Propoco, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1985

275 N.L.R.B. 12 (N.L.R.B. 1985)

12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Professional Porter and Window Cleaning Co., A Di-
vision of Propoco , Inc.; Professional Services, A
Division of Propoco , Inc. and Margaret Bailey
Taylor. Case 29-CA-8144
8 April 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 7 November 1984 Administrative Law Judge
Frank H. Itkin issued the attached supplemental de-
cision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief
in support of the judge's decision.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings,' and conclusions and to adopt his findings
as to the amount of backpay due.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Professional
Porter and Window Cleaning Co., A Division of
Propoco, Inc.; Professional Services, A Division of
Propoco, Inc., Brooklyn, New York, its officers,
agents, successors,. and assigns, shall pay to each
employee the amounts set ,forth by the administra-
tive law judge.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd• 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
SUPPLEMENTAL DECISION
FRANK H. ITKIN, Administrative Law Judge. This is a
backpay proceeding. On August 4, 1982, the National
Labor Relations Board issued ,its Decision 'and Order in
the above case. The Board found and concluded that Re-
spondent Employer violated Section 8(a)(1) of the Na-
tional Labor Relations Act by discharging , employee
Margaret Bailey Taylor on July 9, 1980. The Board di-
rected the Employer to, inter•alia, make whole employee
Taylor for, any loss of pay which she may have sustained
as a result of the Employer's unlawful conduct. A peti-
tion for enforcement and, a cross-petition for review of.
the Board's Order were filed in the United States Court
of Appeals for the Second Circuit. On September 16,
1983, the court entered its judgment enforcing in full the
Board's Order The parties, however, were unable, to,
agree upon the amount of backpay owed to employee
Taylor. Consequently, on December 19, 1983, a backpay
specification and notice of hearing issued, alleging there-
in the amounts of backpay - due to employee Taylor
during the pertinent period i
- A supplemental hearing was conducted on the issues
raised in this backpay proceeding on June 25, 26, and 27,
1984, in Brooklyn, New York. On the entire record, in-
cluding my observation of the demeanor of the wit-
nesses, and after due consideration of the briefs filed, I
make'the following
SUPPLEMENTAL FINDINGS OF FACT ,
1. INTRODUCTION
.. The principal issue raised here is whether Respondent
Employer made three valid unconditional offers of rein-
statement to employee Taylor, as alleged, which termi-
nated or tolled the Employer's backpay liability. Conced-
edly, the Employer's alleged fourth offer of reinstate-
ment, dated August 12, 1982 (G C. Exh. 5), constituted
an effective unconditional offer and the Employer's
backpay obligation ended about August 30, 1982, when
employee Taylor was in fact reinstated to her former po-
sition.2 Counsel for Respondent Employer argues that
"on or about July 22, 1980, the Employer offered to
claimant Bailey [Taylor] an unconditional offer of rein-
statement to her past position at the location of her past
employment, which was rejected by claimant . . . . It is
counsel for General Counsel's position that no such offer
was made" and, further, that the September and October
1980 alleged offers were not valid unconditional offers of
reinstatement which would terminate or toll backpay li-
ability. (Tr. 7, 10-13.)
Before discussing the evidence pertaining to these al-
leged'offers of reinstatement, and related contentions, it
is appropriate to restate the following controlling princi-
ples It is settled law that the "finding of an unfair labor
practice . . is presumptive proof that some backpay is.
owed" (NLRB v. Mastro Plastics Corp., 345 F 2d 170, 178
(2d Cir. 1965), cert. dented 384 U.S 972 (1966)), and,the
General Counsel's, burden is limited to showing "what
would not have been taken from [the employee] if the
company had not contravened the Act." Virginia Electric
Co. Y. NLRB, 319 U.S 533, 544 (1943). This allocation of
the burden was.expressed in NLRB v. Brown & Root, 311
F.2d 447, 454 (8th Cir. .1963), as follows:
[I]n 'a ' backpay proceeding the burden is upon the
General Counsel to show the gross amounts of
backpay due., When that has been done, the burden
is•upon the, employer to establish facts which would
' This specification was later amended The name of the Employer and
ba'ckpay claimant have-been changed, and the pleadings, insofar as they
have not been. updated,. are amended accordingly
2 The three earlier offers cited by Respondent Employer were asser-
tedly made in writing on July 22, 1980 (G C Exh 6), less than 2'weeks
after Taylor's unlawful firing, on September 15, 1980 (G C Exh 3), re-
ferring therein to "a similar position", and on October 8, 1980 (G C Exh
4), again referring therein to "your [Taylor's] new job " The alleged
fourth offer, dated August 12, 1982 (G C Exh 5). was made 8 days after
the Board had issued its Decision and Order in this case
275 NLRB No. 4
PROFESSIONAL PORTER CO 13
negative the existence of liability to a given employ-
ee or which would mitigate the liability.
