Murbro Parking, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1985

276 N.L.R.B. 52 (N.L.R.B. 1985)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Murbro Parking, Inc and Service Employees Inter national Union , Local 200 , AFL-CIO Case 3- CA-10523 27 August 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 11 February 1985 Administrative Law Judge William F Jacobs issued the attached supplemental decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the supplemental deci sion and the record in light of the exceptions and brief and has decided to affirm the judge s rulings, findings, and conclusions as modified The judge found that discriminatee Lawrence Reil admitted he did not search for work from June to September 1982 However, Red's last re corded application for work in the second quarter of 1982 was on 13 May He admitted that for at least part of May, not pertaining to the first day of May, maybe halfway through, maybe the end," he stopped looking for work The preponderance of the evidence, therefore, shows that for the last 2 full workweeks of May (17-21 and 24-28 May) Reil refrained from looking for work and that the Respondent is entitled to an additional deduction from the gross backpay due for that quarter Ac cordingly, we find that Reil is entitled to $16,893 rather than $17,161 as found by the judge ORDER The National Labor Relations Board orders that the Respondent, Murbro Parking, Inc Syracuse, New York its officers agents, successors, and as signs shall pay to Lawrence Reil $16,893 plus in terest as provided in Florida Steel Corp, 231 NLRB 651 (1977), less tax withholdings required by Fed eral and state law Robert A Ellison Esq of Albany New York, for the General Counsel Harrison V Williams Jr Esq (Williams and Drexler) of Syracuse New York for the Respondent SUPPLEMENTAL DECISION STATEMENT OF THE CASE WILLIAM F JACOBS Administrative Law Judge This supplemental proceeding was instituted for the sole pur pose of determining the amount of backpay due discn denied manatee Lawrence Red under the Board s Order in 266 NLRB 1133 dated July 26 1983 and enforced by the Court of Appeals for the Second Circuit on February 23 1984 No agreement having been reached as to the amount of backpay due the Regional Director for Region 3 issued a backpay specification and notice of hearing on May 7 1984 Respondent on May 14 1984 filed an answer thereto admitting in part and denying in part the allegations of the specification On May 16 1984 Re spondent filed a motion for deposition to take the deposi tion of Red This motion was denied on May 21 1984 appealed on May 25 1984 with the appeal denied on June 20 1984 1 On June 27, 1984 a hearing was held before me in Syracuse New York The General Counsel and Re spondent were represented by counsel at the hearing All parties were afforded full opportunity to participate in the proceeding Briefs were filed by the General Counsel and Respondent and have been considered The issues as framed by the backpay specification and Respondent s answer are 1 Whether the discnnunatee Lawrence Red received any interim earnings between the date of his discharge and the date the backpay period ended 2 Whether Red made a reasonably diligent search for interim employment 3 Whether the backpay period was tolled in March 1984 with Respondents initial offer of reinstatement or in April 1984 with its second offer of reinstatement 4 Whether Reil removed himself from the labor market and in effect waived reinstatement On the entire record in this case including my observa tion of the witnesses and after due consideration of the briefs filed by the parties I make the following FINDINGS OF FACT Background Red obtained employment with Respondent in Decem ber 1980 and was discriminatorily discharged June 15 1981 The record indicates that Red completed 11 years of schooling after which he joined the military serving as a corpsman in the Army He was honorably dis charged in 1954 after having been awarded the Bronze Star in the Korean conflict From 1954 to 1957 Red worked on paper machines at the Newton Falls Paper Co In 1957 Red enlisted in the United States Marine Corps where he served until January 23 1970 at which time he received once again an honorable discharge While serving in the Marines Red obtained training in mine warfare demolition and camouflage and later in structed and trained others in these areas In 1961 he was trained at the naval school in Memphis in aviation me chamcs specializing in helicopter maintenance He served two hitches in Vietnam where he flew 187 combat mis sions During his combat duty Red was wounded in the leg and adversely affected by the chemical Agent ' Respondent renewed its motion at the hearing but it was again 276 NLRB No 9 MURBRO PARKING Orange which he manually handled while mixing the substance and while spraying enemy areas His handling of Agent Orange resulted in scaling of his scalp and hands Though he currently takes medication for the scaling he still may not put his hands in water over pro longed periods of time because it causes his skin to peel Reil receives $118 