Hoffman Plastic Compounds

National Labor Relations Board - Board Decisions

Jul 29, 1994

314 N.L.R.B. 683 (N.L.R.B. 1994)

683
314 NLRB No. 111
HOFFMAN PLASTIC COMPOUNDS
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings. We also note the Gen-
eral Counsel’s exception that the judge failed to make a credibility
determination as to the events occurring on March 13, 1989. Con-
trary to the General Counsel’s contention, the judge credited Super-
visor Ramon Rosas’ testimony that on that date Moises Gonzalez did
not meet with Plant Manager Wilkerson but rather met Rosas and
stated that he had ‘‘messed up’’ by failing to report to work.
We shall in addition correct the following two errors by the judge.
In the third paragraph of the ‘‘Findings and Conclusions’’ section of
the judge’s decision, the judge stated that Gonzalez was offered rein-
statement by Plant Manager Wilkerson on March 13, 1989. The
offer of reinstatement was in fact made on March 10, 1989. The
judge in addition stated in the fifth paragraph of that section that
Gonzalez agreed that his first work shift on reinstatement would be
on March 10, 1989. Rather, Gonzalez agreed that his first work shift
would be on March 11, 1989.
2 We have carefully reviewed the judge’s decision with respect to
the remedial obligation owed by the Respondent to discriminatee
Jose Castro and find that this issue merits further consideration. Ac-
cordingly, the portion of the judge’s recommended Order with re-
spect to Castro is severed and is subject to further consideration by
the Board.
Hoffman Plastic Compounds, Inc. and Casimiro
Arauz. Case 21–CA–26630
July 29, 1994
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On November 12, 1993, Administrative Law Judge
Jay R. Pollack issued the attached supplemental deci-
sion. The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answering
brief. The General Counsel filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt the recommended Order
as modified.2
We agree with the judge that the Respondent made
a valid verbal offer of reinstatement to Moises Gon-
zalez on March 10, 1989. It is well established that an
offer of employment must be specific, unequivocal,
and unconditional in order to toll backpay and satisfy
a respondent’s remedial obligation. Holo-Krome Co.,
302 NLRB 452, 454 (1991), enf. denied on other
grounds 947 F.2d 588 (2d Cir. 1991), rehearing denied
954 F.2d 108 (2d Cir. 1992). Gonzalez testified that he
understood that the Respondent’s reinstatement offer
was specifically for his former job at his former rate
of pay. Gonzalez immediately accepted the offer of re-
instatement. In addition, the credited testimony estab-
lishes that the Respondent did not demand that Gon-
zalez make an immediate decision to accept the offer
and did not condition its offer of reinstatement on the
withdrawal of Gonzalez’ unfair labor practice charge
or any other factor. We accordingly find that the Re-
spondent made Gonzalez a valid offer of reemploy-
ment and satisfied its remedial obligation in this re-
gard.
The General Counsel has also excepted to the
judge’s finding that the Respondent terminated Gon-
zalez, following his acceptance of reinstatement, pursu-
ant to its policy imposing termination on any employee
who fails to, in the words of Plant Manager Wilkerson,
‘‘call in or . . . show up for three days.’’ The record
establishes that Gonzalez did not report to work for his
scheduled evening shifts on March 11 or 12, 1989, did
not thereafter report for work, and that Wilkerson ter-
minated Gonzalez in the afternoon of March 13, 1989,
on the failure of Gonzalez to contact Wilkerson. The
General Counsel contends that the Respondent, under
its policy, was required to wait until Gonzalez had
failed to appear for his third consecutive evening shift
on March 13, 1989, before terminating him, that ac-
cordingly the Respondent improperly applied its policy
in terminating Gonzalez, and hence that its backpay li-
ability is not tolled. Under the circumstances of this
case, we need not decide whether the Respondent im-
properly applied its policy in terminating Gonzalez.
Rather, we find that the Respondent’s backpay obliga-
tion to Gonzalez was tolled because the Respondent
made a valid offer of reinstatement which Gonzalez
accepted, and Gonzalez thereafter failed to adhere to
his side of the agreement and make himself available
for work. See generally American Mfg. Co. of Texas,
167 NLRB 520, 521 (1967).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Hoffman Plastic Com-
pounds, Inc., Paramount, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order with respect to discriminatee
Moises Gonzalez.
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Briefs were filed by Respondent and General Counsel on No-
vember 1, 1993.