Thus, for example, "the cases are unanimous" that the
defense of willful loss of earnings is an "affirmative de-
fense" and the burden is on the employer to prove the
defense NLRB v. Mooney Aircraft, 366 F.2d 809, 813
(5th Cir. 1966) 3 Likewise, it "is well established that an
employer who has unlawfully discharged [an employee]
Has the obligation to remedy its unlawful action `by
seeking out the [employee] and offering reinstatement'
. . . . Notification is an integral part of such an employ-
er's obligation . . . ." Hickory's Best, 267 NLRB 1274
(1983). And, as the Board, in agreement with the admin-
istrative law judge, explained earlier in Rutter-Rex Mfg.
Co., 206 NLRB 656, 657-658 (1973):
"The reinstatement obligation properly rests with
[respondent employer] and is satisfied only by a
valid and unconditional offer of reinstatement"
. . . To produce such proof was the burden of re-
spondent, for the "burden of proving facts that
show no liability or that mitigate the extent of dam-
ages" is on the employer in a backpay case arising
out of the employer's unfair labor practices
[Citations omitted J4
iI THE EVIDENCE PERTAINING TO THE ALLEGED
OFFERS
nity leave 5 Taylor, who lives in Jamaica, related in
detail how she traveled by public transportation to her
interim jobs during the pertinent backpay period. She
made clear at the time to her interim employers, who
placed her for the most part in residences as a "home at-
tendant," that "they had to be on the bus route" because
she had no automobile. Further, she experienced "prob-
lems finding work" because, as she testified, "I couldn't
obtain my reference" from Respondent-"I told" house-
keeping supervisor Mary Ann Corino "that I needed my
reference and [Corino] said that Professional Porter
Service would not release it."
Taylor was questioned at length about Respondent's
alleged offers of reinstatement. Following her firing on
July 9, 1980, she was first contacted by the Employer on
September 15, 1980. She received and signed for (G C.
Exh. 3) a letter from the Employer dated September 15,
1980, which was mailed certified, return receipt request-
ed This letter stated:
Dear Madam:
We hereby offer you a similar position at the
same are [sic] of pay as you received while in our
employ at Brookhaven H.R.T.
In the event you fail to respond within the next
three days as to your availability, we will assume
you are not interested.
Margaret Bailey Taylor was employed by Respondent
Employer as a maid or cleaning person at the Brookha-
ven health care facility in Far Rockaway, New York.
She was, as the Board and court found, unlawfully dis-
charged on July 9, 1980. She explained in this supple-
mental proceeding her repeated efforts to find interim
employment and mitigate her loss of income As noted
supra, the General Counsel, in the amended backpay
specification, acknowledges interim earnings during the
initial two backpay quarters of 1980 and the first two
quarters of 1981 And, as the "second amended appen-
dix" to the specification shows, no backpay is claimed
commencing during the third quarter of 1981 through
the second quarter of 1982 because Taylor was on mater-
a Although the General Counsel is required to present only the "gross
amounts of backpay due ," he goes further , pursuant to the Board 's Rules
and Regulations , Sec 102 53, and includes in the backpay specification a
deduction from gross backpay of all those amounts in mitigation which
he discovered through, for example, social security records The General
Counsel does not thereby assume "the burden of establishing the truth in
all of the information supplied or of negativing matters of defense or miti-
gation " NLRB v Brown & Root, supra , 311 F 2d at 454.
4 The General Counsel, in addition to the admissions of certain interim
earnings as contained in the backpay specification as amended , moves to
further amend the specification to admit further interim earnings totaling
$17 50 during the third and fourth quarters of 1980 (Tr 20-21) Howev-
er, the General Counsel's "second amended appendix" annexed to her
brief only shows an additional $8 and $7 during these two quarters I
would, instead, round off the additional interim earnings to $9 for each
quarter Certainly, $18 is closer to $17 50 Further, the General Counsel
moves to correct the starting date of the backpay obligation to July 9,
1980 In the process, the General Counsel's amended "appendix" now
shows only 11, instead of 12, weeks during the initial backpay quarter In
my view, 12 weeks more reasonably reflects the quarterly backpay period
from July 9 through September 30, 1980 Accordingly, an additional
gross backpay of $213, or a total of $2556, will be shown for the third
quarter of 1980
This letter was signed by Respondent's director of oper-
ations William Joynes. Taylor emphatically denied re-
ceiving any earlier alleged offer from the Employer (Cf
G.C. Exh. 6, dated July 22, 1980.) Significantly, the Em-
ployer's September 15 letter makes no reference to any
earlier alleged offer. And, as will be discussed below, no
reference was made to any July 22, 1980 offer during the
earlier unfair labor practice hearing (conducted on April
2 and 3, 1981).
Taylor, as she further testified, "called" Director
Joynes "the following day that I received the letter" of
September 15, 1980. Taylor recalled
He [Joynes] offered me a job in another facility,
other than Brookhaven.
