Uarco, Inc.

National Labor Relations Board - Board Decisions

May 23, 1989

294 N.L.R.B. 96 (N.L.R.B. 1989)

96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Uarco, Incorporated and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America. Cases 9-CA-
15126, 9-CA-15218, and 9-CA-15277
DECISION AND ORDER
May 23, 1989
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On December 19, 1988, Administrative Law
Judge Elbert D. Gadsden issued the attached sup-
plemental decision. The Respondent filed excep-
tions and a supporting brief. The General Counsel
and Charging Party filed answering briefs.
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 in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, 2
and conclusions3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , UARCO,
Incorporated , Radcliff, Kentucky , its officers,
agents, successors , and assigns, shall take the action
set forth in the Order.
i We agree with the judge's ruling that the discriminatee, Martha
Langdon, would have become a full-time employee on April 26, 1982, in
the absence of her unlawful discharge in 1980 In April 1983 the Re-
spondent called Langdon and offered her a position with UARCO as a
temporary on-call employee working I day out of 30 There is no dispute
that in doing so the Respondent was offering Langdon a position that
was significantly different from the position to which she was entitled to
be reinstated Thus, the Respondent failed to make her a valid offer of
reinstatement See Carter Lumber, 227 NLRB 730 (1977) (employer's re-
fusal to pay to the discriminatee upon his return to work the higher wage
to which he was entitled constitutes a failure to make a valid offer of
reinstatement) See also IMCO, 277 NLRB 962 (1985) (employer's offer
of reinstatement at an amount less than that to which the discriminatee
was entitled did not toll the employer's backpay liability) We view the
remainder of the judge's findings about the effect of the Respondent's
1983 offer as unnecessary to the decision Further, we specifically do not
rely on any implication from the judge's decision that offers of reinstate-
ment should be made by registered mail to be considered bona fide
2 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
3 The judge erroneously stated that Barbara Schuler, the plant manag-
er's secretary, did not testify at the hearing We have reviewed Schuler's
testimony and find that the judge's error in overlooking her testimony
does not affect the outcome of the case We further note that the judge
occasionally referred to the Respondent's deficient offer of reinstatement
as having occurred in April 1982 instead of April 1983, as he elsewhere
found These errors also do not affect our disposition of the case
Davind L Ness, Esq., for the General Counsel
William P. Treacy, Esq, of Lake Forrest, Illinois, for the
Respondent..
Irwin H. Cutler Jr, Esq, of Louisville, Kentucky, for the
Charging Party
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELBERT D GADSDEN, Administrative Law Judge.
Pursuant to a Decision and Order of the National Labor
Relations Board in Cases 9-CA-15126, 9-CA-15218, 9-
CA-15277, directing Respondent, Uarco, Incorporated,
Radcliff, Kentucky, its officers, agents, successors, and
assigns, to make Martha Langdon whole for loss of earn-
ings and other benefits resulting from Respondent's
unfair labor practices in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, and a contro-
versy having arose over the duration of the backpay
period and the amount of backpay due and owing to
Martha Langdon under the Board's Order (286 NLRB
55), and Respondent having stipulated to proceed to a
backpay hearing, the Regional Director for Region 9
issued this backpay specification and notice of hearing on
May 25, 1988, alleging the amount of backpay due under
the Board's Order
With respect to the amount of backpay due Martha
Langdon as alleged in the backpay specification, the Re-
spondent filed an answer on June 2, 1988, admitting that
Langdon's backpay period commenced on April 10, 1980
(date of her discharge), but denying that it continued
after April 25 or 26, 1983, or both and affirmatively al-
leging that on or about April 25 or 26, 1983, both Re-
spondent made a bona fide offer of reinstatement to
Langdon
Respondent also admits in paragraph 8(c) that Lang-
don was employed as an on-call employee at the time of
her layoff on April 10, 1980, but it denies that her gross
backpay should be calculated in accordance with the av-
erage gross earnings of three other on-call employees,
because offers of full-time employment are not necessari-
ly automatic.
Respondent further denies that it is liable to Langdon
for backpay after April 6, 1982, because she was at all
times since that date under an obligation to seek employ-
ment reasonably consistent with her abilities and she
failed to do so, and, consequently, she is not entitled to
travel expenses for any period
The hearing in the above matter was held before me at
Elizabethtown, Kentucky, on August 31, 1988 Briefs
have been received from counsel for the General Coun-
sel, counsel for the Charging Party, and counsel for the
Respondent, respectively, which have been carefully
considered
On the entire record in this case and from my observa-
tion of the demeanor of the witnesses, I hereby make the
following
294 NLRB No. 8
UARCO, INC.
