Hickory's Best, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1983

267 N.L.R.B. 1274 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hickory's Best, Inc. and Gloria Montes. Case 21-
CA-17176
21 September 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 15 March 1982 Administrative Law Judge
David G. Heilbrun issued the attached Supplemen-
tal Decision in this proceeding. Thereafter, Re-
spondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions and brief and has decided to affirm the
rulings, findings,' and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order, as modified herein.
On 15 November 1979 the Board found that Re-
spondent had discharged several employees in vio-
lation of Sec. 8(a)(1) of the Act. It further ordered
Respondent to make an immediate and full rein-
statement offer to those employees whom it had
not already reinstated and it also ordered Respond-
ent to make the employees whole with backpay for
loss of earnings. Respondent thereafter denied that
it was liable for the sums of backpay set forth in
the Regional Director's 13 March 1981 backpay
specification. The instant supplemental proceeding
thereafter arose. In his Supplemental Decision, the
Administrative Law Judge found that Respondent
owed the discriminatees the sums of money
claimed for them by the General Counsel. For the
reasons set forth below, we agree with some, but
not all, of the Administrative Law Judge's conclu-
sions.
A. The Administrative Law Judge rejected Re-
spondent's arguments that it had made various
valid offers to reinstate the discriminatees which
should have tolled their backpay prior to the time
set out in the specification. The Administrative
Law Judge rejected Respondent's arguments be-
cause he found that it is a "fundamental and con-
trolling principle of law that Respondent was at all
times obligated to render a full written uncondition-
L Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F. 2d 362 (3d Cir. 1951). We have careful-
ly examined the record and find no basis for reversing his findings,
except as indicated, infra.
267 NLRB No. 199
al offer of reinstatement to each of the named dis-
criminatees and until this was appropriately com-
municated the backpay period of each would con-
tinue to run . . . [emphasis added]." Apparently
based on this "fundamental and controlling princi-
ple," the Administrative Law Judge concluded that
none of the arguments advanced by Respondent
was sufficient to constitute a valid offer of rein-
statement or to toll the accrual of its backpay li-
ability.
Contrary to the Administrative Law Judge,
Board law does not hold that valid offers of rein-
statement must be in writing.2 We shall therefore
independently examine each of Respondent's con-
tentions regarding its alleged offers of reinstate-
ment. We list first those arguments that we find
without merit; then we set out our reasons for re-
jecting them; then we set out those arguments that
we find do have merit.
1. At the instant backpay hearing, Respondent
offered uncontradicted testimony that, on 30 Octo-
ber 1978,3 approximately 2 weeks after the charge
in the underlying unfair labor practice case had
been filed, and on several occasions thereafter, it
made offers to reinstate the discriminatees to coun-
sel for the General Counsel but that the latter in-
formed Respondent that he would not communi-
cate those offers to the discriminatees because the
offers did not contain backpay. The evidence estab-
lishes that Respondent failed to initiate any direct
communication with the discriminatees after coun-
sel for the General Counsel had allegedly declined
to do so. Respondent contends that its backpay li-
ability should be tolled as of the date that it initial-
ly communicated the reinstatement offers to coun-
sel for the General Counsel.
2. Respondent's president, Richard Ferris, testi-
fied that as the discriminatees were leaving the
plant on 16 October, the day that Respondent had
unlawfully discharged them, he instructed inter-
preters4 to tell them, inter alia, that their jobs were
open. Respondent argues that the discriminatees'
failure to return to work on that day warrants the
tolling of its backpay liability.
3. Charles Steese, Respondent's representative,
testified in this proceeding that, on 27 February
1979, during the hearing in the underlying unfair
labor practice case, he directed an interpreter to
ask approximately five or six of the discriminatees
if counsel for the General Counsel had made rein-
statement offers to them. While an answer was
proffered by one of the discriminatees, the record
2 See, e.g. Anderson Plumbing & Heating Co., 203 NLRB 18 (1973);
and Moro Motors, 216 NLRB 192, 193 (1975).
All dates refer to 1978 unless otherwise indicated.
Most of the discriminatees speak only Spanish.
1274
HICKORY'S BEST, INC.
is unclear whether the response was to the alleged
question.
