Sentry Armored Courier Corp.

SENTRY ARMORED COURIER CORP Sentry Armored Courier Corporation and Charles Slates Case 2-CA-18391 March 7, 1989 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On November 8, 1985, Administrative Law Judge James F Morton issued the attached second supplemental decision The Respondent filed excep tions and a supporting brief, and the General Coun sel filed a statement in support of the judge's deci- sion The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings, findings, and conclusions, as modified, and to adopt the rec- ommended Order, as modified We agree with Judge Morton's conclusion that the Respondent, in retaliation for Charging Party/discriminatee Charles Slates' having filed unfair labor practice charges with the Board, vio- lated Section 8(a)(4) and (1) of the Act by notify ing Slates' full time employer, the New York City Transit Authority (Authority), that Slates worked part time for the Respondent while collecting sick leave pay from the Authority We also agree with Judge Morton that the Respondent should make Slates whole for the losses suffered as a result of its unlawful conduct However, for reasons set forth below, we do not agree with the judge's recom- mendation that, because these losses were calculat ed by Judge Leonard M Wagman in a backpay de- cision partially vacated by the Board,2 we should, before making a final determination, first issue a Notice to Show Cause why the amounts found due by Judge Wagman should not now be adopted by the Board Rather than issue a Notice to Show Cause, we find it appropriate to issue a final Deci- sion and Order that provides affirmative relief, in- cluding a specific monetary make-whole award To place our decision here in perspective, a brief review of the history of this case is in order The amended complaint alleges in part that the Respondent violated Section 8(a)(1) of the Act by suspending Slates in September 1981 because he en- gaged in protected concerted activities involving I The Respondent has requested oral argument The request is denied as the record exceptions and bnefs adequately present the issues and the positions of the parties 2 275 NLRB 52 (1985) 115 protests against unsafe working conditions It fur- ther alleges, as mentioned above, that the Respond ent, in violation of Section 8(a)(4) of the Act, re taliated against Slates by reporting an alleged abuse of sick leave to Slates' full-time employer, the Au- thority, that report resulted in the Authority's charging Slates with work rule violations By decision dated July 28, 1983, Judge Morton resolved the 8(a)(1) portion of the case, finding that the Respondent unlawfully suspended Slates He recommended, however, that the 8(a)(4) aspect of the case be held in abeyance pending the outcome of the Authority's disciplinary proceedings against Slates Finding the lawfulness of the Respondent's actions contingent on the Authority's conclusions, Judge Morton outlined the applicable legal princi- ples as follows If the Authority found Slates' con- duct "in essence criminally motivated," the 8(a)(4) portion of the complaint should be dismissed under Professional Ambulance Service 3 On the other hand, if Slates was found guilty of "violating Transit Au- thonty work rules based on acts which do not con stitute fraud," the principles of Sure-Tan Inc v NLRB4 would control and an appropriate remedial order, including wages and legal expenses, would be required 5 The Board adopted Judge Morton's decision, to which no exceptions were filed, by un- published Order of September 20, 1983 The United States Court of Appeals for the Second Cir- cuit, by unpublished Order of February 14, 1984, enforced the Board's Order 6 In backpay proceedings that followed, Judge Wagman ordered the Respondent to pay Slates $2188, plus interest, as reimbursement for lost wages resulting from the Respondent's unlawful suspension of September 1981 He further ordered the Respondent to reimburse Slates both for wages lost as a result of a 30-day suspension imposed by the Authority and for legal expenses incurred in defending the Authority's charges ' Based on an 2 232 NLRB 1141 (1977) In Professional Ambulance the Board adopted without comment the judge s dismissal of an 8(a)(1) allegation against an employer for threatening to report a union activist to state authorities for improperly collecting workmen s compensation while actually working for the employer 4 467 U S 883 (1984) The Supreme Court in Sure Tan concluded that an employer violated Sec 8(a)(3) by reporting to INS the presence of illegal aliens among its work force in retaliation for its employees pursuit of protected activities 5 Although Judge Morton s original decision JD-(NY)-75-83 is not reported in bound volumes his conclusions are recited in Sentry