J. J. Cassone Bakery, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 2011

356 N.L.R.B. 951 (N.L.R.B. 2011)

J.J. CASSONE BAKERY
356 NLRB No. 122
951
J.J. Cassone Bakery, Inc. and Bakery, Confectionary
and Tobacco Workers & Grain Miller Union,
Local No. 3, AFL–CIO and Carbilio Flores and
Lorenzo Macua. Cases 2–CA–32559, 2–CA–
32778, 2–CA–32941, 2–CA–33144, and 2–CA–
33267
March 30, 2011
SECOND SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On September 7, 2010, Administrative Law Judge
Raymond P. Green issued the attached second supple-
mental decision. The Respondent filed exceptions and a
supporting brief, and the Acting General Counsel filed an
answering brief. The Acting General Counsel also filed
cross-exceptions with a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings,1 findings,2 and

1 The judge received into evidence several exhibits consisting of
notes taken by Board agents during conversations with discriminatees
Macua and Flores some months or years before the hearing. The judge
used the notes only in determining when Macua began searching for
interim employment. We reject the Respondent’s argument that these
notes should be controlling where they disagree with Macua’s and
Flores’s oral testimony. The notes are only fragmentary summaries of
the agents’ understanding of their conversations with the
discriminatees. Macua and Flores did not write, sign, or otherwise
adopt these notes, nor did they admit to making the “statements” con-
tained in the notes. As a result, the notes plainly stand on a different
footing from the documents at issue in the two cases upon which the
Respondent relies, Associated Transport Co. of Texas 194 NLRB 62
(1971), which involved social security records, and Domsey Trading
Corp., 351 NLRB 824 (2007), enf. denied and petition for review dis-
missed 383 Fed. Appx. 46 (2d Cir. 2010), enf. denied on other grounds
636 F.3d 33 (2d Cir. 2011), in which the discriminatees personally
filled out or signed the relevant documents.
The Respondent excepts to the judge’s refusal to reopen the record
for additional testimony regarding Macua’s termination from his inter-
im employment at Rye School District. The Respondent, however,
does not state, either in its exceptions or supporting brief, any grounds
on which this purportedly erroneous ruling should be overturned.
Therefore, in accordance with Sec. 102.46(b)(2) of the Board’s Rules
and Regulations, we shall disregard this exception. See Holsum de
Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265
(1st Cir. 2006).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The judge stated his reliance on NLRB v. Inland Empire Meat Co.,
692 F.2d 764 (9th Cir. 1982), in articulating the Respondent’s burden
conclusions as modified below, and to adopt the recom-
mended Order as modified and set forth in full below.
This compliance proceeding involves the calculation
of backpay awards for five discriminatees covering the
period 1999 to 2009: Adan Aguilar, Cesar Calderon,
Jose Castro, Carbilio Flores, and Lorenzo Macua. With
respect to Aguilar and Calderon, we affirm the judge’s
findings for the reasons stated in his decision.3 With
respect to Castro, Flores, and Macua, we find merit in the
Acting General Counsel’s cross-exceptions, which assert
that certain minor modifications to the judge’s calcula-
tions are necessary. These modifications are described
below, and our modified calculations appear in bold in
the attached appendices summarizing the amounts owed
to each discriminatee.4
As a preliminary matter, we consider the Acting Gen-
eral Counsel’s request to admit amended appendices to
the backpay specification for Castro and Macua into evi-
dence. The amendments at issue correct mathematical
errors and update a number of quarterly calculations
based on hearing testimony and documents introduced
into evidence. The Acting General Counsel initially
submitted the amendments to the judge following the
close of the hearing, but the judge did not rule on the
Acting General Counsel’s request that they be admitted
into evidence. Nevertheless, the judge relied on them in
making almost all of his backpay calculations, and the
Respondent has not objected to the Acting General
Counsel’s request to admit them. We therefore admit
these appendices into evidence.
In addition, we note that, in several instances, the
judge inadvertently relied on backpay specification ap-
pendices that had been superseded by amended appen-
dices in making his backpay calculations for Castro, Flo-
res, and Macua. As the Respondent did not object to any
of the amended appendices introduced at the hearing, and
as we have granted the Acting General Counsel’s motion

of proof in a compliance proceeding. We are satisfied that the judge
intended to cite the Board’s underlying decision, Inland Empire Meat
Co., 255 NLRB 1306, 1308–1310 (1981), which the Ninth Circuit
enforced by memorandum in the cited decision.
3 In affirming the judge’s backpay award for Aguilar, we find it un-
necessary to rely on the judge’s statement that Aguilar had no obliga-
tion to search for interim employment because he was suspended, ra-
ther than discharged, as the record fully supports the judge’s finding
that Aguilar actually searched for interim work. In addition, the judge
inadvertently stated that Aguilar began searching for work around the
third week of his suspension. In fact, Aguilar testified that he began his
search no later than the second week of his suspension. Moreover,
because Aguilar’s search was reasonably diligent, he is entitled to
backpay as calculated by the judge.
4 The Acting General Counsel also excepts to several minor factual
errors in the judge’s decision. We find no need to reach these excep-
tions, however, because the errors do not affect the amounts owed to
the discriminatees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 952
to admit the amended appendices submitted after the
hearing had closed, we rely on the calculations found in
Appendices A-2, A-3, and A-5 as amended, and we sub-
stitute those amounts in the attached backpay calcula-
tions.5
In addition, we make the following specific modifica-
tions to the judge’s backpay calculations.
Jose Castro
First, the attached Appendix 1 corrects several inad-
vertent mathematical and typographical errors that affect
the amounts due to Castro.6
Second, in calculating Castro’s interim earnings and
net backpay for the third and fourth quarters of 2003 and
the first quarter of 2006, and in calculating his gross
backpay, interim earnings, and net backpay for the se-
cond quarter of 2008, the judge arrived at one backpay
figure in his analysis but used a different figure in his
calculations. In each case we rely on the figure that cor-
responds with Appendix A-2 as amended.
Carbilio Flores
The attached Appendix 2 corrects several inadvertent
mathematical and typographical errors in the judge’s
calculations that affect Flores’s interim earnings for the
second, third, and fourth quarters of 2004; his interim
earnings and net backpay for the third quarter of 2008;
and his net backpay for the fourth quarters of 2000 and
2001, the first quarter of 2004, the fourth quarter of
2007,7 and the first and fourth quarters of 2008.
Lorenzo Macua
The attached Appendix 3 corrects certain inadvertent
mathematical and typographical errors in the judge’s
calculations of Macua’s gross backpay for the third and
fourth quarters of 2001 and the second quarter of 2002,

5 The following calculations relating to Castro, Flores, and Macua
relied on superseded versions of the backpay specification’s appen-
dices: Macua’s sick pay; Flores’s gross and net backpay for the second
quarter of 2008 and his sick pay, vacation pay, and pension benefits;
and Castro’s interim earnings for the third quarter of 2001, gross
backpay for the second and third quarters of 2006, interim earnings and
net backpay for the first quarter of 2008, and interim earnings for the
second quarter of 2008.
6 The specific calculations affected are Castro’s net backpay for the
third quarter of 2000, net backpay for the second quarter of 2001, net
backpay for the fourth quarter of 2002, interim earnings for the third
and fourth quarters of 2003, net backpay for the first quarter of 2005,
interim earnings and net backpay for the third quarter of 2005, interim
earnings and net backpay for all quarters in 2006, interim earnings for
the first quarter of 2008, gross backpay and net backpay for the fourth
quarter of 2008, and interim earnings and net backpay for the first
quarter of 2009.
7 In addition to the mathematical errors identified by the Acting
General Counsel, we correct Flores’ net backpay figure in fourth quar-
ter of 2007 from $1085 to $1084, which results in total net and backpay
figures of $128,437 and $150,756, respectively.
his net backpay for the third quarter of 2002, his interim
earnings for the fourth quarter of 2004, and his interim
earnings and net backpay for the third and fourth quarters
of 2003 and the second quarter of 2005.
In addition, we modify the judge’s calculations of
Macua’s interim earnings and net backpay for the third
and fourth quarters of 2006. Pursuant to Performance
Friction Corp., 335 NLRB 1117, 1136 (2001), and Re-
gional Import & Export Trucking Co., 318 NLRB 816,
818 (1995), when a discriminatee works substantially
more hours for an interim employer than would have
been the case had the discriminatee still worked for the
respondent, only interim earnings based on the same
number of hours as were available at the respondent are
offset against gross backpay. Because Macua worked
substantially more hours at his interim employers than he
would have at the Respondent during certain quarters, we
reduce his interim earnings and modify his net backpay
as detailed in Appendix 3.
Finally, as set forth in Appendix 3, the judge inadvert-
ently misstated Macua’s interim earnings for 2007. We
correct those amounts to be consistent with Macua’s W-
2s, and we modify his net backpay accordingly.
AMENDED ORDER
The National Labor Relations Board orders that the
Respondent, J.J. Cassone Bakery, Inc., Portchester, New
York, its officers, agents, successors, and assigns, shall
make payments to the following individuals in the fol-
lowing amounts:
Lorenzo Macua
Total net backpay of $79,990 plus interest.
Vacation pay of $7279 plus interest.
Sick pay of $3053 plus interest.
Pension benefit of $5430 plus interest.
Total = $95,752
Carbilio Flores
Total net backpay of $128,437 plus interest.
Vacation pay of $11,244 plus interest.
Sick pay of $3527 plus interest.
Pension benefit of $7548 plus interest.
Total = $150,756
Jose Castro
Total net backpay of $160,678 plus interest.
Vacation pay of $12,978 plus interest.
Sick pay of $3838 plus interest.
J.J. CASSONE BAKERY 953

Pension benefit of $7419 plus interest.
Total = $184,923

Adan Aguilar
Total net backpay of $1204 plus interest
Total = $1204
Cesar Calderon
Total net backpay of $5214 plus interest.
Vacation pay of $66 plus interest.
Sick pay of $39 plus interest.
Total = $5319

TOTAL BACKPAY = $437,954

APPENDIX 1
Backpay Calculations for Jose Castro

Year Qtr Gross
Backpay
Interim
Earnings
Net
Backpay
2000 2nd $4593 $220.50 $4372
2000 3rd $6634 $1830 $4795
2000 4th $6634 $2855 $3780
2001 1st $6634 $2912 $3722
2001 2nd $6634 $2912 $3722
2001 3rd $6946 $1943 $5003
2001 4th $6946 $3553 $3393
2002 1st $6946 $2692 $4254
2002 2nd $6946 $2692 $4254
2002 3rd $6946 $2692 $4254
2002 4th $7258 $2692 $4566
2003 1st $7258 $3140 $4118
2003 2nd $7258 $1401 $5856
2003 3rd $7258 $1121 $6137
2003 4th $7258 $1121 $6137
2004 1st $7569 $1380 $6189
2004 2nd $7569 $2990 $4579
2004 3rd $7569 $2990 $4579
2004 4th $7569 $2300 $5269
2005 1st $5822 $0 $5822
2005 2nd $7569 $1866 $5703
2005 3rd $7881 $1866 $6016
2005 4th $7881 $1436 $6445
2006 1st $7881 $3574 $4307
2006 2nd $4851 $2225 $2626
2006 3rd $7882 $1907 $5975
2006 4th $7881 $3573 $4308
2007 1st $8079 $4222 $3857
2007 2nd $8452 $2273 $6179
2007 3rd $7967 $1949 $6018
2007 4th $8224 $4222 $4002
2008 1st $7507 $4336 $3171
2008 2nd $3707 $2335 $1372
2008 3rd $0 $0 $0
2008 4th $5840 $2483 $3357
2009 1st $5018 $2477 $2541