4. Respondent points out that, as of the dates of
the hearing in the unfair labor practice case, a few
of the discriminatees had resumed employment
with Respondent. Respondent contends that the
fact that some of the discriminatees had been rein-
stated by the date of the hearing "must have been a
topic of widespread conversation at the hearing."
Therefore, Respondent contends that "every" dis-
criminatee had "actual knowledge that their jobs
were open" and their failure to return to work ren-
ders them ineligible for backpay.
5. The record reflects that during a state unem-
ployment insurance appeals hearing, in June 1979,
discriminatee Enedina Valdivia in the presence of
other employees was asked by a Respondent repre-
sentative whether she would be "willing to come
back to work today." Valdivia responded, "Yes."
She was also asked by the same person whether
she was aware that her job was open, and she re-
sponded, "Well, I didn't know." Respondent urges
that we toll its backpay liability with respect to
Valdivia and the discriminatees who were with her
as of the day of this conversation.
We find no merit in Respondent's above-men-
tioned contentions. Employees who are discrimina-
torily discharged are entitled to unequivocal and
unconditional offers of reinstatement to their
former jobs, if they still exist; and, if those jobs do
not exist, then to equivalent positions. The alleged
statements of Respondent's interpreter made con-
temporaneously with the unlawful discharges and
the interpreter's alleged remarks at the unfair labor
practice hearing are not unequivocal and uncondi-
tional offers of reinstatement. Moreover, we regard
the assertions regarding the statements made on the
day of the unlawful discharges as an attempt to re-
litigate issues already litigated and resolved in the
unfair labor practice case. And Respondent's con-
tention that the discriminatees should have known
that their jobs were available based on private con-
versations with each other does not establish that
any offers of reinstatement were ever made to
them. Additionally, the statements made to Valdi-
via amount to little more than an inquiry as to
whether she was interested in employment. They
do not constitute an unconditional offer of reem-
ployment.
Nor was Respondent absolved of its duty to
offer the discriminatees reinstatement by allegedly
making an offer of reinstatement through counsel
for the General Counsel. First, it is arguable from
the record that these offers were made in the
course of settlement negotiations. If they were,
they are inadmissible under the present circum-
stances. 5 If they were not made in the course of
settlement negotiations, they still do not aid Re-
spondent's case. In this regard, we emphasize that
Respondent itself offered testimony that it was
aware that the alleged offers had never been com-
municated to the discriminatees by counsel for the
General Counsel. It is well established that an em-
ployer who has unlawfully discharged employees
has the obligation to remedy its unlawful action
"by seeking out the employees and offering rein-
statement." Southern Greyhound Lines, 169 NLRB
627, 628 (1968). Notification is an integral part of
such an employer's obligation and it is not dis-
charged of its duty, as Respondent argues here,
when it is fully aware the discriminatees were
never notified of its reinstatement offer. Therefore,
even assuming, as Respondent alleges, that it made
reinstatement offers to counsel for the General
Counsel for transmittal to the discriminatees which
were not in the course of settlement negotiations,
Respondent, whose unlawful conduct required the
issuance of the reinstatement order, cannot avoid
its notification obligation by alleging that counsel
for the General Counsel failed to communicate its
offers, particularly since Respondent was fully
aware that the discriminatees did not know that it
was amenable to their resumed employment.
Quite a different situation exists, however, re-
garding discriminatee Luisa Sanchez. The record
shows that, while Sanchez was at an unemploy-
ment compensation office in late January or early
February 1979, the interviewer telephoned Re-
spondent official Janet Slatton. According to San-
chez, the interviewer told her that Respondent at
that time said that Sanchez' job was open, and that
"the boss was asking for us to go back to work."
However, Sanchez refused Respondent's offer to
return (1) because Respondent had earlier fired her;
and (2) because she was pregnant, and she sup-
posedly had been told before her discharge (and at
a time when she was not pregnant) by a lady fore-
man identified only as "Mona" that Respondent
would not allow pregnant women to work for it.
While Sanchez told the interviewer why she was
not returning to work, there is no showing, based
on her own testimony, that these reasons were re-
layed to Respondent. 6
$ See East Wind Enterprises, 250 NLRD 685, fn. 2 (1980), enfd. 664
F.2d 754 (9th Cir. 1981); Fed. R. Evid 408.
