Uarco, Inc.

96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Uarco, Incorporated and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. Cases 9-CA- 15126, 9-CA-15218, and 9-CA-15277 DECISION AND ORDER May 23, 1989 BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On December 19, 1988, Administrative Law Judge Elbert D. Gadsden issued the attached sup- plemental decision. The Respondent filed excep- tions and a supporting brief. The General Counsel and Charging Party filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings, 2 and conclusions3 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , UARCO, Incorporated, Radcliff, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i We agree with the judge's ruling that the discriminatee, Martha Langdon, would have become a full-time employee on April 26, 1982, in the absence of her unlawful discharge in 1980 In April 1983 the Re- spondent called Langdon and offered her a position with UARCO as a temporary on-call employee working I day out of 30 There is no dispute that in doing so the Respondent was offering Langdon a position that was significantly different from the position to which she was entitled to be reinstated Thus, the Respondent failed to make her a valid offer of reinstatement See Carter Lumber, 227 NLRB 730 (1977) (employer's re- fusal to pay to the discriminatee upon his return to work the higher wage to which he was entitled constitutes a failure to make a valid offer of reinstatement) See also IMCO, 277 NLRB 962 (1985) (employer's offer of reinstatement at an amount less than that to which the discriminatee was entitled did not toll the employer's backpay liability) We view the remainder of the judge's findings about the effect of the Respondent's 1983 offer as unnecessary to the decision Further, we specifically do not rely on any implication from the judge's decision that offers of reinstate- ment should be made by registered mail to be considered bona fide 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 The judge erroneously stated that Barbara Schuler, the plant manag- er's secretary, did not testify at the hearing We have reviewed Schuler's testimony and find that the judge's error in overlooking her testimony does not affect the outcome of the case We further note that the judge occasionally referred to the Respondent's deficient offer of reinstatement as having occurred in April 1982 instead of April 1983, as he elsewhere found These errors also do not affect our disposition of the case Davind L Ness, Esq., for the General Counsel William P. Treacy, Esq, of Lake Forrest, Illinois, for the Respondent.. Irwin H. Cutler Jr, Esq, of Louisville, Kentucky, for the Charging Party SUPPLEMENTAL DECISION STATEMENT OF THE CASE ELBERT D GADSDEN, Administrative Law Judge. Pursuant to a Decision and Order of the National Labor Relations Board in Cases 9-CA-15126, 9-CA-15218, 9- CA-15277, directing Respondent, Uarco, Incorporated, Radcliff, Kentucky, its officers, agents, successors, and assigns, to make Martha Langdon whole for loss of earn- ings and other benefits resulting from Respondent's unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, and a contro- versy having arose over the duration of the backpay period and the amount of backpay due and owing to Martha Langdon under the Board's Order (286 NLRB 55), and Respondent having stipulated to proceed to a backpay hearing, the Regional Director for Region 9 issued this backpay specification and notice of hearing on May 25, 1988, alleging the amount of backpay due under the Board's Order With respect to the amount of backpay due Martha Langdon as alleged in the backpay specification, the Re- spondent filed an answer on June 2, 1988, admitting that Langdon's backpay period commenced on April 10, 1980 (date of her discharge), but denying that it continued after April 25 or 26, 1983, or both and affirmatively al- leging that on or about April 25 or 26, 1983, both Re- spondent made a bona fide offer of reinstatement to Langdon Respondent also admits in paragraph 8(c) that Lang- don was employed as an on-call employee at the time of her layoff on April 10, 1980, but it denies that her gross backpay should be calculated in accordance with the av- erage gross earnings of three other on-call employees, because offers of full-time employment are not necessari- ly automatic. Respondent further denies that it is liable to Langdon for backpay after April 6, 1982, because she was at all times since that date under an obligation to seek employ- ment reasonably consistent with her abilities and she failed to do so, and, consequently, she is not entitled to travel expenses for any period The hearing in the above matter was held before me at Elizabethtown, Kentucky, on August 31, 1988 Briefs have been received from counsel for the General Coun- sel, counsel for the Charging Party, and counsel for the Respondent, respectively, which have been carefully considered On the entire record in this case and from