Total Net: $160,678

Vacation: $12,978
Sick: $3838
Pension: $7419
TOTAL: $184,923

APPENDIX 2
Backpay Calculations for Carbilio Flores

Year Qtr Gross
Backpay
Interim
Earnings
Net
Backpay
2000 1st $318 $0 $318
2000 2nd (no backpay owed)
2000 3rd $2122 $650 $1472
2000 4th $6897 $3220 $3677
2001 1st $6897 $2500 $4397
2001 2nd $6897 $0 $6897
2001 3rd $7239 $0 $7239
2001 4th $7239 $2500 $4739
2002 1st $7239 $1962.50 $5277
2002 2nd $7239 $1962.50 $5277
2002 3rd $7239 $1962.50 $5277
2002 4th $7581 $1962.50 $5619
2003 1st $7581 $2742 $4839
2003 2nd $7581 $4160 $3421
2003 3rd $7581 $2309 $5272
2003 4th $7581 $2112 $5469
2004 1st $7924 $2112 $5812
2004 2nd $7924 $5290 $2634
2004 3rd $7924 $5290 $2634
2004 4th $7924 $5290 $2634
2005 1st $7924 $6262 $1662
2005 2nd $7924 $6262 $1662
2005 3rd $8266 $6262 $2004
2005 4th $8266 $6262 $2004
2006 1st $8266 $6804 $1462
2006 2nd $6994 $6804 $190
2006 3rd $8266 $2473 $5793
2006 4th $6359 $1625 $4734
2007 1st $6359 $1625 $4734
2007 2nd $8266 $5455 $2812
2007 3rd $8266 $5455 $2812
2007 4th $6539 $5455 $1084
2008 1st $8037 $5444 $2593
2008 2nd $6697 $5444 $1253
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 954
2008 3rd $6670 $4070 $2600
2008 4th $7256 $1658 $5598
2009 1st $3531 $995 $2536

Total Net: $128,437

Vacation: $11,244
Sick: $3527
Pension: $7548
TOTAL: $150,756

APPENDIX 3
Backpay Calculations for Lorenzo Macua
Interim Earnings and Net Backpay for the second and
third quarters of 2006:
Had Macua worked for the Respondent in these quar-
ters, he would have averaged 53.4 hours per week in the
third quarter and 48.6 hours per week in the fourth; at his
interim employers, he worked 65 hours in the third (40
for Park, 25 for Guardian) and 62 in the fourth (37 for
Park, 25 for Guardian). We therefore reduce his interim
earnings for the third quarter by $234.32 (difference of
11.6 hours x $10.10 [Guardian wage] x 2 weeks) and for
the fourth quarter by $1759.42 (difference of 13.4 hours
x $10.10 x 13 weeks). Macua’s interim earnings to be
offset against gross backpay for these quarters are there-
fore $1871 and $8689, respectively, and his net backpay
for these quarters is $4269 and $0, respectively.
Interim Earnings and Net Backpay for 2007:
The judge incorrectly found that Macua earned $1600
from Park Masonry and $13,975 from Guardian in 2007.
Macua’s W-2s show he earned $1680 and $13,074.83,
respectively. The $1680 from Park was earned during
the first quarter; his earnings from Guardian translate to
$3269 per quarter. As Guardian was Macua’s only em-
ployer during the second, third, and fourth quarters, we
modify his interim earnings for those quarters according-
ly and recalculate his net backpay as $2495, $2283, and
$2274, respectively.
During the first quarter, Macua worked 24 hours a
week at Park Masonry for the first four weeks and 25
hours a week at Guardian. He therefore worked 49 hours
a week for the first four weeks, compared to 46.36 hours
a week he would have worked at the Respondent. Ap-
plying Regional Import and Export, we reduce Macua’s
interim earnings for the first quarter by $106.66 (differ-
ence of 2.64 hours x $10.10 x 4 weeks) resulting in total
interim earnings of $4842 and net backpay of $214.

Year Qtr Gross
Backpay
Interim
Earnings
Net
Backpay
2000 3rd (unavailable for work) $0
2000 4th $5995 $160 $5835
2001 1st $5995 $0 $5995
2001 2nd $5995 $2249 $3756
2001 3rd $6321 $5848 $473
2001 4th $6321 $5848 $473
2002 1st $6028 $5458 $569
2002 2nd $5684 $5458 $226
2002 3rd $5692 $5458 $234
2002 4th $5719 $5458 $261
2003 1st $5556 $0 $5556
2003 2nd $6048 $1258 $4790
2003 3rd $5961 $3399 $2562
2003 4th $5365 $5210 $155
2004 1st $5586 $2628 $2958
2004 2nd $5809 $2267 $3542
2004 3rd $6440 $3612 $2829
2004 4th $6772 $6303 $469
2005 1st $6924 $5262 $1662
2005 2nd $5972 $3609 $2363
2005 3rd $6079 $1111 $4968
2005 4th $6234 $0 $6234
2006 1st $5663 $0 $5663
2006 2nd $5850 $0 $5850
2006 3rd $6139 $1871 $4268
2006 4th $5398 $8689 $0
2007 1st $5056 $4842 $214
2007 2nd $5764 $3269 $2495
2007 3rd $5552 $326 $2283
2007 4th $5543 $3269 $2274
2008 1st $5863 $4819 $1043

Total Net: $79,990

Vacation: $7279
Sick: $3053
Pension: $5430
TOTAL: $95,752

Margit Reiner, Esq. and Olga Torres, Esq., for the General
Counsel.
Marc L. Silverman, Esq., for the Respondent.
Jeffrey Freund, Esq., for the Union.
SECOND SUPPLEMENTAL DECISION
I. STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
backpay case in New York City in March, April, and May
2010.
On June 26, 2007, the Board at 350 NLRB 86 (2007), con-
cluded that the Respondent violated the Act in certain respects
and issued an Order requiring the Respondent to make whole,
with interest, Cesar Calderon, Adan Aguilar, Cabrilio Flores,
José Mario Castro, Lorenzo Macua, and Roberto Lostanau.
This Order was enforced by the United States Court of Appeals
for the District of Columbia on January 23, 2009. The backpay
J.J. CASSONE BAKERY 955
specification was issued by Region 2 of the National Labor
Relations Board on November 30, 2009.
With respect to Aguilar, the Board majority concluded, con-
trary to the Administrative Law Judge that his discharge was
justified but that a suspension issued to him was not. Accord-
ingly, the Board’s Order required the Respondent to make him
whole only for the period of his suspension and did not require
the Respondent to offer him reinstatement. In the backpay
specification as amended, the General Counsel asserts that the
backpay period for Aguilar is from November 12 to December
20, 1999, at which time his suspension ended. The calculations
that the General Counsel allege as owing to Aguilar are con-
tained in Appendix A-1. The Respondent admitted that the
backpay period is correct and that the gross backpay figures
alleged by the General Counsel are correct.
With respect to Jose Castro, the backpay specification as
amended asserts that the backpay period starts on April 4, 2000,
and ends on March 4, 2009, which is when the Respondent
made a valid offer of reinstatement to him. The calculations
that the General Counsel alleged as owing to Castro are con-
tained in Appendix A-2. The Respondent admits that the
backpay period is correct and that the gross backpay figures
alleged by the General Counsel are correct.
With respect to Carbilio Flores, the backpay specification as-
serts that the backpay period runs from March 8–11, 2000,
(during a three day suspension), and from September 3, 2000,
through March 3, 2009, at which time the Respondent made a
valid reinstatement offer. The calculations that the General
Counsel alleged as owing Flores are contained in Appendix A-3
as amended. The Respondent admits that the backpay period is
correct and that the gross backpay figures alleged by the Gen-
eral Counsel are correct.
With respect to Lorenzo Macua, the backpay specification
asserts that the backpay period runs from July 5, 2000, to
March 4, 2009, at which time the Respondent made a valid
reinstatement offer. The calculations that the General Counsel
alleged as owing Macua are contained in Appendix A-6. The
Respondent admits that the backpay period is correct and that
the gross backpay figures alleged by the General Counsel are
correct.
With respect to Cesar Calderon, the backpay specification
asserts that the backpay period runs from November 3, 1999, to
March 31, 2001, at which time he removed himself from the
New York metropolitan are labor market. As noted in the un-
derlying Decision, Calderon was a “salt” and as discussed be-
low, he only sought employment at nonunion bakeries after he
was discharged by the Respondent. It argues, inter alia, that
this should not be considered as a sufficient mitigation effort on
the part of this discriminate. The calculations that the General
Counsel alleged as owing Calderon are contained in Appendix
A-6. The Respondent admits that the backpay period is correct
and that the gross backpay figures alleged by the General
Counsel are correct.
At the hearing the parties settled the backpay claim for Rob-
erto Lostaunau. Therefore, his situation is not included in this
Decision.
In addition to monetary wages, the General Counsel set forth
in the respective appendices, certain amounts of money alleged-
ly owed by the Respondent to some of the discriminates for
pension payments, sick pay, and vacation pay. These were
calculated in accordance with the Respondent’s policies in
existence during the backpay period. The Respondent does not
challenge the method by which these benefits were calculated.
In the case of Aguilar, the General Counsel did not calculate an
amount for pension benefits because the Board decided that he
was lawfully terminated. Also, no pension benefit was calcu-
lated for Cesar Calderon because he would not have worked the
2-year period that would have qualified him for this benefit.
In relation to the gross backpay figures, there is no dispute
about the way that the amounts were calculated. That is, the
parties agreed on the wage rates and the overtime rates that the
discriminatees would have earned during the backpay period.
They also agreed on the amount of regular and overtime hours
that each discriminate would have worked during each quarter
of the backpay period. In addition, the General Counsel has,
with one exception, tolled the backpay period for any period of
time that the discriminates were out of the country or were
otherwise unavailable for work due to injury, sickness, or a
requirement that a discriminate had to care for a sick relative.
Accordingly, the gross backpay calculations, including the
derivative “benefit calculations, are largely not in dispute.
That is not to say that there are no disputes in this case. For
example, in one instance, a discriminate testified that he was
injured while working at a private residence after his discharge
from the Respondent. The General Counsel asserts that this was
a work related injury and therefore his unavailability for work
did not disqualify him from backpay during the period of his
injury. The Respondent contends otherwise. Additionally, the
Respondent contends that the discriminates did not make ade-
quate efforts to mitigate their loss of earnings, in that they ei-
ther made inadequate searches for work or quit or were fired
from interim jobs. All of these issues will be discussed below.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
II. FINDINGS AND CONCLUSIONS
(a) General Principles
The general principles governing backpay proceedings are
well settled. A finding of an unfair labor practice is presump-
tive proof that some backpay is owed. NLRB v. Mastro Plastics
Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. denied 384 U.S.
972 (1966). If the General Counsel has shown the gross
backpay due in the specification, the Employer has the burden
of establishing affirmative defenses which would mitigate his
liability, including willful loss of earnings and interim earnings
to be deducted from the backpay award. NLRB v. Brown &
Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963); see also Sioux
Falls Stock Yards Co., 236 NLRB 543 (1978). And although a
Board majority in St. George Warehouse, 351 NLRB 961
(2007), held that the General Counsel has the burden of produc-
ing evidence concerning an employee’s efforts to find interim
employment, the Board reaffirmed the long standing principle
that the employer still bears the ultimate burden of persuasion
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 956
concerning whether discharged employees made an adequate
search for work.
A Respondent does not meet its burden of proof simply by
presenting evidence of lack of employee success in obtaining
interim employment or of so-called "incredibly low earnings.”
It must affirmatively demonstrate that the employee did not
make reasonable efforts to find interim work. NLRB v. Miami
Coca-Cola Bottling Co., 360 F.2d 569, 575–576 (5th Cir.
1966).
A Respondent cannot merely rely upon cross-examination of
the claimant and allegedly impeaching testimony. NLRB v.
Inland Empire Meat Co., 692 F.2d 764 (9th Cir. 1982). The
evidence must establish that during the backpay period there
were sources of actual or potential employment that the claim-
ant failed to explore and must show if, where, and when the
discriminatee would have been hired had they applied. Id. at
1308; McLoughlin Mfg. Corp., 219 NLRB 920, 922 (1975);
Isaac & Vinson Security Services, 208 NLRB 47, 52 (1973).
Champa Linen Service Co., 222 NLRB 940, 942 (1976).
Although discriminatees are required to make reasonable ef-
forts to mitigate a loss of income, they are held only to reason-
able exertions, not to the highest standard of diligence. NLRB
v. Arduini Mfg. Co., 384 F.2d 420, 422–423 (1st Cir. 1968);
Otis Hospital, 240 NLRB 173, 175 (1979). Lack of success, by
itself, is not the measure of the sufficiency of a search for em-
ployment. A discriminate is only required to make an “honest,
good faith effort.” NLRB v. Cashman Auto Co. & Red Cab Co.,
223 F.2d 832, 836 (1st Cir. 1955).
A discriminatee is not required to apply for each and every
possible job that might have existed in the industry, or even to
apply for work during each and every quarter. Champa Linen
Service, supra at 942; The Madison Courier, Inc., 202 NLRB
808, 814 (1973); Sioux Falls Stock Yards, supra at 551; Corn-
well Co., 171 NLRB 342, 343 (1968). What constitutes rea-
sonable efforts depends upon the circumstances of each case,
an examination of the entire backpay period. It does not de-
pend upon a purely mechanical examination of the number or
kind of applications for work made by the discriminatees.
Cornwell Co., supra; Mastro Plastics Corp., supra at 1359. In
determining the reasonableness of an employee’s effort, his or
her skill, qualifications, age and labor conditions in the area are
factors to be considered. Id. Even where the evidence raises
doubt as to diligence, discriminatees must receive the benefit of
the doubt rather than the respondent wrongdoer whose conduct
has created the situation giving rise to the uncertainty. NLRB v.
Miami Coca-Cola Bottling Co., 360 F.2d at 572–5573; Neely's
Car Clinic, supra at 1421; George A. Angle, supra at 1157, enfd
683 F.2d 1296 (10th Cir. 1982); Otis Hospital, 240 NLRB at
174.
The Board has also held that poor recordkeeping, uncertain
memory and even exaggeration do not necessarily disqualify an
employee from receiving backpay. George A. Angle, supra at
1159; Sioux Falls Stock Yards, supra at 559–560. It is not
unusual nor suspicious if a discriminatee cannot accurately
recall details of a work search undertaken several years before.
United Aircraft Corp., 204 NLRB 1068 fn. 4 (1973). In the
present case, the backpay period began 10 years before the
hearing in this matter commenced.
Although a willful concealment of interim earnings will war-
rant a denial of benefits for the period of the concealment, the
mere existence of discrepancies to reported income is insuffi-
cient to establish a willful concealment of earnings. Cibao
Meat Products, 348 NLRB 47 (2007), and Parts Depot, Inc.,
348 NLRB 152 (2006). Also, the Board has found that the
“mere suspicion and uncertainty” created by third party docu-
ments are insufficient to meet the employer’s burden of proving
that the General Counsel’s interim earnings calculations were
not accurate, Cibao, supra at 48.
It should be noted that the Board and the courts have held
that:

It is not enough that the respondent thinks that employees
should have been able to secure jobs. Suspicion and surmise
are no more valid bases for decision in [the] backpay hearing
than in an unfair labor practice hearing. The Laidlaw Corpo-
ration, 207 NLRB 591, 594, enfd, 507 F.2d, 1381 (7th Cir.
1974), cert. denied 422 U.S. 1042 (1975).

There is a general rule that an employer is ordinarily not lia-
ble for backpay for periods when an employee is unavailable
for work due to illness or a disability. NLRB v. Louton, Inc. 822
NLRB 413, 415 (3d Cir. l987); Canova v. NLRB, 708 F.2d
l498 (9th Cir. l983); American Mfg. Co. of Texas, l67 NLRB
(l967). Cf. Jenkins Index Corp. 283 NLRB 457 fn. 3 (l987).
But see Superior Export, 299 NLRB 61, where employee col-
lecting disability benefits under Social Security because of
deafness not automatically excluded from backpay.
In American Mfg Co. of Texas, supra, the Board held that the
employer was liable for backpay during a period where the
discriminate was unavailable for work due to an injury occur-
ring at an interim employer. The Board stated;

The origins and causes of infections and organic infirmities,
such as influenza and heart attacks, for example, are usually
not known and cannot be determined or assumed. It is ordi-
narily reasonable to assume, however, that absences from
work because of such illnesses would probably have occurred
even if the employee had not been discharged. As the claim-
ant's loss therefore cannot be said to have a likely relationship
to the unlawful discrimination, disallowance of backpay for
all periods of unavailability because of such illnesses is proper

. . . .

The same underlying reasoning does not, however, apply to
periods of illness, which occur because of industrial accidents
suffered during the course of interim employment or are oth-
erwise attributable to the unlawful conduct of the Respondent.
The causes of such ailments are known and attributable to
events which would not have taken place, or to environmental
factors which would not have been present, had the employee
not been unlawfully removed from his employment in the Re-
spondent's plant. . .

Where an interim disability is closely related to the nature of
the interim employment or arises from the unlawful discharge
and is not a usual incident of the hazards of living generally,
the period of disability will not be excluded from backpay.
Consonant with its obligation to establish deductions from
J.J. CASSONE BAKERY 957
backpay, the Respondent continues to have the burden of
demonstrating that an excludable period of absence from
work because of illness has taken place, and the General
Counsel may rebut this by showing the unusual nature of the
disability, its causes, probable relation to the unlawful dis-
charge because of the hazards of interim employment, search
for work, etc. (Case citations omitted).

There are also cases dealing with the consequences of a
discriminatee quitting or being fired from an interim job.
In Newport News Shipbuilding, 278 NLRB 1030 fn 1.
(1986), the Board held that being discharged from an interim
job will not cause a loss of backpay due to a failure to mitigate,
unless the discharge was caused by the employee’s willful or
gross misconduct. The Board also held that although quitting an
interim job may constitute a willful loss of earnings warranting
a reduction of backpay, the job being quit must be equivalent to
the job that the discriminatee had at the Respondent at the time
of his or her unlawful discrimination. See also Met Food, 337
NLRB 109 (2001).
(b) Lorenzo Macua
Macua was illegally discharged on July 5, 2000 (during the
third quarter of 2000). At the time of his discharge, he was
employed to do physical labor in the bakery. As an employee
of J.J. Cassone, Macua’s earnings were higher than the New
York or Federal minimum wage rates. He also was entitled to
other benefits such as vacation and sick pay plus the right to
participate (after an appropriate period of eligibility), in the
employer’s retirement plan. Before his discharge, Macua had a
work related injury and received a workers’ compensation
award relating to that injury which limited his ability to lift
things with his left arm.
Macua was born in Mexico and his original language is
Spanish. Before coming to the United States, he had obtained a
grade school level education and worked as a farmer. He can
neither read nor write English and can’t speak much English
either. He does not drive a car and relies on his sons to drive
him to and from work. As far as I can see, Macua looks physi-
cally fit and is about 53 years old at the present time. Except
for the period immediately after his discharge, Macua did not
suffer any disabilities or illnesses during the backpay period.
The Respondent asserts that Macua was an untruthful wit-
ness pointing to lapses in memory and contradictions between
his testimony and documentary evidence. But it must be re-
called that this hearing took place almost 10 years after his
initial unlawful discharge by the Respondent and these lapses
are typical of people trying to accurately recollect events that
happened so long ago. See for example, Lizdale Knitting Mills,
232 NLRB 592, 599 (1977). Contrary to the Respondent’s
contention, I thought that Macua was an honest witness doing
his best to recollect and give detail to his search for work and
his job history after his illegal discharge. Nor am I impressed
with the Respondent’s contention that Macua should have kept
better records. Macua, who is barely educated, had no legal
obligation to keep records. Allegheny Graphics, 320 NLRB
1141, 1145 (1996), enf. granted 113 F.3 845 (8th Cir. 1997).
The backpay calculations asserted by the General Counsel
were set forth in Appendix A-5 to the specification and in Gen-
eral Counsel Exhibit 77. But due to last minute revisions, this
was again revised as Exhibit C to the General Counsel’s Brief.
2000
As noted above, Macua was discharged by the Respondent in
the third quarter of 2000. Because of his predischarge injury,
and because he had more time available after his discharge, he
underwent a course of physical therapy after his discharge.
Thus, according to Macua he started at three times per week,
after which it was reduced to 2 days a week and then to 1 day
per week. According to a pretrial statement that Macua gave to
a Board agent, he did not begin to look for work for 3 to 4
months after his discharge because he was so physically injured
that he knew that he could not find a job. He testified that dur-
ing this period of time, he did not ask friends or family if they
knew of any available work.
For the third and fourth quarters of 2000, Macua had no reg-
ular job and had, with the exception of $160, no earnings dur-
ing that period of time. He testified that during this period and
after his appointments with the physical therapist were reduced
to 1 day a week, he searched for work by going to his church
where lists of employment openings were kept; that he visited
golf clubs; and other business in the local area and that he went
to an area in Portchester where day laborers gathered in the
morning in order to seek construction or other jobs.
Macua’s recollection of what efforts he took to look for work
in the second half of 2000 is, necessarily, obscured by the pas-
sage of time. However, it seems to me that it is more probable
that Macua’s memory was more accurately portrayed at the
time that he gave a statement to a Board agent. And while it
seems unfair that he should be penalized for not being able to
search for work when receiving therapy for a work related inju-
ry that he suffered while working at the Respondent, the appli-
cable law here is that he is not entitled to backpay during a
period of time when he was unavailable for work due to his
injury. Accordingly, I shall exclude backpay for the third quar-
ter of 2000 but not for the fourth quarter of 2000 which is ap-
proximately when he started to look for work.
I credit Macua’s testimony that he did in fact search for work
in 2000 and did so by asking friends about jobs; by going to his
neighborhood church which had job listings; by having his
daughter in law make phone calls to possible employers; and by
visiting a local corner in Portchester where Spanish speaking
men presented themselves each morning to prospective em-
ployers from the surrounding and more affluent areas of
Westchester and Connecticut (a kind of informal labor ex-
change).
The Respondent contends that Macua failed during 2000 and
thereafter to mitigate his losses by making an inadequate search
for work. I reject that contention at least with respect to
Macua’s search for work starting from the fourth quarter of
2000.
The Respondent asserts that there is another baking company
in Portchester called Neri Bakery within walking distance of
Macua’s residence where he could have sought employment.
And although the Respondent presented a witness who testified
that Macua visited the retail outlet of that bakery on a regular
basis, there is no evidence that Neri had job openings at the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958
time that Macua was seeking work in 2000 or that he was ever
offered a job at Neri. In fact, Macua credibly testified that at
some point before he obtained employment at Concrete Cutting
(described below), he asked for work at Neri and was told that
there was nothing available at that time..1
According to the Respondent, a failure to mitigate losses by
Macua and other of the discriminatees is shown by their failure
to utilize the Union to help them obtain jobs. But this was not
available to them because the Union has contracts with a lim-
ited number of bakeries in New York (many far distant from
Portchester), and those companies have no contractual obliga-
tion to use the union as a source of hiring. The Union does not
have a hiring hall or an active referral service.
The Respondent presented an “expert” witness who testified
that in her opinion, there were plenty of jobs that Macua could
have done. Apart from the fact that this person is not a labor
economist and has little or no experience in dealing with un-
skilled, non-English speaking people, her methodology in mak-
ing these conclusions as relating to Macua and the other
discriminatees, was essentially useless. Basically, she looked
through the local English language newspaper and designated
certain jobs that she felt the discriminatees could fill within a
25-mile radius of where they lived. (Portchester). She could
not say if any of the listed jobs during the periods of time of
their listing were actually available or would have been suitable
for or offered to Macua or the other discriminates. In fact,
many of the listed jobs required the ability to speak and/or read
and write English, a skill set that Macua and other of the
discriminatees simply did not adequately have. Moreover,
many of these jobs would have required either the use of a pri-
vate vehicle or the utilization of public transportation that
would have taken hours for Macua to use each day even if he
obtained a job offer.
Considering such cases as St. George Warehouse, 353
NLRB 497, 508 (2008), and Ernst and Young, 304 NLRB 178,
179 (1991), I conclude that the “expert” testimony has not
demonstrated that Macua did not make an adequate search for
work staring in the fourth quarter of 2000 or thereafter. In fact,
the evidence shows quite clearly that Macao made a diligent
search for work and was fairly successful in his efforts. Accord-
ingly, for the year 2000, I conclude that his backpay is as fol-
lows:

Q3 No search for work due to injury. Net backpay = $0
Q4. Gross backpay of $5,995 –Interim earnings of $160 =Net
backpay $5835

2001
Macua testified that he had no interim earnings during the
first quarter of 2001 despite his efforts to gain employment in
the manner described above.