6 We note that Janet Slatton also testified and indicated that she told
the interviewer that Sanchez' job was still open; that she could come
back to work; and that the interviewer told her that Sanchez was return-
ing that day but that Sanchez never returned to Respondent. It appears
that the Administrative Law Judge, at least implicitly, credited Sanchez'
testimony where it differed from Slatton's. We accept Sanchez' own testi-
mony in finding that Respondent's backpay liability to her was tolled in
late January or early February 1979
1275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Administrative Law Judge found that, not-
withstanding Respondent's offer of employment to
Sanchez, Respondent's backpay liability was not
tolled. He appeared to so conclude because of his
finding that valid offers of employment had to be
in writing. We have already rejected that. He also
appeared to find that Sanchez could "discount"
this offer by Respondent because she was pregnant,
and had been told that Respondent did not employ
pregnant women. We disagree. First, we find that
here, unlike the situation with Valdivia noted
above, Respondent clearly made a valid offer of
employment to Sanchez. And, based on Sanchez'
own testimony, she clearly recognized it as an offer
to return to work. But she rejected it on two
grounds, both of which are irrelevant to whether
the offer was a valid one. First, she appears to
have rejected it because Respondent had earlier
fired her. Obviously, this action does not mean that
Respondent would not later want to rehire her, as
it demonstrated here that it did. Second, she reject-
ed the offer because she was pregnant, and had al-
legedly been earlier told that pregnant women
could not work for Respondent. This, too, is irrele-
vant. First, there is no persuasive evidence that Re-
spondent, in fact, had such a policy or that, if it
had such a policy, it would not have waived it
under these circumstances. Indeed, the record
shows only that a valid offer of employment was
made by Respondent and that Sanchez declined it
for reasons never communicated to Respondent. In
effect, Respondent was never put on notice of San-
chez' pregnancy nor, assuming it had some policy
against employing pregnant women, was it put to
the test of withdrawing the offer because of San-
chez' pregnancy. Moreover, the Administrative
Law Judge intimates that Sanchez' pregnancy was
a valid reason for her to reject Respondent's other-
wise valid offer. If anything, the proper conclusion
is to the contrary-as the General's backpay speci-
fication itself suggests. Thus, the General Counsel
seeks no backpay for Sanchez from February
through July 1979 because of her unavailability for
any work due to her pregnancy. If the General
Counsel seeks no money for this period, then San-
chez' refusal of Respondent's valid offer because of
her pregnancy is, in fact, clearly a ground on
which backpay can be tolled, at the very least for
the period of the pregnancy. However, the General
Counsel would resume Sanchez' backpay entitle-
ment in August 1979 after her pregnancy ended.
We disagree, as we find that Respondent made
Sanchez a valid offer in late January or early Feb-
ruary 1979, which was refused for reasons that she
never revealed to Respondent. Further, we note
that, even in the face of this earlier offer of em-
ployment, there is no evidence that Sanchez, when
she was no longer pregnant in August 1979, ever
contacted Respondent to seek work. In all these
circumstances, we find that Respondent's backpay
liability to Luisa Sanchez was tolled in late January
or early February 1979.
B. The Administrative Law Judge rejected Re-
spondent's claim that the discriminatees had not en-
gaged in reasonably diligent searches for gainful in-
terim employment. Respondent contends that it
should be discharged of backpay liability because
the record evidence, particularly the discrimina-
tees' backpay claimant forms, does not establish
that the discriminatees were sufficiently active in
searching for interim employment. We agree with
the Administrative Law Judge on this issue except
with respect to discriminatee Eva Perez.
In addition to those points touched on by the
Administrative Law Judge in assessing the discri-
minatees' search for interim employment, we note
that the discriminatees, whom the Administrative
Law Judge found to be credible witnesses, testified
that their job searches were much more extensive
than their backpay claimant forms indicated and
they testified as to the various reasons for their in-
complete forms. Some discriminatees also testified
that they had searched for employment at establish-
ments whose names they were unable to recollect
at the hearing. It is well established that employees
are not disqualified from backpay merely because
of poor recordkeeping or uncertainty as to
memory. See Izzi Trucking Co., 162 NLRB 242,
245 (1966). In light of all the circumstances and
considering the Administrative Law Judge's find-
ings and credibility resolutions, we shall not re-
verse his findings on this issue except as described
infra.