my observa- tion of the demeanor of the witnesses, I hereby make the following 294 NLRB No. 8 UARCO, INC. FINDINGS OF FACT 1. BACKPAY SPECIFICATION The undisputed and credited evidence of record estab- lished that on September 30, 1987, the National Labor Relations Board (the Board) issued its Decision and Order in 286 NLRB 55 (1987), directing Respondent, UARCO, Incorporated, to offer full reinstatement to Martha Langdon, and to make her whole for any loss of earnings and other benefits, with interest, suffered as a result of Respondent's unfair labor practices, in violation of Section 8(a)(1) and (3) of the Act. A controversy having risen between the parties concerning the amount of backpay due under the terms of the Board's Order, the Regional Solicitor of the Board for Region 9, issued this backpay specification alleging that backpay due under the terms of the Board's Order of September 30, 1987, is as following. 1. The calendar quarter gross backpay due Martha Langdon was determined by the average earnings in each calendar quarter of representative employees who worked in jobs similar to Langdon's during the backpay period. 2. Langdon's backpay period commences April 10, 1980, the date of her discharge, and will end when she receives a bona fide offer to reinstatement. However, for purposes of this specification, backpay has been calculat- ed through March 31, 1988. 3. At the time of her layoff (discharge), Langdon was employed as an on-call employee. From the date of her layoff (April 10, 1980) and continuing through calendar quarter 1982-1, her gross backpay is calculated accord- ing to the average gross earnings of the three on-call em- ployees with the highest gross earnings in each of those quarters. 4. According to Respondent's practice, when a full- time job becomes available, it was offered to the most senior on-call employee. The Charging Party alleges that under this procedure, Langdon would have become a full-time employee as of April 26, 1982. 5 Respondent admits Langdon 's interim earnings are as follows, and it is alleged that her gross backpay, ex- ' Pursuant to Respondent's procedure the most senior on-call employee who has worked in excess of 1000 hours in a calendar year is offered full- time employment when such job opening becomes available Respond- ent's records show that A Helm, an on-call employee hired after Lang- don's layoff, was converted to full-time employee status on April 26, 1982 Accordingly, Langdon's gross pay is based on Helm's quarterly earnings for calendar quarters 1982-2 through 1983-2 2 Langdon's W-2 form covering her employment with St Mary & Elizabeth Hospital shows gross earnings of $5,520 48 in calendar year 1982 Langdon 's interim earnings in each calendar quarter of 1982 through 1987 are calculated as one-quarter of her gross earnings as shown on her W-2 forms for each of those years 3 Langdon's travel expenses are computed at a mileage rate or cents in 1982 4 Langdon's travel expenses are computed at a mileage rate of 20 cents in calendar quarters 1983-1 and 1983-2 1 It is the Region's position that Respondent did not make Langdon a valid offer of reinstatement on April 25 or 26, 1983, or both According- ly, it is alleged that Respondent's backpay liability continue to accrue until a valid offer is made by Respondent to Langdon 97 penses, and net backpay by calendar quarters are as fol- lows: Yr. /Qtr. Gross Pay Interim Earnings Expenses Net Backpay 1982-2 1 $2,780 z $1,380 3$65000 $2,05000 1982-3 3,332 1,380 65000 1,30200 1982-4 3,504 1,380 65000 1,474 00 1983-1 1,922 1,898 465000 67400 1983-2 51,592 1,898 650.00 34400 1983-3 6 2,921 1,898 7 666 25 1,68925 1983-4 8 3,193 1,898 666 25 1,961.25 1984-1 4,050 2,263 666 25 2,453 25 1984-2 4,322 2,263 666 25 2,725 25 1984-3 4,208 2,263 666 25 2,611.25 1984-4 4,473 2,263 666 25 2,87625 1985-1 3,988 2,385 666 25 2,269 25 1985-2 4,498 2,385 666 25 2,779 25 1985-3 4,654 2,385 666 25 2,935 25 1985-4 5,316 2,385 666 25 3,597 25 1986-1 4,038 2,612 666 25 2,09225 1986-2 4,673 2,612 666 25 2,727 25 1986-3 4,389 2,612 666 25 2,443 25 1986-4 4,768 2,612 666 25 2,882 25 1987-1 3,843 3,258 666 25 1,251 25 1987-2 4,378 3,258 666 25 1,786 2S 1987-3 4,397 9 3,258 676 25 1,80525 1987-4 5,109 3,258 682 50 2,534 50 1988-1 104,284 3,749 682 50 1,217 50 Totals $99,946 $56,497.25 6 Summarizing the facts and calculations specified above, the obligation of Respondent to make whole em- ployee Martha Langdon under the Board's Order will be discharged by payment to her in the amount of $56,497.25, plus interest on the entire amount accrued to the date of payment, minus the tax withholdings required by Federal and state laws. On April 6, 1988, Respondent and the General Coun- sel entered into the following stipulation (G.C Exh. 1- c). Respondent has not been able to reach agreement with the Board on the amount of backpay due Martha Langdon pursuant to the Board's September 6 A Helm quit her employment on or about September 4, 1983 Lang- don's gross pay in