Avery Heights

AVERY HEIGHTS 349 NLRB No. 81 829 Church Homes, Inc. d/b/a Avery Heights and New England Healthcare Employees Union, District 1199, SEIU. Case 34–CA–9168–S April 27, 2007 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On December 27, 2006, Administrative Law Judge El- eanor MacDonald issued the attached supplemental deci- sion. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the supplemental decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.2 ORDER The National Labor Relations Board adopts the rec- ommended supplemental Order of the administrative law judge as modified and orders that the Respondent, Avery Heights, Hartford, Connecticut, its officers, agents, suc- cessors, and assigns, shall pay the individuals named below the indicated amounts of total gross backpay and 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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. Chairman Battista and Member Walsh agree with the judge, for the reasons stated in her decision, that the uniform/longevity allowance is properly included in the calculation of gross backpay for the discrimi- natees, and that the 18-percent interest on the union pension fund con- tributions is appropriate. Member Schaumber agrees that the uniform/longevity allowance in the collective-bargaining agreement should be included in the award of backpay for the three discriminatees, though for reasons different from the judge. In his view, the allowance payment was a benefit that the Respondent provided to employees. If an interim employer did not provide the same type of uniform maintenance benefit, then it would obviously constitute a loss to the employee. Here, the Respondent failed to show that the three discriminatees either received such a bene- fit or were not required to maintain uniforms during any interim em- ployment. For the reasons set forth in his dissent in Ryan Iron Works, Inc., 345 NLRB 893 (2005), Member Schaumber, contrary to his colleagues and the judge, would not award 18-percent interest on the union pension fund contributions to be made pursuant to the order in this case. 2 We shall modify the judge’s recommended Order to provide for contributions to the New England Pension Fund to be paid in accor- dance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). We shall also modify the Order to include a computation of the total amount owed by the Respondent. other reimbursable sums, with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), accrued to the date of payment and minus tax withhold- ing required by law. DISCRIMINATEE NET BACKPAY Patricia Hurdle $129,956 Georgia Stewart Caldwell 96,080 Opal Clayton 60,375 TOTAL BACKPAY $286,411 Respondent shall pay to the New England Pension Fund on behalf of the individuals named below the indi- cated amounts, plus interest accrued to the date of pay- ment as required by the Funds’ Policy on Collections at the rate of 1.5 percent per month or 18 percent per year, in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). DISCRIMINATEE NEW ENGLAND PENSION FUND CONTRIBUTION Patricia Hurdle $19,835 Georgia Stewart Caldwell 12,949 Opal Clayton 12,675 TOTAL CONTRIBUTION $45,459 TOTAL AMOUNT DUE $331,870 Darryl Hale, Esq., for the General Counsel. Michael C. Harrington, Esq., and Stephen Rosenberg, Esq., (Murtha Cullina LLP), of Hartford, Connecticut, for the Re- spondent. Kevin A. Creane, Esq., (Law Firm of John Creane), of Milford, Connecticut, for the Union. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. On De- cember 16, 2004 the National Labor Relations Board issued its Order directing Respondent Church Homes, Inc., d/b/a Avery Heights, to offer Georgia Stewart Caldwell, Opal Clayton and Patricia Hurdle immediate reinstatement and to make them whole for any loss of earnings and other benefits resulting from Respondent’s unfair labor practices in violation of Section 8 (a) (3) of the National Labor Relations Act.1 In a stipulation dated April 6, 2005 Respondent waived its right to contest the propri- ety of the Board’s Order. Respondent reserved its right to a hearing to determine the amount of backpay, expenses and benefits due to Caldwell, Clayton and Hurdle as well as certain issues regarding the status of Caldwell. A hearing was held before me on August 23, 2006 in Hart- ford, Connecticut to determine the amounts due to Caldwell, Clayton and Hurdle. These three discriminatees were present at the hearing and were called to testify by Respondent. 1 The amounts listed in the Order include appropriate interest calcu- lated as of August 31, 2006. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830 At the hearing Respondent and the General Counsel stipu- lated to a revised backpay calculation. Thus, the backpay pe- riod for each discriminatee as well other matters related to the various formulas applied and the calculations arrived at by the General Counsel are not before me for decision. However, Respondent reserved its right to argue that the uni- form/longevity allowance in the collective-bargaining agree- ment should not be included in the award of back pay and that the 18% interest rate in the trust agreement for the Union pen- sion fund is punitive. Respondent also reserved its right to urge that the discriminatees did not make a reasonably diligent search for comparable work. Briefs were filed by the General Counsel and the Respondent on September 27, 2006. Background The issues in this case concern the reasonableness of the three discriminatees’ search for interim employment, the possi- ble effect of the lapse of Caldwell‘s Certified Nurse Assistant (CNA) registration, the correct application of the uni- form/longevity allowance payment contained in the collective- bargaining agreement, and the effect of the Connecticut unem- ployment insurance statutory scheme. In addition to these mat- ters which were to a certain extent litigated during the hearing, Respondent’s post hearing Brief urges that the 18% interest rate applied to pension benefit payments is punitive and should be reduced to a remedial amount. The three named discriminatees herein were all discharged based upon an allegation of patient abuse. The alleged patient abuse, which was found by the Board not to have occurred, consisted of mocking a patient by allegedly standing on the picket line and mimicking the movements of a patient being treated with Ritalin. All three discriminatees participated in a strike in beginning in 1999 and were terminated as described in the cited Board decision. Respondent offered reinstatement to the three discriminatees on January 26, 2005. I. FACTS RELATING TO MITIGATION OF BACKPAY PATRICIA HURDLE Patricia Hurdle received an eighth grade education in Barba- dos and came to the United States in 1972. Hurdle worked for Respondent Avery Heights from September 1972 until she was terminated on January 25, 2000. Hurdle recalled that a number of years after she was first employed by Respondent she re- ceived training at Avery Heights and became a registered CNA. Hurdle provided Respondent’s Counsel with calendars on which she had made notes concerning her search for work. Also present in the hearing room and available to all Counsel was an affidavit signed by Hurdle concerning her search for interim employment. Hurdle testified that she could not recall everything she had done over a five year period to search for work. It was clear to me that Hurdle was an extremely coop- erative witness who did her best to answer the questions posed to her. Hurdle was the epitome of the truthful witness as evi- denced by her helpful and open demeanor while testifying and by her demonstrably strong efforts to remember the facts in response to every question. Hurdle received unemployment benefits for the first six months of 2000. In addition, Hurdle received PTO