per month as payment for a 20 per cent service disability 10 percent for loss of hearing in his left ear due to working on jet aircraft and 10 percent for an injury to his left foot These payments are sent di rectly to his bank In addition to his service connected disabilities Red also suffers from high blood pressure which he has had for about 4 years The high blood pressure causes him to have dizzy spells particularly when he inhales gasoline fumes or when he raises his head after having it down low The dizzy spells also keep him off ladders as does a problem which he has with his right knee which he hurt while working for Respondent and which was later found to be permanently arthritic Similarly since the knee will not bend Reil cannot crouch In addition to his knee Red s right arm was also lately found to be arthnt is Finally Red suffers from conjunctivitis which forces him to wear dark glasses because he cannot stand bright objects or glare Though Red s physical disabilities have not completely removed him from the jot) market the General Counsel argues that they severely limit his em ployment prospects I agree and note that most of Red s physical problems afflicted him before and while he was employed by Respondent While Reil was still in the service while on leave he would visit Star Lake New York where he helped the owner a personal friend maintain the Lakeview Hotel by doing odd jobs-screening windows cleaning out the garden shoveling snow etc He was not paid for this work but did it because he considered this place his home away from home Reil was so engaged from 1970 through 1973 From 1973 to 1975 Reil was employed as a truckdriver with a Class I license Between 1975 and 1979 he lived at a rooming house for men owned by the mother of a friend There he did maintenance work-made small re pairs replaced light bulbs and fixtures cut grass took out garbage did cleaning replaced windowpanes did small plumbing jobs and worked as a general handyman Reil was not paid for this work and in fact paid $15 per week rent When the owner died Red moved out and went back to Star Lake where he remained for a couple of months Subsequently he returned to Syracuse Here he found a room where he was also given meals from time to time In return for these he paid $20 per week and performed certain maintenance chores Work for Murbro In December 1980 Red began working for Murbro as a lot checker a job he maintained until his discrimmato ry discharge the following June On this job he walked to and from work a half mile each way His job was to service five or six lots between the hours of 7 30 a m and 3 30 p m Between 7 30 and 9 a m he helped other attendants park customers' cars Thereafter it was Red s job to service the various payment boxes installed at the 53 lots where there were no attendants on duty He would check the license plates of cars parked in the lot and compare them with the list Then he would open the back of the payment box and through a plexiglass window check the amount of money deposited There were 10 rows of 10 parking spots After checking each one he would flip the lever and the money in each would drop down into the bottom drawer which was under lock and key He would then make a note in his report and go on to perform the same duties at the next lot Red made three rounds per day each round being about 3 miles and taking about an hour The money in the payment boxes was collected each day at 12 30 p in by people other than Red Red was 49 years old when terminated 1 Interim earnings In its answer Respondent admitted that the formula used in the backpay specification was a proper one Re spondent however challenged the statement contained therein that Red received no interim earnings during the relevant period i e between June 15 1981 his date of discharge and April 11 1984 the date the General Counsel alleges to be the first operative offer of rein statement But despite Respondents assertion the record contains no evidence that Red obtained any interim earn mgs and I find the backpay specification correct in this respect 2 Search for interim employment According to the credited testimony of Red he made numerous attempts at finding interim employment during the relevant period Thus Reil testified that he visited the unemployment office to look at the viewers on the average of twice each week weather permitting He was interested in any job that would not affect his health 2 He found a few but in each case experience was required which Red did not possess He visited the employment office on East Salina to be interviewed but received no leads He consulted newspaper ads and made followup phone calls concerning maintenance or dishwashing jobs but was unsuccessful In addition to these followup type of inquires Red made many random visits3 to various prospective employers sometimes in connection with per sonal business at other times spontaneously merely walking in off the street These visits were noted on the bottom of a kleenex box which he kept in his car and later transferred to Search for Work forms supplied by the Regional Office of the