Joynes offered Taylor "a job" at a facility known as
Parkview, located in Massapequa, Long Island. Taylor,
as instructed, "was to come to" Joynes' office in Lyn-
brook on September 29, 1980.
Taylor in fact met with Joynes on September 29, 1980.
Joynes then told her.
He said that I would be working in Parkview in
Massapequa, and I would be in a different union.6
Joynes instructed Taylor that she "was to start October
7"-"He was to pick me up October 3, at 10 . . to take
me out to Parkview and familiarize . . me . . . with
5 Taylor's maternity leave ran from June 1981 to June 1982
6 She was previously a member of Local 144 The new union would be
Local 1115 Previously, pension contributions were made by the Employ-
er to Local 144
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
the area ." However , in the meantime , about September
30, Taylor requested a friend "to drive" her "out there"
because "I wanted to see how far it was." They followed
"the bus route." The one-way trip by automobile took
about 1-1/2 hours. Previously, it took Taylor only 45
minutes to travel from her home to Brookhaven by bus.
Further, Joynes had informed Taylor that she "would be
taking the Long Island Railroad" to Massapequa . Taylor
discovered on September 30 that the train station in Mas-
sapequa was some 30 blocks from Parkview, and there
was no connecting bus service.
On Thursday, October 2, 1980, Taylor telephoned
Joynes "to confirm the, October date for him to pick me
up." Joynes confirmed the date and "stated that he would
pick up Taylor at 10 a.m . Taylor waited on Friday, Oc-
tober 3, until 11:15 a.m.; Joynes did not appear. Taylor
telephoned Joynes on Monday, October 6, and
I asked him, what happened? Why didn't he show
up? After I told him that I left the house at 11:15,
that's when he told me he was there at 11:30.
Joynes then arranged to pick up Taylor the following
day, October 7, at 11 a.m. Again, Joynes did not appear.
Taylor, waited for him all that day. Later, however, on
October 8, Supervisor Mary Ann Corino telephoned
Taylor "and told me that Mr. Joynes was on his way."
Joynes arrived and, on October 8, they drove to Park-
view. -
Taylor recalled that on October 8, Joynes drove
Taylor to the train station some 30 blocks from Park-
view: Joynes acknowledged: "This is pretty far." Joynes
ascertained from a taxicab operator that it would cost
about $6 in fare "one-way" between the railroad station
and Parkview. Consequently: Taylor told Joynes, "it was
too far" and "it would have been too expensive." She
asked, instead , for a "place closer"; and "he said no."
Taylor wanted to go back to Brookhaven-Joynes
"didn 't say anything."
Taylor testified that she next heard from Respondent
Employer by letter dated October 8, 1980 (G.C. Exh. 4).
This letter, also signed by Joynes, stated-
On Friday October 3, 1980, Mr. Joynes and Miss
Corino had an appointment with you to take you to
your new job. You did not show up for the appoint-
ment . Mr. Joynes spoke to you on Monday, Octo-
ber 6, 1980, and you said you were not available for
work this day.
I've held a job open for three days Unless you
contact my office the position offered you will' be
forfeited.
This letter, like'the letter of September 15, makes no"ref-
erence to any alleged offer about July 22, 1980 This
letter, as quoted, refers to "your new'job." '
Finally, Taylor acknowledged receiving a letter from
the Employer, sent certified return receipt requested and
dated August 12, 1982 (G.C. Exh. 5). This letter was
signed by Vice President Ira Levy, and stated:
I am notifying you once again -as in my past letter
of July 22,' 1980, that your employment with my or-
ganization is available.
Taylor accepted the offer and returned to her former po-
sition at Brookhaven.7 -
Ira Levy, now president of Respondent Employer, tes-
tified that Union Business Representative Daisy
McQueen had asked him in, July 1980 to "reinstate
[Taylor] . . to her position in Brookhaven" and he
"agreed to." Levy asserted that he therefore wrote (G.C.
Exh. 6) the July 22, 1980 letter to Taylor, caused his sec-
retary Rochelle Swartz to type the document; asked
Swartz to mail the letter; and
saw her , as she usually does, at the end of the day
take the mail and 'walk it down to the post office
which is a block away, and mail it.
Levy next claimed that Taylor, during late July 1980,
telephoned-"she had received my letter of July 22 and
she wanted to discuss ' her reinstatement with me." Levy,
as he testified , got Joynes on another telephone to over-
hear the ensuing conversation with Taylor . According to
Levy,
I [Levy] spoke to [Taylor] and as the letter ex-
plained . . . that her position of employment was to
start . . . on the 1st of August , and we would like
her to come back and she said that she was looking
forward to coming back. And, I turned the conver-
sation over to Bill Joynes , who was going to make
the necessary arrangements to-meet her at Brookha-
ven on August 1, [1980].
Levy then claimed that Taylor in fact did not show up
on August 1, and he "instructed Joynes to make it his
business to be in touch with her by telephone and find
out what the problem was and set up ' a new appoint-
ment."
