Mezonos Maven Bakery, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 1, 2006

29-CA-025476 (N.L.R.B. Nov. 1, 2006)

JD(NY)-48-06
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

MEZONOS MAVEN BAKERY, INC.

and Case No. 29-CA-25476

PUERTO RICAN LEGAL DEFENSE
AND EDUCATION FUND

Emily De Sa, Esq., Brooklyn, NY,
for the General Counsel.
Lloyd Somer, Esq. New York, NY,
for the Respondent.
Washington Square Legal Services, Inc.,
Mayra Peters-Quintero, Esq.,
Tsedeye Gebreselassie, David Peterson, Hannah Roman,
and Heding Yang, Law Students, New York, NY, and
Marielena Hincapie, Esq., National Immigration Law Center,
Los Angeles, CA, for the Charging Party.

SUPPLEMENTAL DECISION

STEVEN DAVIS, Administrative Law Judge: The general question presented is
whether undocumented workers who are not legally authorized to work or be present in the
United States but are nevertheless covered and protected by the National Labor Relations Act
(Act) are entitled to a backpay remedy.

The specific issue to be decided is whether undocumented workers who have not
engaged in fraud or criminal activity in violation of the Immigration and Reform Act of 1986
(IRCA) in obtaining or continuing their employment are entitled to backpay where their
employer, in violation of that statute, hired and retained them knowing that they were
undocumented.

Procedural Background

Based upon a charge filed on March 5, 2003 by the Puerto Rican Legal Defense and
Education Fund (Charging Party), a complaint was issued on April 23, 2003 alleging that
Mezonos Maven Bakery, Inc. (Respondent) discharged certain employees on February 12,
2003 because they concertedly complained to it concerning their supervisor’s behavior toward
them.

Thereafter, on February 2, 2005, based upon a Settlement Stipulation executed by all
parties, the Board issued its Decision and Order [unpublished] directing the Respondent to
cease and desist from discharging employees because they complained to it about working
conditions or because they otherwise attempted to improve their working conditions. The
Respondent was ordered to offer unconditional reinstatement to Jose Antonio Quintuna
Bermeo, Antonio Gonzalez, Luis Marcelo Gonzalez Hurtado, Francisco Javier Joya, Christian
Palma, Miguel Quintuna, and Jose Armando Sax-Gutierrez “except that Respondent may avail
itself of a compliance proceeding and therein attempt to establish that one or more of the

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alleged discriminatees is not entitled to an unconditional offer of reinstatement.” The
Respondent was also directed to make the employees whole for any lost wages and other
benefits “except that if the amounts, if any, due to the employees are not agreed to, a
compliance proceeding will be commenced to litigate the amount of back pay due, if any, to said
employees.”1

The Respondent’s counsel stated here that the language concerning the availability of a
compliance proceeding was included in the Stipulation pursuant to his intention to raise a
defense that the employees were not entitled to reinstatement or backpay pursuant to the
Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. National Labor Relations
Board, 535 U.S. 137 (2002).

On March 15, 2005, the United States Court of Appeals for the Second Circuit entered
its judgment enforcing the Board’s Order. On July 28, 2005, the Regional Director issued a
Compliance Specification (Specification) setting forth the backpay owed for the seven
employees, and further asserting that backpay for six of the employees continues to run in the
absence of a valid offer of reinstatement. Backpay was tolled for the seventh employee, Miguel
Quintuna, who had already been reinstated.

The Respondent’s answer to the Specification states that it could not make a valid offer
of reinstatement to the employees or pay them backpay because it believed that they were not
legally authorized to work in the United States pursuant to Hoffman, but even if it was required
to do so, it offered them reinstatement in 2003, asking them at that time for proper
documentation, but none presented the required documents. The Respondent therefore
concluded that they were not legally authorized to work in the United States and refused to
reinstate them.

Prior to the opening of the hearing, the Charging Party filed a Motion in Limine in which it
asked that I exclude all inquiries into the employees’ documented status. The Respondent filed
an Opposition, and I issued an Order denying the Motion.

A hearing was held before me on January 31, February 1 and 2, 2006 in Brooklyn, New
York. During the hearing, the Respondent sought to examine the employees about their
documented status. Counsel for the Charging Party objected on the ground of their Fifth
Amendment privilege against self incrimination. I adjourned the hearing and, pursuant to
Section 102.31(c) of the Board’s Rules and Regulations, filed with the Board a
Recommendation that it issue an order requiring the employees to testify concerning these
matters.

While the Recommendation was pending before the Board, counsel for the General
Counsel moved to amend the Specification or her theory thereof to eliminate the issue of
whether the discriminatees were documented. She stated that for the purposes of this
proceeding she “will proceed on the assumption that the discriminatees are undocumented. We
have decided not to contest the issue of [the discriminatees’ documented] status in this
proceeding for the purposes of expediting this matter.” Counsel for the General Counsel also
moved that I withdraw my Recommendation to the Board. Counsel for the Charging Party
responded that it took no position on the motions. Counsel for the Respondent objected to the

1 According to the General Counsel, three other employees named in the Order, Angel
Bermeo, Marcos Bermeo, and Blanca Uruchina have elected not to participate in this
proceeding.

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motions. I granted the motions and withdrew my Recommendation to the Board.

The hearing was resumed and closed on August 8, 2006. On the entire record,2
including my observation of the demeanor of the witnesses, and after considering the briefs filed
by all parties, I make the following:

I. Findings of Fact

A. The Respondent’s Failure to Request
Documentation during the Employees’ Employment

Shaye Lieberman functions as the Respondent’s president, running the operation and
handling employee-related issues. His wife owns the business, and Alex Izhak, the
Respondent’s manager and admitted supervisor, reports to Mr. Lieberman.

Of the approximately 20 production workers employed by the Respondent, the seven
employees involved here were employed the longest – including Joya and Miguel Quintuna for
eight years and Jose Bermeo for five years. The seven employees made bread in the
Respondent’s wholesale bakery. They worked 65 to 75 hours in a six-day work week. None
received pay at a higher rate for working more than 40 hours per week. They were discharged
on February 12, 2003.

Lieberman testified that he knew that the Respondent is legally required to verify that its
workers are lawfully entitled to work in the United States by examining evidence of identify and
employment eligibility and completing INS Form I-9 which must be completed and signed by the
employee and the employer within three days of the employee’s hire. He stated that, consistent
with such understanding, when the seven employees were hired he asked each for
documentation which would support the completion of the I-9 form. They did not provide such
documentation at their hire. He stated that he asked them for such documentation three or four
times thereafter during the course of their employ. Each time they said that they would produce
the papers but did not. He conceded that none presented any fraudulent documents concerning
their immigration status.3

Lieberman stated that although none presented any of the required documents, he
permitted them to work. Lieberman did not terminate them after three days of work, he did not
receive a receipt for the application of such documents from any of the employees, and they
were not discharged after 90 days of work for not presenting the actual documents, as required
by IRCA. In contrast, the Respondent’s other approximately 11 workers presented the
documents required by the I-9 form at the time of their hire.

Contradicting Lieberman’s testimony, the seven employees testified consistently that
when they were hired they were not asked to produce such documents as a social security card,
birth certificate, passport, driver’s license or any other documents, and none presented any of

2 The General Counsel’s unopposed motion to correct the transcript is hereby granted as set
forth in G.C. Exhibit 14.
3 Lieberman also hired another employee, Marco Bermeo, without receiving documentation
of his immigration status. Lieberman later sponsored him for a visa. Thereafter, Bermeo was
discharged with the seven employees and was an alleged discriminatee but elected not to
participate in this matter. Lieberman subsequently rehired Bermeo but did not ask for or receive
documentation of his immigration status because of his sponsorship filing.

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the above documents on his own to the Respondent. However, four employees, Jose Antonio
Quintuna Bermeo, Antonio Gonzalez, Luis Marcelo Gonzalez Hurtado, and Francisco Javier
Joya were asked for certain documentation during their employment, as will be discussed
below. The other three workers were not asked for documentation during their hire. None were
asked to sign any paperwork either at hire or during their employment.

I cannot credit Lieberman’s testimony that at the time of the hire of the seven employees
he requested valid documentation to support their documented status. Thus, the seven
employees each credibly testified that none was asked for such documentation by Lieberman or
anyone else at the time of their hire. In addition, the four employees who were asked for
documentation during their employment presented papers which should not have been
accepted but were, such as passports and a photo identification card from countries other than
the United States. Moreover, regardless of whether the employees were asked for
documentation and did not produce it, the Respondent violated IRCA by hiring them and
continuing to employ them without receiving the proper documentation.

B. The Requests for and Offers of Reinstatement

1. The Facts

The Specification alleges that the backpay period for Jose Antonio Quintuna Bermeo,
Antonio Gonzalez, Luis Marcelo Gonzalez Hurtado, Francisco Javier Joya, Christian Palma,
and Jose Armando Sax-Gutierrez, begins on February 12, 2003, the date of their discharge, and
continues to run in the absence of a valid offer of reinstatement. The Specification also asserts
that the backpay period for Miguel Quintuna begins on February 12, 2003 and terminates on
March 5, 2003, the date he was reinstated by the Respondent. The General Counsel argues
that no valid offer of reinstatement has been made to any of the employees.

The Respondent’s answer states that it could not make a valid offer of reinstatement to
the employees because it believed that they were not legally authorized to work in the United
States. The answer further states that even if the Respondent was required to make an offer of
reinstatement, it did so in 2003 when it told them that they would be reinstated upon their
presentation of proper documentation establishing their identification and eligibility to work in the
United States. However, none presented proper documentation and it therefore concluded that
they were not legally authorized to work in the United States and refused to reinstate them.

The issues therefore are whether the Respondent was required to make offers of
reinstatement to the employees and if so, whether it has made valid offers.

One or two weeks following their discharge on February 12, 2003, the employees visited
the Respondent in two consecutive weeks in order to obtain their pay for the period that they
worked until their discharge. They received their pay without incident, but they did not request,
and were not offered reinstatement at those times.

None of the employees received any letters from the Respondent offering them
reinstatement. In March, 2003, an appointment was made with the Respondent by counsel for
the Charging Party or by a workers group, either Asociacion Tepeyac De New York or the Latin
American Workers Project, for the men to return to the plant and meet with the Respondent in
order to attempt to obtain reinstatement. The workers returned to the plant twice for that
purpose.

