Atlantic Veal & Lamb Inc

National Labor Relations Board - Board Decisions

Jun 27, 2012

358 N.L.R.B. 616 (N.L.R.B. 2012)

616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 74
Atlantic Veal & Lamb, Inc. and Knitgoods Workers’
Union, Local 155, Union of Needletrades, Indus-
trial & Textile Employees, AFL–CIO. Cases 29–
CA–024484, 29–CA–024619, and 29–CA–024669
June 27, 2012
SECOND SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND GRIFFIN
On July 16, 2010, Administrative Law Judge Raymond
P. Green issued the attached second supplemental deci-
sion. The Acting General Counsel filed exceptions and a
supporting brief. The Respondent filed cross-exceptions
with a supporting brief and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the second supplemental de-
cision and the record in light of the exceptions and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions only to the extent consistent with this
Second Supplemental Decision and Order.
Introduction
On June 30, 2004, the Board issued the underlying de-
cision in this case, finding, in relevant part, that Re-
spondent Atlantic Veal & Lamb, Inc. had unlawfully
discharged employee Jeorge Ogando. As a result of this
unfair labor practice finding, the Board ordered the Re-
spondent to reinstate Ogando to his former position or, if
that position no longer existed, to a substantially equiva-
lent position. The Board also ordered the Respondent to
make Ogando whole for any loss of earnings and other
benefits suffered as a result of the Respondent’s unlawful
actions. The Board’s Decision and Order was subse-
quently enforced by the United States Court of Appeals
for the District of Columbia Circuit.1
Following the issuance of a compliance specification
and a hearing, the judge issued a supplemental decision
on July 16, 2010, denying Ogando backpay from the date
of Ogando’s discharge, August 28, 2001, until June 7,
2004. The judge found that Ogando had, on a mortgage
application, claimed employment and earnings for that
period that he had failed to report to the General Coun-
sel. The judge decided that it was impossible to deter-
mine Ogando’s actual wages for that period, and he
therefore declined to award any backpay for it. The
judge did, however, order that the Respondent make

1 Atlantic Veal & Lamb, Inc., 342 NLRB 418 (2004), enfd. per curi-
am 156 Fed. Appx. 330 (D.C. Cir. 2005).
Ogando whole for the period from June 7, 2004, until
such time as the Respondent makes Ogando a valid offer
of reinstatement.2 Both the Respondent and the General
Counsel filed exceptions to the judge’s decision.
On May 28, 2010, the Board issued a Supplemental
Decision and Order3 in which it adopted the judge’s rec-
ommended backpay order for the period beginning June
7, 2004, and continuing until the Respondent makes Og-
ando a valid offer of reinstatement.4 The Board, howev-
er, found that the judge erred in failing to make specific
findings regarding Ogando’s credibility and his interim
earnings from the date of his discharge until June 7,
2004. The Board severed that portion of the case and
remanded it to the judge so that he could reconsider the
evidence, make credibility determinations, and make and
explain his findings regarding Ogando’s earnings for the
specified period.
On July 16, 2010, the judge issued the attached second
supplemental decision. First, the judge found that Ogan-
do was entitled to backpay in the amount of $3440 for
the period of November 1, 2001, through December 31,
2001. Second, the judge found that Ogando was not enti-
tled to backpay for the period of January 2002 until June
7, 2004. In so finding, the judge discredited Ogando’s
testimony that he had little or no income in 2002 and
2003. The judge also discredited the testimony of Angel
Diaz that Ogando did not work for him at Royal Quality
General Construction or Royal Roofing during that time.
Although he does not so state with any clarity, the judge
appears to have found that Ogando had worked for Diaz
in 2002–2003 and would have continued to do so until he
was hired by Whole Foods on June 7; thus, the judge also
denied Ogando backpay for the first and second quarters
of 2004.
For the reasons stated below, we find that the judge
erred by beginning Ogando’s backpay on November 1,
2001, and by failing to calculate overtime pay for the
fourth quarter of 2001. In addition, we find that the
judge erred by finding that the Respondent met its bur-
den to show that Ogando is disqualified from receiving
backpay for 2002, 2003, and the first and second quarters
of 2004.