In our opinion, Respondent has, in fact, estab-
lished that discriminatee Perez failed to sufficiently
search for employment during a portion of the in-
terim period. At the hearing, counsel for the Gen-
eral Counsel admitted that Perez was in Mexico
and not searching for interim employment for a 2-
week period from 23 December through 7 January
1979. Respondent argued, however, that Perez' un-
availability was a full 3 months based on Perez' as-
serted admission to two other persons that she had
been in Mexico for 3 months following her dis-
charge. The Administrative Law Judge discredited
one of these witnesses and credited Perez' denial at
the instant hearing that she had spent 3 months fol-
lowing her discharge in Mexico. In so doing, he
noted that a transcript of a June 1979 state unem-
ployment compensation hearing at which Perez tes-
tified, and which Respondent had introduced into
evidence, was "inconclusive on this point." Con-
1276
HICKORY'S BEST, INC.
trary to the Administrative Law Judge, we find
that the record is not inconclusive on this point.
Thus, the transcript of the June hearing clearly re-
flects Perez' statement that she had gone to Mexico
shortly after 16 October and that she had remained
there for approximately "three months." The Ad-
ministrative Law Judge's crediting of Perez' testi-
mony that she was not in Mexico for the 3 months
following her discharge is apparently based on his
erroneous finding that the record of the earlier
state hearing was "inconclusive" as to Perez'
whereabouts during the period of time in question.
We therefore find unreliable the testimony given
by Perez at the instant hearing. In so doing, we
note additionally that the Administrative Law
Judge did not discredit the other witness who testi-
fied that Perez had said she was in Mexico for 3
months.7 Accordingly, we shall modify the Admin-
istrative Law Judge's recommended Order to re-
flect a reduction in Perez' total backpay for the 3
months that she was unavailable for employment.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied herein, and hereby orders that the Respondent,
Hickory's Best, Inc., Los Angeles, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as modified below:
I. Strike the names "Eva Perez" and "Luisa San-
chez" from paragraph 1.
2. Insert the following as paragraph 2 and re-
number the subsequent paragraph accordingly:
"2. Make Luisa Sanchez whole for any loss of
pay she may have suffered because of Respondent's
discrimination against her for the period from her
discharge on 16 October 1978 until the date in late
January or early February 1979 when she learned
during an unemployment compensation office inter-
view that her job with Respondent was available.
Make Eva Perez whole for any loss of pay she
may have suffered because of Respondent's dis-
crimination against her for the period from her dis-
charge on 16 October 1978 until the date in Octo-
ber 1978 when she departed for Mexico for 3
7 In finding that Perez was out of the country for only 2 weeks, the
Administrative Law Judge also relied on the fact that Perez had indicat-
ed on her backpay claimant forms that she had searched for employment
during the 3 months Respondent claimed she was in Mexico. We note,
however, that Perez filled out these forms many months after the period
in question and, in light of the other countervailing evidence presented
by Respondent, we conclude she may have erred on this aspect of her
claimant forms. Respondent, however, has not shown that other of the
discriminatees likewise erred on these forms.
months.8 Backpay is to be computed in the manner
set forth for the computation of backpay in F. W.
Woolworth Co., 90 NLRB 289 (1950), and with in-
terest as prescribed in Isis Plumbing Co., 138
NLRB 716 (1962)."
8 The present record does not permit a more precise determination as
to the date of Sanchez' compensation interview in late January or early
February 1979 or the date in October 1978 when Perez departed from
Mexico.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: On
June 24, 1980, the United States Court of Appeals for the
Ninth Circuit filed its judgment granting enforcement to
an Order of the National Labor Relations Board dated
November 15, 1979. This Order alluded to an Adminis-
trative Law Judge's Decision dated September 26, 1979,
which the Board adopted in the absence of exceptions
thereto having been filed. The Decision so adopted
found that Respondent had violated Section 8(a)(1) of
the Act by discharging 12 employees on October 16,
1978, and required that an immediate and full offer of re-
instatement be made to 9 of these employees and that
they be made whole with backpay for loss of earnings.
The remaining three employees, Ramona Hernandez,
Carmen Sanchez, and Eva Perez, were noted to have re-
sumed employment with Respondent earlier in 1979, and
as to them only backpay was ordered.
