Seligman & Associates, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1216 (N.L.R.B. 1984)

1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seligman & Associates, Inc. and its wholly owned
Division, Scott Management Company and
Local 79, Service Employees International
Union, AFL-CIO and David Younce. Cases 7-
CA-13576, 7-CA-13752 (1-4), 7-CA-14086,
and 7-CA-13948
14 December 1984
SUPPLEMENTAL DECISION AND
ORDER
MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 29 December 1983 Administrative Law
Judge William F. Jacobs issued the attached sup-
plemental decision.' The Respondent filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record 2 in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, 3 and
conclusions and to adopt the recommended Order
as modified.4
A principal issue presented here is whether the
Respondent made and discriminatees David and
Susan Younce rejected a valid reinstatement offer,
thereby tolling the Respondent's backpay obliga-
tion. Contrary to our dissenting colleague, we
1 The Board's original Decision and Order is reported at 240 NLRB
110 (1979), enfd 639 F 2d 307 (6th Or 1981)
2 We shall grant the Respondent's motion to reopen the record and
admit into evidence, only for purposes relating to the issue of whether
the reinstatement offer communicated by Board Agent Whiteman was
hypothetical in nature, copies of Whiteman's notes of phone conversa-
tions he had with the Respondent's attorney and with discnnunatee
Susan Younce and an Internal memorandum that he wrote concerning the
case
Inasmuch as we have limited the admission of Whiteman's notes and
memorandum to the issue of the reinstatement offer's nature, we shall
deny the General Counsel's motion to reopen the record to introduce
into evidence the affidavit of the General Counsel
3 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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
We deny the Respondent's requests for oral argument because the
record is sufficient to determine all issues presented
4 The judge found that the Respondent owed discrimmatee GooId
$1,860 50 in backpay to cover medical bills resulting from a work-con-
nected injury. The record indicates, however, that Goold has failed to
pay his medical bills Under these circumstances, paying Gould for his
medical expenses would constitute a windfall We shall order instead that
the Respondent reimburse directly BiCounty Hospital, Warren, Michigan,
and Doctor John Barkay for medical services rendered Goold, thereby
placing the parties in the same economic positions they would have been
in had the Respondent not unlawfully discharged Gould
We also adopt the judge's recommendation, made in response to the
Respondent's motion, that an amended notice be substituted for the
Board's ongmal notice The Respondent has apparently not yet complied
with the notice requirements of the Board's original Order
agree with the judge's finding that the Younces
never unequivocally refused a valid offer.
Prior to their unlawful termination on 7 October
1976, 5 Susan and David Younce were employed as
caretakers for the Eureka apartment complex man-
aged by the Respondent. On 26 October the
Younces received notice to quit the apartment that
the Respondent had provided for them rent free.
Two days later, Susan Younce filed an unfair labor
practice charge against the Respondent.
Irwin Alterman, the Respondent's attorney, in-
vestigated the Younce allegations, concluded that
they were meritorious, and recommended immedi-
ate settlement to the Respondent. Alterman and his
client agreed to a settlement proposal for full back-
pay and reinstatement of the Younces to caretaker
positions at a complex other than at the Eureka
apartments. On the afternoon of 8 November, Al-
terman asked Board Agent Whiteman to relay to
the Younces the Respondent's offer of reinstate-
ment with backpay to a caretaker's job at the Re-
spondent's Utica Green apartment complex, which
was located 30-50 miles away from the Eureka
complex. Whiteman then phoned Susan Younce
and, according to Younce's credited testimony,6
asked her, "If Mr. Seligman offered you your job
back with backpay would you take it?" Younce re-
plied, "No, I don't want to work there anymore. I
don't even want to be around here anymore."
Whiteman informed Alterman that the Younces did
not want their jobs back. The Younces also appar-
ently received a note from the Respondent asking
them to report to work at the Utica Green apart-
ment complex. They did not respond.
Meanwhile, about 5 or 6 November, Susan
Younce called the Respondent and asked Scott Sel-
igman, son of the Respondent's owner, if it would
be possible for her and her family to obtain a lease
and remain in the apartment. Seligman replied that
there would not be any problem, but she would
first have to drop the unfair labor practice charges
against the Respondent. On the morning of 8 No-
vember, Susan Younce called Whiteman and told
him she wanted to withdraw the charge. Whiteman
advised against her doing so, but stated that, if she
still wished to withdraw the charge, she would
have to do it in writing. She then informed the Re-
5 All dates hereafter refer to 1976
6 The documents introduced into evidence pursuant to the Respond-
ent's motion to reopen the record do not warrant reversing the judge's
credibility finding that Whiteman made only a hypothetical offer of rein-
statement The same reasons stated by the judge for crediting Younce's
testimony over prior affidavits apply to crediting that testimony over
Whiteman's cursory notes and memorandum In any event, Whiteman's
notes, if credited, do not indicate rejection of the offer, but instead indi-
cate that he communicated and Younce accepted the invalid offer to rein-
state the discrinunatees to another apartment complex
273 NLRB No. 153
SELIGMAN & ASSOCIATES 1217
spondent of her conversation with Whiteman and
was told to contact Alterman.
On 10 November the Younces received an evic-
tion notice. The next day, Susan Younce went to
Alterman's office. The meeting started with
Younce and Alterman discussing her conversations
with Seligman about dropping the unfair labor
practice charge in order to obtain a lease and to
remain in the apartment with her family. Alterman
then explained that she would have to give an affi-
davit about her attempts to drop the charge. He
also offered to write a letter for her to the Board
withdrawing the charge. Younce agreed to Alter-
man's requests and, at some point during the meet-
ing, she informed Alterman that she and her hus-
band did not want to be reinstated. Alterman com-
posed the affidavit and the letter stating that
Younce wished to withdraw the charge and had no
desire to be reinstated. 'After reading over and
making changes in the affidavit and letter, Younce
signed both of them. She withdrew her charges
with the Board, but a complaint later issued against
the Respondent after her husband filed a charge.