2 In the underlying case, Gonzalez testified that he took his son
to the hospital.
IT IS FURTHER ORDERED that the portion of the
judge’s recommended Order relating to Jose Castro is
severed and shall be subject to further consideration by
the Board.
Peter Tovar, Esq., for the General Counsel.
Ryan McCortney, Esq. (Sheppard, Mullin, Richter & Hamp-
ton), of Los Angeles, California, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Los Angeles, California, on March 4 and 5
and June 14, 1993. On January 22, 1992, the Board issued
its Decision and Order (306 NLRB 100) finding that Re-
spondent, Hoffman Plastic Compounds, Inc., had violated
Section 8(a)(1) and (3) of the National Labor Relations Act.
The Board ordered, inter alia, that Respondent offer Casimiro
Arauz, Jose Castro, and Moises Gonzalez full reinstatement
to their former positions and that Respondent make whole
Mauricio Mejia, Arauz, Castro, and Gonzalez for any loss of
earnings they may have suffered because of their unlawful
layoffs. On April 10, 1992, Respondent and the General
Counsel entered into a stipulation whereby Respondent
waived its right under Section 10(e) and (f) of the Act to
contest the propriety of the Board’s Order issued on January
22, 1992, or the findings of fact and conclusions of law un-
derlying that Order. A controversy having arisen over the
amount of backpay due and the terms of the Board’s Order,
on September 30, 1992, the Regional Director for Region 21
of the Board issued a compliance specification and notice of
hearing. On October 4, 1993, Respondent and the General
Counsel reached agreement on the backpay for Mejia and
that settlement has been satisfied. On October 27, 1993, Re-
spondent and Arauz reached settlement on Arauz’ claims.
Counsel for the General Counsel approved the settlements on
October 29, 1993. I approved the settlement on November 3,
1993, and issued an order granting the Parties’ joint motion
to withdraw the allegations of the compliance specification
concerning Arauz and Mejia.
The issues remaining for decision are (1) whether Re-
spondent made valid offers of reinstatement to Castro and
Gonzalez in March 1989; (2) whether Gonzalez voluntarily
quit his employment in March 1989; and (3) whether Re-
spondent should be ordered to offer Castro, an undocumented
worker, reinstatement to his former job. After resolution of
these principal issues, there remains the computation of back-
pay and the resolution of some subsidiary issues necessary
thereto.
All parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs of the parties,1 I make the
following
FINDINGS AND CONCLUSIONS
In the underlying case, on January 31, 1989, Respondent
laid off nine employees. The Board found that the layoff was
for economic reasons and would have occurred regardless of
the union organizing activities. However, the Board agreed
with Administrative Law Judge Gordan J. Myatt that Re-
spondent in order to rid itself of known union supporters,
discriminatorily selected union adherents for layoff. The
Board and the judge found that Mauricio Mejia was recalled
in March 1989 and found it unnecessary to order reinstate-
ment. Although the record indicated that Respondent sent re-
call letters to Casimiro Arauz, Moises Gonzalez, and Jose
Castro, the effect of the recall letters was left to the compli-
ance stage of the proceeding.
On March 10, 1989, Respondent sent recall letters to the
laid-off employees including the two discriminatees at issue,
Castro and Gonzalez. The letters stated:
Please contact Robert Wilkerson as to your avail-
ability for work no later than 4 P.M., Monday, March
13, 1989.
It looks like we’ll need a few men soon.
Moises Gonzalez testified that he met with Wilkerson on
March 13 with his Supervisor Ramon Rosas acting as inter-
preter. According to Gonzalez he was told he could come
back to work if he dropped his claim (the instant charge)
against Respondent. Gonzalez agreed to begin working on
the graveyard shift that evening. Gonzalez did not show up
for work. He testified that his daughter was ill and that he
had to take her to the hospital.2 Gonzalez testified that on
Monday, Wilkerson called him and said that the owner did
not want Gonzalez and that there was no job for him.
