J.J. Cassone Bakery, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 7, 2010

02-CA-032559 (N.L.R.B. Sep. 7, 2010)

JD(NY)–34–10
Portchester, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
J.J. CASSONE BAKERY, INC.
and Case Nos. 2-CA-32559
2-CA-32778
BAKER, CONFECTIONARY AND 2-CA-32941
TOBACCO WORKERS & GRAIN MILLERS 2-CA-33144
UNION, LOCAL NO. 3, AFL-CIO 2-CA-33267
and
CARBILIO FLORES, an Individual
and
LORENZO MACUA, an Individual
Margit Reiner, Esq. and Olga Torres, Esq.,
for the General Counsel
Marc L. Silverman, Esq., for the
Respondent
Jeffrey Freund, Esq., for the Union
SECOND SUPPLEMENTAL DECISION
I. STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this backpay case in New
York City in March, April and May 2010.
On June 26, 2007, the Board at 350 NLRB No. 6, (2007), concluded that the
Respondent violated the Act in certain respects and issued an Order requiring the Respondent
to make whole, with interest, Cesar Calderon, Adan Aguilar, Cabrilio Flores, José Mario Castro,
Lorenzo Macua and Roberto Lostanau. This Order was enforced by the United States Court of
Appeals for the District of Columbia on January 23, 2009. The Backpay Specification was
issued by Region 2 of the National Labor Relations Board on November 30, 2009.
With respect to Aguilar, the Board majority concluded, contrary to the Administrative Law
Judge that his discharge was justified but that a suspension issued to him was not. Accordingly,
the Board’s Order required the Respondent to make him whole only for the period of his
suspension and did not require the Respondent to offer him reinstatement. In the Backpay
Specification as amended, the General Counsel asserts that the backpay period for Aguilar is
from November 12, 1999 to December 20, 1999 at which time his suspension ended. The
calculations that the General Counsel allege as owing to Aguilar are contained in Appendix A-1.
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The Respondent admitted that the backpay period is correct and that the gross backpay figures
alleged by the General Counsel are correct.
With respect to Jose Castro, the Backpay Specification as amended asserts that the
backpay period starts on April 4, 2000 and ends on March 4, 2009 which is when the
Respondent made a valid offer of reinstatement to him. The calculations that the General
Counsel alleged as owing to Castro are contained in Appendix A-2. The Respondent admits that
the backpay period is correct and that the gross backpay figures alleged by the General
Counsel are correct.
With respect to Carbilio Flores, the Backpay Specification asserts that the backpay
period runs from March 8, 2000 to March 11, 2000, (during a three day suspension), and from
September 3, 2000 through March 3, 2009 at which time the Respondent made a valid
reinstatement offer. The calculations that the General Counsel alleged as owing Flores are
contained in Appendix A-3 as amended. The Respondent admits that the backpay period is
correct and that the gross backpay figures alleged by the General Counsel are correct.
With respect to Lorenzo Macua, the Backpay Specification asserts that the backpay
period runs from July 5, 2000 to March 4, 2009 at which time the Respondent made a valid
reinstatement offer. The calculations that the General Counsel alleged as owing Macua are
contained in Appendix A-6. The Respondent admits that the backpay period is correct and that
the gross backpay figures alleged by the General Counsel are correct.
With respect to Cesar Calderon, the Backpay Specification asserts that the backpay
period runs from November 3, 1999 to March 31, 2001, at which time he removed himself from
the New York metropolitan are labor market. As noted in the underlying Decision, Calderon was
a “salt” and as discussed below, he only sought employment at non union bakeries after he was
discharged by the Respondent. It argues, inter alia, that this should not be considered as a
sufficient mitigation effort on the part of this discriminate. The calculations that the General
Counsel alleged as owing Calderon are contained in Appendix A-6. The Respondent admits that
the backpay period is correct and that the gross backpay figures alleged by the General
Counsel are correct.
At the hearing the parties settled the backpay claim for Roberto Lostaunau. Therefore,
his situation is not included in this Decision.
In addition to monetary wages, the General Counsel set forth in the respective
appendices, certain amounts of money allegedly owed by the Respondent to some of the
discriminates for pension payments, sick pay and vacation pay. These were calculated in
accordance with the Respondent’s policies in existence during the backpay period. The
Respondent does not challenge the method by which these benefits were calculated. In the
case of Aguilar, the General Counsel did not calculate an amount for pension benefits because
the Board decided that he was lawfully terminated. Also, no pension benefit was calculated for
Cesar Calderon because he would not have worked the two year period that would have
qualified him for this benefit.
In relation to the gross backpay figures, there is no dispute about the way that the
amounts were calculated. That is, the parties agreed on the wage rates and the overtime rates
that the discriminatees would have earned during the backpay period. They also agreed on the
amount of regular and overtime hours that each discriminate would have worked during each
quarter of the backpay period. In addition, the General Counsel has, with one exception, tolled
the backpay period for any period of time that the discriminates were out of the country or were
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otherwise unavailable for work due to injury, sickness or a requirement that a discriminate had
to care for a sick relative. Accordingly, the gross backpay calculations, including the derivative
“benefit calculations, are largely not in dispute.
That is not to say that there are no disputes in this case. For example, in one instance,
a discriminate testified that he was injured while working at a private residence after his
discharge from the Respondent. The General Counsel asserts that this was a work related
injury and therefore his unavailability for work did not disqualify him from backpay during the
period of his injury. The Respondent contends otherwise. Additionally, the Respondent
contends that the discriminates did not make adequate efforts to mitigate their loss of earnings,
in that they either made inadequate searches for work or quit or were fired from interim jobs. All
of these issues will be discussed below.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
II. FINDINGS AND CONCLUSIONS
(a) General Principles
The general principles governing backpay proceedings are well settled. A 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). If 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). And
although a Board majority in St. George Warehouse; 351 NLRB No. 42, held that the General
Counsel has the burden of producing evidence concerning an employee’s efforts to find interim
employment, the Board reaffirmed the long standing principle that the employer still bears the
ultimate burden of persuasion concerning whether discharged employees made an adequate
search for work.
A Respondent does not meet its burden of proof simply by presenting evidence of lack of
employee success in obtaining interim employment or of so-called "incredibly low earnings.” It
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).
A 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).
Although discriminatees are required to make reasonable efforts to mitigate a loss of
income, they are 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). Lack of success, by itself, is not the measure of the sufficiency of a
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search for employment. A discriminate is only required to make 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. It does not depend 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 an employee’s
effort, his or her skill, qualifications, age and labor conditions in the area are factors to be
considered. Id. Even where the evidence raises doubt as to diligence, discriminatees must
receive the benefit of the doubt rather than the respondent wrongdoer whose conduct has
created the situation giving rise to 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 also held 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. It is not 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). In the present case, the
backpay period began 10 years before the hearing in this matter commenced.
Although a willful concealment of interim earnings will warrant a denial of benefits for the
period of the concealment, the mere existence of discrepancies to reported income is
insufficient to establish a willful concealment of earnings. Cibao Meat Products, 348 NLRB 47
(2007) and Parts Depot, Inc., 348 NLRB 152 (2006). Also, the Board has found that the “mere
suspicion and uncertainty” created by third party documents are insufficient to meet the
employer’s burden of proving that the General Counsel’s interim earnings calculations were not
accurate, Cibao, supra at 48.
It should be noted that 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).
There is a general rule that an employer is ordinarily not liable for backpay for periods
when an employee is unavailable for work due to illness or a disability. NLRB v. Louton, Inc. 822
NLRB 413, 415 (3rd Cir. l987); Canova v. NLRB 708 F.2d l498 (9th Cir. l983); American
Manufacturing Co. of Texas, l67 NLRB (l967). Cf. Jenkins Index Corp. 283 NLRB 457, fn 3
(l987). But see Superior Export 299 NLRB No. 9, where employee collecting disability benefits
under Social Security because of deafness not automatically excluded from backpay.
In American Mfg Co. of Texas supra, the Board held that the employer was liable for
backpay during a period where the discriminate was unavailable for work due to an injury
occurring at an interim employer. The Board stated;
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The origins and causes of infections and organic infirmities, such as influenza and
heart attacks, for example, are usually not known and cannot be determined or
assumed. It is ordinarily reasonable to assume, however, that absences from work
because of such illnesses would probably have occurred even if the employee had
not been discharged. As the claimant's loss therefore cannot be said to have a
likely relationship to the unlawful discrimination, disallowance of backpay for all
periods of unavailability because of such illnesses is proper....
The same underlying reasoning does not, however, apply to periods of illness,
which occur because of industrial accidents suffered during the course of interim
employment or are otherwise attributable to the unlawful conduct of the
Respondent. The causes of such ailments are known and attributable to events
which would not have taken place, or to environmental factors which would not
have been present, had the employee not been unlawfully removed from his
employment in the Respondent's plant...
Where an interim disability is closely related to the nature of the interim employment
or arises from the unlawful discharge and is not a usual incident of the hazards of
living generally, the period of disability will not be excluded from backpay.
Consonant with its obligation to establish deductions from backpay, the Respondent
continues to have the burden of demonstrating that an excludable period of
absence from work because of illness has taken place, and the General Counsel
may rebut this by showing the unusual nature of the disability, its causes, probable
relation to the unlawful discharge because of the hazards of interim employment,
search for work, etc. (Case citations omitted).
There are also cases dealing with the consequences of a discriminatee quitting or being
fired from an interim job.
In Newport News Shipbuilding 278 NLRB 1030, fn 1. (1986), the Board held that being
discharged from an interim job will not cause a loss of backpay due to a failure to mitigate,
unless the discharge was caused by the employee’s willful or gross misconduct. The Board also
held that although quitting an interim job may constitute a willful loss of earnings warranting a
reduction of backpay, the job being quit must be equivalent to the job that the discriminatee had
at the Respondent at the time of his or her unlawful discrimination. See also 256 Food
Corporation d/b/a Met Food, 337 NLRB 109 (2001).
(b) Lorenzo Macua
Macua was illegally discharged on July 5, 2000. (During the third quarter of 2000). At
the time of his discharge, he was employed to do physical labor in the bakery. As an employee
of J.J. Cassone, Macua’s earnings were higher than the New York or Federal minimum wage
rates. He also was entitled to other benefits such as vacation and sick pay plus the right to
participate, (after an appropriate period of eligibility), in the employer’s retirement plan. Before
his discharge, Macua had a work related injury and received a Workers’ Compensation award
relating to that injury which limited his ability to lift things with his left arm.
Macua was born in Mexico and his original language is Spanish. Before coming to the
United States, he had obtained a grade school level education and worked as a farmer. He can
neither read nor write English and can’t speak much English either. He does not drive a car and
relies on his sons to drive him to and from work. As far as I can see, Macua looks physically fit
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and is about 53 years old at the present time. Except for the period immediately after his
discharge, Macua did not suffer any disabilities or illnesses during the backpay period.
The Respondent asserts that Macua was an untruthful witness pointing to lapses in
memory and contradictions between his testimony and documentary evidence. But it must be
recalled that this hearing took place almost 10 years after his initial unlawful discharge by the
Respondent and these lapses are typical of people trying to accurately recollect events that
happened so long ago. See for example, Lizdale Knitting Mills, 232 NLRB 592, 599 (1977).
Contrary to the Respondent’s contention, I thought that Macua was an honest witness doing his
best to recollect and give detail to his search for work and his job history after his illegal
discharge. Nor am I impressed with the Respondent’s contention that Macua should have kept
better records. Macua, who is barely educated, had no legal obligation to keep records.
Allegheny Graphics, 320 NLRB 1141, 1145 (1996), enf. granted, 113 F.3 845 (8th Cir. 1997).
The backpay calculations asserted by the General Counsel were set forth in Appendix A-
5 to the Specification and in General Counsel Exhibit 77. But due to last minute revisions, this
was again revised as Exhibit C to the General Counsel’s Brief.
2000
As noted above, Macua was discharged by the Respondent in the third quarter
of 2000. Because of his pre-discharge injury, and because he had more time available
after his discharge, he underwent a course of physical therapy after his discharge.
Thus, according to Macua he started at three times per week, after which it was
reduced to two days a week and then to one day per week. According to a pre-trial
statement that Macua gave to a Board agent, he did not begin to look for work for three
to four months after his discharge because he was so physically injured that he knew
that he could not find a job. He testified that during this period of time, he did not ask
friends or family if they knew of any available work.
For the third and fourth quarters of 2000, Macua had no regular job and had, with the
exception of $160, no earnings during that period of time. He testified that during this period
and after his appointments with the physical therapist were reduced to one day a week, he
searched for work by going to his church where lists of employment openings were kept; that he
visited golf clubs; and other business in the local area and that he went to an area in
Portchester where day laborers gathered in the morning in order to seek construction or other
jobs.
Macua’s recollection of what efforts he took to look for work in the second half of
2000 is, necessarily, obscured by the passage of time. However, it seems to me that it
is more probable that Macua’s memory was more accurately portrayed at the time that
he gave a statement to a Board agent. And while it seems unfair that he should be
penalized for not being able to search for work when receiving therapy for a work
related injury that he suffered while working at the Respondent, the applicable law here
is that he is not entitled to backpay during a period of time when he was unavailable for
work due to his injury. Accordingly, I shall exclude backpay for the third quarter of 2000
but not for the fourth quarter of 2000 which is approximately when he started to look for
work.
I credit Macua’s testimony that he did in fact search for work in 2000 and did so
by asking friends about jobs; by going to his neighborhood church which had job
listings; by having his daughter in law make phone calls to possible employers; and by
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visiting a local corner in Portchester where Spanish speaking men presented
themselves each morning to prospective employers from the surrounding and more
affluent areas of Westchester and Connecticut. (A kind of informal labor exchange).
The Respondent contends that Macua failed during 2000 and thereafter to
mitigate his losses by making an inadequate search for work. I reject that contention at
least with respect to Macua’s search for work starting from the fourth quarter of 2000.
The Respondent asserts that there is another baking company in Portchester
called Neri Bakery within walking distance of Macua’s residence where he could have
sought employment. And although the Respondent presented a witness who testified
that Macua visited the retail outlet of that bakery on a regular basis, there is no evidence
that Neri had job openings at the time that Macua was seeking work in 2000 or that he
was ever offered a job at Neri. In fact, Macua credibly testified that at some point before
he obtained employment at Concrete Cutting, (described below), he asked for work at
Neri and was told that there was nothing available at that time. 1
According to the Respondent, a failure to mitigate losses by Macua and other of
the discriminatees is shown by their failure to utilize the Union to help them obtain jobs.
But this was not available to them because the Union has contracts with a limited
number of bakeries in New York, (many far distant from Portchester), and those
companies have no contractual obligation to use the union as a source of hiring. The
Union does not have a hiring hall or an active referral service.
The Respondent presented an “expert” witness who testified that in her opinion,
there were plenty of jobs that Macua could have done. Apart from the fact that this
person is not a labor economist and has little or no experience in dealing with unskilled,
non-English speaking people, her methodology in making these conclusions as relating
to Macua and the other discriminatees, was essentially useless. Basically, she looked
through the local English language newspaper and designated certain jobs that she felt
the discriminatees could fill within a 25 mile radius of where they lived. (Portchester).
She could not say if any of the listed jobs during the periods of time of their listing were
actually available or would have been suitable for or offered to Macua or the other
discriminates. In fact, many of the listed jobs required the ability to speak and/or read
and write English, a skill set that Macua and other of the discriminatees simply did not
adequately have. Moreover, many of these jobs would have required either the use of a
private vehicle or the utilization of public transportation that would have taken hours for
Macua to use each day even if he obtained a job offer.
Considering such cases as St. George Warehouse, 353 NLRB B No. 50, at page
12 (2008) and Ernst and Young, 304 NLRB 178, 179 (1991), I conclude that the “expert”
testimony has not demonstrated that Macua did not make an adequate search for work
staring in the fourth quarter of 2000 or thereafter. In fact, the evidence shows quite
clearly that Macao made a diligent search for work and was fairly successful in his
efforts. Accordingly, for the year 2000, I conclude that his backpay is as follows:

