Penco Enterprises, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1975

216 N.L.R.B. 734 (N.L.R.B. 1975)

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Penco Enterprises, Inc., Penco of Ohio , and Acoustical
Contracting and Supply Corp . and Donald D.
Pereces. Case 8-CA-6782
February 26, 1975
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On June 25, 1974, Administrative Law Judge Irving
M. Herman issued the attached Supplemental Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief, and
the Respondent filed a brief in support of the
Administrative Law Judge's Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to,affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order, as modified herein.
The Administrative Law Judge found that discri-
minatee Michael Mooney had received a valid offer
of reinstatement which he rejected by failing to
communicate with the Respondent. He therefore
further found that Mooney's right to backpay
terminated on March 13, 1972, the date that Mooney
received the letter.
We disagree with the Administrative Law Judge's
conclusion and, for the reasons discussed below, we
find that the letter received by Mooney did not
constitute an adequate offer of reinstatement.
As credited by the Administrative Law Judge, the
following letter, dated March 10, 1972 (a Friday),
was sent to Mooney by Respondent:
Michael Mooney
9411 Beech Ave.
Cleveland, Ohio 44144
March 10, 1972
CERTIFIED MAIL
RETURN RECEIPT
SUBJECT: Layoff Recall Request
Your job with our company is now available.
We request you report ready for work at 7:00 a.m.
on Tuesday March 14, 1972.
1 203 NLRB 881 (1973)
In the event you do not wish to return notify this
office by phone, or mail on Monday March 13,
1972, or we must remove your name from the
recall list.
A stamped addressed envelope is enclosed for
your use if required.
Cordially,
Penco of Ohio
4832 Ridge Road
Cleveland, Ohio 44144
(216) 749-5151
Mooney received the letter on March 13 but did
not communicate with Respondent. Based upon his
failure to respond, the Administrative Law Judge
found that Mooney had rejected the offer of
reinstatement. In so finding, the Administrative Law
Judge rejected the General Counsel's contentions
that Mooney did not have enough time to reply and
that such a conclusion was supported by our decision
in Southern Household Products Company, Inc.'
In Southern Household, the respondent therein sent
a letter dated April? offering reinstatement on April
9 (a Wednesday). The letter also provided that the
discriminatee could advise the respondent as to his
position concerning reinstatement on April 9 or not
later than April 18. We found that the April 9
reporting date provided insufficient notice without
the April 18 "advise date." Backpay was therefore
tolled as of April 18.
The Administrative Law Judge herein concluded
that Southern Household would indicate that while
the March 14 reporting date given Mooney, standing
alone, might have provided insufficient notice, this
defect was cured by the opportunity afforded to
notify Respondent by March 13 of a desire for an
alternative reporting date. We disagree.
First, it is questionable whether Respondent's letter
to Mooney contained language which provided him
an opportunity to inform Respondent of an alternate
reporting date. While the third paragraph of the
letter may possibly be interpreted in such a manner,
it is ambiguous and any uncertainty as to the
meaning of the letter must be resolved against
Respondent, who prepared the letter. More impor-
tantly, however, it is clear that no matter what
interpretation is given to the third paragraph,
Respondent's letter provided Mooney only 1 day at
the most to decide whether to accept the offer of
reinstatement. It is also clear that a discriminatee,
upon receiving an offer of reinstatement, has a
216 NLRB No. 125
PENCO ENTERPRISES, INC.
fundamental right to a reasonable time to consider
whether to return .2 While we do not attempt to
prescribe what is reasonable in every circumstance,
we do not view the time allotted herein as reasonable.
Mooney would have had to inform Respondent of
his intentions the same day he received the letter or
else report for work on the following morning. We
find this totally inadequate. Thus, contrary to the
conclusion of the Administrative Law Judge, we find
that Respondent did not make a valid offer of
reinstatement to Mooney.3
As we have found that Michael Mooney was not
given an adequate offer of reinstatement we also find
that he was entitled to backpay through the second
quarter of 1973, since which time it is admitted that
net quarterly earnings exceeded gross quarterly
backpay. We shall adjust his backpay award accord-
ingly. We also find that Respondent remains under
an obligation to offer reinstatement to Mooney in
accordance with our previous order in this case.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Penco Enterprises, Inc., Penco of Ohio, and Acousti-
cal Contracting and Supply Corp., Cleveland, Ohio,
its officers , agents, successors , and assigns, shall
make a valid offer of reinstatement to employee
Michael Mooney and make him whole by payments
of $4,872.31, plus interest , less any deductions
required by state and Federal law, plus any backpay
that may accrue from the date of the backpay
Specification until a valid offer of reinstatement is
made to Mooney.
2 Ibid.
3 As we find that Respondent 's offer of reinstatement to Mooney was in
any event inadequate , we do not reach the question of whether the
Administrative Law Judge should have allowed litigation of the reinstate-
ment offer.
SUPPLEMENTAL DECISION
IRVING M. HERMAN, Administrative Law Judge: This
supplemental proceeding to determine the amount of
backpay due Michael Mooney, who had previously been
found to have been discriminatorily laid off on November
23, 1971,1 was heard before me on March 28, 1974, at
Cleveland, Ohio, on the backpay specification dated
February 27, 1974, as amended at the hearing, and
Respondent's answer , as amended.