Armored Courier Corp 275 NLRB 52 54 (1985) B NLRB v Sentry Armored Courier Corp No 84-4007 7 The backpay specification had included a claim for such amounts which Judge Wagman concluded was warranted in part on the basis that the Authority had not found that Slates conduct was criminally mo tivated 293 NLRB No 12 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD amended backpay specification and record evi- dence, Judge Wagman concluded that these losses amounted to $2,860 20 in backpay and $4500 in legal fees, plus interest In a Supplemental Decision and Order issued April 9, 1985, the Board adopted that portion of Judge Wagman's recommended Order relating to the Respondent's unlawful suspension of Slates in 1981, although the Board corrected the applicable backpay figure to be $2,624 82, plus interest 8 However, because their was no Board order or en- forcing court decree relating to the 8(a)(4) aspect of the case, the Board found that the backpay spec- ification was premature and Judge Wagman's con- clusions on the amount of the resulting losses were therefore inappropriate 9 Accordingly, the Board vacated that portion of Judge Wagman's decision addressing the 8(a)(4) allegation and remanded the case to Judge Morton for preparation of a second supplemental decision containing findings of fact, conclusions of law, credibility resolutions, and rec ommendations, including a recommended Order, regarding that allegation In his second supplemental decision, Judge Morton analyzed, under the principles set forth in his initial decision, evidence submitted by the par- ties in the reopened hearing In reaching his con clusions, Judge Morton reviewed the transcript of the disciplinary proceedings conducted by the Au- thority, the arguments raised by the parties during those proceedings, and the findings and recommen- dations of the Authority He noted that the Au- thority sustained charges that Slates failed to comply with dual employment regulations and mis used his sick leave privileges on various occasions in 1981 However, Judge Morton rejected the Re- spondent's argument that the record before the Au- thority demonstrated that Slates engaged in fraudu- lent and criminal activity within the meaning of Professional Ambulance, supra Instead, Judge Morton, noting that the Authority merely found Slates violated its work rules and regulations, ap- plied Sure-Tan, supra, and concluded that the Re- spondent unlawfully retaliated against Slates be cause he filed charges with the Board As stated at the outset of this decision, we agree with Judge Morton's conclusions that the Respond- ent violated Section 8(a)(4) of the Act, as alleged, and that a remedial order is required Addressing the remedy, however, we disagree with Judge Morton's recommendation that we issue a Notice to Show Cause why the losses calculated by Judge Wagman should not be adopted by the Board Rather, we find it appropriate to include, as part of this decision, an order requiring that the Respond- ent make Slates whole for specific losses suffered as a result of the Respondent's unlawful conduct In doing so, we note initially that the defect that led the Board in 1985 partially to vacate Judge Wagman's decision and recommended Order has been cured Thus, as a result of this Second Sup plemental Decision and Order, and in accord with Section 102 52 of the Board's Rules and Regula tions, there now exists a Board Order on which a backpay award can be based Second, we note that Judge Wagman ruled on all aspects of the backpay specification issued in this case, albeit prematurely in certain respects In the backpay proceeding, insofar as it addressed the 8(a)(4) aspect of this case, the Respondent denied any liability for Slates' loss of wages and legal ex- penses arising out of the Authority's proceedings against him 10 More specifically, the Respondent argued that Slates, by misusing his sick leave, com- mitted a fraud on the Authority which also consti tuted criminal activity requiring dismissal of the complaint under Professional Ambulance 11 The Re- spondent did not contest the accuracy of the actual backpay figures calculated by the judge Although Judge Wagman prematurely rejected the Respond ent's contentions under the parameters outlined by Judge Morton, we note that the arguments and ex- ceptions raised by the Respondent in response to the backpay specification and Judge Wagman's de- cision are identical to the arguments and exceptions raised at other stages of these proceedings, includ- ing the reopened hearing before Judge Morton that resulted in the decision under consideration here Thus, all the contentions asserted by the Respond- ent in the backpay proceeding before Judge Wagman have been considered and rejected by Judge Morton and, now, by the Board Accordingly, as there