calendar quarter 1983-3 is computed by adding Helm's gross earnings to September 4, 1983, plus the average gross earnings for the remainder of this quarter of four full-time employees G Dixson, C Langley, G Ratliff, and M Stark Langdon's travel expenses are computed at a mileage rate of 20 5 cents for calendar quarter 1983-3 through July 1987 of calendar quarter 1987-3 8 For this quarter and the following ones through 1988-1, Langdon's gross pay is calculated as the average gross earnings in each of said quar- ters of full-time employees G Dixson, C Langley, G Ratliff, and M Stark 9 Langdon 's travel expenses are calculated at a mileage rate of 20 5 cents in July 1987 and 21 cents from August 1987 to the end of the back- pay period 16 Langdon's interim earnings in this quarter are based on biweekly gross earnings of $624 80 98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30, 1987 Order Therefore, Respondent reserved the right to a hearing before an Administrative Law Judge to determine the amount of backpay due Langdon Respondent also reserved the right to have the decision of the Administrative Law Judge reviewed by the board, and to seek review of the Board's determination by a U S Court of Appeals In such event, it is understood that the only issue before the Board or Court will be the amount of backpay due Langdon, since all other issues herein have been waived General Counsel's Motion It is alleged in paragraph 8(b) of the backpay specifica- tion that it has been Respondent's practice to offer full- time employment to on-call employees when a full-time job becomes available, and that Langdon would have become a full-time employee as of April 26, 1982. In paragraph 8(b) of Respondent's answer, Respondent admits the above allegation but denies that offers of full- time employment are necessarily automatic. At the beginning of the hearing, counsel for the Gen- eral Counsel moved to strike that portion of the above answer (par 8(b)) which denies that Respondent's "offers of full-time employment are not necessarily automatic," because under Board Rules, a mere denial is not suffi- cient, but for matters within Respondent's knowledge, Respondent must set forth its basis for gross backpay for- mula Because Respondent failed to set forth either, the General Counsel argues that Respondent's alleged nonau- tomatic qualifications on its eligibility for full-time em- ployment practice should be stricken In support of his motion, the General Counsel cites Section 102 54(b) and (c) of the Board's Rules and Regulations, as well as Heck's Inc, 282 NLRB 263 (1986), and United Hydraulic Services, 282 NLRB 645 (1987) Section 102 54(b) and (c) provide in pertinent part as follows. (b) . When a respondent intends to deny only a part of an allegation, the respondent shall specify so much of it as is true and shall deny only the remain- der As to all matters within the knowledge of the respondent, including but not limited to the various factors entering into the computation of gross back- pay, a general denial shall not suffice As to such matter, if the respondent disputes either the accura- cy of the figures in the specification or the premises on which they are based The answer shall specifi- cally state the basis for such disagreement, setting forth in detail the respondent's position as to the ap- plicable premises and furnishing the appropriate supporting figures (c) If the respondent files an answer to the specification but fails to deny any allegation of the specification in the manner required by paragraph (b) of this section, and the failure so to deny is not adequately explained, such allegation shall be deemed to be admitted to be true, and may be so found by the Board without the taking of evidence supporting such allegation, and the respondent shall be precluded from introducing any evidence contro- verting the allegation The language of Section 102.54(b) and (c) is clear and unqualified, and I find that paragraph 8(b) of Respond- ent's answer failed to comply with the explicit language and intent of Section 102 54 (b) and (c) of the Rules. I further find that the Heck's, Inc, and United Hydraulics Services, cases cited by the General Counsel supports his argument. However, counsel for Respondent argues that since Respondent admits its general practice was to employ the most senior on-call employee for full-time jobs that became available, it is now denying that the practice was not automatic Not being automatic, Respondent con- tends there was no way to plead figures or compute backpay in such an uncertain situation In response to the latter argument the General Counsel contends that if Langdon had not been hired full-time automatically, Re- spondent was nevertheless obligated to comply with the above-cited Board's Rules and Regulations, by setting forth a formula for computing whatever Langdon's back- pay should have been Its failure to do so, the General Counsel contends, was a failure to comply with the Reg- ulations, and