benefits (paid time off and vacation) from Respondent in the first quar- ter of 2000. She received payments for picketing activity from the Union. Hurdle’s efforts to find interim employment were concen- trated in the years before she obtained a part-time job at Sunrise Assisted Living in November 2002. Hurdle stopped looking for other work in November 2002 because the work at Sunrise was hard and she was required to take a lot of training outside of her normal work schedule. Hurdle’s part-time work led to a full-time job at Sunrise beginning in January or February of 2003. Hurdle testified that in the three years before she obtained work at Sunrise she looked for work by asking her friends if they knew of any jobs, by seeking work at nursing homes with which she was familiar and by checking job listings in the free newspaper that was placed into her mailbox every week. Hurdle could not recall where she worked from January to June 2000. She thought she might have worked for Tender Loving Care, a part-time agency. On June 3, 2000 Hurdle be- gan a part-time private case job in Farmington. Hurdle was hired by the daughter-in-law of the patient. Hurdle worked 3- 1/2 to 4-1/2 hours per day on a sporadic basis. Occasionally she was asked to work eight hours per day. She continued with this job in July and August and the first part of September. Also in September 2000 Hurdle worked for Arden Court caring for Alzheimer’s patients. This employer later called Hurdle to offer her work at a branch location in Avon but Hurdle turned this down. Hurdle explained that Avon was too far from her home and she was afraid to drive such a long distance in win- tertime. On December 3, 2000 Hurdle filled out an application for employment at Hughes Nursing Home. Hurdle was not hired by this employer. Hurdle was also unsuccessful when she sought work at Bridges Nursing Home on several different occasions over the course of three years. In 2001 Hurdle worked part-time though an agency called Staff Builders. Staff builders sent Hurdle to work in various nursing homes for a total of 20 assignments. Some of the places to which Staff Builders wished to assign Hurdle were places she did not know how to get to and she turned down these jobs. Hurdle worked for Staff Builders until she obtained work at Sunrise at the end of 2002. The Staff Builders jobs varied from two days per week to six days per week and in- volved all three shifts of the day. Hurdle filled out applications for permanent employment at some places to which she was sent by Staff Builders, including Elm Hill Center. However, these facilities did not offer employment to Hurdle. Hurdle also worked for a home health agency called Tender Loving Care which provided her with more than five on-calls jobs.2 In 2001 Hurdle applied to three other employers but she was told they were not hiring. These locations were MediPlex of Weth- ersfield on May 8, McLean Center on August 20 and Chelsea Place on October 22. 2 Some of Hurdle’s W2 forms in evidence suggest that Staff Builders and Tender Loving Care may have been the same or related companies. AVERY HEIGHTS 831 In the summer of 2002 Hurdle began a part-time job at Greenwood (Lexington Healthcare Group, Inc.), from 7 am to 3 pm on a per diem basis. Hurdle was not recalled by Green- wood after working there four or six weeks. Hurdle explained that on one occasion she received a warning notice because a nurse had a disagreement with her over an assignment that had been given to Hurdle by someone other than the nurse. Hurdle testified that the account of the incident on the warning notice was not accurate. After this incident Hurdle was performing a task that involved moving a patient using a Hoyer lift. Hurdle could not find anyone to help her move the patient so she oper- ated the lift by herself. The patient was bumped during the procedure and Hurdle informed management in case the patient should later be discovered to have a bruise on her body. Hurdle was given a warning notice for failing to have another person assist her and she was counseled always to obtain assistance when using the lift. The warning notice indicated that “ 0 [no] bruises noted at this time” on the patient. A few days later Hurdle received a letter dated July 24, 2002 stating that her “employment was no longer needed” at Greenwood, thanking her for her hours of service and wishing her good luck in the future. This letter does not state that Hurdle was discharged and it gives no reason for the fact that her services were no longer needed. I note that neither of the warning notices from Greenwood indicates that Hurdle was discharged or that further discipline was contemplated. In 2002 Hurdle applied for work at Elm Hill and Mercy Knoll. Hurdle had worked some shifts in those facilities though Staff Builders. Elm Hill informed Hurdle that they were not hiring. On November 4, 2002 Hurdle received a card saying that there was no hiring at Mercy Knoll. In 2002 the Union sent Hurdle to apply for a job at Rocky Hill and Hurdle was informed that she would be hired there. However, another employee bumped into the job vacancy and Hurdle lost her opportunity to work at Rocky Hill. Hurdle applied to several other facilities before she was hired by Sunrise at the end of 2002. Hurdle contacted Hamilton Heights, Brook View and Trinity Hill, but she did not fill out applications at these places because she was informed that they were not hiring. Hurdle filled out applications at Laurel Gardens, Brittany Farms and Bridges Assisted Living but she was not hired by either of these employers. Georgia Stewart Caldwell Georgia Stewart Caldwell testified that she completed her high school education in the United States and immediately began to work for Respondent on October 13, 1975.3 Until she was terminated on January 25, 2000, Caldwell had not held any other employment. Caldwell received PTO from Avery and strike benefits from the Union for the first quarter of 2000. She picketed during her normal working hours from 7 am to 3 pm. At first the picket- ing lasted about 40 hours per week but gradually the picket line activity declined to just three days per week. 3 Caldwell was occasionally referred to by her maiden name of Stewart. Caldwell testified about her search for work. Present in the hearing room and available to all counsel were notes Caldwell had made from memory as well as a compilation of monthly calendars kept contemporaneously with the events recorded for each date. The calendars list the names of the prospective em- ployers whom Caldwell contacted. Caldwell testified that she used the calendars to prove to the Connecticut State Unem- ployment Insurance authorities that she was conducting a search for work. Because Caldwell had never worked anywhere else but Avery Heights she was not familiar with other health care em- ployers in her area. As a result, Caldwell relied on a list of health care facilities provided by the Union which showed both Union and non-Union employers and their telephone numbers. Caldwell did not contact every facility on this list because some of them were too far away. Although Caldwell has a driver’s license she cannot drive long distances. Caldwell testified that in addition to the Union list she consulted the Hartford Courant for want ads listing CNA positions.4 Caldwell testified that she conducted her search for interim employment by telephoning prospective employers. If the em- ployer stated that there were no openings she did not fill out an application. However, if the employer stated that it was hiring she would travel to the location and fill out an application for employment. Caldwell testified that she had a number of interviews at places listed on her calendars including various health care facilities and Sears, Marshalls, Old Navy and some