The judge found that the Respondent did not
make such a firm, unconditional offer of reinstate-
ment sufficiently unequivocal as to toll backpay.
He based this Conclusion on the facts that: (1) the
reinstatement offer received by Susan Younce from
Board Agent Whiteman was hypothetical, and
therefore did not provide her with the opportunity
to make a considered choice whether to accept re-
instatement; 7 (2) the Younces were offered similar
but not equivalent jobs at the Respondent's Utica
Green apartment complex, not the Eureka complex
where they had worked prior to their unlawful dis-
charge, and such offers of work at a different loca-
tion and for different management are not sufficient
to toll backpay; 8 and (3) the Respondent, by elect-
ing to convey its reinstatement offer through a
Board agent instead of proffering it directly, is
bound by any resulting confusion.9
We agree with the judge's findings for the rea-
sons set forth in his decision. Because there is no
credible evidence that the Respondent ever made a
legitimate reinstatement offer to the Younces, it has
failed to toll its backpay obligation. It is well set-
tled that only when a proper offer is made and un-
equivocally rejected by the employees is the em-
ployer's backpay obligation tolled."
Our dissenting colleague does not contend that
the Younces ever received a valid reinstatement
7 Dobbs Houses, 182 NLRB 675 (1970).
8 M. J. McCarthy Motor Sales Co., 147 NLRB 605 (1964).
Rafrare Refrigeration Corp., 207 NLRB 523 (1973).
10 W. C McQuaide, Inc., 239 NLRB 671 (1978), enfd. 617 F.2d 349 (3d
Or. 1980).
offer. Instead, he would depart from clear Board
precedent by holding that Susan Younce's renunci-
ation of intent to seek reinstatement or backpay in
her 11 November meeting with Alterman waived
the Respondent's obligation ever to make a rein-
statement offer. We see no reason to make such a
change in the law. As a wrongdoer, the Respond-
ent bears the burden of remedying its unfair labor
practices." We impose no hardship by requiring
that it meet that burden by making a clear, un-
equivocal, legitimate reinstatement offer even in
the face of a discriminatee's apparent understanding
and repudiation of the concept of reinstatement.
Moreover, we find, based on Younce's credible
testimony, that the circumstances of the 11 Novem-
ber meeting between Younce and Alterman were
such that she did not voluntarily renounce rein-
statement. Younce went to Alterman under threat
of immediate eviction from her apartment, a direct
consequence of the Respondent's discrimination
against her." It is clear that Younce was intimidat-
ed by Alterman's demand at the meeting that she
sign a letter and affidavit withdrawing the unfair
labor practice charge if she wished to obtain a
lease. Indeed, Younce credibly testified that she felt
so pressured and nervous that she did not know
what she was doing and that she just wanted to
"get out of there." Accordingly, inasmuch as
Younce's statement that she did not want to be re-
instated was made under coercive circumstances,
we find that it was not binding.
Inasmuch as the Respondent failed to proffer a
specific offer of reinstatement at the same location
to the Younces and the Younces did not voluntari-
ly reject such a proper offer, we find that the Re-
spondent's backpay obligations to the Younces
have not been tolled.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Seligman & Associates, Inc. and its
wholly owned Division, Scott Management Com-
pany, Southfield, Michigan, its officers, agents, suc-
cessors, and assigns, shall pay Clarence Goold,
11 See Electrical Workers IUE v. NLRB, 426 F.2d 1243, 1251-52 (D.C.
dr. 1970).
12 The dissent treats this encounter as a benign, business-like affair, ar-
ranged for "Younce's own purposes, i.e., to withdraw the charge and to
obtain a lease." Indeed, Younce did desire a lease; otherwise, she and her
family faced Immediate eviction from the apartment house which they
had occupied as a term and condition of the Respondent's employment.
Simply put, Younce would not have needed a lease if the Respondent
had not unlawfully discharged her. As the law of this case, the discharge
was coercive. It is fallacious to suggest that the meeting to obtain a lease
as a direct consequence of such coercion was itself devoid of coercion.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
David Younce, and Susan Younce the sums set out
in the Order as modified.
1. Insert the following paragraph between the
first and second paragraphs of the Order.
"The Respondent shall reimburse BiCounty Hos-
pital, Warren, Michigan, $1200 and Doctor John
Barkay $660.50 for medical services rendered Clar-
ence Goold for injuries suffered while in the em-
ployment of the Respondent."
2. Substitute the attached notice for that of the
Board in its original Decision and Order reported
at 240 NLRB 110 (1979).
MEMBER HUNTER, dissenting.
I disagree with my colleagues' adoption of the
judge's reinstatement order and backpay findings
with respect to Susan and David Younce. The
judge found that the Respondent did not make a
firm, unconditional offer of reinstatement to the
Younces sufficient to toll backpay. On this basis,
the judge found that the Younces' backpay period
commenced on the date of their discharge, 7 Octo-
ber 1976, and is not yet over as they have never
been offered reinstatement. Contrary to the judge
and my colleagues, I would find that backpay for
the Younces was tolled as of 11 November 1976
when they voluntarily rejected employment with
the Respondent. In view of the Younces' clear and
unequivocal rejection of employment, in my opin-
ion, it is not necessary to determine whether the
Board agent, on behalf of the Respondent, commu-
nicated a proper reinstatement offer, an inquiry
pursued by the judge. Rather, I believe, it is suffi-
cient that the record clearly shows that Susan
Younce had been apprised of what reinstatement
meant before she gave the rejection to the Re-
spondent. Contrary to my colleagues in the majori-
ty, I would not require an employer in this situa-
tion to simply extend a futile offer of reinstatement
literally only "for the record."
Based on uncontradicted record evidence, which
the judge improperly failed to include in his factual
recitation, I would find that Susan Younce, on
behalf of herself and her husband, rejected employ-
ment and tolled backpay as of 11 November 1976.