the mere denial answer (par 8(b)) should be dismissed. The General Counsel is correct because the language of Section 102.54 (c) is clear that, any answer which fails to deny an allegation of the specification as prescribed in 102 54(b), by specifically stating the basis for disagreeing with the accuracy of the figures, or the premises on which they are based, shall also set forth in detail, the position as to the applicable premises and furnishing the appropriate supporting figures The respondent's answer neglected to do this. Consequently, Respondent's answer (8(b)) states "except that UARCO denies that offers of full-time em- ployment are not necessarily automatic," and should be, and it hereby is, dismissed. Issues The issues presented for determination are 1 Whether Langdon would have become a full-time employee as of April 26, 1982 2 Whether Respondent made a bona fide offer of rein- statement to Martha Langdon on April 26, 1982, thereby tolling Respondent's backpay liability as of that date. 3. Whether Langdon is entitled to travel expenses A Whether and When Langdon Would Have Become a Full-Time Employee Martha Langdon testified that she was interviewed for an appointment by Ken Gardner, general manager for UARCO, who showed her through the plant and ex- plained that on-call employment meant she would be called whenever there was work When a work slow- down occurred, she would be laid off, but would be re- called when work picked up Her initial employment conversation with Gardner continued as follows- So we were talking and I asked him, "Do you have full-time empoyment [sic] here9"and he said, "Oh UARCO, INC yes, we have full-time employees " I said : "Do you hire within the plant? The employees that are there now part-time or on-call, would they have the oportunity to work full-time here at UARCOT" He said, "We post the jobs on the board and whenever you see a jobn [sic] that you like and if you think that you're qualified for it, you can apply for it." I said, "How do you hire these people? " He said, "if you are qualified for the job , you would be hired full-time for that position " He also said, "We would want to go by seniorrty [sic] first, but if the qualifications were there , we would have to go with the one who was more qualified " I said that I un- derstood that In its answer to the backpay specification and at the hearing, Respondent admitted that it is its policy to offer full-time employment to its most senior on-call employ- ees when jobs become available, but stated that such an offer is not automatic. Such an offer will be made if the on-call employee's qualifications, performance, and time and attendance are satisfactory to the supervisor of the particular department in question. Additionally, with re- spect to Respondent's policy or preferences for convert- ing on-call employees to full-time employees, the Gener- al Counsel cites Respondent's promotion policy which provides in part A. Qualifying factors include previous job prefer- ences, absence and tardiness reccord, education, necessary physical skills, and mechanical skills. When all of these factors have been considered, an individual may be considered qualified for a particu- lar position B Employees from within the department, in which the vacancy exists, will be given first prefer- ence based on department seniority All persons in entry level job categories (grade 7) will not be con- sidered as being in a particular department If the department seniority for women employees is equal, the lower employee number will receive preference. C Employees from other departments will be considered based on company seniority. If the serv- ice date for two employees is equal, the lower em- ployee number will receive preference [G.C. Exh. 1, p 4] Conclusion 99 It is therefore clear from the unconverted evidence, and I find, that Respondent not only had a policy but also a practice of converting temporary on-call employ- ees to full-time employees whenever a job became avail- able and the on-call employee satisfied the qualifications for the position . The Respondent not only partially ad- mitted this result but did not present any evidence to the contrary Consequently , since the evidence does not show that Langdon was discharged because she was un- qualified to perform the same job full time, and Respond- ent did not present any evidence that she was not quali- fied, I further find that it may be reasonably inferred from the evidence that Langdon , being the most senior on-call employee , would have become a full-time em- ployee on April 26, 1982 This position is supported by the Board's decision in Heck's Inc, 282 NLRB 263 (1986), and United Hydraulic Services, 282 NLRB 645 (1987), where the Board held that replacement employ- ee's gross pay was a proper basis for computing the gross backpay of the discharged employee for reinstate- ment. B Did Respondent Make a Bona Fide Offer of Reinstatement to Langdon on April 25 or 26, 1983 Administrative notice