FINDINGS OF FACT
1. BACKPAY SPECIFICATION
The undisputed and credited evidence of record estab-
lished that on September 30, 1987, the National Labor
Relations Board (the Board) issued its Decision and
Order in 286 NLRB 55 (1987), directing Respondent,
UARCO, Incorporated, to offer full reinstatement to
Martha Langdon, and to make her whole for any loss of
earnings and other benefits, with interest, suffered as a
result of Respondent's unfair labor practices, in violation
of Section 8(a)(1) and (3) of the Act. A controversy
having risen between the parties concerning the amount
of backpay due under the terms of the Board's Order,
the Regional Solicitor of the Board for Region 9, issued
this backpay specification alleging that backpay due
under the terms of the Board's Order of September 30,
1987, is as following.
1. The calendar quarter gross backpay due Martha
Langdon was determined by the average earnings in
each calendar quarter of representative employees who
worked in jobs similar to Langdon's during the backpay
period.
2. Langdon's backpay period commences April 10,
1980, the date of her discharge, and will end when she
receives a bona fide offer to reinstatement. However, for
purposes of this specification, backpay has been calculat-
ed through March 31, 1988.
3. At the time of her layoff (discharge), Langdon was
employed as an on-call employee. From the date of her
layoff (April 10, 1980) and continuing through calendar
quarter 1982-1, her gross backpay is calculated accord-
ing to the average gross earnings of the three on-call em-
ployees with the highest gross earnings in each of those
quarters.
4. According to Respondent's practice, when a full-
time job becomes available, it was offered to the most
senior on-call employee. The Charging Party alleges that
under this procedure, Langdon would have become a
full-time employee as of April 26, 1982.
5 Respondent admits Langdon 's interim earnings are
as follows, and it is alleged that her gross backpay, ex-
' Pursuant to Respondent's procedure the most senior on-call employee
who has worked in excess of 1000 hours in a calendar year is offered full-
time employment when such job opening becomes available Respond-
ent's records show that A Helm, an on-call employee hired after Lang-
don's layoff, was converted to full-time employee status on April 26,
1982 Accordingly, Langdon's gross pay is based on Helm's quarterly
earnings for calendar quarters 1982-2 through 1983-2
2 Langdon's W-2 form covering her employment with St Mary &
Elizabeth Hospital shows gross earnings of $5,520 48 in calendar year
1982 Langdon ' s interim earnings in each calendar quarter of 1982
through 1987 are calculated as one -quarter of her gross earnings as
shown on her W-2 forms for each of those years
3 Langdon 's travel expenses are computed at a mileage rate or cents in
1982
4 Langdon 's travel expenses are computed at a mileage rate of 20 cents
in calendar quarters 1983-1 and 1983-2
1 It is the Region's position that Respondent did not make Langdon a
valid offer of reinstatement on April 25 or 26, 1983, or both According-
ly, it is alleged that Respondent's backpay liability continue to accrue
until a valid offer is made by Respondent to Langdon
97
penses, and net backpay by calendar quarters are as fol-
lows:
Yr. /Qtr. Gross Pay
Interim
Earnings
Expenses
Net
Backpay
1982-2 1 $2,780 z $1,380 3$65000 $2,05000
1982-3 3,332 1,380 65000 1,30200
1982-4 3,504 1,380 65000 1,474 00
1983-1 1,922 1,898 465000 67400
1983-2 51,592 1,898 650.00 34400
1983-3 6 2,921 1,898 7 666 25 1,68925
1983-4 8 3,193 1,898 666 25 1,961.25
1984-1 4,050 2,263 666 25 2,453 25
1984-2 4,322 2,263 666 25 2,725 25
1984-3 4,208 2,263 666 25 2,611.25
1984-4 4,473 2,263 666 25 2,87625
1985-1 3,988 2,385 666 25 2,269 25
1985-2 4,498 2,385 666 25 2,779 25
1985-3 4,654 2,385 666 25 2,935 25
1985-4 5,316 2,385 666 25 3,597 25
1986-1 4,038 2,612 666 25 2,09225
1986-2 4,673 2,612 666 25 2,727 25
1986-3 4,389 2,612 666 25 2,443 25
1986-4 4,768 2,612 666 25 2,882 25
1987-1 3,843 3,258 666 25 1,251 25
1987-2 4,378 3,258 666 25 1,786 2S
1987-3 4,397 9 3,258 676 25 1,80525
1987-4 5,109 3,258 682 50 2,534 50
1988-1 104,284 3,749 682 50 1,217 50
Totals $99,946 $56,497.25
6 Summarizing the facts and calculations specified
above, the obligation of Respondent to make whole em-
ployee Martha Langdon under the Board's Order will be
discharged by payment to her in the amount of
$56,497.25, plus interest on the entire amount accrued to
the date of payment, minus the tax withholdings required
by Federal and state laws.