are no due process or evi- dentiary reasons not to rely on the accuracy of the figures calculated by Judge Wagman, we find it ap- propriate to accord affirmative relief for the viola- tions found above pursuant to the following Amended Remedy 8 Sentry Armored Courier Corp supra at 53 No exceptions were filed with respect to this aspect of the case 8 In support of this position the Board cited Earle Equipment Co 270 NLRB 827 828 ( 1984) and Sec 102 52 of the Board s Rules and Regula tions We note that Sec 102 54(b) of the Board s Rules and Regulations has recently been revised to in effect overrule Earle Equipment by permitting the issuance of such a specification prior to the issuance of a Board Order 10 With regard to that aspect of the case addressing the unlawful sus pension of Slates in 1981 the Respondent argued that the backpay award should reflect seasonal fluctuations and that diminished hours worked by Slates during the backpay period should be taken into account Judge Wagman rejected these arguments and the resulting backpay award for this portion of the case was adopted by the Board as set forth above " The General Counsel filed a statement in support of Judge Wag mans decision and in opposition to the Respondents exceptions SENTRY ARMORED COURIER CORP 117 AMENDED REMEDY Having found that the Respondent violated Sec tion 8(a)(4) and (1) of the Act, we order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act We shall order the Respondent to make Slates whole for all losses suffered as a result of the Re- spondent's unlawful conduct in precipitating a chain of events that caused Slates to suffer a 30-day suspension from employment from his full-time po- sition with the New York City Transit Author- ity 12 We find that the Respondent should be held liable for these lost wages because they are directly attributable to the Respondent's unlawful conduct, which is the only conduct before the Board In his decision Judge Morton noted that this case does not present a situation involving "the redress of any legal wrong that Slates may allegedly have done to Respondent " We agree and find the instant case to be analogous to Sure-Tan Thus, as Slates did not engage in any criminal fraud, the Re- spondent, under the principles of Sure-Tan, is re- sponsible for reimbursing Slates for the wages he lost as a result of his 30-day suspension by the Au- thority We do not perceive any conflict ansing be- tween the Board and the Authority by virtue of 12 Chairman Stephens notes that an appropriate Transit Authority to bunal conducted administrative disciplinary proceedings against Slates relative to his receipt of sick pay on days he reported for work for the Respondent The Authority finding Slates explanations for the rapid changes in his health not credible chose to discipline Slates for his mis conduct Finding that Slates placed himself in a vulnerable position by submitting these sick leave claims and given the wrongful nature of Slates actions Chairman Stephens would find that Slates should not be entirely freed from bearing the costs to him of his misdeeds simply be cause the Respondents unlawful conduct led to his being caught and punished by the Authority for his contravention of its employment rules and policies Insofar as Slates has only himself to blame for the punish ment meted out by the Authority the Chairman does not believe that the Board in carrying out its mandate to effectuate the Act should insulate Slates from all pecuniary losses resulting from the Authority s discipline by providing him through backpay with moneys to which he would not otherwise be entitled (It would of course be a different situation were the Respondent the party imposing the discipline and the party guilty of the unfair labor practice ) However the Chairman would find that the Respondent should not be relieved of all responsibility for the financial burden incurred by Slates as the Respondents misconduct was unlawful ly motivated A sufficient disincentive must be imposed to prevent the Respondent from engaging in repeated unlawful conduct in the future In the exercise of equitable discretion and so as not to interfere in any manner with the discipline imposed by a neutral public employer Chair man Stephens would not award any backpay to compensate Slates for lost wages resulting from the 30-day suspension imposed by the Author ity Rather the Chairman would order the Respondent only to make Slates whole for the legal expenses incurred by Slates in defending the charges brought against him by the Authority an expense that would have been incurred by Slates regardless of the outcome of the proceeding before the Authority Such a remedy would make the Respondent re sponsible for the foreseeable consequences of its misconduct although minimizing the arguable