Levy was 'shown (G C. Exh . 3) a letter to Taylor
dated September' 15, 1980, wherein Taylor was "offer[ed]
a similar position at the same [rate] of pay as [she]
received while in [Respondent's] employ at Brookha-
ven " Levy claimed-
I [Levy] spoke with Joynes to have a letter sent out
to [Taylor] because he [Joynes] was very unsuccess-
' On cross-examination , Taylor explained that it took about 45 minutes
-to,travel from her home in Jamaica to the Brookhaven facility in Far
Rockaway on public transportation, at a total cost of approximately $1 50
each way Taylor generally acknowledged that a monthly commutation
by Long Island Railroad from Jamaica to Massapequa would be approxi-
mately $50 As noted, the' Parkview nursing facility in Massapequa is
some 30 blocks from the railroad station and connecting public, transpor-
tation is unavailable. Taylor further explained that Joynes, in offering
Taylor a job at Massapequa during late September 1980, "only said that I
[Taylor] would be making the same thing that I was making at Brookha-
ven'[and] after 30 days I would receive an increase " Joynes did not tell
Taylor "how much that increase would be" or whether "that increase
would offset any additional transportation cost " Also see the testi-
mony of Regional Compliance Representative Jonathan Zand pertaining
to, inter alia , Taylor's interim earnings and projected transportation costs
to Massapequa Zand would approximate the monthly commutation fare
on the Long, Island Railroad from 'Jamaica to Massapequa about $60
during the pertinent backpay period
PROFESSIONAL PORTER CO 15
ful in reaching her by telephone for the month prior
and continuously.
Levy also claimed:
The purpose of the letter [G.C. Exh 3] was to
employ [Taylor] to work at Brookhaven . . at a
similar position . . . .
Taylor responded to this September 15 letter by tele-
phone; she assertedly spoke with Joynes.
Levy was then shown (G C. Exh. 4) a letter to Taylor
dated October 8, 1980, referring therein to an October 3
"appointment . . to take [Taylor] to [her] new job" and
her failure to "show up," and warning "unless you
[Taylor] contact my office the position offered . . will
be forfeited " Levy claimed:
I [Levy] spoke with Joynes and informed him to
write this letter . . and since a position opened up
in Massapequa that she might be interested in work-
ing at.
The "Massapequa position" assertedly "is higher in both
salary and benefits." In sum, according to Levy,
[The] July 22 letter relates to Brookhaven; the Sep-
tember 15, 1980 letter relates to Brookhaven; the
October 8 [letter] relates to Parkview [and] the
August 12, 1982 letter relates to Brookhaven.
Elsewhere in his testimony, Levy was asked for the
"registered receipt" as shown on the alleged offer of
July 22, 1989 (G.C. Exh. 6). Levy responded:
[I]t wasn't a return receipt when the letter was
mailed; there was a receipt that the letter was being
mailed and Mrs Swartz, who was working with us
. . . her first week . . had misplaced the receipt
Levy also did not have the "number" of the receipt-
"We lost the number and the actual receipt or it has
been misplaced." Levy first discovered this "a few
months ago " Further, Levy was asked: "Do you always
watch her [Swartz] walk down the block with the mail?"
He responded. "When we are sending out registered or
certified letters I tend to watch her walk down . . . to
the post office." In addition, Levy acknowledged that
Swartz "puts her initials on the bottom of letters." He
noted that the initials on the July 22 letter were those of
Swartz' predecessor He claimed that "there is a format
letter on the word processor and she [Swartz] did not
change" the initials.
Levy asserted that Taylor had been asked in the letter
of July 22, 1980, "to please get in touch . . . within the
next week so you can commence work on August 1 with
full salary and benefits"; that Taylor in fact "did get in
touch"; and that she "never showed up." Levy was
asked: "Did you ever write her a letter indicating to her
that you [Taylor] never showed up and therefore [Re-
spondent] assumed that she is no longer interested?"
Levy responded:
That was done when Mr. Joynes came back to the
office on the 1st. I told him to call and . . .
throughout the next month or so he made numerous
calls. We were very unsuccessful . . . So I sug-
gested to Mr. Joynes on September 15 to write her
a letter and possibly she would respond and call us.
There is, however, no reference in the September 15
letter "to her failure" to contact the Employer. Levy
then added: "I think we were just repeating the offer
that we had originally made to her on July 22, when she
responded to this letter by phone, to Bill Joynes, she
mentioned that she was very embarrassed . . to go
back to work at Brookhaven " (Cf. G.C. Exhs 4 and 6 )
Concededly, some 2 years later, following issuance of the
Board's Order, Taylor accepted an offer of reinstatement
to her former position at Brookhaven.
Finally, Levy was shown General Counsel's Exhibit
12. This letter was dated November 1, 1982, and was
written by John R. Prins of Industrial Labor Relations
Consultants, Inc. to the Board's regional representative.
The letter stated, in part.