On April 6, 1988, Respondent and the General Coun-
sel entered into the following stipulation (G.C Exh. 1-
c).
Respondent has not been able to reach agreement
with the Board on the amount of backpay due
Martha Langdon pursuant to the Board's September
6 A Helm quit her employment on or about September 4, 1983 Lang-
don's gross pay in calendar quarter 1983-3 is computed by adding Helm's
gross earnings to September 4, 1983, plus the average gross earnings for
the remainder of this quarter of four full-time employees G Dixson, C
Langley, G Ratliff, and M Stark
Langdon's travel expenses are computed at a mileage rate of 20 5
cents for calendar quarter 1983-3 through July 1987 of calendar quarter
1987-3
8 For this quarter and the following ones through 1988-1, Langdon's
gross pay is calculated as the average gross earnings in each of said quar-
ters of full-time employees G Dixson, C Langley, G Ratliff, and M
Stark
9 Langdon 's travel expenses are calculated at a mileage rate of 20 5
cents in July 1987 and 21 cents from August 1987 to the end of the back-
pay period
16 Langdon's interim earnings in this quarter are based on biweekly
gross earnings of $624 80
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30, 1987 Order Therefore, Respondent reserved the
right to a hearing before an Administrative Law
Judge to determine the amount of backpay due
Langdon Respondent also reserved the right to
have the decision of the Administrative Law Judge
reviewed by the board, and to seek review of the
Board's determination by a U S Court of Appeals
In such event, it is understood that the only issue
before the Board or Court will be the amount of
backpay due Langdon, since all other issues herein
have been waived
General Counsel's Motion
It is alleged in paragraph 8(b) of the backpay specifica-
tion that it has been Respondent's practice to offer full-
time employment to on-call employees when a full-time
job becomes available, and that Langdon would have
become a full-time employee as of April 26, 1982.
In paragraph 8(b) of Respondent's answer, Respondent
admits the above allegation but denies that offers of full-
time employment are necessarily automatic.
At the beginning of the hearing, counsel for the Gen-
eral Counsel moved to strike that portion of the above
answer (par 8(b)) which denies that Respondent's "offers
of full-time employment are not necessarily automatic,"
because under Board Rules, a mere denial is not suffi-
cient, but for matters within Respondent's knowledge,
Respondent must set forth its basis for gross backpay for-
mula Because Respondent failed to set forth either, the
General Counsel argues that Respondent's alleged nonau-
tomatic qualifications on its eligibility for full-time em-
ployment practice should be stricken In support of his
motion, the General Counsel cites Section 102 54(b) and
(c) of the Board's Rules and Regulations, as well as
Heck's Inc, 282 NLRB 263 (1986), and United Hydraulic
Services, 282 NLRB 645 (1987)
Section 102 54(b) and (c) provide in pertinent part as
follows.
(b) . When a respondent intends to deny only a
part of an allegation, the respondent shall specify so
much of it as is true and shall deny only the remain-
der As to all matters within the knowledge of the
respondent, including but not limited to the various
factors entering into the computation of gross back-
pay, a general denial shall not suffice As to such
matter, if the respondent disputes either the accura-
cy of the figures in the specification or the premises
on which they are based The answer shall specifi-
cally state the basis for such disagreement, setting
forth in detail the respondent's position as to the ap-
plicable premises and furnishing the appropriate
supporting figures
(c) If the respondent files an answer to the
specification but fails to deny any allegation of the
specification in the manner required by paragraph
(b) of this section, and the failure so to deny is not
adequately explained, such allegation shall be
deemed to be admitted to be true, and may be so
found by the Board without the taking of evidence
supporting such allegation, and the respondent shall
be precluded from introducing any evidence contro-
verting the allegation
The language of Section 102.54(b) and (c) is clear and
unqualified, and I find that paragraph 8(b) of Respond-
ent's answer failed to comply with the explicit language
and intent of Section 102 54 (b) and (c) of the Rules. I
further find that the Heck's, Inc, and United Hydraulics
Services, cases cited by the General Counsel supports his
argument.