windfall that Slates obtains by being reimbursed for wages forfeited from the Authority Cf NLRB v American Dredging Co 276 F 2d 286 288 (3d Cir 1960) (certain union members not entitled to reimbursement of initiation fees and dues because remedy was consid ered windfall to union members and penalty to employer) Morrison Knudsen Co v NLRB 275 F 2d 914 917-918 (2d Cir 1960) the Board's requiring the Respondent to compen- sate Slates for any loss of pay he suffered as a result of the Authority's disciplinary action The discipline imposed by the Authority is separate and distinct As between the Authority and Slates, the discipline still adheres and any recurrence of the conduct on the part of Slates can lead to his dis- charge Thus, neither the suspension nor the poten tial for future, more severe adverse action being taken against Slates by the Authority has been less- ened or nullified by imposing on the Respondent the Board's traditional remedy of backpay Nor is there any public policy militating against the remedy What is presented here in a remedial con text are two agencies carrying out their respective functions and applying their respective sanctions against different parties in order to effectuate their respective interests or mandates In these circum- stances, we see no meaningful distinction between holding the Respondent liable for Slates' legal fees and requiring it to restore the status quo ante to ex punge the effects of its unfair labor practices As found by Judge Wagman, Slates' lost wages amount to $2860 20, plus interest We shall further order the Respondent to reimburse Slates for the legal expenses incurred in the defense of the Au- thority charges brought against him as a result of the Respondent's unlawful conduct Judge Wagman found that these losses amount to $4500, plus interest Interest on both of the above amounts is to be computed in the manner prescribed in New Horizons for the Retarded 13 ORDER The National Labor Relations Board orders that the Respondent, Sentry Armored Courier Corpora- tion, New York, New York, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Retaliating against employees because they file unfair labor practice charges with the National Labor Relations Board, by notifying the New York City Transit Authority or any other employer that they have abused sick leave privileges (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Make employee Charles Slates whole for loss of earnings amounting to $2860 20, plus interest, in- is 283 NLRB 1173 (1987) Interest will be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amend ment to 26 U S C § 6621 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD curred as a result of the 30-day suspension caused by the Respondent's unlawful conduct in notifying the New York City Transit Authority that Slates had abused his Transit Authority sick leave privi- leges. Interest is to be computed in the manner pre- scribed in the remedy portion of the decision. (b) Make employee Charles Slates whole for legal expenses in the amount of $4500, plus interest, incurred by him in defense of the disciplinary pro- ceedings brought against him by the New York City Transit Authority. Interest is to be computed in the manner prescribed in the amended remedy portion of the decision. . (c) Post at its premises in New York City, New York, copies of the attached notice marked "Ap- pendix." 14 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by Respondent's authorized representatives, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT retaliate against our employees because they file unfair labor practice charges with the National Labor Relations Board, by notifying the New York City Transit Authority or any other employer that they have abused sick leave privi- leges. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make employee Charles Slates whole for the loss of earnings that he incurred as a result of the 30-day suspension that he suffered because we notified the New York City Transit Authority that he had abused his Transit Authority sick leave privileges, plus interest. WE WILL reimburse Charles Slates for the legal expenses he incurred in defense of the New York City Transit Authority charges against him that re- sulted from our report to that agency that Slates had abused his Transit Authority sick leave privi- leges, plus interest. SENTRY ARMORED COURIER CORPO- RATION Peter Fuster, Esq., for the General Counsel. Russell M. Gioiella, Esq. (Litman, Kaufman, Asche & Lupkin), of New York, New York, for the Respond- ent. SECOND SUPPLEMENTAL DECISION AND ORDER JAMES F. MORTON, Administrative Law Judge. On 9 April 1985, the Board issued a Supplemental Decision and Order in which it vacated a portion of the findings made by Administrative Law Judge Leonard M. Wagman as that portion had been prematurely placed before him." The Board therein remanded to me the va- cated aspect of this case because I had heard it when it first arose and, as to which, a determination on its merits had been deferred, pending consideration of the outcome of a proceeding, then in progress and discussed further below.2 On the entire record,3 and after due consideration of the briefs filed by the General Counsel and the Respond- ent, I make the following SUPPLEMENTAL FINDINGS OF FACT I. BACKGROUND The portion of this case that was remanded to me re- lated to the 8(a)(4) and (1) allegation which arose almost a month after the original hearing had closed. At that 1 Reported at 275 NLRB No. 14. 