reinstate the potato-packaging operation
would e unduly burdensome; such a machine would impose a financial burden
on G&T so large as to render the firm virtually unprofitable, and would simply not
fit in the Company’s existing facility. On these combination facts, we deny the
Board’s petition for enforcement of its order insofar as it requires the Company to
reinstate the potato-packaging operation. For the same reasons, we decline to
enforce the order insofar as it requires the Company to rehire the 22 employees
who worked in the potato-packaging operation. Since we have concluded that
reinstatement of the potato-packaging operation would be unduly burdensome to
the Company we cannot expect it to rehire the 22 affected employees to perform
the operation. Accordingly, we remand the cause to the Board for consideration
of an alternative means of providing a remedy that will effectuate the “general
reparative policies of the Act… by “making the employees whole for losses
suffered on account of the unfair labor practice”… without proving “unduly
burdensome to the employer… The instant case presents an analogous
situation, because the record supports both the finding that the employees’
protected activities motivated the dismantling of the potato-packaging machine
on April 17, 1995, and the conclusion that reinstatement of the operation would
have been unduly burdensome, if not immediately after the dismantlement, then
soon thereafter – and, in any event, long before the hearing before the ALJ….
Counsel for the company indicated at oral argument that the affected employees
never received any back pay, and conceded that some amount of back pay could
provide a reasonable substitute for the unduly burdensome remedy of buying a
new potato-packaging machine and reinstating the entire operation…. We agree.
However, we also recognize that the Act “vest[s] in the Board the primary
responsibility and broad discretion to devise remedies that effectuate the policies
of the Act”… Accordingly, we remand to the Board for reconsideration of the
remedy, with instructions that it impose a make-whole remedy that provides a
reasonable substitute, under the circumstances, for that which we have found
unduly burdensome.”

With respect to fund calculations, the Court concluded that the Respondent could not
challenge the ALJ’s calculation of the backpay amounts, but could challenge the ALJ’s

4 In this respect, the Company’s failure to follow contract seniority in recalling employees, not only
would constitute a violation of Section 8(d) and 8(a)(5) of the Act, but would also be a breach of contract.

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calculation of the interest due on the amounts. The Court also noted that because it refused to
enforce the Order insofar as it requires the Company to reinstate the potato-packaging
operation and rehire its 22 employees, this would affect the calculation of the amounts owed to
the benefit funds, “beginning on whatever date the Board reasonably determines that
reinstatement of the operation would have proved unduly burdensome to the employer.” The
Court further stated that the Board’s calculation of moneys owed to the pension and welfare
funds “must assume that the 22 employees discharged on April 19, 1995 would have worked
only through a date to be determined by the Board; after such date, the calculation of the
amounts owed should no longer include these 22 in the total number of employees.”

As to the interest rate, the Court stated; “We decline to enforce the Order insofar as it
imposes this award of interest, and remand for further development of the record concerning
what would be an appropriate rate. Although the Board has broad discretion in fashioning
remedial orders, its orders may not cross the line that divides the remedial from the punitive…
The record before us is insufficiently developed for us to determine whether the 18 percent
interest rate bears some reasonable relationship to the actual losses suffered by the funds due
to the company’s underpayments, or whether it amounts to a punitive measure against the
company.”

Subsequently, the Board asked for a rehearing and argued that the record showed that
at least 9 of the 22 discriminatees had experience in packaging tomatoes and sprouts and that
the record was silent as to the other 13. The General Counsel also argued that since the Court
held that the Respondent had illegally failed to follow contract seniority in reinstating employees
on April 19, 1995, some of the 22 discriminatees should have been recalled if they had more
seniority than others who were recalled on April 19, 1995. On September 25, 2001, the Court
granted the Board’s petition and remanded the issue to the Board to consider whether
reinstatement and backpay remedies are feasible and equitable at this time. No. 00-4095 (2nd
Cir. 2001).

After soliciting position statements, the Board, on November 24, 2004, issued a
Supplemental Decision that remanded these cases to me. 5 In part, the Board concluded; “We
find that reinstatement and backpay remedies for the 22 discriminatees are indeed feasible and
equitable.” The Board stated that “discriminatees who were qualified to package tomatoes and
Brussels sprouts should have been recalled if they had more seniority than the other employees
who had been recalled on April 19, 1995. Thus, those discriminatees are entitled to
reinstatement and backpay from the date of the unlawful discharge until a valid offer or
reinstatement, replacing as necessary, employees hired after April 19, 1995 and employees
who even if were recalled on April 19, 1995 had less seniority than employees who were not
recalled.” The Board also stated that because the Respondent, in May 1995, resumed
packaging some potatoes by hand and hired new employees to package vegetables, any of the
22 discriminatees who were qualified to package tomatoes, sprouts or potatoes by hand, should
have been recalled and therefore would be entitled to backpay from that date until a valid
reinstatement offer is made.

The Board stated that if there are more remaining discriminatees than there were
positions that became available in May 1995 or thereafter, the least senior discriminatees are
entitled to receive backpay from the date of discharge up until the time when the potato-
packaging machine would have been shut down in any event due to valid economic reasons. It
concluded that those discriminatees are also entitled to be placed on a preferential hiring list as

5 The Board issued an Amended Order on December 2, 2004.

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of the date that the Judge determines that the potato-packaging machine would have been shut
down.

As to any in the group of 22 who were not qualified to package tomatoes, brussel
sprouts, or potatoes by hand, (i.e. qualified only to work on the potato packaging machine), the
Board stated that they should receive backpay up until the time when the potato-packaging
machine would have been shut down for economic reasons.

The Board stated that in making these determinations, the judge should consider the
seniority status of all of the discriminatees, their qualifications, the positions that became
available in May 1995 and thereafter, and the date that the potato-packaging machine would
have been shut down for valid economic reasons.

With respect to the base amount owed to the funds, the Board stated that the judge
should determine the correct base amount owed to the Funds. This would depend upon when I
conclude that the Respondent would have shut down this operation for economic reasons.

As to interest, the Board stated; “[T]he judge should determine an interest rate that bears
a reasonable relationship to the actual losses suffered by the Funds due to the Respondent’s
underpayments. In making this determination, the judge should focus on the actual
performance of the Funds during the period in question.”

II. The Backpay Period

In accordance with the remand, the first question that has to be answered is when is it
probable that the potato packing machine would have been dismantled and employees laid off
despite the Employer’s unlawful motivation in terminating this operation in order to retaliate
against employees who participated in a protected demonstration, (and not a work stoppage), to
protest the Employer’s refusal to execute a contract that it had made with their union
representative. As the Board and the Court of Appeals have already concluded that the
Employer’s actions, including its discharge of these 22 employees was illegally motivated, it is
obvious that the Respondent must bear the burden of proof in demonstrating when it would
otherwise have shut down this operation in the absence of its illegal motivation.

The Respondent presented Spinale who testified that he had planned on shutting down
the potato-packaging machine at the end of April 1995. He testified that he made his mind up
about this decision as soon as the strike occurred because he was losing so much money. 6 His
testimony was that even though the labor problem precipitated the closing of the machine on
April 17, 1995, he probably would have closed it the following week because he was “losing
some big money.” According to Spinale: “I guess I couldn’t keep up with that kind of packaging
and the cost that it cost me to pack a bag compared to M&M. It might cost me $2.00 and it cost
M&M like $.80. So it didn’t pay.”

I didn’t believe Spinale’s testimony back in 1995 and I don’t believe his testimony now.

The General Counsel argues that at the earliest, Spinale would have dismantled the
potato-packaging machine on January 31, 1996. This would be 9 ½ months after the illegal
discharge that took place on April 17, 1995.

6 I again note that there never was a strike by the employees in this case.

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Among the reasons why the Court of Appeals was willing to accept the Respondent’s
position was the Company’s assertion that (a) the machine was old (obviously correct); (b) that
Spinale and his accountant testified without contradiction that the potato packaging operation
suffered continuous monthly losses over a long period of time; (c) that Spinale was in poor
health, and (d) that a new machine would not fit into the space rented by the Respondent. With
respect to the assertion that the potato packaging operation was suffering from continuous
monthly losses, the Court, while acknowledging that even though the Respondent’s records
showed that G&T’s operations were profitable in 1994 and 1995, it concluded that this was the
result of Spinale’s manipulation of his accounting records which [falsely] shifted expenses from
G&T to Tray Wrap, another company that he owned.

As to reason (c), I must say that Mr. Spinale, who again testified about 10 years later,
seemed to be in remarkably good physical condition and was mighty feisty. I should only look
so good at his age.

In the remand hearing, Spinale’s testimony was that he was losing about $10,000 to
$15,000 dollars each month on the potato packaging operation and was aware that M&M could
do it for a lot less money per pound. He testified that he therefore decided to contract out that
part of the operation to M&M while keeping only a limited type of potato packing operation. In
the latter regard, Spinale testified that he continued to package by hand, the 5 potatoes in a
sleeve and the 5 lb bags made for Shop Rite because they required a uniform size of potato of
good quality. In these instances, Spinale testified that this type of hand packaging was very
profitable.

There is no dispute that the potato-packaging machine was old and was not the most
efficient way of packaging bulk potatoes into five and ten pound packages. Moreover, I don’t
think that the General Counsel is really disputing Spinale’s assertion that M&M could do the
same operation at a lower cost. But the fact that Spinale’s cost of packing potatoes would be
higher if he did it himself than if he contracted it out, does not mean that his business was losing
money at the time that he decided to dismantle the machine.

