Cardi Corporation

National Labor Relations Board - Administrative Judge Opinions

Jun 4, 2010

01-CA-043892 (N.L.R.B. Jun. 4, 2010)

JD–31—10
Warwick, RI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CARDI CORPORATION
and Case 1—CA—43892
NEW ENGLAND REGIONAL COUNCIL OF
CARPENTERS, LOCAL 94 a/w UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA
Karen E. Hickey, Esq., for the General Counsel.
John D. O’Reilly III, Esq., of Framingham,
Massachusetts, for the Respondent.
Aaron D. Krakow, Esq., of Boston,
Massachusetts, for the Charging Party.
SUPPLEMENTAL DECISION
Statement of the Case
PAUL BUXBAUM, Administrative Law Judge. This compliance hearing was held in
Boston, Massachusetts, on January 11-13, 2010. The Acting Regional Director filed his second
amended compliance specification and notice of hearing on November 6, 2009. The
Respondent, Cardi Corporation, filed its answer to this specification on November 24, 2009.
The matter at issue concerns the determination of appropriate monetary remedies for one of the
Respondent’s employees, Eddie Mejia.
In its response to the compliance specification, the Respondent challenged virtually
every aspect of the Acting Regional Director’s calculations as to the remedy. In particular, the
Company contests the conclusion that Mejia was entitled to backpay for a period extending from
November 13, 2006 through July 8, 2008. Instead, the Company asserts that Mejia never
became entitled to any backpay. Beyond this, the Company also disputes the choice of
methodology used to compute the amount of backpay and benefits. Finally, the Employer
contends that Mejia failed to properly mitigate its backpay obligation and that he claimed
deductions for improper expenses.
As described in detail in this decision, after careful review of the entire record, including
my observation of the demeanor of the witnesses, and after considering the briefs1 filed by the
General Counsel, the Charging Party, and the Respondent, I find that none of the Respondent’s

1 By order dated April 19, 2010, I denied the Respondent’s motion for leave to file a reply
brief.
JD–31—10
5
10
15
20
25
30
35
40
45
50
2
defenses and objections is meritorious. Instead, I conclude that the Acting Regional Director’s
methodology and calculations are entirely reasonable, consistent with the Board’s directives in
this case, and necessary and appropriate to provide relief to Mejia for the Company’s violation
of the National Labor Relations Act.
A. Background and Procedural History
Cardi Corporation is a Rhode Island firm, founded in 1967 and located in the city of
Warwick. It performs heavy road and bridge construction work. Indeed, its counsel noted that it
is “the largest bridge and road contractor in Rhode Island.” (Tr. 49.) On a typical day, Cardi
employs as many as 500 people.
The Company belongs to a multiemployer association, Construction Industries of Rhode
Island. On June 5, 2005, that association entered into a collective-bargaining agreement with
Local 94 of the New England Regional Council of Carpenters (the Union). That contract
extended through June 7, 2009. It was in effect and binding on the parties to this case at the
times material to this decision.
At the compliance hearing, the Company presented two witnesses on its behalf. The
foremost witness for the Employer was Stephen Cardi. He has been employed by the Company
for over 40 years and currently serves as its treasurer. He testified that, in this position, he is
responsible for “general office and financial management of the company,” adding that he also
performs “general executive oversight.” (Tr. 454, 534.) Cardi also reported that he is an
attorney and a member of the bar.
The second witness called by the Company was Robert Kunz. He was employed by
Cardi from June 2001 until the end of September 2007. During the period under examination,
Kunz was the Corporation’s safety director. His functions included a role in the Company’s
hiring and employment process as will be detailed later in this account.
The General Counsel presented his case through the testimony of three witnesses. The
Region’s compliance officer, Claire Powers, was called in order to explain the manner in which
she made the determinations and calculations underlying the second amended compliance
specification. As such, she was not a fact witness and based her information on statements and
documentation provided by the parties.
As would be expected, key testimony was given by Mejia, the sole individual whose
situation was at issue in this case. He testified that he has been a member of Local 94 since
2001. For several years before that, he was a member of Local 140 in Tampa, Florida. In June
2002, the Company hired Mejia to perform carpentry work. That November, he sustained a
work injury. In the following years, he participated in the workers’ compensation system and
was intermittently given light duty work by the Company. Ultimately, his condition deteriorated
to the extent that he underwent hip replacement surgery in November 2005. One year later, his
physician pronounced him fit for duty and he contacted Cardi to seek further employment as a
carpenter. The events that followed led to the controversy involved in this case.
Finally, David Palmisciano testified on behalf of the Union. For the past 12 years, he
has served as the district business manager for Local 94. He is also the president of that local
and a trustee of its benefit funds.
Turning now to the procedural history of this case, the parties agree that upon his
recovery from hip replacement surgery, Mejia sought further employment with Cardi. In so
JD–31—10
5
10
15
20
25
30
35
40
45
50
3
doing, in November 2006, he attended a meeting with Safety Director Kunz. While the events of
that meeting are in sharp dispute, there is no doubt that Kunz informed Mejia that the Company
had a new policy that its employees must possess a valid driver’s license in order to work for the
Company.2 This was a significant development since Mejia had not possessed a driver’s
license at the time of his original hire by the Company, nor did he possess one on the day of his
meeting with Kunz.
On April 19, 2007, the Union filed an unfair labor practice charge against the Employer,
alleging that the unilateral imposition and subsequent enforcement of a driver’s license
requirement for employment constituted a violation of Section 8(a)(5) of the Act. The Regional
Director issued a complaint on December 28, 2007, and the Company filed an answer denying
the material allegations of wrongdoing.
On April 1, 2008, a trial was conducted before Administrative Law Judge Bruce D.
Rosenstein.3 On June 5, 2008, Judge Rosenstein issued his decision, finding that the Company
violated the Act, “by unilaterally implementing a rule without notice to or bargaining with the
Union requiring bargaining unit employees to possess a valid driver’s license in order to be
employed at the Respondent.” Cardi Corp., 353 NLRB No. 97, slip op. at 6 (2009). As part of
the resulting order, Judge Rosenstein required the Company to reinstate Mejia and “make him
whole for pay and benefits that existed prior to the unlawful unilateral change in the driver’s
license policy that was implemented in 2005.” Id., slip op. at 7.
On February 25, 2009, the Board affirmed Judge Rosenstein’s findings and conclusions,
in particular his finding that:
Respondent violated Section 8(a)(1) and (5) of the Act by
unilaterally implementing a rule requiring that bargaining
unit employees possess a valid driver’s license as a condition
of employment, and by enforcing its unlawful driver’s license
requirement against Eddie Mejia. [Footnote omitted.]
(Id., slip op. at 1.)
Of crucial importance to this proceeding, the Board made certain amendments to the
judge’s remedial order. It held:
To remedy the Respondent’s unlawful enforcement of the
rule against Eddie Mejia on November 13, 2006, we shall order it
to place Mejia in the position he would have been in absent
enforcement of the rule, including immediate reinstatement if,
absent the enforcement of the driver’s license requirement, he
would have been reinstated by the Respondent at any time on
or after November 13, 2006. We shall also order the Respondent
to make Mejia whole for any loss of earnings and other benefits

2 The trial judge in this case found that the Company implemented this new driver’s license
policy in late 2005. Cardi Corp., 353 NLRB No. 97, slip op. at 4 (2009). In its decision adopting
the judge’s findings and conclusions with only minor modifications, the Board observed that the
parties did not dispute this finding. Id., slip op. at 2, fn. 8.
3 Each of the parties at the trial were represented by the same lawyers who now represent
them in this compliance proceeding.
JD–31—10
5
10
15
20
25
30
35
40
45
50
4
suffered as a result of the enforcement of the rule. [Footnotes
omitted.]
(Id., slip op. at 1-2.)