The General Counsel claims as net backpay a total of
$4,872.312 due as of the date of the specification, plus
1 201 NLRB29(1973).
2 Reduced from $5,297.20 at the hearing
3 Reduced from $1,383.05 at the hearing.
4 Reduced from 542.375 at the hearing.
5 Corrections to the transcript of testimony are hereby ordered and
735
interest to the date of payment less any tax withholding
required by law. This amount represents $527.62 for the
fourth quarter of 1971 (234.5 hours at $2.25), $958.163 for
the first quarter of 1972 (375.75 hours4 at $2.55), and the
balance through the second quarter of 1973, since which
time it is admitted that Mooney's net quarterly earnings
exceeded any gross quarterly backpay. Respondent con-
cedes the claim for the fourth quarter of 1971; it also
concedes the backpay due for the period through March
13, 1972, but at the hourly rate of $2.25 rather than $2.55,
thus contending that the total due is $1,196.43. The
contention that the obligation terminated March 13, 1972,
rests on a written offer of reinstatement. General Counsel
argues that the matter of the offer was litigated at the
unfair labor practice stage of the case and may not be
relitigated here, and that in any event the offer was
inadequate.
Upon the entire record,5 including my observation of the
witnesses , and upon the briefs filed on behalf of the
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. THE OFFER OF REINSTATEMENT
Respondent introduced into evidence what Mrs. Jean
Wright claimed was a carbon copy of the following letter:
Michael Mooney
9411 Beech Ave.
Cleveland, Ohio 44144
March 10, 1972
CERTIFIED MAIL
RETURN RECEIPT
SUBJECT: Layoff Recall Request
Your job with our company is now available.
We request you report ready for work at 7:00 a.m. on
Tuesday March 14, 1972.
In the event you do not wish to return notify this office
by phone, or mail on Monday March 13, 1972, or we
must remove your name from the recall list.
A stamped addressed envelope, is enclosed for your use
if required.
Cordially,
Penco of Ohio
4832 Ridge Road
Cleveland, Ohio 44144
(216) 749-5151
granted on the basis of General Counsel 's motion of April 15, with such
additional items based on my trial notes as will aid understanding; the
General Counsel 's motion was unopposed except for the amendments at p.
9, 1. 12, and p. 98, 1. 10, and logic as well as my notes support both those
amendments.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. Wright, board chairman and secretary-treasurer of
Penco Enterprises, Inc., and president of Penco of Ohio,e
testified that Respondent was a family enterprise, not
large,. and that besides her management duties she
frequently performed various clerical functions, including
typing, when the five clerical employees serving the entire
enterprise were overburdened; and that she typed the
above letter as well as one to George Francis, another
discriminatee, which was identical except for name and
address.
Francis received the letter addressed to him. Mooney
testified that he drove to the post office on Monday, March
13, and signed for a letter identical to the above except that
it bore Francis's name although he was "pretty sure" it had
Mooney's address and the envelope "[d]efinitely" was
addressed to Mooney at Mooney's address. Because the
letter "had no bearing on me whatsoever. It wasn't my
name on it. Why should I reply to a letter that didn't
concern me?",7 he neither phoned Respondent for an
explanation of the discrepancy nor went to the plant which
was located about a quarter of a mile away. Instead he
brought the letter home where, according to his mother,
she and he joked about the way the letter was addressed.
He tried to telephone Francis whom he had grown up with,
who lived within a block or two, and whom he saw
frequently, to tell him about the letter, but there was no
answer . He made no further attempt to call Francis but
saw him around the following weekend and mentioned the
incident.8 Francis informed him that he had received his
own letter but was not accepting the offer because he had
secured other employment. Mooney still made no attempt
to communicate with Respondent regarding the letter
because it "didn't concern [him]."
H. THE APPLICABLE WAGE RATE AFTER 1971
Immediately prior to the close of 1971, only three
production employees were paid less than $2.55 an hour,
one of these (Palmer) receiving $2.50, another (Davis)
$2.25, and the third (Lynce) $2.20. On December 30 each
of said employees received an increase to $2.55. Palmer
had been hired October 20, 1971, Davis on June 3, and
Lynce on August 27. Mooney's date of hire was July 22,
1971. He started at $2 an hour and was raised to $2.25 in
the pay period ending September 7.
Although Glenn Wright, president of Penco Enterprises,
Inc., and Acoustical Contracting, and general manager of
Penco of Ohio, conceded that Mooney would have
received a raise on December 30,9 "most likely" 5 percent,
he testified that Mooney would not have been raised to
6 In addition to numerous other offices she held in the corporate
complex of which the three captioned companies constitute the Respondent
herein
r Again he testified, "As far as I was concerned this didn 't deal with me
directly. It didn ' t have my name anywhere on the letter , just the envelope "
$2.55 because the employees receiving such raises as a
result of the year-end review had "stepped" from the "job
position" of general laborer up "to the classification of
batch maker," while Mooney was only a general laborer
who had not shown the ability to accurately weigh out the
ingredients needed to produce Respondent's products. This
assessment of Mooney's ability rested not on Wright's own
observation of Mooney's work but on the conclusionary
opinion of Respondent's operations manager who Was not
called as a witness . Wright's direct testimony in this respect
was as follows:
Q. As the person charged with the responsibility to
make wage changes , did you receive reports concerning
the abilities of the people in the plant?