Spinale’s assertion that he was losing $10,000 to $15,000 per month on packaging
potatoes, aside from not being documented, is really beside’s the point. Those numbers do not
represent any net losses to the enterprise. The cost of labor in operating the packaging
machine is an expense and by definition is a negative when calculating net profit. (The same as
the price of rent or the cost of diesel fuel to operate one’s trucks). The goal of Spinale’s
business is to sell potatoes at a profit and Spinale’s testimony indicates to me that the profit is
largely dependent on timing the market. That is, his goal is to buy potatoes when they are
cheap and sell them when they are dear. The packaging of potatoes, either by hand or machine,
is a cost of doing business that although obviously important, is not the only or even the most
decisive factor in making a profit. Potato packaging isn’t a separate business from selling
potatoes.

In trying to determine a date when Spinale would have closed down the potato-
packaging machine for legitimate non-discriminatory economic reasons, the General Counsel is
relying on the testimony of G&T’s accountant, Robert Falk and on various documents including
General Counsel Exhibit 60. This exhibit consists of three separate “Statement of Operations”
documents for G&T Terminal Packaging Co., Inc.

The first is a statement regarding the month of December 1994 and the 12 months
ending 12/31/94, which summarizes, on a year to date basis, (a) the cost of Sales, (including
wages, produce, freight, inspection, M&M services etc. (b) the gross profit (c) various expenses

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such as legal, utilities, rent, limo, bank charges etc., (d) operating profit and (e) dividend and
interest income. This shows that for the year ending December 31, 1994, G&T had a net profit
of $184,126. It also shows that G&T had a net profit for the month of December in the amount
of $18,056.

The second is a statement of operations for G&T showing that for the year ending
December 31, 1995 it had a net profit of $103,918. It also shows that for the month of
December 1995 G&T had a net profit of $91,411.

The third is a statement of operations for G&T showing that for the three months ending
March 1996, G&T had a net loss of $51,582 and that for the month of March 1996 it had a loss
of $61,130. This means that all of the loss for this quarter was incurred in March 1996.

I did not believe Spinale when he testified at the first hearings that he decided to close
the packaging machine operation because he was losing money. And I don’t believe his
testimony now that he would have closed the operation by the end of April 1995. 7

As it is my opinion that the Respondent has not carried its burden of showing that it
would have dismantled the potato-packaging machine by the end of April 1995, I will accept the
General Counsel’s concession that the Company might have terminated this operation by the
end of January 31, 1996.

In concluding that there is a probability that the potato-packaging machine would have
been dismantled for legitimate economic reasons, no earlier than by January 31, 1996, the
backpay period for all of the employees would therefore run from April 20, 1995 until January
31, 1996. 8

The Respondent mailed offers of reinstatement to former employees and with the
exception of Maria Garcia, (now Carmen Dominguez), they all received these offers on or about
October 1, 1996. Thus, except for Maria Garcia, (discussed below), the General Counsel has
cut off the backpay period for these people as of October 1, 1996.

In accordance with the Board’s Supplemental Decision dated November 24, 2004, the
General Counsel posits that with respect to those of the 22 discharged individuals who had less
seniority than those employees who either remained employed or were recalled on April 19
1995, their backpay would be cut off as of January 31, 1996. However, as to those of the 22
who had more seniority and who were qualified to do the other jobs available at the
Respondent, this second group would be entitled to backpay until they either returned to work or
received reinstatement offers from the Respondent.9 Thus, as to this second group (with the
exception of Maria Garcia, their maximum period for backpay would be October 1, 1996.

7 I note that the General Counsel subpoenaed the Company’s statements of operations for January,
February and March 1995 in order to check Spinale’s assertion that G&T was unprofitable immediately
before Spinale decided to dismantle the machine. These documents plus the company’s tax returns for
1995 were not provided and the Respondent asserted that they were no longer available. In this regard,
the General Counsel notes that as the crux of the Respondent’s defense was its lack of profitability, it is
surprising that the Respondent has failed to retain documents that would buttress its argument.
8 During the hearing, I granted the General Counsel’s motion to amend so that the specification
would show that the backpay period commenced on April 20, 1995.
9 The parties agreed that Estefania Acevedo was owed $600.00 and that Romana Escoboza was
owed $141.00. I expect that these amounts have already been paid per agreement.

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I conclude that all of the 22 discriminatees were qualified to perform all of the packaging
and other functions that were performed by the Respondent and that there were no jobs that
were done after April 19, 1995 that were beyond the capabilities of these people.

The Respondent employs a group of completely unskilled workers to do unskilled work.
They pack potatoes, tomatoes and brussel sprouts which are put onto trucks for delivery to the
Respondent’s customers. To a certain extent some of the work is divided into men’s and
women’s work in that the men tend to do the heavier work of moving larger bundles, whereas
the women are the people who put the potatoes, tomatoes or sprouts into smaller containers.
The vegetables come into the premises in large lots and are then brought by the men to tables
where the women sort and pack them. Potatoes are placed into five-pound bags or sleeves
containing five potatoes each. Tomatoes are put into packages that are then sealed with a
plastic wrap. And brussel sprouts are also placed into small containers, which are then
wrapped in plastic wrap. The packages of each type of vegetable are then consolidated onto
pallets and then moved by the men to the loading dock. Of these operations, the packaging of
brussel sprouts seems to require some minimal extra aptitude because the Employer expects
the employees to work fast and they do so in cold conditions. 10 But none of these operations
require any skill or training and they are, as far as I can see, completely interchangeable. The
credible testimony by the various employees who gave evidence on this subject was that they
have, in the past, done some or all of these functions and have not been required to undergo
any type of training that lasted more than one day.

Based on the record as a whole, I conclude that all of the 22 discriminatees had the
necessary skills and/or aptitude to do any of the job functions that existed at the Respondent’s
facility after the potato-packaging machine was dismantled. I therefore conclude that they could
have been reinstated to other available jobs. The only question is whether they had sufficient
seniority.

The Respondent was unable to produce records showing the hiring dates of the
employees who were employed during the periods before and after April 19, 1995. Accordingly,
Esther Morales, a regional office compliance employee was asked to construct, to the extent
possible, a list showing the seniority of the retained and discharged employees as of April 19,
1995.

Morales started from the fact that on April 17, 1995, Spinale told 62 out of his 77 workers
that they were fired. (Fifteen employees were not discharged). Of the group of 62, all but 24
people were recalled on or before April 19. Two employees, Francisco Rodriguez and Ramona
Escaboza were reinstated respectively on April 23 and 25, 1995. This leaves us with 22.

To determine the seniority of all of these people, Morales utilized Respondent’s records
to the extent that they existed, billing records that the Union sent to the Respondent, affidavits
taken from employees when possible and responses to questionnaires that she sent out to
employees at their last known addresses. Although this may not have been perfect, I conclude
that Morales’ effort was appropriately undertaken and has, in the absence of definitive company
records, produced as close an approximation of seniority standing as would be possible.

The question is which of the 22, based on seniority and skills, should have been

10 Brussel sprouts, unlike tomatoes and potatoes, are seasonal. The season runs from about
October through January.

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reinstated between the period after the machine was dismantled, (i.e. from February 1, 1996
until October 1, 1996), when the offers of reinstatement were received by everyone except
Garcia. Because the Board’s Remand Order implied that the 15 individuals who were not
discharged on April 17, 1995 could not be bumped, the General Counsel has invested them with
a kind of super seniority. 11 Therefore, the General Counsel, through Esther Morales, made a
chart that listed the number of people actually employed by the Respondent during each week
during the period from February 1 to October 1, 1996 and subtracted 15 from each week’s
number. For example, if the net number for a particular week was 47, (the actual number of
employees minus 15), then if one of the 22 discriminatees had a seniority number of 47 or
lower, it was assumed that he or she would have been employed during that week. On the
other hand, if that discriminatee’s seniority number was 48 or higher, then it was assumed that
this person would not have sufficient seniority to be recalled. After the end of February 1996,
the total number of people actually employed by the Respondent was 60 or 61 and therefore the
net was 45 or 46.

Based on these factors, the General Counsel contends and I agree that the following
individuals should have their backpay cut off as of January 31, 1996.

Sabrina Cabrera
Beatriz Olivo
Benita Olivo
Juana Olivo
Leyda Triunfel (now known as Leyda Triufel de Nelson)

I also conclude that the following discriminatees should have their backpay cut off only
as of October 1, 1996.