Finally, in a footnote to its amended remedy, the Board made certain observations
regarding the nature and scope of this compliance hearing. In framing the issues that have
ultimately come before me for resolution, the Board directed that:
In light of testimony raising the question of whether unit work
was available after Mejia sought to return to work, we leave to
compliance the issue of whether Mejia, if the Respondent had
not unlawfully enforced its driver’s license requirement against
him, would have been reinstated at any time on or after
November 13, 2006, and the related issue of which party bears
the burden of proof on this matter. The resolution of these
issues will determine the appropriateness of a reinstatement
offer and the amount of backpay owed to Mejia.
(Id., slip op. at 2, fn. 7.)
In an effort to expedite resolution of the controversy that would ultimately come before
me, the parties entered into a stipulation that was approved by the Regional Director on July 2,
2009. This stipulation contained the private parties’ waiver of their rights to seek appellate
review of the Board’s Order. Instead, it contained the agreement of all parties to immediately
proceed to litigate the remedial issues framed by the Board in footnote 7 of its decision. (GC
Exh. 1(b).)
Pursuant to the parties’ stipulation, the Acting Regional Director set forth his position
regarding the remedial issues and the manner in which he calculated the monetary relief owed
to Mejia in a second amended compliance specification and notice of hearing with
accompanying spread sheets. (GC Exh. 1(m).) The document asserted that Mejia would have
been further employed by the Company as of November 13, 2006, and was due backpay and
benefits for a period from that date until his eventual reinstatement by the Company on July 8,
2008. After certain final adjustments to the mathematical calculations, the General Counsel
contends that the net backpay and benefits due to Mejia and the Union’s funds are $69,152.02
and $31,149.98 respectively.4
In its answer to the specification, the Employer took the position that it had incurred no
monetary obligation arising from its unlawfully implemented driver’s license requirement. Its
primary contention was the repeated assertion that “prior to his obtaining a driver’s license, and
at all relevant times thereafter, there were no work opportunities available for [Mejia] or any
other carpenter applicant.” (R. Answer at p. 5; GC Exh. 1(o).) Lest there be any doubt, counsel
for the Company provided a definitive statement of the Employer’s position in a subsequent
written submission:
The Employer’s basic defense in this proceeding is based on the
uncontested evidence that, when Mejia first contacted the Employer

4 These final dollar figures are set forth by counsel for the General Counsel at Tr. 23-24, and
are incorporated in final spread sheets admitted into the record as GC Exhs. 2(a), (b), and (c).
JD–31—10
5
10
15
20
25
30
35
40
45
50
5
for possible reinstatement after being told by his physician that he
was no longer eligible for any further workers’ compensation payments
on November 13, 2006, there was no available work for him then or at
any other time during the backpay claim raised in this issue through
July 2008. The Employer’s position clearly is that there was absolutely
no work available for any carpenters and no carpenters were hired
within the bargaining unit other than the other laid off carpenters being
reinstated.
(R. Response to motion in limine, p. 2; GC Exh. 1(p).)5
B. Determination of the Correct Backpay Period
The General Counsel contends that the backpay period commences on November 16,
2006 and terminates on July 8, 2008. (GC Exh. 1, p. 2.) All of the parties agree that any
potential backpay period in this matter ended on July 8, 2008, the date on which Mejia was
reinstated by the Company as a carpenter.6
The situation is vastly different regarding the potential commencement date of any
backpay period. A crucial key to answering this question is the determination of the
circumstances involved in the meeting between Mejia and Kunz. While there is no doubt that
this took place in November 2006, there is no definitive indicator of the exact date. In the
course of this proceeding, no party has objected to the General Counsel’s decision to claim that
any backpay period should commence no earlier than November 16, 2006. For this reason, I
will treat that date as the day on which any backpay obligation could commence.

5 As just indicated, the General Counsel filed a motion in limine seeking to preclude the
Respondent from presenting certain evidence. (GC Exh. 1(i).) The Employer’s response
explained that the General Counsel’s concerns resulted from a “misconception” of its position
regarding the parties’ stipulation. (GC Exh. 1(p), p. 1.) I took this to mean that the issue had
been resolved. At the beginning of the trial, I thrice invited counsel for the General Counsel to
address any preliminary matters. While she raised a variety of items, ultimately she informed
me, “[t]hat’s all I have for preliminaries.” (Tr. 24.) At no time did she request a ruling on the
motion in limine. I was a bit surprised to see that, in her posttrial brief, she now requests that I
rule on this motion. This caused me to consult my law dictionary. It defines, “in limine,” as “[o]n
or at the threshold; at the very beginning; preliminarily.” Black’s Law Dictionary, revised 4th ed.,
p. 897 (1968). It is procedurally inappropriate to rule on this motion at this late stage of the
litigation. See, for example, Wisconsin Bell, Inc., 346 NLRB 62, 64, fn. 8 (2005) (defense raised
in answer but not timely addressed before the judge is waived), and Harco Trucking, LLC, 344
NLRB 478, 479 (2005) (argument raised for the first time in posttrial brief is untimely). In any
event, the matter is moot as I held the parties to the requirement that they limit themselves to
the introduction of evidence that was material to the issues as carefully framed in the Board’s
Order.
6 The parties stipulated that Mejia returned to work at Cardi on this date pursuant to a
written offer of reinstatement. It bears mentioning that, after his reinstatement, Mejia only
worked for the Company for a two-week period before being laid off. He provided
uncontroverted testimony that, at the time of his layoff, his foreman told him, “[I]f it was up to him
he’d keep me and lay off somebody else, but he was told up management they had to let me
go.” (Tr. 268.) Counsel for the General Counsel reported that no charge was filed by anyone
regarding the circumstances of Mejia’s layoff.
JD–31—10
5
10
15
20
25
30
35
40
45
50
6
It will be recalled that the General Counsel contends that the Company chose to employ
Mejia on the day of his meeting with Kunz. During the intake process designed to implement
this decision, management learned that Mejia did not possess a valid driver’s license. As a
result, the Company terminated Mejia’s employment in furtherance of its unilaterally
implemented driver’s license policy. In vivid contrast, the Company contends that Mejia
telephoned Kunz to ask for a job and was told that no opening existed for him. He then
requested an opportunity to have a face-to-face meeting with Kunz. His request was granted,
and the two men did meet. At the meeting, Kunz learned that Mejia did not have a driver’s
license. Kunz informed Mejia that he needed to obtain a license in order to secure future
employment with the Company. Regardless, it is management’s position that his lack of a
license as of the date of his meeting with Kunz was immaterial since no appropriate job opening
for him existed.
In resolving this dispute, I must take note of a circumstance that may frequently occur in
compliance proceedings. Such proceedings come at the end of what is sometimes a lengthy
process of administrative adjudication. Given the passage of time, witnesses will be asked to
testify regarding events that have receded into a relatively distant past.7 Such is certainly the
case here as the witnesses were examined in 2010 about a key encounter and related
conversations that took place in 2006. Given this reality, it is perhaps not surprising that the two
main witnesses both reported that they had made significant errors in their testimony and
sought permission to correct those mistakes. Thus, Kunz sought to correct his testimony from
the original trial that Mejia never contacted him to advise him that he had obtained a driver’s
license. On reflection, he now reported that “[t]o say that he didn’t call, I think was probably not
the right thing.” (Tr. 180.) By the same token, Mejia first testified that, prior to the key meeting,
Kunz informed him over the telephone that he was going to be hired. Later, he advised that this
testimony was a “mistake,” as Kunz did not explicitly tell him that he was going to be hired.
Kunz simply told him to report for the meeting and Mejia “assume[d]” that this meant he was
going to be hired. (Tr. 286.)
I describe these matters in order to underscore the need to perform a careful analysis of
the evidence regarding the critical meeting. In my estimation, the conflict between the accounts
of the witnesses cannot be resolved simply by reference to demeanor, sincerity, or perceived
strength of recollection. After the passage of so much time, it is vital to turn to additional
analytical tools to perform the assessment. The Board has long recognized the power of such
additional analytical criteria. As it observed in Panelrama Centers, 296 NLRB 711, at fn. 1
(1989), “[w]hen the demeanor factor is diminished, the choice between conflicting testimony
rests not only with demeanor, but also on the weight of the evidence, established or admitted
facts, inherent probabilities, and reasonable inferences drawn from the record as a whole.”8
[Citation omitted.] Examination of the record in this case demonstrates that these powerful tools
provide the means to obtain a clear resolution of the controversy as will shortly be explained.
Before proceeding with that explanation, it is necessary to mention one additional
consideration. In its decision, the Board specifically noted that the allocation of the burden of
proof was being deferred to the compliance process. Cardi Corp., supra., 353 NLRB No. 97,