A. We did. Normally 90, days after a person was
hired, we considered the first 90 days as approximately
a probation period. After that we would normally on a
six and then a 12 month period go through - I would
go through with the operations manager and review
each of the personnel, yes.
Q. Did you give automatic raises, did the company
give automatic raises?
A. You might say that in some cases you had a
small seniority increase , on a yearly rate ; but certainly
you never gave just an automatic increase within a 12-
month period. These increases is what I am saying
would be given only if a man stepped from one job
position up to another.
Q. Is a job step from laborer to batch maker, is that
a step up?
A. Very definitely.
Q. And did that have an effect upon the raises
given to Palmer, Lynce, Davis?
A. Yes, it would.
Q. In your position of operating the plant and
seeing people function, would Mr. Mooney have been
given a step up to batch maker from laborer?
A. I can't give you my opinion on that. I can give
you our operations manager's opinion which was
passed along to me.
Q. What reports did you receive?
A. The report was that he was unable at that time
to step up to a batch maker.
Q. Were there specific reasons given for this?
A. I don't know how to say it, just that he didn't
have the ability at that time. He had not shown the
ability to be able to weigh out accurately and properly.
Q. Had Mr. Mooney been employed by the
Company in December or subsequent to December of
1971, would he have been promoted to batch maker?
A. Not at that time , no. Not unless he had
progressed considerably from that period in November
through December.
On cross-examination, however, when asked whether there
9 Francis could not recall whether they discussed the matter in person or
by telephone.
9 The grudging admission in Respondent 's brief that Mooney "might
have received" a raise at that time is to be contrasted with Wright's
testimony that he "[v ]cry definitely" would have received one
PENCO ENTERPRISES , INC. 737
were company records reflecting "the change in job
position," Wright's testimony was:
A. Well, I don't think that it would be a change in
job position. It is a job that they grow into that they
would be doing as on the job training . Then it was
turned over to them fully and the increase was given to
them.
Q. It was mainly a change in function as opposed
to a change in job title . They were doing different
duties that warranted an increase rather than a change
in job title.
A. They were to take over full supervision of their
own batching without assistance.
Q. Were they called laborers, or did they actually
have the title changed to batch maker?
A. Everyone would have called them a batch
maker.
Q. Would they have regarded themselves as batch
makers?
A. Yes.
Q. Were they told that their position was batch
maker?
A. I am sure that when they received the increase
they would have.io
When the General Counsel amiounced he had no further
questions, Wright's testimony continued:
JUDGE HERMAN : When those three men were given
batch makers wages, did you have anybody then on
your payroll who was regarded as a general laborer?
THE WITNESS: Yes, we would have had. We always
had a minimum of two . I can't tell you what their
names are.
MR. BAUDERS : I am sorry , I can't hear.
THE WITNESS: I say that we normally have on our
payroll at least two that you will classify as general
labor. I can't tell you at this time who it would have
been . If I can see a list of the employees at that time, I
could probably say who it was.
JUDGE HERMAN : I thought there was a stipulation
that -
MR. BITTEL : There was a stipulation.
JUDGE HERMAN: - that everybody, all production
people, were getting the minimum of $2.55 at that
point.
MR. BITTEL : That is the stipulation , and that is what
our records show, Your Honor.
JUDGE HERMAN : So you mean there were two people
who were regarded as general laborers who were
getting $2.55?
THE WITNESS: If they were coming along, that is
possible. At that time, these people had just been
elevated to this position; so as ydii went along if we
would have added personnel, we would have added
more laborers at the prevailing rate of $2.00 or $2.25
per hour.
On a resumption of cross-examination, Wright testified
that he was "certain , that [he] could name several"
employees hired since ] 971 or 1972 at less than $2.50 an
hour. The sole employee he named in this connection was
Roger Spears whom he claimed to have started at $2 or
$2.25, but Spears' payroll record showed his starting rate at
$2.50. The parties stipulated that in calendar 1972 and
1973 the lowest rate paid was $2.50. And company records
showed that 30-odd production employees were hired since
September 1971, none at a rate less than $2.50.
III. THE COURT PROCEEDING
The petition for enforcement herein was withdrawn
pursuant to the Board 's motion of July 2, 1973, stating in
relevant part:
2. The Company does not wish to challenge the
Board's findings and conclusions herein except those
which relate to the Company's contentions that the
Company's letter of March 10, 1972, to discriminatee
Michael Mooney constituted a sufficient offer of
reinstatement and that the sale of the assets and
cessation of business of Acoustical Contracting &
Supply Corp. on of about March 1, 1972, terminated
the backpay rights of discriminatee Donald Pereces.
With respect to the last two matters, the Company
wishes to preserve its right to judicial review of the
Board's findings and conclusions made in the instant
proceeding or in any subsequent supplemental pro-
ceeding.
3. Accordingly, as shown by the Stipulation attach-
ed hereto, the parties have agreed that the Board will
waive its right to an enforcement decree and will move
to dismiss the instant proceeding in return for respon-
dent's waiver of its right to challenge in any future
proceeding in this Court the propriety of the Board's
unfair labor practice or remedial findings and conclu-
sions herein, except as described in paragraph 2
above."
10 Although Lynce testified in the unfair labor practice hearing that he
was a batchmaker , Palmer and Davis classed themselves as general laborers.