2 Unpublished Board Order adopting JD-393-84 (NY). 3 The parties advised that it is unnecessary to reopen the hearing. In post-remand correspondence, I received the transcript, with related ex- hibits, of the hearing before the New York City Transit Authority Trial Board, discussed further in this second supplemental decision, as Supple- mental Exhibit No. 1. SENTRY ARMORED COURIER CORP time, the General Counsel filed a motion to amend the complaint to allege that Respondent violated Section 8(a)(4) and (1) and to reopen the hearing to take evi dence thereon The motion was granted The hearing re sumed on 6 January 1983 at that testimony was taken on this allegation The underlying contention of the General Counsel was that Respondent, in violation of Section 8(a)(4) and (1), had reported to the New York City Transit Authority (the Authority) that the Charging Party, Slates, had been working part time for Respond ent while he was taking sick leave pay from the Author ity, Slates' full time employer, and that Respondent made that report in retaliation for Slates having filed the ongi nal charge in this case As of early 1983, the Authority had held a hearing based on its administrative investiga tion of a report it received on Slates but had made no determination thereon At the hearing before me, Respondent had denied that it reported Slates to the Authority I found, as set out in my original decision, that Respondent had made that report and that it did so because Slates had filed the original unfair labor practice charge in this case That finding, however, did not end the inquiry in light of the other considerations discussed in my original decision and summarized next Respondent had separately contended that Slates, in any event, was not entitled to any relief because he had been engaged in "immoral and criminal activity by his having collected sick pay from the Authority while working for Respondent Based on the holding of Profes sional Ambulance Service, 232 NLRB 1141, 1150 (1977), I concluded that, if merit were fourd to this separate con tention of Respondent, the 8(a)(4) and (1) allegation would warrant dismissal On the other hand and for the reasons articulated in my original decision , I also con cluded that, if it proved out that Slates were to be found guilty of but having violated work rules of the Authority based on acts that do not constitute criminal fraud, the Board should then provide Slates with the relief sought by the General Counsel, i e, to make Slates whole for all losses, including counsel fees , incurred by reason of Re spondent s having filed with the Authority for discnmi natory reasons the report that gave rise to the Authori ty s proceeding against Slates The Authority has since issued its decision on the basis of the hearing it held on the matter of Slates' receiving sick pay II THE PROCEEDING BEFORE THE AUTHORITY On 19 January 1982, the office of the general inspector for the New York City Transit Authority issued what it termed, a "charge against Slates which alleged that he had (a) requested and was granted sick leave on five dates in 1981 (20 February, 13 March 13 May, 29 July, and 23 September) while he worked for Re spondent and (b) worked for Respondent without having noti feed the Authority of such dual employment 119 On 18 November 1982 a hearing on that charge was held before a hearing referee Slates was represented by counsel, as was the general inspector for the Authority The rules of the Authority applicable to that charge provide that (1) its employees must notify department heads of any outside employment (2) sick leave must be used only when employees are incapacitated by illness, (3) employees who receive sick pay have the burden of establishing that (they were) actually unfit for work on account of illness," and (4) disobedience of any rule, or neglect of duty, will subject an employee to dismissal demotion, suspension or such other penalty as the Au thonty may impose The transcript of the hearing conducted by the An thority reveals that Slates had, in his 17 years as a full time employee