7 The Board recognized this aspect of the compliance procedure and its practical effect on
the adjudicatory process in Midwestern Personnel Services, 346 NLRB 624, 627 (2006), enf.
508 F.3d 418 (7th Cir. 2007).
8 See also Northridge Knitting Mills, Inc., 223 NLRB 230, 235 (1976); Shen Automotive
Dealership Group, 321 NLRB 586, 589 (1996); and CMC Electrical & Maintenance, Inc., 347
NLRB 273, 274, at fn. 4 (2006).
JD–31—10
5
10
15
20
25
30
35
40
45
50
7
slip op. at 2, fn. 7. In this regard, as to the Company’s defense that it never acquired any
obligation for backpay because it never had a position available for Mejia to fill, there is an
established governing principle. As the Board explained in Cobb Mechanical Contractors, 333
NLRB 1168 (2001), remanded 295 F.3d 1370 (D.C. Cir. 2002):
[A]t the heart of the Respondent’s exceptions is the argument
that, with minor exceptions, the discriminatees are entitled to
no backpay. It is axiomatic, however, that the finding of an
unfair labor practice is presumptive proof that some backpay
is owed. [Citation omitted.]
See also La Favorita, Inc., 313 NLRB 902 (1994), enf. 48 F.3d 1232 (10th Cir. 1995) (“well
settled that the finding of an unfair labor practice is presumptive proof that some backpay is
owed”). This conclusion is consistent with the rule set forth in the recently revised edition of the
NLRB Casehandling Manual,9 Part Three, Compliance Proceedings, Sec. 10648.4 which
provides that:
All elements of a backpay case that reduce the
respondent’s gross backpay liability, such as . . . starting
and ending dates for the backpay period and the lack of
a discriminatee’s former job or substantially equivalent job,
are the respondent’s burden . . . .
As indicated, to the extent that the Company claims that it should escape any liability for
backpay, it must rebut the presumption that some amount of monetary compensation is required
to remedy its unlawful conduct. Having reached this conclusion, I must emphasize, however,
that, practically speaking, the allocation of the burden of proof as to this issue is not important.
In the career of a judge, there are certainly close cases where presumptions or burdens of proof
are decisive. For example, see American, Inc., 342 NLRB 768 (2004) (where evidence was in
equipoise, party with the burden of proof lost). For reasons that I am about to describe, this is
not such a case. I readily conclude that the General Counsel has proven its contention that
Mejia was hired as of his meeting with Kunz by clear and convincing evidence.
Turning now to the consideration of that evidence, the analysis must begin with the
testimony of Mejia. He reported that he telephoned Kunz to report that his physician had
released him for full duty. Kunz told him to “come on in to make application.”10 (Tr. 286.)
When Mejia reported for their scheduled meeting, he was shown a movie and asked to provide
a urine sample for a drug test. He provided the sample and passed the drug screening. Kunz
then asked him for his social security number and proof of identity. In response, Mejia gave
Kunz his State-issued, nondriver’s license identification. Kunz left to make a photocopy of it.

9 I recognize that the Casehandling Manual is not mandatory authority. See Hempstead
Lincoln Mercury Motors Corp., 349 NLRB 552, 553, at fn. 4 (2007). Nevertheless, the Board
has noted that it “is free to consider and cite the manual when reviewing backpay calculations,
and indeed often does so.” John T. Jones Construction Co., 349 NLRB No. 119, slip op. at fn. 4
(2007) (not reported in Board volumes), enf. 575 F.3d 857 (8th Cir. 2009).
10 Judge Rosenstein credited Mejia’s account of this telephone conversation. He found that
“Mejia telephoned Kunz in November 2006 to apprise him of his updated medical status and
was told to come in to the office in order to take a drug test and fill out employment forms.”
Cardi Corp., supra., 353 NLRB No. 97, slip op. at 5. I agree with the trial judge’s
characterization of the content of this telephone conversation.
JD–31—10
5
10
15
20
25
30
35
40
45
50
8
Mejia testified that, upon his return, Kunz told him that “he has a problem with my ID. He said
because I needed a driver’s license.” (Tr. 272.)
Mejia responded to this information by observing to Kunz that, when he was originally
hired by the Company in 2002, he had not had a license and had presented a nondriver’s
license identification instead. Kunz replied that “their new policy was that you had to have a
driver’s license, in order to work for Cardi. So he told me they had no work for me.” (Tr. 272.)
Counsel for the Union then asked Mejia if Kunz made any reference to a lack of available work.
Mejia responded, “No, he didn’t mention that at all.” (Tr. 272.)
The meeting ended with Kunz informing Mejia that “I’m going to have to check this
situation about the driver’s license with Mr. Cardi and I’ll get back to you.” (Tr. 292.) Mejia
reported that after his meeting with Kunz, he went to the union hall and described what had
happened to Palmisciano. He also testified that over the next few days he did not hear from
Kunz. As a result, he telephoned Kunz and was told that there was no work for him.
Kunz provided an entirely different account of his interaction with Mejia. He agreed that
the two had a brief phone conversation in which Mejia told him that he had been released by his
doctor and was seeking employment. Kunz reported that he explained to Mejia that “we didn’t
have any work.” (Tr. 164.) Nevertheless, Mejia asked if “he could come in and see me.” (Tr.
169.) Kunz replied, “[S]ure.” (Tr. 169.)
Kunz confirmed that Mejia did come to see him. He testified that he told Mejia, “that
there were no opportunities at that time.” (Tr. 169.) He also told Mejia, “[T]hat he should call us
when he receives his driver’s license.” (Tr. 176.) Kunz testified that, while it was unusual to do
so for an applicant who was not being hired, he had Mejia fill out employment forms and take a
drug test.
Turning now to the application of the Board’s analytical criteria to this testimony, it
becomes evident that Kunz’ account is implausible, illogical, and incredible. Initially, I note that
Kunz claims that he told Mejia there was no work available but acceded to Mejia’s request for a
meeting. At that meeting, he elected to put Mejia through a full preemployment screening
process, including verification of identification and right to lawful employment in the United
States, drug screening, and provision of social security and tax information. Kunz admitted that
this was not normal procedure. Instead, this treatment was only given to applicants as a special
accommodation when requested by union business agents, politicians, or transportation
department officials. Although Mejia did not fall within this favored category, Kunz provided no
explanation for according him this supposed courtesy.
Beyond this, Kunz was asked to explain the value of putting Mejia through the entire
prescreening process if there was no job available. He explained, “[w]ell, we just wanted to
basically get him in a position where if the superintendent needed some work—needed
someone to work, that he would be instantly available.” (Tr. 178.) Apart from the fact that the
Company had no practice of this type, the implausibility of this testimony is revealed when one
considers that Kunz confirmed that the Company does not keep any list of availability for
carpenter job applicants. Furthermore, this explanation is revealed as completely pretextual
when it is considered in connection with the Company’s contention throughout this litigation that
Mejia was completely unqualified to perform the type of highway and bridge carpentry that was
Cardi’s business.11