Francis and Mooney both testified in the instant proceeding that they never
knew of anyone being called a batchmaker.
ii The stipulation referred to in the motion is as follows:
The undersigned parties hereby stipulate and agree that:
1. The National Labor Relations Board will move the Court to
dismiss the Board 's pending application for enforcement of its decision
and order in Board Case No. 8-CA-6782.
2. The respondent Company , in consideration of the Board
foregoing its right to obtain an enforcement decree , hereby waives its
right to contest in any future proceeding in this Court any of the
Board's findings and conclusions with respect to the unfair labor
practices alleged and found in Board Case No. 8-CA-6782 ; except that
respondent does not waive any objections or defense to the Board's
findings that the Company 's letter of March 10, 1972, to discnminatee
Michael Mooney did not constitute a sufficient offer of reinstatement,
or with respect to the Company's contention that the sale of the assets
of Acoustical Contracting & Supply Corp. and a cessation of that
company's business on or about March 1 , 1972, terminated the
backpay rights of discnminatee Donald Pereces.
3. Accordingly, if respondent seeks judicial review of a subsequent
Board decision awarding backpay to the discnminatees in Board Case
No. 8-CA-6782, it is understood that respondent will be precluded in
such proceeding from challenging the propriety of the unfair labor
(Continued)
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis
1. Litigability of the sufficiency of the recall
letter of March 19, 1972
At the hearing , I reserved decision on the General
Counsel's motion to strike so much of Respondent's
answer to the specification as "relates to the defense that
the letter sent to Mr. Mooney was a proper offer of
reinstatement," and took evidence from both sides relating
to this defense . The motion was based on the contention
that this matter had been fully litigated in the unfair labor
practice proceeding . I find that contention without merit
and accordingly deny the motion . The entire testimony
concerning this matter in the unfair labor practice hearing
followed the conclusion of Mooney's cross-examination,
and was as follows:
TRIAL EXAMINER: Were you ever called back?
THE WITNESS : I was called back approximately a
month ago. The envelope was addressed to me but the
contents inside were addressed to George Francis. It
was a letter concerning that the layoff was over and
you could return to work if you wanted.
TRIAL EXAMINER : But it wasn't to you?
THE WITNESS: The envelope was to me, but the
contents were to George Francis.
TRIAL EXAMINER: Didn't you ever report back?
THE WITNESS: No.
: w * s
Q. In March of 1972 you received a certified letter
with a return receipt requested which receipt you
signed?
A. Yes, sir.
Q. That letter was from Penco of Ohio?
A. Yes.
Q. And there was a stamped self-addressed enve-
lope in that letter?
A. No.
Q. There were instructions in that letter that you
should telephone the office , if you did not want to
come back on the 13th of March, 1972?
A. It was stated that either, if you didn 't call or
return, it would be taken for granted that you didn't
want to return , and they would find someone to fill
your spot, but generally the letter didn't concern me. It
wasn't addressed to me personally . The envelope was,
but the contents weren't.
Q. What did you do with the contents?
A. I think I still have them at home.
Q. Who did you say they were addressed to?
A. The envelope was addressed to me . The con-
tents were addressed to George Francis.
Q. Did you call Mr. Francis and tell him that it
looks like there might have been some sort of mixup?
A. I called , but there was no answer.
Q. You never talked to him about that?
A. No.
Q. Did you ever call the Company and ask them
what about this letter you received?
A. No.
Q. You didn't want to come back to work there?
A. Not especially.
Q. You found other employment?
A. No.
Q. You are not working now?
A. No.
Q. You are receiving unemployment from the State
of Ohio?
A. No.
Q. Are you actively seeking employment?
A. Yes.
As General Counsel urges , the Board does not permit
relitigation in a backpay proceeding of issues raised and
determined at the earlier stage of the case . But this
principle traditionally concerns matters fairly litigable in
the initial proceeding, i.e., "relating to whether the
discriminatees were originally laid off for discriminatory or
economic reasons," rather than the merits of a failure to
reinstate or other factors affecting the determination of
backpay due. See United States Air Conditioning Corpora-
tion, 141 NLRB 1278, 1280 (1963). Brown and Root, Inc.,
132 NLRB 486, 492-493 (1961), the only case relied on by
the General Counsel in this connection, is not to the
contrary . The defenses involved there related to integral
elements of the basic unfair labor practice issue, i.e., the
reinstatement rights of strikers . In short, there was no
unfair labor practice in Brown and Root except that
inhering in the refusal to reinstate , whereas in the instant
case the reinstatement issue is essentially one of compli-
ance and hence beyond the true scope of the initial
proceeding.
This is but a restatement of basic res judicata principles.
Thus, 46 Am. Jur. 2d, Judgments §423:
For a judgment to operate as res judicata and be
conclusive evidence of a fact sought to be established
by it, it must appear that the fact was a material or
essential one, and that the judgment could not have
been rendered without deciding the matter. In this
respect , the general rule is that the judgment in the
former action operates as an estoppel only as to matters
which were necessarily involved and determined in the
former action, and is not conclusive as to matters which
were immaterial or unessential to the determination of
the prior action , or which were not issuable therein, or
which were not germane to, implied in, or essentially
connected with , the actual issues in the case , or which
were not necessary to uphold the judgment. This rule
has been applied although such matters were presented
in the earlier action and actually determined therein,
and although they may affect the ultimate rights of the
parties. [Footnotes omitted.]