is taken by me of the Board's Decision and Order in UARCO, Inc, 286 NLRB at 60 in which the Board ordered Respondent (UARCO) to offer Martha Langdon full reinstatement to her job, and make her whole for any loss of earnings and other benefits suf- fered as a result of the discrimination against her, with interest computed as described in New Horizons for the Retarded, 283 NLRB 1173 (1987) Respondent admits liability for backpay to Langdon from April 10, 1980, until April 25 or 26, 1983 or both, but contends its liability ends on either or both of the latter dates when it offered her reinstatement to her job The parties stipulated that Martha Langdon was hired by Respondent April 23, 1979, and the record shows that she worked until she was discriminately discharged by Respondent on April 10, 1980 After a hearing, Respond- ent was ordered to reinstate Langdon to her previous job with backpay plus interest Testimony Concerning Respondent's Alleged Offer to Reinstatement Evidence that Respondent 's practice was in compli- ance with its promotion policies and what former Gener- al Foreman Ken Gardner told Langdon during her inter- view for employment (G C Exh 4) shows that. 1 Martha Langdon started working for Respondent on April 23, 1979, as a temporary on-call employee, and she worked in an "auxiliary" job classification until her layoff April 10, 1980. 2. Temporary on-call employee A Helm started work- ing for Respondent in the auxiliary job classification April 12, 1981, 2 years after Langdon was so employed Nevertheless, Helm was converted from temporary on- call employee to full-time employee 1 year later, April 26, 1982 The testimony of Martha Langdon and Respondent's former general supervisor of indurstrial relations , Ronald Barger, in this regard , is highly conflicting Langdon tes- tified that Barger telephoned her at home on Tuesday, April 26, 1983 , identified himself, and asked her "Would you like to come back as an employee of UARCOT" Barger acknowledged he did speak with Langdon by telephone on April 26, but said in response to advice from Respondent's vice president, James Brown, he first called Langdon on April 25 , 1983, and told her he called about her former position with UARCO as a temporary on-call employee, that he had work available, that he would like to recall her to that position , and he offered it to her. Barger said after he assured Langdon the job 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would be her former position as "temporary on-call," Langdon explained that she was working part-time in Louisville and she would like to discuss his offer with her husband He said he thought that was a proper re- quest and that Langdon was to call him the next day, April 26 However, Langdon denied she spoke with Barger by telephone on April 25, but only on April 26 Instead, she maintained that to the best of her recollection, she only spoke with Barger on April 26, at which time she said he offered her her former position as a temporary on-call, and she said "that would be fine " She said she did not ask Barger what was the pay because she just wanted a job closer to home In this regard, Langdon further testified as follows Q Where did you live at the time you last worked for UARCO? A. In Radcliff, Ky Q When you worked for UARCO, how did you get to and from work? A I drove my own car. Q From where you lived in Radcliff to UARCO plant, how many miles was that? A Round trip is 90 miles. Thereafter, the parties stipulated that the difference in mileage between Langdon's home and her present em- ployment versus her home and UARCO's location is 50 miles Langdon further denied that she told 'Barger she would like to discuss the offer with her husband. Rather, she said she asked him when would he want her to report for work, and he said, "Well, this Friday " Thus, she said she told him she was working weekdays at St. Mary & Elizabeth Hospital in Louisville and she would like to give them 2 weeks notice Barger said, "No, I can't allow that You need to come in this Friday." After reminding Barger that he was a part of management and he would like such a notice from his employee, Langdon said Barger "Hee-Hawed" around there a little bit and then finally said "Well, yes, okay. You can go ahead and give two weeks notice But after the two weeks is up, we expect you to be here on a Friday night " (12.00), and she said, "okay." According to Barger, he offered Langdon the tempo- rary on-call position during his conversation with her on Monday, April 25. At that time, Langdon asked him when did he want her to report to work and did UARCO have work available because she wanted to dis- cuss the offer with her husband, who was unemployed but doing part-time work Barger said, after he ultimate- ly agreed with Langdon to give the hospital 2 weeks' notice and to discuss the offer with her husband, Lang- don was to call him back the next day. Barger's testimo- ny is not clear as to how he understood Langdon was to call him back