1 I note that even though Macua and the other discriminatees worked
at Cassone which is a wholesale bakery, it would not be unreasonable
for them to first look for equivalent paying jobs elsewhere. The testi-
mony regarding Neri Bakery is that the pay rate was low, the hours
exceedingly long, the job physically demanding, and the nonwage
benefits minimal.
On or about May 25, 2001, Macua got a job at Concrete Cut-
ting Company Inc., where his rate of pay was $10 per hour.
(He therefore commenced interim employment in week seven
of quarter 2 which begins in April.) The evidence suggests that
Macua worked at this company from May 23, 2001, to mid-
October 2001 when he was let go. During 2001 his earnings
from Concrete Cutting were $13,945 and the General Counsel
reasonably allocated his interim earnings by multiplying
Macua’s weekly earnings ($449.83), times the number of
weeks worked during each quarter.2 Therefore his net backpay,
(exclusive of pension, vacation or sick leave benefits), for 2001
were as follows:

Q1. Gross backpay of $5995 – Interim earnings of $0 = Net
backpay $5995
Q2. Gross backpay of $5995 – Interim earnings of $2249 =
Net backpay $3746
Q3. Gross backpay of $5995 – Interim earnings of $5848=
Net backpay $147
Q4. Gross backpay of $5995 – Interim earnings of $5848=
Net backpay $147.
2002
It appears that Macua worked for Concrete Cutting for most
of 2002 although he left or was more likely laid off before the
end of the year. (It seems likely that Concrete Cutting was sub-
ject to a degree of seasonality and laid off people during the
winter months.) A W2 form from Concrete Cutting showed
that Macua earned $21,832 during all of 2002. (He had re-
ceived a raise to $11 per hour.) Since the testimony was not
certain as to the dates of his employment by Concrete Cutting,
the General Counsel ultimately and justifiably allocated his
yearly income at $5458 per quarter. Therefore Macua’s net
backpay (exclusive of pension, vacation, or sick leave benefits),
for 2002 should be as follows:

Q1 Gross backpay of $6028 – Interim earnings of $5458 =
Net backpay $569($570)
Q2 Gross backpay of $5682 – Interim earnings of $5458 =
Net backpay $224
Q3 Gross backpay of $5682 – Interim earnings of $5458 =
Net backpay $224
Q4 Gross backpay of $5719 – Interim earnings of $5458 =
Net backpay $261
2003
The evidence relating to Macua’s work history in 2003 was
somewhat confusing. There is documentation that he worked
during that year for Concrete Cutting, for a company called
Laro Services and for a company called CMT Home Improve-
ments. In all, he earned $5611 from Concrete Cutting; $2516
from Laro and $1740 from CMT. The problem is figuring out
when he worked for these companies.
In an e-mail from Laro to the Board, that company stated
that Macua worked for them from May 16 to September 19,
2003. However, it is not clear at all when Macua worked for
Concrete Cutting or CMT.

2 Most numbers are rounded up to the nearest dollar.
J.J. CASSONE BAKERY 959
Macua testified that he thought he started to work for Laro in
September which is in the third quarter of 2003. The compli-
ance officer therefore allocated his earnings ($2516) from Laro
to that quarter.
Macua also testified that he got the job at CMT after he was
laid off by Laro and we know that he had earnings in 2003 from
that Company in the amount of $1740.
Regarding Concrete Cutting, Respondent Exhibit 4 shows
that Macua told the compliance officer that he returned to work
at Concrete Cutting on or about September 23, 2003, and that
he worked there until Thanksgiving in November 2003. This
would represent 1 week in the third quarter of 2003 and approx-
imately 8 weeks during the fourth quarter of 2003.
Since the evidence suggests that Macua had been laid off by
Concrete Cutting during the preceding year as a seasonal event,
it seems most probable that in 2003, he first worked for Laro
from the Spring to the Fall and that he worked at CMT during
the hiatus between his job at Laro and his return to Concrete
Cutting. Based on the above, it appears that as Macua worked
for Laro during about half of the second quarter of 2003 and
about half during the third quarter of 2003, I will therefore
allocate the total he received from Laro in equal parts to each of
those quarters ($1258). As to the third quarter, I will also as-
cribe all of interim earnings ($1740), from CMT and $401 from
Concrete Cutting to this period. Accordingly, as to the fourth
quarter, I calculate that Macua’s interim earnings from Con-
crete Cutting as $4910.
In light of the foregoing, I calculate Macua’s net back pay in
2003 as follows:

Q1 Gross backpay of $5556 – Interim earnings of $ 0 = Net
backpay $5556
Q2 Gross backpay of $6048 – Interim earnings of $ 1258 =
Net backpay $4790
Q3 Gross backpay of $5961 – Interim earnings of $ 2141 =
Net backpay $3820
Q4 Gross backpay of $5365 – Interim earnings of $ 4910 =
Net backpay $ 455
2004
The evidence tends to show that Macua continued to work
for CMT in the first quarter of 2004 until that company closed.
A W2 form from that employer shows that Macua earned
$1610 during 2004.
After losing his job at CMT, Macua resumed searching for
work in the manner described above. Based on payroll records,
he obtained a job at Sodexho Management which is a company
that provided laundry services for a local hospital. These rec-
ords show that he worked at this job from March 1 to May 14,
2004, that his rate of pay was $6.80 per hour and that his total
earnings from Sodexho were $2241. (Therefore his interim
earnings from Sodexho would have been in the first and second
quarters of 2004.)
According to Macua, he left the Sodexho job because he ob-
tained a better and higher paying job in the kitchen at the Rye
High School. In this regard, it seems that Macua first started
working at the school in late May through a contractor (Labor
Ready), until the end of the school term in June. He then was
put on the school’s direct payroll after the summer vacation.
The school’s records show that he was on their payroll from
about September 3, 2004, until February 25, 2005. A W2
statement shows that he earned $4476 in 2004 and $1653 in
2005.
The evidence shows that during the summer of 2004, Macua,
managed to obtain employment at a company called Guardian
Services where he was employed to do manual labor A pay stub
from Guardian shows that Macua began working on July 15,
2004, and his W2 statement shows that he earned $5438.75
from Guardian in 2004. He was assigned to work a shift from 6
to 11 p.m. at a commercial building located at 2000 Westches-
ter Ave., in Harrison, New York. Therefore, his interim earn-
ings from Guardian during 2004 were earned during the third
and fourth quarters of that year and the evidence shows that at
least for part of the year, he worked two jobs, one at Guardian
and that other at the Rye School.
In light of the above, I calculate Macua’s net back pay for
2004 as follows:

Q1 Gross backpay of $5586 – Interim earnings of $26283 =
Net backpay $2958
Q2 Gross backpay of $5809 – Interim earnings of $ 22674 =
Net backpay $ 3542
Q3 Gross backpay of $6440 – Interim earnings of $ 36125=
Net backpay $ 2829
Q4 Gross backpay of $6772 – Interim earnings of $ 63936=
Net backpay $ 469 ($379)

2005
After Christmas, Macua returned to the school and worked in
February until the first school break. The payroll records show
that he worked until February 25 and that he earned $1653
during the first quarter.
The Respondent contends that Macua resigned from the
school job in early 2005 and therefore should not be entitle to
any further backpay. I do not agree.
The Respondent offered into evidence a letter of resignation
purportedly signed by Macua and dated February 28, 2005.
This is a form letter that states:

I Lorenzo Macua have resigned my position as a food service
helper at the Rye City School District Food Service Depart-
ment.

I gave notice to John M Rubbo, Food Service Director, on
Monday at 1:20 p.m. of my intent to not return on Tuesday.
Therefore, my last day of work was Monday, February 14,
2005.

I understand that it is necessary for me to return my ID and
cleaned uniforms.

3 This figure is all earnings for CMT plus earnings made from So-
dexho during the first quarter of 2004.
4 This figure includes all of the remaining earnings from Sodexho
during 2004 plus his earnings from the school before the summer break
in June 2004.
5 This figure represents Macua’s earnings from the school and from
Guardian during the third quarter of 2004.
6 This figure represents earnings from the school and from Guardian
during the third quarter of 2004.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960
This form essentially is the same as other examples of resig-
nations that have been signed in the past by other employees.
The evidence shows that these types of “resignations” have
been solicited by management, usually when an employee has
not shown up for a while and the company wants confirmation
that he or she quit. The documents can therefore be used as a
means to show that an employee was not fired or laid off and
therefore would not be eligible for unemployment insurance.
Macua denied that the signature on the letter was his and de-
nied that he ever resigned. In fact, he testified that he was told
that he could not return to work because the company had hired
another employee in his stead.
I received into evidence a number of exemplars that were
unquestionably signed by Macua. I also had him quickly write
his signature 10 times on a piece of paper that was then re-
ceived into evidence as an ALJ exhibit. In my opinion, the sig-
nature on the resignation letter clearly and unequivocally does
not match any signature on either the ALJ exhibit or on any of
the other established exemplars. And although the Respondent
was well aware that the General Counsel intended to challenge
the assertion that Macua resigned, the Respondent did not pro-
duce at the trial, John Rubbo, the person who allegedly ob-
tained and witnessed Macua’ resignation.7
Moreover, even if Macua had resigned (which I do not be-
lieve), such resignation would not disqualify him from back
pay because the job at the school was not equivalent to his job
at Cassone. Glover Bottled Gas, 313 NLRB 43 (1993), enfd. 47
F.3d 1230 (D.C. Cir. 1995).
At the school Macua was paid $9.75 per hour. He also en-
rolled in a retirement plan pursuant to which 3 percent of his
pay was deducted and the employer matched up to some
amount. This, however, was at best, a 10 month job that ran
each year from late August to mid June. Employees were not
paid for the periods between Christmas and New Years, for a
week in February and for a school break in each April. At the
end of the school year, employees in the food service depart-
ment, if they were going to be retained, were given letters indi-
cating that there would be a job for them in the following
school year. For the 2 months that they did not work, they were
not paid. There was no health insurance and no sick leave or
vacation pay. While it is probable that the school job was phys-
ically less demanding than the one at Cassone, it is clear that
the jobs were not equivalent. Although the pay rate at the
school job was higher than at Cassone, Macua’s total income at
the school job was substantially lower than at Cassone because
he worked 27.5 hours per week on average and overtime pay
was virtually nonexistent. Additionally, at Cassone, he had
health care benefits, sick leave benefits, and a retirement plan.
In the meantime, Macua continued to work for Guardian and
a document indicates that he worked from January 1 through
July 31, 2005. (The first and second quarters of 2005 and about
four plus weeks during the third quarter.) A W2 from Guardian
shows that he earned $8329.50 during 2005. In this regard, the
evidence shows that he lost his job at Guardian in August 2005,

7 I rejected the Respondent’s motion to reopen the record in order to
have Rubbo testify in this case. See my Order dated July 14, 2010,
which is attached hereto as Appendix A.
albeit there is no evidence that he was discharged for willful or
gross misconduct.8 He resumed his search for work in the man-
ner described above.
At some point during either the third or fourth quarter of
2005, Macua was offered his job back at Guardian but he de-
clined because he had lost his ride to the jobsite. As noted
above, he was assigned to work at an office building in Harri-
son, New York, which was a bit more than three miles from his
home. When he worked there, he typically took a bus and had
a ride home at night. (His hours were from 6 to 11 p.m.) But
when his car ride was unavailable, and as bus service ceased
before 11 p.m., this would have required him to walk home,
late at night, a walk that even for a man in relatively good
shape would take about 50–60 minutes. Harrison is an affluent
suburb in Westchester and Portchester is low income town
nearby. I am not suggesting that Portchester is inherently un-
safe at night. What I am concluding is that Macua’s choice to
forego this job because it would have required him to walk
three miles late at night was not unreasonable in my opinion.
See Allied Lettercraft Co., 280 NLRB 979, 982 (1986).
In light of the above, I calculate Macua’s net back pay for
2005 as follows:

Q1 Gross backpay of $6924 – Interim earnings of $52629=
Net backpay $1662
Q2 Gross backpay of $5972 – Interim earnings of $3698 =
Net backpay $2224
Q3 Gross backpay of $6079 – Interim earnings of $1111 =
Net backpay $4968
Q4 Gross backpay of $6234 – Interim earnings of 0 = Net
backpay $6234

2006
As noted above, Macua declined a job offer from Guardian
that was made to him in the latter part of 2005. His next job
did not come until September 2006 and the question is what
happened in between.
Macua testified that he searched for work in the same man-
ner described above and could not find a job. Although the
Respondent suggests that Macua did not look hard enough, it
has not, in my opinion produced evidence either that he failed
to look for work, that he quit employment equivalent to his job
at Cassone, that he turned down any equivalent job offers or
that he was discharged from any interim employer for willful or
gross misconduct.