fast food outlets. At interviews with Mediplex of Wethersfield and Mediplex of Newington she was asked why, after having worked 24 years for one employer, she was now searching for a new job. Caldwell would always reply that she had been ter- minated for alleged patient abuse consisting of mocking a pa- tient on the picket line. Caldwell always told prospective em- ployers that she would never have engaged in any kind of abuse and that her case was going through the court system. Caldwell testified that she had only one employer reference to give pro- spective employers and that was the Respondent in this case. Caldwell testified that after she was terminated by Respondent she was never offered a job as a CNA nor did she obtain a job with a non health care employer. Caldwell’s calendars show the following efforts to find in- terim employment: January 2000: Telephone calls to Andrew House, Op- timum Care, Greenwood, Elm Hill, Miller Memorial, Jef- ferson House, Kimberly Hall and Windsor Hall, none of which were hiring. Application submitted to Adams House. February 2000: Telephone calls to Mediplex Newing- ton, Mediplex Wethersfield, Windsor Rehab, Blair Manor, Alexandria Manor, Grove Hill Clinic, Windsor Hall, 4 Caldwell picketed during the strike. She took a lunch break while on the picket line and she went to the union hall during this time to search the want ads in the Hartford Courant. Caldwell visited prospec- tive employers on days when she was not picketing and after 3 pm on days when she had picket line duty. On occasion, Caldwell left the picket line to search for work. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832 Bloomfield Health Care and Sterling Manor, but no open- ings at any facility. March 2000: Telephone calls to Wintonberg Health Care, Hebrew Home, Chelsea Place, Mercy Knoll, Hughes, Brookview, and Kettlebrook, none of which were hiring. Applications submitted to St. Mary Home and Trinity Hill. April 2000: Telephone calls to Olympus Health Care, Bidwell, McLean, Bel-Air Manor, Brittany Farm, Maple View Manor, Fox Hill and Parkway Pavilion, none of which were hiring. Application submitted to Salmon Brook. May 2000: Telephone calls to Center for Optimum Care, Andrew House, Adams House, Mediplex Wethers- field, Elm Hill and Blair Manor, none of which were hir- ing. Application submitted to Kimberly Hall. June 2000: Telephone calls to Windsor Hall, Miller Memorial, Jefferson House, Greenwood and Alexandria Manor, but no openings at any facility. July 2000: Telephone calls to Bloomfield Health, Grove Hill, Chelsea Place, St. Mary Home, Windsor Re- hab, and Mercy Knoll, none of which were hiring. August 2000: Telephone calls to Mediplex of Greater Hartford, Salmon Brook, Hughes, Kettle Brook, Bel-Air Manor and Mercy Knoll, none of which were hiring. September 2000: Telephone calls to Mt. Sinai, Chel- sea Place, Windsor Hall and Elm Hill, none of which were hiring. Applications submitted to Kimberly Hall and Sears. October 2000: Telephone calls to Kimberly Hall, Win- dsor Rehab, Blair Manor, Elm Hill, Adams House and Andrew House, but no openings at these facilities. November 2000: Telephone calls to Mediplex Weth- ersfield, Center for Optimum Care, Mediplex Newington, Greenwood, Windsor Hall and Kimberly Hall, none of which were hiring. December 2000: Telephone calls to Miller Memorial, Elm Hill, Haven East Hartford and Blair Manor, but no openings at these facilities. Applications filled out at Al- exandria Manor and Andrew House. January 2001: Telephone calls to Olympus Bidwell Health Care, Jefferson House, Salmon Brook and Brittany Farm, none of which were hiring. Applications filled out at Olympus Health Care Victorian and Olympus Westside Health Care. February 2001: Telephone calls to Adams House, Fox Hill, McLean, St. Elizabeth health Care, Maple View and Windsor Rehab but no openings at these facilities. March 2001: Telephone calls to Mediplex of Greater Hartford, Mediplex of Newington, Trinity Hill, Elm Hill Nursing Center, Mercy Knoll, Salmon Brook and St. Elizabeth health Care Center, but they were not hiring. April 2001: Telephone calls to Blair Manor, Alexan- dria Manor, Windsor Rehab, Maple View Manor, Olym- pus Health Care Farmington and Olympus Health Care Westside, but there were no openings at these facilities. May 2001: Telephone calls to Adams House, Hughes, Windsor Hall (twice), Jefferson House, Kimberly Hall, and Alexandria Manor.5 June 2001: Telephone calls to Salmon Brooks, Blair Manor, Bel-Air Manor, Brittany Farm, Andrew House and Bloomfield Health Care. July 2001: Telephone calls to Riverside Health, Man- chester Manor, Greenwood, Optimum Care, Elm Hill, Parkway Pavilion Health Care and Windsor Rehab. August 2001: Telephone calls to St. Mary, Grove Hill, Mediplex Wethersfield, Windsor Rehab, Chelsea Place, Mediplex Newington and Greenwood. September 2001: Telephone calls to Kimberly Hall, Wendy’s, Grove Hill, Bel-Air Manor, Olympus Health Care Westside, Mercy Knoll and McDonalds. October 2001: Telephone calls to Sears, Windsor Re- hab, Marshall, Subway, Old Navy and Andrew House. November 2001: Telephone calls to Blair Manor, Windsor Rehab, Alexandria Manor, Andrew House and Jefferson House. December 2001: Telephone calls to Subway, Sears, TJ Maxx, Old Navy, St. Mary Home and Marshalls. January 2002: Telephone calls to Old Navy, Windsor Hall, Marshalls, Kimberly Hall, Hughes, Subway and McLean. February 2002: Telephone calls to McDonalds, Jeffer- son House, Elm Hill, Wendy’s, Sears, Alexandria Manor and Bel-Air Manor. March 2002: Telephone calls to Mercy Knoll, Sears, Bloomfield Health, Andrew House, Grove Hill Clinic and Chelsea Place.6 April 2002: Telephone calls to Subway, Alexandria Manor, Wendy’s, Marshalls, Windsor Rehab, Kimberly Hall and Blair Manor. May 2002: Telephone calls to Andrew House, Medi- plex Newington, Mediplex Wethersfield, Haven West Hartford, Haven East Hartford and Elm Hill. June 2002: Telephone calls to Kettle Brook, Trinity Hill, Haven, Maple View, Adams House, Mt. Sinai and Salmon Brook. Caldwell stopped making calendar entries after June 2002 because she was frustrated by her failure to obtain work. How- ever she continued searching for work until the end of 2002 when she ceased her search and became a full-time organizer for the Union. Caldwell testified that when she began work for Respondent in 1975 she was not required to hold any type of state licensure or registration. Sometime in the 1980’s the State instituted a licens- ing requirement for the CNA position. Avery Heights provided the mandated classroom instruction for its CNA employees. Caldwell took the evening classes provided by Respondent and she became licensed. Caldwell had believed that in order to keep 5 The calendar entries for this month and all subsequent months do not indicate whether the employers were hiring and whether Caldwell filled out any applications. 