Sabrina Cabrera
Antonio Castillo
Marcos Delgado
German Diaz
Erlinda Espinoza
Mercedes Garcia
Ana Hernandez
Casimiro Hernandez
Denny Lopez
Primitivo Winston Lopez
Jose Merigildo 12
Rafael Ortega
Matilda Rodriguez 13

11 Since the collective bargaining agreement called for seniority to be used for layoff and recall
purposes, I don’t understand why the employees who were not discharged on April 19, 1995 were
excluded for purposes of determining recall based on seniority. But that is water under the bridge and not
subject to this litigation.
12 In the Brief, the General Counsel advised me that Mr. Merigildo had told the Region, after the trial
had been completed that he had removed himself from the labor market and had not looked for work.
The General Counsel therefore has deleted this claim.
13 This person could not be located. Consequently, the General Counsel is not making a present
claim on her behalf. In the event that she can be located, an inquiry would have to be made as to her
search for work and any interim earnings that she had. In the worst case scenario, in the event that the
Continued

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Carlos Santana
Claudio Santiago

As noted above, Maria Garcia’s situation is different. And the reason is that she never
actually received the October 1, 1996 offer of reinstatement that was sent to all of the other
discriminatees. While I have no doubt that the Respondent intended to send reinstatement
offers to all of the discriminatees, the evidence shows that it sent an offer to a person named
Martina Garcia who lived at a different address than Marcia Garcia. Thus, by mistake, the letter
was sent to the wrong person at the wrong address. As such, the offer was never sent to
Garcia at her last known address and obviously was never received by her. Nor is there any
evidence that the Respondent made any efforts to ascertain her whereabouts or to double
check to make sure that the offer was sent to the right person.

The next question is whether she should have been employed after January 31, 1996
based on her seniority. Garcia was number 59 on the reconstructed seniority list and therefore
she would not have had sufficient seniority to be employed after January 31, 1996 when the
potato machine would have been dismantled for non-discriminatory reasons.

Nevertheless, the General Counsel argues that even though Garcia would not have
been subject to recall between February 1 to October 1, 1996 she would have been eligible for
recall on or after October 1, 1996 when jobs opened up. Inasmuch as 21 offers of
reinstatement were made on October 1 1996, 21 jobs were made available as of that date.14 Of
this group, 13 people did not accept the offers and did not return to work. Therefore, this means
that there were at least 13 available jobs, one of which could have been done by Garcia if she
had received the reinstatement offer.

The General Counsel argues, and I agree that the backpay for Marcia Garcia, although
initially ceased on January 31, 1996, resumed on October 1, 1996 and ran until the second
quarter of 2003 when she turned 65 and stopped looking for work.

III. The Backpay Formula

There is no dispute regarding the hourly rates of pay for the discriminatees. For most,
the hourly rate was stipulated and the General Counsel points out that even to the extent that
the stipulation did not cover certain individuals, the hourly rate used by the Respondent in its
Answer with respect to Sabrina Cabrera, Marcos Delgado, Casimiro Hernandez and Primitivo
Lopez are the same as used by the General Counsel in the appendices to the Backpay
Specification. The only real differences are their respective contention regarding (a) the number
of hours worked per employee per week, (yielding a weekly rate) and (b) the duration of the
backpay period. (I have already discussed and decided the backpay period).

The General Counsel contends that the gross backpay should be based on each
employee’s hourly rate of pay multiplied by 40 hours per week. In my opinion, the evidence
shows that this formula is reasonable. 15 Indeed, it is my opinion that the General Counsel’s
_________________________
parties could not agree, we would have to reopen this case to determine what if any net backpay was
owed to this individual, assuming that she was located.
14 In order to be a valid offer of reinstatement, the employer’s offer has to be genuine.
15 The Board has “broad discretion” to shape or choose a formula designed to best approximate
what the discriminatees would have earned but for the illegal action against them. Bagel Bakers Council
of Greater New York v. NLRB 555 F.2d 304,305 (2d Cir. l977); NLRB v. Brown & Root, Inc. 311 F.2d
Continued

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formula tends to favor the Respondent.

Pursuant to the agreed upon collective bargaining agreement, the standard work week
was 40 hours with overtime to be paid at the rate of 1 ½ times for hours worked after 40 hours.

Obviously there is a problem reconstructing the amount of hours these employees
normally worked during 1995. (Before their discharge.) For one thing, there are insufficient
payroll and/or time card records. For another, the recollection of the witnesses regarding the
hours that they worked more than 10 years ago can only be approximate. Nevertheless, the
testimony of witnesses who were queried on this subject was that the employees started their
day at 8:00 in the morning and continued until their work was finished, often late into the
evening. Many of the employees testified that they worked numerous overtime hours. For his
part, Spinale testified that during the main part of the sprout season, (from October through
January), employees worked four or five overtime hours per day. He testified that during the
remaining part of the year, the employees worked five days per week and that they rarely
worked less than six to seven hours a day. Spinale further testified that other busy times during
the year were the weeks before Thanksgiving and Christmas.

Given the lack of documentary evidence and based on the testimony of employees and
Spinale, it seems to me that using a 40-hour week is reasonable. It may be that there were
times during the year when employees might have worked less than 40 hours per week. But
that is more than offset by evidence showing that for at least 4 ½ months per year, employees
worked substantial amounts of overtime for which they would have been paid at 1½ times their
normal rates of pay. Further, the Respondent produced no evidence to rebut the General
Counsel’s contentions.16

IV. Net Backpay for Each Individual

Before discussing each of the discriminatees, I want to make some initial observations.

These employees are for the most part foreign born and speak English, if at all, as a
second language. Most have extremely limited educational attainment and all have been
employed by the Respondent to do unskilled work. When they were discharged, they did not
have the command of job or language skills that would have made them eagerly sought after in
the job market. Most obtained unemployment insurance benefits although some apparently
were not even aware that such benefits were available to them. Some of these individuals were
forced to move out of their homes and many had to rely on the charity of relatives and friends.
Although no one suffered starvation, it is clear to me that many of these people were put under
a great burden as a result of being illegally discharged.

The Respondent challenged the way that the Region conducted the backpay
investigation, asserting that it did not comport with the guidelines set forth in the Board’s
Compliance Manual. The Respondent asserts that the Regional office had a duty to advise the
claimants of their obligations to seek work; that it had an obligation to maintain contact with
_________________________
447,452 (8th Cir. l963).
16 Although Mercedes Garcia testified that she worked, on average, about 32 to 35 hours per week, it
is obvious to me that this estimate about her situation 10 years ago should not detract from the other
evidence that tends to show that all employees averaged at least 40 hours per week. The same should
be the case for Benita Olivo, whose average weekly hours were affected by the fact that she was out of
work for about 2 months for the birth of a child.

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these discriminatees over the ten-year period after their discharge; and that it had the duty to
advise them of their responsibility to keep records.

Whether or not the Regional’s staff fully followed the NLRB’s Case Handling Manual in
this old and extremely difficult case is, when all is said and done, completely irrelevant. The
Regional employees who conducted the backpay investigation were not, and cannot be
considered to be the discriminatees’ agents. As such whatever they did or did not do to
determine backpay has absolutely no bearing on the employees’ rights to backpay. Houston
Building Services, 321 NLRB 123, 130 (1996) enf’d 128 F.3d 860 (5th Cir. 1997). 17

The General Counsel has, at various times, amended the Backpay Specification. This
was done as new information was received. For the most part, and with the exception of Maria
Garcia, these amendments have tended to lower the backpay claims. To avoid confusion, I
note that a set of numbers was given on November 2005 and that these were amended on
March 23 and April 18, 2006. Moreover, there were some final amendments made before the
close of the hearing and even in the General Counsel’s Brief. (All of which I grant).

The general principles governing backpay claims are well settled. The finding of an
unfair labor practice is presumptive proof that some backpay is owed. NLRB v. Mastro Plastics
Corporation and French American Reeds Manufacturing Company, Inc, 354 F.2d 170, 178 (2nd
Cir. 1965), cert. denied 384 U.S. 972 (1966). Once the General Counsel has shown the gross
backpay due in the Specification, the Employer has the burden of establishing affirmative
defenses which would mitigate his liability, including willful loss of earnings and interim earnings
to be deducted from the backpay award. NLRB v. Brown & Root, Inc., et al., 311 F.2d 447, 454
(8th Cir. 1963); see also Sioux Falls Stock Yards Company, 236 NLRB 543 (1978).

Respondent does not meet its burden of proof by presenting evidence of lack of
employee success in obtaining interim employment or of so-called “incredibly low earnings,” but
must affirmatively demonstrate that the employee did not make reasonable efforts to find interim
work. NLRB v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 575-76 (5th Cir. 1966).

In meeting this burden, the Respondent cannot merely rely upon cross-examination of
the claimant and allegedly impeaching testimony. NLRB v. Inland Empire Meat Company, 692
F.2d 764 (9th Cir. 1982). The evidence must establish that during the backpay period there
were sources of actual or potential employment that the claimant failed to explore and must
show if, where, and when the discriminatee would have been hired had they applied. Id., at
1308; McLoughlin Manufacturing Corporation, et al., 219 NLRB 920, 922 (1975); Isaac and
Vinson Security Services, Inc., 208 NLRB 47, 52 (1973). Champa Linen Service Company, 222
NLRB 940, 942 (1976). In this connection, the fact that some of the discriminatees in this case
failed to look for similar jobs in the Hunt’s Point Market is no defense. Associated Grocers, 295
NLRB 806 (1989); Marlene Industries, 234 NLRB 285, 289 (1978).

Although a discriminatee must make reasonable efforts to mitigate her loss of income,
she is held only to reasonable exertions, not to the highest standard of diligence. NLRB v.
Arduini Manufacturing Company, 384 F.2d 420, 422-23, (1st Cir. 1968); Otis Hospital, 240
NLRB 173, 175 (1979). Nor is a discriminatee required to pursue his or her job search by any
specific method or by a method that the Respondent thinks would have been more successful.