However, counsel for Respondent argues that since
Respondent admits its general practice was to employ
the most senior on-call employee for full-time jobs that
became available, it is now denying that the practice was
not automatic Not being automatic, Respondent con-
tends there was no way to plead figures or compute
backpay in such an uncertain situation In response to the
latter argument the General Counsel contends that if
Langdon had not been hired full-time automatically, Re-
spondent was nevertheless obligated to comply with the
above-cited Board's Rules and Regulations, by setting
forth a formula for computing whatever Langdon's back-
pay should have been Its failure to do so, the General
Counsel contends, was a failure to comply with the Reg-
ulations, and the mere denial answer (par 8(b)) should be
dismissed.
The General Counsel is correct because the language
of Section 102.54 (c) is clear that, any answer which fails
to deny an allegation of the specification as prescribed in
102 54(b), by specifically stating the basis for disagreeing
with the accuracy of the figures, or the premises on which
they are based, shall also set forth in detail, the position as
to the applicable premises and furnishing the appropriate
supporting figures The respondent's answer neglected to
do this. Consequently, Respondent's answer (8(b)) states
"except that UARCO denies that offers of full-time em-
ployment are not necessarily automatic," and should be,
and it hereby is, dismissed.
Issues
The issues presented for determination are
1 Whether Langdon would have become a full-time
employee as of April 26, 1982
2 Whether Respondent made a bona fide offer of rein-
statement to Martha Langdon on April 26, 1982, thereby
tolling Respondent's backpay liability as of that date.
3. Whether Langdon is entitled to travel expenses
A Whether and When Langdon Would Have Become
a Full-Time Employee
Martha Langdon testified that she was interviewed for
an appointment by Ken Gardner, general manager for
UARCO, who showed her through the plant and ex-
plained that on-call employment meant she would be
called whenever there was work When a work slow-
down occurred, she would be laid off, but would be re-
called when work picked up Her initial employment
conversation with Gardner continued as follows-
So we were talking and I asked him, "Do you have
full-time empoyment [sic] here9"and he said, "Oh
UARCO, INC
yes, we have full-time employees " I said : "Do you
hire within the plant? The employees that are there
now part -time or on -call, would they have the
oportunity to work full- time here at UARCOT" He
said, "We post the jobs on the board and whenever
you see a jobn [sic] that you like and if you think
that you're qualified for it, you can apply for it." I
said, "How do you hire these people? " He said, "if
you are qualified for the job , you would be hired
full-time for that position " He also said, "We
would want to go by seniorrty [sic] first, but if the
qualifications were there , we would have to go with
the one who was more qualified " I said that I un-
derstood that
In its answer to the backpay specification and at the
hearing, Respondent admitted that it is its policy to offer
full-time employment to its most senior on-call employ-
ees when jobs become available, but stated that such an
offer is not automatic. Such an offer will be made if the
on-call employee's qualifications, performance, and time
and attendance are satisfactory to the supervisor of the
particular department in question. Additionally, with re-
spect to Respondent's policy or preferences for convert-
ing on-call employees to full-time employees, the Gener-
al Counsel cites Respondent's promotion policy which
provides in part
A. Qualifying factors include previous job prefer-
ences, absence and tardiness reccord, education,
necessary physical skills, and mechanical skills.
When all of these factors have been considered, an
individual may be considered qualified for a particu-
lar position
B Employees from within the department, in
which the vacancy exists, will be given first prefer-
ence based on department seniority All persons in
entry level job categories (grade 7) will not be con-
sidered as being in a particular department If the
department seniority for women employees is equal,
the lower employee number will receive preference.
C Employees from other departments will be
considered based on company seniority. If the serv-
ice date for two employees is equal, the lower em-
ployee number will receive preference [G.C. Exh.