As per your request in your letter of October 13,
1982 and in our telephone conversation of October
21, 1982, enclosed you will find copies of the four
offers of reinstatement made to Margaret Bailey, in-
cluding signed returned receipts in two cases, and a
statement of the results of each offer.
(a) Registered letter sent July 22, 1980• No re-
sponse. Employer did not request a return receipt
Following service of the offer, the Employer at-
tempted to contact Bailey by telephone, reaching an
individual who agreed to transmit the message left.
(b) Certified letter, return receipt requested, sent
September 15, 1980: Received, an appointment
scheduled (fox the purpose of showing Bailey the
site of her new position after she responded in late
September/early October) for which Bailey failed
to appear
(c) Letter sent October 8, 1980- No response.
(d) Certified letter, return receipt requested, sent
August 12, 1982: Mentioned initial letter sent in
July. Subsequent to this letter, Ms. Bailey was hired
and commenced work
Levy was questioned about his "conversations" with
Prins "at that time." Levy claimed. "I don't recall specif-
ically." He was asked if he discussed "the various letters
that you represent as offers of reinstatement" He re-
sponded. "I really don't specifically recall I possibly
did"-"It's not so clear in my mind my conversations
with Mr. Prins." Elsewhere, Levy claimed that he did
not "direct" Prins to send "that letter" to the Board's
Regional Office, that Prins is "no longer employed by
Industrial Labor Relations Consultants"; and that the
reason Prins is "no longer employed" is: "Mr. Horowitz
wasn't pleased with his performance." admittedly, Prins
was associated with Industrial Labor Relations Consult-
ants on November 1, 1982.8
8 Daisy McQueen , business representative for the Union , was later
called as a rebuttal witness for the General Counsel Her testimony per-
taining to , inter alia , Levy's repeated efforts to get her to corroborate his
testimony concerning the alleged July 22 , 1980 offer is discussed below
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rochelle Swartz, secretary for Levy, testified that she
typed General Counsel's Exhibit 6 on her "third day of
work" in July 1980, that the initials "j 1" on the bottom
were those of her predecessor secretary, that she was
using some "form" on the word processor and "never
changed it at that point"; that she sent the letter "regis-
tered", and that she "misplaced" the "receipt." Swartz
also testified that Taylor later telephoned Levy and she
connected Joynes and- Levy "on the phone." Swartz
"did not hear any of the conversation."_ In addition,
Swartz claimed that Taylor did not appear at the Em-
ployer's Lynbrook offices on September 29, 1980
Swartz was asked where the "original copy" of Gen-
eral Counsel's Exhibit 6 (the July 22, 1980 letter) is; she
responded: "Honestly, I don't know." She would "imag-
ine it would be"_in the file. She added- "the top of of it
is yellow," and restated: "Again, I don't know where the
original copy of the letter is"-"the file that I looked at
did.not have the original in it, and again I don't know
where the original of the letter is." Later, she recalled:
"The original we-sent to Ms Bailey"-"that dust dawned
-on me . . we would make a copy of the original that
would be sent to Ms. Bailey."
William Joynes, previously employed by Respondent
'as director of its operations, testified, inter alia, that he
was "involved in a three-way [telephone] conversation"
with employee Taylor and Vice President Levy "around
the last week of July" 1980. According to Joynes,
We were informing [Taylor] that'she would be rein-
stated to the Brookhaven facility August 1, 1980.
We set an appointment to meet there 8 a.m..
Taylor, however, never showed up at Brookhaven for
her "appointment." Nevertheless, Joynes assertedly sent
Taylor a letter on September 15, 1980 (G.C Exh. 3),
"offering [her] a similar position at . . Brookhaven."
Taylor, according to Joynes, ultimately telephoned
Joynes and acknowledged to him that she "was a little
embarrassed to go to Brookhaven." Joynes, as he further
testified, then made arrangements for Taylor to work at
another nursing home in Massapequa, Long Island. (Cf.
G.C. Exhs 3 and 4.) Joynes attempted to drive Taylor
from her home in Jamaica to the Massapequa facility;
however, they discovered at the Massapequa railroad
station, before getting to the nursing home, that it would
cost Taylor about $4.50 in taxicab fares each day to
travel between the station and the nursing home. Taylor
assertedly observed. " it's a lot of money and . . . a con-
siderable distance " Joynes therefore never completed
- the trip to the Massapequa facility; instead, he took
Taylor home.'
Daisy McQueen, business agent for Local 144, was
called by the General Counsel as a. rebuttal witness.
-McQueen related under oath Levy's repeated efforts
before this hearing to get her "help" in corroborating the
Employer's claim about the alleged July 22, 1980 letter
to Taylor McQueen, however, refused to "testify" about
"seeing a letter"; she "would not state under oath that
9 Elsewhere in his testimony, Joynes claimed that the July 22, 1980
letter pertained to Taylor's "old job" and his "second effort was to
offer her her same job at Brookhaven "(Cf G C Exhs 3 and 4 )
[she] remembered something that [she] just couldn't re-
member"; "[she] would not . . . lie"; and she "would be
lying" if she "stated under oath" that she "saw the
letter." Levy-after being repeatedly told by McQueen
that she "can't testify" about the "letter"-instructed
McQueen: .
then you'll [McQueen ] be no good to me and I
[Levy]. don't need you there . . he would not
expect me to be there [at this hearing].