Regarding the first meeting, Lieberman testified that he received a letter from Asociacion

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Tepeyac pursuant to which he agreed to meet only with Jared, a representative of one of the
workers’ groups. After making this appointment but prior to the arrival of the workers, the charge
in the underlying case was filed on March 5 and Lieberman was served with a copy of the
charge. When the seven employees arrived with Jared, Lieberman refused to meet with the
workers as a group. Lieberman stated that although he was interested in having the men return
to work, he refused to speak to them at that time, did not offer them reinstatement, and
admittedly sent the workers away, telling them to contact him and that he would meet with them
individually. He did not ask them for any contact information which would enable him to contact
them later. 4

Lieberman’s testimony is somewhat different than that of the employees. They stated
that when they arrived with Jared at the shop in March, 2003, manager Izhak said that he did
not wish to speak to Jared, but would speak to the workers. The employees insisted that Jared
be present as he was needed to translate what was being said. Izhak refused to speak to the
men with Jared and they left.

About one week later, pursuant to an appointment with the Respondent, the men
returned with Oscar and Javier from the above worker organizations. Izhak asked them to go to
the office one at a time.

Lieberman testified that at the meetings with the seven employees he offered to
reinstate each of them if they produced proper documentation as to their immigration status. He
stated that the seven employees “triggered” a wage and hour investigation undertaken by the
New York State Attorney General in which their wages and hours were subject to examination.
That investigation began in 2003 at about the same time as the instant Board case. Lieberman
conceded that the employees here caused him “a lot of trouble.” However, he denied asking the
seven employees for immigration documentation in retaliation for the filing of the charge with the
Board.

Each of the seven employees testified that at their meetings, Lieberman had no forms
with him for them to fill out, they were not asked to sign anything, and he took no notes. Each
employee’s version of his meeting with Lieberman is set forth below.

Jose Antonio Quintuna Bermeo

Jose Antonio Quintuna Bermeo stated that about three years after his hire in April, 1998,
manager Izhak asked him for identification. Bermeo gave him a copy of his passport which was
issued by a country other than the United States. Izhak said that that was enough.

At the March, 2003 interview, Lieberman asked Bermeo what he was doing there.
Bermeo asked to be reinstated. Lieberman told him that he must bring a “social security, I don’t
care whether it’s real or fake,” and that he could return to work if he presented that document.
Lieberman did not state a deadline within which it had to be submitted. Bermeo asked
Lieberman why he was asking for that document now inasmuch as he did not request it when
he began work. Lieberman answered that all the employees who work downstairs have social
security numbers and “papers.” Bermeo reminded him that he worked upstairs, and Lieberman
replied that “positions are taken upstairs too.” Lieberman then said that this is his country and

4 In this connection, the employees did not give their home address or phone number, if they
had one, to the Respondent during their employ, and they were not asked to supply that
information.

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his business and he could do as he pleased.

Thereafter, Bermeo did not present the requested documents. However, a few weeks
later he returned to the plant with dischargee Antonio Gonzalez and met with Izhak. Gonzalez
asked to be reinstated, and was told that all vacant positions had been filled. When Bermeo
persisted, Izhak told him that he should bring a social security number, and he would be
reinstated. Bermeo asked why he asked for such documents now and not when he was hired.
Izhak then said that he should “drop the lawsuit and then my position will be there for me.” (On
March 5, 2003, a charge was filed alleging the unlawful discharge of the night shift employees).
Bermeo protested that he knew nothing about a lawsuit. Izhak said that he would think about it
and asked Bermeo to call him the next day.

The following day, Bermeo called and identified himself to the secretary who shortly
thereafter informed him that Izhak was not present. Izhak did not return the call. Bermeo placed
calls in the following two days but was told on each occasion that Izhak was not there. Bermeo
did not present a social security card or number thereafter.

Antonio Gonzalez

Antonio Gonzalez stated that about two years after he was hired in February, 2000,
manager Izhak told him to bring in “any type of identification ticket.” Thereafter, Gonzalez
showed Izhak his passport from another country. Izhak said that it was “enough.”

At his interview with Lieberman in March, 2003, Gonzalez was asked if he wanted to
return to work. Gonzalez said he did. Lieberman told him to return within two days with his
social security number. Gonzalez replied “o.k. That was fine.” Lieberman asked if he understood
and Gonzalez said he did.

Gonzalez did not return with the number but about one month later he visited the shop
with Jose Antonio Quintuna Bermeo, another dischargee. Bermeo asked Izhak if he could be
reinstated and was told that he could not return because new employees had taken his job.

Gonzalez did not return to the plant and did not contact the Respondent thereafter
because he believed that the Respondent did not act in good faith because (a) Lieberman
spoke in an “upset” manner and did not say that he had a job for him even if he brought his
social security card and (b) he was told by a friend who was a current employee that new
employees had been hired and were performing the same work he had been doing.

Luis Marcelo Gonzalez Hurtado

Luis Marcelo Gonzalez Hurtado stated that eight days after he began work in March,
2002, Izhak asked him for an identification card, and also asked if he had a passport. Hurtado
gave him his passport which was issued by a country other than the United States.

In March, 2003, Hurtado met with Lieberman accompanied by co-workers Palma and
Jose Antonio Quintana Bermeo. Lieberman asked them what they wanted. They asked whether
it was possible to obtain reinstatement. Lieberman replied that if they presented a social security
card and an identification card they could return to work, but if they could not present those
documents they could not be employed there. He did not set a deadline for the production of
those documents. The men asked why he requested those papers, and Lieberman replied that it
was a new rule or new law.

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The workers then asked whether the employees currently employed had presented
those documents. Lieberman said they had. The three men then requested that Lieberman
prove that those then employed had produced their papers, asking to be shown their social
security cards and identification cards. Lieberman then reacted in a “strange way” and told them
to leave. Hurtado did not thereafter present the documents requested, nor did he return to the
Respondent’s premises or attempt to contact it.

Hurtado testified that following the meetings that day, he learned from the other six
employees that all of them had been asked to present social security cards and identification
cards.

Francisco Javier Joya

Francisco Javier Joya stated that about five years after his hire in 1995, Izhak asked him
to present identification. Joya showed him a military photo identification card from a country
other than the United States.

At his March, 2003 interview, Lieberman asked him what he wanted, and Joya
responded that he wanted reinstatement. Lieberman told him to bring in a social security
number and he would be reinstated the next day. Joya replied that he had been employed for
seven years and “for the first time you are asking for a social security number.” Lieberman
repeated that if he brought a social security card he would be working tomorrow.5 Joya replied
“let’s leave it at that,” answering in that way because he believed that Lieberman’s offer was not
a “real” job offer since he had a sarcastic “facetious” grin as if he was making fun of him. Joya
did not present a social security card or number thereafter.

Christian Palma

Palma, who was hired in June, 2002, was interviewed in March, 2003 by Lieberman.
Palma was accompanied by co-worker Javier Joya who translated.

Lieberman asked Palma if he brought “the papers.” Palma asked “what papers?”
Lieberman replied “social security, passport, license, identification from his country,” adding “it
didn’t matter if it was false.” Palma answered that he did not have those documents with him at
that time, and Lieberman said that “there is nothing I can do.” Palma never brought such
documents to the Respondent. He did not contact the Respondent thereafter about obtaining
reinstatement essentially because Lieberman did not say that he would be reinstated, and while
he spoke to Palma he was smiling which Palma interpreted as an attempt to humiliate him.

Palma stated that although he went to this interview believing that he would be offered
reinstatement, Lieberman did not make such an offer.

Miguel Quintuna

Quintuna began work in 1995. He was late arriving at work on February 12, 2003 and
was not present when his co-workers were discharged. He was told by Izhak that his fellow
employees were not needed and were fired. Quintuna’s brother, Jose Antonio Quintuna
Bermeo, was one of those fired. Izhak warned Quintuna that if he left he could not return.

5 Joya testified inconsistently that Lieberman did not say when he could return to work if he
presented a social security card.

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Nevertheless, Quintuna left the premises without working that night.

When Quintuna picked up his last paycheck in late February, he was asked by Izhak
whether he wanted to return to work. Quintuna asked if there was any problem, and Izhak said
there was none. Quintuna asked to think about it and the following day called Izhak and said
that he would return to work. He was reinstated on March 5.6 When he came back to work he
was not asked for any documents such as a social security card, birth certificate or passport,
and he did not present any such documents on his own.

About one month after his return to work, Lieberman approached Quintuna at his work
station and asked him where his brother was. Quintuna said that he was at home. Lieberman
then grasped Quintuna’s shirt or lapels and shook them back and forth saying: “I don’t want to
see your brother because if he comes here he’s going to cause trouble for me.” Lieberman then
lightly tapped Quintuna on both cheeks, saying “I do not want your brother anymore,” or “tell
your brother not to come again to the bakery.” 7 Quintuna said that he would speak to his
brother. Quintuna continued to work for the Respondent until about August, 2004.

The Charging Party argues that Lieberman’s lack of good faith in asking the former
employees for proof of documented status is shown by his reinstating Quintuna without asking
for such proof. It asserts that the Respondent was thus motivated to reinstate him and not the
other workers because Lieberman regarded his brother and the others as troublemakers. In this
connection, both Quintuna and Marcos Bermeo who was also reinstated told Lieberman one
day after the walkout that they did not want to leave work, but had been threatened to do so by
other workers.8 The implication is clear that the Respondent was not interested in reinstating
troublemakers – those who asserted their rights under the Act.

Lieberman testified that he did not ask Quintuna for documentation upon his rehire
because he “sponsored” him for a visa during his employ.9 I was not cited to any authority
holding that the Respondent is relieved of its obligation to verify the employee’s documented
status upon rehire because he is being sponsored for a visa.

Jose Armando Sax-Gutierrez

Sax-Gutierrez began work in September, 2002. He attempted to obtain reinstatement in
February, 2003 before his co-workers returned to the plant for that purpose. Sax-Gutierrez went
to the plant two weeks after his discharge and told Izhak that he needed his job back. Izhak
replied that he would need identification, and asked that he call the next day. The following day
Sax-Gutierrez called, identified himself and asked the secretary to speak to Izhak. She said that
she would get Izhak, but five minutes later she told Sax-Gutierrez that Izhak did not know who
he was.