The record clearly shows that both Susan Younce
and the Respondent's attorney Alterman testified
that, in their meeting held on 11 November 1976,
Susan Younce voluntarily said that she did not
want her job back. Since the Younces were hired
and fired as a caretaker couple, I would find that
Susan Younce's rejection included her husband's
job. It is obvious that Susan Younce knew the
import of her rejection. In her conversation with
Board Agent Whiteman on 8 November 1976,
Susan Younce was given an adequate explanation
as to what reinstatement entailed. As shown by the
record, it was in this conversation that Susan
Younce first announced that she and her husband
did not want their jobs. Thus, I would permit the
Respondent to rely on Susan Younce's rejection of
employment for her and her husband. I find this
result is further supported by the fact that the Re-
spondent had outstanding a reinstatement offer to
the Younces which the Board agent had said was
communicated to and rejected by Susan Younce.
My colleagues in the majority claim that
Younce's unsolicited refusal of employment with
the Respondent communicated to the Respondent's
attorney was made under "coercive circumstances"
and, thus, should not be held binding on the
Younces. I disagree. As far as the record shows,
the meeting with the Respondent's attorney was
conducted in accord with Younce's own purposes,
i.e., to withdraw the charge and to obtain a lease.
The impetus for the meeting had been Younce's
own desire to obtain a lease and withdraw the
pending charge. Younce apparently was experienc-
ing difficulty withdrawing her charge on her own.
Without disputing these facts, the majority has
adopted a per se definition of coercion. In the ma-
jority's view, this meeting with Susan Younce
automatically was coercive simply because one of
the subjects discussed was a benefit lost as a result
of the Younces' discharge, i.e., the use of a town-
house at the complex where the Younces worked.
Under the majority's definition of coercion, any
meeting between an employee and his employer to
discuss the effects of an unlawful discharge, includ-
ing settlement conferences between an employee
and his employer to discuss any wages, benefits, or
privileges lost through an unlawful discharge, is
coercive irrespective of the factual circumstances
surrounding such meetings. I cannot accept such a
far-reaching approach.
I point out that Younce's rejection of employ-
ment was not a quick reaction on her part. The
record shows that she had arrived at this decision
several days earlier and had first communicated her
decision in the conversation with Board Agent
Whiteman. Younce's own testimony indicates that
she was not "coerced" by Whiteman to reject em-
ployment; rather, to the contrary, it appears that
Whiteman strongly tried to persuade her to accept
employment or at least a backpay settlement but
was unsuccessful in his efforts.
I also cannot agree with the majority opinion's
handling of Goold's medical expenses. The judge
recommended that the Respondent be ordered to
pay Goold directly for his medical bills which
would have been covered by the Respondent's in-
surance plan but for Goold's unlawful discharge.
However, to date Goold has not been required to
SELIGMAN & ASSOCIATES

1219
pay these medical bills= which were incurred in
1976 arid 1977: The Respondent has only excepted
to the direct payment to , Goold for these medical
expenses. Due'tO. 'the age of these bills, the Re-
spondent claims that colledtion may be barred by
the applicable , state statute ,o(limitations and Goold
indy never:lie liab16,'-for - these expenses. To meet
this coneern, , the majority orders the Respondent
to directly..paythe health care providers who ren-
dered the -medical, services. I cannot accept my col-
leagues approach as sufficient in these circum-
stances:. Instead, F would only order the Respond-
ent to indemnify . Goold if any 'collection action on
these bills is instituted. In this way, the Respondent
is .permitial to pursue" its available defenses to a
c011ectiOn -action and Gciold is held harmless. This
kind ,cif ternedy, in n'i r view, is' more consistent
with the ,aim. of the 'Board's remedial powers to
make the discriminatee whole for his out-of-pocket
expenses., For all the reasons stated above, I there-
fore dissent. .
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
'ME WILL NOT interfere with our employees'
rights under Section 7 of the National Labor Rela-
tions Act, Or discourage membership in Local 79,
Service EmplOyees International Union, AFL-
CIO,,or any other labor organization, by-discharg-
ing or- otherwise disciiminating against our employ-
ees in -regard to hire or tenure of employment Or
any other term or condition of employment.
' WE WILL NOT coercively interrogate or "threaten
bin' employees, or prohibit them from talking to
new eniployees about the Union.
WE WILL NOT transfer, promote, or reclas-sify
our employees in an attempt to gerrymander the
unit in an NLRB election.
WE WILL NOT threaten to discharge our employ-
ees for testifying at an NLRB hearing.
'WE WILL NOT in any other manner -interfere
with, restrain,-or coerce our employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
WE WILL offer' 'David Younce and Susan,-Younce
full, immediate, and unconditional reinstatement to
their former jobs or, if their jobs no longer exist, to
substantially equivalent jobs; 'without prejudice to
their seniority or any other rights or privileges pre-
. viously enjoyed; and' WE -WILL -make them whole
for any loss of pay suffered by reason of the dis-
crimination against them, with interest..
WE - WILL' reimburse BiCounty Hospital -and
Doctor John Barkay for medical services rendered
Clarence Goold as a result of a work-connected ac-
cident.
WE HAVE made Larry Davis, Ricky Davis,
Charles Davis, Mark Rushing, Harold Dodson, and
Madeline Dodson whole for any loss of pay suf-
fered by reason of the discrimination ,against them,
in accordance with the settlement agreement en-
tered into by the parties at the backpay hearing in
the instant proceeding.
WE HAVE made unconditional offers of reinstate-
ment to Larry Davis, Ricky Davis, Charles Davis,
Mark Rushing, Harold Dodson, and Madeline
Dodson and these offers have been refused.