1 I note that even though Macua and the other discriminatees worked at Cassone which is a wholesale bakery, it
would not be unreasonable for them to first look for equivalent paying jobs elsewhere. The testimony regarding
Neri Bakery is that the pay rate was low, the hours exceedingly long, the job physically demanding and the non-
wage benefits minimal.
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Q3 No search for work due to injury. Net backpay = $0
Q4. Gross backpay of $5,995 –Interim earnings of $160 = Net backpay $5835
2001
Macua testified that he had no interim earnings during the first quarter of 2001 despite
his efforts to gain employment in the manner described above.
On or about May 25, 2001, Macua got a job at Concrete Cutting Company Inc., where
his rate of pay was $10.00 per hour. (He therefore commenced interim employment in week
seven of quarter 2 which begins in April). The evidence suggests that Macua worked at this
company from May 23, 2001 to mid-October 2001 when he was let go. During 2001 his
earnings from Concrete Cutting were $13,945 and the General Counsel reasonably allocated
his interim earnings by multiplying Macua’s weekly earnings, ($449.83) times the number of
weeks worked during each quarter. 2 Therefore his net backpay, (exclusive of pension, vacation
or sick leave benefits), for 2001 were as follows:
Q1. Gross backpay of $5995 –Interim earnings of $0 = Net backpay $5995
Q2. Gross backpay of $5995 –Interim earnings of $2249 = Net backpay $3746
Q3. Gross backpay of $5995 –Interim earnings of $5848= Net backpay $473.
Q4. Gross backpay of $5995 –Interim earnings of $5848= Net backpay $473.
2002
It appears that Macua worked for Concrete Cutting for most of 2002 although he left or
was more likely laid off before the end of the year. (It seems likely that Concrete Cutting was
subject to a degree of seasonality and laid off people during the winter months). A W2 form
from Concrete Cutting showed that Macua earned $21,832 during all of 2002. (He had received
a raise to $11 per hour). Since the testimony was not certain as to the dates of his employment
by Concrete Cutting, the General Counsel ultimately and justifiably allocated his yearly income
at $5458 per quarter. Therefore Macua’s net backpay, (exclusive of pension, vacation or sick
leave benefits), for 2002 should be as follows:
Q1 Gross backpay of $6028 - Interim earnings of $5458 = Net backpay $569
Q2 Gross backpay of $5692 -Interim earnings of $5458 = Net backpay $226
Q3 Gross backpay of $5692 -Interim earnings of $5458 = Net backpay $224
Q4 Gross backpay of $5719 - Interim earnings of $5458 = Net backpay $261
2003
The evidence relating to Macua’s work history in 2003 was somewhat confusing. There
is documentation that he worked during that year for Concrete Cutting, for a company called
Laro Services and for a company called CMT Home Improvements. In all, he earned $5611
from Concrete Cutting; $2516 from Laro and $1740 from CMT. The problem is figuring out
when he worked for these companies.
In an e-mail from Laro to the Board, that company stated that Macua worked for them
from May 16 to September 19, 2003. However, it is not clear at all when Macua worked for
Concrete Cutting or CMT.