6 The Respondent’s answer admits the Specification’s allegation that he was reinstated on
March 5.
7 Quintuna’s pre-trial affidavit did not mention that he was struck by Lieberman, but it did
state that Lieberman was “very upset.” Quintuna did not protest his treatment and continued to
work thereafter without seeking medical attention, filing a police report or bringing a lawsuit.
8 Lieberman’s affidavit. C.P. Ex. 2, par. 11.
9 I sustained an objection to questions of Quintuna about the Respondent’s alleged
sponsorship based on his Fifth Amendment refusal to answer questions, Rule 102.31(c), but
permitted the Respondent to make an offer of proof.

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At his interview with Lieberman in March, 2003, Sax-Gutierrez said that he needed his
job. Lieberman replied that he needed a social security number, but did not say when it had to
be supplied. Sax-Gutierrez did not answer, but left because he believed that Lieberman
“ignored” him by not looking directly at him when he spoke to him. Sax-Gutierrez did not present
a social security card or contact the Respondent thereafter because he believed that Lieberman
was making fun of him by ignoring him, as Izhak had, as described above.

2. Analysis and Discussion

The only alleged offers of reinstatement made by the Respondent occurred shortly after
the discharges of the employees in February, 2003 at a time when it was not legally obligated to
make such alleged offers. The Board’s Order, issued two years later, in February, 2005,
directed the Respondent to make offers of reinstatement. It did not make any such offers at that
time, but relies on the meetings it had with employees two years earlier to support its belief that
they were undocumented because they did not present any documentation after being asked to
do so, and for that reason refused to reinstate them.10

I credit the testimony of the employees concerning their versions of the meetings with
Lieberman. Most of the testimony was undenied. In addition, they testified consistently
concerning what was asked of them.

Hoffman did not disturb the conditional reinstatement part of the order in A.P.R.A., 320
NLRB 408, 417 (1995), enf. 134 F.3rd 50, 56 (2nd Cir. 2001) in which the employer that hired
employees knowing that they were undocumented was required to offer immediate and full
reinstatement to the workers “provided that they complete, within a reasonable time, INS Form
I-9, including the presentation of the appropriate documents in order to allow the employer to
meet its obligations under IRCA.”

It is first questionable whether the Respondent’s alleged offers of reinstatement in
March, 2003 afforded them the “reasonable time” under A.P.R.A. to produce valid immigration
documents, particularly since the evidence does not permit a finding that it intended to keep its
offer open for a “reasonable period of time” or that it so informed the dischargees. County
Window Cleaning Co., 328 NLRB 190, 199-200 (1999). In this regard, Lieberman told Gonzalez
to return within two days with his social security number. He told Joya to bring a social security
card the next day, and when told by Palma that he had no papers with him, said that there was
nothing he could do. The implication is that if Gonzalez, Joya and Palma did not present such
documentation at that time they would not be reinstated. In this connection I am aware that
Lieberman did not set a deadline with Bermeo, Hurtado and Sax-Gutierrez for the presentation
of their documents.

The assumption applied in this case that the seven employees were undocumented at
the time of the hearing does not answer the question concerning the Respondent’s obligation,
first to validly offer reinstatement and then to leave those offers open for a reasonable time
within which they must present proof of documentation. Those obligations have not been met.

An employer’s offer of reinstatement must be specific and unequivocal in order to toll
backpay. Midwestern Personnel Services, 346 NLRB No. 58, slip op. at 1 (2006); A-1 Schmidlin
Plumbing Co., 313 NLRB 191, 192 (1993). An employer is relieved of its duty to reinstate only

10 The Respondent does not claim that it had no contact information for the dischargees. It
could have communicated with their representatives as had been done two years earlier.

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when a proper offer is made and unequivocally rejected by the employee. L.A. Water
Treatment, 263 NLRB 244, 246 (1982). If an offer of reinstatement is not a bona fide offer, or
one made in good faith, or “designed to prevent reinstatement” it will not toll backpay. Murray
Products, Inc., 228 NLRB 268, 269 (1977). The employer bears the burden of proving that a
reinstatement offer was valid. Marlene Industries Corp., 234 NLRB 285, 288 (1978). Any
ambiguity in the explanation of the offer is construed against the employer. A.P. Painting &
Improvements, Inc., 339 NLRB 1206, 1208 (2003).

Counsel for the General Counsel argued at hearing that the offers of reinstatement were
not valid for two reasons. First, although she concedes that an employer is required to demand
proof of documented status in order to fulfill its obligation under IRCA, she argues that the
Respondent did not make its request for documents for that reason. Rather, she argues that the
demand was made for an illegitimate purpose – because the Respondent believed that the
employees were undocumented it requested the documents knowing that they could not be
produced, thereby ensuring that the employees could not be reinstated.

The General Counsel further argued that for an employer to legitimately make a demand
for immigration documentation, the purpose of the request must be because it sought to comply
with the requirements of IRCA – that it hire employees lawfully entitled to work in the United
States. Here, however, by conditioning reinstatement upon providing proof of documented
status, the Respondent’s true motive was not to comply with the provisions of IRCA.

The General Counsel asserts that the Respondent’s lack of good faith is demonstrated
in its permitting employees Marco Bermeo and Miguel Quintuna to return to work without
presenting any proof of their documented status. If the Respondent was sincere in its efforts to
comply with IRCA it would have asked them to present proof of documentation prior to
reinstating them. I agree with the General Counsel. Lieberman’s argument that it did not do so
because it “sponsored” them for a visa was not supported by any evidence that it was relieved
of its obligation to demand documentation because it sponsored them. It should also be noted
that the Respondent demonstrated no interest in complying with IRCA prior to the filing of the
charge inasmuch as it did not discharge any of the employees when they failed to present
documentation at their hire or during their employment.

The Respondent’s lack of good faith is also demonstrated by Lieberman’s telling Bermeo
that he must present a “social security” which could be real or false, and his telling Palma that
he should present certain documentation and he did not care if it was false.11 It should also be
noted that Lieberman asked Palma to present identification from a foreign country which is not
among the documents listed on INS Form I-9 as an acceptable demonstration of identity or work
eligibility. Regal Recycling, Inc., 329 NLRB 355, 356 (1999).

The Respondent’s lack of good faith is further shown in Bermeo’s testimony that the
Lieberman claimed that he had filled all vacant positions and therefore none were available, and
in Izhak’s avoiding the calls of Bermeo and Sax-Gutierrez.

Bermeo also gave uncontradicted testimony that when he requested reinstatement,
admitted supervisor Izhak told him that all positions had been filled and that if he wanted

11 In this connection I am aware that Hurtado testified that he was told that Lieberman asked
all the employees to present a social security card and identification card, valid forms of
identification, but I find for the reasons set forth above, that the offers of reinstatement were not
valid.

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reinstatement he should “drop the lawsuit.” An offer to reinstate an employee conditioned on his
withdrawal of a charge is not valid and constitutes a refusal to reinstate. Midwest Hanger Co.,
221 NLRB 911, 914 (1975); Amsterdam Wrecking & Salvage Co., 196 NLRB 113, 116 (1972).
Such comments undermine and contradict the Respondent’s claim that it would reinstate the
employees if they presented proper documentation.

In addition, Lieberman’s comment to Quintuna that he did not want his brother Jose
Bermeo to return to work because he would cause “trouble” for the Respondent is further
evidence that the Respondent had no intention of reinstating the dischargees. As set forth
above, Quintuna and Marcos Bermeo, both of whom were reinstated, were identified by
Lieberman as unwilling participants in the walkout.

I accordingly find and conclude that valid offers of reinstatement have not yet been made
to the seven employees, and that backpay has not been tolled. The remainder of this Decision
deals with whether the employees are entitled to backpay, and the calculations of the proper
amount of backpay due them.

C. Undocumented Workers as Employees
and the Backpay Remedy

The principal issue here involves the statutory rights of undocumented workers who are
prohibited from entering the United States and working here but who are nevertheless employed
by willing employers. Although undocumented workers are provided the same rights under the
Act, the Respondent, relying on Hoffman, argues that the remedies available to them do not
include backpay.

1. The State of the Law Prior to Hoffman

A brief history of the state of the law as it relates to the coverage by the Act of
undocumented workers, and whether backpay is an appropriate remedy will help in the analysis
of these issues.

It has consistently been held that undocumented workers are “employees” within the
meaning of Section 2(3) of the Act and that they are entitled to its protections. Sure-Tan, Inc. v.
N.L.R.B., 467 U.S. 883, 891 (1984); Concrete Form Walls, Inc., 346 NLRB No. 80, slip op. at 3
(2006). In finding that undocumented workers are protected by the Act, the Supreme Court in
Sure-Tan noted that the Immigration and Nationality Act (INA) did not make it unlawful for an
employer to hire an undocumented worker and that the employment relationship between an
employer and an undocumented worker was not illegal under the INA. The Court observed that
the “application of the NLRA helps to assure that the wages and employment conditions of
lawful residents are not adversely affected by the competition of illegal alien employees who are
not subject to the standard terms of employment.” It held that the “Board’s enforcement of the
NLRA as to undocumented aliens is therefore clearly reconcilable with and serves the purposes
of the immigration laws….” 467 U.S. at 894.

The Court stated that “if an employer realizes that there will be no advantage under the
NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal
aliens is correspondingly lessened. In turn, if the demand for undocumented aliens declines,
there may then be fewer incentives for aliens themselves to enter this country in violation of the
federal immigration laws.” 467 U.S. at 893-894. The Court further noted that “if undocumented
alien employees were excluded from participation in union activities and from protections
against employer intimidation, there would be created a subclass of workers without a

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comparable stake in the collective goals of their legally resident co-workers, thereby eroding the
unity of all the employees and impeding effective collective bargaining.” 467 U.S at 892. In this
respect, the Supreme Court recognized that “[a]cceptance by illegal aliens of jobs on
substandard terms as to wages and working conditions can seriously depress wage scales and
working conditions of citizens and legally admitted aliens; and employment of illegal aliens
under such conditions can diminish the effectiveness of labor unions.” 467 U.S. at 892.