Board Besides the places where Red actually did apply for work he was questioned as to why he did not apply for employment at other places where he could have utilized some of the skills he learned in the service In reply to these questions Red credibly testified that there were few places to seek employment in connection with helicopter 2 Red did not seek to obtain employment as a tractor trailer driver be cause it would require loading and unloading and his high blood pressure would not permit heavy lifting L a Although Respondent in its brief attacked the random nature of Reil s inquires the Board has found this type of job search adequate where made in good faith S E Nichols of Ohio 258 NLRB 1 (1981) 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance and in this field equipment and maintenance techniques were constantly being updated while Red had over the years let his abilities become outmoded so that his knowledge was no longer of use As for his knowledge of demolition and explosives he explained that military and civilian explosives were entirely differ ent and he had no experience whatsoever in the use of dynamite and other types used in civilian construction work Finally when asked why he did not utilize commercial employment agencies Red stated that they required a $60 fee which he did not have His knowledge of this fact however implies that he looked into this possibility An analysis of record evidence both testimonial and written indicates the following 1981 Third and Fourth Quarters Throughout the third and fourth quarters in 1981 Red looked at the want ads in the newspaper at least twice each week particularly on Mondays when the ads first came out but sometimes three or four times in a week He contacted prospective employers where he felt inter ested in the job mostly apartment complexes for mainte nance jobs These numbered between four and six calls Red identified several of these apartments as the North Star Apartments Bear Road Apartments and Wolf Street Apartments All were contacted by telephone since Red did not have a car at the time None was hiring In July 1981 Red sought work at the Magic Car Wash where he spoke in person to the manager He was told that there was a waiting list for employment For this reason Red did not bother to fill out an application Also in July 1981 Red applied for work at the All Right Park ing Garage He spoke in person to the supervisor in the latter s office filled out an application and left it with him but never heard from him though he left his phone number During 1981 Red made a number of phone calls and personal visits to various prospective employers dotting down the names of employers personally contacted in a notebook which he subsequently lost He did not note down telephone contacts Reil did not receive the NLRB Search for Work forms until later and with the passage of time forgot the names of most of the places he had contacted According to Red he registered with the New York State Employment Agency (NYSEA) during this period and visited its office and looked at its viewer every week Visits are particularly noted in Red s written records for July 2 and 8 August 26 October 14 Novem ber 14 and December 12 and 28 After Red s unemploy ment benefits ran out on December 23 he visited the NYSEA many times but did not bother to record all of the visits Nothing came of Red s viewing of available jobs at NYSEA because most of the jobs required expen ence which Red did not have 1982 First Quarter During the first quarter of 1982 Red made the follow mg unsuccessful random job inquiries [an asterisk denotes written application] Places Dates Rite Aid Pharmacy (Salina) 1/28/82 Rite Aid Pharmacy (South Warren) 1/28/82* P & C Store4 2/03/82* At P & C Red applied for any position available but was primarily interested in a driving job However when he found out that the driving job also required him to load and unload he was not as interested in it because of the physical restrictions dictated by his high blood pressure Overhead Door Co 2/11/82 Owl Surplus 2/''/82 Dairylea Co About Mar 8 1982* operative5 VA Hospital (Security guard) 3/16/82* Reynolds Gas Station 3/24/82 In addition to the above Red also made phone calls to other employers during the first quarter of 1982 but could not recall the names of any of them He also con tinued to visit the New York State Department of Labor and NYSEA twice per week but found nothing He also continued to read newspaper ads and to follow up with phone calls to some ads without results 1982 Second Quarter During the second quarter of 1982 Red applied at the following Janitorial Svc Inc 4/08/82' Canada Dry Bottling 4/13/82 4 Respondent called as its witness Kevin Paquin manager of store em ployee relations at P & C who testified that he had gone through the applications on file at the store and did not find one for Reil He also testified that neither he nor anyone at the store knew Reil However Paquin admitted that applications at P & C are discarded after 13 months Moreover it is quite possible that the individual with whom Red spoke at P & C was someone