6 Caldwell was granted an interview at Sears on March 8, 2002. She was asked whether she had any retail experience. AVERY HEIGHTS 833 her registration up to date she had to perform 12 hours of “in- service training’ every year. Respondent had provided this train- ing to Caldwell on a regular basis. Caldwell believed that a CNA had actually to be employed in order to receive the training be- cause she herself had always received the mandated training on the job. After she was terminated by Respondent, Caldwell applied for work at a health care facility named Haven of West Hartford and she was asked about her license during an inter- view. Caldwell replied that she believed she was OK but Haven told her that her registration had lapsed. Later, Caldwell learned that she had to take the “in-service training” every 24 months to keep her license and that she did not have to be actually em- ployed in order to maintain her license. Caldwell stated that when she was offered reinstatement by Respondent she returned to work and then she successfully took a written test for the CNA license. Her registration was rein- stated by the State. Dr. Miriam Parker, the Administrator of Avery Heights, tes- tified about the Connecticut Public Health Code’s requirement for CNA registration. In order to maintain the registration a CNA must work at least one shift in a continuous 24 month period. Dr. Parker testified that when Caldwell returned to work it was learned that her registration had expired on No- vember 16, 2001. The Public Health Code permits a CNA to be employed without a current registration for 120 days as long as the certification is obtained within the 120 day period. The CNA must have some class instruction and she must pass a test. Dr. Parker testified that just as Caldwell was put to work at Avery Heights she similarly could have been hired by any an- other employer as a CNA as long as she took the test and be- came re-registered within a 120 day period. Opal Clayton Opal Clayton was educated in Jamaica and took a CNA course when she arrived in the United States. She worked for Respondent from August 22, 1996 until she was discharged on February 22, 2000. After her discharge Clayton received un- employment benefits. Clayton testified that the Connecticut State agency monitored her search for work and she was re- quired to show that she was actively searching for jobs. Clay- ton attended a State hearing where she proved that she had applied for work in various places. In addition, the State agency provided Clayton with the names of prospective em- ployers. Clayton did not receive any money from the Union for picketing. Before Clayton was first employed by Respondent in 1996 she had begun working one eight-hour shift per week at Trinity Hill.7 Clayton continued to work part-time at Trinity Hill even after she began to work at Avery Heights. Clayton prepared a document showing details of her search for work after she was terminated by Respondent. The first date listed is March 1, 2001, but Clayton stated that was not the first day that she tried to find a job. Clayton testified that she had listed most of the places where she inquired about work but that she had forgotten some others. Clayton began to look for work shortly after she was terminated. She did not limit her 7 The employees at Trinity Hill belong to the Union. search to nursing homes, also applying to hospitals such as St. Francis and Mount Sinai. Clayton applied for both CNA and housekeeping positions. Clayton found prospective employers by looking in the yellow pages and by reviewing want ads in the free newspapers and in the Hartford Courant. Clayton tele- phoned prospective employers to inquire whether they were hiring. Clayton would fill out an application if the facility was hiring. Clayton testified that her search for work decreased a little bit when she gave birth to her daughter in July 2000. She be- gan looking for work a week or two after she gave birth. Clay- ton stated that if she had been offered a job three weeks after giving birth she would have taken it and she would have been able to take full-time work. Clayton took a leave from her part- time job at Trinity Hill when she gave birth. She could not recall how long that leave lasted. Clayton stated that in 2000 she worked only at Trinity Hill, a continuation of her part-time work. In 2001 she worked for an agency called Maxim Health Care which sent her to a nursing home for eight hours. She could not accept the other jobs of- fered by this agency because they were too far away in towns with which she was not familiar and she could not get a ride to those places. Clayton recalled that she was interviewed at Manchester Hospital, Kimberly Hall, Jefferson House, Bloom- field Health Care, Alexandria Manor, Wintonbury and Hebrew Home. She applied to Kettlebrook and Greenwood but she could not recall whether she had been given an interview at those facilities. In 2000 and 2001 Clayton also applied for work at CVS, JC Penney, Sears, Wendy’s, McDonalds, TJ Maxx, Burger King, Filenes and Marshalls. On June 1, 2001 Clayton was hired by The Atrium for a full- time CNA position. At this time she stopped looking for other work. Clayton left The Atrium in 2003 when she was able to bid into a full-time position at Trinity Hill with higher pay, Union benefits and a more convenient location. Availability of CNA Positions During the Back Pay Period After the discriminatees testified herein, Counsel for Re- spondent called Christine Moody to testify that she had re- viewed advertisements in the Hartford Courant from the period January 2000 through December 2002. Moody summarized those items which mentioned CNA positions, whether listed under “nurses”, “health aides”, “LPN” or “CNA”. Moody pre- pared a summary document in both chronological and alpha- betical form which showed listings she found in the Hartford Courant.8 Moody included in the summary document any list- ing she believed to be in the greater Hartford area either based on an address or based on a telephone area code. Some of the included listings were in towns that were not very close to Hart- ford.9 Moody did not telephone the advertisers to check whether they were actually hiring CNA employees nor did she check where the actual jobs were located. Some of the adver- tisers were staffing agencies and some of them stated that they 8 This document was admitted into evidence as R. Exh. 12. 9 Discriminatees are not required to accept employment where they would encounter transportation difficulties due to the location of the employment opportunity. Parts Depot, 348 NLRB No. 9, slip op. 3 (2006). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834 were seeking applicants “statewide.” At least one of the list- ings was placed by St. Elizabeth Health Care on May 13, 2001 seeking “permanent replacement of workers on strike.” I note that although the discriminatees mentioned seeking work at some of the employers listed in Moody’s summary, Counsel for Respondent did not ask any of the discriminatees whether they had applied for jobs at the other facilities listed in Moody’s summary. After the discriminatees testified herein Counsel for Respon- dent stated that he wished to call several witnesses. These wit- nesses would testify that they were employed by various facili- ties that had filled CNA positions during the back pay period. The witnesses would testify as to the number of CNA employ- ees hired at their respective facilities. Counsel for Respondent stated that none of his prospective witnesses would be able to testify about matters relating specifically to the three discrimi- natees and their particular search for work. None of these pro- spective witnesses would have any information about the in- quiries for employment made by the discriminatees because health care facilities do not retain employment applications for any significant length of time. I ruled that Respondent would not be permitted to call these witnesses because the witnesses could not offer testimony relating to the discriminatees. I ruled that general information about the number of CNA positions filled would not show that the discriminatees would have been hired to fill those positions had they applied during the back pay period. Further, any testimony that an employer would have hired an applicant years ago would be speculative and inadmissible. Since the witnesses were not being called to offer testimony specific to the three discriminatees these witnesses would not be able to shed any light on a purported willful fail- ure to mitigate damages during the back pay period. Parts Depot, 348 NLRB No. 9, slip op. 3 fn 6 (2006). Counsel for Respondent made an offer of proof that if