The Court noted that compliance proceedings must take into consideration “the objective
of deterring unauthorized immigration that is embodied in the INA.” 467 U.S. at 903.The Court
held that in order to be eligible for backpay, employees must be available for work. It found that
the Sure-Tan employees were not available for work “during any period when they were not
lawfully entitled to be present and employed in the United States.” Since the undocumented
workers were deported after being reported to the INS, the Court considered them unavailable
for work and rejected their backpay awards because they were based on a conjectural six-
month period that was beyond the statutory authority of the Board to make. The Court further
held that any other award without the “lawfully present” requirement would provide workers with
an incentive to re-enter the country illegally in violation of the INA.

Justice Brennan wrote for the dissent in arguing that “once employers, such as
petitioners, realize that they may violate the NLRA with respect to their undocumented alien
employees without fear of having to recompense those workers for lost backpay, their ‘incentive
to hire such illegal aliens’ will not decline, it will increase. And the purposes of both the NLRA
and the INA that are supposedly served by today’s decision will unquestionably be undermined.”
467 U.S. at 912.

The Court did not decide whether an undocumented worker who is not deported and
remains in the United States after being terminated in violation of the Act is considered available
for work and therefore entitled to backpay. In this respect, both the Second Circuit and the Ninth
Circuit Courts of Appeals interpreted Sure-Tan as applying only to awards of backpay to
undocumented workers who have left the country, and held that when those workers remain in
the United States after their illegal termination, they are entitled to backpay. A.P.R.A. Fuel Oil
Buyers Group, Inc., 134 F.3rd 50, 56 (2nd Cir. 2001); Local 512, Warehouse & Office Workers’ v.
N.L.R.B. (“Felbro”), 795 F.2nd 705, 719-720 (9th Cir. 1986).

The Felbro court noted that it was “improbable” that providing backpay to undocumented
workers who continued to work during the backpay period would encourage illegal entry or re-
entry to the United States. “Indeed, equalizing the backpay liability for unlawful acts against
undocumented and American workers could deter employers from hiring undocumented
workers and thus marginally reduce illegal entry to the United States.” 795 F.2nd at 720. It
concluded that awarding backpay to undocumented workers “promotes the underlying aims of
the NLRA and does not detract from the purposes of the INA.” 795 F.2nd at 722.

However, the Seventh Circuit Court of Appeals in Del Ray Tortilleria, Inc. v. N.L.R.B.,
976 F.2nd 1115, 1119 (7th Cir. 1992) reached the opposite result, holding that inasmuch as
undocumented workers had no right to be present in the United States and therefore had no
right to employment, they suffered no harm in not being awarded backpay.

IRCA, enacted in 1986, for the first time made the employment of undocumented
workers illegal. The statute “’forcefully’ made combating the employment of illegal aliens central
to ‘the policy of immigration law.’” Hoffman, 535 U.S. at 149 (2002). It sought to accomplish that
goal by deterring the employment of undocumented workers by imposing penalties on those
who hire them.

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Accordingly, IRCA placed the burden on employers to verify that their employees
possessed certain qualifying documentation in order to be legally employed in the United
States. IRCA provides for sanctions against employers of undocumented workers as the
“principal method of eliminating the job opportunities that entice unskilled, illegal immigrant labor
to the United States.” A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3rd 50, 56 (2nd Cir. 2001).

IRCA sought to deny employment to those who are not lawfully present in the United
States or who are not lawfully authorized to work in the United States. The statute made it
unlawful for an employer to (a) knowingly hire an undocumented worker (b) fail to verify that a
prospective employee possesses certain qualifying documents and (c) continue to employ
someone having learned that he is unauthorized to work in the United States. If an applicant for
employment cannot present the required documents, the applicant cannot be hired. An
employer that violates IRCA is subject to fines and criminal prosecution. However, an employer
presented with documentation which “reasonably appears on its face to be genuine” has
established an affirmative defense that it has not violated IRCA with respect to such hiring.

Significantly, IRCA does not make it unlawful for an employee to obtain employment or
work in the United States. The only employee conduct made unlawful by IRCA is that he or she
cannot tender as proof of documented status fraudulent documents including those which are
forged or counterfeit or documents of other persons. Accordingly, the seven employees here did
not violate IRCA by working in the United States even if they were undocumented.

The legislative history notes that IRCA was “not intended to limit in any way the scope of
the term ‘employee’ under the Act or the scope of the rights and protections stated in Sections 7
and 8 of that Act” and was “not intended to ‘limit the powers’ of the Board to remedy unfair
practices committed against undocumented employees.” A.P.R.A., 134 F. 3rd at 56.12

In A.P.R.A., the employer violated IRCA by hiring employees who it knew were
undocumented and then violated the Act by firing them for their union activities. The Second
Circuit Court of Appeals adopted the Board’s reasoning that precluding a backpay remedy
“would increase the incentives for employers to hire undocumented aliens… and would frustrate
the objectives of IRCA and the NLRA by undermining the deterrent effect of the monetary
penalties imposed by IRCA. Many employers … might well consider the fines to be a
‘reasonable expense more than offset by the savings of employing undocumented workers or
the perceived benefits of union avoidance.’” A.P.R.A., 134 F.3rd at 57.

The A.P.R.A. court observed that “IRCA demonstrates a Congressional intent to punish
the employers of illegal aliens, not to grant them any additional reward for their illegal actions.”
The Board’s additional remedy of reinstatement was awarded to the employees “provided that
they complete, within a reasonable time, INS Form I-9, including the presentation of the
appropriate documents in order to allow the employer to meet its obligations under IRCA”.
Backpay was awarded from the dates of their discharges to the earliest of the following: their
reinstatement by the employer, subject to compliance with the employer’s normal obligations
under IRCA, or their failure after a reasonable time to produce the documents enabling the

12 The Board has stated that “we recognize that threats involving immigration or deportation
can be particularly coercive. Such threats place in jeopardy not only the employees’ jobs and
working conditions, but also their ability to remain in their homes in the United States.” North
Hills Office Services, 346 NLRB No. 96, slip op. at 4 (2006), citing Smithfield Packing Co., 344
NLRB No. 1, slip op. at 9 (2004).

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employer to meet its obligations under IRCA to verify their eligibility for employment in the
United States.

2. The Effect of Hoffman

Thereafter, the Supreme Court decided Hoffman Plastic Compounds, Inc. v. N.L.R.B.,
535 U.S. 137, 149 (2002). In that case, employee Jose Castro fraudulently presented to his
employer upon his hire the birth certificate of another person. The employer learned of his
undocumented status for the first time at a Board compliance hearing following his unlawful
discharge.

In denying a backpay remedy, the Court held that federal immigration policy as set forth
in IRCA forecloses the Board from awarding backpay to an undocumented worker who has
never been legally authorized to work in the United States. The Court held that the Board’s
backpay remedy conflicted with the policies of IRCA which was outside the Board’s competence
to administer.

The Respondent relies on Hoffman in arguing that no backpay is due to the seven
discriminatees here because it believed that they were undocumented since they failed to
present documentation upon being offered reinstatement in February, 2003. The Respondent
attempts to successfully play both statutes against each other – discharging employees in
violation of the Act and then arguing that no backpay is due because the dischargees are
undocumented, a fact it was aware of for up to eight years.

Regrettably, many employers turn a blind eye to immigration
status during the hiring process; their aim is to assemble a
workforce that is both cheap to employ and that minimizes their
risk of being reported for violations of statutory rights. Therefore,
employers have a perverse incentive to ignore immigration laws at
the time of hiring but insist upon their enforcement when their
employees complain. Rivera v. Nibco, Inc., 364 F. 3rd 1057, 1072
(9th Cir. 2004).

It is significant that the two essential facts in Hoffman (a) that Castro criminally violated
IRCA by presenting fraudulent documents to his employer and (b) that employer Hoffman did
not violate IRCA but hired Castro with no knowledge that he was undocumented are absent
here. The reverse is true in this case. The seven employees did not present fraudulent
documents to the Respondent and did not violate IRCA, but the Respondent violated IRCA by
knowingly hiring them and continuing their employment without evidence that they were
documented.

Therefore, the Court’s express concern that awarding backpay would condone criminal
conduct by an employee is not applicable here. Accordingly, the Court’s emphasis that the
employee was the wrongdoer while the employer was innocent of wrongdoing is not a factor
here.

In contrast, in failing to verify its employees’ documentation and continuing to employ the
seven discriminatees with knowledge of their undocumented status, the Respondent is the
wrongdoer while the employees are innocent of violating IRCA. Thus, the Respondent should
not be permitted to evade its liability for backpay. Just as the Court denied a remedy to the
wrongdoing party, employee Castro who presented fraudulent immigration documents, here the
Respondent is the sole wrongdoer since it violated IRCA in hiring the workers without obtaining

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proof of their documented status. Accordingly, the Respondent should not be rewarded for
knowingly and intentionally violating IRCA and the Act.

Justice Breyer’s dissent in Hoffman poses the question presented here:

Were the Board forbidden to assess backpay against a knowing
employer – a circumstance not before us today, this perverse
economic incentive, which runs directly contrary to the
immigrations statute’s basic objective, would be obvious and
serious. 535 U.S. at 155 (emphasis in original)

The majority opinion did not disavow or disapprove of Justice Breyer’s hypothetical
observation.

Where an employer knowingly violates IRCA a holding denying backpay provides the
employer with an incentive to violate that statute. It would know that it could avoid a monetary
award of backpay simply by hiring undocumented workers in violation of IRCA. The knowing
employer cannot claim that it would not have hired the undocumented worker had it known of
his undocumented status, or that it would have terminated him when it learned of his
undocumented status. Accordingly, no conflict between the two statutes exists in this case since
the Respondent knowingly violated IRCA and the employees did not.

Justice Breyer’s concern is consistent with IRCA’s express language which prohibits an
employer from knowingly hiring an undocumented worker, failing to verify that he possesses
qualifying documents, and continuing to employ him having learned that he is unauthorized to
work in the United States. Thus, the main object of IRCA is to deter employers from knowingly
hiring and continuing to employ such workers. A denial of backpay here would encourage
employers to hire undocumented workers.