17 In Superior Industries, 289 NLRB 834, fn 13 (1983), enf’d 902 F.2d 40 (9th Cir. 1990), the Board
stated that the Case Handling Manuals do not provide a form of binding legal authority and are merely
guidelines to the NLRB’s staff in how to administer the Act.

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All is required is a reasonable search for work. United States Can Company, 328 NLRB 334
(1999) enf’d 254 F.3d 626 (7th Cir. 2001); Continental Insurance Co., 289 NLRB 961 (1982).

Success is not the measure of the sufficiency of the discriminatee's search for
employment. The law only requires an “honest, good faith effort.” NLRB v. Cashman Auto
Company and Red Cab Company, 223 F.2d 832, 836 (1st Cir. 1955). A discriminatee is not
required to apply for each and every possible job that might have existed in the industry, or even
to apply for work during each and every quarter. Champa Linen Service, 222 NLRB at 942; The
Madison Courier, Inc., 202 NLRB 808, 814 (1973); Sioux Falls Stock Yards, 236 NLRB at 551;
Cornwell Company, Inc., 171 NLRB 342, 343 (1968). What constitutes reasonable efforts
depends upon the circumstances of each case, an examination of the entire backpay period, not
upon a purely mechanical examination of the number or kind of applications for work made by
the discriminatees. Cornwell Company, supra; Mastro Plastics Corp., 136 NLRB at 1359. In
determining the reasonableness of this effort, the employee's skill, qualifications, age and labor
conditions in the area are factors to be considered. Id. However, even where the evidence
raises doubt as to the diligence of the claimant's efforts to gain employment, it is the
discriminatee who must receive the benefit of the doubt rather than the Respondent wrongdoer
whose conduct has created the situation creating the uncertainty. NLRB v. Miami Coca-Cola
Bottling Co., 360 F.2d at 572-573; Neely's Car Clinic, 255 NLRB at 1421; George A. Angle, 252
NLRB at 1157, enfd 683 F.2d 1296 (10th Cir. 1982); Otis Hospital, 240 NLRB at 174.

The Board has found that poor record keeping, uncertain memory and even
exaggeration do not necessarily disqualify an employee from receiving backpay. George A.
Angle, supra at 1159; Sioux Falls Stock Yards, supra at 559-60; United States Can Company,
supra at 342. Further, it is neither unusual nor suspicious if a discriminatee cannot accurately
recall details of a work search undertaken several years before. United Aircraft Corporation,
204 NLRB 1068, fn. 4 (1973).

The Board and the courts have held that it is not enough that the respondent thinks that
employees should have been able to secure jobs. “Suspicion and surmise are no more valid
bases for decision in [the] backpay hearing than in an unfair labor practice hearing.” The
Laidlaw Corporation, 207 NLRB 591, 594, enfd, 507 F.2d, 1381 (7thCir. 1974), cert. denied 422
U.S. 1042 (1975).

A Respondent cannot meet its burden of proof by presenting evidence of lack of
employee success in obtaining interim employment or of “incredibly low earnings, but must
affirmatively demonstrate that the employee did not make reasonable efforts to find interim
work.”

Finally, the fact that a discriminatee rejects a job offer is not, by itself, sufficient to toll
backpay if the job offered is not substantially equivalent to the job lost. Thus, if the offered job
pays significantly less money or if the conditions of employment are significantly more onerous,
a discriminatee’s refusal to accept that offer “does not evidence a willful loss of employment
requiring the termination of or a seduction in his backpay.” Arlington Hotel Company, Inc., 287
NLRB 851, 852.

a. Sabrina Cabrera

The General Counsel claims that Cabrera’s gross backpay is $1,408 for Q2 1995 (8
weeks); $2,288 for Q3 1995; $2,288 for Q4 1995; and $800 for Q1 1996. The General Counsel
asserts that she had no interim earnings.

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As of April 17, 1995, Cabrera was in the Dominican Republic and when she tried to
return to work on May 1, 1995, she was refused. Her backpay therefore starts on May 1, 1995.
At the time of her discharge, her average earnings were $126 per week and since she was
number 56 on the seniority list, the General Counsel concedes that her backpay should cease
as of January 31, 1996. (She returned to work at G&T after receiving the October 1, 1996 offer
of reinstatement). She testified that after May 1, 1995, she received unemployment benefits for
nine months.

The Respondent has not shown that Cabrera has failed to make a reasonable search for
work. However, Cabrera conceded that she was offered a job as a cook for $275 per week at a
restaurant that was about four blocks from her home. She testified that the offer was for a job
that was for six days a week and that it would have required her to work until 9:00 p.m. Cabrera
testified that the reason she didn’t accept this job was because she had to pick up her children
by 4 p.m. Nevertheless, she also testified that when she worked at G&T she often had to work
anywhere from 7 p.m. to 10 p.m. According to Cabrera, she was offered this job before
Christmas of 1996 and perhaps sometime after Thanksgiving.

I conclude that Cabrera refused an equivalent job and that her backpay should be cut off
as of the time that she refused this job. 18 Accordingly, I will reduce her gross backpay in Q4
1995 from $2288 to $1658. I am also going to reduce her gross backpay in Q1 1996 to $0.

I find that Cabrera’s net backpay is $4,854 plus interest.

b. Antonio Castillo

The General Counsel’s amended claim for Antonio Castillo is $14,700. The General
Counsel claims that Castillo’s gross backpay for Q2, 1995 (10 weeks) is $2,100; for Q3 1995,
$2,730; for Q4 1995, $2,730; for Q1 1996, $1,680; for Q2 1996, $2,730; and for Q3 1996,
$2,730.

At the time of his discharge, Castillo was earning $210 per week. He was number 16 on
the seniority list and therefore had sufficient seniority to be reinstated after January 31, 1996,
when the potato packaging machine would have been dismantled for non-discriminatory
reasons. Therefore, his backpay would terminate as of October 1, 1996 when he received an
offer of reinstatement.

Castillo testified that he waited for about three weeks before he began his search for
work, but this short delay is no reason to deny him backpay for that period. Rainbow Coaches,
280 NLRB 166, 192 (1986). According to Castillo, he received unemployment benefits for three
months and relied on charity to support himself.

Castillo testified that he was in the hospital for a period of time but couldn’t remember
when that was. Hospital records showed that he was in a hospital in February 1998, which is
outside the backpay period. This therefore cannot affect his claim.

According to Castillo, he went to Santa Domingo at some point after April 19, 1995.
Since he could not recall when this was, I told him to send his passports to the General

18 The evidence indicated that the weeks before Christmas were usually pretty busy at G&T.
Therefore I think that it is reasonable to conclude that during this time, there probably would have been a
good deal of overtime and that Cabrera would have been required to work until at least the early evening.

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Counsel, which he did. Esther Morales, (a compliance specialist for the Region), testified that
she reviewed the submitted passports which showed that Castillo entered that country on
January 3, 1996 but did not indicate when he returned to the United States. She also reminded
me that Castillo had testified in the underlying case on March 8, 1996 and therefore had to have
returned before that date. Based on this set of facts, the General Counsel asserts, and I agree
that it is reasonable to assume that Castillo was not available for work from January 3, to about
the third week in February 1996. But as Castillo was entitled to a two-week vacation, and there
was evidence that employees could take their vacation whenever they desired, the General
Counsel calculated that Castillo’s net backpay for Q1 1996, should be reduced by a total of five
weeks; from $2,730 to $1,680.

As the Respondent has not, in my opinion, shown that Castillo was unavailable for work
at any other time or that he had otherwise failed to mitigate his damages, I conclude that he is
owed $14,700 plus interest.

c. Marcos Delgado

The General Counsel’s amended claim for Marcos Delgado is $14,834. The General
Counsel claims that Delgado, whose weekly earnings were $210, had gross backpay of $1890
in Q2 of 1995 (9 weeks) and gross backpay of $2,730 in each of the next five quarters.

At the time of his discharge, Delgado was number 13 on the seniority list. He collected
unemployment benefits for six months and he returned to work when he received the
Respondent’s October 1996 reinstatement offer.

In the original specification, the General Counsel had listed interim earnings of $1,794 in
Q1 of 1996 and $276 in Q2 of that same year. This was based on a questionnaire that Delgado
submitted to the Regional office. Nevertheless, at the hearing, Delgado testified that the only
job he worked at after his discharge and before his reinstatement, was at a company called
Viele Manufacturing Corp. Delgado testified that he worked at this company for about five or six
weeks and this was confirmed by pay stubs that he submitted at the hearing. (Showing that he
earned $705 for the year of 1996). Based on this the Region amended the specification to
assert that his interim earnings during the backpay period were $705 during the third quarter of
1996.

As the Respondent has not demonstrated that Delgado had any other interim earnings,19
that he rejected equivalent employment, that he was unavailable for work, or that he failed in
any other manner to mitigate his losses, I conclude that it owes Delgado $14,834 plus interest.

d. German Diaz

In the last amended specification, the General Counsel reduced this claim from $15,750
to $13,010. This amendment was made to reflect a larger amount of interim earnings.

As of the date of discharge, Diaz was earning $210 per week and was number 24 on the
seniority list. Diaz testified that he did not collect any unemployment insurance benefits and that

19 In the questionnaire, Delgado indicated that he had been employed by G.D. Cary Plastic
Packaging Corp. However, it is plain that Delgado had help in filling out this questionnaire because he is
substantially illiterate and it seemed probable to all counsel, including myself that he was referring to G&T
Packaging and not some other company.