11 As counsel for the Respondent put it, “the fact that Mejia obtained a driver’s license in
Continued
JD–31—10
5
10
15
20
25
30
35
40
45
50
9
All of this raises the question of why the Company would go through the time, trouble,
and expense of putting Mejia through a full preemployment screening process if it had no work
for him to perform, did not maintain an availability list, and did not consider him to possess the
qualifications needed for employment. The answer becomes clear when one understands the
Company’s hiring procedures and Kunz’ participation in them. At the beginning of his testimony,
Kunz was asked to explain his duties as safety director relating to the employment process. He
testified:
I basically qualified them, the applicants, if you will, qualified
them . . . . A qualified person would come to my office, and
then I would basically review them from that point, relative to
did they have OSHA 10-hour training? Drug test, did they
achieve a negative drug test? Did they have credentials that
would verify their I-9 forms, and things of that sort.
(Tr. 152-153.) I attempted to summarize this testimony as follows:
JUDGE: So it wasn’t so much that you exercised judgment,
but rather you sort of completed a check list of
things that could disqualify someone from—who’s—
somebody who is qualified to do the job, but still
can’t get hired, because of some other technical
problem?
KUNZ: I think that fairly characterizes it, yes.
(Tr. 153.)
All of this was reiterated in counsel for the Union’s further examination of Kunz on the
topic as follows:
COUNSEL: Your involvement is after they have someone in
mind to hire, you do the paperwork, do the drug
testing, all that kind of stuff?
KUNZ: Yeah, they would contact me to see if he needs to
come in, if he’s had a drug test, if he’s had his first
hour, first day orientation, to see if he needs to renew
his paperwork.
(Tr. 227.)
Tellingly, all of this was confirmed by Cardi. Counsel for the General Counsel explored
this topic with him:
_________________________
February of 2007 is the clearest indication that there was no longer any improper enforcement
of any such rule against him as he had a driver’s license and therefore, he would have been
perfectly eligible for employment had there been work opportunities for him, had he possessed
the requisite skill and experience to perform the work involved.” (R. Response to motion, p. 2;
GC Exh. 1(p).)
JD–31—10
5
10
15
20
25
30
35
40
45
50
10
COUNSEL: [W]hen people are hired do you meet with them when
they’re being hired?
. . . .
CARDI: Personally?
COUNSEL: Yes.
CARDI: No. But we have a first hour—first day, first hour safety
orientation and fitting in all the stuff and drug testing.
Filling in all the stuff and the drug testing.
(Tr. 597-598.)
Before gauging the significance of all this, one additional factor should be noted. It will
be recalled that Kunz testified that, even after being told there was no available work, Mejia
asked for a face-to-face meeting. Kunz reported that he scheduled that meeting for a Monday
morning at 6 a.m.12 Once again, one must ask the question: why would Kunz set this meeting
for what appears likely to have been an inconvenient time for himself at the busy
commencement of the workweek and why would he pick such an odd time to direct Mejia to
come in? Surely it would make little sense to require a candidate for employment at some
unspecified future date to awake in the middle of a dark New England night in November so as
to arrive at 6 a.m. for a conversation about that potential future employment.
It is clear that all of this is readily explained by understanding that what occurred was
that Kunz told Mejia to report early on the morning of the first day of the new workweek so that
he could complete his “first day, first hour” employment screening process in order to be ready
to begin his job at the start of the workday. That explains the 6 a.m. appointment on a Monday.
It also explains the urine screening for drugs. Indeed, there is no other reasonable explanation
for the drug screening of Mejia. Obviously, such a process takes time and money. A
reasonable employer would wish to have current test results at the time an employee begins
working for it. The Company’s witnesses confirmed that the drug screen is an essential part of
the preemployment screening process. No explanation was ever provided as to why the
Company would want to rely on drug test results from days, weeks, or months before the actual
start of employment.13 The answer is obvious, Mejia was given a drug screening because he
was about to start work.14 In fact, under cross-examination, Kunz conceded that any other
policy regarding drug testing would be legally problematic. He testified that he was the
corporate official responsible for Cardi’s drug testing program and was familiar with State law

12 Kunz provided this testimony at p. 63 of the transcript of the unfair labor practice trial, as
submitted by counsel for the Respondent. I had authorized the lawyers to submit portions of
that transcript along with their posttrial briefs. See Tr. 219-220.
13 Indeed, Kunz asserted that hiring would not begin until the following March or April. It is
highly unlikely that an employer that considers a clean drug test as an essential precondition for
employment would voluntarily choose to rely on results that are 4 to 5 months old.
14 In this connection, I note that urine testing is a distasteful matter that would hardly be
performed lightly. This was well illustrated when Cardi was asked if he had ever been present
during such testing. He replied that he had not attended the tests because, “it’s not a
particularly pleasant place to be.” (Tr. 665.)
JD–31—10
5
10
15
20
25
30
35
40
45
50
11
governing such testing. Counsel for the Union then asked him if he was aware that under State
law an employer could only require a drug test from someone who had already received an offer
of employment.15 Kunz replied, “That may be.” (Tr. 201.)
Examining this record and the inferences that reasonably flow from it in the light of the
inherent probabilities in the modern business and employment environment, I find that, in
November 2006, Mejia telephoned Kunz to seek further employment with the Company. Kunz
instructed him to report at 6 a.m. on Monday morning. When Mejia reported, Kunz performed
the Employer’s customary “first day, first hour” preemployment orientation, including verification
of authorization to work in the United States, verification of OSHA compliance, completion of
forms, collection of social security and tax information, and drug screening. The Company
subjected Mejia to this process because it had hired him for immediate employment. When,
during the course of the orientation, Kunz learned that Mejia did not have a driver’s license, he
terminated Mejia’s employment pursuant to the Company’s unlawfully implemented driver’s
license policy.
While all of these conclusions provide the only consistent and convincing explanation for
the events that took place that morning, the truly remarkable feature of this case is the fact that I
have yet to address the most compelling piece of evidence presented by the General Counsel.
That item, a document admitted into evidence as General Counsel’s Exhibit 6(a), page 1, is the
proverbial “smoking pistol.” It consists of the Employer’s payroll record showing that Mejia was
paid for 4 hours of “Regular Wages” for the pay period ending on November 18, 2006.16

Apart from the obvious, what explanation was offered for the Company’s decision to pay
Mejia? In his brief, counsel for the Employer is reduced to the assertion that this act must have
been a “clerical error.” (R. Br. at p. 13.) Although Kunz testified that the Company’s payroll
system is “very sophisticated,” I suppose such a thing is possible. (Tr. 190.) The difficulty with
this assertion, however, is the fact that no witness ever testified that Mejia was paid due to
someone’s clerical error. Counsel’s theorizing cannot substitute for evidence. In fact, Kunz’
testimony on the matter was what one would expect from a hapless witness being asked to
explain away a smoking pistol. Counsel asked him, “[h]ow did that happen?” He was left to
respond that “I can’t explain that.”17 (Tr. 176.)
Why did the Company pay Mejia wages for his Monday meeting with Kunz? And, why
did it pay Mejia for 4 hours when it would be expected that his participation in the “first day, first
hour” process would be considerably shorter than that? In my view, the answer is revealed by
the terms of the Employer’s collective-bargaining agreement with the Union. Article XX of that
contract includes a so-called “Employment Guarantee” that provides:
A carpenter who reports to work on the first day and last
day and appears competent, at the beginning of the shift,