Again, in §426:
For the purpose of res judicata, the significance of
practice or remedial findings in the Board's original decision, except as
to the issues described in paragraph 2 above.
PENCO ENTERPRISES, INC. 739
what a court says that it decides is controlled by the
issues which were open for decision . In other words,
what is to be concluded by the adjudication is to be
determined , not from the opinion , but from a consider-
ation of the judgment actually rendered in reference to
the issues presented for decision , and if the question
was not in issue and was irrelevant to the issues
presented, it is immaterial that it was "passed on" by
the court . [Footnotes omitted.]
The best evidence of the scope of the issues presented at
the earlier hearing in this case is that specified by the
General Counsel in his statement of the issues at the outset
of his brief there . The only issues affecting Mooney, of the
seven so listed, are:
(2) Whether the Respondents on November 23, 1971,
... laid off employee Michael Mooney because of
[his ] membership in, activities on behalf of, and
insupport for Laborers Union Local No. 860 . . .
violation of Section 8(a)(1) and (3) of the Act.
(5) . . . whether the Respondents . . . violated
Section 8(a)(1) by threatening . . . Michael Mooney
... with loss of employment or other reprisals if [he]
joined, acted on behalf of, or supported the Union.
(6) . . . whether the Respondents . . . violated
Section 8(a)(1) by interrogating Michael Mooney .. .
regarding [his] membership in, activities on behalf of,
or support for the Union.
Thus, notwithstanding the boilerplate allegation of the
complaint that Respondent had failed and refused to
reinstate Mooney since-his layoff , the General Counsel did
not regard this as one of the issues at the unfair labor
practice stage of the case.
Consistently, the General Counsel nowhere attempted to
prove a failure to reinstate as such . His sole effort in
respect to reinstatement was to prove that the recall of
another employee on November 30, 1971, constituted an
unlawful preference in view of Mooney's greater seniority
and hence "[f ]urther evidence" of the discriminatory
motivation in the layoff . He neither sought to prove nor
urged by argument that the letter Mooney received on
March 13, 1972, was an inadequate invitation to return,
either because it had been misaddressed or for any other
reason . Nor did Respondent, in cross-examining Mooney,
inject this issue in any way. It was only after the conclusion
of such cross-examination that the matter was introduced
collaterally by a question put to Mooney by the Adminis-
trative Law Judge, and the entire evidence adduced by the
Judge was as follows:
TRIAL EXAMINER : Were you ever called back?
THE WITNESS: I was called back approximately a
month ago . The envelope was addressed to me but the
contents inside were addressed to George Francis. It
was a letter concerning that the layoff was over and
you could return to work if you wanted.
TRIAL EXAMINER : But it wasn 't to you?
Trm WITNESS: The envelope was to me, but the
contents were to George Francis.
TRIAL EXAMINER: Didn't you ever report back?
THE WITNESS: No.
The General Counsel's redirect examination did not touch
on the subject, and although Respondent's counsel then
asked Mooney a few questions about the letter, he, like the
General Counsel, advanced no argument on the point, and
the briefs utterly ignored it.
In these circumstances, I read the Administrative Law
Judge's finding that Mooney and two other employees had
not been recalled as something less than a definitive
resolution of an issue properly before him. The context in
which the finding appears tends to support this. Thus, it
was immediately following his finding that "The selectivity
in the layoff, and in the partial recall of some who were
laid off, in disregard of Respondent's normal rule or
practice of honoring seniority, was still further evidence of
the discriminatory antiunion purpose," and "[i]n this
connection," that the Administrative Law Judge found
that Mooney, along with the two others,12 had not been
recalled. And his conclusions of law nowhere dealt with a
failure to recall any of the employees involved.
A ruling that Respondent is now precluded from
litigating the sufficiency of the March 10 letter would mean
that a respondent could be forced in effect to litigate
compliance before he has even been found to have
committed a violation. Certainly the Board's established
procedures contemplate no such anomaly.
In finding the sufficiency of the March 10 letter litigable,
I do not rely on Respondent's contention that General
Counsel is estopped from precluding its litigation by
reason of the stipulation and motion leading to the
withdrawal of the Board's petition to enforce its order in
the court of appeals. The reference in the motion to
Respondent's preservation, in respect to this matter, of the
"right to judicial review of the Board's findings and
conclusions made in the instant proceeding or in any
subsequent supplemental proceeding" adds nothing to the
exception in the stipulation from Respondent' s general
waiver "in any future proceeding in this Court." What is
reserved is only the right to contest in court any Board
findings regarding the subject matter made either in the
initial proceeding or in the backpay proceeding. This has
no effect on the process of making the findings in the
backpay proceeding before the Board.
At the same time , contrary to the General Counsel, the
stipulation in question fails to constitute any recognition
by Respondent that the Board has determined the issue.
The stipulation's reference to "the Board's findings that the
Company's letter of March 10, 1972, to discriminatee
Michael Mooney did not constitute a sufficient offer of
reinstatement" was merely an acknowledgment that such a
finding did appear, at least implicitly, in the decision of the
Administrative Law Judge (and, by extension, in that of
the Board). But it conferred no greater legal effect on the
finding than that flowing from res judicata principles
12 Neither of whom was the subject of an alleged misaddressed recall
letter.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which , as indicated supra, would not operate to preclude
litigation of the point in the backpay proceeding.