It is important to note that prior to Hoffman, the Board consistently held that IRCA did not
preclude the award of backpay to employees whose employer hired them knowing that they
were undocumented. A.P.R.A., 320 NLRB 408 (1995), enf. 134 F.3rd 50, 56 (2nd Cir. 2001); Met
Food, 337 NLRB 109 (2001); Regal Recycling, Inc., 329 NLRB 355 (1999); County Window
Cleaning Co., 328 NLRB 190, fn. 2 (1999), where the Board stated that “it is clear that
undocumented aliens are employees under Sec. 2(3) of the Act and, thus, are entitled to the
protections and remedies of the Act.”

In his dissenting opinion in Hoffman, Justice Breyer stated that nothing in IRCA prohibits
an award of backpay to undocumented workers. He noted that the purpose of backpay awards
includes deterrence – discouraging employers from violating the Act, and that by denying a
backpay award the wrongdoing employer benefits from his violation of both the Act and IRCA
while the employee achieves no remedy. Such a result “increases the employer’s incentive to
find and to hire illegal-alien employees.” 535 U.S. at 155.

Thus, according to Justice Breyer, Hoffman accomplishes what the Sure-Tan Court
sought to avoid: employers benefiting by hiring undocumented workers thereby creating
incentives for more workers to enter the country illegally, forming a subclass of workers with few
remedies thereby weakening labor conditions and protections for all workers. 535 U.S. at 157.

Justice Breyer observed that according to the legislative history of IRCA, the “general
purpose of [the statute] is to diminish the attractive force of employment, which like a ‘magnet’
pulls illegal immigrants toward the United States.” Hoffman, 535 U.S. at 155, 156. The

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“willingness of many illegal immigrants to accept low wages and substandard conditions makes
them attractive to some employers who are ready to ‘exploit [them as a] source of labor’ often to
the detriment of United States workers whose wages are depressed or whose jobs are lost.”
A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3rd at 55-56 (2nd Cir. 2001).

“A policy of applying the labor laws must encompass a policy of enforcing the labor laws
effectively. Otherwise, ‘we would leave helpless the very persons who most need protection
from exploitative employer practices.’” Hoffman, dissenting opinion, 535 U.S. at 156. (emphasis
in original) Justice Breyer also described backpay as the only tool in the Board’s “remedial
arsenal” which is meaningful, and that by prohibiting an award of backpay, employers could flout
the labor laws “at least once with impunity.” He further stated that “the backpay remedy is
necessary; it helps make labor law enforcement credible; it makes clear that violating the labor
laws will not pay.” 535 U.S. at 154. Thus, although undocumented workers are protected by the
Act they should not be disqualified from sharing in the same remedies as workers who are
documented.

Accordingly, in enacting IRCA Congress believed that the continued enforcement of
worker protection laws including the Act for documented and undocumented workers would
remove the economic incentive for employers to hire undocumented workers. In the legislative
history, set forth above, which stated that IRCA was “not intended to ‘limit the powers’ of the
Board to remedy unfair practices committed against undocumented employees,” it is clear that
Congress sought to complement rather than replace the remedies provided by the Act with the
sanctions provided by IRCA. Its intent in enacting IRCA was that such workers continue to be
protected by the Act. Where employees are protected by the Act they must also benefit from its
remedies, otherwise the Act’s protection is a meaningless promise. A backpay remedy here is
appropriate to make whole the employees who are innocent of any violations of IRCA.

It is clear that a backpay remedy here will effectuate the policies of the Act while at the
same time be compatible with IRCA. Section 10(c) of the Act provides that the Board shall
provide such remedies including “reinstatement of employees with or without backpay, as will
effectuate the policies of this Act.” The Supreme Court has recognized that Section 10(c) vests
in the Board “the primary responsibility and broad discretion to devise remedies that effectuate
the policies of the Act, subject only to limited judicial review.” Sure-Tan, Inc. v. N.L.R.B., 467
U.S. 883, 898-899 (1984). “The power to command affirmative action is remedial, not punitive,
and is to be exercised in aid of the Board’s authority to restrain violations and as a means of
removing or avoiding the consequences of violation where those consequences are of a kind to
thwart the purposes of the Act. Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 236 (1938).

In N.L.R.B. v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263 (1969), the Supreme Court
stated:

The legitimacy of back pay as a remedy for unlawful discharge …
is beyond dispute, and the purpose of the remedy is clear. A back
pay order is a reparation order designed to vindicate the public
policy of the statute by making the employees whole for losses
suffered on account of an unfair labor practice.

The purpose of a backpay remedy is remedial – an aid in repairing the harm to
employees. The main purpose of awarding backpay is to make employees whole for losses
caused by their employer’s unfair labor practices. An award of backpay vindicates the policy of
the Act and may deter similar illegal conduct of other employers in the future.

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Monetary penalties are effective in deterring future conduct, and without them,
employers have more, not less incentive to hire undocumented workers. Non-monetary
remedies including a cease and desist order and the posting of a notice do not make the
employee whole for his wrongful discharge. By denying a backpay remedy, an employer has an
incentive to increase its employment of undocumented workers by removing any real remedy for
violating the Act, thus undermining the purpose of the Act and the effectiveness of its monetary
remedies.

A backpay award also serves to deter the commission of future unfair labor practices by
preventing wrongdoers from benefiting from their unlawful conduct. Rutter-Rex, above, 396 U.S.
at 265. An award of backpay “does not create an additional incentive for unscrupulous
employers to employ illegal aliens … and helps to ensure that employers who comply with IRCA
do not suffer a competitive disadvantage for their obedience to the law.” A.P.R.A., 134 F. 3rd at
57. On the other hand, in being awarded backpay, employees do not receive compensation for
entering the United States without authorization. Rather, they are being made whole for the
Respondent’s unlawful act in discharging them. If a backpay remedy is equally applied to
undocumented as well as documented workers, employers will have no incentive to hire
undocumented workers because there will be no benefit to unlawfully firing an undocumented
worker.

It would be anomalous to hold that undocumented workers are not entitled to backpay
despite the well-settled principal that they are employees under the Act who are intended to be
protected by it. A right is meaningless if it cannot be enforced. If they are covered by the Act
such protection must be accompanied by a meaningful backpay remedy. Justice Breyer noted
that denying undocumented workers backpay “undermines the public policies that underlie the
Nation’s labor laws.” 535 U.S. at 160. A backpay award serves to fulfill the promise of the Act
made more than seventy years ago that a remedy is available for employees covered and
protected by it who are victims of discrimination while at the same time innocent of wrongdoing.
The Board “honors our responsibility to protect the rights of those covered by the Act.” Oakwood
Healthcare, Inc., 348 NLRB No. 37, slip op. at 1 (2006).

An award of backpay which would serve to deter employers from knowingly hiring
undocumented workers outweighs any unjust enrichment of the undocumented worker who
remains in the United States illegally. In this regard, undocumented workers who have been
unlawfully discharged from jobs in this country have already made the decision to unlawfully
enter and remain here in order to work. It is too speculative to contend that people will enter the
United States illegally only to obtain backpay in the event that they are illegally discharged.

The Hoffman majority noted that Castro could not mitigate damages as he is required to
do by legally seeking interim employment following his discharge. However, as demonstrated in
this hearing, the seven undocumented workers all obtained employment following their
discharges. It is a fact that once in the United States, although here illegally, undocumented
workers will find a way to work and will find employers willing, if not eager to employ them.

If a backpay remedy is denied, the seven employees would be held responsible for the
Respondent’s violation of IRCA. Denying an award of backpay would punish the employees,
benefit the wrongdoer, condone the employment of undocumented workers and place the risk
associated with such employment on the employees instead of the employer. However, by
requiring the employer to pay backpay to undocumented workers, the employer will have no

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incentive to hire undocumented workers because there will be no benefit in violating the Act.13

Enforcement of the Act enhances the mission of IRCA. Imposing a backpay award on an
employer which violates the Act serves the same purpose as fining an employer for employing
an undocumented worker. Both sanctions discourage employers from hiring undocumented
workers. Awarding backpay to such workers will not impinge upon the nation’s immigration
policy – it will enhance it. Such actions would help to deter the unlawful activity that both the Act
and IRCA seek to prevent. Employers that knowingly violate both IRCA and the Act should have
penalties imposed under both statutes. An award of backpay would create no conflict between
the two statutes where, as here, the Respondent seeks to benefit from its violation of IRCA
while at the same time the employees have not violated that statute.

I accordingly find and conclude that the seven employees are entitled to backpay.

D. Backpay Calculations

1. Gross Backpay and Backpay Period

The Specification alleges and the Respondent admits that, except for its Hoffman
defense, the gross backpay figures and the way in which they were calculated are accurate.
The Respondent stipulated that for the seven employees it (a) maintained no payroll records
during their employment which would show the days and hours they worked or their rates of pay
(b) paid them in cash and no deductions were made on their behalf for federal, state or city
taxes or for social security and (c) did not issue W-2 forms during their employment with it.

The reinstatement remedy established in A.P.R.A. relating to the unlawful discharge of
undocumented employees knowingly hired by their employer in violation of IRCA was not
disturbed by Hoffman and applies here. Backpay was awarded from the dates of their
discharges to the earliest of the following: their reinstatement by the employer subject to
compliance with the employer’s normal obligations under IRCA, or their failure after a
reasonable time to produce the documents enabling the employer to meet its obligations under
IRCA to verify their eligibility for employment in the United States. As set forth above, I have
found that no valid offers of reinstatement have been made to any of the seven employees.
Accordingly, their backpay continues to run for all seven workers except Miguel Quintuna who
has already been reinstated.

The Specification alleges that the backpay period for Jose Antonio Quintuna Bermeo,
Antonio Gonzalez, Luis Marcelo Gonzalez Hurtado, Francisco Javier Joya, Christian Palma,
and Jose Armando Sax-Gutierrez, begins on February 12, 2003, the date of their discharge by
the Respondent, and continues to run in the absence of a valid offer of reinstatement. The
Specification also asserts that the backpay period for Miguel Quintuna begins on February 12,
2003 and terminates on March 5, 2003, the date he was reinstated by the Respondent.