SELIGMAN & ASSOCIATES, INC. AND
ITS WHOLLY OWNED DIVISION,
SCOTT MANAGEMENT COMPANY
SUPPLEMENTAL DECISION
WILLIAM F. JACOBS, Administrative Law Judge. This
is a supplemental proceeding to determine the aniount of
medical compensation due Clarence Goold and the
amount of backpay due David and Susan May Younce,
who were found to be discnmmatees, unlawfully termi-
nated by Respondent, in a grevioasly held unfair labor
practice hearing.' _ The instant proceeding was held
before me on „June 6, 7, 9, 'and 10, 1983, at Detroit,
Michigan, based on the amended backpay specification
which issued April 26, 1983, and on the amended back-
pay specification which issued April' 26, 1983, and Re-
spondent's answer filed May 2, 1983. All parties were af-
forded opportunity to participate in the hearing, to
present evidence, to examine and cross-examine wit-
'nesses, and to argue orally. Briefs were filed by the par-
ties.
FINDINGS 'OF FACT
The Issues
1. Whether Clarence Goold should be compensated
for the medical expenses he incurred as a result of an ac-
cident, in which he was involved while an employee of
Respondent, and if so in what amounts.
2 Whether David and Susan May Younce should re-
ceive backpay and if so how much. The subissues are:?
(a). Whether David and Susan Younce recieved and re-
jected a proper reinstatement offer when Seligman's
counsel made the offer through Board Agent Whiteman.
(b) Whether- the Younces are estopped from seeking
backpay
(c) Whether the amounts due the Younces, as.reflected
by the backpay specification, are correct.
The Decision and Order of the Board pursuant to which this hearing
was held is reported 240 NLRB 110 (1979), enfd 639 F 2d 307 (6th Cir
1981), cert denied Oct 5, 1981
2 These are also the issues raised in Respondent's brief
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Whether the notice to employees which the Board
has ordered posted should be revised to delete reference
to reinstatement and backpay.
1 Clarence Goold
Clarence Goold, while employed by Respondent, was
involved in an automobile accident on December 19,
1976. At the time of the accident he was engaged in the
performance of work-connected duties. As a result of the
accident Goold suffered injuries which required medical
attention and hospitalization as well as attendant ex-
penses. The total expenses incurred were $1860.50, $1200
of which was attributable to hospitalization which was
undergone in April 1977, the rest of which were doctor
bills for office visits between December 22, 1976, and
August 11, 1977; physiotherapy undergone during the
same period; injections, oral medication, and other tests,
all accident connected, according to the credited testimo-
ny of Goold, supported by a doctor's bill presented at
the hearing by Goold. No bill was presented for the
$1200 hospitalization 3 which Goold credibly testified he
had undergone in April 1977.
Goold credibly testified that while he and his wife
were employed as a caretaker couple by Respondent
they were covered by a medical and hospitalization plan
provided by Respondent and that they had received ben-
efits under the plan in 1976 when his wife became preg-
nant and all maternity costs including both hospitaliza-
tion and doctor's bills were paid for through the plan
even up to within 2 months of Goold's termination. It is
the General Counsel's position that but for Goold's un-
lawful termination the hospitalization and doctor's bills
suffered as a result of his December 19 automobile acci-
dent would have been paid by Respondent's insurance
plan.
The burden is on the General Counsel in backpay
cases to show losses suffered by a discnminatee and re-
flect those losses in a backpay specification The burden
is on a respondent in this type of case to prove diminu-
tion of such losses whether the diminution is the result of
interim earnings, failure of the discnminatee reaonably to
search for interim employment, unavailability for em-
ployment, or of other factors.4
In the instant proceeding the General Counsel relies
principally on Goold's testimony and the supporting doc-
tor's bill to prove Goold's claim. As noted above, I
found Goold to be a credible witness and would rely on
his testimony unless Respondent presented evidence to
undermine that credibility or evidence to indicate a
proper diminution of the total sum of his claim
Respondent, in presenting its case, did not challenge
Goold's testimony that prior to his discharge he and his
wife received benefits covering her pregnancy in 1976
including payment of hospitalization and doctor's bills.
3 According to Goold, the hospitalization was for about 10 days The
doctor's bill reflects that GooId made 27 office visits 4 in December
1976, 8 in January, 2 in February, 1 in March, none in April during
which month he was hospitalized, 3 in May, 4 in June, 3 in July and 2 in
August
4 Brown ci Root, Inc , 311 F 2d 447 (1963), 327 F 2d 958 (8th Cir
1964), Mastro Plastics Corp, 345 F 2d 170 (2d Or 1965), cert denied 384
US 972 (1966), DeLorean Cadillac, 231 NLRB 329 (1977)
Since his testimony on this matter went unrefuted, I find
that Goold was, in fact, covered by a hospitalization plan
prior to his discharge.
Respondent presented only one witness to testify con-
cerning Goold's claim. This was Mary Newkirk, Re-
spondent's assistant controller. But Newkirk was not
hired until approximately 2-1/2 years after Goold's acci-
dent and discharge and so had no firsthand information
concerning the existence or nonexistence of insurance
coverage for caretaker couples. Newkirk was asked, in
preparation for the instant proceeding, to examine certain
files to determine if they contained any reference to any
1976 insurance coverage for caretaker couples. She
found none. No explanation was offered as to why Re-
spondent did not call the member of management in
charge of such matters in 1976 to testify concerning the
matter, nor why one or more caretaker couples em-
ployed in 1976 were not called to testify concerning in-
surance coverage at the time. I find Respondent's choice
of Newkirk to testify 3 and its failure to call any knowl-
edgeable witness to testify on the matter were apparent
attempts to stonewall on the issue. I draw the adverse in-
ference that if Respondent called knowledgeable man-
agement witnesses to testify, their testimony would be
contrary to the interest of Respondent. I shall rely on the
credible testimony of Goold 6 and find that he was cov-
ered at the time of his accident by an insurance plan paid
for by Respondent and that but for his unlawful dis-
charge the hospitalization and doctor's bills resulting
from injuries sustained by him due to the accident would
have been paid by Respondent. 7 Such moneys due are
correctly listed in the General Counsel's amended back-
pay specification.8
2. Susan and David Younce
Susan and David Younce were unlawfully terminated
by Respondent on October 7, 1976. 3 Before termination
both received compensation for their work in the form
of separate checks every 2 weeks plus the use for them
and their three children of a townhouse located at the
complex where they were employed. Following their
termination the Younce family continued to occupy the
same townhouse apartment which they had lived in
while employed by Respondent.