2 Most numbers are rounded up to the nearest dollar.
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Macua testified that he thought he started to work for Laro in September which is in the
third quarter of 2003. The Compliance officer therefore allocated his earnings ($2516) from
Laro to that quarter.
Macua also testified that he got the job at CMT after he was laid off by Laro and we
know that he had earnings in 2003 from that Company in the amount of $1740.
Regarding Concrete Cutting, Respondent Exhibit 4 shows that Macua told the
Compliance officer that he returned to work at Concrete Cutting on or about September 23,
2003 and that he worked there until Thanksgiving in November 2003. This would represent one
week in the third quarter of 2003 and approximately 8 weeks during the fourth quarter of 2003.
Since the evidence suggests that Macua had been laid off by Concrete Cutting during
the preceding year as a seasonal event, it seems most probable that in 2003, he first worked for
Laro from the Spring to the Fall and that he worked at CMT during the hiatus between his job at
Laro and his return to Concrete Cutting. Based on the above, it appears that as Macua worked
for Laro during about half of the second quarter of 2003 and about half during the third quarter
of 2003, I will therefore allocate the total he received from Laro in equal parts to each of those
quarters. ($1258). As to the third quarter, I will also ascribe all of interim earnings, ($1740),
from CMT and $401 from Concrete Cutting to this period. Accordingly, as to the fourth quarter, I
calculate that Macua’s interim earnings from Concrete Cutting as $4910.
In light of the foregoing, I calculate Macua’s net back pay in 2003 as follows;
Q1 Gross backpay of $5556 - Interim earnings of $ 0 = Net backpay $5556
Q2 Gross backpay of $6048 -Interim earnings of $ 1258 = Net backpay $4790
Q3 Gross backpay of $5961 -Interim earnings of $ 2141 = Net backpay $3820
Q4 Gross backpay of $5365 - Interim earnings of $ 4910 = Net backpay $ 455
2004
The evidence tends to show that Macua continued to work for CMT in the first quarter of
2004 until that company closed. A W2 form from that employer shows that Macua earned
$1610 during 2004.
After losing his job at CMT, Macua resumed searching for work in the manner described
above. Based on payroll records, he obtained a job at Sodexho Management which is a
company that provided laundry services for a local hospital. These records show that he
worked at this job from March 1 to May 14, 2004, that his rate of pay was $6.80 per hour and
that his total earnings from Sodexho were $2241. (Therefore his interim earnings from Sodexho
would have been in the first and second quarters of 2004).
According to Macua, he left the Sodexho job because he obtained a better and higher
paying job in the kitchen at the Rye High School. In this regard, it seems that Macua first started
working at the school in late May through a contractor, (Labor Ready), until the end of the
school term in June. He then was put on the school’s direct payroll after the summer vacation.
The school’s records show that he was on their payroll from about September 3, 2004 until
February 25, 2005. A W2 statement shows that he earned $4476 in 2004 and $1653 in 2005.
The evidence shows that during the summer of 2004, Macua, managed to obtain
employment at a company called Guardian Services where he was employed to do manual
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labor A pay stub from Guardian shows that Macua began working on July 15, 2004 and his W2
statement shows that he earned $5,438.75 from Guardian in 2004. He was assigned to work a
shift from 6:00 p.m. to 11:00 p.m. at a commercial building located at 2000 Westchester Ave., in
Harrison, New York. Therefore, his interim earnings from Guardian during 2004 were earned
during the third and fourth quarters of that year and the evidence shows that at least for part of
the year, he worked two jobs, one at Guardian and that other at the Rye School.
In light of the above, I calculate Macua’s net back pay for 2004 as follows:
Q1 Gross backpay of $5586 - Interim earnings of $26283 = Net backpay $2958
Q2 Gross backpay of $5809 - Interim earnings of $ 22674 = Net backpay $ 3542
Q3 Gross backpay of $6440 -Interim earnings of $ 3612 5= Net backpay $ 2829
Q4 Gross backpay of $6772 - Interim earnings of $ 63936 = Net backpay $ 469
2005
After Christmas, Macua returned to the school and worked in February until the first
school break. The payroll records show that he worked until February 25 and that he earned
$1653 during the first quarter.
The Respondent contends that Macua resigned from the school job in early 2005 and
therefore should not be entitle to any further backpay. I do not agree.
The Respondent offered into evidence a letter of resignation purportedly signed by
Macua and dated February 28, 2005. This is a form letter that states:
I Lorenzo Macua have resigned my position as a food service helper at the
Rye City School District Food Service Department.
I gave notice to John M Rubbo, Food Service Director, on Monday at 1:20
p.m. of my intent to not return on Tuesday. Therefore, my last day of work
was Monday, February 14, 2005.
I understand that it is necessary for me to return my ID and cleaned
uniforms.
This form essentially is the same as other examples of resignations that have been
signed in the past by other employees. The evidence shows that these types of “resignations”
have been solicited by management, usually when an employee has not shown up for a while
and the company wants confirmation that he or she quit. The documents can therefore be used
as a means to show that an employee was not fired or laid off and therefore would not be
eligible for unemployment insurance.
Macua denied that the signature on the letter was his and denied that he ever resigned.
In fact, he testified that he was told that he could not return to work because the company had
hired another employee in his stead.

3 This figure is all earnings for CMT plus earnings made from Sodexho during the first quarter of 2004.
4 This figure includes all of the remaining earnings from Sodexho during 2004 plus his earnings from the school
before the summer break in June 2004.
5 This figure represents Macua’s earnings from the school and from Guardian during the third quarter of 2004.
6 This figure represents earnings from the school and from Guardian during the third quarter of 2004.
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I received into evidence a number of exemplars that were unquestionably signed by
Macua. I also had him quickly write his signature 10 times on a piece of paper that was then
received into evidence as an ALJ exhibit. In my opinion, the signature on the resignation letter
clearly and unequivocally does not match any signature on either the ALJ exhibit or on any of
the other established exemplars. And although the Respondent was well aware that the
General Counsel intended to challenge the assertion that Macua resigned, the Respondent did
not produce at the trial, John Rubbo, the person who allegedly obtained and witnessed Macua’
resignation. 7
Moreover, even if Macua had resigned, (which I do not believe), such resignation would
not disqualify him from back pay because the job at the school was not equivalent to his job at
Cassone. Glover Bottled Gas, 313 NLRB 43, (1993), enfd. 47 F.3d 1230 (C.C. Cir. 1995).
At the school Macua was paid $9.75 per hour. He also enrolled in a retirement plan
pursuant to which 3% of his pay was deducted and the employer matched up to some amount.
This, however, was at best, a 10 month job that ran each year from late August to mid June.
Employees were not paid for the periods between Christmas and New Years, for a week in
February and for a school break in each April. At the end of the school year, employees in the
food service department, if they were going to be retained, were given letters indicating that
there would be a job for them in the following school year. For the two months that they did not
work, they were not paid. There was no health insurance and no sick leave or vacation pay.
While it is probable that the school job was physically less demanding than the one at Cassone,
it is clear that the jobs were not equivalent. Although the pay rate at the school job was higher
than at Cassone, Macua’s total income at the school job was substantially lower than at
Cassone because he worked 27.5 hours per week on average and overtime pay was virtually
non-existent. Additionally, at Cassone, he had health care benefits, sick leave benefits and a
retirement plan.
In the meantime, Macua continued to work for Guardian and a document indicates that
he worked from January 1 through July 31, 2005. (The first and second quarters of 2005 and
about four plus weeks during the third quarter). A W2 from Guardian shows that he earned
$8329.50 during 2005. In this regard, the evidence shows that he lost his job at Guardian in
August 2005, albeit there is no evidence that he was discharged for willful or gross misconduct.8
He resumed his search for work in the manner described above.
At some point during either the third or fourth quarter of 2005, Macua was offered his job
back at Guardian but he declined because he had lost his ride to the job site. As noted above,
he was assigned to work at an office building in Harrison New York, which was a bit more than
three miles from his home. When he worked there, he typically took a bus and had a ride home
at night. (His hours were from 6 p.m. to 11 p.m.) But when his car ride was unavailable, and as
bus service ceased before 11 p.m., this would have required him to walk home, late at night, a
walk that even for a man in relatively good shape would take about 50-60 minutes. Harrison is
an affluent suburb in Westchester and Portchester is low income town nearby. I am not

7 I rejected the Respondent’s motion to reopen the record in order to have Rubbo testify in this case. See my
Order dated July 14, 2010 which is attached hereto as Appendix A.
8 In this instance, the evidence is that after receiving a leave of absence, Macua was replaced by some else. In
Newport News Shipbuilding, 278 NLRB 103, 1033 (1986), the Board held that a discharge from an interim job even
for just cause, does not necessarily result in a finding of a failure to mitigate.
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suggesting that Portchester is inherently unsafe at night. What I am concluding is that Macua’s
choice to forego this job because it would have required him to walk three miles late at night
was not unreasonable in my opinion. See Allied Lettercraft Co., 280 NLRB 979, 982 (1986).
In light of the above, I calculate Macua’s net back pay for 2005 as follows:
Q1 Gross backpay of $6924 - Interim earnings of $5262 9 = Net backpay $1662
Q2 Gross backpay of $5972- Interim earnings of $3698 = Net backpay $2362
Q3 Gross backpay of $6079 -Interim earnings of $1111 = Net backpay $4968
Q4 Gross backpay of $6234 - Interim earnings of 0 = Net backpay $6234
2006
As noted above, Macua declined a job offer from Guardian that was made to him in the
latter part of 2005. His next job did not come until September 2006 and the question is what
happened in between.
Macua testified that he searched for work in the same manner described above and
could not find a job. Although the Respondent suggests that Macua did not look hard enough, it
has not, in my opinion produced evidence either that he failed to look for work, that he quit
employment equivalent to his job at Cassone, that he turned down any equivalent job offers or
that he was discharged from any interim employer for willful or gross misconduct.
On or about September 6, 2006, Macua obtained employment as a laborer at a
company called Park Masonry. (Construction work). At this job, his rate of pay was $15 per
hour and he usually worked 40 hours a week. A document from Park Masonry shows that
Macua was employed there from September 6, through January 23, 2007. A W2 from that
company shows that he earned $8760 during 2006 and this translates into weekly earnings of
$547.50.
On September 15, 2006, Macua was rehired by Guardian for the night shift and he
worked both jobs at the same time. 10 He accepted the job this time because his son was
available to drive him to and from the job site. Macua continued to work at Guardian during the
remainder of 2006 and a W2 shows that he earned $3474 during that year which translates to
$231.63 per week. (He continued to work at Guardian during 2007 and 2008).
In view of the foregoing I conclude that his net backpay for 2006 is as follows:
Q1 Gross Backpay $5663 –Interim earnings 0 = Net backpay $5663
Q2 Gross Backpay $5850 –Interim earnings 0 = Net backpay $5850
Q3 Gross Backpay $6139 - Interim earnings $2106 = Net backpay $4213
Q4 Gross Backpay $5398 - Interim earnings $10128 = Net backpay 0