McQueen was later shown a signed , unsworn statement
(R. Exh 8) provided earlier by her to Levy about Febru-
ary 1984 , indicating , inter alia, that
It came to my [McQueen 's] attention in late July
1980 that [Taylor] received Mr. Levy's letter of re-
instatement to her original position at Brookhaven
_. . . and that she was to start work the morning of
August 1, 1980.
McQueen insisted that Respondent's Exhibit 8 "doesn't
accurately reflect what I told Mr. Levy or anything."
McQueen acknowledged that the Union's attorney and
divisional director "didn't see anything wrong with me
helping him [Levy] because he has helped us in the
past," that is, "help alleviate some of the backpay."
In response to this rebuttal testimony, Levy was re-
called. Levy explained that the statement (R. Exh. 8) re-
flects McQueen's "accounting" and corrections-"she re-
viewed it and said it -was absolutely accurate." Thereaf-
ter, on February 10,. 1984, McQueen, after having "had
the opportunity to show it to her attorneys," signed the
statement. Later, however, McQueen notified Levy that
"she was very uncomfortable with coming forth and
making a statement" at this hearing, "particularly in this
particular case [Taylor] made statements in prior hear-
ings that Local 144 did not represent her as well as they
should have." Levy ultimately assured McQueen: "I'm
not going to subpoena her [McQueen]."
Finally, the Employer's alleged July 22, 1980 written
offer of reinstatement (G.C. Exh. 6) was admittedly not
cited at the earlier unfair labor practice hearing. It will
be noted that the complaint in the initial case alleged not
only the "discharge of', Taylor to be unlawful, but also
Since the date of the discharge . . . Respondent has
failed and refused to reinstate, or offer to reinstate,
said employee to her former or substantially equiva-
lent position of employment.
Counsel for Respondent argues, inter alia, that the failure
to adduce such written proof "was a desire to obey the
administrative law judge's decision to go onto other
areas, thereby causing the July 22, 1980 offer not to be
introduced " A fair reading of the transcript in the initial
case shows that the judge did not block or prevent the
presentation - of such relevant proof. Thus, the General
Counsel in- the unfair labor practice trial (Rosado)
showed Taylor, inter alia, the September 15, 1980 letter
from Joynes, and the following colloquy ultimately
ensued (Tr. 72-77):
PROFESSIONAL PORTER CO
JUDGE MORTON. Hold it. Why am I hearing all
this testimony? It sounds like a back pay proceed-
ing.
MR. ROSADO. No, your Honor. It's not a bona
fide offer of reinstatement.
The witness will testify that Massapequa was lo-
cated out in Long Island.
JUDGE MORTON. Yes, I know. But is that really
not in the nature of a back pay-I know your com-
plaint alleges that they failed to reinstate her-
MR.- ROSADO: Yes, well that's all that it-
'JUDGE MORTON: All right. But this would have
to-all this testimony would have to be premised on
a further finding that her former position was un-
available. Right? And you know, it's all based on
that. And I have no such evidence before me.
- Look, I'm going to presume that when she is
fired from Brookhaven by Respondent, she has
stayed fired from there, until someone tells me she
was offered a job back there, or shows to me that
her job-that she could not have been reinstated or
that her job had been abolished. All right?
I don't see why I'm hearing all this stuff about
Massapequa.
-On this entire record, I credit the testimony of em-
ployee Taylor as detailed above. She impressed me as a
trustworthy and reliable witness. Her testimony concern-
ing the pertinent backpay sequence withstood the test of
cross-examination and, in . part, was substantiated by Re-
spondent's witnesses and exhibits. In short, I am persuad-
ed here that Taylor has credibly testified that she never
received. any July 22, 1980 offer of reinstatement; that
both the September 15 and October 8, 1980 offers were
to a job out in Long Island some 30 blocks from public
transportation; and that when Respondent first uncondi-
tionally offered Taylor her former position, on August
12, 1982, she accepted and returned.