other than Paquin or those with whom he spoke concerning Reil s application Inland Empire Meat Co 255 NLRB 1306 (1981) Neelys Car Clinic 255 NLRB 1420 (1981 ) I therefore find Pa quin s testimony of little assistance s Respondent presented as its witness Ronald Zlotnick, fluid milk divi sion controller at Dairylea. Zlotnick testified that he had searched for any applications submitted by Red back to November 1981 but found none He testified at one point that applications were kept for 2 years plus the current fiscal year while at another point he testified that it was customary to tell applicants that their applications would be kept on file for at least a year Reil was subjected to vigorous cross-examination con cerning his application at Dairylea. He convincingly testified how he vis- ited the Dairylea plant , describing with great particularity the location of the office where he filled out and submitted the one page application to the female employee in charge at the counter Zlotnick confirmed that the company s application was indeed just one page and though available to do so did not take issue with Red a description of the location of the application office Clearly Red had been there and I find that he did in fact, file an application with Dairylea as he testified , Zlotmck s testimony notwithstanding MURBRO PARKING Capital Dry Cleaning 4/15/82 Goldberg Furmturea 4/22/82* Holiday Inn 4/27/82 Sears Roebuck 5/13/82 According to Red when applying for work at the above places he requested any kind of work at all rather than any one specific job Some of these contacts were made in person others by phone Red admitted that be cause school was out in June and the labor market was flooded with teenagers he joined the ranks of the dis couraged unemployed and did not search for work until September 1982 Third Quarter After the school children returned to school Red again began searching for employment despite his receipt of extended FSC benefits beginning as of September 13 and continuing through November 10 1982 Burdick Toyota Iroquois Tire Corp Marsellus Casket Co 9/17/82 9/21/82 9/22/82* 1982 Fourth Quarter Mondo s Restaurant 10/01/82 Purolator Courier System' 10/08/82 Smith s Restaurant Supply Co (warehouse) 10/13/82 Williams Restaurant 10/22/82 Coyne Industnal Laundry 11/05/82 Red testified that as of November 15 he stopped searching for work because of his arthritic knee and the weather and he did not begin the search again until Janu ary 1983 8 1983 First Quarter Red received 2 weeks FSC between January 10 and 26 1983 Carl s Drug Store 8 James Stone comptroller of Goldberg s Furniture testified on behalf of Respondent Stone who is in charge of personnel matters, stated that his files contained no record of Red s application but admitted that apph cations were not kept more than 6 months before being destroyed Red testified that Goldberg operates a van but the job requires lifting and loading so he was more interested in maintenance work Stone con firmed that drivers and their assistants were required to load and unload the trucks thus lending credence to Reil s testimony that he had in fact, applied Stone also stated that the company does not have any general maintenance employees r Red applied for a driver s position here because heavy lifting was not a problem 8 Although Red initially testified that he ceased searching for work during the period November 15 through December 1982 he subsequently became confused and agreed with Respondents counsel that this period extended to February because the document was received in the Region a] Office February 2 However the date the document was received in the Regional Office in no way proves that Red did not seek employment prior to that time Indeed other records indicate he sought employment several times in January and I so find S Geddes 1/11/83 Carl s Drug Store Anondaga 1/13/83 Carl s Drug Store Genesee 1/15/83 Forsyth Motors Inc 1/21/83 Longos Food Service (delivery or any job) 1/26/83 Kenny s Appliance (Liverpool NY) 1/28/83 Howard Johnson 2/02/83 Charwell s Foods 2/06/83 Burger King (mainteniance) 2/08/83 Alcoa 2/22/83* K Mart 3/01/83 Millbrook Division Distribution 3/7 & 8/83 Outdoor Store 3/17/83 Dome Hotel 3/17/83 Diet Center (maintenance) 3/22/83 Ida Benderson (maintenance or cleaning) 3/25/83 55 It may have been during this quarter that Red sought work dnvmg for Di dee Diaper Service as a driver He got the lead from the State at some time while he was receiving FSC benefits He filed an application but beard nothing 1983 Second Quarter Carrier Building Service 4/04/83 Carrier Circle Annex 4/07/83 Saunders & Son Inc (cleanup work) 4/09/83 Graphic Arts Supply 4/11/83 Any Cab Co 9 4/17/83 Barrow Wholesale Co (maintenance repair cleaning) 4/20/83 Calgon 4/22/83 Wamwnght Photo 4/24/83 Worldwide Doors 4/25/83 Siegfried Upholstery 5/02/83 Sibley Depart Store 5/09/83 Rite Aid Pharmacy 5/10/83 Putt Putt Golf 5/13/83 Napa Distillery 5/17/83 Nabisco Inc 5/19/83 Eco Works 5/26/83 Fleetwood Drywall 5/30/83 Yardman Lawn Inc 6/03/83 Syracuse Plywood 6/06/83 Henry Frank Leather 6/07/83 9 Although