Wilkerson testified that he offered Gonzalez work on the
graveyard shift and that Gonzalez accepted the offer. Gon-
zalez was scheduled to work that Saturday and Sunday eve-
nings. According to Wilkerson, Gonzalez did not show up
for work or call in. On the following Monday, after Gonzalez
did not call in, Wilkerson discharged Gonzalez for aban-
doning his job. Wilkerson denied ever telling Gonzalez not
to come to work. Wilkerson had a position open for Gon-
zalez. Both Wilkerson and Rosas denied that there was any
mention of dropping the claim or charge. I credit their deni-
als. First, Gonzalez made no mention of this condition on the
recall to work in his 1990 testimony. Second, Wilkerson’s
testimony was corroborated by his notes and business
records. Third, Wilkerson’s testimony was corroborated by
that given by Rosas. I found Rosas to be a very credible wit-
ness. Thus, I credit Wilkerson’s and Rosas’ testimony over
that of Gonzalez.
Rosas testified that Gonzalez came and asked for work and
that the two of them went to speak with Wilkerson.
Wilkerson told Gonzalez that he could work on the grave-
yard shift and Gonzalez agreed to work that evening. Gon-
zalez did not show up for work on either Saturday or Sunday
evening. Rosas reported these facts to Wilkerson on Monday
morning. Rosas further testified that shortly thereafter he saw
Gonzalez and asked what had happened. Gonzalez answered
that he had ‘‘messed up.’’
685HOFFMAN PLASTIC COMPOUNDS
3 Castro was born in Mexico and the birth certificate is for some-
one born in El Paso, Texas.
4 See W. Kelly Gregory, Inc., 207 NLRB 654 (1973); National
Packing Co., 147 NLRB 446 (1964); and Southern Airways, 124
NLRB 749 (1959).
I find that backpay for Gonzalez was terminated as of
March 13, 1989, when he failed to return to work. The cred-
ible testimony of Rosas and Wilkerson shows that Gonzalez,
after agreeing to work, did not show up for work or call in
to explain his absences. After 3 days, Wilkerson could, in ac-
cordance with his past practice as to consecutive absences,
lawfully assume that Gonzalez had abandoned his employ-
ment. The fact that Respondent was presented with the op-
portunity to terminate its backpay liability and/or the oppor-
tunity to discharge Gonzalez is of no legal consequence.
Klate Holt Co., 161 NLRB 1606, 1612 (1966); P. G.
Berland Paint City, 199 NLRB 927, 927–928 (1972).
The General Counsel argues that Gonzalez was not fully
reinstated and, therefore, could turn down this job. I find no
evidence to support that allegation. The evidence indicates
that Gonzalez was offered the same job he had before the
layoffs and that he told Rosas that he was ‘‘happy’’ with the
offer. Although no mention was made to Gonzalez that he
would return to work without prejudice to his seniority, the
failure to do so does not invalidate the offer and acceptance.
National Screen Products Co., 147 NLRB 746, 747 (1964).
Gonzalez would have been discharged for this conduct re-
gardless of the prior union activity. Respondent treated the
unexplained failure to report for work as grounds for imme-
diate termination. The evidence shows that Respondent
would have discharged any employee based on the unex-
plained failure to report to work for 3 days. No other em-
ployees known to have engaged in similar conduct were re-
tained. Animal Humane Society, 287 NLRB 50 (1987).
The compliance specification, as amended, assumes that
Gonzalez would have received raises every 6 months. How-
ever, I find that his backpay period terminated prior to the
time he would have received a raise.
The record reveals that Castro was sent a recall letter on
March 10, 1989. The letter was sent by certified mail to the
address he had given the employer and was signed for by his
niece. Castro has used his niece’s home as his mailing ad-
dress for many years and continues to do so. Castro did not
respond to the letter. He testified that he never received the
letter and that his niece never told him about the letter.
According to Castro, 2 years after his discharge he re-
turned to Respondent’s plant and asked for work. Castro tes-
tified that Wilkerson turned him down because he did not
speak English. Wilkerson credibly denied this incident.
Wilkerson testified that he never saw or spoke with Castro
after the layoff of January 1989. According to Wilkerson,
one half of the employees do not speak English. He hired
Castro in 1988 even though the employee spoke no English.
Respondent discovered at the backpay hearing that Castro
used fraudulent identification in applying for work with Re-
spondent. Castro used a fraudulent birth certificate as identi-
fication for immigration purposes.3 Castro testified that he
used a friend’s birth certificate and that he uses that certifi-
cate to work in the United States. Castro also had a Cali-
fornia driver’s license and a social security card evidently
obtained by use of the fraudulent birth certificate. He testi-
fied that he uses the false identification in order to work in
this country. Castro is not authorized to work in this country.