I do not credit the testimony of Levy, Joynes, and
Swartz. They did not impress me as trustworthy and re-
liable witnesses. Their testimony was at times evasive,
vague, incomplete, contradictory, and unclear . The asser-
tion that the Employer's September 15, 1980 letter to
Taylor was an offer of work at Brookhaven is contra-
dicted by the language of the letter itself-"a similar po-
sition at the same [rate] of pay while in our employ at
Brookhaven . . . ." The Employer's former representa-
tive, Prins, even referred to that alleged offer as to "the
site of her new position." Further, I am persuaded here
that no offer was made to Taylor on July 22, 1980, as
asserted I find the July 22 letter, and related testimony
of Levy, Joynes, and Swartz, to be contrived and fabri-
cated in an attempt to reduce the backpay obligation. I
do not believe that such a document existed prior to the
Board's initial adjudication, as sustained by the court. Fi-
nally, I do not credit McQueen. She was an unreliable
witness. Nevertheless, her testimony, assessed in context
here, persuades me that she at first attempted to "help"
Levy reduce the backpay obligation with her unsworn
statement- and that she later realized that she could not
17
give similar untrue testimony under oath. Levy then
agreed not to press her to honor her written statement.1 °
III. SICK LEAVE AND PENSION CONTRIBUTIONS
Counsel for Respondent , in effect , acknowledged (Tr.
8-9, 517) that employee Taylor was eligible to receive 5
days' sick leave prior to the- commencement of her ma-
ternity leave in June 1981. Thus, as he stated , "should
the employee be found -to have been eligible during that
time period . . . the accrued time that would have been
available to- her would have been 5 days less whatever
she normally took." Stated ' differently , "for the time
period in 1981, if she were working , she would have had
5 days' sick leave available to her ." (Also see the essen-
tially undisputed and credible testimony of-regional com-
pliance representative Zand , Tr. 119-120.)
Further , with respect to pension contributions, the
General Counsel acknowledged (Tr.i487-488, Br . 3) that
the pension contributions for employee Taylor assertedly
owed by Respondent Employer to Local 144 are as con-
tained in Respondent 's proferred exhibits ; i.e., "79.6 per-
cent of [Taylor' s] gross backpay multiplied by 2.5 per-
cent , or 1.99 percent." i i
Discussion
The Board's Order in the instant case, as enforced by
the court, directed Respondent Employer to offer em-
ployee Taylor "immediate and full reinstatement to her
former position' or, if that position no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other ' rights and privileges previously en-
joyed, and make her whole for any loss of earnings she
may have suffered as a result of her unlawful discharge."
Counsel for Respondent argues that the Employer in fact
offered employee Taylor reinstatement to her former po-
sition at Brookhaven, by letter dated July 22, 1980. The
credited evidence of record, as detailed in section II,
supra, makes it clear that there was no letter of July 22,
1980. In any event , assuming the existence of such a doc-
ument, Respondent Employer has failed to establish by
sufficient credible proofs that such an offer was ever
communicated to employee Taylor, thereby terminating
or tolling the backpay obligation.
10 Counsel for Respondent argues that, in effect, past findings of credi-
bility by the arbitrator and administrative law judge in the initial pro-
ceeding are now relevant to resolve the credibility of employee Taylor
(R Br 21-22) I adhere to my ruling as-restated in this proceeding (Tr
696-697 ) I note also that the Board , in the initial unfair labor practice
adjudication as sustained by the court, found the "arbitrator's gratuitous
statement that [Taylor] was not discharged for protected activity does
not indicate any real consideration of the statutory issue" and therefore
declined to "defer" to his award, and, further, that the Board expressly
"decided to affirm the rulings, findings and conclusions of the administra-
tive law judge only to the extent consistent herewith " Under the circum-
stances, I would not deem the arbitrator's or administrative law judge's
credibility resolutions relevant to determine credibility here Cf Fed R
Evid 607-613 In any event, assuming the cited credibility findings of the
arbitrator and administrative law judge and related evidence adduced
before them are relevant because of the related nature of the earlier pro-
ceeding, I am still persuaded that, on this entire record, Taylor has credi-
bly and reliably recalled the above sequence of events
11 The General Counsel moves to amend her specification to reflect
this and additional corrected or agreed upon items The motion is grant-
ed to the extent consistent 'with this supplemental decision -
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for Respondent next claims that it made a
second offer of reinstatement to employee Taylor for a
job at Brookhaven, by letter dated September 15, 1980,
and a third offer of reinstatement for a job at another fa-
cility in Long Island, by letter dated October 8, 1980.
However, the credited evidence establishes here that
both the September 15 and October 8 letters pertained to
a job offer at a nursing home in Massapequa, Long
Island. Employee Taylor was not in fact being offered
her "former position" and, further, Respondent has not
even attempted to show "that [former] position no
longer exists." Under the circumstances, the September
15 and October 8 communications were not sufficient
valid offers of reinstatement to terminate or toll the Em-
ployer's backpay obligation. Moreover, even assuming
employee Taylor's "former position" at Brookhaven no
longer existed when these communications were re-
ceived, these alleged offers were clearly not to "a sub-
stantially equivalent position." Employee Taylor, as the
credited evidence shows, would have been required to
expend a substantial amount of additional time and funds
in commuting to this new job. Indeed, in addition to the
monthly commutation cost on the Long Island Railroad,
there were the taxicab fares of $12 round trip each day,
to cover the some 30 blocks between the railroad station
and this new jobsite.