On October 26, a notice to quit issued requiring the
Younces to abandon their apartment. Two days later,
Susan Younce filed the charge in Case 7-CA-13451 al-
leging the discriminatory discharge of her and her hus-
band Shortly after the charge was filed, Irwin Alterman,
Respondent's attorney, investigated the circumstances
surrounding the allegations contained in the charge and
5 Newkirk testified as to the existence of a 1978 insurance plan cover-
ing salaried employees I find this testimony Irrelevant
6 Respondent did not avail himself of his right to subpoena either indi-
viduals or documents in connection with Goold's hospitalization or doc-
tor's bills though the names of the hospital and doctor who treated
Goold were discussed on the record
7 Additional arguments as to why Respondent should not be required
to pay these sums, outlined in Respondent's brief, I find to be without
merit
8 Sam Tanksley Trucking, 210 NLRB 656 (1974)
9 Hereinafter all dates are in 1976 unless otherwise indicated
SELIGMAN & ASSOCIATES 1221
determined that they were meritorious. He advised Re-
spondent of his findings and recommended immediate
settlement to the Younces with full backpay. His client
agreed. Alterman, however, suggested that the Younces
be offered caretaker positions at an apartment complex
other than Eureka, the one at which they had been em-
ployed and at which they had lived prior to their dis-
charge. He did this because it was his understanding that
they had been having trouble with the resident manager
at Eureka. Again, Respondent's management agreed to
Alterman's suggestion.
Having received the agreement of his client, Alterman
contacted Board Agent Whiteman, the individual as-
signed to handle the case for Region 7. By telephone,
Alterman advised Whiteman that Respondent would
offer the Younces their jobs back with full backpay, less
interim earnings. Being more specific, he told Whiteman
that the Younces would be offered a caretaker couple's
position in one of Respondent's Utica apartment com-
plexes. Utica is located 30-50 miles away from the
Eureka complex where the Younces were living and
working for Respondent prior to their unlawful dis-
charge. Alterman requested that Whiteman communicate
the offer to the Younces." Whiteman ageed to do so.
Following" the discussion between Alterman and
Whiteman, a telephone conversation took place between
Susan Younce and Whiteman during which Whiteman
asked Younce a question concerning possible reinstate-
ment. According to the credited testimony of Younce,"
Whiteman asked her, "If Mr. Seligman offered you your
job back with backpay, would you take it?" Younce re-
plied, "No, I don't want to work there anymore. I don't
even want to be around here anymore." Whiteman re-
joined, "You know you could get your backpay without
taking your job back," and Younce simply said, "Fine!"
Some time after this discussion, Whiteman called Alter-
man and advised him that the Younces did not want
their jobs back.
Meanwhile, about November 5 or 6, Susan Younce,
having received the notice to quit, and her husband and
three children being sick with the flu, decided to contact
Respondent directly. She called Scott Seligman, son of
Respondent's owner, and told him of the illness in her
family. She asked him if it would be possible for her and
her family to obtain a lease and remain in the apartment,
to get the apartment fixed up, and to stay there as rent
paying tenants. Seligman replied that there would be no
problem granting her request but that she would first
have to drop the unfair labor practice charges which she
had filed against Respondent.13
About November 8, Susan Younce called Whiteman
and told him that she wanted to withdraw the charges.
Whiteman advised her against doing so because she had
a strong case. Susan explained to Whiteman that all she
10 On November 9 Alterman forwarded to Whiteman a confirming
letter in which he offered reinstatement to Susan Younce to a job in
Utica with backpay. Although Susan Younce was specifically named in
this letter in two places, David Younce was not so named. Nor were "the
Younces" named as such. The letter clearly indicates an offer to reinstate
only Susan.
" The date is not clear from the record.
12 Whiteman did not testify.
12 Seligman did not testify.
wanted to do was get a lease for her apartment and that
Seligman had told her that, if she dropped the charges
against Respondent, she could have the lease. Whiteman
stated if she wanted to withdraw the charges, she would
have to do so in writing.
Following her discussion with Whiteman, Susan
Younce again called Seligman and told him that she had
tried to drop the charges with the Board but that White-
man would not let her because she had too strong a case.
Seligman advised her to contact the Board again and
have Whiteman send her a withdrawal request form to
sign. He also told her to go to Alterman's office to sign a
lease for her to remain in her apartment as a rent-paying
tenant.
Subsequently, Seligman, or someone from his office,
contacted Alterman and told him that Susan Younce was
trying to drop the unfair labor practice charges but that
the Board would not permit her to do so. Alterman was
than asked to meet with Susan Younce and review the
situation. In accordance with his client's request, Alter-
man made arrangements for Kathy LaFrance, the wife of
Eureka's resident manager, to transport Susan Younce to
his office for a meeting to discuss the situation, said
meeting to take place November 11.