15 Counsel’s assertion as to the requirements of State law is corroborated by the provisions
of the Rhode Island statute governing “Urine and Blood Tests as a Condition of Employment.”
Section 28-6.5-2 of that statute provides, in pertinent part, that an employer may require a job
applicant to submit to urine testing for drugs, if “[t]he job applicant has been given an offer of
employment conditioned on the applicant’s receiving a negative test result.” (CP Exh. 2.)
16 This is confirmed by GC Exh. 9, which is the Company’s remittance report to the Union
showing that Mejia was paid for 4 hours of work in November 2006.
17 Counsel then asked Kunz, “Okay. And is that the usual situation?” To which, Kunz
replied, “It certainly isn’t.” (Tr. 176.)
JD–31—10
5
10
15
20
25
30
35
40
45
50
12
shall receive four (4) hours pay (minimum) unless he or
she quits within the period.
(GC Exh. 3, p. 22.) Thus, the Employer’s payment to Mejia reflected its understanding that it
directed him to report to work and then terminated his employment within the first 4 hours of his
workday.18
In sum, I agree with Judge Rosenstein’s characterization of the “most significant”
circumstance involved in the adjudication of this matter. As he put it, “in November 2006,
[Mejia] was put on the payroll and paid for hours worked, conclusive evidence that he was an
employee.” Cardi Corp., supra., 353 NLRB No. 97, slip op. at 6. [Citation omitted.] It
inexorably follows that, having hired Mejia and then unlawfully discharged him, the Company is
liable to compensate him for backpay and benefits that he would have received if he had
remained employed from November 16, 2006 through his eventual (and brief) reinstatement on
July 8, 2008.
Before leaving this topic, I will address two arguments raised by the Company
throughout this litigation. In response to the compliance specification, the Company has
continually claimed that it never had any job openings for Mejia and that Mejia was unqualified
to perform the Company’s type of carpentry work. Of course, the ultimate response to these
assertions is that they are totally belied by the evidence that shows that the Company did
choose to hire Mejia in November 2006.
Despite this, I will assess the Company’s two claims. In support of its assertion that
there was no carpentry work available for Mejia or anyone else in November 2006 and
thereafter, the Employer did not offer any documentary evidence or rely on a specific
assessment of it’s employment history based on its “very sophisticated” payroll system. (Tr.
190.) Instead, it presented vague testimony from both Kunz and Cardi that was grounded in a
claimed presumption that the approach of winter weather rendered further employment
prospects highly unlikely. In the unfair labor practice trial, Kunz was examined by the
Employer’s counsel on this point as follows:
COUNSEL: Was Cardi hiring in November of 2006 or were
you laying off?
KUNZ: Well, that’s normally a time where we have layoff.
COUNSEL: So?
KUNZ: So I would say no. Your answer—the answer would
be no, it’s not a hire time.
(Unfair Labor Practice Trial Tr. 136.)
Kunz’ uncomfortable and evasive testimony was matched by that of Cardi during the
compliance hearing. He was asked if the Company was hiring in November 2006 and

18 In my view, a fair interpretation also includes an acknowledgement that the Employer
recognized that its decision to terminate Mejia under its unilaterally imposed driver’s license
requirement was unauthorized by the collective-bargaining agreement and required, at a
minimum, that Mejia be compensated under the terms of that agreement.
JD–31—10
5
10
15
20
25
30
35
40
45
50
13
responded, “I don’t believe so.” (Tr. 541.) When asked if the Company hires in November, he
replied, “It’s a seldom thing.” (Tr. 541.) Later in his account, counsel for the Company asked
him a much broader question about the hiring history:
COUNSEL: Now, with this background to your knowledge
. . . . were any new carpenters hired in the fall
of ’06, any time in ’07 and for the first six months
of ‘08?
CARDI: I can’t recall. I can’t say specifically “No,” but I
can’t recall “Yes.”
(Tr. 547.)
Under cross-examination, Cardi further undermined any claim that there were no
available jobs. Counsel for the Union presented Cardi with the Company’s records showing that
in November 2006 three carpenters, William Delsanto, Joshua Johnson, and Robert Blanchette,
left the Employer. When asked if the Company replaced them, Cardi responded, “Right, three
people that left and I don’t know if there are any—I have no idea whether or not there were
positions available or that we just decided . . . you know, just give more work to [a
subcontractor].” (Tr. 659.)
Although the Company did not present documentary evidence or specific testimony
regarding any lack of work, it did assert that, generally, the approach of winter in New England
eliminated job prospects. Union Business Agent Palmisciano explained that this had been true
historically, but that due to a variety of factors this was no longer the case. Interestingly, his
opinion was corroborated by Cardi who reported that, “We’ve had what we call ‘open winters’ or
less rigorous winters that we’ve been able to work right through. We’ve had some winters we’ve
had to shut down. We’ve had some winters that we knew we had to keep working because of a
job schedule.” (Tr. 537.) From all this, it is evident that the mere approach of winter is far from
conclusive evidence, particularly in the face of the actual decision to hire Mejia.19
Finally, the Employer made an effort to minimize and belittle Mejia’s work experience
and qualifications. It contended that Mejia’s work background “would have no relevance or
application to a complicated highway or bridge job typically performed by Cardi.” (R. Br. at p. 7.)
Of course, the first difficulty with this line of argument is that the Employer chose to hire Mejia as
a carpenter in 2002. Kunz testified that Mejia had been referred for employment by Local 94. In
itself, this undermines the Employer’s claim as the evidence showed that union officials made
such referrals based on their assessment of a member’s skills and experience and employers,
including Cardi, relied on those assessments.
Kunz also testified that, in 2002, he asked Mejia about his background and that Mejia
explained that his experience was in performing drywall work. He was hired and assigned to a
project constructing salt barns. The implication from this as advanced by the Company is that
Mejia had poor qualifications limited to drywall work involved in the housing industry and was
only hired because the particular project was not a highway or bridge job. This was undermined
by Kunz’ admission that the salt barn project did not involve any drywall work and by Cardi’s

19 The testimony presented by the Company was a far cry from the conclusive assertion
made by counsel in his opening statement, “We’re a highway—outside highway bridge
contractor. We don’t hire in November, December, January or February.” (Tr. 53.)
JD–31—10
5
10
15
20
25
30
35
40
45
50
14
admission that the Company was aware at that time that Mejia had done “some building work”
in addition to drywall. (Tr. 578.)
By contrast with Kunz’ claim that he asked Mejia about his experience at their initial
meeting in 2002, Mejia testified that Kunz’ only question was whether he was a journeyman or
an apprentice. This would be consistent with the practice of relying on the referral choices
made by knowledgeable union officials. I credit it. I also credit Mejia’s uncontroverted
testimony that during his work on the two salt barns he was never criticized or disciplined by the
Company for the quality of his work or any other issue.
Although it hired him in 2002, the Company contended that in the period from 2006 to
2008 he lacked the necessary highway and bridge carpentry skills. This was disputed by
Palmisciano and belied by Mejia’s actual work record during that period. As will be discussed
later in this decision, he was employed on a number of highway and bridge construction projects
resulting from union referrals to other contractors. In fact, one of these jobs involved bridge
construction carpentry for a subcontractor performing work for Cardi Corporation.
Based on the entire record, including my conclusion that the Company did hire Mejia in
November 2006, I find that the Employer did not establish that it had no available openings for
carpenters from November 2006 through July 8, 2008. Similarly, I find that the Employer failed
to demonstrate that Mejia lacked the qualifications and experience required to perform the
carpentry work associated with Cardi’s role in the highway and bridge construction industry. To
the contrary, I conclude that the General Counsel had established that Mejia was fully qualified
to perform such work.
C. The Issue of Intermittency
Having determined that the Employer’s unlawful decision to apply its driver’s license
policy to Mejia resulted in his loss of actual employment, I must assess the methodology for
determining the appropriate financial remedy. In addressing that question, it is vital to consider
the widely recognized conditions that prevail in the construction industry. The record
demonstrates that, in conformity with the general practices in that industry, this Employer takes
on a series of individual projects and selects a work force for each such job. As a result, “the
fact of intermittency must be taken into account” when calculating the remedy. Painting Co.,
351 NLRB 42, 43 (2007), citing NLRB v. Ironworkers Local 378, 532 F.2d 1241, 1243-1244 (9th
Cir. 1976).20
The leading case regarding the treatment of intermittency in the construction industry is
Dean General Contractors, 285 NLRB 573 (1987). In Dean, the Board noted that construction
jobs may be of short duration but employers often carry over employees from jobsite to jobsite.
As a result, the Board “decline[d] to impose a presumption or a different set of rules . . . based
on any theoretical distinction between project-by-project and permanent and stable work
forces.” Id. at 575, fn. 8. Instead, it placed the burden on the employer to demonstrate that a