2 On June 7, 2004, Ogando began working for Whole Foods. The
judge found that Ogando’s interim earnings at Whole Foods were not in
dispute.
3 Atlantic Veal & Lamb, Inc., 355 NLRB 228 (2010).
4 The Board found that an offer of reinstatement to Ogando will not
be valid unless it: (1) raises Ogando’s pay rate to what it would have
been but for the illegal discharge; (2) offers him an opportunity to
participate in its health insurance plan; and (3) provides him the proper
amount of vacation pay.
ATLANTIC VEAL & LAMB, INC.

617
Analysis
1. Fourth quarter 2001
The judge found that Ogando was entitled to backpay
in the amount of $3440 for the period of November 1,
through December 31, 2001. Both the Respondent and
the Acting General Counsel except to the judge’s find-
ing. The Respondent makes two arguments. First, it
argues that Ogando should be disqualified from receiving
backpay in 2001 because he did not mitigate his losses.
In the alternative, the Respondent argues that Ogando
should receive at most 6 weeks of backpay for 2001 be-
cause his testimony indicates that he did not start looking
for work until mid-November. The Acting General
Counsel’s exception is limited to the judge’s failure to
consider overtime in the calculation of backpay for this
period.
To begin, we find that the evidence does not support
the Respondent’s argument that Ogando failed to miti-
gate his damages in 2001. But we find merit in the Re-
spondent’s alternative argument—that the backpay peri-
od did not commence on November 1, 2001, because, on
that date, Ogando had not yet begun searching for work.
As set forth above, the date of Ogando’s unlawful dis-
charge was August 28, 2001. Although the record does
not indicate an exact date that Ogando began searching
for work, Ogando testified that his job search began in
“mid-November.” Consistent with Grosvenor Resort,
350 NLRB 1197 (2007), because Ogando did not begin
searching for work within 2 weeks of his unlawful termi-
nation, the commencement of the backpay period is
tolled until the time that his search for work actually be-
gan. Based on Ogando’s testimony, we find that Ogando
began his search for work on November 15, 2001. Thus,
for 2001, Ogando is entitled to backpay for only the last
6 weeks.
We also find merit in the Acting General Counsel’s
exception to the judge’s failure to include overtime in the
backpay calculation for that 6-week period. In its sup-
plemental decision, the Board adopted the Acting Gen-
eral Counsel’s formula for calculating backpay, pursuant
to which Ogando is entitled to backpay at $10.75 per
hour, plus overtime. The backpay specification indi-
cates, and it is uncontested, that during the fourth quarter
of 2001, comparable employees worked an average of
14.69 hours of overtime per week. Thus, the amount
owed Ogando for overtime is $666.84 per week. Ac-
cordingly, we find that Ogando is owed an additional
$4,001.04 for the last 6 weeks of 2001.
2. 2002, 2003, and 2004
The Acting General Counsel has excepted to the
judge’s finding, on remand, that Ogando was not entitled
to backpay for 2002, 2003, and the first two quarters of
2004. As stated above, the judge discredited Ogando’s
assertion that he had little or no income in 2002 and
2003; the judge also discredited Angel Diaz, who testi-
fied that Ogando did not work for Diaz’ companies—
Royal Quality General Construction or Royal Roofing—
during the backpay period. Based on those credibility
resolutions, the judge appears to have found that Ogando
had worked for Diaz in 2002–2003 and that he would
have continued to do so until he was hired by Whole
Foods in June 2004. The judge’s credibility findings are
based on a W-2 and two pay statements from Royal
Quality Construction that were submitted to a bank, by or
on behalf of Ogando, to obtain a mortgage. The General
Counsel urges that the Board not adopt the judge’s credi-
bility findings, asserting that Ogando’s tax returns from
2002–2004 establish that he earned less than the amount
indicated on the W-2 and pay statements from Royal
Quality Construction.
We find it unnecessary to pass on the judge’s credibil-
ity determinations because, even accepting those deter-
minations, we find that the Respondent did not meet its
burden to show that Ogando had additional earnings in
2002, 2003, and the first two quarters of 2004 that he
failed to report to the Board. As explained below, we
reverse the judge’s finding that Ogando is disqualified
from receiving backpay for that period.
The judge found that, because the W-2 and pay state-
ments submitted to the bank disclose that Ogando had
higher earnings in 2002–2003 than he reported to the
Board, the Respondent met its burden to show that Og-
ando had higher earnings than he reported to the General
Counsel. We disagree. Although the judge discredited
Ogando, he did not make any affirmative findings of fact
regarding Ogando’s interim earnings for 2002, 2003, and
the first half of 2004. 5 This is unsurprising, as other
findings and evidence cast doubt on the issue of Ogan-
da’s earnings during this period. As the judge acknowl-
edged in footnote 3 of his decision, the documents sub-
mitted to the bank could have been forgeries created by
Diaz and Ogando to secure a larger mortgage than Ogan-
do would have otherwise qualified for.6 Additionally,