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he lived with his grandmother and received charity from his mother and cousin. For Q2 1995
(10 weeks), the claim is for $2,100 and for the remaining quarters through Q3, 1996, the gross
backpay claim is for $2,730 per quarter.

Diaz testified that after April 19, 1995, he helped out his cousin in order to learn how to
repair cars. He testified that he thought that his cousin started to pay him around September
1996. But in interview notes that Morales took, he told her that he started to get paid about $80
to $100 in cash, per week, in February 1996. In any event and despite the ambiguity of the
evidence concerning his earnings 10 years ago, the General Counsel, in the final amended
specification, credited Delgado with approximately $90 per week during a portion of the first,
second and third quarters of 1996. (Starting around March 1, 1996 and not in September
1996).

As the Respondent has not demonstrated that Delgado had other interim earnings, that
he failed to search for work, that he was unavailable for work, or that he otherwise failed to
mitigate his damages, I will accept the General Counsel’s calculations that Delgado is owed net
backpay in the amount of $13,010 plus interest.

e. Erlinda Espinoza

The General Counsel’s claim is for $13,200. She is the wife of Danny Lopez, another
discriminatee and she collected unemployment insurance benefits for six months. (She had no
interim earnings).

At the time of her discharge, Espinoza was earning $170 per week and she was number
34 on the seniority list. The claim for Q2 1995 (10 weeks) is $1,760 and the claim for the
remaining quarters through Q3 1996 is $2,288 for each quarter.

Espinoza conceded that in May 1995, she refused a job offer at a store called Mendoza
Fruits. She testified that she refused this offer because the job paid $150 for a seven-day week.
According to Espinoza, she had a one-year old baby at the time and had she accepted the job,
she would have had to pay a sitter a substantial percentage of what she earned. In any event,
since the job offer at Mendoza fruit, which was for less pay and more work, than her job at G&T,
I conclude that her refusal of this offer does not amount to a failure to mitigate.

Accordingly, as the Respondent has failed to demonstrate that Espinoza had other interim
earnings, that she failed to search for work, that she was unavailable for work, or that she
otherwise failed to mitigate her damages, I will accept the General Counsel’s calculations that
she is owed net backpay in the amount of $13,200 plus interest.

f. Maria Garcia 20

The General Counsel’s last amendment, (made on May 1, 2006), claims that the
Respondent owes her at total of $67,936. (In the penultimate amendment, the General
Counsel’s claim was for $68,640; the difference being that the final claim gives the Respondent
a credit for periods of three to four weeks in 1997, 1998 and 2002 when Garcia was out of the
country). This is, by far, the highest net backpay claim and it reflects that fact that the
Respondent mistakenly mailed a reinstatement offer to another person and not to her.

20 After her discharge, Maria Garcia changed her name to Carmen Dominguez.

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At the time of her discharge, Garcia earned $176 per week and was number 59 on the
seniority list. This means that she did not have sufficient seniority to be reinstated after the
potato-packaging machine would have been dismantled for legitimate business reasons on or
about January 31, 2006. However, because the Respondent made 22 reinstatement offers to
the employees who were discharged due to the machine’s termination, one of which was not
sent to her, this means that as of October 1, 1996, there was a job waiting for her had she
received the offer.

In my opinion, the General Counsel correctly terminated Garcia’s backpay as of
February 1, 1996 but reinstated it after October 1, 1996. The General Counsel also determined
that Garcia’s backpay should again be cut off in the fourth week of Q2 of 2003 when she turned
65 and completely ceased looking for work. It is asserted that she had no interim earnings
during the entire backpay period. Garcia testified that she started collecting Social Security
benefits in or about 2000 when she was 62.

According to Garcia, she refused a job taking care of an elderly man when she was told
by his son that this person tended to throw things like dishes when he got annoyed. Garcia also
testified that at various times, she looked for work in Atlantic City, which is where one of her
daughters lives. In this regard, Garcia testified that on one occasion in 1999, she was
tentatively offered a cleaning job at a hotel but that she couldn’t do the work because she
couldn’t bend over to make the beds. At that time, she would have been in her late 50s.

It is unfortunate for the Respondent that although it apparently intended to make an offer
of reinstatement to Garcia, it failed to do so. For if that offer had been made, the backpay
period would have terminated on February 1, 1996 and Garcia’s net backpay would have been
$7,216. But that is not her fault.

Concluding that the Respondent has not demonstrated that she had interim
employment, that she refused to take an equivalent job, that she was unavailable for work, or
that she otherwise failed to mitigate damages, I conclude that the Respondent owes Garcia
backpay in the amount of $67,936 plus interest.

g. Mercedes Garcia

The General Counsel’s claim is for $8,712. At the time of her discharge, Mercedes
Garcia was number 38 on the seniority list and was earning $170 per week. Therefore her
gross backpay for the 2nd quarter of 1995 (10 weeks) was $1,760 and her gross backpay for the
remaining period until October 1, 1996 was $2,288 per quarter. She collected unemployment
insurance for six months and lived with her sister.

The evidence shows that after her discharge Garcia looked for work, albeit her search
was somewhat impaired because she had a small child at home and had to pay a babysitter
when she went out. 21 Nevertheless, at the end of December 1995, she obtained a job in
Brooklyn but was thereafter laid off in May 1996. The General Counsel concedes that Garcia
had interim earnings of $400 in the 4th quarter of 1995, $2,600 in the 1st quarter of 1996 and
$1,800 in the 2nd quarter of 1996.

Mercedes Garcia received Respondent’s October 1, 1996 reinstatement offer but did not
accept it.

21 Garcia had a second child on October 11, 1996.

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In my opinion, the Respondent has failed to demonstrate that Mercedes Garcia had any
other interim earnings; that she failed to search for work, that she was unavailable for work or
that she otherwise failed to mitigate her damages. I will therefore accept the General Counsel’s
calculations that she is owed net backpay in the amount of $8,712 plus interest.

h. Ana Hernandez

The General Counsel claims that she is owed $13,200. At the time of her discharge,
Hernandez was earning $176 per week and she was number 18 on the seniority list. Therefore
her gross backpay for the 2nd quarter of 1995 (10 weeks) was $1,760 and her gross backpay for
the remaining period until October 1, 1996 was $2,288 per quarter. She testified that although
she looked for work mainly through her friends, she was unable to find work.

At some point Ana Hernandez conceded that she stopped looking for work because her
husband, Casimiro Hernandez, became too sick and had to tended. 22 During the hearing, she
could not remember whether this was in 1996 or 1997 and surmised that her husband was
hospitalized in July or August 1996, which would be within the backpay period. Because of her
confusion, the General Counsel obtained hospital records that showed that her husband was
hospitalized on two occasions; once between December 11 and 15, 1996 and the second time
between December 22, 1996 and January 10, 1997. Since both of these periods were after the
October 1, 1996 offers of reinstatement, it is likely that Ana Hernandez stopped looking for work
after the backpay period ended.

As the Respondent has failed to demonstrate that Ana Hernandez had any interim
earnings that she failed to search for work, that she was unavailable for work during the
backpay period, or that she otherwise failed to mitigate her damages. I will therefore accept the
General Counsel’s calculations that she is owed net backpay in the amount of $13,200 plus
interest.

i. The Estate of Casimiro Hernandez

The General Counsel claims that the Respondent owes the estate of Casimiro
Hernandez the sum of $15,540. At the time of his discharge he was earning $210 per week.
For Q2 1995, (9 weeks) the claim is for $1,890 and for the remaining quarters through Q3 1996,
the claim is for $2,730 per quarter. 23

His son testified that after Casimiro Hernandez was discharged, he took his father
around to the Hunts Point Market and various stores to look for work. He never found
employment. Since it is probable that Hernandez became too sick to work after receiving the
October 1, 1996 reinstatement offer, I think that the General Counsel correctly calculated that
his backpay period ran until that date.

As the Respondent has failed to demonstrate that Casimiro Hernandez had any interim
earnings that he failed to search for work, that he was unavailable for work during he backpay

22 Perhaps one could argue that being the primary caretaker of a sick spouse or relative should be
deemed to be the equivalent of interim employment and should not be used to penalize a discriminatee.
But that is not argued in the present case.
23 Casimiro Hernandez died on February 18, 1997 and according to his son, became seriously ill
when he was first hospitalized which was about six months before his death.

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period, or that he otherwise failed to mitigate his damages. I will therefore accept the General
Counsel’s calculations that his estate is owed net backpay in the amount of $15,540 plus
interest.

j. Denny Lopez

The General Counsel contends that Lopez is owed $16,950. At the time of his
discharge, he earned $226 per hour. Therefore for Q2, 1995 (10 weeks), the claim is for $2,260
and for the remaining time, the claim is for $2,938 per quarter. He was number 26 on the
seniority list.

Lopez testified that he unsuccessfully looked for work during the backpay period. He
testified that he collected unemployment insurance benefits for six months and received help
from his relatives. Lopez testified that he returned to work at G&T when he got the
reinstatement offer and worked there for about five months after October 1996.