his prospective witnesses had been permitted to testify they would have shown that I Care hired 400 CNAs at its nine facilities, that Brittany Farms hired 70, that Brook hired 60 and that Maxim hired over 100. Counsel for the Union pointed out that both Clayton and Hurdle worked for some of these employers or their subsidiaries. II. CONCLUSIONS The legal principles governing the determination of back pay were set forth at length in Minette Mills, Inc., 316 NLRB 1009, 1010-1011 (1995), which also provided extensive citations that I will not repeat here. The principles relevant to the instant proceeding are: 1) A finding by the Board that an unfair labor practice was committed is presumptive proof that some back- pay is owed; 2) The General Counsel bears the burden of prov- ing the amount of gross backpay due; 3) The burden is on the employer who committed the unfair labor practice to establish facts, including the amount of any interim earnings or a willful loss of interim earnings, that reduce the amount due for gross backpay; 4) Even though a discriminatee must attempt to miti- gate her loss of income, the discriminatee is held only to a rea- sonable rather than to the highest standard of diligence, and the discriminatee is required to accept only substantially equivalent employment; 5) when a discriminate voluntarily quits interim employment the burden shifts to the General Counsel to show that the decision to quit was reasonable; 6) a discharge from interim employment, without outrageous conduct, does not constitute a willful loss of employment; 7) as Respondent herein is the wrongdoer who caused the discriminatees’ initial unemployment, any ambiguities, doubts or uncertainties are resolved against Respondent because an offending employer is not allowed to profit from any uncertainty caused by its dis- crimination. The sufficiency of a discriminatee’s efforts to mitigate backpay are determined with respect to the backpay period as a whole and not based on isolated portions of the backpay period. Electrical Workers IBEW Local 3 (Fischbach & Moore), 315 NLRB 1266 (1995). Registration with a state unemployment agency is prima facie evidence of a reasonable search for employment. Midwestern Personnel Services, 346 NLRB No. 58, slip op. 4 (2006). Employees are not disquali- fied from backpay “because of their poor record-keeping or uncertainty as to memory.” Allegheny Graphics, 320 NLRB 1141, 1145 (1996), enfd. sub nom. Package Service Co. v. NLRB, 113 F.3d 845 (8th Cir. 1997). Patricia Hurdle Hurdle’s testimony shows that in the three years before she obtained a full-time job at Sunrise in early 2003 she searched for work by speaking to friends, checking nursing homes with which she was familiar and checking listings in a weekly news- paper. Hurdle qualified for State unemployment benefits. Hur- dle could not recall where she worked from January to June 2000, but she believed she obtained work through a part-time agency. Hurdle was able recall private patients and agencies for whom she worked after June 2000 in addition to the part- time per diem job at Greenwood. The record demonstrates that throughout the three year period before early 2003 Hurdle was listed with various agencies and that she was receiving work from those agencies. Hurdle was able to list various facilities where she inquired about work and various facilities where she filled out an application but was not hired. Hurdle’s efforts would have led to a full-time job at Rocky Hill in 2002 had not a worker with seniority bumped into the position. Hurdle’s efforts to find full time-employment were crowned with suc- cess when a part-time job at Sunrise, with additional training, led to a full time job in early 2003. Respondent argues that Hurdle’s search for employment was not reasonable because in the three years before she obtained full-time work at Sunrise Hurdle sought work from only 18 employers. This mischaracterizes Hurdle’s testimony. First, Hurdle stated that she could not recall where she worked from January to June 2000; this testimony indicates that she did work and thus that she sought work from January to June 2000.10 Second, Hurdle’s testimony shows that she worked for six em- ployers whom she could recall.11 Thus, she had sought em- ployment for these six jobs. Third, Hurdle sought work at 13 facilities that she could recall, inquiring at a number of these 10 Further, Hurdle’s receipt of State unemployment benefits shows that she was able to prove to the State agency that she was searching for work. 11 These were TLC, a private case, Arden Court, Staff Builders, Sun- rise and Greenwood. AVERY HEIGHTS 835 places multiple times over the course of three years.12 More- over, Hurdle could not recall all the places she checked includ- ing some where she had been sent by an agency on a per diem basis. Thus, Hurdle’s testimony shows that she applied at 19 employers that she could recall and an untold number that she could not recall. There is no support for Respondent’s assertion that this was an average of one employer every two months. Hurdle repeated her efforts at many of the facilities, inquiring at some of them at least three times. The Board has remarked that the fact that a discriminatee could not remember with specific- ity the details of his search for work “is attributable to the nearly 5-year delay between his search for work and the date of his testimony and does not provide sufficient evidence to sup- port a finding that [the discriminatee] failed to mitigate.” Mid- western Personnel Services, supra, at 4. Respondent urges that Hurdle’s efforts were unreasonable because she did not check the over 70 nursing homes in Hart- ford County. I reject this assertion. Even if it were found that Hurdle did not contact a sufficient number of prospective em- ployers, it was Respondent’s burden to show that the nursing homes it refers to were within a reasonable distance of Hurdle’s home and accessible to Hurdle given her driving and navigating ability. Respondent did not question Hurdle with respect to these 70 employers when it called her to testify. Respondent urges that Hurdle should be faulted for failing to consult the Hartford Courant and the internet, rather than the free newspa- per placed in her mailbox once a week. There is no evidence in the record to show that the Hartford Courant and the internet are better sources of CNA employment than the weekly news- paper. The fact that Hurdle was asked to fill out applications at many of the facilities where she made inquiries shows that Hurdle was able to find employers who were hiring even if they did not hire Hurdle. Indeed, the reasonableness of Hurdle’s efforts is further demonstrated by the fact that Hurdle found employment and was employed on a per diem basis from 2000 through 2002 and that Hurdle began a full time job in early 2003 which she held until her reinstatement to Avery Heights. Respondent asserts that Hurdle lost her per diem job at Greenwood by engaging in deliberate misconduct. Although Respondent states that Hurdle was insubordinate to a nurse, Hurdle testified that this was not true and Respondent called no witness to contradict Hurdle. As noted above, I found Hurdle to be a credible witness. Respondent presented no evidence to support its assertion that failing to ask for help with the Hoyer lift was a well known and sure cause of discharge in the health care industry. As discussed in more detail above, there is no evidence that when Greenwood wrote to Hurdle thanking her for her work and saying she was no longer needed this was because of the two warning notices issued to Hurdle. It was Respondent’s burden to present evidence linking the two warn- ings with the letter. Thus, there is no evidence that Hurdle was discharged for any conduct in which she may have engaged. 12 These were Hughes, Bridges, Elm Hill Center, MediPlex, McLean, Chelsea, Mercy Knoll, Rocky Hill, Hamilton Heights, Brook View, Trinity, Laurel Gardens and Brittany Farms. In summary, I find that Hurdle’s efforts to find interim em- ployment were reasonable and that she did not willfully cause the loss of her per diem employment at Greenwood. Georgia Stewart Caldwell Respondent asserts that Caldwell did not conduct a reason- able search for employment because she picketed every day at least 40 hours per week. The record shows that Caldwell pick- eted from 7 am to 3 pm with time off for lunch. Caldwell stated that at first the picketing lasted 40 hours per week but gradually it declined to just three days per week. Caldwell telephoned prospective employers to inquire about work and she traveled to those facilities that were hiring and told her to fill out an application. Caldwell left her picketing activities on occasion to search for work. Thus, even when picketing 40 hours per week at the beginning of the strike and later when only picketing three days per week, Caldwell was able to check for jobs and make telephone calls at lunch and after 3 pm. After 3 pm and on days when she was not picketing, Caldwell was free to fill out applications. This is not an unreasonable amount of time during which to conduct a job search. Respondent faults Caldwell for contacting only 39 of the 70 nursing homes in Hartford County. Respondent did not ques- tion Caldwell concerning her failure to contact more than 39 nursing homes and thus did not meet its burden to show that her search for work was unreasonable based on the number of em- ployers contacted. Respondent did not show that the nursing homes not contacted by Caldwell were within reach of her home consistent with her driving ability. Respondent errone- ously states that Caldwell was interviewed at only Mediplex of Wethersfield and Mediplex of Newington. In fact, Caldwell testified that she was interviewed at a number of health care facilities listed on her calendars but she could not recall which ones. Caldwell could only recall the names of three: Mediplex of Wethersfield, Mediplex of Newington and Haven of West Hartford. Further, Caldwell testified that she was interviewed at Sears, Marshall, Old Navy and some fast food outlets. The fact that Caldwell was not successful in obtaining in- terim employment until the end of 2002 does not show that her efforts to find work were not reasonable. Bauer Group, 337 NLRB 395,396 (2002), Minette Mills, supra. It should be re- called that Caldwell had only one reference to give prospective employers for her 24 year work history, and that employer was the Respondent which had discharged her for alleged patient abuse. Respondent urges that because Caldwell’s CNA registration lapsed on November 16, 2001 her back pay should cease as of that date. However, Respondent did not show that the lapse of Caldwell’s certification made her unemployable as a CNA. In fact, Respondent’s own witness testified that Caldwell could have been hired as a CNA by any health care employer and that she could have worked for 120 days in that capacity so long as she renewed her license within the 120 day period. This is exactly what happened when Respondent itself reinstated Caldwell. As her uncontradicted testimony showed, Caldwell readily underwent the training and took the test and she ob- tained a valid registration. In summary, the testimony pre- sented by Respondent showed that the lapse of Caldwell’s reg- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836 istration had no effect on the ability of a prospective employer to hire Caldwell as a CNA. I find that Respondent has not met its burden to show that Caldwell failed to make reasonable efforts to search for work during the backpay period. Opal Clayton Respondent asserts that Clayton did not make reasonable ef- forts to find a job from February 2000 to February 2001 and that her back pay should be tolled for this period. Respondent also asserts that Clayton voluntarily quit her job at Atrium in 2003 which reduced her income in 2004 and that as a result “any award should be reduced.” Respondent concedes that Clayton made reasonable efforts to find a job from March 2001 to June 2001. With respect to the period before March 2001, the record shows that Clayton collected unemployment benefits and con- tinued with her part time job at Trinity Hill. However, Respon- dent faults Clayton for failing to keep notes of her job search during that time although she said she generally did keep such notes. The record shows that in order to receive unemployment benefits Clayton had to satisfy the State Agency that she was looking for employment through appropriate job searches, in- cluding inquiries at prospective employers suggested by the Agency itself. Clayton testified that the State held a hearing where she proved that she had applied for work in various places. The fact that in 2006 Clayton may not have had the records she used to satisfy her obligation to the State Agency in 2000 and early 2001 does not show that she did not make a reasonable job search. I credit Clayton’s testimony that she began looking for work soon after she was terminated by Re- spondent by consulting the yellow pages and by reviewing want ads in the Hartford Courant and the free newspapers. Clayton telephoned prospective employers to see if they were hiring and she filled out applications where she was told she could do so. Clayton applied for both CNA and housekeeping positions at nursing homes and at hospitals. Also, in 2000 and 2001 Clay- ton applied to CVS, JC Penney, Sears, Filenes, Marshalls and various fast food establishments. Clayton recalled interviews at seven health care facilities and she was not certain about two others where she had applied. In 2000 and 2001 Clayton worked for Trinity Hill and an agency called Maxim Health Care. She had to turn down some assignments from Maxim because of transportation difficulties. Respondent also refers to Clayton’s testimony that she stopped looking for work for a week or two when she gave birth in July 2000. Clayton testified that if she had been offered a full time job three weeks after giving birth she would have taken it. Respondent argues that “such a claim is simply not credible.” It is well-known that many women, including law- yers, return to work a week after giving birth. It is obvious that many women return to the physically taxing duties involved in taking care of numerous children and a household as soon as they arrive home after giving birth. In contrast, certain women may not be able to return to work soon after childbirth, but that is a matter for individual determination. There is no general rule to apply in all such cases. It was Respondent’s burden to show that in July 2000 Clayton could not have returned to work as a full time CNA three weeks after giving birth. Clayton testified that she took a leave of absence from Trinity Hill after giving birth, but she could not recall the length of this leave. If Respondent had wished to cast a valid doubt on Clayton’s tes- timony that she would have returned to work after three weeks, Respondent could have offered records to show the length of Clayton’s maternity leave from Trinity Hill. Branding Clay- ton’s testimony as “simply not credible” does not meet Re- spondent’s burden of proof on this issue. In the absence of any probative evidence to the contrary I shall rely on Clayton’s testimony that she would have returned to work three weeks after giving birth. Clayton testified that she searched for work up to the time she gave birth and resumed her search shortly afterwards. I do not find that Clayton removed herself from the labor market in the year 2000. Clayton began working at the Atrium on June 1, 