5 Parts Deport and American Navigation, relied on by our dissenting
colleague, are distinguishable. In both of those cases, the Board made
an affirmative finding that the discriminatee had concealed earnings
from the Board. See Parts Depot, 348 NLRB 152, 153 (2006), enfd.
260 Fed. Appx. 607 (4th Cir. 2008); American Navigation Co., 268
NLRB 426, 428–429 (1983). The judge made no such finding here,
and the record does not support one.
6 The judge surmises that, if the record had been reopened, Ogando
and Diaz might have testified that they participated in a “fraudulent
scheme with the realtor to obtain money from a bank.” The judge’s
speculation about what Ogando’s testimony might have been is mis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

618
and not addressed by the judge, Ogando’s tax returns,
adduced by the General Counsel, directly conflict with
the mortgage documents and report lower interim earn-
ings.7
In a compliance proceeding, the burden is on the Re-
spondent to show that the discriminatee had interim earn-
ings that he concealed from the General Counsel. Cibao
Meat Products, 348 NLRB 47, 48 (2006). Here, there is
no doubt that Ogando lied to someone about his earnings.
The question, however, is whether the Respondent has
met its burden of showing that he lied to the Board. See
id. (even assuming arguendo that the discriminatee delib-
erately misled third parties, that would not “operate to
reduce the [r]espondent’s obligation to remedy its unfair
labor practice”). As set forth above, the evidence in the
present case creates no more than an unresolved doubt as
to whether Ogando concealed earnings from the General
Counsel, and doubt alone will not suffice to satisfy the
Respondent’s burden. See United Aircraft Corp., 204
NLRB 1068 (1973) (uncertainties should be resolved in
favor of the “backpay claimant rather than the respondent
wrongdoer”); accord: Cibao Meat Products, supra.8
Accordingly, we reverse the judge and find that the
Respondent failed to establish that Ogando concealed
income from the General Counsel for any quarter of the
backpay period. Further, we find that Ogando is entitled
to backpay in the amount set forth in the second amended
compliance specification for 2002, 2003, and 2004.
ORDER
The National Labor Relations Board orders that the
Respondent, Atlantic Veal & Lamb, Inc., New York,
New York, its officers, agents, successors, and assigns
shall make Jeorge Ogando whole for the period from
November 15, 2001, until June 7, 2004, by paying him
the amount following his name, plus interest accrued to
the date of payment, as prescribed in New Horizons, 283

placed, however, in light of Ogando’s express, uncontested testimony at
the compliance hearing that the documents submitted in support of the
mortgage were fraudulent.
7 Contrary to our dissenting colleague’s argument, we are not giving
dispositive weight to Ogando’s tax returns. Rather, we find that, alt-
hough the judge relied on the mortgage documents to discredit Ogando
and Diaz, the judge failed to reconcile those documents with Ogando’s
tax returns. Thus, the Board is left to interpret conflicting documentary
evidence.
8 As the Board stated in Cibao, “[a]lthough we acknowledge the ob-
vious discrepancies [in the documentary] evidence, we do not believe
that the mere existence of such discrepancies suggests willful conceal-
ment. More importantly, the Respondent, who bears the burden of
proof on this matter, has not shown that the above discrepancies reflect
willful concealment of earnings from the Board.” See Atlantic Limou-
sine, Inc., 328 NLRB 257, 257 (1999) (citing Paper Moon Milano, 318
NLRB 962, 963 (1995)). Id. at 48 (emphasis in original).