On or about October 8, 1979, written offers of immedi-
ate and unconditional reinstatement were made to Gloria
Montes, Luisa Sanchez, Agricola Perez, Enedina Valdi-
via, Angelina de Lozano, Socorro Cardenas, Rosa San-
chez, and, possibly, Sandra Aguilar. Employment was
promptly resumed by five of these, while Socorro Car-
denas and Rosa Sanchez did not return until November
26 and December 3, 1979, respectively.2 Controversy
having generally arisen over the reinstatement and make-
whole remedy, the Regional Director issued a backpay
specification on March 13, 1981. In this various backpay
periods were alleged, a backpay formula based on use of
a representative complement of employees was de-
scribed, certain interim earnings were admitted, and a
total net backpay for each discriminatee was calculated
by calendar quarter. Respondent answered this on March
30, 1981, with the following principal assertions:
1. It had not employed the discriminatees on the date
found to be alleged as the time of "unlawful discharges"
(October 16, 1978).
2. It never had an employee named Carolina Cardenas.
3. No backpay should in any event extend beyond No-
vember 6, 1978.
On December 21, 1979, the Board denied a motion of Respondent's
"new counsel" to reopen the case and file late exceptions.
2 Sandra Aguilar did not respond to the offer, if made, and her where-
abouts are unknown Ramona Hernandez, who had returned to work in
February, accepted a pnvate settlement from Respondent and the Gener-
al Counsel's motion to sever her situation from this proceeding was
granted.
1277
DECISIONS OF NATIONAL LABOR RELAIIONS BOARD
4. The use of a "representative employee" group for
purposes of applying a backpay formula is inappropriate.
The matter was heard at Los Angeles, California, on
August 18-21, 1981, as a supplemental proceeding. Upon
such record,3 my observation of the witnesses called,
and consideration of post-hearing briefs,
4 I make the fol-
lowing:
FINDINGS OF FACT AND CONCLUSIONS
5
As an introductory matter it must be observed that
much of this 4-day hearing was devoted to: (1) Respond-
ent's development of the notion that various opportuni-
ties had arisen during the year period that most discri-
minatees were out of work for them to have convenient-
ly and successfully inquired if positions were open to
them with Respondent and (2) traversing the efforts at
seeking or finding interim employment as fragmentarily
reported to the Regional Compliance Officer on forms
supplied for such purposes by the various discriminatees
who actually testified. While the latitude extended in this
process resulted in a deceivingly lengthy hearing, the
fundamental and controlling principles to apply here
were not disturbed. Briefly stated Respondent was at ma-
terial times obligated to render a full written uncondi-
tional offer of reinstatement to each named discriminatee,
and until this was appropriately communicated the back-
pay period of each would continue to run subject only to
notions of unavailability for work as such might arise for
a diversity of reasons. Secondly, while such discrimina-
tees were under a duty to make a reasonably diligent
search for gainful interim employment, the burden of
proving that they did not do so rests with Respondent.
It was developed that at the time of the unfair labor
practice hearing, this being in February and March of
the year and approximately 5 months after the discharges
in question, several of the discriminatees should, could,
or might have known that Respondent was amenable to
their resumed employment and this was tended to be
verified by the fact that several of their former cowork-
ers were already back on Respondent's payroll. Addi-
tionally, in the case of Luisa Sanchez it was established
that in February while at an unemployment compensa-
tion office the interviewer contacted Janet Slatton, mana-
gerial employee and daughter of Respondent's president,
Richard Ferris, and she advised him that a job was open
at the time. Luisa Sanchez, Spanish-speaking as were the
various discriminatees who appeared as witnesses, testi-
fied that this was relayed verbally to her by the inter-
3 Certain errors in the transcript have been noted and are hereby cor-
rected.
4 The General Counsel's brief inadvertently refers to the transcript of
the "back pay proceeding" at 17, whereas the actual exhibit was an ex-
cerpt from the transcript of the underlying unfair labor practice hearing.