2. Sufficiency of the March 10 letter
The principal thrust of General Counsel's contention
that the March 10 letter was an inadequate offer of
reinstatement was that notwithstanding the envelope bore
Mooney's name and address and the letter it contained
also had Mooney 's address , the addressee on the letter was
George Francis . 13 This is alleged to have justified Moo-
ney's belief - expressed variously in his testimony - that
the letter "had no bearing on me whatsoever ," "didn't deal
with me directly ," and "didn't concern me ," and hence
warranted his totally ignoring it and causing the backpay
to run on indefinitely , secure in the knowledge that
Respondent , having inadvertently misaddressed the letter,
would have no reason to send another.14 I am unable to
accept this position.
In the first place , I do not credit the testimony that the
letter bore Francis's name rather than Mooney's. The
elaborate development of the argument that Respondent
fabricated the document it introduced into evidence as the
carbon copy of the letter it had sent Mooney overlooks
what appears to me a crucial consideration . For unless
Respondent had lost its senses - a suggestion quite at
odds with the cunning the General Counsel ascribes to it
- the argument must necessarily assume that Respondent
had reason to believe that Mooney would not be able to
produce the original letter. Not only is there no record
basis for such assumption , but there was ample basis for
the precisely opposite belief , since Mooney had testified in
the unfair labor practice proceeding that he thought he still
had the letter at home and it would be perfectly reasonable
to expect him to have retained such a letter.15
Moreover, even assuming that the letter read as Mooney
and his mother described it, he was not free, in my opinion,
to treat it as cavalierly as he did . While giving full scope to
the Board's "zealous[ness ] in assuring the continued
efficacy" of the reinstatement remedy (Betts Baking
Company, 173 NLRB 1018 ( 1968), and with due regard to
the principle that shifts the burden to the employer in a
backpay proceeding once the gross amount of backpay has
been shown, exercise of the Board 's remedial authority in
this area must nevertheless "tak[e] fair account . . . of
every socially desirable factor in the final judgment"
(Phelps Dodge Corporation v. N.L.R . B., 313 U .S. 177, 198
13 General Counsel argues that the letter placed in evidence by
Respondent is a pure fabrication created after the conclusion of the unfair
labor practice hearing. He contends that this is demonstrated by
Respondent's failure to produce this evidence or to testify concerning it
once the issue had been raised in the earlier proceeding in the presence of
Respondent's officers; the failure to contest the issue to a conclusion by
seeking rehearing , filing exceptions, etc.; and the inherently incredible
nature of Jean Wright 's testimony that she performed all the clerical work
connected with the letters to Mooney and Francis.
14 There is no contention , nor would the record support one, that the
alleged error was intentional.
15 1 do not agree in any event with the contention that Respondent was
bound to litigate the issue of reinstatement prematurely because of its casual
introduction into the unfair labor practice proceeding or that by treating the
issue to the extent that it did , it waived all further consideration of it. Nor
do I agree that Mrs Wright's testimony as to this was inherently incredible
or that any other basis existed for discrediting it.
16 See also Jay Company, Inc., 103 NLRB 1645, 1646-47, enfd . 227 F.2d
(1941)), including "considerations governing the mitigation
of damages ." N.L.R.B. v. Seven - Up Bottling Company of
Miami, Inc., 344 U.S. 344, 346 (1953). As far back as
McKesson & Robbins, Inc., 19 NLRB 778, enfd . 121 F.2d 84
(C.A.D.C., 1941), the Board took an employer 's honest
mistake into account in awarding backpay. Thus, where
the discharge of a number of employees under an invalid
closed shop contract was found to have violated the then
Section 8(3), no backpay was awarded for any period prior
to 5 days after the Board 's Decision and Order because
"the legal rights and obligations of the parties [were] in
doubt and the respondent 's course of action with regard to
the persons discriminated against appear [ed ] to have been
predicated upon an honest reliance on what it conceived to
be the proper interpretation of the [contract ]." 19 NLRB at
802, supra.16 A fortiori where , as here , the mistake is one of
fact and not of law.
Mooney admittedly failed to communicate with Respon-
dent concerning the letter simply because Francis's name
was on the letter despite the facts that it contained
Mooney's address and that the envelope was clearly
addressed to Mooney and no one else.17 But if, upon
receiving the letter, he really thought it "had no bearing on
[him] whatsoever ," he must have believed it was intended
for Francis . Yet he was content to let Francis , his close
friend, remain uninformed of his opportunity to return to
work after a single futile attempt to reach him on the
telephone . And his testimony that he still felt the letter
"didn't concern [him]" even after discussing it with Francis
within the next few days and learning that Francis had
received a letter himself can scarcely be deemed less than
disingenuous . 18 A telephone call to his employers in this
situation, or indeed an earlier visit to the plant which was
only a quarter of a mile from the post office where he had
driven to pick up the letter , does not seem too much to
expect of a laid-off employee desirous of returning to work
after a period of enforced idleness already lasting 3-1/2
months . The more likely explanation for Mooney's
conduct was his admission at the unfair labor practice
hearing that he did "[n]ot especially" want to return.19 I
accordingly find that Mooney's failure to communicate
with Respondent after receipt of the letter constituted a
refusal of the offer of reinstatement.