On November 10 an eviction notice issued against
David and Susan Younce and on November 11 she was
driven to Alterman's office in accordance with arrange-
ments made earlier by Alterman. Once in Alterman's
office Younce and Alterman discussed the events of the
previous week, particularly discussions which had taken
place between herself and Whiteman concerning her
desire to drop the charge and between herself and Selig-
man concerning her desire to obtain a lease and remain
in the apartment with her sick family." Following
Younce's description of events, Alterman explained that
he would need an affidavit from her regarding her at-
tempts to withdraw the charge, that he needed this for
his files, and that it was necessary for her to supply an
affidavit to enable her to obtain the lease. He then asked
her if she would supply such an affidavit and she agreed
to do so. Alterman then asked Younce what she intended
to do about the written withdrawal request which
Whiteman had demanded of her and offered to compose
a letter for her. She agreed to this also, whereupon Al-
terman dictated both an affidavit and letter which were
subsequently typed in draft by one of his clericals. When
the drafts were ready they were presented to Younce for
review. Alterman directed Younce to look over both
documents and to point out any words which she did not
ordinarily use. She pointed out several such words and
these were changed. He then requested that Younce read
through the letter to make sure it sounded as though she
had composed it, that it was in her own words. She did
this, after which Alterman asked her if the documents
were accurate. She said they were and they were then
typed in final form. Alterman then requested Younce to
14 Minor differences in the testimony of Younce and Alterman con-
cerning the particulars of this meeting, I have resolved in favor of Susan
Younce whom I find, on the basis of demeanor, to have been a most con-
vincing witness.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign both documents She did so and was driven home
by Kathy LaFrance.
Younce credibly testified concerning this meeting in
Alterman's office, "I was supposed to go there to get a
lease and instead, I got these [the affidavit" and with-
drawal letter 16] . . . . Now I'm a little bit calm about it,
but when this was taking place I was nervous and upset
and I don't think I was in the right [frame of] mind to
really know what I was doing. I went to [Alterman's]
office for a lease and I ended up having to do all this. I
felt pressured in [his] office when I wrote it for one
thing, and I said, 'Yes, it is okay,' and I signed it just to
get out of there." On November 12 the withdrawal of
the charge in Case 7-CA-13451 was approved. The same
allegations were, however, included in a charge subse-
quently filed by David Younce in April 1977.
The Alleged Reinstatement Offer
Respondent takes the position that the above-described
set of circumstances reflects a legitimate offer of rein-
statement to the Younces by means of the offer made by
Alterman through Whiteman to Susan Younce. After re-
viewing the facts as described above, I find that Re-
spondent did not make such a firm, unconditional offer
of reinstatement, sufficiently unequivocal as to toll back-
pay. I arrive at this conclusion based on the following:
(1) The offer received by Susan Younce from Board
Agent Whiteman was hypothetical in nature. It was de-
livered in the form of a question: "If Mr. Seligman of-
fered you your job back with backpay, would you take
it?" The Board has held that a hypothetical offer such as
this is not a sufficient offer of reinstatement so as to toll
backpay because the employee must be given sufficient
time to consider an offer made in positive terms. 17 Only
when a proper offer is made and is unequivocally reject-
ed by the employer is the employee relieved of his statu-
tory duty to reinstate." In the instant case, no proper
offer of reinstatement was offered to the Younces and
they were therefore not bound by Susan Younce's un-
considered statement that she did not "want to work
there anymore" because she had not been given suffi-
cient opportunity to manifest an unequivocal resolve not
to accept reinstatement."
(2) The Younces were never offered reinstatement to
the positions they held at the Eureka complex from
which they were unlawfully terminated. Rather, they
were offered similar, but not equivalent, jobs at Utica, a
complex 30-50 miles away The offer of a position at a
15 The content of the affidavit and of Younce's description of events as
they pertained to the events of the previous several days differ markedly
I credit Younce's live testimony at the hearing over the content of the
affidavit, pnmarily based on Younce's explanation of why such differ-
ences exist The factual description of events contained in this section of
the decision are based on Susan Younce's convincing and credited testi-
mony
" Where the content of Younce's live testimony differs from that of
the withdrawal letter, composed by Alterman and signed by Younce, I
credit Younce's live testimony
12 Dobbs Houses, 182 NLRB 675 (1970)
' 8 W C McQuaide, Inc. 239 NLRB 671 (1978), affd 617 F 2d 349 (3d
Cif 1980)
1 ° Dobbs, supra Don Pizzolato, Inc. 249 NLRB 953 (1980), J E. Plas-
tics Mfg Corp, 131 NLRB 299 (1961)
different location, working for a different management, is
not an offer of reinstatement sufficient to warrant the
tolling of backpay. An employee who has already suf-
fered the effects of a discriminatory discharge has no
duty to assume additional hardships to reduce the em-
ployer's backpay liability.20
(3) Respondent chose not to deal directly with the
Younces although it wrote letters directly to other discri-
minatees offering them their jobs back. The case law
holds that an employer who chooses to offer reinstate-
ment to discriminatorily discharged employees, through
third parties rather than directly does so at his own risk
and, if such indirect communication results in confusion,
it is the employer who should suffer thereby, not the in-
nocent discriminatee. This is so for two reasons. First,
because but for respondent's discriminatory act the prob-
lem would never have arisen and, secondly, but for
choice of agent, the confusion would never have
arisen.21
I find, in short, that Respondent did not make, and has
not made the specific, unequivocal, and unconditional
offer of reinstatement necessary to toll the backpay
period. 2 2
The Estoppel Theory
Respondent argues that the Board and the Younces
should be estopped from claiming that the offer made
through Alterman via Whiteman to Susan Younce was
invalid because Respondent acted reasonably and relied
on the Board's agent and the Younces at the time I have
found, however, that the offer which Alterman attempt-
ed to make to Susan Younce through Whiteman, i.e., em-
ployment in Utica, was not the specific, unequivocal, and
unconditional offer of reinstatement which is required in
order to toll backpay. That being the case, the question
of estoppel is not relevant and I recommend rejection of
Respondent's theory for that reason.