1, p 4]
Conclusion
99
It is therefore clear from the unconverted evidence,
and I find, that Respondent not only had a policy but
also a practice of converting temporary on-call employ-
ees to full -time employees whenever a job became avail-
able and the on-call employee satisfied the qualifications
for the position . The Respondent not only partially ad-
mitted this result but did not present any evidence to the
contrary Consequently , since the evidence does not
show that Langdon was discharged because she was un-
qualified to perform the same job full time, and Respond-
ent did not present any evidence that she was not quali-
fied, I further find that it may be reasonably inferred
from the evidence that Langdon , being the most senior
on-call employee , would have become a full-time em-
ployee on April 26, 1982 This position is supported by
the Board's decision in Heck's Inc, 282 NLRB 263
(1986), and United Hydraulic Services, 282 NLRB 645
(1987), where the Board held that replacement employ-
ee's gross pay was a proper basis for computing the
gross backpay of the discharged employee for reinstate-
ment.
B Did Respondent Make a Bona Fide Offer of
Reinstatement to Langdon on April 25 or 26, 1983
Administrative notice is taken by me of the Board's
Decision and Order in UARCO, Inc, 286 NLRB at 60 in
which the Board ordered Respondent (UARCO) to offer
Martha Langdon full reinstatement to her job, and make
her whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against her, with
interest computed as described in New Horizons for the
Retarded, 283 NLRB 1173 (1987)
Respondent admits liability for backpay to Langdon
from April 10, 1980, until April 25 or 26, 1983 or both,
but contends its liability ends on either or both of the
latter dates when it offered her reinstatement to her job
The parties stipulated that Martha Langdon was hired
by Respondent April 23, 1979, and the record shows that
she worked until she was discriminately discharged by
Respondent on April 10, 1980 After a hearing, Respond-
ent was ordered to reinstate Langdon to her previous job
with backpay plus interest
Testimony Concerning Respondent 's Alleged Offer
to Reinstatement
Evidence that Respondent 's practice was in compli-
ance with its promotion policies and what former Gener-
al Foreman Ken Gardner told Langdon during her inter-
view for employment (G C Exh 4) shows that.
1 Martha Langdon started working for Respondent on
April 23, 1979, as a temporary on-call employee , and she
worked in an "auxiliary" job classification until her
layoff April 10, 1980.
2. Temporary on-call employee A Helm started work-
ing for Respondent in the auxiliary job classification
April 12, 1981, 2 years after Langdon was so employed
Nevertheless , Helm was converted from temporary on-
call employee to full -time employee 1 year later, April
26, 1982
The testimony of Martha Langdon and Respondent's
former general supervisor of indurstrial relations , Ronald
Barger, in this regard , is highly conflicting Langdon tes-
tified that Barger telephoned her at home on Tuesday,
April 26, 1983 , identified himself, and asked her "Would
you like to come back as an employee of UARCOT"
Barger acknowledged he did speak with Langdon by
telephone on April 26, but said in response to advice
from Respondent 's vice president, James Brown, he first
called Langdon on April 25 , 1983, and told her he called
about her former position with UARCO as a temporary
on-call employee, that he had work available, that he
would like to recall her to that position , and he offered it
to her . Barger said after he assured Langdon the job
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would be her former position as "temporary on-call,"
Langdon explained that she was working part-time in
Louisville and she would like to discuss his offer with
her husband He said he thought that was a proper re-
quest and that Langdon was to call him the next day,
April 26
However, Langdon denied she spoke with Barger by
telephone on April 25, but only on April 26 Instead, she
maintained that to the best of her recollection, she only
spoke with Barger on April 26, at which time she said he
offered her her former position as a temporary on-call,
and she said "that would be fine " She said she did not
ask Barger what was the pay because she just wanted a
job closer to home
In this regard, Langdon further testified as follows
Q Where did you live at the time you last
worked for UARCO?
A. In Radcliff, Ky
Q When you worked for UARCO, how did you
get to and from work?
A I drove my own car.
Q From where you lived in Radcliff to UARCO
plant, how many miles was that?
A Round trip is 90 miles.
Thereafter, the parties stipulated that the difference in
mileage between Langdon's home and her present em-
ployment versus her home and UARCO's location is 50
miles
Langdon further denied that she told 'Barger she
would like to discuss the offer with her husband. Rather,
she said she asked him when would he want her to
report for work, and he said, "Well, this Friday " Thus,
she said she told him she was working weekdays at St.
Mary & Elizabeth Hospital in Louisville and she would
like to give them 2 weeks notice Barger said, "No, I
can't allow that You need to come in this Friday." After
reminding Barger that he was a part of management and
he would like such a notice from his employee, Langdon
said Barger "Hee-Hawed" around there a little bit and
then finally said "Well, yes, okay. You can go ahead and
give two weeks notice But after the two weeks is up,
we expect you to be here on a Friday night " (12.00),
and she said, "okay."