Red did state that he was not really that interested in dnv mg a cab because of the paperwork involved and the recent murder of a cab driver he nevertheless did apply for a job at this place of business 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Syracuse Lumber 6/11/83 Central Restaurant Supplies 6/16/83 Popcorn Supply Co 6/18/83 Inland Supply 6/19/83 Upstate Sewing Sales 6/21/83 Central Fence 6/23/83 Taylor Rental 6/25/83 Tino s Restaurant 6/28/83 In addition to the above listed potential employers Reil also visited the NYSEA on April 27 and May 11 and 27 1983 Third Quarter During the third quarter of 1983 Red continued to search for employment but discontinued making a writ ten record of where he sought employment Without such written records he was unable at the hearing to re member where he looked He continued however to read the want ads twice each week and to visit the em ployment service twice each week and check the view ers Still Red was unsuccessful in obtaining work 1983 Fourth Quarter Kings Gate West Apts Camillus NY November Allied Laundry Camillus or Salvay A third apt complex (name unknown) University Club (maintenance) November Through this period Red continued on occasion to check the viewers at the NY State labor office 1984 First Quarter Midtown Plaza Apts (maintenance) 2/84 John Laurence Studio Apts (maintenance) 2/84 Chnsto s Restaurant 2/84' Nettleton Shoe Company 2/84 During the first quarter of 1984 Red did not keep writ ten records but recalled the above contacts He contin ued as before to occasionally visit the New York State Labor Office to check the viewers He continued to do so in April until he was offered reinstatement The above evidence summarized indicates that in the period of time June 15 1981 to April 11 1984 Reil made 75 specifically identified contacts with prospective employers and he credibly testified to having made nu merous other personal and telephone contacts with others Additionally he visited state unemployment and employment offices to scan viewers and to be inter viewed for available positions Finally he made use of newspaper want ads making phone calls or visiting po- tential employers named therein Considering Red s age and physical disabilities 10 I find that he made reasonable efforts toward finding interim employment" while Re spondent failed to show that there were suitable jobs in the area of which Reil was aware yet ignored or jobs which he was offered but rejected 12 Respondent thus failed to show that Reil willfully incurred loss by a clear ly unjustifiable refusal to take desirable new employment a burden which must be borne by Respondent in order to mitigate its backpay liability 13 3 The offers of reinstatement Prior to March 1984 Red was not offered reinstate ment Then by letter dated March 22 1984 counsel for Respondent offered Red a job as parking attendant with Murbro a position somewhat different from the job of lot checker which had been Reil s at the time of his ter mination Red testified without contradiction that the job of lot attendant required the handling of money whereas the job of lot checker did not Red rejected the offer because he was afraid of handling the Company s money He feared that the supervisor with whom he had had previous difficulties and about whom he had voiced dissatisfaction would be in a position to frame him with regard to the handling of money and tickets It was be cause of this distrust of his supervisor that Red turned down the offer of the alternative position but agreed to accept reinstatement to his old job By letter dated April 11 1984 Respondent through counsel offered Red reinstatement to his original posi tion of lot checker The General Counsel urges this date as the proper cutoff date for purposes of determining backpay Inasmuch as it is quite apparent that Red s original job was available in March when Respondent of fered the alternative position Red was within his rights in rejecting the March offer of reinstatement An em ployer does not have the option of choosing a substan tially equivalent job where the discrnninatee s former job is still extant 14 April 11 1984 is the proper cutoff date 4 Reil s self removal from the labor market Red freely admitted during testimony that he had withdrawn from the labor market and had failed to search for interim employment during the period June July and August 1982 and from November 15 through December of the same year Suitable deductions from backpay due for these periods will be recommended Defenses The Testimony of George Panacci At the hearing Respondent called George Panacci to testify Panacci director and branch manager of Craw 10 Cf Mastro Plastics Corp 136 NLRB 1342 (1961) 11 Flue Chief Inc 258 NLRB 1124 (1981) 12 Ibid 1' Phelps Dodge Corp v NLRB 313 U S 177 (1941) Aircraft & Heh copter Leasing & Sales 227 NLRB 644 (1976) enfd 570 F 2d 351 (9th Cu 1978) 14 Baker Mfg Co 269 NLRB 794 (1984) Burnup & Slurs Inc 256 NLRB 965 (1981) DeLorean Cadillac 231 NLRB 329 (1977) modified 614 F 2d 554 (6th Cu 1980) MURBRO PARKING ford Rehabilitation Services testified as a vocational