Further, I have fully considered Respondent's various contentions re-
specting estoppel, the ethics of conduct by Regional personnel, and as
based on numerous wide-ranging case precedents, finding such matters
largely shrill, speculative, or irrelevant. In sum, I reject all such conten-
tions, believing instead that they do no more than tend to detract from
the actual issues of what is a quite traditional backpay proceeding. An
additional permeating theme of Respondent's defense in this matter is the
direct or indirect attempt to relitigate on the merits, and this, of course, is
improper on long-settled grounds.
s All dates and named months hereafter are in 1979 unless shown oth-
erwise.
viewer but, credibly, she discounted it because of being
pregnant at the time and understanding Respondent's
policy not to permit her to be employed under that cir-
cumstance. Respondent also sought to show that, during
a consolidated hearing later in June on unemployment
compensation claims by several of these individuals,
there was an implication of jobs being available to them.
Finally Respondent infers that through family and cul-
tural ties the discriminatees, or any of them, should have
investigated more vigorously whether they could have
succeeded in obtaining employment earlier than when
they did.
Such matters are irrelevant to the issue of whether and
when a valid offer of reinstatement is made to a discri-
minatee. Here there is no showing of any obstacle to Re-
spondent's ordinary entitlement to communicate such an
offer in writing, and any tactical or judgmental reasons
for not doing so are immaterial to the point. I therefore
conclude that the relatively early resumption of employ-
ment by Ramona Hernandez, Carmen Sanchez, and Eva
Perez was fortuitous and in itself has no bearing on the
right of reinstatement continuing to attach to the remain-
ing nine members of the original group. From this it fol-
lows that no valid offer of reinstatement was made to
any of the remaining nine until the dates set forth in the
backpay specification as the end of their respective back-
pay periods. 6
Carmen Sanchez credibly testified that commensurate
with her limited schooling and experience she engaged in
an immediate daily search for interim employment at
various locations, including sewing establishments and
meatpacking facilities. Eva Perez credibly testified that
commensurate with her limited schooling and experience
she engaged in an immediate daily search for interim em-
ployment using the public bus system to canvass job
prospects in the Los Angeles metropolitan area.
7 Gloria
Montes credibly testified that commensurate with her
limited schooling and experience she engaged in an im-
mediate search for work that averaged a minimum of 3
days per week and involved newspaper advertisement
followups and inquiry of job prospects following sugges-
tions from friends. Luisa Sanchez credibly testified that
commensurate with her limited schooling and experi-
I While the technical backpay periods for Socorro Cardenas and Rosa
Sanchez extend to the respective November 26 and December 3 dates
mentioned above because they were unable to accept the offer until that
time, this is counterbalanced as an arithmetical wash because the General
Counsel concedes them to have been unavailable for employment and
therefore not accruing quarterly gross backpay for the periods August 1-
November 25 and October I-December 2, respectively.
7 The General Counsel has admitted that Eva Perez was out of the
country for a 2-week period from December 23, 1978, until January 7.
Respondent contends that her unavailability was a full 3 months based on
her asserted admission to employee Eva Herrera that she had been in
Mexico for 3 months following her discharge. Eva Perez credibly denied
this and a transcript of the proceedings at her unemployment compensa-
tion hearing in June is inconclusive on the point. Furthermore, the claim-
ant job search reports of Eva Perez were introduced in evidence showing
that for the months of late 1978 at issue she had searched for work and
listing various employers where this was sought. Respondent has not
demonstrated that such contacts did not in fact occur and I am not per-
suaded that Herrera's testimony is reliable For this reason the gross
backpay of Eva Perez will be reduced, thus affecting her total net back-
pay, but only for the length of time which the General Counsel has ad-
mitted as her additional unavailability for employment.
1278
HICKORY'S BEST, INC.
ence, and except for the period she was unavailable due
to pregnancy, she engaged in a search for interim em-
ployment several times a week using public transporta-
tion to carry out her own initiative in this process. Agri-
cola Perez credibly testified that she has a ninth grade
education but no job training or particular skills and that
except for the period of her unavailability because of
pregnancy she engaged in an immediate and frequent
search for interim employment based on newspaper want
ads and stopping at nearby manufacturing facilities. Ene-
dina Valdivia credibly testified that commensurate with
her limited schooling and experience she engaged in an
immediate search for interim employment involving
public bus travels severals times a week to places
reached on her own initiative or as suggested to her by
relatives. Angelina de Lozano credibly testified that she
had extremely limited education and no job skills but
that she engaged in an immediate search for interim em-
ployment using public transportation several times each
week to canvass the metropolitan Los Angeles area for a
job. Socorro Cardenas credibly testified that commensu-
rate with her limited schooling and experience she imme-
diately sought interim employment on a near daily basis
using public transportation on her own initiative or in
followup from want ads seen in Spanish language news-
papers. Her only interim employment was obtained for a
2-week period during March at U.S. Industrial Glove;
however, she was forced to leave that work because of
her reaction to chemicals. Rosa Sanchez credibly testi-
fied that she, too, has an extremely limited education and
minimal work experience, but that she engaged in an im-
mediate search for interim employment seeking it nearly
every day of the week. She obtained employment at Na-
tional Corset Supply Company in November 1978 and
continued working there for about 4 months until laid
off. Additionally, she briefly obtained employment at the
University of Southern California but did not continue
there upon being told that the job was only a few hours
per day. She recalled that after this experience her
search for work was done on a daily basis with typically
three or four prospective employers contacted each day.