9 The General Counsel calculated that as Macua’s 2005 earnings from Guardian were $8329.50 and as he
worked at total of about 30 weeks for that company in 2005, that his weekly earnings were $277.65 per week or
$3609.45 during each of the first two quarters of 2005. For the third quarter, his interim earnings would have been
$1111 because he worked only 4 weeks during that period. This seems to me to be correct. For the first quarter, I
therefore calculate that Macua had interim earnings from Guardian and the Rye school, (both part-time jobs) that
totaled $5262.
10 The fact that Macua was willing to work two jobs at the same time indicates to me that he was no slacker.
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2007
Macua continued to work at Park Masonry until he was laid off on January 23, 2007. His
earnings from that company were $1600. He also continued to work at Guardian and his
earnings for 2007 were $13,975. This translates to $3278 per quarter.
Based on the above, I calculate Macua’s net backpay as follows:
Q1 Gross Backpay $5056 – Interim earnings $4878 =Net backpay $178
Q2 Gross Backpay $5764 – Interim earnings $3278 = Net backpay $2486
Q3 Gross Backpay $5552 – Interim earnings $3278 = Net backpay $2274
Q4 Gross Backpay $5543 – Interim earnings $3278 = Net backpay $2265
2008 and 2009
The documentary evidence shows that Macua continued to work at Guardian and that
he earned $14,036 during 2008. On or about March 1, he got a second job at the Sacred heart
High School which is located in Greenwich, Connecticut. 11 At Sacred Heart, Macua worked a
five day per week consisting of eight hours per day. His hourly rate of pay was $12.50 and his
total income from this job in 2008 was $20,791.
The General Counsel in the final revised Appendix concedes that during the second,
third and fourth quarters of 2008 and for the first quarter of 2009, Macua is owed no net
backpay because his interim earnings were greater than the gross back pay for those periods.
As to the first quarter of 2008, the evidence is that Macua’s earnings from two jobs worked
simultaneously were $5443. However, the General Counsel, relying on Performance Friction
Corp., 335 NLRB 1117, 1136 (2001) and the Section 10542.3 of the Board’s Compliance
Manual, argues that I should not deduct interim pay for hours worked in excess of the number
of hours that the discriminate would have worked at the Respondent during the same period of
time. She calculates that the deductible interim earnings for the first quarter should be
calculated on the basis of the 49.55 hours that Macua would have worked at Cassone had he
not been discharged. Therefore, the General Counsel contends that as the combined hours (65)
worked during this quarter at Guardian (25 hours per week) and at Sacred Heart (40 hours per
week) exceed 49.55, the earnings from 15.45 hours should be deducted from his interim
earnings. As the General Counsel’s calculation for interim earnings is consistent with the law, I
shall adopt her conclusion. Therefore,
Q1 Gross backpay $5862 – Interim Earnings $4819 = Net backpay $1043
In addition to the net backpay amounts described above, the Respondent owes Macua
monies for vacation pay, sick pay and pension contributions. Because I have concluded that
Macua is not entitled to backpay for the third quarter of 2000 because of his unavailability for
work, I have recalculated the amounts claimed by the General Counsel by reducing each
amount by one of the two quarters in 2000 that he was unavailable for work. (Reduction by one
half). Therefore, I conclude that the amounts are; $7,279 for vacation pay, $3,233 for sick pay
and $5,430 for the pension benefit. These amounts do not include interest which must be
added.
(c) Carbillo Flores

11 Greenwich, Connecticut is the town directly to the north of Portchester, New York.
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Flores was found to have been illegally suspended in March 2000 and thereafter illegally
discharged on September 3, 2000. It is agreed that his backpay period runs from March 8,
2000 through March 11, 2000 and from September 3, 2000 through March 3, 2009 when he
offered reinstatement. The calculations for Flores were originally set forth in Appendix A3 to the
Specification. However, the General Counsel’s final calculations are set forth in General
Counsel Exhibit 53. There is no dispute that for the first quarter of 2000, (when he was
suspended), his net backpay is $318. There is no backpay for the second quarter of 2000 as he
was still employed by Cassone.
Flores who is originally from El Salvador, worked as a laborer at the Respondent and his
hourly rate of pay at the time of his discharge was $7.05. Flores has a fifth grade education and
basically worked as a farmer before his arrival in the United States. Since arrival, he has mainly
worked a number of odd jobs which involved manual labor. In my opinion, the credible evidence
is that he neither speaks nor reads English well enough to obtain work that would require those
skills. When he worked at Cassone, he lived in Portchester and had a five minute walk to work.
Like Macua, Flores looked for work by going to the informal labor exchange that existed
in Portchester and asking various enterprises such as local restaurants and stores if they had
jobs. He did not have a car or license until 2008 and therefore was limited in the geographic
scope of his job search. Using public transportation, he did search for work in White Plains and
Portchester, New York. He also went to Greenwich and Stamford Connecticut. Usually these
efforts consisted of visiting stores, restaurants, construction sites, country clubs, etc.
In my opinion, Flores was an honest witness, who given the circumstances of testifying
about events occurring so long ago, was trying to be as detailed and accurate as possible.
There were not doubt, lapses in memory and resulting inaccuracies. But to the extent possible,
the General Counsel made substantial efforts to seek and obtain documentary evidence
regarding his job search and job history to fill in the gaps. I reject the Respondent’s contention
that Flores was an untruthful witness and I reject its contention that he had some kind of
bookkeeping obligation that should somehow adversely affect his backpay.
2000
As noted above, the parties agree that the net backpay for Flores for the first quarter is
$318 and that there is no backpay owing during the second quarter of 2000.
As in the case of Macua, the Respondent asserts that Flores should have looked for a
job at Neri Bakery. For the same reasons set forth above, I reject this contention. I also note
that a discriminatee is not under any obligation to look for any particular job or the jobs that the
Respondent would find suitable for him.
In two affidavits that he gave to Board agents in 2009, Flores recalled that he had
various jobs as a day laborer by going to the labor exchange in Portchester. In one of these
affidavits, he stated that about a week after he was discharged from Cassone, he got a job
doing work for a home owner and broke his leg. In this regard, it seems that his memory as to
the timing of these events, (that took place nine years ago), was not accurate inasmuch as the
medical records obtained by the General Counsel show that he suffered a broken ankle around
April 2001 and that he received treatment in May and June 2000.
The credible testimony of Flores is that immediately after his discharge from Cassone on
September 3, 2000 he began searching for work in the manner described above. He testified
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that he obtained a number of short term day labor jobs, generally earning between $30 to $90
per day. The General Counsel estimated that during the third quarter of 2000, Flores earned
$650 as a day laborer. This seems reasonable to me and Respondent has not shown that
earned more. 12
Through Macua, Flores managed to get a job at Park Masonry. That company’s records
show that he worked there from November 1 to December 4, 2000. The records also show that
he earned $1920 from Park Masonry during the fourth quarter of 2000. For the fourth quarter,
the General Counsel summed her estimate of what Flores earned as a day laborer plus what he
earned from Park Masonry. This yielded the sum of $3220 and the Respondent has not shown
that Flores earned more during this period.
In light of the above, I conclude that Flores’ net backpay for 2001 is as follows:
Q1. Gross backpay $318 –Interim earnings $0 = Net backpay $318
Q2. No net backpay.
Q3. Gross backpay $2122 –Interim earnings $650 = Net backpay $1472
Q4. Gross backpay $6897–Interim earnings $3220 = Net backpay $1472
2001
Flores went back to work at Park Masonry in January 2001 and that company’s records
show that he earned $1416 before being laid off. At that point, Flores went back to the
Portchester “labor exchange” and obtained work from a woman who assigned him the task of
raking leaves and cleaning the yard. The evidence is that it was at this job that Flores broke his
ankle and he was operated on at the North Westchester Hospital Center on or about April 6,
2001. The medical records show that his leg was put in a cast on May 15 and that he visited the
Mount Kisco Medical Group on June 14, 2001. According to his testimony, Flores then went for
physical therapy and used crutches for around eight weeks thereafter. He testified that he could
not put his full weight on the injured foot for about six months. He did not work during the
second and third quarters of 2001.
Flores filed a federal tax return for 2001 and he stated that he earned $5000 for the year.
(This no doubt is a guess). In any event, since Flores was unable to work due to his injury
during the second and third quarters, the General Counsel reasonably assumed that the $5000
was earned equally during the first and fourth quarters.
The General Counsel asserts that because his broken ankle occurred while working for
an interim employer, Flores should not be construed as being out of the labor market and
therefore ineligible for backpay during the period when he was unavailable for work due to the
injury. In this regard, the General Counsel cites American Mfg. Co. of Texas, 167 NLRB 520,
522 (1967) where the Board stated that “(w)here an interim disability is closely related to the
nature of the interim employment… and is not a usual incident of the hazards of living generally,
the periods of disability will not be excluded from backpay.” The General Counsel also points to
Big Three Industrial Gas, 264 NLRB 1198, 1199 (1982) where a discriminate did not have his
backpay tolled during the period of time when he was unavailable for work due to an industrial
accident suffered at an interim employer. I find these cases to be dispositive.

