Nameplate Manufacturers of America, Inc.

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nameplate Manufacturers of America, Inc. and Dis- trict 65, Distributive Workers of America. Case 29-CA-3505 - April 25, 1975 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 29, 1975, Administrative Law Judge Eu- getie E. Dixon issued the attached Supplemental Deci- sion in this proceeding.' Thereafter, Respondent filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the exceptions and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommendations as set forth in the final paragraph of his Supplemental Decision. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommendations of the Administrative Law Judge and hereby orders that Re- spondent, Nameplate Manufacturers of America, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommendations: I The Board's Decision and Order in this proceeding issued April 5, 1974 (not reported in volumes of Board decisions). SUPPLEMENTAL DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Administrative Law Judge: On Febru- ary 25, 1974, the Board issued its Decision and Order against Nameplate Manufacturers of America , Inc., requiring Re- spondent to make Alice Padilla whole for loss of earnings resulting from her discharge by Respondent on July 30, 1973. A controversy having arisen over the amount of backpay due the discnminatee, on November 7, 1974, the Regional Director for Region 29 issued a backpay specification and notice of hearing. Respondent duly filed an answer and the matter was heard in Brooklyn, New York, on December 9, 1974. All parties were afforded full opportunity to participate, to call, examine, and cross-examine witnesses, and to present evidence. At the close of the hearing, the parties waived the right to submit briefs but presented oral arguments. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS AND CONCLUSIONS The backpay specification covers a period from July 30, 1973, when Padilla was discharged to April 29, 1974, when she was reinstated by Respondent. Padilla's rate of pay with Respondent was alleged to be $80 per week. Thus for the 9 weeks of the third quarter of 1973 her earnings from Re- spondent would have been $720 (9 weeks times $80); for the fourth quarter of 1973, $1,040 (13 weeks times $80); for the first quarter of 1974, $1,040 (13 weeks at $80 a week); and the 4 weeks of the second quarter of 1974, $320. The specification shows her interim earnings as being $340 in the third quarter of 1973; $775 in the fourth quarter of 1973; and no earnings in the first two quarters of 1974. On this basis she had an amount of $380 due from Respondent for the third quarter of 1973; $265 for the fourth quarter of 1973; $1,040 for the first quarter of 1974; and $320 for the second quarter of 1974 or a total of $2,005 due her. In its answer Respondent alleged that "the backpay period should end on or about December 15, 1973, when the Em- ployer unconditionally offered reemployment" to Padilla and further that it lacked information sufficient to form a belief as to her "interim earnings, or her efforts to obtain interim earnings." The evidence shows that after her discharge Padilla secured a job at Lerners (otherwise unidentified) and worked there from August 27, 1973, until she was discharged Friday, November 30, 1973. On the following Monday she applied for unemployment compensation at the state labor depart- ment and was told to return in 2 weeks for her first check. At this time she was also interviewed by a different official (apparently in the employment division) where her two previ- ous jobs were discussed including why she was fired and the pending NLRB case. On her return to the employment office, according to Padilla's testimony, she signed for a check,' but then was told that she "could not get unemployment" because of what Lerners had reported about her. Some 2 weeks later she learned that she could appeal the adverse ruling but she never took any steps to do so. Nor did she ever go back to the state office. Instead, according to her testimony, she felt she could find work on her own quicker. To this end she made three or four efforts a week (or as often as she "could impose on someone" to watch her daughter) to find a job through pri- vate agencies and direct contact with different stores. Among the things she did, according to her testimony, was to apply at the Chemical Bank. She passed all the tests and was waiting for assignment for a physical when she got a call from the Bank informing her that she was being rejected because she had been given two bad references. According to her testimony she had given the Bank four references, two of i On cross she denied any recollection of having received a check from the State at this time or at any time N 217 NLRB No. 84 NAMEPLATE MANUFACTURERS OF AMERICA, INC. whom were no longer in operation. Respondent was one of the other two she gave.' In her effort to seek employment, according to Padilla's further testimony, she also sought reinstatement with Re- spondent just before Christmas. Prisco, told her there was nothing available.' In March the Union told her to try Re- spondent again.' Again Prisco told her that there was noth- ing available but this time offered to help her get a job else- where. According to his testimony he "told her they were hiring across the street, and if she wanted to try, she could go in there, she could probably get a job," that he did not really know and she would have to try. Padilla did not try. According to Prisco's further testimony (confirmed by Padilla in hers) he also told her of a job opening in Freeport. In this she was not interested because she had no way to get there. In his further testimony Prisco described how in December 1973 he received an inquiry from the state labor department as to whether work was available for Padilla. He informed the department that work was available. Accordingly the depart- ment mailed to Padilla a form letter entitled "Notice of Possi- ble Rehire" stating "Your former employer listed below has notified this office that he has work available for you. Report to him immediately concerning this employment. Failure to report for this interview may result in disqualification of your 2 Respondent's president Vincent Pnsco denied having had any inquiry about Padilla from other employers during the period in question 3 Prisco denied that Padilla made any application on December 1973 4 This suggestion apparently was the result of a favorable Board decision in her case The Union had written Respondent saying that Padilla would be reporting for work Tuesday morning on March 12, 1974 519 unemployment insurance claim." In her testimony Padilla claimed that she never received the labor department's letter. Conclusions On this evidence I find that Padilla made adequate effort to seek employment and mitigate the loss of her wages. In the face of three or four job applications a week and her near success at the Chemical Bank, I do not deem her failure in March to follow Prisco's suggestion that she apply across the street as disqualifying her for backpay from that point, partic- ularly in view of the failure to show that a job was indeed available to her. I also am of the opinion and find that no valid offer of reinstatement was made by Respondent through the state agency to Padilla. Clearly, a form headed "Notice of Possible Re-Hire" ,regardless what else it says is not an offer unequivo- cal, firm, and clear as the law requires. Lipman Bros, Inc., et al., 164 NLRB 850, 853 (1967). Nor does the phrase "Has work available" meet the requirement of apprising the dis- criminatee that she is being offered reinstatement to her for- mer or substantially equivalent position. All- Tronics Inc., 175 NLRB 644 (1969). The "available" work could be substan- tially different in remuneration, duties, and benefits than the former position. On the basis of the foregoing findings and the entire record in the case I find that Alice Padilla is entitled as provided in the specification to $2,005 in backpay with interest at 6 per- cent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Appropriate deductions shall be made from the amount due as required by law.