the next day. His testimony is rather vague as to whether Langdon told him she would call him or whether he merely assumed she would call him. Lang- don denied she said she would call him the next day be- cause there was no need to call him before the expiration of the 2 weeks' notice to the hospital Nevertheless, Barger testified that Langdon called him the next day, Tuesday, April 26 He said it was during this second conversation when Langdon told him she had a part-time job in Louisville. He said she asked him how much worktime was involved, and he told her the same as before when she was a temporary on-call worker. At the end of their conversation he said he thought she was reporting to work that afternoon (April 26). He said she asked what time and he told her 3 30, "so we can get the paperwork cleared up " Langdon consistently denied she told Barger she would call him back the next day, or that she in fact did call him and engaged in a second conversation the next day. Instead, Langdon testified that during her telephone conversation with Barger on April 26, she asked him how many days would she be working and he respond- ed "Well it would be like what you worked before." She then asked him how many days a week they were talking about Barger said "it could be one day out of 30, if that." Langdon said "One day out of thirty? I'm sorry, I cannot do that I have a steady job at St Mary's" Langdon said she told him even though it was only 2 days a week, she at least knew she had an income coming in, which was her main support since she was supporting her family because her husband had lost his job. She said she told Barger she was sorry but she could not accept that and Barger said, "That's fine. Thank you," and informed her he would be sending her a letter that day. He also told her he would appreciate it if she would write him a letter stating that she declined his offer, and that his letter will also say the same thing. "That I offered you a job and you turned it down." Langdon said she said "That's fine. Thank you " Barger further testified he told Langdon the on-call people were working about 3 days a week every 2 weeks, but Langdon said she could not recall him telling her that Although Barger testified Langdon told him "You know f have to come in if I want to get a settle- ment through the Labor Board," and that she had talked with her lawyers last night, or some other time Langdon denied. she made any such statements to Barger. She also denied she told him she had no choice or recourse but to come in, and asked him should she come in at 4 o'clock, should she come in the next week, or should she report to the lobby area She said she only told Barger she would report for work after the 2 weeks' notice to her current employer Langdon also denied she asked Barger could she start Tuesday, and work Wednesday and Thursday, and take off Friday because Barger had al- ready informed her the job started that Friday Barger further testified that in response to instructions from Vice President Brown to have one witness to his offer for reinstatement to Langdon, he had Barbara Schuler, secretary to the plant manager, to listen in and take notes of his first conversation about the offer with Langdon on April 25 He acknowledged he did not tell Langdon that Schuler was on the line and Langdon did not know she was on the line. It is particularly noted that Barger did not testify that he had secretary Schuler to listen in on a conversation with Langdon on April 26 It is also noted that Barbara Schuler did not testify UARCO, INC 101 Barger said when he did not hear from Langdon after his second conversation with her on April 26, he again followed the instructions of Vice President Brown and prepared and mailed to Langdon the following registered letter dated April 29, 1983 Per our telecon on April 26, 1983, I offered you the opportunity to return to the UARCO, Inc, Radcliff Plant as a temporary-on-call employee This job offer would have placed you in the same hourly position you held with our company Due to your current employment at St Mary's & Elizabeth Hospital in Louisville, Ky, you declined my offer to return to your prior position with our company Conclusions In determining whether Respondent made a bona fide offer to reinstatement to Langdon on April 25 or 26, 1983, it is first noted that the testimonial versions of the two witnesses is highly conflicting. Therefore, a resolu- tion of the credibility of the testimony of Langdon and Barger is based on the observed demeanor of the wit- nesses, efforts or failure of the witnesses to produce wit- nesses who were in a position to deny or to corroborate their respective versions, the reasonableness of the cir- cumstances surrounding the conduct of each witness, as well as how practical and logical their actions were under the circumstances. The testimony of Langdon is not disputed that in April 1982, Respondent's supervisor, Ronald Barger, telephoned Martha Langdon, identified