Respondent contends that since it did not know that Castro
was not authorized to work it cannot be now ordered to em-
ploy him in contradiction of the immigration laws.
In Sure Tan, Inc. v. NLRB, 467 US 883 (1984), the Su-
preme Court held that undocumented workers are employees
within the meaning of the Act. However, discriminatees will
be deemed unavailable for work during any period in which
they are not lawfully entitled to be present and employed in
the United States. Backpay is, therefore, tolled during any
period when a discriminatee is not lawfully authorized to
work in this country. Subsequent to Sure Tan, Congress
passed the Immigration Reform and Control Act of 1986
(IRCA) making the employment of unauthorized aliens un-
lawful and imposing sanctions on employers who knowingly
hire them.
In the instant case, Castro was hired subsequent to the ef-
fective date of IRCA (November 6, 1986) by using false
identification. The record shows that Respondent attempted
to comply with IRCA. Castro admitted that at no time was
he lawfully entitled to work in this country. Thus, I find that
under the Supreme Court’s ruling in Sure Tan, Castro is not
entitled to backpay as of the date of the hearing. However,
as noted above, Respondent has not yet offered reinstatement
to Castro. The issue is whether Respondent should be or-
dered to reinstate Castro conditioned on his obtaining lawful
authorization to work in this country.
Respondent argues that it attempted to comply with IRCA
and only hired Castro based on the false information and
identification supplied to it. Thus, Respondent contends that
it never would have hired Castro had the facts been known
and that Castro should not be entitled to any remedy.
In Fiber Glass Systems, 298 NLRB 504, 506 (1990), the
Board followed the Circuit Court of Appeals for the Fifth
Circuit and ruled that the employer could show in the com-
pliance stage of the proceedings that the discriminatee never
would have been hired. However, the Board indicated that it
was following the court’s remand as the law of the case and
was making no determination on the issue.4 The Board has
not since addressed this issue.
Since Respondent did not knowingly hire Castro in viola-
tion of IRCA, it appears that the best result would be not to
order Respondent to make an offer of reinstatement. Castro
was not lawfully authorized to work in the United States at
the time of his hire, his termination, the unfair labor practice
hearing, nor the backpay hearing. Castro and the General
Counsel had the opportunity to show that Castro was now
authorized to work in this country but did not do so. Further,
there is no evidence that Castro has made application for au-
thorization to work in this country. The presumption is that
Castro will continue to lack authority to work lawfully in this
country. Thus, a reinstatement order, even conditioned on
Castro obtaining authorization to work in this country, would
be putting form over substance. A proper remedy should not
order actions that would be futile.
I find the cases cited by the General Counsel to be inap-
posite. In A.P.R.A. Fuel Oil, 309 NLRB 480 (1992), cited by
the General Counsel, the Board ordered reinstatement of two
employees who were not authorized to work in this country.
However, in each instance the employer knew at the time of
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
hire that the employee was not authorized to work and had
hired him in violation of IRCA. In E.E.O.C. v. Hacienda
Hotel, 881 F.2d 1504 (9th Cir. 1989), the Court of Appeals
for the Ninth Circuit ordered backpay for undocumented
workers whose claims arose prior to the effective date of
IRCA. In Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115
(7th Cir. 1992), the Seventh Circuit Court of Appeals held
that undocumented workers were not entitled to backpay and
reinstatement. The workers there had also been hired prior to
the effective date of IRCA.
In the instant case, there is nothing to suggest that Re-
spondent hired any employee in violation of IRCA. With re-
spect to Castro, the employee was required to file an I-9
form and submit proper identification. The fraudulent identi-
fication was not apparent and there is nothing to suggest that
Respondent knew of Castro’s status until the last day of the
hearing. Respondent raised Castro’s status as an undocu-
mented worker after Castro’s admissions at the hearing. Fi-
nally, in the above-cited cases the Board left the remedy
issues to the compliance stage of the proceedings. Here we
are at the compliance stage and Castro is still not authorized
to work in the United States. Under these circumstances, I
believe the litigation should come to an end and will not
order a futile reinstatement remedy.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
It is ordered that Respondent, Hoffman Plastic Com-
pounds, Inc., forthwith pay to each of the following persons
backpay in the amounts set opposite his name, plus interest
computed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), as required by the
Board’s Order of January 22, 1992:
Jose Castro $0.00
Moises Gonzalez 1,638.50