General Counsel 's brief urges for the first time (in a short
concluding paragraph of his argument as to the inadequacy
of the letter) that even were the letter otherwise sufficient it
416, 419 (C.A. 9, 1954).
17 Significantly, referring to that letter at the unfair labor practice
hearing, Mooney's immediate reply to the Administrative Law Judge's
question, "Were you ever called back?" was, "I was called back
approximately a month ago." (Emphasis supplied.)
is I find too charitable the suggestion in the General Counsel's brief that
Mooney 's denial at the unfair labor practice hearing that he had ever
discussed the letter with Francis resulted from his forgetting "such a minor
conversation ," an "understandable" lapse "in light of the fact that he never
went beyond high school , is unskilled, and was only employed by
Respondents as a laborer at $2.25 an hour." In all the circumstances the
conversation was not minor, nor, as far as I am aware , do memory lapses
necessarily vary inversely with one 's educational or vocational attainments.
19 In H & H Manufacturing Company, Inc, 87 NLRB 1373, 1376-77,
1400-1 (1949), cited by General Counsel as "somewhat analogous," the
employee involved (Minnie Lou Jones) received no recall message whatever
despite a specific promise to send her one.
PENCO ENTERPRISES , INC. 741
still did not satisfy Respondent's duty to offer reinstate-
ment because it did not give Mooney enough time to reply.
The entire argument in this respect is as follows:
Even if it were deemed that Respondents' version of
the recall letter sent Mooney was correct, it would still
seem that the letter constituted an inadequate offer of
reinstatement since it did not provide Mooney ade-
quate time to reply. In this regard , it should be noted
that the letter was dated March 10, 1972, was picked up
by Mooney on March 13, 1972, and had a report-to-
work date of March 14, 1972. See Southern Household
Products Company, Inc. 203 NLRB 881.
Although this contention appears to deserve rejection as
pure afterthought , never having been mentioned prior to
the brief either by General Counsel or by Mooney himself,
I find it unmeritorious in any event . The lone authority
cited by General Counsel , Southern Household Products
Company, Inc., 203 NLRB 881 (1973), fails to support his
position . In that case, an April 7 letter offered reinstate-
ment as follows:
If you desire such reinstatement, you are to report to
work on Wednesday, April 9th, at 7:00 a.m. Should you
fail to report to work as offered , or advise the Company
as to your position concerning reinstatement on the 9th
of April or not later than the 18 of April, it will be
considered that you do not desire such reinstatement
and no longer desire to work for the Company ... .
The Board found "the April 9 reporting date , standing
alone," to provide "too short notice without the alternative
April 18 `advise date,' " and hence reversed the Adminis-
trative Law Judge 's holding that backpay terminated as of
April 8 because the employee (Cox), who had received the
letter that day, was at home and not working and therefore
had no reason for not returning to work on April 9 or
replying to the letter .20 In respect to another employee
(Mercer), a letter was sent April 22, requesting him to
report on Friday, April 25, and stating that if he did not
report then or advise the employer on that date or not later
than Monday, April 28, as to his position regarding
reinstatement, he would no longer be considered as
interested in working there . The Board found that the
notice "to report on April 25, standing alone," provided
too short a period, and continued Mercer 's backpay to
April 28.
Southern Household would thus indicate that the report-
ing date of March 14 given Mooney in the instant case,
standing alone, might have provided insufficient notice,
but that this defect was cured by the opportunity afforded
to notify Respondents by March 13 of a desire for an
alternative reporting date . This result would also accord
with Eastern Die Company, 142 NLRB 601, enfd. 340 F.2d
607 (C.A. 1, 1965). The employer there sent the following
letter on August 8:
We are planning to reopen our polishing department
next Monday, August 13, 1962. We would like to have
you come back to work and will you please call at our
office as soon as you can this week. If you can't
conveniently return to work this Monday, please let us
know.
The failure of the employee (Cyr) "to respond within the
time allowed by the offer constituted an implied rejection,"
and the Board tolled his backpay "as of the last day on
which he could have notified the Respondent of his
willingness to return to work , i.e., the end of the business
day on Friday, August 10." Id. at 604. Cf. Rental Uniform
Service, 167 NLRB 190, 198 (Eleanor Howard) (1968). See
also Belts Baking Company, supra, where the Board
explains the basis for its holding 4 days' notice of
reinstatement (with no alternative) insufficient in that and
other cases by stating , "in each case the discriminatee
would have been required to leave his present job while
giving less than reasonable notice" (173 NLRB at
1018-19), a factor not present either here or in Southern
Household supra. Mooney here, moreover, like employee
Brown in Betts, never suggested the time factor as in any
way responsible for refusal of the offer of reinstatement;
and although employee Mummey there did testify that the
time limitation was a reason for his failure to respond to
the offer, he never so indicated prior to his testimony. The
Board's apparent view that employee reliance on that
ground was unnecessary in order to preserve it as a basis
for decision was rejected by the courts both in Betts (428
F.2d 156, 158-159 (C.A. 10 1970)) and in N.L.R.B. v.