The Respondent has not shown that Lopez failed to search for work; that he had any
interim earnings, that he was unavailable for work, or that he otherwise failed to mitigate his
damages. I therefore find that the Respondent owes him $16,950 plus interest.

k. Primitivo Lopez

The General Counsel’s claim is for $15,330. At the time of his discharge, Primitivo
Lopez was earning $210 per week. For Q2 1995 (8 weeks),24 the claim is for $1,280 and for the
remaining time, the claim is for $2,730 per quarter. He was number 29 on the seniority list.

He received unemployment insurance benefits for six months. Primitivo Lopez testified
that he unsuccessfully looked for work and lived with his mother.

As the Respondent has not shown that Primitivo Lopez failed to search for work; that he
had any interim earnings, that he was unavailable for work, or that he otherwise failed to
mitigate his damages, I conclude that the Respondent owes him $15,330 plus interest.

l. Leonardo Morel

The General Counsel’s claim is for $7,260. As Morel was number 47 on the seniority
list, his backpay should be cut off as of February 1, 1996. Based on his last rate of pay of $210
per week, the General Counsel claims $2,100 for Q2 1995 (10 weeks); $2,730 as gross
backpay for Qs 3 and 4, 1995; and $1,680 for Q1 1996. However, I calculate that the gross
backpay amount should be $1,050 for the first five weeks of 1996 instead of an amount for eight
weeks of 1996.

Morel testified that he found a job in the third quarter of 1996. This paid $5.50 per hour
for 40 hours per week. According to Morel, he quit this job because the chemicals made him ill.
Morel testified that after that job, he obtained another job at Silver Line in March 1996. The
General Counsel calculated Morel’s interim earnings at $1,980 during the third quarter of 1995.

As the Respondent has not sustained its burden of proof that Morel failed to search for

24 At the time of the discharges, Primitivo Lopez was in Santa Domingo. When he returned to the
United States, he was not allowed to return to work.

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work, that he had any other interim earnings, that he was unavailable for work, or that he
otherwise failed to mitigate his damages, I conclude that the Respondent owes him $6,630 plus
interest.

m. Beatriz Olivo

The General Counsel’s claim is for $7,216. Because she was number 57 on the
seniority list, her backpay would be cut off as of February 1, 1996. Therefore, based on her last
pay rate of $176 per week, her gross backpay would be $1,760 for Q2 1995 (10 weeks); $2,288
for the second and third quarters of 1995; and $880 for the first five weeks of 1996.

Beatriz Olivo testified that after she was discharged by G&T, she searched for work
without success. For example, she testified that on two occasions, she responded to help
wanted signs but was not offered jobs because she could not speak English. She received
unemployment insurance benefits for three months and testified that out of frustration, she
moved to Massachusetts in order to look for work. During the backpay period, Beatriz Olivo
was evicted from her apartment, moved in with a friend and relied on her parents and friends for
support.

As the Respondent has not shown that Beatriz Olivo failed to search for work; that she
had any interim earnings, that she was unavailable for work, or that she otherwise failed to
mitigate his damages, I conclude that the Respondent owes her $7,216 plus interest.

n. Benita Olivo

The General Counsel’s claim is for $7,216. She is number 48 on the seniority list and
her gross backpay, (cut off as of February 1, 1996), based on an income of $176 per week, is
calculated to be the same as her sister, Beatriz Olivo.

She testified that she unsuccessfully looked for work after her discharge and she moved
to Massachusetts with her sister. She collected unemployment benefits for three months.

As the Respondent has not sustained its burden of proof that Benita Olivo failed to
search for work; that she had any other interim earnings, that she was unavailable for work, or
that she otherwise failed to mitigate her damages, I conclude that the Respondent owes her
$7,216 plus interest.

o. Juana Olivo

The evidence concerning Juana Olivo is more or less the same as her sisters, Benita
and Beatriz. She was number 58 on the seniority list and therefore her backpay is cut off as of
February 1, 1996. She testified that she received unemployment benefits for three months and
that she unsuccessfully looked for work. In this latter respect, she testified that during this
period, she earned a mere $80 for a cleaning job but that it cost her $125 to register for work.
According to Olivo, she went onto Welfare when her unemployment benefits ran out and she
managed to get by from charity from her relatives. She also moved to Massachusetts with her
sisters.

As the Respondent has not sustained its burden of proof that Benita Olivo failed to
search for work, that she had any other interim earnings, that she was unavailable for work, or
that she otherwise failed to mitigate her damages, I conclude that the Respondent owes her
$7,216 plus interest.

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p. Jose Rafael Ortega

The General Counsel’s claim is for $15,500. Ortega was number 27 on the seniority list
and based on earnings of $210 per week, the General Counsel calculated his gross backpay as
$2,100 for Q2 1995 (10 weeks) and $2,730 for each quarter through Q3 of 1996.

Ortega testified that after his discharge he searched, without much success, for work at
various stores, supermarkets and restaurants. He testified that in December 1995, he did some
construction work on an ad hoc basis for which he received $50 a day in cash. Although
Ortega initially did not tell the Compliance officer about this “job” in which he earned about $250
in Q4 1995, this clearly was inadvertent and not a willful failure to disclose his interim earnings
to the government. (The General Counsel amended the claim to include these interim earnings
as an offset to Ortega’s gross backpay).

There also was a question about his availability for work during the backpay period
because Ortega testified that for some time he was in Santo Domingo attending his mother’s
funeral. In his testimony he could not recall when that was, but he later provided a death
certificate showing that she died on April 20, 1996. Ortega testified that he was in Santa
Domingo for two weeks, but since the employees of G&T were entitled to two weeks of paid
vacation per year, this trip would not reduce his net backpay.

Ortega received the Respondent’s October 1, 1996 reinstatement offer and returned to
work. However he quit after seven or eight weeks.

As the Respondent has not sustained its burden of proof that Ortega failed to search for
work; that he had any other interim earnings, that he was unavailable for work, or that he
otherwise failed to mitigate her damages, I conclude that the Respondent owes him $7,216 plus
interest.

q. Matilda Rodriguez

The General Counsel could not locate this individual. Therefore, the General Counsel
asks that it be allowed to reopen this case, in the event she is found, to ascertain her net
backpay and to afford the Respondent and opportunity to exam her on any relevant point. At
the present time, no amount is claimed on her behalf.

r. Carlos Santana

The General Counsel’s claim is for $13,480. Santana is number 15 on the seniority list
and based on his earnings of $210 per week, the General Counsel calculates that his gross
backpay is $1,680 for Q2 1995 (8 weeks),25 and $2,730 for Q3 1995 and Qs 1, 2 and 3 of 1996.
For Q4 of 1995, the General Counsel calculated that Santana was available for work for only 8
weeks and therefore his gross backpay was $1,680. During the backpay period, he received
unemployment benefits for five months. He also received financial support from his adult sons.

Santana testified that he went back to the Dominican Republic for about five weeks

25 He testified that he went to the Dominican Republic for two weeks right after his discharge. The
General Counsel took off two weeks from his gross backpay period to account for his absence from the
labor market.

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during the latter part of 1995. The General Counsel therefore reduced his backpay period
during the fourth quarter of 1995 to 8 weeks instead of 13 weeks. Santana also testified that in
the latter part of 1995, he worked as a self-employed street mechanic and earned about $800.

In my opinion, the Respondent has not shown that Santana failed to search for work,
that he had any other interim earnings, that he was unavailable for work, or that he otherwise
failed to mitigate his damages, I conclude that the Respondent owes him $13,480 plus interest.

s. Claudio Santiago

The General’s Counsel’s claim is for $13,330. Santiago was number 33 on the seniority
list and based on his weekly earnings of $210, the General Counsel calculates his gross
backpay as $2,100 for Q2 1995 (10 weeks) and $2,730 for each of the following quarters
through the 3rd quarter of 1996. He never applied for unemployment insurance benefits and
managed to get by with his savings, financial help from his brother and the little money that he
earned from intermittent jobs.

The General Counsel calculated that Santiago had interim earnings during each quarter
during the backpay period that ranged from a low of $60 to a high of $920.

The Respondent has not shown that Santana failed to search for work, that he had any
other interim earnings, that he was unavailable for work, or that he otherwise failed to mitigate
his damages. I therefore conclude that the Respondent owes him $13,480 plus interest.

t. Leyda Triunfel

The General Counsel’s claim is for $7,216. Triunfel was number 49 on the seniority list
and therefore her backpay was cut off as of February 1, 1996. Based on her weekly earnings of
$176, the General Counsel calculated her gross backpay at $1,750 for Q2 1995 (10 weeks),
$2,288 for Qs 1 and 2 1995 and $880 for the first five weeks of 1996.

During the backpay period, Triunfel was provided with room and board by her brother.
Like any other long-term guest, she helped out with the housework. She testified that she
continuously searched for work but was unsuccessful except for one occasion when she worked
for two days at a sewing factory and was paid about $90. As to that, she testified that she was
laid off because she didn’t have enough experience. She could not recall when this occurred.

The Respondent has not shown that Triunfel failed to search for work, that she had any
interim earnings, that she was unavailable for work, or that she otherwise failed to mitigate his
damages. I therefore conclude that the Respondent owes her $7,216 plus interest.