12 At the time of his discharge, Flores was married with a new baby. Because of his ignorance, he did not file
for unemployment insurance or public welfare. Given his family circumstances, it beggars belief that he would have
sat around all day and foregone a job search.
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I therefore conclude that the net backpay for Flores during 2001 is as follows:
Q1. Gross backpay $6897 – Interim earnings $2500 = Net backpay $4397
Q2. Gross backpay $6897 – Interim earnings $ 0 = Net backpay $6897
Q3. Gross backpay $7239 –Interim earnings $ 0 = Net backpay $7239
Q1. Gross backpay $7239 –Interim earnings $2500 = Net backpay $4829
2002
In 2002, Flores was unable to obtain a full time job. Instead, according to his credible
testimony, he worked as a day laborer and worked sporadically at numerous temporary jobs for
between $30 to $90 per day. He could not recall any particular employers but the General
Counsel offered into evidence a Social Security report that showed that Flores had earnings of
$7850. The General Counsel proposed that this be divided by four and she allocated $1962.50
for each quarter.
Based on the above, I conclude that the net backpay for Flores during 2002 is as
follows:
Q1. Gross backpay $7239 –Interim earnings $1962.50 = Net backpay $5277
Q2. Gross backpay $7239 –Interim earnings $1962.50 = Net backpay $5277
Q3. Gross backpay $7239 –Interim earnings $1962.50 = Net backpay $5277
Q4. Gross backpay $7581 –Interim earnings $1962.50 = Net backpay $5619
2003
Flores obtained a regular full time job at a cafeteria in Greenwich Connecticut sometime
around early March 2003. As his testimony was that he worked as a day laborer during January
and February in the manner described above, the General Counsel proposed that he be
charged with interim earnings of $162.50 for the first nine weeks of the first quarter. Also, the
evidence indicates that Flores worked at the cafeteria for about 18 weeks and earned $320 per
week. Therefore, it would be appropriate to add $1280 to his interim earnings during the first
quarter.
Flores’ job at the cafeteria continued into the second quarter of 2003 but ended when
the cafeteria was sold and the new owners didn’t hire him. Based on the $320 per week figure, it
is calculated that he had interim earnings for that period of $4160. Because Flores lost this job,
he resumed his job search in the manner previously described. Based on his social security
records and his tax return, the General Counsel reasonably proposed that Flores be charged
with interim earnings of $2309 for the third quarter which includes his earnings cafeteria
earnings for a portion of the first week during that quarter. She also proposes that Flores be
charged with interim earnings of $2112.50 for the fourth quarter.
Based on the above, I conclude that the net backpay for Flores during 2003 is as
follows:
Q1. Gross backpay $7581 –Interim earnings $2742 = Net backpay $4839
Q2. Gross backpay $7581 –Interim earnings $4160 = Net backpay $3421
Q3. Gross backpay $7581 –Interim earnings $2309 = Net backpay $5272
Q4. Gross backpay $7581 –Interim earnings $2112 = Net backpay $5469
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2004
Starting in 2004, Flores continued to look for and obtain day labor jobs. The General
Counsel proposed that his interim earnings for this period be calculated in the same manner as
in the year before and she arrived at the figure of $2112.
In April 2004, Flores obtained regular full-time employment at Putnam Park doing
manual labor. (As noted above, this job which was in Greenwich, Connecticut is not far from his
home in Portchester and is accessible by bicycle or public transportation). He testified that he
earned $480 per week and based on his W2 form showing that he earned $15870, the General
Counsel charged him with interim earnings of $5290 for the second, third and fourth quarters of
2004.
I therefore conclude that the net backpay for Flores during 2003 is as follows:
Q1. Gross backpay $7924 –Interim earnings $2112 = Net backpay $5811
Q2. Gross backpay $7924 –Interim earnings $5920 = Net backpay $2634
Q3. Gross backpay $7924 –Interim earnings $5920 = Net backpay $2634
Q4. Gross backpay $7924 –Interim earnings $5920 = Net backpay $2634
2005
Flores continued to work for the Putnam Park for all of 2005 and his W2 shows that he
earned $25,049 for the year. The General Counsel allocated this equally for each quarter and
accordingly, I conclude that his net backpay for 2005 is as follows:
Q1. Gross backpay $7924 –Interim earnings $6262 = Net backpay $1662
Q2. Gross backpay $7924 –Interim earnings $6262 = Net backpay $1662
Q3. Gross backpay $8266 –Interim earnings $6262 = Net backpay $2004
Q4. Gross backpay $8266 –Interim earnings $6262 = Net backpay $2004
2006
In 2006, Flores worked for Putnam Park until he was laid off during the second week of
July. His W2 shows that he earned $13,132 from this job and the General Counsel allocated
these earnings equally among the 27 weeks that he worked until July 9. This was $523 per
week. The General Counsel also tolled his backpay because Flores went to El Salvador for two
weeks during the second quarter.
Having lost his job, Flores resumed working as a day laborer and the General Counsel
estimated that he earned $162.50 per week for the remainder of the year.
Based on the above, I conclude that the net backpay for Flores during 2006 is as
follows:
Q1. Gross backpay $8266 –Interim earnings $6804 = Net backpay $1462
Q2. Gross backpay $6994 –Interim earnings $6804 = Net backpay $190
Q3. Gross backpay $8266 –Interim earnings $2473 = Net backpay $5793
Q4. Gross backpay $6359 –Interim earnings $1625 = Net backpay $4734
2007
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During the first quarter of 2007, Flores spent a week in El Salvador and also spent some
time at home caring for wife who had undergone surgery. The General Counsel therefore tolled
his backpay by three weeks.13 Thereafter, he worked as a day laborer and the General Counsel
estimated his interim earnings for this period in the same manner as described above. ($162.50
per week),
At some undetermined point in 2007, but probably in the second quarter, Flores got a job
at M & M Lawn Maintenance where he did landscaping work at Greenwich Hospital. At this job
he worked 40 hours per week and earned $12 per hour. His W2 from M & M shows his annual
income as being $10,640 while his social security records show that he earned $16,364. The
General Counsel gave the benefit of the doubt to the Respondent and assumed that he earned
$16,364 from M & M. She therefore allocated 1/3 of that amount equally to the second, third and
fourth quarters of 2007. The General Counsel also tolled Flores’ backpay by three weeks in the
fourth quarter of 2007 because he was in El Salvador.
Based on the above, I conclude that the net backpay for Flores during 2006 is as
follows:
Q1. Gross backpay $6359 –Interim earnings $1625 = Net backpay $4734
Q2. Gross backpay $8266 –Interim earnings $5455 = Net backpay $2812
Q3. Gross backpay $8266 –Interim earnings $5455 = Net backpay $2812
Q1. Gross backpay $6539 –Interim earnings $5455 = Net backpay $1085
2008
Flores continued to work for M & M until September 3, 2008 when he was effectively
discharged. According to his W2 form, his earnings from M & M in 2008 were $14,448 which
works out to $419 per week for 35 weeks. During the first quarter, Flores spent a week in El
Salvador. He also was in that country for two weeks during the second quarter and for 2.5
weeks during the third quarter.
The evidence shows that on September 4, 2008, Flores was discharged because he
overstayed his visit to El Salvador. In this regard, the evidence convinces me that there was
some misunderstanding about how long Flores was going to be out of the country. And even
assuming that the Respondent was justified in discharging Flores for this infraction, it hardly
amounts to a discharge for gross, outrageous or willful misconduct. KSM Industries, Inc., 353
NLRB No. 117 at p. 68 (2009); Cassis Management Corp., 336 NLRB 961, 967 (2001); First
Transit, Inc., 350 NLRB 825 (2007).
After his discharge from M & M, Flores resumed working as a day laborer. Additionally,
he credibly testified that he spoke to a supervisor at Neri Bakery about a job on two occasions
but did not get a job offer.14