2. Interim Employment

13 “[E]very case citing Hoffman since it was rendered has either distinguished itself from it or
has limited it greatly.” Cano v. Mallory Management, 760 N.Y.S. 2nd 816, 818 (N.Y.S.C. 2003);
See also Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2nd 295, 321-324 (D.N.J. 2005); Singh v.
Jutla, 214 F. Supp 2nd 1056, 1061-1062 (N.D. CA 2002); Zeng Liu v. Donna Karan Intl., Inc.,
207 F. Supp 2nd 191 (S.D.N.Y. 2002); Balbuena v. IDR Realty LLC, 6 N.Y. 3rd 338, 350-360 (Ct.
Appeals 2006).

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The Specification, which was issued on July 28, 2005, contains interim earnings figures
only through the first quarter of 2005, ending on March 31, 2005. Evidence concerning interim
employment and earnings from that date to the date of the hearing was testified to by the
employees. I have revised and updated the interim earnings and backpay amounts through the
fourth quarter of 2005 based on the employees’ testimony in January and February, 2006, and I
have set forth such revised backpay calculations in appendices at the end of this Decision. In
some cases, the testimony of the employees differs from the Specification. I have attempted to
reconcile the differences as discussed below.

Hurtado and Joya were paid by check by their interim employers, but did not retain
copies of the checks or check stubs. The other five employees were paid in cash and received
no written documentation such as pay receipts of their hours worked or earnings received from
their interim employers. None of the seven employees provided written documentation of their
interim earnings to the Regional Office, and none kept any written records of his search for
interim employment.

Jose Antonio Quintuna Bermeo

Bermeo testified that following his discharge he found it difficult to search for work
because he had to attend meetings with the Charging Party’s attorneys in an effort to obtain
reinstatement. He stated that he was so engaged about twice per week, with his first meeting
one week after his discharge which consumed three to four hours. That day he did not search
for interim employment.

Bermeo looked for work at about three bakeries and was told that no jobs were available
because it was the slow season. He could not recall any of the names of the bakeries but gave
the street names for two of the companies. He also stood at a location where contractors pick
up day laborers but he was not selected for such work. During the period of time that he was not
employed he paid his rent from his savings.

Bermeo became employed at Verrazano Tile in about April, 2003. He testified that his
weekly starting salary was $410 with no overtime. Six months later, in October, 2003, his salary
was increased to $520 at which time he received another $50 per week in overtime pay. Later
he received a raise to $600 per week. Although he did not testify as to when he received that
raise, the Specification states that it began in January, 2005 and I accept that date. He further
testified that his wage was increased to $720 per week. He did not know when he received that
raise but he said that it was in 2005, “a long time” before the February, 2006 hearing. Based on
the facts concerning his history of wage raises, I find that he received the increase to $720 in
July, 2005, six months after the January, 2005 raise.

Bermeo remained employed at Verrazano at the time of the hearing. He lives in Brooklyn
and traveled to work in Staten Island by bus when he began work at Verrazano, but beginning in
October, 2005 was driven to work by a co-worker.

The Specification states that Bermeo earned $420 per week plus $50 per month
overtime while employed at Verrazano Tile. In January, 2004 his salary was increased to $520,
and in June, 2004 he no longer received overtime pay. In January, 2005 his salary was
increased to $600 per week.

There is thus a discrepancy concerning interim earnings between Bermeo’s hearing
testimony and the Specification. Although the Specification states that Gonzalez initially earned

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$420 per week and $50 per month overtime, he testified that his starting salary at Verrazano
was $410 per week with no overtime. Using those figures, he thus testified to receiving less
interim earnings than set forth in the Specification. However, inasmuch as the General Counsel
has admitted a higher interim earnings figure as set forth in the Specification and has not
amended that figure, and no notice has been given the Respondent that such a figure is
incorrect, the Respondent had no opportunity to rebut the interim earnings as testified. Laredo
Packing Co., 264 NLRB 245, 248 (1982). Accordingly, I will retain the Specification’s higher
interim earnings figures of $4715 and $5610 and thus lower net backpay as set forth in the
second and third quarters of 2003.

Bermeo testified that he began earning $520 per week plus $50 per week overtime in
October, 2003 through December, 2003. (fourth quarter of 2003). This conflicts with the
Specification’s statement that he began earning $520 in January, 2004. I will rely on his hearing
testimony as the most accurate account of his interim earnings where he testified to higher
interim earnings than that set forth in the Specification. See Local 294, Teamsters, 208 NLRB
445, 449 (1974). This finding is supported by the fact that he kept no record of his interim
earnings. Accordingly, I shall revise the Specification’s calculations to state that he received
higher interim earnings, as follows: For the fourth quarter of 2003 his interim earnings were
$7410. ($520 x 13 weeks + $50 x 13 weeks).

According to his testimony, Bermeo continued to be paid $520 per week for the 2004
calendar year and $50 per week overtime only through June, 2004.14 Accordingly his interim
earnings continued to be $7410 per quarter through the second quarter of 2004. However, in
the third and fourth quarters of 2004, his interim earnings were $6760 due to the loss of
overtime pay. ($520 x 13 weeks).

According to Bermeo’s testimony, he received a weekly wage of $600 in January, 2005,
and later earned $720 per week. As set forth in the Specification, inasmuch as his interim
earnings exceeded his gross backpay for the first quarter of 2005 at his wage of $600, he is not
entitled to backpay from the first quarter of 2005 and thereafter.

I have reduced Bermeo’s interim expenses in the fourth quarter of 2005 by $312
consistent with his testimony that he was driven to work by a co-worker and no longer used
public transportation. He did not testify that he reimbursed the co-worker for his travel expenses.
In any event, his interim earnings in that quarter exceeded his gross backpay even without the
reduction so that he is entitled to no backpay for that quarter.

Antonio Gonzalez

Following his discharge, Gonzalez looked for work for two months before he became
employed. His search was done by walking in Brooklyn two to three days per week for two to
three hours each day. He did not look for work at the New York State Department of Labor,
employment agencies, on the internet or in newspapers.

Gonzalez testified that he began work at All Type Auto Repair in about March, 2003. He
worked 40 hours per week and his initial salary was $60 per day for five days’ work, or a total of
$300 per week. He was employed at All Type at the time of the hearing. In about September,
2004, Gonzalez received a raise of $5 per day, earning a total of $305 per week.

14 In this respect, I accept the Stipulation’s statement that he stopped receiving overtime pay
in June, 2004. He did not testify differently.

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The Specification states that Gonzalez’ initial salary was $250 per week and in late
December, 2003 he received a raise to $275. On January 1, 2005, his weekly salary was
increased to $300.

There is thus a discrepancy concerning interim earnings between Gonzalez’ hearing
testimony and the Specification. Although the Specification states that Gonzalez initially earned
$250 per week and was ultimately raised to $300, he testified that his starting salary was $300
per week and he received a $5.00 raise in September, 2004. For the reasons set forth above, I
rely on his hearing testimony as opposed to the Specification’s statements. Accordingly, I will
revise the computations consistent with his testimony to set forth that Gonzales’ interim
earnings were higher than set forth in the Specification. They consisted of $3900 per quarter
($300 per week x 13 weeks) from the second quarter of 2003 through the third quarter of 2004,
and $3965 per quarter ($305 per week x 13 weeks) from the fourth quarter of 2004 through the
fourth quarter of 2005.

Luis Marcelo Gonzalez Hurtado

Hurtado testified that he immediately searched for work by daily visiting employment
agencies in Jackson Heights, Queens. He did not recall the names of those agencies. He first
made such visits once per week. His first job following his discharge was at a restaurant where
he worked for one week as a dishwasher in about May, 2003. He did not like that job and quit.
He worked eight hours per day, six days per week, and earned $7.00 per hour. That position is
not reported in the Specification and I shall accordingly increase his interim earnings for the
second quarter of 2003 by $336.

Hurtado next worked in about June, 2003 at a demolition company in Queens whose
name he does not recall. He testified that he earned $7.00 per hour and worked there 45 hours
per week for two to three weeks.

The Specification states that Hurtado worked at the demolition company only 24 hours
per week and earned $7.50 per hour. According to the Specification, he worked at that job for
nine weeks, earning a total of $1620.00. At hearing, he explained the difference in his hours by
stating that his working hours varied – some weeks he was employed 24 hours per week and
other weeks 45 hours. Based on his testimony and the lack of documentary evidence, I find that
he worked 24 hours per week for six weeks at $7.50 per hour and that he worked 45 hours per
week for three weeks (consistent with his testimony) at a rate of $7.00 per hour.

Accordingly, the Specification will be revised to state that for the second quarter of 2003,
Hurtado received higher interim earnings, earning a total of $2361.00. That figure is the sum of
$1080 ($7.50 x 24 hours x 6 weeks) and $945 ($7.00 x 45 hours x 3 weeks) plus $336 for his
one week’s work as a dishwasher.

Hurtado testified that thereafter, he had two periods of employment with the same
construction/demolition company in Queens. In his first period of employment, which was for the
month of September, 2003, he worked six days per week earning $60 per day. In his next
period of employment he worked for 10 hours per day for 3 days per week, earning $7.00 per
hour. Earnings for both companies are accurately contained in the Specification.

Hurtado testified that he next became employed in a bakery where he was employed at
the time of the hearing. When he began work in about April, 2004, he earned $360 for a six day
week, but by the time of the hearing his salary was increased to $68 per day for a six day week.

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He did not know when his wage was increased, and indeed testified that he did not receive a
raise in pay. However, it is likely, as he testified, that inasmuch as he worked there for ten
months by the time of the hearing he did receive a raise to $68 per day. Accordingly, I shall
revise the Specification to state that his interim earnings in the fourth quarter of 2004 were
$5304, which is higher than that set forth. ($68 per day x 6 days x 13 weeks).

Francisco Javier Joya

Joya first began looking for work about three or four weeks after his discharge, but
explained that he did not look for work because he could not find a job. He searched for work in
Brooklyn by applying in person at bakeries, but did not look for work elsewhere.