NLRB 1173 (1987), minus tax withholdings required by
Federal and State laws:

Jeorge Ogando $74,461.37

MEMBER HAYES, dissenting in part.
It is undisputed that discriminatee Joerge Ogando must
be denied backpay for each quarter in which he con-
cealed interim earnings from the Board. Parts Depot,
Inc., 348 NLRB 152, 153 (2006), enfd. 260 Fed. Appx.
607 (4th Cir. 2008); American Navigation Co., 268
NLRB 426, 428–429 (1983). At an earlier stage in this
compliance proceeding, the Board remanded the case to
the administrative law judge for the specific purpose of
making necessary credibility findings about Ogando’s
interim earnings claims.1 Based on the judge’s decision,
my colleagues acknowledge that Ogando lied about his
earnings “to someone.” They nevertheless award him
more than $70,000 in backpay because, in their view,
there is “an unresolved doubt” whether he lied about the
amount of interim earnings to the Board or instead lied to
others in order to obtain a mortgage and employment. I
disagree. The judge having discredited evidence sup-
porting Ogando’s version of events, the Respondent has
shown by a preponderance of the credited evidence that
Ogando lied to the Board about his interim earnings for
2002, 2003, and the first two quarters of 2004. I would
therefore affirm the judge’s determination that he is not
entitled to any backpay for that period.2
The only interim earnings Ogando reported to the
Board for the relevant period was from sporadic self em-
ployment in light construction. His tax returns also show
this income. However, a mortgage application he submit-
ted in 2003 showed he was employed by Royal Quality
General Construction or Royal Roofing during this peri-
od with annual earnings of more than $60,000. A job
application that he subsequently submitted to Whole
Foods also showed this employment, plus additional em-
ployment with Jerry’s Grocery. The record also includes
W-2 forms from Royal Quality and a check from Jerry’s
Grocery that are consistent with these statements. The
record therefore contains evidence of two jobs Ogando
held in the relevant period, while Ogando reported inter-
im earnings only from his self employment. Absent con-
tradiction by credible evidence, this documentary evi-
dence meets the Respondent’s burden of proving that
Ogando willfully concealed earnings from the Board.
There is no credible contradictory evidence. To be
sure, Ogando testified that the documents showing con-

1 Atlantic Veal  Lamb, Inc., 355 NLRB 228, 229 (2010).
2 I join in my colleagues’ finding that Ogando is owed $4,001.04 for
the last 6 weeks of 2001.
ATLANTIC VEAL & LAMB, INC.

619
cealed earnings were false, and his friend, Royal Quality
Owner Angel Diaz, gave supporting testimony. The
Board remanded this case specifically to allow the judge
to address the credibility of this testimony, stating that
that “if the judge actually determined that, despite Ogan-
do’s denial, he, in fact, had significant income in 2002
and 2003 not reported to the Board, then Parts Depot
would call for the curtailment of Ogando’s backpay in
those relevant quarters.”3 The judge made that determi-
nation, but the majority awards backpay to Ogando any-
way.4 Their reasons for doing so do not withstand scruti-
ny.
The majority first asserts that the judge made no af-
firmative findings regarding the amount of Ogando’s
interim earnings during the relevant period. But no such
finding was required. American Navigation Co., supra at
428, 430–431 (backpay denied based solely upon a find-
ing of deliberate concealment even though actual interim
earnings could not be ascertained). Indeed, deliberate
concealment was found under strikingly similar circum-
stances in Parts Depot, supra (backpay claimant listed in
a job application interim employment not reported to the
Board; her testimony that it was fictitious employment
listed to obtain a loan discredited by judge despite lack of
tax documents supporting existence of job).
My colleagues also note the judge’s surmise that the
documents showing concealed interim earnings could
have been forgeries created by Diaz and Ogando to ob-
tain a mortgage. But the judge concluded that “the record
does not show that this was the case.” Therefore, contra-
ry to the majority, the judge did not “cast doubt” on his
own finding that the Respondent met its burden of show-
ing willful concealment of higher earnings than those
reported to the Acting General Counsel.
Finally, the majority notes that Ogando’s tax returns,
which the judge did not mention, are consistent with the
interim earnings he reported and contradict the evidence
of concealment. I disagree. As the Board recognized in
Parts Depot, supra at 157, under the table employment is
not an unheard of phenomenon. Ogando’s tax returns
were before the judge on remand when he made his cred-
ibility determinations. The judge’s discrediting of Ogan-
do’s testimony necessarily extended to discrediting the
accuracy of tax returns prepared by him. Further, the tax
returns are specifically contradicted by other documen-
tary evidence, and the discredited testimony is the only
basis for finding the returns to be dispositive. My col-
leagues’ decision to give the tax returns dispositive