13 I wonder if the NLRB is the only agency or judicial forum where, in determining backpay, the victim of
discrimination is precluded from receiving backpay for the time he or she spends caring for a sick or dying family
member.
14 The General Counsel points out that according to Neri’s supervisor, he received prior to 2009, about 40 job
applications per month and that he had about five to ten vacancies per month.
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For the remainder of 2008, the General Counsel estimated Flores’ interim earnings for
work as a day laborer at $127.50 per week. (This was during the midst of the great
recession).15
Based on the above, I conclude that the net backpay for Flores during 2008 is as
follows:
Q1. Gross backpay $8037 –Interim earnings $5444 = Net backpay $2592
Q2. Gross backpay $7915 –Interim earnings $5444 = Net backpay $2471
Q3. Gross backpay $6670 –Interim earnings $5444 = Net backpay $2391
Q4. Gross backpay $7256 –Interim earnings $1658 = Net backpay $5595
2009
Until the Respondent reinstated Flores, he worked as a day laborer. The General
Counsel estimated that he earned $127.50 per week during the first quarter of 2009. As in
previous years, this estimate seems reasonable to me and the Respondent has not shown that
he had higher earnings. The General Counsel tolled his gross backpay by 1.2 weeks because
Flores was in El Salvador from January 23 to February 2. I therefore conclude that his net
backpay is as follows:
Q1. Gross backpay $3531 –Interim earnings $995 = Net backpay $2536
In addition, I conclude that Flores is entitled to $10,473 for vacation pay, plus $3,442 for
sick pay, plus $7,172 for a pension benefit. Interest must be added to these amounts.
(d) Jose Castro
Castro was illegally discharged on April 4, 2000 and his backpay runs from that date
until March 4, 2009, the date that he was offered reinstatement. The General Counsel’s
proposed calculations regarding his backpay were originally set for at Appendix A-2 of the
Backpay Specification. Amendments to the Specification are contained in General Counsel
Exhibit 76, but the final position of the General Counsel is contained in Exhibit B to the Brief.
(The General Counsel acknowledged that General Counsel Exhibit 76 contained a few
mathematical errors which have been corrected in Exhibit B to the Brief). Among other things,
Exhibit B revised the gross backpay down for the first quarter of 2000 in order to account for
Castro’s testimony that he did not begin his search for work until about four weeks after he was
discharged by Cassone. 16
Castro was born in El Salvador and has a primary school education. He can speak
limited English and can read some English. Since coming to the United States he has done
manual labor or other unskilled jobs. At Cassone, he cleaned a dough machine. In my opinion,
his lack of job skills and his lack of English language skills make the universe of available jobs
for him, extremely limited.

15 I note that starting in the second quarter of 2008, the amount of overtime started to lessen at Cassone.
16 This would be in conformity with Grosvernor Resort, 350 NLRB 1197 (2007), where a Board majority held
that discriminates who failed to commence a search for work within the two week period after their discharge will
not begin to accrue backpay until they start a proper search.
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After his discharge he basically searched for work by going to stores, restaurants,
nurseries and malls in Portchester, New York and Greenwich and Stanford, Connecticut. And
whenever he found himself unemployed during the backpay period, this was his basic method
by which he searched for work.
In my opinion, Castro was a truthful witness, albeit because of the length of time that has
transpired since is unlawful discharge, it was reasonable to expect that there were some lapses
in memory and some inconsistencies with documentary evidence.
I reject the Respondent’s contention that Castro did not make an adequate search for
work. Indeed, his work record shows that apart from two quarters during the backpay period,
Castro had interim earnings during every other quarter. Thus, the Respondent’s argument that
Castro had an incentive to not work because he won a significant amount of money on three
lottery tickets in 2006, 2007 and 2008, is belied by the fact that he found work during almost all
of the backpay period. (In 2006 and 2007, he had interim earnings in every quarter. In 2008,
he had interim earnings in the first, second and fourth quarters).
2000
As noted above, the General Counsel tolled Castro’s backpay by four weeks in the
second quarter of 2000. During that quarter, Castro obtained employment at Pathmark and
earned $220.50. (I assume that this job was at the minimum wage, which was a lower rate than
Castro earned at Cassone). He worked there from June 20 to June 25, 2000 and testified that
he quit that job because he moved to a location in Greenwich that was to far for him to get to.
The Pathmark job did not provide overtime and it did not have any vacation pay or health
benefits. As such, the Pathmark job would not be construed as being equivalent employment
to the job Castro had at Cassone and his quitting would therefore not affect his backpay. 256
Food Corporation d/b/a Met Food, 337 NLRB 109 (2001).
According to Castro, his next job was at Neri’s Bakery in Portchester where he did
manual labor related to bagels. He testified that the job required heavy lifting and that when his
neck began to hurt, he asked if there was anything else he could do. According to Castro, when
he was not reassigned, he decided to quit rather than risk an injury that would not be covered by
any health insurance. Although Castro could not recall when and for how long he worked for
Neri in 2000, a review of various records relating to his employment during 2000 yielded a figure
of $412. 17 In my opinion, Castro’s reason for quitting his job at Neri would not affect his
backpay.
After Neri, Castro got a job at Wendy’s where his W2 shows that he earned $4282 and
worked for about 20 weeks. The General Counsel, based on the fact that Castro worked at
Wendy’s for the remainder of the year, allocated his interim earnings by designating $1427 to
the third quarter and $2855 to the fourth quarter.
I light of the above; I calculate Castro’s net backpay in 2000 as follows:

17 For the year 2000, the General Counsel introduced into evidence a W2 from Pathmark showing earnings of
$220.50 and a W2 from Wendy’s showing earnings of $7230 Castro’s Social Security record for 2000, of which I
take official notice, was higher by $412.13 than the sum of his earnings from Pathmark and Wendy’s. So, the
General Counsel reasonably calculated that Castro’s interim earnings from Neri, (which did not provide records),
was $412.13.
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Q2. Gross Backpay $4593 – Interim Earnings $220.50 = Net Backpay $4372
Q3. Gross Backpay $6634 – Interim Earnings $1839 = Net Backpay $4372
Q4. Gross Backpay $6634 – Interim Earnings $2855 = Net Backpay $3780
2001
Castro continued to work at Wendy’s in 2001 when he was fired after he got into an
argument with another worker. The evidence on this was that the argument involved his alleged
inability to work fast enough and there is no evidence that it was due to any gross, outrageous
or deliberate misconduct. His W2 from Wendy’s in 2001 shows that he earned $7767. Based
on his hours of work and his minimum rate wage, it appears that Castro’s earnings from
Wendy’s came during the first and second quarters and part of the third quarter of 2001. Based
on the fact that Castro worked a 35 hour week and earned the minimum wage, the General
Counsel reasonably calculated that he earned $2912 during each of the first two quarters and
$1945 during the third quarter.
The next job Castro obtained was at a McDonald’s in Greenwich. And although he could
not recall when he started, his W2 from that company shows that he earned $2928 during 2001.
Based on an application he gave to a supermarket, wherein he stated that he worked at
McDonald’s since October 6, 2001, it would appear that his earnings from McDonalds’ during
2001 were all earned in the fourth quarter.
While working at McDonald’s Castro also obtained a cashier’s job at the Food Emporium
in Greenwich where he worked from 8 a.m. to 2 p.m. A W2 from that company shows that he
earned $626 during 2001 and I received into evidence a letter from his employer that stated
Castro worked there from November 6 through December 20, and that his job was as a part-
time cashier earning $7 per hour. He was either laid off or fired from this job on December 20.
There is no evidence as to the reason. Accordingly, all of his earnings from this job were in the
fourth quarter of 2001.
Based on the above, I calculate Castro’s net backpay for 2001 as follows:
Q1. Gross Backpay $6634 – Interim Earnings $2912 = Net Backpay $3722
Q2. Gross Backpay $6634 – Interim Earnings $2912 = Net Backpay $3772
Q3. Gross Backpay $6946 – Interim Earnings $1942 = Net Backpay $5003
Q4. Gross Backpay $6946 – Interim Earnings $3553 = Net Backpay $3393
2002
Castro worked at McDonalds for the entire year and his W2 shows that he earned
$9985. The General Counsel allocated $2496 as interim earnings for each quarter.
Castro also obtained a part time job at a plant nursery in Greenwich where, based on his
W2 statement, he earned $784. He could not state when he obtained this second job or when
he left. Castro testified that he quit the job at the nursery because he experience pain in his hip
when he lifted a tree and did not want to chance an injury in a situation where he did not have
health insurance. As there was no other evidence indicating his dates of employment at the
nursery, the General Counsel reasonably divided $784 by four and allocated $196 to each
quarter.
I therefore conclude that the net backpay for Castro during 2002 is a follows:
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Q1. Gross Backpay $6946 – Interim Earnings $2692 = Net Backpay $4254
Q2. Gross Backpay $6946 – Interim Earnings $2692 = Net Backpay $4254
Q3. Gross Backpay $6946 – Interim Earnings $2692 = Net Backpay $4254
Q4. Gross Backpay $7258 – Interim Earnings $2692 = Net Backpay $4568
2003
At some point during the year Castro either quit or was fired from McDonalds after
having some kind of argument with a co-worker that was not resolved to his satisfaction by his
supervisor. There is no evidence that he was fired for gross, outrageous or deliberate
misconduct. And even assuming that he quit, the evidence is that this job was clearly not
equivalent to the job that he had at Cassone. Based on his W2 statement, his hours of work
and his pay rate, the General Counsel concluded that all of Castro’s earnings from McDonalds
were in the first and second quarter. Accordingly, she reasonably allocated $4992.50 to each of
those two quarters.
Based on his credible testimony I conclude that Castro resumed his search for work after
leaving McDonalds.
In the General Counsel’s Brief at page 58, she concedes that Castro worked at Sacred
Heart during 2003.18 Based on the testimony that he earned the minimum wage ($6.90 per
hour), and worked 13 weeks at 25 hours per week, she calculated that he earned $2242.50.
Since Castro could not recall when he worked at this job and as there is no documentation
about the job, the General Counsel divided that sum by two and allocated $1225 for each of the
third and fourth quarters of 2003.
Based on the above, I conclude that Castro’s net backpay for 2003 is as follows:
Q1. Gross Backpay $7258 – Interim Earnings $3140 = Net Backpay $4118
Q2. Gross Backpay $7258 – Interim Earnings $1401 = Net Backpay $5856
Q3. Gross Backpay $7258 – Interim Earnings $1212 = Net Backpay $6136
Q4. Gross Backpay $7258 – Interim Earnings $1212 = Net Backpay $6136
2004
In 2004, Castro got a job at Pat Longo Construction Co., in Greenwich, Connecticut
where he was employed doing unskilled labor. He did not recall when he got this job, although
a document Castro filled out for the Connecticut Department of Labor states that he began on
May 20 and ended that year on December 13. Castro testified that for the first three months, he
was paid off the books at the rate of $100 per day. Thereafter, he requested and was paid on
the books and his W2 form for 2004 shows that he earned $6669. Since he resume working at
Pat Longo in 2005, I am going to assume that it is probable that most of his earnings took place
during the third and fourth quarters of 2004 and that most of his “off book” earnings took place
during the second quarter of 2004. Castro credibly testified that his job at Pat Longo was
sporadic and to a large degree, the amount of days he worked per week depended on the
season.