Joya eventually worked as a day laborer three or four days a week for three to four
weeks earning $70 per day. He also worked in construction at Breant Company where he
earned $8.00 per hour by check and worked 35 to 40 hours per week. He was employed there
for about 1½ months. He left because he did not like construction work.

In about May, 2003, Joya became employed by Panificio Bakery where he worked five
to six days per week and was paid $90 per day. He worked there for three to four months.
Panificio was sold to Reliable Bakery and he was transferred to that company. He began at a
daily salary of $75 and worked seven days per week, then in mid April, 2004, he worked six
days, and in early October, 2004, he resumed working seven days per week. In 2005 he
received a raise to $80 per day.

Inasmuch as the 2005 pay raise is not reflected in the Specification, I shall revise it to
state that in each quarter in 2005, Joya’s interim earnings were $7280. ($80 x 7 days x 13
weeks).

Christian Palma

Palma testified that following his discharge on February 12, 2003, he immediately
searched for work four to five days per week by looking in help-wanted ads in El Diario, a
Hispanic language newspaper. He called certain advertisers including about four to five car
washes and one company which cleaned offices. The ads for car washes resulted in four job
interviews but by the time he was interviewed the company had already hired the one or two
workers needed. His afternoons were spent doing personal errands. He also asked his friends if
they knew whether any jobs were available.

Palma responded to an ad placed in El Diario by Car Spa and was hired in about April,
2003 where he continued to work at the time of the hearing. He is employed from 8:00 a.m. to 6
or 7:00 p.m. six days per week, or about 50 to 60 hours per week. Palma testified that his initial
wage was $5.00 per hour and he received a 50 cent raise in June or July, 2003, after which his
wage was reduced in August, 2004 for two months to $5.00 per hour, but later his wage was
raised to $5.50. He received another 50 cent raise in about October, 2005. His wage from
September, 2005 to the date of the hearing was thus $6.00 per hour.

The Specification states that Palma earned $5.50 per hour based on a 55 hour work-
week plus $25 in tips six days per week. It further states that in March, 2004, his work-week was
reduced to 45 hours and his tips reduced to $15 per day, but he continued to work six days per
week. On May 10, 2004, his work-week was reduced to 37 hours, but his tips and days of work
remained the same. In July, 2004, his salary was reduced to $5.00 per hour and his weekly
hours of work were increased to 44½, and his tips and days of work remained the same.

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Thus Palma testified that he received a wage of $5 to $15 per day and $30 to $35 per
week in tips, but the Specification is based on his earning a wage of $25 and $15 per day in
tips, six days per week. I will not disturb the Specification’s figures in this regard particularly
since his testimony is self-contradictory. Thus, although the Specification states that his lowest
daily tip total was $15 he testified that it was only $5.

Palma testified that from the second quarter of 2004 through the fourth quarter of 2005,
his wage varied from $5.00 to $6.00 per hour. In August, 2004, he received $5.00 per hour for
two months and then $5.50 from October, 2004 to October, 2005 when he received $6.00.

Thus, in the second quarter of 2004, according to his testimony, he earned $5.50 per
hour. His interim earnings that quarter were $5102.50. ($5.50 x 55 hours x 13 weeks + $15 daily
or $90 weekly tips x 13 weeks). I shall revise the Specification accordingly to set forth higher
interim earnings.

In two months of the third quarter of 2004 his interim earnings, according to his
testimony, was $2920. ($5.00 per hour x 55 hours x 8 weeks + $90 weekly tips x 8 weeks). In
the third month, he earned $5.50 per hour for a total of $1570 for that month. The total interim
earnings for the third quarter are thus $4490. I shall revise the Specification accordingly to set
forth higher interim earnings.

From October, 2004 to October, 2005, according to his testimony, Palma earned $5.50
per hour. Accordingly, from the fourth quarter of 2004 to the third quarter of 2005, his quarterly
interim earnings were $5102.50. ($5.50 x 55 hours x 13 weeks + $90 weekly tips x 13 weeks). I
shall revise the Specification accordingly to set forth higher interim earnings.

Palma testified that he earned $6.00 per hour from October, 2005 to the date of the
hearing. Accordingly, his interim earnings in the fourth quarter of 2005 were $5460. ($6.00 per
hour x 55 hours x 13 weeks + $90 weekly tips x 13 weeks). I shall revise the Specification
accordingly.

Miguel Quintuna

The Specification states that the backpay period begins on February 12, 2003 when
Quintuna was discharged, and ends when he was reinstated on March 5, 2003. Accordingly,
$1,320 in backpay is sought for that two week period which consists of $7.50 per hour for 40
hours per week plus 32 hours of overtime at time and one-half for 32 hours per week.

No evidence was presented that Quintuna searched for employment during that period
and it is not alleged that Quintuna received any interim earnings. Although the Respondent
suggested that Quintuna returned to work earlier than March 5, no evidence has been adduced
to support that claim. The only evidence presented was that the Respondent made an offer of
proof that it sponsored Quintuna for a visa during his employ. Such efforts included Quintuna
retaining an attorney who contacted the Respondent, and Lieberman signed a sponsorship
document for Quintuna.

Once the General Counsel has satisfied his burden to show the gross amount of
backpay to which Quintuna is entitled, the Respondent has the burden to produce evidence that
would mitigate its liability. It was thus the Respondent’s burden to show that Quintuna
unreasonably failed to mitigate damages. Ferguson Electric Co., 330 NLRB 514, 518 (2000). It
has not done so. Accordingly, the net backpay is $1,320.00. ($7.50 x 40 hours x 2 weeks +

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$11.25 x 32 x 2 weeks).

Jose Armando Sax-Gutierrez

Sax-Gutierrez began his search for interim employment one week after his discharge, by
visiting various companies in Brooklyn such as fruit stands and fish stores. He did not search for
work in newspapers, on the internet or at employment agencies. He paid his rent with help from
his family.

Although the Specification shows that he had no earnings for that period of time, he
stated that he worked about three hours in two days in March, 2003 doing construction work. He
earned $60 for ½ day’s work, and I shall add $60 to his interim earnings for that quarter.

In April, 2003, Sax-Gutierrez searched for work five days per week for ½ day at a time
by walking to prospective employers. He spent the other half of the day resting because he was
tired from walking.

Sax-Gutierrez testified that he began work at Lekactov Bakery in early May, 2003 where
he was employed three to four hours per day two to three days per week, earning $5.50 per
hour. Then in June, 2003, he worked three hours per day three days per week. He first worked
full time for Lekactov in September, 2003, and at times worked overtime, earning $6.00 per
hour. In 2004, he worked 8 to 10 hours per day three to four days per week, or about 40 to 50
hours per week. He received a raise to $6.50 per hour in December, 2004. In 2005 he worked
11 to 12 hours per day or 60 to 65 hours per week for 5½ days per week. In December, 2005 he
received a raise to $7.50 per hour, earning $450 to $475 per week with overtime pay for work
performed 11 to 12 hours per day, 5½ days per week.

The Specification states that Sax-Gutierrez began work at Lekactov Bakery in early May,
2003, earning $5.00 per hour and working a 60 hour week. In early June, 2003, he received a
raise to $6.00 per hour. One year later, in early June, 2004, his weekly hours of work decreased
to 40. In early December, 2004, he received a wage increase to $6.50 per hour.

Sax-Gutierrez’ testimony regarding his interim earnings at Lekactov from the start of his
work there through the fourth quarter of 2004 is essentially the same as that set forth in the
Specification. Accordingly, I will not disturb the Specification’s statements concerning his interim
earnings for that period of time.

However, he testified that in 2005 he worked 60 hours per week. Accordingly, I cannot
accept the Specification’s statement that in the first quarter of 2005 he worked only 40 hours per
week. I therefore find that based on his testimony he worked 60 hours per week from the first
quarter to the fourth quarter of 2005. Thus, from the first quarter of 2005 through the fourth
quarter of 2005, his interim earnings were $5070 per quarter. ($6.50 x 60 hours x 13 weeks). I
shall revise the Specification accordingly to set forth higher interim earnings.

3. Analysis and Discussion

“The finding of an unfair labor practice and discriminatory discharge is presumptive proof
that some back pay is owed by the employer.” NLRB v. Mastro Plastics Corp., 354 F.2nd 170,
178 (2nd Cir. 1965). The Respondent has the burden of adducing evidence that would mitigate
its liability, including the burden of establishing the amount of any interim earnings that are to be
deducted from the backpay amount due. Ferguson Electric, above.

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“To be entitled to backpay, a discriminatee must make reasonable efforts to secure
interim employment. It is the respondent’s burden to demonstrate affirmatively that the
discriminatee failed to exercise reasonable diligence in searching for work. The discriminatee
must put forth an honest, good-faith effort to find interim work; the law does not require that the
search be successful.” Doubts, uncertainties, or ambiguities are resolved against the
wrongdoing respondent. Millennium Maintenance & Electrical Contracting, 344 NLRB No. 62,
slip op. at 2 (2005); Glenn’s Trucking Co., 344 NLRB No. 41, slip op. at 1 (2005); Cassis
Management Corp., 336 NLRB 961, 968 (2001).

It is well settled that the reasonableness of a discriminatee’s efforts to find a job and
thereby mitigate loss of income resulting from an unlawful discharge need not comport with the
highest standard of diligence. He need not exhaust all possible job leads. Rather, it is sufficient
that the discriminatee make a good-faith effort. In determining the reasonableness of this effort,
the discriminatee’s skills, experience, qualifications, age, and labor conditions in the area are
factors to be considered. The Respondent’s obligation to satisfy its affirmative defense is to
show a “clearly unjustifiable refusal to take desirable new employment.” Ferguson Electric,
above at 518.

None of the employees kept written records of their interim employment, and none
provided written documentation to the Regional Office. Certain employees could not recall the
names or addresses of the companies they visited in seeking work. However, the Board has
held that employees are not automatically disqualified from backpay because of their poor
record-keeping or uncertainty as to memory or exaggeration. Cibao Meat Products, 348 NLRB
No. 5, slip op. at 1 (2006), citing Pat Izzi Trucking Co., 162 NLRB 242, 245 (1966), enfd. 395
F.2d 241 (1st Cir. 1968).