of the Authority, progressed from a posi tion of porter to that of trackman/specialist In 1981 he worked the 11 p in to l a in shift Slates had joined Respondent as a part time driver in December 1980 He worked for it during the daytime (noon to about 7 p in ), 3 days a week There was no contention raised in the hearing before the Authority's hearing officer, or any evidence, to show that Slates was driving for Respondent during hours for which he collected sick pay from the Authority The transcript of the hearing held by the Authority indicates that the essential question being considered was whether Slates could satisfactorily explain how, on any or all of the five dates specified, he could have been unable to work for the Authority if he were ill when he had worked earlier for Respondent on those days Slates, in his testimony before the hearing referee, asserted that he reported for work on one of those five dates, but was sent home by his foreman as ill based on a recent injury while on military leave and which was aggravated while driving for Respondent He gave explanations for the other dates too, e g after having completed his work for Respondent on 23 September, he broke a tooth and was treated by his dentist A dental report was placed in evi dence As noted above there was a second count to the Authority's charge against Slates, that he had not filed a report with it that he worked part time for Respondent as required by its rule 4(g) At the hearing before the hearing referee, it appears that counsel for the general in spector endeavored to show that Slates had failed to re spond to a notice in November 1981 by the president of the Authority whereby employees were reminded of their obligation to fill out dual employment forms if they had part time jobs When the evidence disclosed, howev er, that Slates had filed the form several weeks later (in December 1981), counsel for Slates moved for dismissal of the second count The hearing referee reserved ruling On 5 May 1983, the hearing referee issued the follow ing findings and recommendations Statement Charles E Slates, 1705 Purdy Street, Bronx, New York 10462, Trackman/Specialist Pass 830400 Maintenance of Way Department, has been charged with Misconduct and/or Incompetence in 120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that he engaged in work for another employer with out notifying the Authority of such other employ ment, and requested and was granted such leave from the Authority while he worked for the other employer, as is more particularly set forth in Exhib it # 1 of the transcript of the hearing which is at tached hereto and made a part hereof Trackman/Specialist Slates was present at the hearing held on December 2 1982 Respondent ad mitted receipt of the charges preferred against him He denied the charges Trackman/Specialist Slates is 44 years of age and has been in service since April 13, 1964 Findings of Fact The charges, as alleged, were proved by substan tial evidence Respondents defense to the charges rests on dis jointed bits of evidence and contentions, often taken out of context, which are not persuasive Respondents explanations of the rapid changes in his health which enabled him to work for another employer on days when he booked off sick at the Transit Authority, simply are not credible Nor is his failure to comply with dual employment regula tions explained satisfactorily There are submitted with this Recommendation, the transcript of the Hearings, the Exhibits and the memoranda submitted by the attorneys for each side Recommendation Having found charges sustained I consulted this employees disciplinary record, a copy of which is attached hereto and made a part hereof Employed since April 13, 1964, first as a Railroad Porter, than as a Car Cleaner (June 6, 1966) Trackman (since March 30 1967) and presently as a Trackman Spe cialist since June 22 1975 Respondent has had 14 Cautions, 1 Discplinary Hearing and no prior Trial Board Hearings We have considered his service to the Authority as evidenced by his advancment in the system, as well as his military duty which is commendable ACCORDINGLY it is RECOMMENDED that the charges be sustained and that Respondent be suspended for thirty (30) working days as a final warning that future charges of similar nature will result, if sustained, in dismissal from the service The above findings and recommendations were of firmed by the New York City Civil Service Commission on 3 January 1984 II ANALYSIS Respondent contends (1) that the General Counsel has not met the burden of showing that Slates had not fraud ulently cheated the Authority out of public funds, a criminal activity and (2) that the record before the Au thority demonstrates that Slates had been involved in a fraudulent and criminal activity within the