18 Castro, although acknowledging that he worked at Sacred Heart for a contractor who paid him “off the
books,” had no recollection of when he worked at this job. As there is no documentation, the General Counsel
assigned these interim earnings to a period of time for which he had no documented earnings. Although done to
some degree at random, the allocation of these earnings to 2003 seems as reasonable as any other allocation.
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In calculating Castro’s 2004 interim earnings from Pat Longo, the General Counsel
assumed that the earnings listed in his W2 of $6669 should be allocated to the second, third
and fourth quarters of 2004. She also added approximately $2000 of earnings, representing
Castro’s “off book” earnings in calculating his total year’s earnings. These latter earnings were
allocated to the first and second quarters of 2004 as it seems likely that Castro earned this
money between about May 20 and mid-June 2000. In my opinion, the General Counsel
reasonably calculated that Castro worked six weeks “off the books” during the first quarter and
earned $1380 based on his estimate/guess of how many days he worked per week. For the
second quarter, the General Counsel estimated that Castro earned $1610 for seven weeks “off
the books” and $1380 for six weeks “on the books.” (Total = $2990). For the third quarter, the
General Counsel calculated Castro’s earnings at $2990. And for the fourth quarter, in which
Castro worked 10 weeks, the General Counsel calculated his interim earnings at $2300.
When he was laid off by Pat Longo in mid-December, he resumed his job search in the
manner described above.
Based on the above, I calculate Castro’s net backpay in 2004 as follows:
Q1. Gross Backpay $7569 – Interim Earnings $1380 = Net Backpay $6189
Q2. Gross Backpay $7569 – Interim Earnings $2990 = Net Backpay $4579
Q3. Gross Backpay $7569 – Interim Earnings $2990 = Net Backpay $4579
Q4. Gross Backpay $7569 – Interim Earnings $2300 = Net Backpay $5269
2005
Castro testified that he injured his hand in 2005 and could not work. Although he could
not recall when this happened, the General Counsel was willing to concede that it was probable
that it occurred during the first quarter of 2005. Therefore, the General Counsel postulated that
Castro was not available for work for three weeks in the beginning of 2005 and calculated his
gross backpay for the first quarter as being for 10 instead of 13 weeks.
Despite a search for work, Castro did not work until recalled by Pat Longo in April. His
W2 from that Company shows that he earned $5168 during 2005. As Castro could not state
when he left this company and as there is no documentation regarding his dates of employment,
the General Counsel reasonably assumed that it was probable that he was again laid off in
December due to cold temperatures that hindered the type of work done by this contractor. 19
The General Counsel reasonably calculated that Castro worked for Pat Longo for a total of 36
weeks during the second, third and fourth quarters of 2005 and that he had no interim earnings
during the first quarter of 2005. She therefore allocated the $5168 to 13 weeks in the second
quarter, 13 weeks in the third quarter and 10 weeks in the fourth quarter.
Based on the above, I calculate Castro’s net backpay for 2005 as follows:
Q1. Gross Backpay $5822 – Interim Earnings $0 = Net Backpay $5882
Q2. Gross Backpay $7569 – Interim Earnings $1866 = Net Backpay $5703
Q3. Gross Backpay $7881 – Interim Earnings $1855 = Net Backpay $6015
Q4. Gross Backpay $7881 – Interim Earnings $1436 = Net Backpay $6445

19 Basically, Pat Longo paves driveways at residences.
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2006
At some time before May 2006, Castro obtained an unskilled job with Compass Group,
an enterprise that provided cafeteria services for the State University at Purchase New York.
His W2 shows that he earned $10,721 from this job in 2006. And since he did not work or get
paid when the school was not in session, the General Counsel computed his earnings as having
been obtained by working 39 weeks and that his weekly earnings were $275 per week.
Because there was no way of determining when Castro began his employment at Compass
Group, the General Counsel divided his W2 earnings of $10,721 by 39 weeks (when school was
in session) and allocated 13 weeks of those earnings to the first quarter ($3574); seven weeks
of earnings to the second quarter ($1925); six weeks of earnings to the third quarter ($1650);
and 13 weeks of those earnings to the fourth quarter ($3573).
In addition to his earnings at Compass Group, the General Counsel attributed interim
earnings of $300 to the second quarter because Castro did some work for a neighbor. Also,
based on his testimony that he did not search for work when he visited Texas, the General
Counsel tolled Castro’s backpay by five weeks during the second quarter of 2006. As the
workers in the cafeteria are laid off in the second quarter of each year and may or may not be
recalled during the third quarter, it is probable that Castro went to Texas during the second
quarter of 2006.
The General Counsel also points out that Castro got a job at Neri Bakery working on
bagels. Neri’s payroll records show that Castro worked there for two weeks from late July to
early August 2006. The records show that at Neri he earned $6.75 per hour and that he earned
a total of $256.50.
When school reopened at SUNY, Castro was recalled to work for Compass and he left
Neri to return to that job which had a higher rate of pay and was, no doubt, physically less
demanding. Although not an equivalent job to Cassone in terms of pay, hours or benefits,
Castro continued to work at the SUNY cafeteria in 2007 and 2008.
Based on the above, I conclude that Castro’s net backpay in 2006 is as follows:
Q1. Gross Backpay $7881 – Interim Earnings $2260 = Net Backpay $6665
Q2. Gross Backpay $5456 – Interim Earnings $2904 = Net Backpay $5621
Q3. Gross Backpay $5456 – Interim Earnings $3160 = Net Backpay $2552
Q4. Gross Backpay $7881 – Interim Earnings $2904 = Net Backpay $2296
2007
Castro’s W2 shows that he earned $12,667 from Compass Group in 2007. These
earnings would have been made during only part of the year because, the workers are laid off
without pay during the late spring and summer months of each year.
During the summer of 2007, Castro collected unemployment benefits and credibly
testified that he looked for work as a laborer in the construction industry. 20
Based on the foregoing, I conclude that Castro’s net backpay for 2007 is as follows:

20 Under well established precedent, unemployment benefits are not construed to be an offset to gross backpay.
NLRB v. Gullett Gin Co., 340 U.S. 361, 364 (1951).
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Q1. Gross Backpay $8079 – Interim Earnings $4222 = Net Backpay $3857
Q2. Gross Backpay $8452 – Interim Earnings $2273 = Net Backpay $6179
Q3. Gross Backpay $7967 – Interim Earnings $1949 = Net Backpay $6018
Q4. Gross Backpay $8224 – Interim Earnings $4222 = Net Backpay $4002
2008
Castro continued in his job at Compass until late May when the school summer break
began. His W2 shows that he earned $6671 from Compass during this year. During this period,
the General Counsel calculated that Castro worked for Compass for 20 weeks during the first
and second quarters and that his weekly earnings were $334.
In late May, Castro went to Houston Texas to visit his mother who had suffered a stroke.
He was unavailable for work until September 23. His testimony was that he resumed his search
for work in later October while in Houston. Therefore, the evidence shows that Castro worked
during the first seven weeks of the second quarter and was thereafter unavailable for work for
the remainder of that quarter and for the entire third quarter.
In early November 2008, Castro got a regular full-time job in Houston at a company
called Pipeline Sear and Insulator where his rate of pay was $7 per hour. His W2 shows that he
earned $2483 at Pipeline in 2008. Based on Castro’s testimony that he did not resume looking
for work until around the last week of October, it is concluded that he was unavailable for work
during three weeks in the fourth quarter of 2008.
Based on the above, it is my conclusion that Castro’s net backpay for 2008 is as follows:
Q1. Gross Backpay $7507 – Interim Earnings $3942 = Net Backpay $3857
Q1. Gross Backpay $4762 – Interim Earnings $2729 = Net Backpay $2034
Q1. Gross Backpay $0 – Interim Earnings $0 = Net Backpay $0
Q1. Gross Backpay $5208 – Interim Earnings $2483 = Net Backpay $2483
2009
During the first quarter, Castro continued at his job at Pipeline. He continued to work at
that job until mid-February when he returned to New York. At Pipeline, Castro’s W2 shows that
he earned $2417 during the first quarter. The General Counsel also concedes that he earned
an additional $60 when he returned to New York and did some work for his neighbor. He
thereafter accepted Cassone’s March 2009 reinstatement offer and returned to work at the
Respondent. I therefore conclude that Castro’s net backpay for 2009 is:
Q1. Gross Backpay $5018 – Interim Earnings $2497 = Net Backpay $2521
In addition to the above, the Respondent owes Castro, with interest, $12,978 for
vacation pay; $3848 for sick pay and $7419 for pension benefits.
(e) Adan Aguilar
Before coming to the United States, Aguilar worked as a farmer in Mexico. He has a
grade school education and went to night school in the United States in order to learn English.
His ability to speak English seems better than Macua, Flores or Castro.
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Based on his testimony as a whole and on demeanor grounds, I conclude that Aguilar
was a truthful witness, attempting as best he could, given the passage of time, to recollect and
relate his job search and job history since his illegal discharge by Cassone.
The backpay period for Aguilar runs from the date of his suspension on November 12,
1999 until the date that the Respondent discharged him on December 20, 1999. 21 The General
Counsel concedes that Aguilar did not qualify for pension, sick or vacation benefits.
Although Aguilar did not immediately search for work when he was suspended, I would
conclude that in the absence of an explicit discharge, he could reasonably expect to return to
work within a reasonable time. I therefore would conclude that in circumstances where a
discriminate has not definitely been discharged and had a reasonable expectancy of recall, that
a discriminatee is under no obligation to search for work.
In any event, the evidence is that Aguilar did begin to search for work by around the third
week of his suspension when he began to worry that he might not be recalled.
Although he collected workers compensation benefits during his suspension, the
evidence does not show that Aguilar was unavailable to work and he credibly testified that he
did look for work during this period. In this regard, the General Counsel construed Aguilar’s
worker compensation pay of $1700 as interim earnings and subtracted this from his gross
backpay.
In light of the above, I conclude that Aguilar’s net backpay is $2904 - $1700 = $1204.
There is no money owed for vacation or sick pay or for pension benefits.
(f) Cesar Calderon
Calderon was illegally discharged on November 3, 1999 and the General Counsel
asserts that his backpay runs until March 31, 2000. As amended at the hearing, the General
Counsel contend that instead of being entitled to backpay in the fourth quarter of 1999 (when he
was discharged), Calderon is only owed backpay for the first quarter of 2000.22
As noted in the underlying case, Calderon began his employment at Cassone on August
4, 1999. He sought and obtained this job while he was a paid union organizer. That is, his
primary purpose in getting the job was to assist the Union in organizing the employees. In this
regard, the union had been involved in five or six previous organizing attempts and although
unsuccessful, one cannot help but reflect on its persistence.
When Calderon was hired, neither he nor the Union had any specific plan regarding how
long he would continue to work. But it seems obvious to me that his employment with Cassone
would probably have continued during the pendency of any election proceedings had it not been
cut short by his illegal discharge. At the time of his discharge on November 3, 1999, a Board
election had been held but the ultimate outcome was still in doubt because there were pending