V. Pension Liability

In the underlying case, I concluded that the Respondent owed certain amounts of money
to the Union’s Pension Fund. This is a defined benefit fund where employees for whom
contributions are made would be entitled to a pension benefit if they are eligible upon
retirement. An employee’s eligibility is determined by reaching a designated age and having a
minimum number of years during which his employer makes contributions to the Fund on the
employee’s behalf. (Minimum eligibility rules are governed by ERISA). The amount of the
periodic pension payments are determined by the age of the employee at the time of retirement,
coupled with the number of years that the person has worked under the plan and has had
contributions made on his or her behalf.

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The collective bargaining agreement required the Employer to make payments of $8 per
week per employee. As the Respondent ceased making payments to the Pension Fund on
January 1, 1993, it owed money to the Pension fund for all of its covered employees from that
date forward. For the period from January 1, 1993 to April 19, 1995, the calculations were
based on the total number employees actually employed by the Respondent during that period
of time. In the underlying case, I also calculated that the money owed to the Pension Fund after
April 19, 2005, should be based on the total number of people actually employed, plus the 22
people who were illegally discharged. This was based on the assumption that this group of 22
would be entitled to reinstatement to their jobs and that they should not suffer any loss in their
pension rights by virtue of the illegal action taken against them. (The failure to make payments
to the fund on their behalf would affect not only their potential eligibility for pension entitlement
but also the amount of the monthly pension benefits that they ultimately would receive).

I also noted in the underlying case that the Respondent, pursuant to a separate court
order, had been making payments of $3,000 per month to the Pension and Welfare Funds and
that those monies had been allocated retroactively to each fund. Of this amount, $2,500 per
month was allocated to the Pension Fund and $500 per month was allocated to the Welfare
Fund.

At Appendix D of the underlying Decision, I attempted to determine the amounts due to
the Pension Fund for 1993, 1994, 1995 and the first two months of 1996. I (a) calculated the
total amount due each week based on the number of employees at $8 per week; (b) calculated
the accrued interest owed on that amount from the date of default until 1996; and (c) reduced
that number by subtracting $2,500, which is the amount of pension allocated money that the
Respondent had been paying as a result of a court order. For 1993, the total outstanding debt
was $17,084.40. If we add interest at the rate of 7.8%, the total for 1993 would be $18,417. For
1994, the total outstanding debt was $19,267.60 and if we add interest at 7.8%, the total would
be $20,770. For 1995, and factoring in the additional 22 employees who were illegally
discharged on April 19, 1995, the total outstanding debt was $18,302.40. Adding interest at
7.8% gives a total of $19,730. And for the first two months of 1996, the total which included the
22 discriminatees, was $3,682.80. That was where we left off when I issued the Decision in
September 1996; albeit the clock was still running.

The Court did not seem to have any problem with the general way that the pension fund
liability was calculated except in two important respects. First, the Court assumed that there
would have come a time when the potato-packaging machine would inevitably have been
dismantled for legitimate economic reasons. And second, the Court was not happy with the
interest rate imposed.

On first blush, it may be obvious that if there came a time when operation of the potato-
packaging machine would have terminated, then 22 people would not be needed and would not
likely be employed after that point. 26 As the pension liability is based on the total number of
people actually employed, it therefore should be based on the total number of people, including
discriminatees, only for the time that they would have been employed but for the discrimination.
The question is how to determine when the machine would have been dismantled in the
absence of discriminatory motivation.

26 Of course this does not automatically follow. The Respondent could have expanded other aspects
of his business and could have employed these 22 people in other jobs.

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I have already described why I have agreed with the General Counsel’s conclusion that
the Respondent most likely would have dismantled the potato packing machine, for legitimate
reasons, no earlier than January 31, 1996. Therefore, I conclude that up until January 31, 1996,
the pension liability should be based on the total number of employees actually working during
any specific week, plus the 22 discriminatees. After that date, the pension liability should be
based only on the total number of workers actually working during any given week.

Since I have concluded that the potato-packaging machine would not have been
dismantled until January 31, 1996, I have included the 22 discriminatees into the pension
liability formula for the period from April 19, 1995 to January 31, 1996. There is, therefore, no
need to recalculate the numbers in Appendix D of the underlying Decision as those numbers
were based on the number of employees who worked or should have worked at the facility until
January 31, 1996. Therefore, the total amount due to the Pension fund for all of 1995 would be
$18,302.40 plus interest. And the amount due for January 1996 would be $2,418.40 plus
interest.

It is acknowledged that from July 1995 through December 1995, the Respondent made
seven payments of $3,000 per month for a total of $21,000. 27 Since $2,500 per month should
be allocated to the Pension Fund, the Respondent, in my opinion, is entitled to a credit of
$17,500 based on this set of payments. It also was acknowledged that in 1996, the Respondent
made eleven payments of $3,000 between February and November 1996 and an additional
lump sum payment of $70,216. The total amount paid in 1996 was $103,216. Of this, 83.3%
should be allocated to the Pension Fund for a credit of $85,789.

If we then allocate the combined credit of $106,789 to the money and accrued interest 28
owed as calculated in Appendix D of the earlier decision, we arrive at zero for 1993, zero for
1994, zero for 1995 and zero for the first two months of 1996. Indeed, if we add up all of the
pension debt in Schedule D, (for 1993, 1994, 1995 and part of 1996), and add an annual
interest at the rate of 7.8%, (instead of 18%), the amount would be $18,417 plus $20,770 plus
$19,730 plus $3,970 or a total of $62,887. That means we have $43,902 left over.

For this proceeding, the General Counsel calculated that the pension money owed after
February 1, 1996 should be based only on the number of workers actually employed after that
date during any given week. Thus, from that date forward, the General Counsel did not add the
22 discriminatees to the calculations.

One problem is that although there were payroll records available for the years 1997
through 2005, there were insufficient records for 1996. Here is how the General Counsel
calculated the pension liability for 1996. For January, she added the 22 discriminatees to the
number of people actually employed and arrived at 85 employees. At $8 per week, she
calculated that the pension liability was $680 per week during January. For February, she

27 I am going to assume that the Respondent continued making the $3,000 per month payments to
the funds pursuant to the separate court order. On that assumption, I have concluded that 83.3% went to
the Pension Fund and the remainder went to the Welfare Fund.
28 In the underlying case, I calculated accrued interest in a somewhat confusing formula. I did this
because each $3,000 monthly payment went toward a debt owed 30 months before and interest accrued
during the intervening time. However, the interest rate used at that time was 18% per year and that is far
too high. Without making a new set of calculations, it seems to me that the payments in 1995 and 1996
should not only wipe out the principle of the debts for at least some period of time, but should also wipe
out any further accrued interest.

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calculated that there were 62 people working and that the weekly pension liability was $480.
For March and April, she assumed that there would have been 60 people employed. And for
the remainder of the year, there were records which showed that the Respondent employed
anywhere from a low of 52 employees in a given week to a high of 63 workers during a given
week. Mostly, there were 58 to 61 employees working at the facility at any given time.

For 1996, the General Counsel arrived at a figure of $25,952 and if one adds interest at
7.8%, the total pension debt for that year would be $27,976. But since there still is $43,902 in
reserve, this means that the pension liability for 1996 would be zero.

For 1997, the General Counsel had payroll records and calculated the total pension
liability at $24,112. With interest at 7.8%, the total would be $25,993. Since we still have
$15,926 in reserve, the pension liability for 1997 would be $10,967 plus interest. 29

For 1998, the General Counsel calculated the pension liability as $23,864. Since we
have already offset all of the Respondent’s payments made in 1995 and 1996, $24,864 plus
interest is the outstanding liability.

For 1999, the Respondent’s liability for pension payments is $23,320 plus interest.

For 2000, the Respondent’s liability for pension payments is $12,104 plus interest.

For 2001, the Respondent’s liability for pension payments is $19,744 plus interest.

For 2002, the Respondent’s liability for pension payments is $16,824 plus interest.

For 2003, the Respondent’s liability for pension payments is $17,976 plus interest.

For 2004, the Respondent’s liability for pension payments is $19,766 plus interest.

For 2005, the Respondent’s liability for pension payments is $17,515 plus interest.

Because there is no evidence to suggest that the Respondent has resumed making
Pension Fund contributions as required by the contract that it is legally obligated to sign, (and
which automatically renewed itself), and as there is no indication that the Respondent and the
Union have reached an impasse in bargaining, the Pension liability continues. Accordingly, the
issuance of this Decision and Recommended Order cannot limit any future claims by the
General Counsel for any additional money that may be owed to the Pension Fund.

As noted above, the Court remanded this case to determine an appropriate rate of
interest. The General Counsel called Diane Gleave, an actuary, to testify about this subject.

There are a multiplicity of interest rates that are used in our society. The Federal Funds
rate is set by the Federal Reserve and this usually sets the basis for other short-term interest
rates. States and municipalities usually auction their bonds and notes and obtain interest rates

29 Since the $15,926 would cover the pension debt in 1997 up to the middle of September, interest
should not commence until that time. For all years after 1997, the General Counsel has calculated the
pension debt by each month during the year. It seems reasonable to me that in all cases, interest on the
debt should begin at the point that the monies were not paid when due. Presumably that would be at the
end of each month.