The Amounts of Backpay
Respondent argues that the Younces incurred a willful
loss of employment when they turned down the job at
Utica, which Respondent claims is substantially equiva-
lent employment I have found, however, that the job in
Utica never was offered to the Younces except hypo-
thetically. Since the Utica job never was actually of-
fered, I find no willful loss of earnings in connection
with said hypothetical offer
Respondent asserts further that the Younces did not
search for substantially equivalent employment following
their unlawful discharge. Respondent points out that the
Younces had only intermittent, low-paying employment
following their discharge "not comparable to their
former positions." This is true and, if it were otherwise,
if the Younces had immediately found steady, better
2 ° M J McCarthy Motor Sales Co. 147 NLRB 605 (1964)
21 Lipman Bros. 164 NLRB 850 (1967), Rafaire Refrigeration Corp.
207 NLRB 523 (1973), W C McQuaide, Inc. supra, 239 NLRB 671, affd
617 F 2d 349
" Chromalloy American Corp. 263 NLRB 244 (1982)
SELIGMAN & ASSOCIATES 1223
paying jobs than they had while working for Respond-
ent, they would not be seeking backpay through the in-
stant process and I would not be writing this decision.
However, it is Respondent who placed them in their pre-
dicament and there is no evidence in the record to show
that the Younces turned down high-paying jobs in favor
of the lower paying employment which they accepted.
On the contrary, the record indicates through the back-
pay specification and additional testimony that following
their unlawful discharges the Younces obtained employ-
ment with approximately 20 different employers between
them and unsuccessfully sought employment with many
others. The record reflects no willful loss of employment
with regard to these jobs. Inasmuch as the law requires
only a reasonable effort to find employment, I find that
the record reflects that the Younces met that burden
during the period following their discharge by Respond-
ent.
Respondent correctly points out in its brief that during
the pertinent period between 1976 and 1983 there were
numerous ads in the Detroit newspapers for caretaker
couples but that the Younces did not avail themselves of
the opportunities presented by applying for these posi-
tions. Since they did not do so, Respondent argues that
they did not make reasonable search for equivalent em-
ployment. All this is true as far as it goes. However,
there is no requirement that a discriminatee consult the
newspaper classified ads to seek employment. Nor is
there evidence that the Younces were qualified for any
of the jobs advertised nor, if qualified, would have been
hired.2
Moreover, let us consider Respondent's argument in
light of the particular circumstances of the instant case.
The Younces participated in certain protected activities
while employed by Respondent. Respondent not only
unlawfully terminated them from engaging in these ac-
tivities but undertook to dispossess them from their
apartment as a part of the discriminatory retaliation
against them. This was at a time when David Younce
and the children were seriously ill. Susan Younce testi-
fied credibly that she did not look for a similar position
at the time because she "didn't want to get involved in
that." By this statement, it seems quite clear that Susan
Younce meant that having been placed in the position by
Respondent of being put out in the street with her family
solely because she chose to engage in protected concert-
ed activity, she was not about to make the same mistake
again. I find that under the circumstances the Younces
acted reasonably in seeking employment other than as a
caretaker couple. Moreover, where does the Act say that
once an employee is discriminatorily terminated from a
particular job, that he must remain in that specific type
of employment in perpetuity. Indeed he need not neces-
sarily do so." To make such a finding in the instant case
23 Amshu Associates, 234 NLRB 791 (1978).
24 "As a general proposition, entitlement to backpay does not turn on
a showing that the discharged employee sought precisely the same type
of interim employment as that from which he was discharged." Avon
Convalescent Center, 219 NLRB 1210 (1975), revd. in pertinent part 549
F 2d 1080 (6th Cir. 1977).
would reward Respondent for its discriminatory act and
punish the Younces by keeping them from exercising
their freedom of choice of employment which all other
individuals who are not discriminatees are free to exer-
cise. I find that the Younces acted reasonably in search-
ing for alternative types of employment following their
unlawful discharge by Respondent.
Respondent argues that by moving out of the Detroit
area Susan Younce made herself unavailable for work
because she no longer had babysitters on whom she
could rely while she went to work. This argument ap-
pears to beg the question since before she was unlawfully
discharged she had an apartment provided free of charge
at the site of her employment so that she could both
mind her children, easily find babysitters, and earn a
wage at the same time. Respondent is not relieved of the
requirement of paying Susan Younce backpay because
she did not manage to duplicate the situation ante. More-
over, a discrirninatee is free to seek job opportunities in
other areas than the one where the discriminatory dis-
charge took place and still be entitled to backpay.25
Respondent argues that Susan Younce was periodical-
ly unavailable for work for medical reasons. Respondent
relies on a National Labor Relations Board backpay
form" which Susan Younce filled out in July 1981. On
this form Younce noted that she left her job at Shield's
Restaurant in February 1979 due to surgery and left her
job at Dorchester Nursing Center for 2 months in 1981
also due to surgery. There being no testimony in the
record to counter the documentary evidence offered by
Respondent, proper deductions should be made for the
periods of illness noted."
Finally, Respondent claims that in the aforementioned
form" Susan Younce admitted that she was not in the
job market between November 1977 and May 1978 be-
cause during that period she lived nearly 20-25 miles
from town, her car broke down, and there was no local
employment. However, case law" indicates that loss of
interim employment due to lack of transportation
through no fault of the discriminatee does not amount to
a willful loss of employment and is not a basis for reduc-
ing backpay. Similarly, during certain periods of time
where Susan Younce had available to her only split shift
work at a great distance from her home, which required
a great deal of time going back and forth, and the cost of
transportation and of hiring a babysitter was greater than
the remuneration received for holding down that job, I
find Susan Younce's decision to quit her job a reasonable
one and not such as to reflect a willful loss of employ-
ment. 30 Indeed, inasmuch as she had neither transports-
25 Champa Linen Service Co., 222 NLRB 940 (1976); Robert Haws Co.,
161 NLRB 299 (1966).
26 R Exh. 5, par. 17.
27 Inasmuch as Susan Younce earned more at Shield's Restaurant in 1
month than she would have earned at Respondent's dunng the entire first
quarter of 1979, backpay due for this period is unaffected by her absence
due to illness.