20 Counsel for the Company cites the Ironworkers case in support of his attack on the
General Counsel’s methodology. In my view, the case is distinguishable in its crucial aspect. In
that case, the circuit court took issue with the Board because it concluded that the Board had
chosen to treat an average employee as if he were comparable to an elite group of employees.
As will be discussed, in the present case, the compliance officer made a reasonable attempt to
avoid such an outcome by excluding all employees with hire dates before Mejia’s from the group
of comparables.
JD–31—10
5
10
15
20
25
30
35
40
45
50
15
discriminatee would have been terminated instead of transferred from project to project.21 In
assigning the burden of proof to an employer, the Board observed:
Evidence pertinent to the likelihood of an employee’s transfer
or reassignment is the type of evidence that ordinarily would
tend primarily to be in the possession of the respondent
employer which controls the decision whether to transfer or
reassign. We perceive no undue hardship in requiring a
respondent to maintain such evidence if it seeks to cut off
the . . . backpay of an employee whom it has unlawfully
discharged.
(Id., at 574-575.)
As I have noted, the evidence in this case did establish that the Company operates in
the traditional manner of the construction industry. That evidence also demonstrated that the
Company typically maintains multiple contemporaneous ongoing projects and that some of
those projects are very large. For the large projects, the work may continue over a period of
many months and even years. This was true, for example, regarding the reconstruction of
portions of major interstate highways such as I-95.
It is clearly an open question as to how long Mejia would have continued to work on the
project to which he would have been assigned on the day he reported for his preemployment
orientation had he not been unlawfully discharged. It is entirely possible that this project could
have lasted throughout the entire 20-month backpay period. Alternatively, had the project
ended before that time, it is equally possible that Mejia would have been transferred to one or
more subsequent assignments for the Company. The evidence certainly established that such
transfers and reassignments were common.
I appreciate the Company’s tactical difficulty in addressing its burden on the issue of
intermittency. Having staked out an “all-or-nothing” position that Mejia would never have
worked for even a day during the period at issue, it has made it more difficult to present
evidence as to intermittency. Thus, because it claims that there was no job for Mejia on the day
of his preemployment screening, it has not identified any such project. As a result, I have no
basis on which to determine the length of the project to which Mejia was going to be assigned
until Kunz discovered that he lacked a driver’s license. The project may have been one of short
duration or it may have involved many months or even years of ongoing employment. In light of
the Company’s absolute failure to present evidence on this question, I must find that it did not
meet its burden of proving any intermittency.22

21 Recently, the assignment of this burden to employers has been the subject of some
controversy among members of the Board in the context of salting cases. Despite this, the
Board continues to apply Dean to nonsalting situations. See Oil Capital Sheet Metal, 349 NLRB
1348, 1353, at fns. 18, 19 (2007), rev. dismissed 561 F.3d 497 (D.C. Cir. 2009).
22 While presentation of such evidence may have appeared to undermine its claim that there
was never a job for Mejia, it would not have been fatal to the Company’s defense. Nothing
precluded the Company from contending that there was no work for Mejia but alternatively
showing that all of the open projects as of November 2006 terminated before the end of the
backpay period and Mejia would not have been eligible for transfer or reassignment. The failure
to present any evidence of the Company’s actual work history reflects a tactical decision with
entirely predictable consequences on the subsidiary issues in this backpay claim.
JD–31—10
5
10
15
20
25
30
35
40
45
50
16
Because the Employer has failed to present any evidence indicating that the project for
which Mejia was hired in November 2006 would not have continued to require his services
throughout the backpay period, the Company has not established any defense to the Regional
Director’s backpay specification based on interruption or termination of Mejia’s employment.23
As the Board has explained, “[s]uspicion and surmise are no more valid bases for decision in
[the] backpay hearing than in an unfair labor practice hearing.” Cibao Meat Products, 348
NLRB 47, 48 (2006).
D. Appropriateness of the Region’s Methodology for Computation of the Remedy
In its brief, the Employer candidly observes that “[t]his case is considerably different from
the typical Compliance Hearing relating to a backpay claim, as here the initial and main issue is
not over the amount of backpay but is, rather, whether Mejia would have been hired at all and
whether he lost even a penny of backpay.” (R. Br. at p.9.) [Underlining in the original.]
Nevertheless, the Company does make a further subsidiary argument that the Regional Director
“utilized an improper standard to determine the amount of lost pay.” (R. Br. at p. 7.) Having
concluded that the Company’s “main” defense to the specification lacks merit, I must now
assess this secondary contention.
The guiding principles to be applied to this evaluation were articulated by the Board in its
leading case of Alaska Pulp Corp., 326 NLRB 522, 523 (1998), enf. in part and remanded 231
F.3d 1156 (9th Cir. 2000):
Our objective in compliance proceedings is to restore, to the
extent feasible, the status quo ante by restructuring the circumstances
that would have existed had there been no unfair labor practices . . . .
Determining what would have happened absent a respondent’s unfair
labor practices, however, is often problematic and inexact. Several
equally valid theories may be available, each one yielding a somewhat
different result. Accordingly, the General Counsel is allowed wide
discretion in selecting a formula. This does not mean, however, that
the Board will always approve the General Counsel’s backpay formula
even if it is reasonably designed to arrive at the approximate amount
of backpay due. Rather, where the Respondent, as here, urges the
Board to adopt an alternate formula, the Board will determine which is
the most accurate way of calculating backpay, in view of all of the facts
adduced by the parties. If, due to the variables involved, it is impossible
to reconstruct with certainty what would have happened in the absence
of a respondent’s unfair labor practices, we will resolve the uncertainty
against the respondent whose wrongdoing created the uncertainty.
[Citation, footnotes, and some internal punctuation omitted.]
I interpret this passage as having delineated two approaches depending on the parties’
contentions in a given case. Thus, where a respondent replies to a Regional Director’s choice
of methodology by proposing its own means of analysis and set of calculations, the Board will