Applying the above principles, I find that each of the seven employees engaged in a
reasonably diligent, good faith search for work. The evidence establishes that they made a good
faith effort to find interim employment by visiting prospective employers, searching newspaper
advertisements and asking friends for job leads. Their interest in working is amply illustrated by
the fact that each found permanent employment within one or two months after their discharge
at jobs at which they worked at the time of the hearing. Thus, they continued to work in those
jobs for nearly three years.

Thus, despite the fact that Bermeo attended meetings with counsel immediately after his
discharge, he did engage in a diligent search for work at bakeries and with contractors. He then
became employed with Verrazano Tile in April, 2003 at which he was employed for nearly three
years at the time of the hearing.

Similarly, Antonio Gonzalez sought work diligently in Brooklyn for two months before he
became employed at All Type Auto in about March, 2003. He too remained employed by that
company at the time of the hearing. Although he did not look for work at government or private
agencies, on the internet or in newspapers, the Board has held that not reading or responding to
newspaper advertisements does not establish a failure to search for work. S.E. Nichols of Ohio,
258 NLRB 1, 11 (1981). The question, ultimately, is whether he diligently searched for work. I
find that he did.

Hurtado visited employment agencies, worked as a dishwasher, found work with various
construction/demolition companies, and then became employed at the bakery for which he
worked at the time of the hearing.

Joya also looked diligently for work at bakeries, worked as a day laborer and then in

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construction, and finally at a bakery. Although he left a job in the construction field because he
did not like such work, backpay is not tolled because he quit that employment. Inasmuch as
construction work was not substantially equivalent to his job as a baker with the Respondent,
Joya was not obligated to remain in such work. Ryder System, 302 NLRB 608, 609 (1991).

Palma searched for work each day by searching newspaper ads and calling advertisers
and asking friends. He found permanent work in a car wash. As set forth above, the
Respondent has not met its burden of proving that Miguel Quintuna did not engage in a diligent
search for work. Sax-Gutierrez immediately inquired about work from stores in Brooklyn, worked
in construction and found permanent work at a bakery in May, 2003 at which he was still
employed at the time of the hearing.

The evidence convinces me that the Respondent has not affirmatively established that
any of the discriminatees failed to make a reasonably diligent search for equivalent interim
employment. Based on their diligent searches for work, their success in finding work, and the
fact that they remained employed at such jobs for nearly three years at the time of the hearing, I
find and conclude that the Respondent has not met its burden that any of them failed to make a
diligent search for work.

Based upon the above, I issue the following recommended15

ORDER

The Respondent, Mezonos Maven Bakery, Inc., its officers, agents, successors, and
assigns, shall make the employees named in the attached Appendix whole by paying to them
the sums set forth in the column entitled Net Backpay for each of the employees, with interest
on such amounts to be computed in accordance with New Horizons for the Retarded, 283 NLRB
1173 (1987), minus tax withholdings required by Federal and State laws.

Dated, Washington, D.C., November 1, 2006.

____________________
Steven Davis
Administrative Law Judge

15 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(NY)-48-06

Appendix 1
Jose Antonio Quintuna Bermeo

Year Qtr. Gross Interim Interim Net Interim Net
Backpay Earnings Expenses Earnings Backpay
2003 1st 4,004.00 0.00 4,004.00
2003 2nd 7,436.00 4,715.00 165.00 4,550.00 2,886.00
2003 3rd 7,436.00 5,610.00 260.00 5,350.00 2,086.00
2003 4th 7,436.00 7,410.00 273.00 7,137.00 299.00
2004 1st 7,436.00 7,410.00 273.00 7,137.00 299.00
2004 2nd 7,436.00 7,410.00 273.00 7,137.00 299.00
2004 3rd 7,436.00 6,760.00 273.00 6,487.00 949.00
2004 4th 7,436.00 6,760.00 273.00 6,487.00 949.00
2005 1st 7,436.00 7,800.00 312.00 7,488.00 0.00
2005 2nd 7,436.00 7,800.00 312.00 7,488.00 0.00
2005 3rd 7,436.00 7,800.00 312.00 7,488.00 0.00
2005 4th 7,436.00 7,800.00 0.00 7,800.00 0.00
Total: 85,800.00 77,275.00 2,726.00 74,549.00 $11,771.00

Appendix 2
Antonio Gonzalez

Year Qtr. Gross Interim Interim Net Interim Net
Backpay Earnings Expenses Earnings Backpay
2003 1st 3,123.75 0.00 3,123.75
2003 2nd 5,801.25 3,900.00 165.00 3,735.00 2,066.25
2003 3rd 5,801.25 3,900.00 260.00 3,640.00 2,161.25
2003 4th 5,801.25 3,900.00 273.00 3,627.00 2,174.25
2004 1st 5,801.25 3,900.00 273.00 3,627.00 2,174.25
2004 2nd 5,801.25 3,900.00 273.00 3,627.00 2,174.25
2004 3rd 5,801.25 3,900.00 273.00 3,627.00 2,174.25
2004 4th 5,801.25 3,965.00 273.00 3,692.00 2,109.25
2005 1st 5,801.25 3,965.00 312.00 3,653.00 2,148.25
2005 2nd 5,801.25 3,965.00 312.00 3,653.00 2,148.25
2005 3rd 5,801.25 3,965.00 312.00 3,653.00 2,148.25
2005 4th 5,801.25 3,965.00 312.00 3,653.00 2,148.25
Total: 66,937.50 43,225.00 3,038.00 40,187.00 $26,750.50

JD(NY)-48-06

Appendix 3
Luis Marcelo Gonzalez Hurtado

Year Qtr. Gross Interim Interim Net Interim Net
Backpay Earnings Expenses Earnings Backpay
2003 1st 2,793.88 0.00 2,793.88
2003 2nd 5,188.63 2,361.00 2,361.00 2,827.63
2003 3rd 5,188.63 4,680.00 4,680.00 508.63
2003 4th 5,188.63 2,310.00 2,310.00 2,878.63
2004 1st 5,188.63 2,310.00 2,310.00 2,878.63
2004 2nd 5,188.63 3,240.00 3,240.00 1,948.63
2004 3rd 5,188.63 4,680.00 4,680.00 508.63
2004 4th 5,188.63 5,304.00 5,304.00 0.00
2005 1st 5,188.63 5,304.00 5,304.00 0.00
2005 2nd 5,188.63 5,304.00 5,304.00 0.00
2005 3rd 5,188.63 5,304.00 5,304.00 0.00
2005 4th 5,188.63 5,304.00 5,304.00 0.00
Total: 59,868.81 46,101.00 46,101.00 $14,344.66

Appendix 4
Francisco Javier Joya

Year Qtr. Gross Interim Interim Net Interim Net
Backpay Earnings Expenses Earnings Backpay
2003 1st 4,856.25 1,160.00 54.00 1,106.00 3,750.25
2003 2nd 9,018.75 5,580.00 195.00 5,385.00 3,633.75
2003 3rd 9,018.75 6,930.00 260.00 6,670.00 2,348.75
2003 4th 9,018.75 6,825.00 273.00 6,552.00 2,466.75
2004 1st 9,018.75 6,825.00 273.00 6,552.00 2,466.75
2004 2nd 9018.75 6,000.00 273.00 5,727.00 3,291.75
2004 3rd 9018.75 5,850.00 273.00 5,577.00 3,441.75
2004 4th 9,018.75 6,825.00 273.00 6,552.00 2,466.75
2005 1st 9,018.75 6,825.00 312.00 6,513.00 2,505.75
2005 2nd 9,018.75 7,280.00 312.00 6,968.00 2,050.75
2005 3rd 9,018.75 7,280.00 312.00 6,968.00 2,050.75
2005 4th 9,018.75 7,280.00 312.00 6,968.00 2,050.75
Total: 104,062.50 74,660.00 3,122.00 71,538.00 $32,524.50

JD(NY)-48-06

Appendix 5
Christian Palma

Year Qtr. Gross Interim Interim Net Interim Net
Backpay Earnings Expenses Earnings Backpay
2003 1st 2,793.88 0.00 2,793.88
2003 2nd 5,188.63 940.00 940.00 4,248.63
2003 3rd 5,188.63 5,882.50 5,882.50 0.00
2003 4th 5,188.63 5,882.50 5,882.50 0.00
2004 1st 5,188.63 5,307.50 5,307.50 0.00
2004 2nd 5,188.63 5,102.50 5,102.50 86.13
2004 3rd 5,188.63 4,490.00 4,490.00 698.63
2004 4th 5,188.63 5,102.50 5,102.50 86.13
2005 1st 5,188.63 5,102.50 5,102.50 86.13
2005 2nd 5,188.63 5,102.50 5,102.50 86.13
2005 3rd 5,188.63 5,102.50 5,102.50 86.13
2005 4th 5,188.63 5,460.00 5,460.00 0.00
Total: 59,868.81 53,475.00 53,475.00 $8,171.79

Appendix 6
Miguel Quintuna

Year Qtr. Gross Interim Interim Net Interim Net
Backpay Earnings Expenses Earnings Backpay
2003 1st 1,320.00 0.00 1,320.00
Total: 1,320.00 0.00 0.00 0.00 $1,320.00

Appendix 7
Jose Armando Sax-Gutierrez

Year Qtr. Gross Interim Interim Net Interim Net
Backpay Earnings Expenses Earnings Backpay
2003 1st 2,793.88 60.00 60.00 2,733.88
2003 2nd 5,188.63 2,940.00 2,940.00 2,248.63
2003 3rd 5,188.63 4,680.00 4,680.00 508.63
2003 4th 5,188.63 4,680.00 4,680.00 508.63
2004 1st 5,188.63 4,680.00 4,680.00 508.63
2004 2nd 5,188.63 4,440.00 4,440.00 748.63
2004 3rd 5,188.63 3,120.00 3,120.00 2,068.63
2004 4th 5,188.63 3,220.00 3,220.00 1,968.63
2005 1st 5,188.63 5,070.00 5,070.00 118.63
2005 2nd 5,188.63 5,070.00 5,070.00 118.63
2005 3rd 5,188.63 5,070.00 5,070.00 118.63
2005 4th 5,188.63 5,070.00 5,070.00 118.63
Total: 59,868.81 48,100.00 48,100.00 $11,768.81