Respondent's records disclose that an employee named
Carolina Anguiano was employed through October 13,
1978, at which time she "walked off the job." Most of
the discriminatees testified that a person known to them
as Carolina Cardenas had worked at the plant and was
discharged on the same day as the rest of them. Socorro
Cardenas was presented with a photograph from Re-
spondent's records of the named Carolina Augiano and
identified her as the person known to be Carolina Car-
denas. On this basis I conclude that Carolina Anguiano is
in fact the same Carolina Cardenas who has been in-
volved in the case from the time I originally listed her as
a discriminatee.
As of October 1978 the hourly paid laborers of Re-
spondent were actually on the payroll of an entity
known as Chicano Foods. This is a California corpora-
tion that has existed for over 10 years with officers and
principal stockholders identical to Respondent's. In the
summer of 1978 its physical location was moved to be
consolidated with Respondent and at that time all rank-
and-file employees on Respondent's payroll were trans-
ferred to Chicano Foods. This did not involve any
change in supervision, workplace of individuals formerly
with Respondent as Hickory's Best, or preparation of
any new job application. The change was entirely one on
paper and significantly this matter was not raised by Re-
spondent at the time of the underlying unfair labor prac-
tice proceeding that was tried several months later. It is
highly artificial for Respondent to contend, as it does
now, that simply because the discriminatees were paid by
this entity such a distinction constitutes some legal basis
on which to assert that the wrong employer is being pro-
ceeded against for backpay purposes. There is every in-
dication of commonality and joint control over the two
corporations and this distinction is without significance.
Under the circumstances Respondent is now estopped
from contending that it is not responsible for backpay
obligations to these discriminatees even though they
were employed by Chicano Foods because this fact
became known to the Regional Compliance Officer
when records were examined. Cf. Circle Transport, 257
NLRB 902 (1981).
The discriminatees had been laborers working in Re-
spondent's processing (wet) or packing (dry) department.
The formal personnel records of this workplace do not
differentiate between assignments to these two depart-
ments and sporadic interchange of employees between
them occurs. Overtime work is also required from time
to time with this being more prevalent in the processing
department. The Regional Compliance Officer examined
all payroll records for the operation and chose seven em-
ployees as collectively representative of what the discri-
minatees would have continued to do absent discrimina-
tion against them. The seven in this representative group
were expressly chosen because as a composite matter
they were earning about the same rate of pay as the dis-
criminatees had been earning when they were dis-
charged, had much the same length of seniority, and
were all employed throughout the entire backpay period.
Based on these factors the Compliance Officer decided
that the lost earnings of the discriminatees could best be
reconstructed by using the average earnings of this rep-
resentative group because it included pay raises that had
been extended to them during the backpay period. This
was the key distinction between using this as a chosen
formula and using a more typical projection based on
what the discriminatees had themselves each earned over
a measurable past period before their discharge.