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that are somewhat lower than corresponding federal rates because interest on municipal bonds
are typically free from state and/or federal income taxes. Certificates of Deposit offered to
customers are usually higher than corresponding federal or state bonds because private banks
are not governmental agencies and are therefore not completely free from risk. Commercial
banks set prime interest rates for the most credit worthy enterprises and set higher lending rates
for those businesses that are not quite so financially sound. Home mortgage rates are typically
set at a somewhat lower rate than auto loan rates, perhaps because it is assumed, (and the
market place confirms), that people will more likely default on their auto loans before they
default on their home loans. Many people consider credit card rates to approach usury. But
these too are based on calculating the risks of default.

In the present case Ms. Gleave used none of these considerations. Instead, her
testimony was used to establish the gain (or loss) in the net investment value of the monies
collected by the Pension Fund during each yearly period from 1993 to 2005.

The Pension Fund receives money from employers who contribute on behalf of
employees covered by collective bargaining agreements with the Union. That money is then
used to make a variety of investments in the expectation that, over time, the pot will increase
and there will be sufficient money in the pot to pay the promised pension payments to
employees when they retire. To accomplish this goal, the Fund makes a variety of investments.
Some investments like bonds will yield interest and others like stocks may provide dividends
and perhaps some appreciation in value. It is easy and objective to measure the Fund’s income
from dividends and interest and it is not difficult to objectively measure increases (or losses) in
net asset value for investments made in publicly traded securities. Some investments, such as
those in real estate may be a little more subjective.

In any event, Ms. Gleave reviewed the Fund’s audited financial statements for the years
1993 to the end of 2005 and calculating the returns on the Fund’s investments, essentially
averaged the returns to get an average yearly return of 7.8% for that entire time period of time.
As this seems to be a reasonable way to calculate how much return the funds would have
generated from the monies that should have been paid by the Respondent during the relevant
period of time, I will accept this rate.

VI. Dental and Optical Expenses

In the underlying Decision, the Order required the Respondent to make continuing
payments to the Union’s Welfare Fund. In this proceeding, the General Counsel is limiting her
claim to reimbursement only of the actual out of pocket expenses incurred by employees who
would have been covered by the collective bargaining agreement for the period from March 1,
1996 to the time that the employee left the Respondent’s employ. 30 Apparently the date of
March 1, 1996 was chosen because before that date, the Welfare Fund was still providing
benefits to the Respondent’s employees. But after that date, the Fund, because of the failure
of the Respondent to make the required contributions, no longer provided benefits to the

30 As noted in the original decision, the Respondent had agreed to a new collective bargaining
agreement but had refused to execute it. Therefore, the terms and conditions of that agreement
(including the obligation to make welfare fund payments, continued in effect notwithstanding the
Respondent’s failure to sign the contract. Also, in accordance with standard precedent, the terms and
conditions of the agreement would have continued in effect even after the contract’s expiration date until
such time as the parties entered into a new agreement or reached an impasse. Alexander Painting, Inc.,
344 NLRB No. 157 (2005).

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Respondent’s employees.

a. Nancy Amparo

Nancy Amparo purchased eyeglasses from Cohen’s Fashion Optical in 2001 and 2005.
At that time, she was still employed by the Respondent and but for the Respondent’s failure to
make Welfare contributions, she would have been entitled to $50 for the lenses bought in 2001
and $40 for the lenses bought in 2005. As for the frames, Amparo would only have been
entitled to a $14 credit for the frames she bought in 2001, and $40 for the frames she purchased
in 2005. (In 2005, Amparo purchased frames that were covered by the plan whereas the
frames she bought in 2001 were outside the designer category in the plan’s coverage and were
reimbursed only to the extent of $14).

Based on the above, I conclude that the Respondent owes Amparo the sum of $144 for
her out of pocket optical expenses.

b. Ramona Escaboza

Ramona Escaboza presented a “patient history report” that showed various dental
procedures she underwent from April 14, 2001 to October 12, 2004. These included fillings, a
root canal, and extractions. The total billing for these procedures was $420. Based on the
dental plan from the Union’s Welfare Fund, Esther Morales determined that under that plan,
Escaboza would have been reimbursed a total of $160.

Escaboza also purchased eyeglasses in 2000 from Lens Lab Express. The amount on
the bill was $350 but she could not say how much was for the lenses and how much for the
frame. The Compliance employee called Cohen Optical and was notified that bifocal lenses
cost $80. Morales also called Lens Lab and spoke to a person who said that although she
didn’t know what bifocal lenses cost in 2000, the current price was between $120 and $200.
Based on the Welfare Fund’s optical benefit in 2000, bifocal lenses were fully covered and shell
frames were covered to the extent of $125. The General Counsel, taking the lowest number for
bifocal lenses, makes a claim of $80 for the lenses and $125 for the frames.

Based on the above, I conclude that the Respondent owes Escaboza $160 for her out of
pocket dental expenses and $205 for her out of pocket optical expenses.

c. Nicholas Ramos

Nicholas Ramos was employed by the Respondent until September 23, 2005. Ramos
testified that he had dental work done in 2002 and 2004 by a Dr. Pascal. However, he did not
have any bills or receipts to support this claim and he testified that when he went to the office,
the dentist was no longer there and could not be located. He testified that in 2002, he paid $350
for a cleaning, an extraction and a lower removable bridge. Ramos also testified that in 2004 he
paid $400 for an examination, a cleaning, two extractions and a removable bridge. (Apparently
this was to replace the first bridge). In any event, these amounts seem to me to be quite low
and if Ramos was intent on fabricating these costs, he could have claimed a lot more.

For the dental expenses incurred in 2002, the General Counsel asserts that under the
Welfare Plan, the dental benefit would have reimbursed Ramos $125 for the bridge, $50 for the
extraction and $25 for the cleaning. For dental expenses in 2004, the General Counsel claims
that Ramos would have been reimbursed $125 for the bridge, $100 for two extractions, $25 for
the cleaning and $15 for the extra examination.

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Based on the above, I will agree with the General Counsel’s claim that Ramos is owed a
total of $465 for his out of pockets dental expenses.

d. Thelma Severino

During the time that Thelma Severino was employed, she went to the Dominican
Republic in September 1996 where she had teeth extracted and a full set of dentures made.
Severino testified and produced a bill showing that she paid 20,000 Dominican Pesos. This
equals $1,400 American dollars.

In 2004, Severino also had dental work done in Queens New York in order to replace the
dentures. She paid $1500 for those services.

The General Counsel asserts that but for the failure to make the Welfare contributions,
Severino could have had the 1996 dental work done by the Fund’s in-house dentist and
therefore it would not have cost her anything at all. However, for the expenses incurred in 2004,
the General Counsel asserts that Severino would have been reimbursed $525 for the dentures.

Severino also testified that she purchased eyeglasses in the Dominican Republic in
1996 and 2001. She was, however, unable to secure a receipt for those purchases. As to the
1996 purchase, Severino recalled that she spent 700 Dominican Pesos or $49 and the General
Counsel asserts that as this amount for glasses would have been covered under the Plan, she
is entitled to reimbursement of $49. For the 2001 purchase, which was the equivalent of $200,
the General Counsel posits that Severino should be reimbursed $50 for the lenses and $125 for
the plastic frames.

Based on the above, I conclude that the Respondent owes Severino $1,925 for her out
of pocket dental expenses. I also conclude that the Respondent owes her $224.

On these findings of fact and conclusions of law and on the entire record, I issue the
following conclusions and recommended 31

ORDER

The Respondent, G&T Terminal Packaging Co., Inc. and Mr. Sprout Inc., Tray Wrap
Inc., and Chain Trucking, Inc., as single employer and G&T Terminal Packaging Co., Inc., and
its alter ego, Slow Pack, Inc., its officers, agents, successors, and assigns, shall make
payments in the manner described below, with interest.

The backpay amounts for lost pay are as follows:

Sabrina Cabrera $4,464.00
Antonio Castillo $14,700.00
Marcos Delgado $14,834.00
German Diaz $13,010.00
Erlinda Espinoza $13,200.00

31 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.

JD(NY)−46−06

5

10

15

20

25

30

35

40

45

50
30
Maria Garcia (Now Carmen Dominguez) $67,936.00
Mercedes Garcia $8,712.00
Ana Hernandez $13,200.00
Estate of Casimiro Hernandez $15,540.00
Denny Lopez $16,950.00
Primitivo Lopez $15,330.00
Leonardo Morel $6,630.00
Beatriz Olivo $7,216.00
Benita Olivo $7,216.00
Juana Olivo $7,216.00
Jose Rafael Ortega $7,216.00
Carlos Santana $13,480.00
Claudio Santiago $13,480.00
Leyda Triunfel de Nelson $7,216.00

The amounts due the Pension Fund are as follows:

For 1997 $10,967.00
For 1998 $24,864.00
For 1999 $23,320.00
For 2000 $12,104.00
For 2001 $19,744.00
For 2002 $16,824.00
For 2003 $17,976.00
For 2004 $19,766.00
For 2005 $17,515.00

The amounts due for unreimbursed dental and optical expenses are as follows:

Nancy Amparo $144.00
Ramona Escaboza $365.00
Nicholas Ramos $465.00
Thelma Severino $2,149.00

It is further ordered that nothing contained in this Decision and Order shall preclude the
General Counsel from issuing a new Backpay Specification and Notice of hearing regarding (a)
any backpay claimed for Matilda Rodriguez and (b) any moneys owed to the Pension Fund after
2005.

Dated Washington, D.C., October 19, 2006.

_____________________
Raymond P. Green
Administrative Law Judge