3 355 NLRB at 229.
4 Indeed, my colleagues find it “unnecessary” to pass on the very
credibility determinations that the Board previously viewed as essential
when it remanded this case.
weight is inconsistent with the purpose of the Board’s
remand and the resultant credibility findings.
Moreover, this is not a situation where Ogando must
either have lied to the Board and the Internal Revenue
Service or lied to a mortgage lender and potential em-
ployer. Assuming arguendo, as my colleagues suggest,
that Ogando did lie about his income to a bank, it is dif-
ficult to understand why this misconduct supports the
veracity of his tax returns, and the backpay claim based
on them. If he was willing to game the system by over-
stating income in order to obtain a bank loan, he could be
just as willing to understate income in order to minimize
his tax obligation or to maximize his backpay award.
The Respondent unlawfully discharged Ogando. I
agree fully with the majority that this violation of the Act
must be appropriately remedied and that mere uncertain-
ty as to backpay should be resolved in favor of the back-
pay claimant rather than the respondent wrongdoer.
While the majority acts in good faith and on the basis of
a record we all wish was more conclusive, the evidence
here meets the preponderance of the evidence standard
for deliberate concealment under our precedent. Because
my colleagues’ backpay award departs from that prece-
dent, I respectfully dissent.

Kathy Drew King Esq., for the General Counsel.
Steven B. Chesler Esq., for the Respondent.1
SECOND SUPPLEMENTAL DECISION
RAYMOND P. GREEN, Administrative Law Judge. On May
28, 2010, the Board issued its Decision at 355 NLRB 228, re-
manding this case to me for further findings. Although the
Board adopted certain findings, it remanded this matter in order
to determine what if any backpay amounts are owed to Jeorge
Ogando for the period from his discharge on August 28, 2001,
until June 7, 2004.
The principle issue here is whether Ogando willfully con-
cealed interim earnings or whether his testimony merely
showed “discrepancies” resulting only in “mere suspicion and
uncertainty.” A second and related issue would be whether the
documentary evidence submitted by the Respondent, whether
or not establishing “willful concealment,” nevertheless shows
that Ogando had substantial interim earnings for the period in
question so that his claim of net backpay for that period would
be zero or at least far less than what is asserted by the General
Counsel.
On June 4, 2010, I sent a letter to the parties requesting their
positions on this matter. I also asked them to advise me as to
whether they thought that the hearing should be reopened for
further evidence. In pertinent part, I stated:

There was a conflict with the Ogando’s assertion that he never
was employed by Royal Quality General Construction Inc. or

1 By letter dated June 17, 2010, Steven B. Chesler stated that he had
been retained by the Respondent to represent it for the remainder of the
proceedings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

620
any entity operated by Angel Diaz and the evidence that doc-
umentation such as W2 and income statements in the name of
that company were submitted to a bank in connection with a
sizeable mortgage given to him. Since it was stipulated that
these documents were in fact submitted to the bank in relation
to his loan application, (presumably with Ogando’s assent), it
would be nice to know how and by whom these documents
were created.