It is true that the Compliance Officer could have used
past hours worked by the discriminatees and projected
these forward into the backpay period with adjustments
for hourly rate increases as granted to other comparable
employees at various points in time. However, this ap-
proach would have left for argument the question of
whether individual discriminatees would have themselves
gotten such increases and it is significant that the overall
operation is one in which interchange between the de-
partments and unpredictability of overtime needs are
fully present. The testimony of Plant Supervisor Dennis
Quinzon fails to show there is sufficient structure to the
deployment of personnel so that the representative em-
ployee formula is inappropriate. An estimate that 70 per-
1279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cent of all overtime work is done by processing depart-
ment employees is too loose for controlling significance,
and Quinzon could only describe interchange between
departments in terms of "usual" and "probable" frequen-
cy. While most of the discriminatees worked in packing,
it was made clear that Angelina de Lozano and Carmen
Sanchez had been processing department employees and
Quinzon testified that "switch[ing]" in the past between
departments had affected Gloria Montes and Luisa San-
chez. When a respondent has not developed its oper-
ations in a clearly segregated fashion, the fact that differ-
ing departments are present is not a consequence that
will invalidate a reasonably chosen formula. Cf. Tri-
Maintenance & Contractor's, 257 NLRB 226 (1981).
The Board has wide discretion in selecting a backpay
formula appropriate to the circumstances. It need not
represent "mathematical exactitude," only reasonably ad-
dress the question of what they lost by the effects of un-
lawful discrimination. A "representative employees" for-
mula is common when not arbitrarily applied to the
facts. Cf. NLRB v. Iron Workers Local 378, 532 F.2d
1241 (9th Cir. 1976). I have considered Olson Bodies, 220
NLRB 756 (1975), relied on by Respondent, and find
that it is factually distinguishable for purposes of this
supplemental proceeding.
The General Counsel successfully amended the back-
pay specification in regard to Socorro Cardenas by re-
ducing the amount of admitted interim earnings from
U.S. Industrial Glove (at which she had only worked for
about 2 weeks) from $744 to $226.26. This yields an in-
crease of $517.74 in her total net backpay to $6,104.34.
The added unavailability of Eva Perez results in reduc-
ing the number of weeks per quarter to 10 in 1978/4 and
8.4 in 1979/1, yielding a reduction in her quarterly gross
backpay and, since it is carried directly to the total, her
overall net backpay. The new applicable amount for Eva
Perez is $2,665.46. Other than these modifications the
total net backpay for each of the remaining discrimina-
tees is as shown on pages 2, 4, 5, 6, 7, 8, and 10 of ap-
pendix A to the backpay specification. I therefore con-
clude that Respondent's obligation to nine of the original
discriminatees is payment of those sums of money, as ad-
justed above, set forth in the backpay specification, to-
gether with interest as appropriately fixed and com-
pounded. Additionally, and consistent with Board prece-
dent, Respondent shall pay the Regional Director
$26,863.64 representing total quarterly net backpay of
$7,950.83 and $18,912.81 due Sandra Aguilar and Caroli-
na Cardenas, respectively, and such sum shall be held in
escrow by said Regional Director for a period not ex-
ceeding I year from the date of this Supplemental Deci-
sion. At the end of that year, upon application by the
Regional Director, an additional year may be granted if
the Board deems it necessary. Further, the Regional Di-
rector shall make suitable arrangements to afford Re-
spondent, together with the General Counsel's represent-
ative, an opportunity to examine these discriminatees
should they become available regarding their interim
earnings.
On the basis of the foregoing findings of fact, conclu-
sions, and the entire record, and pursuant to Section
10(c) of the Act, I particularize my various holdings by
issuance of the following recommended:
ORDER8
The Respondent, Hickory's Best, Inc., Los Angeles,
California, its officers, agents, successors, and assigns,
shall:
1. Pay to each of the following employees as net back-
pay the amount set forth opposite each name, plus inter-
est computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977), 9 less tax applicable with-
holdings required by Federal and state laws:
Carmen Sanchez
Eva Perez
Gloria Montes
Luisa Sanchez
Agricola Perez
Enedina Valdivia
Angelina de Lozano
Socorro Cardenas
Rosa Sanchez
$2,808.03
2,665.46
8,085.30
4,001.88
4,001.88
8,085.30
8,085.30
6,104.34
5,277.21
2. Transmit to the Regional Director for Region 21, to
be held in escrow as provided in this Supplemental Deci-
sion, the gross backpay amounts contained in the back-
pay specification for the following employees in the
specified amounts, plus interest, 1 less applicable tax
withholdings required by Federal and state laws:
Sandra Aguilar
Carolina Cardenas
S 7,950.83
18,912.81
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
9 See, generally, Isis Plumbing Co., 139 NLRB 716 (1962).
'o As specified in par. I of this Order.
1280