In sum , Respondent Employer has failed to establish
that the September 15 and October 8 letters were offers
of "substantially equivalent" jobs which would terminate
or toll the backpay obligation. Cf. Mastro Plastics Corp. Y.
NLRB, 350 U.S. 270, 278 (1956); Valmac Industries, 229
NLRB 310 (1977); Mutual Maintenance Co., 244 NLRB
211, 217 (1979) The only valid offer of reinstatement
made here was contained in Respondent's letter of
August 22, 1982. Employee Taylor accepted and re-
turned to her former position at Brookhaven.
Further, the Employer's backpay liability should in-
clude the 5 days of paid sick leave which employee
Taylor would have been entitled to at the beginning of
her maternity leave in June 1981. Taylor would have ac-
crued these days during the first 6 months of 1981; she
started her maternity leave in June 1981; and, as the
General Counsel alleges, the employee was entitled to
these five days of paid sick leave. There is no reason to
speculate here, as counsel for Respondent suggested at
the hearing (Tr. 8-9), how many sick days Taylor may
have taken during this period. This record provides no
basis for such a finding. Consequently, in making the em-
ployee whole, she should be compensated for this loss. i z
In conclusion, the General Counsel has sufficiently
proven the gross amounts of backpay due; she has ac-
knowledged certain interim earnings ; and Respondent
Employer has not sufficiently established facts which
would negative the existence of such liability. The com-
putations of the net amount owed, $12,113, are set forth
in the appendix below. The computations of pension
fund payments due to Local 144, $285, are also set forth
below:
1. GROSS BACKPAY
A. July 9, 1980, through September 30, 1980, at
$213 per 36-1/4 hour week.
B. October 1, 1980, through March 31, 1981, at $220
per 36-1/14 hour week.
C. April 1, 1981, through March 31, 1982, at $246
per 36-1/4 hour week.
D. April 1, 1982, through August 30, 1982, at $261
per 36-1/4 hour week.
1980 3d Qtr. (12 weeks) $2556
4th Qtr. 2860
1981 1st Qtr. 2860
2d Qtr. 3198
3d Qtr. (2 weeks backpay plus 5 days sick
leave
738
4th Qtr. (no backpay claimed) 0
1982 1st Qtr. (no backpay claimed) 0
2d Qtr (no backpay claimed 0
3rd Qtr (8 weeks)
II. INTERIM EARNINGS
2088
1980 3d Qtr. Massapequa Temporaries, Inc.
5620 Merrick Rd.
Massapequa , N.Y. 11758
$ 248
Crown Office Cleaning Contractors
381 Park Avenue South
New York, N.Y. 10016
9
Quarterly Total $ 257
1980 4th Qtr Massapequa Temporaries, Inc. $ 450
Crown Office Cleaning Contractors 9
Quarterly Total $ 459
1981 1st Qtr. Massapequa Temporaries, Inc $ 596
2d Qtr. Massapequa Temporaries, Inc. 268
Care of Hicksville, Inc
57 North Broadway
Hicksville, NY 11001
$ 607
Quarterly Total $ 875
3d Qtr. None 0
4th Qtr No backpay claimed -
1982 1st Qtr.
2d Qtr
No backpay claimed
No backpay claimed
3d Qtr. None 0
III. NET BACKPAY
980
Calendar
Quarter
3d
Gross
Backpay
$2556
Interim
Earnings
$257
Net Backpay
$2299
4th 2860 459 2401
1981 1st 2860 596 2264
2d 3198 875 2323
3d 738 0 738
4th - - 0
1982 1st - - 0
2d - - 0
3d 2088 0 2088
$12,113
12 The Local 144 pension contributions are as agreed on, and are set
forth herein
PROFESSIONAL PORTER CO 19
IV. FUND CONTRIBUTION
Contributions due and owing on behalf of Margaret
Bailey Taylor to the Local 144 Pension Fund are as fol-
lows:
1980
Calendar
Quarter
3d
Base
Earnings
$2556
Rate of
Contributions
1.99%
Contribution
Due
$51
4th 2860 57
1981 1st 2860 57
2d 3198 64
3d 738 15
4th - 0
1982 1st - 0
2d - 0
3d 2088 41
ORDER
The Respondent, Professional Porter and Window
Cleaning Co., A Division of Propoco, Inc.; Professional
Services, A Division of Propoco, Inc; Brooklyn, New
York, its officers, agents, successors, and assigns, are
hereby ordered to pay to Margaret Bailey Taylor the
amount of $12,113 as net backpay due, plus interest as
prescribed in Florida Steel Corp, 231 NLRB 651 (1977),
less tax withholdings required by Federal and state laws.
IT IS FURTHER ORDERED that Respondent make the
contributions due and owing on behalf of Margaret
Bailey Taylor to the Local 144, S.E.I.U. Pension Fund,
in the amount of $285.
$285
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
19 If no exceptions are filed as provided by Sec 102 46 of the Board's Board and all objections to them shall be deemed waived for all pur-
Rules and Regulations , the findings , conclusions, and recommended poses