25 Par. 20.
29 Fort Lock Corp., 233 NLRB 78 (1977).
39 Richard W. Kaase Co., 162 NLRB 1320 (1967).
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion nor babysitting problems prior to her unlawful dis-
charge by Respondent, I see no basis for diminishing the
backpay due her to the benefit of Respondent because of
personal difficulties totally ascribable to Respondent's
unfair labor practices.
In short, I have found no reasonable basis for diminish-
ing the amount of backpay due, based on Respondent's
claim that the discriminatees failed to meet their obliga-
tion to seek out and hold interim employment. I do find
a basis for diminishing the total amount due to the inca-
paciting illness of Susan Younce.
In accordance with the above reasoning I find the
backpay due David and Susan Younce to be as follows:
David Younce-Continued
Calender Quarter
1983-1
TOTAL
Susan Younce
Gross Interim Net
Backpay Earnings Backpay
Gross

Interim

Net
Backpay

Earnings

Backpay
1651.92

1651.92
22,947 3734
Calender Quarter
David Younce
1976-4
1977-1
1977-2
1977-3
$30007
324 99
324 99
324 99
$24.20
510.75
-
-
$27587
324 99
324 99
Calender Quarter GrossBackpay
Interim
Earnings
Net
Backpay
1977-4
1978-1
324.9936
324 99 37
18 23
33 93
306.76
291.06
1976-4 $1084.873' $108487 1978-2 324 9938 - 324 99
1977-1 1174 9532 1174 95 1978-3 324 99 - 324 99
1977-2 1651.9233 $215.25 1436.67 1978-4 324 99 72 87 252.12
1977-3 1651 92 1651.92 1979-1 324 99 434.54
1977-4 1651 92 1651.92 1979-2 324.99 1140 86
1978-1 1651 92 1651.92 1979-3 324.99 1711 29
1978-2 1651 92 1726 00 1979-4 324 99 1711 29
1978-3 1651 92 1726.00 1980-1 324 99 - 324 99
1978-4 1651 92 350.00 1301 92 1980-2 324 99 516.46 -
1979-1 1651.92 1651 92 1980-3 324 99 - 324 99
1979-2 1651.92 400 00 1251 92 1980-4 324 99 164 31 160 68
1979-3 1651.92 1651 92 1981-1 324 99 532 80 -
1979-4 1651.92 1651 92 1981-2 108 33 39 34.13 74.20
1980-1 1651.92 1651 92 1981-3 324 99 543 95
1980-2 1651.92 1651 92 1981-4 324 99 371 46
1980-3 1651 92 539 16 1112 76 1982-1 324.99 - 324 99
1980-4 1651 92 2767.36 1982-2 324 99 888 73 -
1981-1 1651.92 3949 00 1982-3 324 99 - 324.99
1981-2 1651.92 3949 00 1982-4 324.99 324 99
1981-3 1651 92 3949 00 1983-1 324 99 324 99
1981-4 1651 92 3949 00 TOTAL 4,610 594°
1982-1 1651.92 4051.32
1982-2 1651 92 4051 32
1982-3 1651.92 4051 32
1982-4 1651.92 934.92 717.00 The Notice
31 The $18076 biweekly pay times 26 equals $4699 76 annual wage di-
vided by 12 equals $391 65 per month wage times $2 77 monthly period
equals $1084 87 for the quarter Since the Younces remained in their
apartment throughout this period without paying rent, rental benefits are
not included
32 The $391 65 per month wages times 3 equals $117495 quarterly
backpay
33 The $1174 95 quarterly backpay plus $47697 (3 times monthly
apartment benefit, $158 99 equals $1651 92 The Younces were evicted in
March according to the credited testimony of David Younce
34 Total net backpay due David Younce as of the end of the first quar-
ter 1983 Backpay continues to run thereafter inasmuch as no proper
offer of reinstatement has been made by Respondent to David Younce
35 The $108 33 monthly pay times $2 77 months
36 Contrary to Respondent's position, I find, for reasons stated supra,
that Susan Younce did not sustain a willful loss of interim employment
during this period
" Ibid
38 Ibld
39 Two months out of work due to surgery
49 Total net backpay due Susan Younce as of the end of the first quar-
ter 1983 Backpay continues to run thereafter inasmuch as no proper
offer of reinstatement has been made
Inasmuch as I have found that Respondent never made
a proper offer of reinstatement to David or Susan
Younce, its motion to revise the notice is denied with re-
spect to these two discnminatees. With respect to Re-
spondent's motion to revise the notice with regard to the
offer of reinstatement to Clarence Goold, 4 ' Larry Davis,
Rickey Davis, Charles Davis, Mark Rushing, Harold
Dodson, and Madeline Dodson, the motion is granted to
the extent reflected in the notice attached hereto.'"
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed43
41 Clarence Goold is not entitled to reinstatement
42 Cf Charles H McCauley Associates, 266 NLRB 649 (1983)
43 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
SELIGMAN & ASSOCIATES 1225
ORDER
The Respondent, Seligman & Associates, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns
shall pay to David Younce and Susan Younce, in accord-
ance with the above computations the sums of $22,947.37
and $4610.59, respectively. 44 Interest is to be computed
in the manner prescribed in Florida Steel Corp., 231
44 Computed through the first quarter 1983. Backpay continues to run.
44 240 NLRB 110 at III. See fn. 42.
NLRB 651 (1977) (see also Isis. Plumbing, 138 NLRB 716
(1962).) There should be deducted from the amount due
any tax withholding required by Federal and state law.
The attached notice as Appendix A has been amended
to reflect that Respondent has offered reinstatement to
certain discriminatees and has entered into a settlement
agreement to make them whole for the losses incurred
by them due to Respondent's unlawful acts. The amend-
ed notice is to be posted in lieu of the original notice
under the same conditions required by the Board in its
original order. 4 5