21 The Board overturned the ALJ’s conclusion that the Respondent had illegally discharged Aguilar. However,
the Board also held that his suspension violated the Act.
22 It seems to me that the General Counsel essentially is conceding that Calderon did not begin his search for
alternative work until January 1, 2000.
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Objections to the Election. 23 That is, if the union’s objections were upheld, a new election
would be ordered and it would be extremely helpful to the union to have its own employee
working inside the company to continue the organizing efforts.
In Oil Capitol Sheet Metal, 349 NLRB 1348, 1349 (2007) the Board, with Liebman and
Walsh in dissent, concluded:
Given the different considerations applicable where the discriminatee is a union
salt, we decline to apply a presumption of indefinite employment and instead
shall now require the General Counsel, as part of his existing burden of proving a
reasonable gross backpay amount due, to present affirmative evidence that the
salt/discriminate, if hired, would have worked for the employer for the backpay
period claimed in the General Counsel’s compliance specification. Such
evidence may include, but is not limited to, the salt/discriminatee’s personal
circumstances, contemporaneous union policies and practices with respect to
salting campaigns, specific plans for the targeted employer, instructions or
agreements between the salt/discriminatee and union concerning the anticipated
duration of the assignment and historical data regarding the duration of
employment of salt/discriminates and other salts in similar salting campaigns.
As Calderon was the Union’s first salt, there is no prior history regarding the duration of
employment by salts. Also, there is no evidence of any agreement between him and the Union
that would indicate that they intended to limit the duration of his employment at Cassone, In fact,
in light of this union’s remarkable persistence in attempting to organize the employees of this
company, it is more than reasonable to assume that Calderon would have continued his
employment until either the Union won or perceived that its chances were nonexistent. I
therefore conclude that had Calderon not been illegally discharged, he would have continued to
work at this company past the date for which backpay is claimed.
Both parties cited Contractor Services, 351 NLRB 33, 36 (2007). In that case, the Board
held that a union salt did not mitigate his damages after being illegally discharged because he
only sought work at nonunion employers. The Board stated:
In Ferguson Electric, … the Board considered whether a professional union
organizer-discriminatee reasonably mitigated his loss of earnings by searching
for work only with nonunion employers that the union had targeted for
organizing… The Board rejected the employer’s argument for a per se rule that a
failure to mitigate damages will be found in any case where the union placed
limitations on the universe of employers to whom a paid organizer could apply for
work. The Board reasoned that “[b]y propounding its bare argument, without
supporting facts or evidence, the [employer] failed to satisfy its burden.”… The
Board also made clear, however, that if the record had shown that the organizer
failed to make a good-faith effort to follow his usual method of seeking
employment, the union’s policies unreasonably limited the organizer’s job search,

23 As noted in the underlying case, the union’s organizing campaign began in September 1999 when Calderon
passed out union authorization cards. Pursuant to a petition filed on November 2, 1999, an election was held on
December 21, 1999. The Union lost the election but filed Objections which were consolidated with the underlying
unfair labor practice case. Based on conduct found to have interfered with the employees’ free choice, the election
was set aside and a new election ordered.
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or the organizer otherwise unreasonably failed to mitigate his loss of earnings,
that evidence “would favor our finding merit in the [employer’s] contentions.”
In my opinion, the facts of the present case are substantially different from those in
Contractor Services. It would be one thing if the number of nonunion bakeries in the New York
Metropolitan area was small. But this is not the case at all. The evidence is that there are many
such bakeries in New York City, Long Island, Westchester and New Jersey. Thus, the universe
of nonunion bakeries to which Calderon sought employment was quite large. Starting in
January 2000, Calderon applied to more than 25 bakeries during an eleven week period. This
contrasts with the fact that in Contractor Services, the discriminate (Landers) was found to have
applied at 23 employers over a 46 month period and that in seven quarters during the backpay
Landers made no applications for work at all.
I am convinced that the credited evidence demonstrates that Calderon made a
reasonable and adequate search for work during the backpay period. I therefore conclude that
his net backpay is gross backpay of $5214 – interim earnings of $0 = net backpay of $5214. As
amended, the General Counsel calculated the vacation pay at $66 and the sick pay at $39.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 24
ORDER
The Respondent, J.J. Cassone Bakery, Inc., its officers, agents, successors, and assigns,
shall make payments to the following individuals in the following amounts:
Lorenzo Macua
Total net backpay of $80,195 plus interest.
Vacation pay of $7279 plus interest.
Sick pay of $3233 plus interest
Pension benefit of $5430 plus interest.
Total = $96,137
Carbilio Flores
Total net backpay of $127,327 plus interest.
Vacation pay of $10,473 plus interest.
Sick pay of $3442 plus interest
Pension benefit of $7172 plus interest.
Total = $148,414
Jose Castro
Total net backpay of $160,686 plus interest.
Vacation pay $12,978 plus interest.
Sick pay of $3848 plus interest.
Pension benefit of $7419 plus interest.

24 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.
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Total = $184,931
Adan Aguilar
Total net backpay of $1204 plus interest.
Total = $1204
Cesar Calderon
Total net backpay of $5214 plus interest.
Vacation pay $66 plus interest.
Sick pay of $39 plus interest.
Total = $5319
Dated at Washington D.C., September 7, 2010.
_________________________
Raymond P. Green
Administrative Law Judge
JD(NY)–34–10
Appendix
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
J.J. CASSONE BAKERY, INC.
And Case Nos. 2-CA-32559
2-CA-32778
BAKER, CONFECTIONARY AND 2-CA-32941
TOBACCO WORKERS &GRAIN 2-CA-33144
MILLERS UNION, LOCAL NO. 3, 2-CA-33267
AFL-CIO
And
CARBILIO FLORES, an Individual
And
LORENZO MACUA, an Individual
ORDER DENYING APPLICATION
TO REOPEN THE HEARING
On June 21, 2010, the Respondent’s counsel requested that I keep the hearing open so
that he could obtain and offer additional evidence regarding his contention that discriminate
Lorenzo Macua had resigned from an interim job at the Rye City School District. The General
Counsel opposed any further adjournments and I agreed that the hearing should be closed. I
did, however, permit the Respondent to later submit an application regarding a request to
reopen the hearing for good cause. Among other things, Respondent’s counsel indicated that
he might seek to engage a handwriting expert.
To briefly review the state of the record, the Respondent produced a witness who
testified that a “letter of resignation” purportedly signed by Macua was contained in his personal
file. This document was received into evidence as a business record, but the witness could not
testify that this was Macua’s signature and could not testify as to the circumstances under which
he allegedly signed the document.
The General Counsel then called Macua as a rebuttal witness and he testified that the
signature on the document was not his and that he did not authorize his supervisor, John
Rubbo, to sign for him. He testified that he never resigned his position at the school and that he
was told in substance, that he was laid off because the school had hired another person to
replace him.
Before the last day of the hearing, the General Counsel and the Respondent’s counsel
were aware that there was a dispute regarding whether Macua had resigned his position at the
school. And in this respect, the General Counsel had notified the Respondent that she would
not stipulate to the document that purported to be Macua’s resignation. As it is clear from the
testimony from the witness who identified the document as a business record, that similar
JD(NY)–34–10
“resignations” had been obtained by Rubbo from other employees with essentially identical
language, it should have been obvious to the Respondent that in the absence of a stipulation
from the General Counsel regarding the alleged resignation, that the Respondent would need to
call the person who either solicited or was present when Macua allegedly signed the document
that purports to be his resignation.
As the Respondent has not shown that the evidence it seeks to offer would qualify as
newly discovered or that Rubbo was not available to testify on June 21, 2010 or that it made any
efforts to obtain his testimony prior to that date, I shall deny the Respondent’s request to reopen
this record.
Dated: July 14, 2010
Raymond P. Green
Administrative Law Judge