holding in Professional Ambulance, supra, and that Slates ` should not be rewarded by the Board The General Counsel asserts that there is no factual basis on which Slates can be found to have committed a criminal act The General Counsel further asserts that Respondents report to the Authority was not privileged, and that the analogous holding of the Supreme Court of the United States in Sure Tan Inc v NLRB 467 U S 883 (1984), is controlling in this case All of the essential facts needed to resolve the issue are in the record before me Respondent's analysis of the record, offered in support of its contentions, points up that, on several occasions in 1981, Slates had worked for Respondent during the daytime, booked of that same night on sick leave from his job with the Authority and then worked the following day for Respondent Re spondent would have me find, from that analysis, that Slates had been guilty, on those occasions of defrauding the Authority and in effect of having thereby stolen money from it The difficulty I have with the approach urged by Respondent is not that it makes no references to the evidence Slates offered to the hearing referee to justify his use of sick leave on the five specified occa sions in 1984 but rather that it asks me to make a judg ment that the Authority itself did not make and, perhaps, could not make on the record made before its hearing of ficer I cannot now sit as a juror and find Slates' explana tions before the hearing referee were so contrived that he possessed the essential mens rea in booking off sick and that there is no reasonable doubt If anything, the absence of any analysis by the hearing officer of the evi dentiary points offered by Slates could well raise maten al doubts But that is not before me as it is not within my province to decide that matter Cf Bill Johnson s Restau rants v NLRB, 461 U S 731 (1983) The hearing officer concluded that, on several occasions in 1981, Slates re ceived sick pay but failed at the hearing to persuade the Hearing Officer that his reasons therefor warranted it The Authority did not conclude, nor do I, that Slates was guilty of criminal fraud in booking off' sick on those occasions An entirely different result may have been reached by the Authority if Slates had worked for Respondent during the very same hours that he was booking off' sick from the Authority That simply did not prove to be the case and for that matter not even the issue considered by the Authority In short the Authority s holding ultimately is that Slates did not comply with its rules and regulations In light of that holding and under the guidelines I had out lined in my original decision, I must now conclude that Respondents discriminatory notification to the Authority that Slates worked for it and yet took sick leave from the Authority was violative of Section 8(a)(4) and (1) of the Act In Sure Tan, supra the US Supreme Court considered an analogous issue and also took pains to dis cuss its holding in Bill Johnson s Restaurants, supra, which was cited in my original decision in this case As in Sure Tan the present Respondent had notified the Au thority not to redress any legal wrong that Slates may allegedly have done to Respondent but solely to retali ate against him because he had filed the original unfair SENTRY ARMORED COURIER CORP labor practice charge in this case The Court noted in Sure Tan that, while the reporting of a violation of the criminal laws ordinarily should be encouraged and not penalized, it held that, where there is no conflict shown between the Board s unfair labor practice finding and any asserted state interest there are no federalism con cerns to be weighed SUPPLEMFNTARY CONCLUSIONS OF LAW Respondent violated Section 8(a)(4) and (1) of the Act by having notified the New York City Transit Authority that Charles Slates had worked for it while collecting sick leave pay from the Authority and by having so noti fled the Authority because Slates had filed the original unfair labor practice charge in the instant case and where Slates had not, vis a vis the Authority, committed an) criminal act REMEDY 121 Because Slates suffered suspension from employment from his full time position with the Authority and had retained counsel to represent him and because these costs are directly attributed to Respondents unlawful conduct found above, Respondent should make Slates whole for all such losses with interest Because the losses so suffered had been calculated by Judge Wagman before his order thereon had been vacat ed, the Board should issue a notice to Respondent to show cause why the backpay he found due Slates by reason of Respondents having notified the Authority should not be adopted and made part of its Second Sup plemental Order [Recommended Order omitted from publication ]