Harrah's Club, 403 F.2d 865, 871 (C.A. 9, 1968) (Bruce
Lovelady). Of course I am obliged, to follow the Board
rather than the courts and so do not rely on this specific
point21 for my conclusion that Respondent 's letter of
March 10 , even on Mooney 's version, was a valid offer of
reinstatement which he rejected by failing to communicate
with Respondent on March 13 or to report for work on
March 14.
I accordingly find that Mooney's right to backpay
terminated at the close of business March 13, 1972.
3. Computation of amount due
As noted above, Respondent admits that Mooney is
entitled to $527.62 for the fourth quarter of 1971, in
accordance with General Counsel's claim, and that he is
further entitled to $668.81 for the first quarter of 1972
through March 13, such latter sum representing 297.25
hours at $2.25.22 I find that the hourly rate to which
Mooney is entitled after 1971 is $2.55, as urged by General
Counsel, and that the correct number of hours is 297.675,23
20 The Board of course reached the same result as to another employee
who did not receive the letter until April 9.
21 1 deem it my duty , nevertheless, to note a parallel between this
situation and that of an employer who, having a valid basis for discharging
an employee, in fact discharges him in whole or in part for a discriminatory
reason . If, as the Board properly holds, such a discharge breaches the
employer's duty not to discriminate, it would seem that an employee
violates his duty not to refuse an unconditional offer of reinstatement if his
refusal does not rest at least in part on the shortness of time provided by the
otherwise valid offer.
22 The 297.25 hours coincides with General Counsel 's claim through
March 10 plus 8.25 hours for March 13.
23 The minor discrepancy as to the hours for March 13 apparently stems
from Respondent's rough approximation of one -fifth of 43-3/8 hours
(Continued,'
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thus yielding $759.07 for the first quarter of 1972, with the
grand total due at $1,286.69.
It should be observed at the outset that Respondent's
$2.25 position is completely untenable in light of Wright's
admission that Mooney would have received an increase
on December 30, 1971. Even at his 5-percent figure
Mooney would be entitled to $2.3625. However, the
evidence does not support Wright's attempted distinction
of Mooney from the other production employees who were
raised to $2.55 on December 30, nor does it in any event
support his position that Mooney's raise would have been
limited to 5 percent.
Based on wage rates in relation to length of employment,
Mooney, as of the time of his layoff, appears to have been
at least the equal of employees who thereafter received the
raise to $2.55. Hired at $2, he had been raised to $2.25 only
halfway through his 90-day probationary period, an
increase that defies explanation on any basis other than
exceptional ability in light of Wright's testimony recited
above. Lynce, who had been hired at $2.20 a month after
Mooney, received no increase until December 30, 4 months
after his hire . Davis was hired almost 2 months before
Mooney but stayed at his $2.25 starting rate until the
December 30 raise. Accordingly, and since Palmer, who
had been hired at $2.50 on October 20, by which time
Respondent had ceased hiring at any lesser rate, was raised
to $2.55 in December, only 70 days after his hire, it would
seem that Mooney would also have received the same rate.
Wright's testimony to the contrary rests on the report he
claims to have received from the , operations manager. Not
only did the latter not appear to testify and support this
hearsay statement , but Wright's testimony in this connec-
tion seems contrived. According to him, the report was that
Mooney lacked the requisite ability "at that time," but
nowhere is "that time" identified . There seems no occasion
for any such report to have been made in December, a
month after Mooney's layoff. Nor, based on Wright's
testimony as to when he "receive[d ] reports concerning the
abilities of the people in the plant," was there any occasion
for a report at any time after the expiration of Mooney's
probationary period a month before his layoff. And if the
report came when his probationary period expired, then he
claimed in the specification for the week ending March 17 . The exact figure
is 8.675 hours rather than 8.25.
24 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
had 2 months to "progress" by December instead of the I
month mentioned by Wright. Given the ability indicated
by his early progress, Mooney should have had no
difficulty in achieving the necessary competence had he
indeed lacked it at whatever time Wright's testimony
related to.
Wright also contradicted himself when, upon a request
by the General Counsel for company records to substanti-
ate Wright's testimony that Palmer, Lynce, and Davis had
"stepped" up from the "job position" of general laborer "to
the classification of batch maker," Wright admitted that it
was not a change in job position but solely in function,
only to answer a moment later that the men would have
been told when they received the increase that "their
position was batch maker." And although he testified that
"[e ]veryone would have called them a batch maker" and
that they would so have regarded themselves, neither
Palmer nor Davis did so when they testified at the unfair
labor practice hearing, both, like Mooney, calling them-
selves general laborers.
Further undermining Wright's credibility was his futile
attempt to deny the fact that no employee was hired after
September 1971 at an hourly rate below $2.50. In light of
this fact, as well as the fact that no production employee
on the payroll as of the end of 1971 earned less than $2.55,
I find it impossible to credit Wright's testimony that
Mooney's raise in December would have been limited to 5
percent. I find, on the contrary, on the basis of all of the
foregoing, that Mooney would have received a raise to
$2.55 an hour on December 30, 1971, had he not suffered
the discrimination found.
Upon the foregoing, I hereby issue the following
recommended:
ORDER 24
Respondent, its officers, agents, successors and assigns,
shall pay to Michael Mooney the sum of $1286.69 plus
interest accrued to the date of payment in accordance with
the formula set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), less deductions for applicable taxes.
conclusions , and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.