23 As the Casehandling Manual, Part Three, Sec. 10542.9, describes it, “[w]hen calculating
backpay for a non-salting construction industry discriminatee, it is presumed that the
discriminatee would have continued to be employed by the respondent employer throughout the
backpay period unless the respondent employer demonstrates otherwise.” [Footnote omitted.]
JD–31—10
5
10
15
20
25
30
35
40
45
50
17
carefully explain and justify its ultimate choice of remedial approach.24 On the other hand, if a
respondent challenges the Region’s methodological choice but fails to propose an alternative,
the General Counsel’s approach may be found appropriate so long as it is “reasonably designed
to arrive at the approximate amount of backpay due.” Id. at 523.
Examination of the Company’s posttrial brief reveals that it objects to the compliance
officer’s choice of comparables used to calculate an amount that Mejia would have been
expected to earn if he had been retained on the payroll. The Respondent makes no attempt to
propose its own means of determining what this amount would have been. Thus, for example, it
does not offer its own set of comparable employees, nor does it calculate the actual earnings for
such a set of comparators. As no alternative has been offered, my analysis is necessarily
limited to an appraisal of the reasonableness and appropriateness of the choices made by the
compliance officer. As the Board explained in Parts Depot, Inc., 348 NLRB 152, 153 (2006),
enf. 260 Fed. Appx. 607 (4th Cir. 2008), “[i]t is the General Counsel’s burden to establish gross
backpay amounts that are reasonable, not arbitrary.” [Citation omitted.]
In evaluating the General Counsel’s approach, I begin by noting that the underlying
methodology chosen is one that is regularly employed by the Board. In fact, it is listed as one of
three “basic methods” in the Casehandling Manual, Part Three, Sec. 10540.1. Sec. 10540.3 of
the manual outlines the entire process, noting that, with this approach, backpay is calculated
based on the actual earnings of “another employee or group of employees, whose work,
earnings, and other conditions of employment were comparable to those of the discriminatee
both before and after the unlawful action.” The manual also notes that the choice of a group of
comparators rather than a single individual is also useful for providing “an objective basis for
calculating earnings in the event there is a dispute over . . . how well the discriminatee would
have performed during the backpay period.” Sec. 10540.3. Finally, the manual explains that
the most accurate method is “to assume that each discriminatee would have worked the annual
average number of workdays and earned the same annual wages as the average employee in
their classification.” Sec. 10540.3.25
The manual’s approach is consistent with the Board’s jurisprudence regarding the use of
comparable employees. As the Board once explained, “[w]e find no merit in the Respondent’s
general attack on the comparable employee formula and adopt the judge’s finding that the
comparable or representative employee approach is an accepted methodology, and appropriate
here.”26 Performance Friction Corp., supra. at 1117.
Having noted that the comparable employee method is an entirely valid approach to the
calculation of backpay in circumstances such as exist for this Employer, I must next decide
whether the compliance officer applied the method correctly and fairly. To begin, I note that
counsel for the Union has provided an excellent summary of the compliance officer’s procedure.
That summary is worthy of extensive quotation:
The [compliance officer] utilized the following methodology

24 The Board has expressed this view in Performance Friction Corp., 335 NLRB 1117 (2001)
(where parties present conflicting backpay formula arguments, the Board must determine most
accurate method).
25 The revised manual cites Painting Co., 351 NLRB 42 (2007), for this proposition. I agree
that this precedent is crucial and will discuss it shortly.
26 See also, NLRB v. Overseas Motors, Inc., 818 F.2d 517, 520 (6th Cir. 1987)
(representative employee method is “a reasonable means of calculating back pay”).
JD–31—10
5
10
15
20
25
30
35
40
45
50
18
to calculate Mejia’s back pay. She started with the entire universe
of Cardi’s 29 carpenter employees during the November 13, 2006
through July 8, 2008 back pay period. From that larger group, she
excluded those carpenters who commenced working for Cardi
before Mejia did. Thus, the long term employees who one would
expect to have more work opportunities than Cardi’s other employees,
were excluded from the calculation. Similarly, foremen and carpenters
with special skills, like welding, that are recognized with premium pay
in the collective bargaining agreement, were also excluded. Finally,
apprentices, who have different work opportunities than journeymen
like Mejia, were also excluded.
After excluding these employees, the [compliance officer] was
left with a subgroup of eight, non-specialized carpenters who were hired
after Mejia. For each week of the back pay period, she calculated the
average number of hours worked per week by these eight remaining
employees. For example, if an employee in the subgroup was laid off
for a week, his hours would be zero for the week and the average for
the group as a whole would be decreased accordingly. The [compliance
officer] then assumed that on a week-to-week basis Mejia would have
worked the average number of hours worked by this group of eight
employees . . . . The [compliance officer] then multiplied the average
number of hours worked by these eight employees by the collective
bargaining agreement’s hourly wage and benefit rates. From that total,
the [compliance officer] subtracted Mejia’s interim earnings for each
quarter in the back pay period, but only after deducting Mejia’s interim
expenses from the interim earnings. [Footnotes and extensive citations
to the record omitted.]
(CP Br. at pp. 4-5.)
I have compared this method of computation with the requirements outlined by the
Board in the key precedent, Painting Co., 351 NLRB 42 (2007). In that case, the Board found
the Region’s calculations to be unreasonable because they assumed that the discriminatees
would have worked the same number of annual hours as the top 5-12 employees out of a total
work force of 350. In recalculating the backpay amounts, the Board observed that:
Absent some evidence to suggest that a given
discriminatee would have exceeded the average number of
workdays each year, the most accurate method for determining
the amount of backpay due is to assume that each discriminatee
would have worked the annual average number of workdays and
earned the same annual wages as the average painter employed
by the Respondent during that year.
(Id. at 43.)
In this case, the Employer contends that the Region has made a similar error by
choosing eight comparators who were part of its elite, core group of employees.27 In my view,

27 Counsel for the Company cites NLRB v. Ironworkers, Local 378, 532 F.2d 1241 (9th Cir.
Continued
JD–31—10
5
10
15
20
25
30
35
40
45
50
19
the compliance officer took pains to avoid such an error. In the first place, she relied on the
Employer’s own pay classification system to choose only journeymen carpenters who were paid
under the same payroll classification as Mejia.28 This represented a meaningful and
appropriate effort to eliminate carpenters with superior skills and qualifications from the set of
comparators.
Even more significantly, the compliance officer restricted her subset of comparators to
only those identically-classified journeymen carpenters who were hired after Mejia’s fateful
meeting with Kunz. Counsel for the Company fails to acknowledge the importance of this
choice. He criticizes this limitation as an indication that the compliance officer was wedded to
the principle of seniority despite the fact that this Employer does not use seniority in making its
hiring and retention decisions.29 This argument fails to come to grips with the true rationale for
selecting only later hires. Such a policy choice served to effectively screen out the potential
comparators who were actually members of the Employer’s prized group of valued carpenters
who were given priority in retention. This conclusion is based on the logical assumption that
persons who were either initially hired or rehired after Mejia’s hire date could not have been
considered part of that core group. If they had formed part of that core group, their employment
would not have been interrupted such that they needed to be rehired.
I recognize that the Employer, through the testimony of its witnesses, made a valiant
attempt to show that the comparators were highly prized employees who formed the core group
that should be excluded from the calculation process. Of course, such testimony is purely
partisan, subjective, and conveniently timed.30 When compared to the objective and logical
probative value of the fact that they were hired after Mejia’s date of employment, the proffered
opinions that they should be exempted from the comparison group must be rejected. Indeed, I
think it fair to say that by arguing that every one of the eight chosen comparators was wrongfully
included due to membership in a core group, the Employer has proven too much. If that
contention were true, then the ranks of the Employer’s core group must have been so depleted
that it would have been anxious to retain the services of any competent carpenter, including
Mejia.
I must also observe that, in addition to proving too much, paradoxically the Employer has
also proven too little. While it rejects each and every one of the compliance officer’s
_________________________
1976), for the same proposition. I agree that the circuit court reversed the Board for the same
reason, the choice of 17 out of the 22 highest earners as comparators out of a total work force
of 150.
28 The Employer used the code “121” to designate employees who were so classified.
29 Actually, while the Employer does not mechanically apply seniority in these situations,
Cardi testified that its decisions are based on “length of service and what we feel is the quality of
the employee.” (Tr. 541.) This is consistent with the compliance officer’s choice of
methodology.
30 A good example of the caution with which this testimony should be treated concerns one
of the eight comparators, Jason Rosa. Cardi contended that Rosa was one of the prized core
employees. Despite this claim, Rosa was hired after Mejia and had never before been
employed by the Company. Cardi reported that he referred Rosa to his project supervisors for
consideration as a new hire as a favor to Rosa’s father. He had no prior experience at highway
or bridge construction, having specialized in building work. Cardi’s claim that Rosa was a core
employee is either false or compelling proof that the Company’s need for new core employees
was so great that Mejia would likely have become one as well had he not been unlawfully
discharged.
JD–31—10
5
10
15
20
25
30
35
40
45
50
20
comparators, it fails to offer any alternative set of comparable employees or any different
method of calculating backpay. In that sense, the situation is quite similar to that in South Coast
Refuse Corp., 337 NLRB 841 (2002), where the Board granted summary judgment against a
respondent that “failed to provide alternative figures or calculations,” noting that this was
particularly troubling since “the data at issue is within the Respondent’s knowledge and control.”
Having carefully examined the compliance officer’s methodology and choice of
comparators, along with the failure of the Respondent to offer any concrete alternatives, I
conclude that the amended compliance specification complies with the Board’s standards and
requirements and represents a reasonable and appropriate calculation of the accurate amount
needed to place Mejia in the financial position he would have had absent the Company’s
unlawful enforcement of the driver’s license rule against him.
E. Evaluation of Mejia’s Interim Earnings and Expenses
Having concluded that Mejia’s unlawful discharge resulted in an obligation to make him
whole through compensation for backpay and benefits and that the compliance officer used an
appropriate method to calculate those amounts due, I must finally examine Mejia’s efforts to
mitigate the damages, including the reasonableness of any claimed deductions from those
interim earnings. As the Board has observed:
A discriminatee must make reasonable efforts to secure interim
work to be entitled to backpay . . . The sufficiency of a discriminatee’s
efforts to mitigate backpay are determined with respect to the back-
pay period as a whole and not based on isolated portions of the
backpay period . . . It is the respondent’s burden to prove that the
discriminatee failed to exercise reasonable diligence in searching
for work. [Internal quotation marks and citations omitted.]
Grosvenor Resort, 350 NLRB 1197, 1198 (2007), appeal dismissed 2008 WL 435516 (D.C. Cir.
2008).
Counsel for the Company characterizes Mejia’s work record during the backpay period
as “lackadaisical” and less than “minimal.” (R. Br. at p. 36.) I take this as a reference to the fact
that Mejia was not continuously employed throughout the period at issue. Having deployed the
factor of intermittency in the construction industry as a shield to limit or eliminate its backpay
obligation, the Company now seeks to wield the same condition as a sword against Mejia. Just
as I previously concluded that the compliance officer gave due weight to the effect of
intermittency when calculating the backpay obligation, I now find that she gave proper
consideration to its effect on Mejia’s interim earnings.
Turning to Mejia’s job history since November 2006, it is clear that his principal efforts to
find work consisted of his prompt registration with the Union’s referral system on every occasion
when he became unemployed. The uncontroverted evidence showed that he maintained
current status on that registry at every such period of unemployment and that he accepted all
offers of employment that resulted from referrals by the Union.31 In utilizing this method of
seeking interim employment, Mejia was in compliance with the Board’s requirements. I base