himself, and asked her if she wanted to return to work at UARCO in her same position, as a temporary on-call employee, and Langdon said "Yes " The conflict arises, however, (1) as to what date Langdon was to report to work, (2) wheth- er the work would involve the same number of hours (at least 2 days per week), and (3) whether Langdon was to call Barger the next day after she had discussed the offer with her husband, and give Barger a definite answer whether and when she would return to work. The evidence is without conflict that Barger asked Langdon to report to work on Friday, April 29, 1983 Barger testified that Langdon told him she- would like to talk with her husband about the offer and call him the next day, but Langdon denied she told Barger she would like to talk with her husband and call him the next day However, the evidence is not in conflict that Langdon requested 2 weeks to give notice to her current employer (the hospital). Initially, Barger was opposed to a 2-week period for notice but after some discussions during their conversation, he agreed. Barger admitted he agreed Langdon should have 2 weeks to give notice to her cur- rent employer, but later testified he assumed or under- stood Langdon was going to report to work on Friday Barger's testimony in this regard is vague, speculative, and inconsistent, and I find nothing probative in the record to support such an assumption or understanding on his part Moreover, I received a distinct impression from Barger's demeanor and his testimony that he was not telling the whole truth in this regard Meanwhile, Langdon's testimony denying she told Barger she would like to talk with her husband about the offer and call him the next day was unequivocal, consistent, and emphatic I was persuaded by her demeanor and the circumstantial evidence of record that she was telling the truth and I credit her testimony and discredit Barger's in this regard The parties in this proceeding stipulated that the dif- ference in miles between Langdon's home and her present employment (the hospital), and her home and UARCO, is 50 miles Langdon testified she wanted to work closer to her home, and it may be further inferred from the mileage differential that not only Langdon, but perhaps any person would prefer not to have to drive 50 additional miles to and from work. This being so, I am persuaded by Langdon's testimony that she did consider distance from her home to work when she told Barger she would return to work at UARCO, pending 2 weeks' notice to her employer (the hospital). Regarding how many hours work Barger's job offer would involve, Barger first told Langdon it would be the same job she previously performed for UARCO. Such a statement would convey to any reasonable mind that the job would include at least the same, if not more, but cer- tainly no less, hours' work than the number of days per week Langdon previously performed for UARCO Langdon had no reason to expect less hours' work when Respondent was ordered by the Board to offer her rein- statement to her former position, or an equivalent one. Barger thereafter testified that he told Langdon her work hours would be less than 2 days per week, in fact 1 out of 30 days, and that she told him she would not accept less hours than she previously worked because she had to support her family. The latter statement by Barger is a change from his initial statement, telling Langdon her job would be the same as before Under these circumstances, Barger's later offer of 1 day out of 30 was a rescission of his initial offer This change in lan- guage from his initial offer that she would have the same job cannot be viewed as constituting a bona fide offer, or an offer made in compliance with the Board's Order Additionally, Langdon's refusal to accept Barger's offer of less than 2 days per week would certainly not constitute a rejection of a bona fide offer of reinstate- ment to her former or an equivalent position, as Re- spondent was ordered by the Board to do. The record shows Langdon worked considerably more than 2 days per week when she worked for Respondent, and the record shows that on-call employees working during Oc- tober 1982 through June 1983 worked hours greatly ex- ceeding 2 days a week and certainly not as few as 1 day out of 30 days. Consequently, based on the demeanor of Barger, his inconsistent statements, and his swift April 29, 1983 letter to Langdon, accusing her of refusing his offer of reinstatement, I discredit Barger's testimony and do not find that he made a bona fide offer of reinstate- ment to Langdon on April 25 or 26, 1983 In fact, I find that Barger's offer of less than 2 days' work a week, or 1 day out of 30 days, was not a bona fide and valid offer of reinstatement to Langdon Rain- bow Coaches, 280 NLRB 166 (1986); Marlene Industries, 234 NLRB 285 (1978), Glass Guard Industries, 227 NLRB 1140 (1977). 