According to Barger, he offered Langdon the tempo-
rary on-call position during his conversation with her on
Monday, April 25. At that time, Langdon asked him
when did he want her to report to work and did
UARCO have work available because she wanted to dis-
cuss the offer with her husband, who was unemployed
but doing part-time work Barger said, after he ultimate-
ly agreed with Langdon to give the hospital 2 weeks'
notice and to discuss the offer with her husband, Lang-
don was to call him back the next day. Barger's testimo-
ny is not clear as to how he understood Langdon was to
call him back the next day. His testimony is rather vague
as to whether Langdon told him she would call him or
whether he merely assumed she would call him. Lang-
don denied she said she would call him the next day be-
cause there was no need to call him before the expiration
of the 2 weeks' notice to the hospital
Nevertheless, Barger testified that Langdon called him
the next day, Tuesday, April 26 He said it was during
this second conversation when Langdon told him she
had a part-time job in Louisville. He said she asked him
how much worktime was involved, and he told her the
same as before when she was a temporary on-call
worker. At the end of their conversation he said he
thought she was reporting to work that afternoon (April
26). He said she asked what time and he told her 3 30,
"so we can get the paperwork cleared up " Langdon
consistently denied she told Barger she would call him
back the next day, or that she in fact did call him and
engaged in a second conversation the next day.
Instead, Langdon testified that during her telephone
conversation with Barger on April 26, she asked him
how many days would she be working and he respond-
ed "Well it would be like what you worked before."
She then asked him how many days a week they were
talking about Barger said "it could be one day out of 30,
if that." Langdon said "One day out of thirty? I'm sorry,
I cannot do that I have a steady job at St Mary's"
Langdon said she told him even though it was only 2
days a week, she at least knew she had an income
coming in, which was her main support since she was
supporting her family because her husband had lost his
job. She said she told Barger she was sorry but she could
not accept that and Barger said, "That's fine. Thank
you," and informed her he would be sending her a letter
that day. He also told her he would appreciate it if she
would write him a letter stating that she declined his
offer, and that his letter will also say the same thing.
"That I offered you a job and you turned it down."
Langdon said she said "That's fine. Thank you "
Barger further testified he told Langdon the on-call
people were working about 3 days a week every 2
weeks, but Langdon said she could not recall him telling
her that Although Barger testified Langdon told him
"You know f have to come in if I want to get a settle-
ment through the Labor Board," and that she had talked
with her lawyers last night, or some other time Langdon
denied. she made any such statements to Barger. She also
denied she told him she had no choice or recourse but to
come in, and asked him should she come in at 4 o'clock,
should she come in the next week, or should she report
to the lobby area She said she only told Barger she
would report for work after the 2 weeks' notice to her
current employer Langdon also denied she asked Barger
could she start Tuesday, and work Wednesday and
Thursday, and take off Friday because Barger had al-
ready informed her the job started that Friday
Barger further testified that in response to instructions
from Vice President Brown to have one witness to his
offer for reinstatement to Langdon, he had Barbara
Schuler, secretary to the plant manager, to listen in and
take notes of his first conversation about the offer with
Langdon on April 25 He acknowledged he did not tell
Langdon that Schuler was on the line and Langdon did
not know she was on the line. It is particularly noted
that Barger did not testify that he had secretary Schuler
to listen in on a conversation with Langdon on April 26
It is also noted that Barbara Schuler did not testify
UARCO, INC 101
Barger said when he did not hear from Langdon after
his second conversation with her on April 26, he again
followed the instructions of Vice President Brown and
prepared and mailed to Langdon the following registered
letter dated April 29, 1983
Per our telecon on April 26, 1983, I offered you
the opportunity to return to the UARCO, Inc,
Radcliff Plant as a temporary-on-call employee
This job offer would have placed you in the same
hourly position you held with our company
Due to your current employment at St Mary's &
Elizabeth Hospital in Louisville, Ky, you declined
my offer to return to your prior position with our
company
Conclusions
In determining whether Respondent made a bona fide
offer to reinstatement to Langdon on April 25 or 26,
1983, it is first noted that the testimonial versions of the
two witnesses is highly conflicting. Therefore, a resolu-
tion of the credibility of the testimony of Langdon and
Barger is based on the observed demeanor of the wit-
nesses, efforts or failure of the witnesses to produce wit-
nesses who were in a position to deny or to corroborate
their respective versions, the reasonableness of the cir-
cumstances surrounding the conduct of each witness, as
well as how practical and logical their actions were
under the circumstances.
The testimony of Langdon is not disputed that in
April 1982, Respondent's supervisor, Ronald Barger,
telephoned Martha Langdon, identified himself, and
asked her if she wanted to return to work at UARCO in
her same position, as a temporary on-call employee, and
Langdon said "Yes " The conflict arises, however, (1) as
to what date Langdon was to report to work, (2) wheth-
er the work would involve the same number of hours (at
least 2 days per week), and (3) whether Langdon was to
call Barger the next day after she had discussed the offer
with her husband, and give Barger a definite answer
whether and when she would return to work.
The evidence is without conflict that Barger asked
Langdon to report to work on Friday, April 29, 1983
Barger testified that Langdon told him she- would like to
talk with her husband about the offer and call him the
next day, but Langdon denied she told Barger she would
like to talk with her husband and call him the next day
However, the evidence is not in conflict that Langdon
requested 2 weeks to give notice to her current employer
(the hospital). Initially, Barger was opposed to a 2-week
period for notice but after some discussions during their
conversation, he agreed. Barger admitted he agreed
Langdon should have 2 weeks to give notice to her cur-
rent employer, but later testified he assumed or under-
stood Langdon was going to report to work on Friday
Barger's testimony in this regard is vague, speculative,
and inconsistent, and I find nothing probative in the
record to support such an assumption or understanding
on his part Moreover, I received a distinct impression
from Barger's demeanor and his testimony that he was
not telling the whole truth in this regard Meanwhile,
Langdon's testimony denying she told Barger she would
like to talk with her husband about the offer and call him
the next day was unequivocal, consistent, and emphatic
I was persuaded by her demeanor and the circumstantial
evidence of record that she was telling the truth and I
credit her testimony and discredit Barger's in this regard
The parties in this proceeding stipulated that the dif-
ference in miles between Langdon's home and her
present employment (the hospital), and her home and
UARCO, is 50 miles Langdon testified she wanted to
work closer to her home, and it may be further inferred
from the mileage differential that not only Langdon, but
perhaps any person would prefer not to have to drive 50
additional miles to and from work. This being so, I am
persuaded by Langdon's testimony that she did consider
distance from her home to work when she told Barger
she would return to work at UARCO, pending 2 weeks'
notice to her employer (the hospital).
Regarding how many hours work Barger's job offer
would involve, Barger first told Langdon it would be the
same job she previously performed for UARCO. Such a
statement would convey to any reasonable mind that the
job would include at least the same, if not more, but cer-
tainly no less, hours' work than the number of days per
week Langdon previously performed for UARCO
Langdon had no reason to expect less hours' work when
Respondent was ordered by the Board to offer her rein-
statement to her former position, or an equivalent one.
Barger thereafter testified that he told Langdon her
work hours would be less than 2 days per week, in fact 1
out of 30 days, and that she told him she would not
accept less hours than she previously worked because
she had to support her family. The latter statement by
Barger is a change from his initial statement, telling
Langdon her job would be the same as before Under
these circumstances, Barger's later offer of 1 day out of
30 was a rescission of his initial offer This change in lan-
guage from his initial offer that she would have the same
job cannot be viewed as constituting a bona fide offer, or
an offer made in compliance with the Board's Order
Additionally, Langdon's refusal to accept Barger's
offer of less than 2 days per week would certainly not
constitute a rejection of a bona fide offer of reinstate-
ment to her former or an equivalent position, as Re-
spondent was ordered by the Board to do. The record
shows Langdon worked considerably more than 2 days
per week when she worked for Respondent, and the
record shows that on-call employees working during Oc-
tober 1982 through June 1983 worked hours greatly ex-
ceeding 2 days a week and certainly not as few as 1 day
out of 30 days. Consequently, based on the demeanor of
Barger, his inconsistent statements, and his swift April
29, 1983 letter to Langdon, accusing her of refusing his
offer of reinstatement, I discredit Barger's testimony and
do not find that he made a bona fide offer of reinstate-
ment to Langdon on April 25 or 26, 1983
In fact, I find that Barger's offer of less than 2 days'
work a week, or 1 day out of 30 days, was not a bona
fide and valid offer of reinstatement to Langdon Rain-
bow Coaches, 280 NLRB 166 (1986); Marlene Industries,
234 NLRB 285 (1978), Glass Guard Industries, 227
NLRB 1140 (1977).
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moreover, Barger's immediate response to Langdon's
decline to accept 1 day's work out of 30 days was his
announcement that he would send her a letter reciting
her refusal to accept his offer of employment This in-
stant reaction by Barger demonstrated how eager he was
to end Respondent's legal responsibility to reinstate
Langdon His offer of less hours' work than Langdon
had previously performed, and his precipitant letter con-
cluding she had refused reinstatement is clear evidence
of Respondent's lack of good faith in complying with the
Board's Order.
Also, the difference in the mode of communication se-
lected by Barger to transmit his job offer to Langdon,
and the mode by which he transmitted his conclusion
that she refused his offer, is particularly noted Specifi-
cally, it is interesting that Barger, in following the advice
of legal counsel to offer Langdon reinstatement in the
presence of a witness, elected to do so by telephone with
the secretary of the general manager eavesdropping on
the conversation I am persuaded that there was only one
telephone conversation, and he did not have her testify
to corroborate his testimony Moreover, I do not con-
ceive the latter method of communication as credible as
a more probative certified letter, by which method
Barger elected to make a record of Langdon's refusal to
accept his job offer of less hours than Langdon previous-
ly worked at UARCO.
If Respondent was making a bona fide effort to
comply with the Board's Order of reinstatement, it
would appear that Barger would have elected, or the
vice president and eminent legal counsel of Respondent
would have advised, that the offer of reinstatement be
transmitted to Langdon by registered mail Certainly,
that is the less confusing and more probative method for
a business concern to prove compliance with a Board's
Order. Instead, Respondent only elected to use a regis-
tered letter to try to prove Langdon refused an invalid
offer of reinstatement However, I am not persuaded by
Respondent's inept or contrived mode of communication
in trying to comply, or to make it appear it was comply-
ing, with the Board's Order to reinstate Langdon.
Consequently, I find that Respondent not only failed
to offer Langdon temporary on-call employment on
April 25 or 26, 1983, but it also neglected to offer her
full-time employment on April 26, 1982, in a job vacancy
as senior on-call employee. At that time, Respondent,
contrary to its policy and practice of employing the most
senior temporary on-call employee for full-time work,
employed A Helm in the full-time position, even though
Langdon had more seniority than Helm Under these cir-
cumstances, I further find that Helm and other full-time
employees, Dixson, Langley, Ratliff, and Stark's hours of
work and earnings after April 26, 1982, constituted a
proper basis on which to compute full-time backpay
owing to Langdon, as the backpay specification has es-
tablished. Heck's Inc, United Hydraulic Services, supra.
Langdon's Travel Expenses
Respondent denies in its answer that Langdon should
be entitled to travel expenses. However, as previously
found, Respondent admitted by stipulation at the hearing
that Langdon has to travel 50 additional miles to her
current employment than she would have had to travel
to work at UARCO Respondent also admitted that the
50 mile computation set forth in the backpay specifica-
tion is accurate, as alleged.
The Board has held that a discriminatee is entitled to
have transportation expenses incurred in obtaining or re-
taining interim employment deducted from interim earn-
ings, when such expenses would not have been incurred
but for the discrimination of the employer against the
discriminatee Aircraft & Helicopter Leasing and Sales, 227
NLRB 644 (1976); Rikal West, Inc, 274 NLRB 1136,
1139 (1985)
Since Langdon's expenses for traveling 50 additional
miles to work at the hospital were incurred as a result of
Respondent's discrimination against her, such expenses
are properly deductible from her interim earnings at her
current employer Aircraft & Helicopter, Rikal West, Inc,
supra
Esterline Electronics Corp, 290 NLRB 834 (1988), and
Harrah's Club, 158 NLRB 758 (1966), cited by Respond-
ent, are not applicable to the facts in the instant case.
Based on the foregoing credited evidence of record, I
find that Respondent failed, as it alleged, to establish any
errors in the computations of the backpay specification,
or any errors in the premises on which they are based
Consequently, I further find Respondent liable for the
amount of backpay set forth in the backpay specifica-
tion I I
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the Respondent, UARCO, Incor-
porated, Radcliff, Kentucky, their officers, agents, suc-
cessors, and assigns, shall make Martha Langdon whole
for any wages or benefits loss, by paying to her personal-
ly the amount of $56,497 25 plus interest on the entire
amount accrued to the date of payment, minus the tax
withholdings required by Federal and state laws
" 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