31 In addition to carpentry work, a small portion of the Union’s referrals consisted of picketing
duties. The compliance officer correctly treated the income from such picketing as interim
earnings. See Domsey Trading Corp., 351 NLRB 824, 826 (2007).
JD–31—10
5
10
15
20
25
30
35
40
45
50
21
this conclusion on the Board’s assessment of similar efforts to secure interim employment:
The Board has long held that, in seeking interim employment,
a discriminatee need only follow his regular method for obtaining
work. See Tualatin Electric, Inc., 331 NLRB 36 (2000) (discriminatees
satisfied their obligation to mitigate when they followed their normal
pattern of seeking employment through the union’s hiring hall), enf’d
253 F.3d 714 (D.C. Cir. 2001). [Discriminatee] . . . was entitled to go
through the Union in seeking interim employment.
Midwestern Personnel Services, 346 NLRB 624, 626 (2006), enf. 508 F.3d 418 (7th Cir. 2007).

Interestingly, Mejia actually did considerably more than what has been required by the
Board. Leaving his home and family ties, he traveled over 1000 miles to an unfamiliar part of
the country in order to find work in his occupation. He presented testimony and documentary
evidence showing that he contacted the Union’s local in Louisiana in the hope that industry
conditions after Hurricane Katrina would be favorable to gaining employment. That local did
refer him for jobs, including a fairly lengthy stint as a carpenter involved in the reconstruction of
the long bridge on Interstate 10 that crosses Lake Pontchartrain.32 It is true that Mejia
voluntarily left that job due to the total breakdown of his vehicle and his financial inability to
purchase a replacement. Given that the entire Louisiana episode represents an extraordinary
effort to mitigate his economic losses, I find that his decision to return to Rhode Island was not
unreasonable. See IMCO/International Measurement & Control Co., 277 NLRB 962, 963
(1985), enf. 808 F.2d 837 (7th Cir. 1986) (decision to quit job due to involuntary loss of means
of transportation does not constitute a willful loss of earnings justifying limitation of backpay).
After examining all of Mejia’s efforts to seek and maintain employment during the
backpay period, I concur in the Region’s conclusion that they fell entirely within the Board’s
standards, particularly with reference to the intermittency of work assignments in the
construction industry. The Employer has not met its burden of showing any deficiency in Mejia’s
interim earnings history.
Lastly, the Employer contests certain of the expenses that the compliance officer
deducted from Mejia’s interim earnings. In examining this contention, I begin with the fact that
Mejia presented complete and rather meticulous documentation of his interim earnings and
expenses. His thoroughness in this regard was impressive and bolsters the reliability of his
testimony as to these points. The compliance officer provided persuasive testimony as to her
reasoning in giving Mejia credit for these expenses. She testified that “if the mileage is greater
than what their commuting mileage would be, parking expenses, tolls, tools and uniforms they
need for the job, expenses if they have to relocate, such as room and board and other
expenses, say if they have to rent a mailbox as Mr. Mejia had to do in this case,” then she
deems it appropriate to deduct the resulting costs from interim earnings. (Tr. 81-82.) Her
analysis is well supported by the Casehandling Manual, Part Three, Sec. 10556, and the cases
cited therein.
I conclude that Mejia’s expenses arose from the extraordinary needs he experienced
due to his praiseworthy decision to seek available highway carpentry work in Louisiana. In a

32 It is noteworthy that Mejia’s extraordinary effort to locate and secure employment of the
same nature as that offered by the Company stands at stark contrast with the Employer’s
attempt to characterize him as a mere drywaller.
JD–31—10
5
10
15
20
25
30
35
40
45
50
22
decision adopted by the Board, another administrative law judge noted, “[w]here it is found that
a discriminatee’s move in order to seek better opportunities is not a willful loss of earnings, the
expenses of the move are fully deductible as expenses of seeking employment.” Be-Lo Stores,
336 NLRB 950, 954 (2001). I find that Mejia’s decision to move was an appropriate effort to
improve his lot and that his expenses were reasonable and deductible.33 As a result, the
Employer has failed to meet its burden of demonstrating any error in the compliance officer’s
treatment of those expenses.
Conclusions
1. The period for which the Employer is liable for payment of backpay and benefits
commenced on November 16, 2006 and terminated on July 8, 2008.
2. The General Counsel has employed a reasonable method of computing the gross
and net backpay and benefit obligations incurred by the Respondent and that method is both
consistent with the Board’s requirements and designed to produce an accurate determination of
those obligations.
3. The Employer has failed to establish that any reduction in the computed backpay and
benefit obligations is appropriate.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended34
ORDER
The Respondent, Cardi Corporation, of Warwick, Rhode Island, its officers, agents,
successors, and assigns, shall forthwith pay to Eddie Mejia the sum of $69,152.02, plus interest
as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), accrued to the date of
payment and minus tax withholding required by law, and the additional sum of $31,149.98 to the
Union’s benefit funds on behalf of Eddie Mejia.
Dated, Washington, D.C. June 4, 2010
____________________
Paul Buxbaum
Administrative Law Judge

33 The Employer takes particular issue with Mejia’s claim for reimbursement for tools that he
purchased in Louisiana, noting that carpenters customarily provide their own tools. I credit
Mejia’s testimony that he needed to buy certain tools because he was unable to transport them
from Rhode Island.
34 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 purposes.