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Moreover, Barger's immediate response to Langdon's decline to accept 1 day's work out of 30 days was his announcement that he would send her a letter reciting her refusal to accept his offer of employment This in- stant reaction by Barger demonstrated how eager he was to end Respondent's legal responsibility to reinstate Langdon His offer of less hours' work than Langdon had previously performed, and his precipitant letter con- cluding she had refused reinstatement is clear evidence of Respondent's lack of good faith in complying with the Board's Order. Also, the difference in the mode of communication se- lected by Barger to transmit his job offer to Langdon, and the mode by which he transmitted his conclusion that she refused his offer, is particularly noted Specifi- cally, it is interesting that Barger, in following the advice of legal counsel to offer Langdon reinstatement in the presence of a witness, elected to do so by telephone with the secretary of the general manager eavesdropping on the conversation I am persuaded that there was only one telephone conversation, and he did not have her testify to corroborate his testimony Moreover, I do not con- ceive the latter method of communication as credible as a more probative certified letter, by which method Barger elected to make a record of Langdon's refusal to accept his job offer of less hours than Langdon previous- ly worked at UARCO. If Respondent was making a bona fide effort to comply with the Board's Order of reinstatement, it would appear that Barger would have elected, or the vice president and eminent legal counsel of Respondent would have advised, that the offer of reinstatement be transmitted to Langdon by registered mail Certainly, that is the less confusing and more probative method for a business concern to prove compliance with a Board's Order. Instead, Respondent only elected to use a regis- tered letter to try to prove Langdon refused an invalid offer of reinstatement However, I am not persuaded by Respondent's inept or contrived mode of communication in trying to comply, or to make it appear it was comply- ing, with the Board's Order to reinstate Langdon. Consequently, I find that Respondent not only failed to offer Langdon temporary on-call employment on April 25 or 26, 1983, but it also neglected to offer her full-time employment on April 26, 1982, in a job vacancy as senior on-call employee. At that time, Respondent, contrary to its policy and practice of employing the most senior temporary on-call employee for full-time work, employed A Helm in the full-time position, even though Langdon had more seniority than Helm Under these cir- cumstances, I further find that Helm and other full-time employees, Dixson, Langley, Ratliff, and Stark's hours of work and earnings after April 26, 1982, constituted a proper basis on which to compute full-time backpay owing to Langdon, as the backpay specification has es- tablished. Heck's Inc, United Hydraulic Services, supra. Langdon's Travel Expenses Respondent denies in its answer that Langdon should be entitled to travel expenses. However, as previously found, Respondent admitted by stipulation at the hearing that Langdon has to travel 50 additional miles to her current employment than she would have had to travel to work at UARCO Respondent also admitted that the 50 mile computation set forth in the backpay specifica- tion is accurate, as alleged. The Board has held that a discriminatee is entitled to have transportation expenses incurred in obtaining or re- taining interim employment deducted from interim earn- ings, when such expenses would not have been incurred but for the discrimination of the employer against the discriminatee Aircraft & Helicopter Leasing and Sales, 227 NLRB 644 (1976); Rikal West, Inc, 274 NLRB 1136, 1139 (1985) Since Langdon's expenses for traveling 50 additional miles to work at the hospital were incurred as a result of Respondent's discrimination against her, such expenses are properly deductible from her interim earnings at her current employer Aircraft & Helicopter, Rikal West, Inc, supra Esterline Electronics Corp, 290 NLRB 834 (1988), and Harrah's Club, 158 NLRB 758 (1966), cited by Respond- ent, are not applicable to the facts in the instant case. Based on the foregoing credited evidence of record, I find that Respondent failed, as it alleged, to establish any errors in the computations of the backpay specification, or any errors in the premises on which they are based Consequently, I further find Respondent liable for the amount of backpay set forth in the backpay specifica- tion I I ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the Respondent, UARCO, Incor- porated, Radcliff, Kentucky, their officers, agents, suc- cessors, and assigns, shall make Martha Langdon whole for any wages or benefits loss, by paying to her personal- ly the amount of $56,497 25 plus interest on the entire amount accrued to the date of payment, minus the tax withholdings required by Federal and state laws " If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses