Propoco, Inc.

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