2001. Re- spondent faults Clayton for leaving this employment in 2003, which, it claims, resulted in smaller earnings in 2004. Clayton testified that she resigned from the Atrium when she bid into a full-time position at Trinity Hill with higher pay, Union bene- fits and a more convenient location.13 Respondent points out that in 2003 Clayton earned $22,434.63 from Trinity Hill and $10,901.43 from the Atrium for a total of $33,336.06. In 2004 Clayton earned $28,541.55 from Trinity Hill, a decrease of $4794.51 from her total earnings in 2003. I do not find that Clayton’s action in going from two part-time jobs to one full time job was unreasonable even though it resulted in some loss of earnings. Clayton was entitled to seek a job comparable to that from which she was unlawfully discharged by Respondent, that is, a full-time job with Union benefits. Trinity Hill offered such a comparable position. Further, the Trinity Hill job paid more per hour than the Atrium part-time job and was in a more convenient location. I do not find that Clayton improperly failed to mitigate her back-pay claim by resigning from the Atrium in order to work full-time at Trinity Hill. Respondent has not met its burden to show that Clayton improperly failed to mitigate backpay during the relevant period. Uniform/Longevity Allowance Article XX of the Collective Bargaining Agreement provides in relevant part as follows: Uniforms/Longevity 1. In lieu of furnishing uniforms, the Home shall pro- vide a uniform/longevity allowance as follows upon suc- cessful completion of the probationary period: Full-Time Part-Time 0-4 yrs. $198 $110 5-9 yrs. $298 $210 10-14 yrs. $442 $310 15+ yrs. $586 $410 2. The uniform/longevity allowance shall be paid 50 percent in the first payroll period in January and 50 per- 13 The record does not show the exact date of Clayton’s resignation from Atrium nor the exact date of her full-time employment at Trinity Hill. AVERY HEIGHTS 837 cent in the first payroll period of July in each contract year. Dr. Parker testified that CNA employees are required to wear a uniform consisting of solid pants and colorful tops. Employ- ees are not required to furnish proof that they have purchased a uniform in order to receive the allowance. Respondent argues that “during the back-pay period … Avery Heights did not require [the discriminatees] to wear CNA uniforms. Accordingly, Avery Heights should not be required to provide those employees with uniform allowances for the back-pay period.” Not surprisingly, the collective-bargaining agreement does not deal directly with the issue before me. However, certain sections of the contract provide some guidance as to whether the parties intended to link the payment of the uni- form/longevity allowance to the actual wearing of uniforms during a specified time period. Other portions of the contract I have considered are as follows: Article VII Seniority 1. Definition. Seniority shall be defined as the length in time an Employee has been continuously employed in any bargaining unit capacity by the Home. . . . 2. Accrual. … b. Seniority shall continue to accrue during any leave of absence with pay; during any leave of absence without pay for maternity, paternity and family leave, disability leave, military, Union business and educa- tional leave for a period of up to twelve (12) months and up to six (6) months for other leaves as set forth in Article VI and during any period of continuous layoff not to ex- ceed twelve (12) months.14 Article XV Paid Leave This Article provides 3 days with pay for funeral leave and one day for paternity leave. In addition the Article provides 2. Jury Duty Leave. An Employee who has com- pleted his probationary period and who is called to serve as a juror shall receive his regular pay less his pay as a ju- ror for each work day while on jury duty, provided that such payment by the Home shall not exceed eight (8) hours per day or forty (40) hours per week. . . . It is evident that seniority continues to accrue during leaves with pay and without pay, within certain time limitations. In addition, the jury duty paid leave is without any time limitation. An employee sitting as a juror on a lengthy trial would continue to receive pay and accrue seniority even if the trial lasted for many months. The language of the uniform/longevity allow- ance quoted above is based on seniority alone and does not depend on an employee’s actually having been at work. Under the plain language of the contract an employee who had re- cently returned from a lengthy paid leave as a juror or a lengthy unpaid leave for the military or maternity would be entitled to receive the uniform/longevity allowance based on his or her seniority. Thus, I find no expressed intent in the collective- bargaining agreement to deny the uniform/longevity allowance 14 Article VI pertains to probationary employees. to employees who have not actually been required to wear a uniform for any one of a number of reasons. No relevant past practice was adduced by Respondent at the hearing. Of course, the fact that the contract limits the accrual of seniority during certain paid or unpaid leaves has no bearing on the instant case where Respondent’s unlawful action in discharging the dis- criminatees resulted in their being absent from the workplace for a number of years. I conclude that Respondent has not met its burden of showing that payment of the uniform/longevity allowance is dependent on whether an employee actually was required to wear a uniform for a relevant time period. State Unemployment Benefit Payments Respondent asked Dr. Parker a number of questions about unemployment insurance. Dr. Parker testified that as a non- profit institution the Respondent was permitted under Con- necticut law to elect a “direct pay” status with regard to the State unemployment insurance scheme. Thus, Respondent does not pay unemployment insurance tax to the State on behalf of its employees. However, when the State Agency finds that a claimant who has worked for Respondent is eligible for unem- ployment benefits the State bills Respondent for the amount of the benefits received by the claimant. Dr. Parker did not testify concerning the amounts paid by Respondent to the State of Connecticut to fund the unemployment insurance benefits re- ceived by Hurdle, Clayton and Caldwell. The direct pay status of Respondent was first raised in its Amended Answer which asserted that the backpay awarded to the discriminatees should be reduced by unemployment com- pensation benefits received “which were paid directly by Avery Heights.” Further in a pre-hearing conference call with all parties participating, Counsel for the General Counsel stated that unemployment insurance payments received by the discriminatees were not offset against backpay in the instant specification.15 During this conference call Counsel for Re- spondent stated that he would prove the direct pay status of Respondent. Counsel for Respondent stated that after the discriminatees received their backpay pursuant to the instant proceeding the State of Connecticut would move to recoup the unemployment insurance benefits paid to the discrimina- tees. Counsel stated that Respondent would then move to recoup the amounts it paid to the State Agency. Counsel also stated that he had a legal argument to make concerning the general rule that unemployment benefits were not offset against backpay: this argument would have been based on the “direct pay” status of Respondent. Following receipt of the transcript in the instant hearing I sent a letter to all parties concerning this issue and what I de- scribed as an inadvertent omission in the proof offered by Re- spondent.16 I suggested that the parties agree on a mechanism for supplying the missing information about the recoupment feature of the State law. I suggested that counsel could stipu- late to the applicable State regulation and that counsel could stipulate to a statement by Dr. Parker describing the workings 15 See Gullett Gin Co. v. NLRB, 340 U.S. 361 (1951). 16 This letter dated August 30, 2006, is hereby admitted into evi- dence as ALJ Exh. 1. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838 of the recoupment mechanism. No such stipulation was pro- posed by Respondent. Instead, Respondent’s post hearing Brief presented a legal argument to support its position that the unemployment benefits paid to Hurdle, Clayton and Caldwell should be offset in com- putation of the backpay due herein. On October 5, 2006 Coun- sel for the General Counsel moved to strike portions of Re- spondent’s Amended Answer and Brief based on Respondent’s failure to supply “appropriate supporting figures” with respect to its argument for offsetting unemployment compensation benefits from the backpay to be awarded herein.17 On October 10, 2006 Counsel for Respondent served an Ob- jection to Counsel for the General Counsel’s Motion.18 This Objection states, inter alia, that the Connecticut “Department of Labor can identify the exact amounts paid by Respondent” for each of the discriminatees. Apparently, Respondent did not seek this information from the State Agency in response to the ALJ letter of August 30. The Objection further states that if the Board does not offset the unemployment benefits from the in- stant award of backpay then “the State of Connecticut will in- dependently recover the sums paid” from the discriminatees and the Respondent will “be credited” by the State. On October 12, 2006 Counsel for the General Counsel moved to strike Respondent’s Objection.19 On October 18, 2006 Respondent served a further Objection.20 This Objection relates that after January 2000, when the Union ended the strike, many employees were not immediately reinstated by Respondent due to the hiring of permanent replacements. “Ac- cordingly, along with Ms. Clayton, Ms. Hurdle, and Ms. Stew- art, Avery Heights paid Unemployment Compensation benefits for many employees at that time and is not certain now as to the exact amount paid to each claimant.” The Objection further points out that Clayton’s tax returns for 2000 and 2001 show that she received certain amounts of unemployment compensa- tion in each of those years. It is clear that Respondent bears the burden of proving any offset against the backpay to be awarded to the discriminatees. Indeed, pursuant to Sec. 102.56 of the Board’s Rules and Regu- lations Respondent’s Answer should have contained the precise figures to support its unemployment insurance offset argument. The record contains no proof of the amounts paid by Respon- dent to the State of Connecticut with respect to any unemploy- ment insurance benefits awarded to the discriminatees. Indeed, Respondent states that it does not know the exact amounts it paid to the State Agency with respect to these unemployment benefits. The fact that Clayton’s tax returns show certain amounts of unemployment compensation received does not prove that Respondent paid those sums. Given this failure to prove the actual amounts paid by Re- spondent to fund the unemployment benefits to the discrimina- 17 The Motion of October 5, 2006, is hereby admitted into evidence as ALJ Exh. 2. 18 The Objection of October 10, 2006, is hereby admitted into evi- dence as ALJ Exh. 3. 19 The Motion of October 12, 2006, is hereby admitted into evidence as ALJ Exh. 4. 20 The Objection of October 18, 2006, is hereby admitted into evi- dence as ALJ Exh. 5. tees it is unnecessary for me to consider whether, under the circumstances of this case, sums paid by Respondent to the State of Connecticut for unemployment insurance benefits are a proper deduction from the backpay due to the discriminatees. I shall not make any change to the back pay specification stipu- lated to by the parties in this regard. It is also unnecessary for me to rule on the motions and objections relating to this issue. I note that, if Respondent’s description of the recoupment mechanism described in its Objection dated October 10, 2006 is correct, Respondent will ultimately be credited with the proper amounts by the State of Connecticut. Interest Rate for Unpaid Pension Benefits Article XXI of the collective-bargaining agreement requires Respondent to make monthly contributions to the New England Pension Fund. Paragraph 2 provides that “The New England Pension Fund shall be held and administered under the terms and provisions of the Agreement and Declaration of Trust, and any amendments thereof, which provide for equal representa- tion by the Union and the employers contributing to said Fund. . . .” Thus, the collective-bargaining agreement incorporates the trust documents by reference. There is no dispute that the trust documents for the New England Pension Fund provide a rate of 18% interest on delin- quent payments to the Fund. Under Merryweather Optical Co., 240 NLRB 1213, 1216 fn.7 (1979), the interest rate which should be applied in backpay cases to make whole the pension fund “may be determined, depending upon the circumstances of each case, by reference to provisions in the documents govern- ing the funds at issue and, where there are no governing provi- sions, to evidence of any loss directly attributable to the unlaw- ful withholding action….” Respondent asserts that the Board should abandon the above- quoted rule of Merryweather Optical and Respondent also as- serts that the interest rate of 18% is punitive and not remedial. Respondent argues that the Board should apply a remedial in- terest rate such as the short-term Federal rate used to determine the interest on backpay. Even if the Board were to abandon the reasoning of Merry- weather Optical, Respondent would still bear the burden of proving that, in the circumstances of this case, the 18% interest rate for unpaid pension benefits is 345 NLRB No. 56, slip opin- ion p. 4, (2005), cited in Respondent’s Brief, “in compliance proceedings the party offering an affirmative defense against the amount specified in a compliance specification has the bur- den of proving the mitigation of that amount. Here, the Re- spondent contends that the 20 percent … is excessive, but has presented no evidence that a lesser amount would be sufficient to make the fund whole.” Respondent cites NLRB v. G & T Terminal Packaging, 246 F. 3d 103 (2d Cir. 2001), where the court granted enforcement of the Board’s Order in an unfair labor practice case but denied enforcement of that portion of the Order which affirmed the ALJ and required the employer to pay 18% annual interest to the pension fund. The court explained that this issue had not been litigated in the unfair labor practice case. The court stated, “The record before us is insufficiently developed for us to determine whether the 18 percent interest rate bears some AVERY HEIGHTS 839 reasonable relationship to the actual losses suffered by the funds due to the Company’s underpayments, or whether it amounts to a punitive measure against the Company.” 246 F.3d at 128. Pursuant to the guidance provided by the Board and the Sec- ond Circuit in the cited cases, Respondent could have devel- oped the record in the instant compliance proceeding to enable me to determine whether the 18% interest rate is punitive and does not bear a reasonable relationship to the actual losses suf- fered by the pension fund. However, Respondent presented no evidence and called no witnesses on this issue. Respondent did not meet its burden to show that the 18% interest rate specified in the trust documents is punitive rather than remedial. I shall not make any change to the interest rate used in computing the back-pay specification. [Recommended Order omitted from publication.]