By letter dated June 16, 2010, the General Counsel advised
me that it was her office’s opinion that no further hearings are
called for or necessary.
The Respondent’s counsel, by letter dated July 9, 2010, ad-
vised me of his position regarding the remand; asserting that
the record as it stands would support the conclusion that Ogan-
do had substantial interim earnings for the period in question
and did not tell the truth regarding those earnings. He also
indicated that he “welcomes the opportunity to present addi-
tional testimony and evidence regarding these issues.” Howev-
er, the Respondent did not identify any particular witnesses that
it would call or identify what their testimony might be. In sub-
stance, the Respondent states that it would be useful to “track
down the realtor that was assisting Ogando, Diaz and Rivera
with the [house] purchase.”
It seems highly unlikely to me that the realtor could be locat-
ed or that it would be possible, at this point in time, to ascertain
how the loan documents were created. Therefore, I think that it
would be futile to reopen the hearing.
As noted above, Ogando was illegally discharged on August
28, 2001. He testified that he did not start looking for work
until November 2001 which is 9 weeks after his discharge.
Ogando attributed his failure to look for work during this peri-
od because of the September 11, 2001, attack on the World
Trade Center. I don’t really understand this contention and I
think that it is a nonsequiter. Despite the attack, the New York
economy did not come to a halt and I can’t understand how he
could conclude that no jobs were available and therefore that it
would be future to look for work.
In Grosvernor Resort, 350 NLRB 1197 (2007), the Board
held that discriminatees who fail to commence a search within
the 2-week period after their discharge will not begin to accrue
backpay until they commence a proper search. Even assuming
that the Board may determine that 2 weeks is an unreasonably
short period of time, Ogando’s 2-month delay in commencing
his job search seems to me to be excessive. On this basis, I
therefore will deny him backpay for the 3d quarter of 2001 and
for 5 weeks of the 4th quarter of 2001. Thus, for quarter four
of 2001, his gross backpay would be $430 times 8 or $3440.
As his testimony that he had no interim earnings in 2001 was
not challenged by any contrary evidence, his net backpay for
that quarter would be $3400.
The more serious question involves backpay for the period
from the beginning of 2002 until June 7, 2004.
The Respondent introduced into evidence a W-2 form for
Ogando that was submitted with a mortgage application for a
house in Brooklyn, New York, that Ogando purchased in part-
nership with Angel Diaz. This W-2 form stated that for the year
2002, Ogando earned $66,123 from a company called Royal
Quality General Construction Inc., a company, alternatively
called Royal Roofing, and which was owned by Angel Diaz.
Angel Diaz was described as being a good friend of Ogando
and given that relationship and their partnership in the purchase
of the house, I would not view Diaz as being a disinterested
witness. I also note that Diaz testified that he allowed Ogando
to falsely assert that he was employed by his company when
Ogando made a job application to Whole Foods.
The Respondent also introduced into evidence pay state-
ments that showed that Ogando was issued two checks in 2003
from Royal Quality General Construction. These pay state-
ments also stated that his year to date earnings were $56,269.2
The General Counsel, after participating in a conference call
with the bank that issued the mortgage, agreed that the above-
described documents were in fact submitted to the bank along
with the mortgage application that was submitted by the real
estate agent who arranged for the mortgage. I can only assume
that the W-2 and pay statement documents that were submitted
in support of the loan were submitted with the assent of Ogan-
do.
Given the documentary evidence showing that Ogando had
higher substantial interim earnings in 2002 and 2003, the Re-
spondent therefore has met its burden of showing that the dis-
criminatee had higher interim earnings than what was claimed
by the General Counsel in the specification or what Ogando
had originally told the General Counsel. The burden therefore
shifts back to the General Counsel to rebut the Respondent’s
showing of Ogando’s interim earnings.
Ogando denied ever working for Royal Quality General
Construction and this was corroborated by Angel Diaz. But,
there is no dispute that the documents showing that he had sub-
stantial earnings from this company were submitted on his be-
half to a bank in order for him to obtain a $262,000 loan. Given
these documents that had to have been submitted by him or
submitted with his consent, I do not credit, on this record, Og-
ando’s assertion that he had little or no interim earnings in 2002
and 2003. Nor do I credit the testimony of his friend Angel
Diaz.3 Moreover, I conclude that Ogando would have continued
to work for Royal Quality General Construction, at a compara-
ble rate of pay, during the first 5 months of 2004 until he was
employed by Whole Foods.
In light of the above, I conclude (a) that Ogando’s interim
earnings for each quarter of 2002, 2003, and the first and se-
cond quarters of 2004, exceeded the gross backpay calculations

2 In the original decision, I mistakenly asserted that the pay state-
ments showed that Ogando’s pay was $56,269.19 as of October 31,
2006. This should have been for October 31, 2003.
3 This case was originally heard before the subprime mortgage crisis
became public. Nor was I aware of what has been euphemistically
called “liar loans.” It may be that the documents submitted by the real
estate agent to the bank were forgeries created to insure the approval of
the mortgage application. But the record does not show that this was
the case. Perhaps Ogando and Diaz would have testified, if the case
were reopened, that they participated in a fraudulent scheme with the
realtor to obtain money from a bank. But the General Counsel does not
think that the hearing should be reopened and no offer of proof was
made to show this possibility.
ATLANTIC VEAL & LAMB, INC.

621
made on his behalf for those years; and/or (b) that for this peri-
od of time, Ogando willfully concealed his interim earnings.
I therefore conclude that Ogando’s net back pay for 2002,
2003, and the first and second quarters of 2004, is zero. I also
conclude that for 2001, his net backpay is $3400. I therefore
amend my calculations and conclude that his net backpay, plus
interest is $18,514 + $3400 = $21,914.