expert As such in the course of his professional work he offers assessments concerning the rehabilitation needs of the industrially injured in both medical and vocational areas He stated Our primary responsibility is to coordinate services provided to the industrially injured assist them to maintain medical stability and then return them to the labor market consistent with their age educa tion training work experience and any physical limitation that they may have because of their con dition Panacci who frequently testifies at hearings renders objective vocational opinions as to the employability of an individual given certain facts and conditions in a par ticular case and also as to the existence of jobs in a given area locally and nationally Applying his special knowledge to the instant case Panacci offered his opm ion as to the employability of Reil from July 1981 through the date of the hearing He determined that there were 1191 jobs available including 38 parking lot attendants jobs in the Syracuse area between July 1 1981 and December 31 1981 for which Reil would have been qualified These also included 23 jobs for maintenance/repair work 147 openings for institutional cleaners and 23 jobs for laboratory equipment cleaners He also determined that between July 1981 and June 1983 there were 3256 selected job openings for unskilled workers in the maintenance and mechanical fields jobs similar to those found available during the earlier period Finally Panacci testified that he had taken into consider ation Reil s age and training and in a study of the period July 1981 through September 1982 concluded that by di viding the number of jobs available by the number of ap plicants he could determine the probability of Reil s sus cessfully obtaining employment in certain specified jobs if he had applied for them Among other findings he concluded that because there were more job openings than there were job applicants, if Reil had applied for any of the following jobs he would have had a 100-per cent probability of being successful in obtaining employ ment caretaker dining room attendant locker room at tendant merchant patroller yard worker cannery worker or laborer in the electroplating industry And had he applied for a job as parking attendant which mci dentally he had he would have had an 80-percent proba bility of success Panacci offered tables and statistics to prove the ease of obtaining employment in the Syracuse area and con cluded that Reil with reasonable diligence should have been able to secure employment between July 1981 and June 1984 However there is no evidence in the record that Reil was aware of the existence of these openings nor as admitted by Panacci is there any guarantee that if Reil had applied he would necessarily have been hired Moreover there is no evidence that the terms and conditions of employment at these allegedly available jobs were such that Reil would have failed in his duty to mitigate his losses had he refused these jobs For these 57 reasons I do not feel that Panacci s expert testimony is of particular value 15 Mark Williams Attorney Mark Williams was called to testify on behalf of Respondent Williams testified how at the behest of Respondents counsel he had undertaken a study of jobs advertised in the Syracuse Post Standard during various periods between June 12 1981 through December 31 1982 with particular emphasis on jobs which required no experience jobs in which Reil already had experience and jobs which offered to provide train ing From his study he drew up three tables Table I showed that between June 12 and October 31 1981 based on a 3-day per week study there were available 109 jobs in 17 different categories Table II showed that between November 12 1981 and December 31 1982 based on a 2-day per week survey there were 124 jobs available in 16 categories Table III was merely a combi nation of Tables I and II Respondent argues that the ex istence of these openings including many parking lot jobs is conclusive evidence that Reil failed to use rea sonable diligence to secure comparable employment Record evidence indicates that Reil read newspaper ads just as did Williams and that after determining which were suitable contacted those prospective employers without successfully obtaining employment Reil s expert ence appears to support Board decisions that stand for the proposition that the mere existence of newspaper want ads does not establish that the jobs would have been available when and if Reil applied or that he would have been selected for any available positions 16 Waiver of Reinstatement On one of the early Search i 7 for Work forms supplied to Reil by the Regional Office on the reverse side Reil made several notations concerning his efforts to find in term employment his physical disabilities and his dissat isfaction with Respondent and with his exsupervisor whom he referred to as the axman He noted My concept of this case from the beginning was not backpay bLt being fired without good cause So in conclusion if this destroys my case I have no re grets I wouldn t go back to Murbro for twice the hourly wage Reil testified that when he wrote the above he was per turbed and angry about being fired and what he meant was that he did not want to work for the supervisor named in the notation Reil testified that he continued to feel that way about his supervisor right up until the day he received the offer of reinstatement in the letter dated April 11 1984 However on March 1 1983, Reil wrote '6 Garrard Convalescent Home 220 NLRB 450 (1975) affd 548 F2d 134 (6th Cr 1976) S. E Nichols of Ohio, Inc 258 NLRB 1 (1981) Tn angle Skeet Metal Works 267 NLRB 650 (1983) 16 Airport Service Lines 231 NLRB 1272 (1977) affd 589 F 2d 1115 (D C Cr 1978) Amshu Associates 234 NLRB 791 (1978) Highview Inc 250 NLRB 549 (1980) Triangle Sheet Metal Works supra 17 Apparently in 1981 or early 1982 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Board agent who tried the underlying unfair labor practice case concerning his desire to return to work With the unemployment situation and the job market shortage as it is I am still interested in re turning to work for Murbro [and backpay] I must admit though working with liars in a stale atmosphere unwanted disliked etc will be ex tremely difficult The March 1 letter appears to support his testimony that he still wanted his job though he would dislike working for the same supervisor and that his written statement about not going back for twice the hourly wage was made out of anger rather than considered judgment Respondent takes the position that the statement made by Reil amounted to a waiver of his right to reinstate ment and that such statements as a matter of law consti tute a withdrawal from the labor market Despite Re spondent s stated position and the cases cited in its brief I find that Board law does not support that position On the contrary it is quite clear under Board law that Reil s statement did not constitute a waiver of his right to reinstatement We consider it clear that such a statement [made] prior to Respondents offer [of reinstatement] could not manifest an unequivocal resolve not to accept reinstatement Both in order to preserve the public interest in Respondents meaningful compliance with our order and to safeguard a discriminatee s rights we consistently have discounted statements prior to a good faith offer of reinstatement indicat ing unwillingness to accept reinstatement We are mindful of the fact that such statements may reflect only a momentary state of mind that is subject to change prior to an offer of reinstatement such statements are in the nature of answers to a hypo thetical question and the discriminatee s expression may have been made in the heat of dissatisfaction with his treatment by Respondent Is Clearly Red s situation falls within the parameters of the cited case I therefore find no waiver of reinstatement ever took place Subpoenaed Records About June 19 1984 Red was served with a subpoena requiring the production of certain bank records 119 Sub 18 Heinrich Motors 166 NLRB 783 (1967) affd 403 F 2d 145 (2d Cir 1968) See also Lyman Steel Co 246 NLRB 712 (1979) 19 Other documents were also subpoenaed Reil brought some of these with him to the hearing while others e g income tax returns were non existent because he had not filed returns since shortly after his termina sequent to receipt of this subpoena Red accidentally threw away the requested documents At the hearing Red offered to obtain copies of these documents from his bank and produce them the following day at the hearing However inasmuch as the hearing was scheduled to close that day it was decided to reserve an exhibit number (R Exh 2) for the forthcoming bank records with the understanding that if they were not subsequent ly received an adverse finding might be drawn It was further agreed that if the documents were produced and Respondent desired to adduce additional testimony con cernmg the records a motion to reopen the hearing for that purpose would be entertained All parties agreed to this arrangement on the record Subsequent to the closing of the hearing the bank records were received Respondent made no motion to reopen the record No adverse finding is warranted Conclusion Based on the foregoing and the entire record herein I find that the total net backpay due Red is as follows Year Q r Gross Eackpay Interim Earnings Deduc tions Net Backpay 81 2 S 32160 0 0 $ 321 60 81 3 1768 80 0 0 1768 80 81-4 1768 80 0 0 1768 80 82 1 1715 20 0 0 1715 20 822 174200 0 5806020 116140 82 3 1768 80 0 1179 2021 58960 82-4 1768 80 0 8844022 88440 83 1 1715 20 0 0 1715 20 83 2 174200 0 0 174200 83 3 1768 80 0 0 1768 80 83-4 1768 80 0 0 1768 80 84-1 174200 0 0 174200 84-2 21440 0 0 21440 $1716100 [Recommended Order omitted from publication ] tion at Murbro At the time the hearing closed there was no issue out standing concerning subpoenaed documents other than the bank records 20 Deduction is based on Reds failure to seek employment in June 1982 21 Deduction is based on Reil s failure to seek employment in July and August 1982 22 Deduction is based on Reil s failure to seek employment between November 15 1982 and December 31 1982