8 In this instance, the evidence is that after receiving a leave of ab-
sence, Macua was replaced by some else. In Newport News Shipbuild-
ing, 278 NLRB 103, 1033 (1986), the Board held that a discharge from
an interim job even for just cause, does not necessarily result in a find-
ing of a failure to mitigate.
9 The General Counsel calculated that as Macua’s 2005 earnings
from Guardian were $8329.50 and as he worked at total of about 30
weeks for that company in 2005, that his weekly earnings were $277.65
per week or $3609.45 during each of the first two quarters of 2005. For
the third quarter, his interim earnings would have been $1111 because
he worked only 4 weeks during that period. This seems to me to be
correct. For the first quarter, I therefore calculate that Macua had inter-
im earnings from Guardian and the Rye school (both part-time jobs)
that totaled $5262.
J.J. CASSONE BAKERY 961
On or about September 6, 2006, Macua obtained employ-
ment as a laborer at a company called Park Masonry (construc-
tion work). At this job, his rate of pay was $15 per hour and he
usually worked 40 hours a week. A document from Park Ma-
sonry shows that Macua was employed there from September 6
through January 23, 2007. A W2 from that company shows that
he earned $8760 during 2006 and this translates into weekly
earnings of $547.50.
On September 15, 2006, Macua was rehired by Guardian for
the night shift and he worked both jobs at the same time.10 He
accepted the job this time because his son was available to
drive him to and from the jobsite. Macua continued to work at
Guardian during the remainder of 2006 and a W2 shows that he
earned $3474 during that year which translates to $231.63 per
week. (He continued to work at Guardian during 2007 and
2008).
In view of the foregoing I conclude that his net backpay for
2006 is as follows:

Q1 Gross Backpay $5663 – Interim earnings 0 = Net backpay
$5663
Q2 Gross Backpay $5850 – Interim earnings 0 = Net backpay
$5850
Q3 Gross Backpay $6139 (I think this should be transposed to
$6319 – Interim earnings $2106 = Net backpay $4213
Q4 Gross Backpay $5398 – Interim earnings $10128 = Net
backpay 0
2007
Macua continued to work at Park Masonry until he was laid
off on January 23, 2007. His earnings from that company were
$1600. He also continued to work at Guardian and his earnings
for 2007 were $13,975. This translates to $3278 per quarter.
Based on the above, I calculate Macua’s net backpay as fol-
lows:

Q1 Gross Backpay $5056 – Interim earnings $4878 =Net
backpay $178
Q2 Gross Backpay $5764 – Interim earnings $3278 = Net
backpay $2486
Q3 Gross Backpay $5552 – Interim earnings $3278 = Net
backpay $2274
Q4 Gross Backpay $5543 – Interim earnings $3278 = Net
backpay $2265

2008 and 2009
The documentary evidence shows that Macua continued to
work at Guardian and that he earned $14,036 during 2008. On
or about March 1, he got a second job at the Sacred Heart High
School which is located in Greenwich, Connecticut.11 At Sa-
cred Heart, Macua worked a 5 day per week consisting of 8
hours per day. His hourly rate of pay was $12.50 and his total
income from this job in 2008 was $20,791.
The General Counsel in the final revised Appendix concedes
that during the second, third, and fourth quarters of 2008 and

10 The fact that Macua was willing to work two jobs at the same time
indicates to me that he was no slacker.
11 Greenwich, Connecticut, is the town directly to the north of
Portchester, New York.
for the first quarter of 2009, Macua is owed no net backpay
because his interim earnings were greater than the gross back
pay for those periods. As to the first quarter of 2008, the evi-
dence is that Macua’s earnings from two jobs worked simulta-
neously were $5443. However, the General Counsel, relying
on Performance Friction Corp., 335 NLRB 1117, 1136 (2001),
and the Section 10542.3 of the Board’s Compliance Manual,
argues that I should not deduct interim pay for hours worked in
excess of the number of hours that the discriminate would have
worked at the Respondent during the same period of time. She
calculates that the deductible interim earnings for the first quar-
ter should be calculated on the basis of the $49.55 hours that
Macua would have worked at Cassone had he not been dis-
charged. Therefore, the General Counsel contends that as the
combined hours (65) worked during this quarter at Guardian
(25 hours per week) and at Sacred Heart (40 hours per week)
exceed $49.55, the earnings from $15.45 hours should be de-
ducted from his interim earnings. As the General Counsel’s
calculation for interim earnings is consistent with the law, I
shall adopt her conclusion. Therefore,

Q1 Gross backpay $5862 – Interim Earnings $4819 = Net
backpay $1043

In addition to the net backpay amounts described above, the
Respondent owes Macua moneys for vacation pay, sick pay,
and pension contributions. Because I have concluded that
Macua is not entitled to backpay for the third quarter of 2000
because of his unavailability for work, I have recalculated the
amounts claimed by the General Counsel by reducing each
amount by one of the two quarters in 2000 that he was unavail-
able for work. (Reduction by one half). Therefore, I conclude
that the amounts are; $7279 for vacation pay, $3233 for sick
pay, and $5430 for the pension benefit. These amounts do not
include interest which must be added.
(c) Carbillo Flores
Flores was found to have been illegally suspended in March
2000 and thereafter illegally discharged on September 3, 2000.
It is agreed that his backpay period runs from March 8–11,
2000 and from September 3, 2000 through March 3, 2009,
when he offered reinstatement. The calculations for Flores
were originally set forth in Appendix A3 to the Specification.
However, the General Counsel’s final calculations are set forth
in General Counsel Exhibit 53. There is no dispute that for the
first quarter of 2000 (when he was suspended), his net backpay
is $318. There is no backpay for the second quarter of 2000 as
he was still employed by Cassone.
Flores who is originally from El Salvador, worked as a la-
borer at the Respondent and his hourly rate of pay at the time of
his discharge was $7.05. Flores has a fifth grade education and
basically worked as a farmer before his arrival in the United
States. Since arrival, he has mainly worked a number of odd
jobs which involved manual labor. In my opinion, the credible
evidence is that he neither speaks nor reads English well
enough to obtain work that would require those skills. When
he worked at Cassone, he lived in Portchester and had a 5 mi-
nute walk to work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 962
Like Macua, Flores looked for work by going to the informal
labor exchange that existed in Portchester and asking various
enterprises such as local restaurants and stores if they had jobs.
He did not have a car or license until 2008 and therefore was
limited in the geographic scope of his job search. Using public
transportation, he did search for work in White Plains and
Portchester, New York. He also went to Greenwich and Stam-
ford Connecticut. Usually these efforts consisted of visiting
stores, restaurants, construction sites, country clubs, etc.
In my opinion, Flores was an honest witness, who given the
circumstances of testifying about events occurring so long ago,
was trying to be as detailed and accurate as possible. There
were not doubt, lapses in memory, and resulting inaccuracies.
But to the extent possible, the General Counsel made substan-
tial efforts to seek and obtain documentary evidence regarding
his job search and job history to fill in the gaps. I reject the
Respondent’s contention that Flores was an untruthful witness
and I reject its contention that he had some kind of bookkeep-
ing obligation that should somehow adversely affect his
backpay.
2000
As noted above, the parties agree that the net backpay for
Flores for the first quarter is $318 and that there is no backpay
owing during the second quarter of 2000.
As in the case of Macua, the Respondent asserts that Flores
should have looked for a job at Neri Bakery. For the same
reasons set forth above, I reject this contention. I also note that
a discriminatee is not under any obligation to look for any par-
ticular job or the jobs that the Respondent would find suitable
for him.
In two affidavits that he gave to Board agents in 2009, Flores
recalled that he had various jobs as a day laborer by going to
the labor exchange in Portchester. In one of these affidavits, he
stated that about a week after he was discharged from Cassone,
he got a job doing work for a home owner and broke his leg. In
this regard, it seems that his memory as to the timing of these
events (that took place 9 years ago), was not accurate inasmuch
as the medical records obtained by the General Counsel show
that he suffered a broken ankle around April 2001 and that he
received treatment in May and June 2000.
The credible testimony of Flores is that immediately after his
discharge from Cassone on September 3, 2000, he began
searching for work in the manner described above. He testified
that he obtained a number of short term day labor jobs, general-
ly earning between $30 to $90 per day. The General Counsel
estimated that during the third quarter of 2000, Flores earned
$650 as a day laborer. This seems reasonable to me and Re-
spondent has not shown that he earned more.12
Through Macua, Flores managed to get a job at Park Mason-
ry. That company’s records show that he worked there from
November 1 to December 4, 2000. The records also show that
he earned $1920 from Park Masonry during the fourth quarter
of 2000. For the fourth quarter, the General Counsel summed

12 At the time of his discharge, Flores was married with a new baby.
Because of his ignorance, he did not file for unemployment insurance
or public welfare. Given his family circumstances, it beggars belief
that he would have sat around all day and foregone a job search.
her estimate of what Flores earned as a day laborer plus what
he earned from Park Masonry. This yielded the sum of $3220
and the Respondent has not shown that Flores earned more
during this period.
In light of the above, I conclude that Flores’ net backpay for
2001 is as follows:

Q1. Gross backpay $318 – Interim earnings $0 = Net backpay
$318
Q2. No net backpay.
Q3. Gross backpay $2122 – Interim earnings $650 = Net
backpay $1472
Q4. Gross backpay $6897 – Interim earnings $3220 = Net
backpay $3677

2001
Flores went back to work at Park Masonry in January 2001
and that company’s records show that he earned $1416 before
being laid off. At that point, Flores went back to the
Portchester “labor exchange” and obtained work from a woman
who assigned him the task of raking leaves and cleaning the
yard. The evidence is that it was at this job that Flores broke
his ankle and he was operated on at the North Westchester
Hospital Center on or about April 6, 2001. The medical records
show that his leg was put in a cast on May 15 and that he visit-
ed the Mount Kisco Medical Group on June 14, 2001. Accord-
ing to his testimony, Flores then went for physical therapy and
used crutches for around 8 weeks thereafter. He testified that
he could not put his full weight on the injured foot for about 6
months. He did not work during the second and third quarters
of 2001.
Flores filed a federal tax return for 2001 and he stated that he
earned $5000 for the year (this no doubt is a guess). In any
event, since Flores was unable to work due to his injury during
the second and third quarters, the General Counsel reasonably
assumed that the $5000 was earned equally during the first and
fourth quarters.
The General Counsel asserts that because his broken ankle
occurred while working for an interim employer, Flores should
not be construed as being out of the labor market and therefore
ineligible for backpay during the period when he was unavaila-
ble for work due to the injury. In this regard, the General
Counsel cites American Mfg. Co. of Texas, 167 NLRB 520, 522
(1967), where the Board stated that “(w)here an interim disabil-
ity is closely related to the nature of the interim employment. . .
and is not a usual incident of the hazards of living generally, the
periods of disability will not be excluded from backpay.” The
General Counsel also points to Big Three Industrial Gas, 264
NLRB 1198, 1199 (1982), where a discriminate did not have
his backpay tolled during the period of time when he was una-
vailable for work due to an industrial accident suffered at an
interim employer. I find these cases to be dispositive.
I therefore conclude that the net backpay for Flores during
2001 is as follows:

Q1. Gross backpay $6897 – Interim earnings $2500 = Net
backpay $4397
Q2. Gross backpay $6897 – Interim earnings $ 0 = Net
backpay $6897
J.J. CASSONE BAKERY 963
Q3. Gross backpay $7239 – Interim earnings $ 0 = Net
backpay $7239
Q4. Gross backpay $7239 – Interim earnings $2500 = Net
backpay $4739
2002
In 2002, Flores was unable to obtain a full-time job. Instead,
according to his credible testimony, he worked as a day laborer
and worked sporadically at numerous temporary jobs for be-
tween $30 to $90 per day. He could not recall any particular
employers but the General Counsel offered into evidence a
Social Security report that showed that Flores had earnings of
$7850. The General Counsel proposed that this be divided by
four and she allocated $1962.50 for each quarter.
Based on the above, I conclude that the net backpay for Flo-
res during 2002 is as follows:

Q1. Gross backpay $7239 – Interim earnings $1962.50 = Net
backpay $5277
Q2. Gross backpay $7239 – Interim earnings $1962.50 = Net
backpay $5277
Q3. Gross backpay $7239 – Interim earnings $1962.50 = Net
backpay $5277
Q4. Gross backpay $7581 – Interim earnings $1962.50 = Net
backpay $5619
2003
Flores obtained a regular full-time job at a cafeteria in
Greenwich, Connecticut, sometime around early March 2003.
As his testimony was that he worked as a day laborer during
January and February in the manner described above, the Gen-
eral Counsel proposed that he be charged with interim earnings
of $162.50 for the first 9 weeks of the first quarter. Also, the
evidence indicates that Flores worked at the cafeteria for about
18 weeks and earned $320 per week. Therefore, it would be
appropriate to add $1280 to his interim earnings during the first
quarter.
Flores’ job at the cafeteria continued into the second quarter
of 2003 but ended when the cafeteria was sold and the new
owners didn’t hire him. Based on the $320 per week figure, it is
calculated that he had interim earnings for that period of $4160.
Because Flores lost this job, he resumed his job search in the
manner previously described. Based on his social security rec-
ords and his tax return, the General Counsel reasonably pro-
posed that Flores be charged with interim earnings of $2309 for
the third quarter which includes his earnings cafeteria earnings
for a portion of the first week during that quarter. She also
proposes that Flores be charged with interim earnings of
$2112.50 for the fourth quarter.
Based on the above, I conclude that the net backpay for Flo-
res during 2003 is as follows:

Q1. Gross backpay $7581 – Interim earnings $2742 = Net
backpay $4839
Q2. Gross backpay $7581 – Interim earnings $4160 = Net
backpay $3421
Q3. Gross backpay $7581 – Interim earnings $2309 = Net
backpay $5272
Q4. Gross backpay $7581 – Interim earnings $2112 = Net
backpay $5469
2004
Starting in 2004, Flores continued to look for and obtain day
labor jobs. The General Counsel proposed that his interim earn-
ings for this period be calculated in the same manner as in the
year before and she arrived at the figure of $2112.
In April 2004, Flores obtained regular full-time employment
at Putnam Park doing manual labor. (As noted above, this job
which was in Greenwich, Connecticut, is not far from his home
in Portchester and is accessible by bicycle or public transporta-
tion.) He testified that he earned $480 per week and based on
his W2 form showing that he earned $15870, the General
Counsel charged him with interim earnings of $5290 for the
second, third and fourth quarters of 2004.
I therefore conclude that the net backpay for Flores during
2004 is as follows:

Q1. Gross backpay $7924 – Interim earnings $2112 = Net
backpay $5812
Q2. Gross backpay $7924 – Interim earnings $5920 = Net
backpay $2004
Q3. Gross backpay $7924 – Interim earnings $5920 = Net
backpay $2004
Q4. Gross backpay $7924 – Interim earnings $5920 = Net
backpay $2004
2005
Flores continued to work for the Putnam Park for all of 2005
and his W2 shows that he earned $25,049 for the year. The
General Counsel allocated this equally for each quarter and
accordingly, I conclude that his net backpay for 2005 is as fol-
lows:

Q1. Gross backpay $7924 – Interim earnings $6262 = Net
backpay $1662
Q2. Gross backpay $7924 – Interim earnings $6262 = Net
backpay $1662
Q3. Gross backpay $8266 – Interim earnings $6262 = Net
backpay $2004
Q4. Gross backpay $8266 – Interim earnings $6262 = Net
backpay $2004
2006
In 2006, Flores worked for Putnam Park until he was laid off
during the second week of July. His W2 shows that he earned
$13,132 from this job and the General Counsel allocated these
earnings equally among the 27 weeks that he worked until July
9. This was $523 per week. The General Counsel also tolled
his backpay because Flores went to El Salvador for 2 weeks
during the second quarter.
Having lost his job, Flores resumed working as a day laborer
and the General Counsel estimated that he earned $162.50 per
week for the remainder of the year.
Based on the above, I conclude that the net backpay for Flo-
res during 2006 is as follows:

Q1. Gross backpay $8266 – Interim earnings $6804 = Net
backpay $1462
Q2. Gross backpay $6994 – Interim earnings $6804 = Net
backpay $190
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 964
Q3. Gross backpay $8266 – Interim earnings $2473 = Net
backpay $5793
Q4. Gross backpay $6359 – Interim earnings $1625 = Net
backpay $4734
2007
During the first quarter of 2007, Flores spent a week in El
Salvador and also spent some time at home caring for his wife
who had undergone surgery. The General Counsel therefore
tolled his backpay by 3 weeks.13 Thereafter, he worked as a day
laborer and the General Counsel estimated his interim earnings
for this period in the same manner as described above ($162.50
per week).
At some undetermined point in 2007, but probably in the se-
cond quarter, Flores got a job at M & M Lawn Maintenance
where he did landscaping work at Greenwich Hospital. At this
job he worked 40 hours per week and earned $12 per hour. His
W2 from M & M shows his annual income as being $10,640
while his social security records show that he earned $16,364.
The General Counsel gave the benefit of the doubt to the Re-
spondent and assumed that he earned $16,364 from M & M.
She therefore allocated 1/3 of that amount equally to the se-
cond, third and fourth quarters of 2007. The General Counsel
also tolled Flores’ backpay by three weeks in the fourth quarter
of 2007 because he was in El Salvador.
Based on the above, I conclude that the net backpay for Flo-
res during 2006 is as follows:

Q1. Gross backpay $6359 – Interim earnings $1625 = Net
backpay $4734
Q2. Gross backpay $8266 – Interim earnings $5455 = Net
backpay $2811
Q3. Gross backpay $8266 – Interim earnings $5920 = Net
backpay $2811
Q4. Gross backpay $6539 – Interim earnings $5920 = Net
backpay $1084

2008
Flores continued to work for M & M until September 3,
2008, when he was effectively discharged. According to his
W2 form, his earnings from M & M in 2008 were $14,448
which works out to $419 per week for 35 weeks. During the
first quarter, Flores spent a week in El Salvador. He also was
in that country for 2 weeks during the second quarter and for
2.5 weeks during the third quarter.
The evidence shows that on September 4, 2008, Flores was
discharged because he overstayed his visit to El Salvador. In
this regard, the evidence convinces me that there was some
misunderstanding about how long Flores was going to be out of
the country. And even assuming that the Respondent was justi-
fied in discharging Flores for this infraction, it hardly amounts
to a discharge for gross, outrageous, or willful misconduct.
KSM Industries, Inc., 353 NLRB 1124 at 68 (2009); Cassis

13 I wonder if the NLRB is the only agency or judicial forum where,
in determining backpay, the victim of discrimination is precluded from
receiving backpay for the time he or she spends caring for a sick or
dying family member.
Management Corp., 336 NLRB 961, 967 (2001); First Transit,
Inc., 350 NLRB 825 (2007).
After his discharge from M & M, Flores resumed working as
a day laborer. Additionally, he credibly testified that he spoke
to a supervisor at Neri Bakery about a job on two occasions but
did not get a job offer.14
For the remainder of 2008, the General Counsel estimated
Flores’ interim earnings for work as a day laborer at $127.50
per week. (This was during the midst of the great recession).15
Based on the above, I conclude that the net backpay for Flo-
res during 2008 is as follows:

Q1. Gross backpay $8037 – Interim earnings $5444 = Net
backpay $2593
Q2. Gross backpay $7915 – Interim earnings $5444 = Net
backpay $2471
Q3. Gross backpay $8037 – Interim earnings $5444 = Net
backpay $1236
Q4. Gross backpay $7256 – Interim earnings $1658 = Net
backpay $5598
2009
Until the Respondent reinstated Flores, he worked as a day
laborer. The General Counsel estimated that he earned $127.50
per week during the first quarter of 2009. As in previous years,
this estimate seems reasonable to me and the Respondent has
not shown that he had higher earnings. The General Counsel
tolled his gross backpay by 1.2 weeks because Flores was in El
Salvador from January 23 to February 2. I therefore conclude
that his net backpay is as follows:

Q1. Gross backpay $3531 – Interim earnings $995 = Net
backpay $2536

In addition, I conclude that Flores is entitled to $10,473 for
vacation pay, plus $3442 for sick pay, plus $7172 for a pension
benefit. Interest must be added to these amounts.
(d) Jose Castro
Castro was illegally discharged on April 4, 2000, and his
backpay runs from that date until March 4, 2009, the date that
he was offered reinstatement. The General Counsel’s proposed
calculations regarding his backpay were originally set for at
Appendix A-2 of the backpay specification. Amendments to
the specification are contained in General Counsel Exhibit 76,
but the final position of the General Counsel is contained in
Exhibit B to the Brief. (The General Counsel acknowledged
that GC Exh. 76 contained a few mathematical errors which
have been corrected in Exh. B to the brief). Among other
things, Exhibit B revised the gross backpay down for the first
quarter of 2000 in order to account for Castro’s testimony that
he did not begin his search for work until about 4 weeks after
he was discharged by Cassone. 16

14 The General Counsel points out that according to Neri’s supervi-
sor, he received prior to 2009, about 40 job applications per month and
that he had about 5 to 10 vacancies per month.
15 I note that starting in the second quarter of 2008, the amount of
overtime started to lessen at Cassone.
16 This would be in conformity with Grosvernor Resort, 350 NLRB
1197 (2007), where a Board majority held that discriminates who failed
J.J. CASSONE BAKERY 965
Castro was born in El Salvador and has a primary school ed-
ucation. He can speak limited English and can read some Eng-
lish. Since coming to the United States he has done manual
labor or other unskilled jobs. At Cassone, he cleaned a dough
machine. In my opinion, his lack of job skills and his lack of
English language skills make the universe of available jobs for
him, extremely limited.
After his discharge he basically searched for work by going
to stores, restaurants, nurseries, and malls in Portchester, New
York, and Greenwich and Stanford, Connecticut. And whenev-
er he found himself unemployed during the backpay period,
this was his basic method by which he searched for work.
In my opinion, Castro was a truthful witness, albeit because
of the length of time that has transpired since is unlawful dis-
charge, it was reasonable to expect that there were some lapses
in memory and some inconsistencies with documentary evi-
dence.
I reject the Respondent’s contention that Castro did not make
an adequate search for work. Indeed, his work record shows
that apart from two quarters during the backpay period, Castro
had interim earnings during every other quarter. Thus, the
Respondent’s argument that Castro had an incentive to not
work because he won a significant amount of money on three
lottery tickets in 2006, 2007, and 2008, is belied by the fact that
he found work during almost all of the backpay period. In
2006 and 2007, he had interim earnings in every quarter. In
2008, he had interim earnings in the first, second, and fourth
quarters.
2000
As noted above, the General Counsel tolled Castro’s backpay
by 4 weeks in the second quarter of 2000. During that quarter,
Castro obtained employment at Pathmark and earned $220.50.
(I assume that this job was at the minimum wage, which was a
lower rate than Castro earned at Cassone.) He worked there
from June 20 to 25, 2000, and testified that he quit that job
because he moved to a location in Greenwich that was to far for
him to get to. The Pathmark job did not provide overtime and
it did not have any vacation pay or health benefits. As such,
the Pathmark job would not be construed as being equivalent
employment to the job Castro had at Cassone and his quitting
would therefore not affect his backpay. Met Food, 337 NLRB
109 (2001).
According to Castro, his next job was at Neri’s Bakery in
Portchester where he did manual labor related to bagels. He
testified that the job required heavy lifting and that when his
neck began to hurt, he asked if there was anything else he could
do. According to Castro, when he was not reassigned, he de-
cided to quit rather than risk an injury that would not be cov-
ered by any health insurance. Although Castro could not recall
when and for how long he worked for Neri in 2000, a review of
various records relating to his employment during 2000 yielded

to commence a search for work within the 2-week period after their
discharge will not begin to accrue backpay until they start a proper
search.
a figure of $412.17 In my opinion, Castro’s reason for quitting
his job at Neri would not affect his backpay.
After Neri, Castro got a job at Wendy’s where his W2 shows
that he earned $4282 and worked for about 20 weeks. The Gen-
eral Counsel, based on the fact that Castro worked at Wendy’s
for the remainder of the year, allocated his interim earnings by
designating $1427 to the third quarter and $2855 to the fourth
quarter.
In light of the above; I calculate Castro’s net backpay in
2000 as follows:

Q2. Gross Backpay $4593 – Interim Earnings $220.50 = Net
Backpay $4372
Q3. Gross Backpay $6634 – Interim Earnings $1839 = Net
Backpay $4795
Q4. Gross Backpay $6634 – Interim Earnings $2855 = Net
Backpay $3779
2001
Castro continued to work at Wendy’s in 2001 when he was
fired after he got into an argument with another worker. The
evidence on this was that the argument involved his alleged
inability to work fast enough and there is no evidence that it
was due to any gross, outrageous, or deliberate misconduct.
His W2 from Wendy’s in 2001 shows that he earned $7767.
Based on his hours of work and his minimum rate wage, it ap-
pears that Castro’s earnings from Wendy’s came during the
first and second quarters and part of the third quarter of 2001.
Based on the fact that Castro worked a 35-hour week and
earned the minimum wage, the General Counsel reasonably
calculated that he earned $2912 during each of the first two
quarters and $1945 during the third quarter.
The next job Castro obtained was at a McDonald’s in
Greenwich. And although he could not recall when he started,
his W2 from that company shows that he earned $2928 during
2001. Based on an application he gave to a supermarket,
wherein he stated that he worked at McDonald’s since October
6, 2001, it would appear that his earnings from McDonalds’
during 2001 were all earned in the fourth quarter.
While working at McDonald’s Castro also obtained a cash-
ier’s job at the Food Emporium in Greenwich where he worked
from 8 a.m. to 2 p.m. A W2 from that company shows that he
earned $626 during 2001 and I received into evidence a letter
from his employer that stated Castro worked there from No-
vember 6 through December 20, and that his job was as a part-
time cashier earning $7 per hour. He was either laid off or fired
from this job on December 20. There is no evidence as to the
reason. Accordingly, all of his earnings from this job were in
the fourth quarter of 2001.
Based on the above, I calculate Castro’s net backpay for
2001 as follows:

17 For the year 2000, the General Counsel introduced into evidence a
W2 from Pathmark showing earnings of $220.50 and a W2 from Wen-
dy’s showing earnings of $7230. Castro’s Social Security record for
2000, of which I take official notice, was higher by $412.13 than the
sum of his earnings from Pathmark and Wendy’s. So, the General
Counsel reasonably calculated that Castro’s interim earnings from Neri
(which did not provide records), was $412.13.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 966
Q1. Gross Backpay $6634 – Interim Earnings $2912 = Net
Backpay $3722
Q2. Gross Backpay $6634 – Interim Earnings $2912 = Net
Backpay $3772
Q3. Gross Backpay $6946 – Interim Earnings $1942 = Net
Backpay $5004
Q4. Gross Backpay $6946 – Interim Earnings $3553 = Net
Backpay $3393
2002
Castro worked at McDonalds for the entire year and his W2
shows that he earned $9985. The General Counsel allocated
$2496 as interim earnings for each quarter.
Castro also obtained a part-time job at a plant nursery in
Greenwich where, based on his W2 statement, he earned $784.
He could not state when he obtained this second job or when he
left. Castro testified that he quit the job at the nursery because
he experienced pain in his hip when he lifted a tree and did not
want to chance an injury in a situation where he did not have
health insurance. As there was no other evidence indicating his
dates of employment at the nursery, the General Counsel rea-
sonably divided $784 by four and allocated $196 to each quar-
ter.
I therefore conclude that the net backpay for Castro during
2002 is a follows:

Q1. Gross Backpay $6946 – Interim Earnings $2692 = Net
Backpay $4254
Q2. Gross Backpay $6946 – Interim Earnings $2692 = Net
Backpay $4254
Q3. Gross Backpay $6946 – Interim Earnings $2692 = Net
Backpay $4254
Q4. Gross Backpay $7258 – Interim Earnings $2692 = Net
Backpay $4566
2003
At some point during the year Castro either quit or was fired
from McDonalds after having some kind of argument with a
coworker that was not resolved to his satisfaction by his super-
visor. There is no evidence that he was fired for gross, outra-
geous, or deliberate misconduct. And even assuming that he
quit, the evidence is that this job was clearly not equivalent to
the job that he had at Cassone. Based on his W2 statement, his
hours of work and his pay rate, the General Counsel concluded
that all of Castro’s earnings from McDonalds were in the first
and second quarter. Accordingly, she reasonably allocated
$4992.50 to each of those two quarters.
Based on his credible testimony I conclude that Castro re-
sumed his search for work after leaving McDonalds.
In the General Counsel’s brief at page 58, she concedes that
Castro worked at Sacred Heart during 2003.18 Based on the
testimony that he earned the minimum wage ($6.90 per hour),

18 Castro, although acknowledging that he worked at Sacred Heart
for a contractor who paid him “off the books,” had no recollection of
when he worked at this job. As there is no documentation, the General
Counsel assigned these interim earnings to a period of time for which
he had no documented earnings. Although done to some degree at
random, the allocation of these earnings to 2003 seems as reasonable as
any other allocation.
and worked 13 weeks at 25 hours per week, she calculated that
he earned $2242.50. Since Castro could not recall when he
worked at this job and as there is no documentation about the
job, the General Counsel divided that sum by two and allocated
$1225 for each of the third and fourth quarters of 2003.
Based on the above, I conclude that Castro’s net backpay for
2003 is as follows:

Q1. Gross Backpay $7258 – Interim Earnings $3140 = Net
Backpay $4118
Q2. Gross Backpay $7258 – Interim Earnings $1401 = Net
Backpay $5857
Q3. Gross Backpay $7258 – Interim Earnings $1212 = Net
Backpay $6046
Q4. Gross Backpay $7258 – Interim Earnings $1212 = Net
Backpay $6046

2004
In 2004, Castro got a job at Pat Longo Construction Co., in
Greenwich, Connecticut, where he was employed doing un-
skilled labor. He did not recall when he got this job, although a
document Castro filled out for the Connecticut Department of
Labor states that he began on May 20 and ended that year on
December 13. Castro testified that for the first 3 months, he
was paid off the books at the rate of $100 per day. Thereafter,
he requested and was paid on the books and his W2 form for
2004 shows that he earned $6669. Since he resume working at
Pat Longo in 2005, I am going to assume that it is probable that
most of his earnings took place during the third and fourth
quarters of 2004 and that most of his “off book” earnings took
place during the second quarter of 2004. Castro credibly testi-
fied that his job at Pat Longo was sporadic and to a large de-
gree, the amount of days he worked per week depended on the
season.
In calculating Castro’s 2004 interim earnings from Pat Lon-
go, the General Counsel assumed that the earnings listed in his
W2 of $6669 should be allocated to the second, third, and
fourth quarters of 2004. She also added approximately $2000
of earnings, representing Castro’s “off book” earnings in calcu-
lating his total year’s earnings. These latter earnings were allo-
cated to the first and second quarters of 2004 as it seems likely
that Castro earned this money between about May 20 and mid-
June 2000. In my opinion, the General Counsel reasonably
calculated that Castro worked 6 weeks “off the books” during
the first quarter and earned $1380 based on his estimate/guess
of how many days he worked per week. For the second quar-
ter, the General Counsel estimated that Castro earned $1610 for
7 weeks “off the books” and $1380 for 6 weeks “on the books.”
(Total = $2990.) For the third quarter, the General Counsel
calculated Castro’s earnings at $2990. And for the fourth quar-
ter, in which Castro worked 10 weeks, the General Counsel
calculated his interim earnings at $2300.
When he was laid off by Pat Longo in mid-December, he re-
sumed his job search in the manner described above.
Based on the above, I calculate Castro’s net backpay in 2004
as follows:

Q1. Gross Backpay $7569 – Interim Earnings $1380 = Net
Backpay $6189
J.J. CASSONE BAKERY 967
Q2. Gross Backpay $7569 – Interim Earnings $2990 = Net
Backpay $4579
Q3. Gross Backpay $7569 – Interim Earnings $2990 = Net
Backpay $4579
Q4. Gross Backpay $7569 – Interim Earnings $2300 = Net
Backpay $5269
2005
Castro testified that he injured his hand in 2005 and could
not work. Although he could not recall when this happened,
the General Counsel was willing to concede that it was proba-
ble that it occurred during the first quarter of 2005. Therefore,
the General Counsel postulated that Castro was not available
for work for 3 weeks in the beginning of 2005 and calculated
his gross backpay for the first quarter as being for 10 instead of
13 weeks.
Despite a search for work, Castro did not work until recalled
by Pat Longo in April. His W2 from that Company shows that
he earned $5168 during 2005. As Castro could not state when
he left this company and as there is no documentation regarding
his dates of employment, the General Counsel reasonably as-
sumed that it was probable that he was again laid off in De-
cember due to cold temperatures that hindered the type of work
done by this contractor.19 The General Counsel reasonably
calculated that Castro worked for Pat Longo for a total of 36
weeks during the second, third, and fourth quarters of 2005 and
that he had no interim earnings during the first quarter of 2005.
She therefore allocated the $5168 to 13 weeks in the second
quarter, 13 weeks in the third quarter and 10 weeks in the
fourth quarter.
Based on the above, I calculate Castro’s net backpay for
2005 as follows:

Q1. Gross Backpay $5822 – Interim Earnings $0 = Net
Backpay $5882
Q2. Gross Backpay $7569 – Interim Earnings $1866 = Net
Backpay $5703
Q3. Gross Backpay $7881 – Interim Earnings $1855 = Net
Backpay $6026
Q4. Gross Backpay $7881 – Interim Earnings $1436 = Net
Backpay $6445
2006
At some time before May 2006, Castro obtained an unskilled
job with Compass Group, an enterprise that provided cafeteria
services for the State University at Purchase New York. His
W2 shows that he earned $10,721 from this job in 2006. And
since he did not work or get paid when the school was not in
session, the General Counsel computed his earnings as having
been obtained by working 39 weeks and that his weekly earn-
ings were $275 per week. Because there was no way of deter-
mining when Castro began his employment at Compass Group,
the General Counsel divided his W2 earnings of $10,721 by 39
weeks (when school was in session) and allocated 13 weeks of
those earnings to the first quarter ($3574); 7 weeks of earnings
to the second quarter ($1925); 6 weeks of earnings to the third

19 Basically, Pat Longo paves driveways at residences.
quarter ($1650); and 13 weeks of those earnings to the fourth
quarter ($3573).
In addition to his earnings at Compass Group, the General
Counsel attributed interim earnings of $300 to the second quar-
ter because Castro did some work for a neighbor. Also, based
on his testimony that he did not search for work when he visit-
ed Texas, the General Counsel tolled Castro’s backpay by 5
weeks during the second quarter of 2006. As the workers in the
cafeteria are laid off in the second quarter of each year and may
or may not be recalled during the third quarter, it is probable
that Castro went to Texas during the second quarter of 2006.
The General Counsel also points out that Castro got a job at
Neri Bakery working on bagels. Neri’s payroll records show
that Castro worked there for 2 weeks from late July to early
August 2006. The records show that at Neri he earned $6.75
per hour and that he earned a total of $256.50.
When school reopened at SUNY, Castro was recalled to
work for Compass and he left Neri to return to that job which
had a higher rate of pay and was, no doubt, physically less de-
manding. Although not an equivalent job to Cassone in terms of
pay, hours, or benefits, Castro continued to work at the SUNY
cafeteria in 2007 and 2008.
Based on the above, I conclude that Castro’s net backpay in
2006 is as follows:

Q1. Gross Backpay $7881 – Interim Earnings $2260 = Net
Backpay $5621
Q2. Gross Backpay $5456 – Interim Earnings $2904 = Net
Backpay $2552
Q3. Gross Backpay $5456 – Interim Earnings $3160 = Net
Backpay $2296
Q4. Gross Backpay $7881 – Interim Earnings $2904 = Net
Backpay $4977
2007
Castro’s W2 shows that he earned $12,667 from Compass
Group in 2007. These earnings would have been made during
only part of the year because, the workers are laid off without
pay during the late spring and summer months of each year.
During the summer of 2007, Castro collected unemployment
benefits and credibly testified that he looked for work as a la-
borer in the construction industry. 20
Based on the foregoing, I conclude that Castro’s net backpay
for 2007 is as follows:

Q1. Gross Backpay $8079 – Interim Earnings $4222 = Net
Backpay $3857
Q2. Gross Backpay $8452 – Interim Earnings $2273 = Net
Backpay $6179
Q3. Gross Backpay $7967 – Interim Earnings $1949 = Net
Backpay $6018
Q4. Gross Backpay $8224 – Interim Earnings $4222 = Net
Backpay $4002

20 Under well established precedent, unemployment benefits are not
construed to be an offset to gross backpay. NLRB v. Gullett Gin Co.,
340 U.S. 361, 364 (1951).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 968
2008
Castro continued in his job at Compass until late May when
the school summer break began. His W2 shows that he earned
$6671 from Compass during this year. During this period, the
General Counsel calculated that Castro worked for Compass for
20 weeks during the first and second quarters and that his
weekly earnings were $334.
In late May, Castro went to Houston, Texas, to visit his
mother who had suffered a stroke. He was unavailable for
work until September 23. His testimony was that he resumed
his search for work in later October while in Houston. There-
fore, the evidence shows that Castro worked during the first 7
weeks of the second quarter and was thereafter unavailable for
work for the remainder of that quarter and for the entire third
quarter.
In early November 2008, Castro got a regular full-time job in
Houston at a company called Pipeline Sear and Insulator where
his rate of pay was $7 per hour. His W2 shows that he earned
$2483 at Pipeline in 2008. Based on Castro’s testimony that
he did not resume looking for work until around the last week
of October, it is concluded that he was unavailable for work
during 3 weeks in the fourth quarter of 2008.
Based on the above, it is my conclusion that Castro’s net
backpay for 2008 is as follows:

Q1. Gross Backpay $7507 – Interim Earnings $3942 = Net
Backpay $3565
Q2. Gross Backpay $4762 – Interim Earnings $2729 = Net
Backpay $2033
Q3. Gross Backpay $0 – Interim Earnings $0 = Net
Backpay $0
Q4. Gross Backpay $5208 – Interim Earnings $2483 = Net
Backpay $2725

2009
During the first quarter, Castro continued at his job at Pipe-
line. He continued to work at that job until mid-February when
he returned to New York. At Pipeline, Castro’s W2 shows that
he earned $2417 during the first quarter. The General Counsel
also concedes that he earned an additional $60 when he re-
turned to New York and did some work for his neighbor. He
thereafter accepted Cassone’s March 2009 reinstatement offer
and returned to work at the Respondent. I therefore conclude
that Castro’s net backpay for 2009 is:

Q1. Gross Backpay $5018 – Interim Earnings $2497 = Net
Backpay $2521

In addition to the above, the Respondent owes Castro, with
interest, $12,978 for vacation pay; $3848 for sick pay and
$7419 for pension benefits.
(e) Adan Aguilar
Before coming to the United States, Aguilar worked as a
farmer in Mexico. He has a grade school education and went to
night school in the United States in order to learn English. His
ability to speak English seems better than Macua, Flores, or
Castro.
Based on his testimony as a whole and on demeanor
grounds, I conclude that Aguilar was a truthful witness, at-
tempting as best he could, given the passage of time, to recol-
lect and relate his job search and job history since his illegal
discharge by Cassone.
The backpay period for Aguilar runs from the date of his
suspension on November 12, 1999, until the date that the Re-
spondent discharged him on December 20, 1999.21 The General
Counsel concedes that Aguilar did not qualify for pension, sick,
or vacation benefits.
Although Aguilar did not immediately search for work when
he was suspended, I would conclude that in the absence of an
explicit discharge, he could reasonably expect to return to work
within a reasonable time. I therefore would conclude that in
circumstances where a discriminate has not definitely been
discharged and had a reasonable expectancy of recall, that a
discriminatee is under no obligation to search for work.
In any event, the evidence is that Aguilar did begin to search
for work around the third week of his suspension when he be-
gan to worry that he might not be recalled.
Although he collected workers compensation benefits during
his suspension, the evidence does not show that Aguilar was
unavailable to work and he credibly testified that he did look
for work during this period. In this regard, the General Counsel
construed Aguilar’s worker compensation pay of $1700 as
interim earnings and subtracted this from his gross backpay.
In light of the above, I conclude that Aguilar’s net backpay is
$2904 – $1700 = $1204. There is no money owed for vacation
or sick pay or for pension benefits.
(f) Cesar Calderon
Calderon was illegally discharged on November 3, 1999, and
the General Counsel asserts that his backpay runs until March
31, 2000. As amended at the hearing, the General Counsel
contend that instead of being entitled to backpay in the fourth
quarter of 1999 (when he was discharged), Calderon is only
owed backpay for the first quarter of 2000.22
As noted in the underlying case, Calderon began his em-
ployment at Cassone on August 4, 1999. He sought and ob-
tained this job while he was a paid union organizer. That is, his
primary purpose in getting the job was to assist the Union in
organizing the employees. In this regard, the union had been
involved in five or six previous organizing attempts and alt-
hough unsuccessful, one cannot help but reflect on its persis-
tence.
When Calderon was hired, neither he nor the Union had any
specific plan regarding how long he would continue to work.
But it seems obvious to me that his employment with Cassone
would probably have continued during the pendency of any
election proceedings had it not been cut short by his illegal
discharge. At the time of his discharge on November 3, 1999, a
Board election had been held but the ultimate outcome was still
in doubt because there were pending objections to the elec-

21 The Board overturned the ALJ’s conclusion that the Respondent
had illegally discharged Aguilar. However, the Board also held that his
suspension violated the Act.
22 It seems to me that the General Counsel essentially is conceding
that Calderon did not begin his search for alternative work until January
1, 2000.
J.J. CASSONE BAKERY 969
tion.23 That is, if the union’s objections were upheld, a new
election would be ordered and it would be extremely helpful to
the union to have its own employee working inside the compa-
ny to continue the organizing efforts.
In Oil Capitol Sheet Metal, 349 NLRB 1348, 1349 (2007),
the Board, with Liebman and Walsh in dissent, concluded:

Given the different considerations applicable where the
discriminatee is a union salt, we decline to apply a presump-
tion of indefinite employment and instead shall now require
the General Counsel, as part of his existing burden of proving
a reasonable gross backpay amount due, to present affirmative
evidence that the salt/discriminate, if hired, would have
worked for the employer for the backpay period claimed in
the General Counsel’s compliance specification. Such evi-
dence may include, but is not limited to, the salt/-
discriminatee’s personal circumstances, contemporaneous un-
ion policies and practices with respect to salting campaigns,
specific plans for the targeted employer, instructions or
agreements between the salt/discriminatee and union concern-
ing the anticipated duration of the assignment and historical
data regarding the duration of employment of salt/-
discriminates and other salts in similar salting campaigns.

As Calderon was the Union’s first salt, there is no prior his-
tory regarding the duration of employment by salts. Also, there
is no evidence of any agreement between him and the Union
that would indicate that they intended to limit the duration of
his employment at Cassone, In fact, in light of this union’s
remarkable persistence in attempting to organize the employees
of this company, it is more than reasonable to assume that Cal-
deron would have continued his employment until either the
Union won or perceived that its chances were nonexistent. I
therefore conclude that had Calderon not been illegally dis-
charged, he would have continued to work at this company past
the date for which backpay is claimed.
Both parties cited Contractor Services, 351 NLRB 33, 36
(2007). In that case, the Board held that a union salt did not
mitigate his damages after being illegally discharged because
he only sought work at nonunion employers. The Board stated:

In Ferguson Electric, . . . the Board considered whether a pro-
fessional union organizer-discriminatee reasonably mitigated
his loss of earnings by searching for work only with nonunion
employers that the union had targeted for organizing… The
Board rejected the employer’s argument for a per se rule that
a failure to mitigate damages will be found in any case where
the union placed limitations on the universe of employers to
whom a paid organizer could apply for work. The Board rea-
soned that “[b]y propounding its bare argument, without sup-
porting facts or evidence, the [employer] failed to satisfy its

23 As noted in the underlying case, the union’s organizing campaign
began in September 1999 when Calderon passed out union authoriza-
tion cards. Pursuant to a petition filed on November 2, 1999, an elec-
tion was held on December 21, 1999. The Union lost the election but
filed objections which were consolidated with the underlying unfair
labor practice case. Based on conduct found to have interfered with the
employees’ free choice, the election was set aside and a new election
ordered.
burden.”. . . The Board also made clear, however, that if the
record had shown that the organizer failed to make a good-
faith effort to follow his usual method of seeking employ-
ment, the union’s policies unreasonably limited the organiz-
er’s job search, or the organizer otherwise unreasonably failed
to mitigate his loss of earnings, that evidence “would favor
our finding merit in the [employer’s] contentions.”

In my opinion, the facts of the present case are substantially
different from those in Contractor Services. It would be one
thing if the number of nonunion bakeries in the New York Met-
ropolitan area was small. But this is not the case at all. The
evidence is that there are many such bakeries in New York
City, Long Island, Westchester, and New Jersey. Thus, the
universe of nonunion bakeries to which Calderon sought em-
ployment was quite large. Starting in January 2000, Calderon
applied to more than 25 bakeries during an 11 week period.
This contrasts with the fact that in Contractor Services, the
discriminate (Landers) was found to have applied at 23 em-
ployers over a 46-month period and that in seven quarters dur-
ing the backpay Landers made no applications for work at all.
I am convinced that the credited evidence demonstrates that
Calderon made a reasonable and adequate search for work dur-
ing the backpay period. I therefore conclude that his net
backpay is gross backpay of $5214 – interim earnings of $0 =
net backpay of $5214. As amended, the General Counsel cal-
culated the vacation pay at $66 and the sick pay at $39.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended24
ORDER
The Respondent, J.J. Cassone Bakery, Inc., its officers,
agents, successors, and assigns, shall make payments to the
following individuals in the following amounts:

Lorenzo Macua

Total net backpay of $81100.00 plus interest.
Vacation pay of $7279.00 plus interest.
Sick pay of $3233.00 plus interest
Pension benefit of $5430 plus interest.
Total = $97042.00 plus interest

Carbilio Flores

Total net backpay of $128126.00 plus interest.
Vacation pay of $10473.00 plus interest.
Sick pay of $3442.00 plus interest
Pension benefit of $7172.00 plus interest.
Total = $149213 plus interest

Jose Castro

24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 970
Total net backpay of $160088.00 plus interest.
Vacation pay $12978.00 plus interest.
Sick pay of $3848.00 plus interest.
Pension benefit of $7419.00 plus interest.
Total = $184333 plus interest

Adan Aguilar

Total net backpay of $1204 plus interest.
Total = $1204

Cesar Calderon

Total net backpay of $5214 plus interest.
Vacation pay $66 plus interest.
Sick pay of $39 plus interest.
Total = $5319

APPENDIX

ORDER DENYING APPLICATION
TO REOPEN THE HEARING

On June 21, 2010, the Respondent’s counsel requested that I
keep the hearing open so that he could obtain and offer addi-
tional evidence regarding his contention that discriminate Lo-
renzo Macua had resigned from an interim job at the Rye City
School District. The General Counsel opposed any further
adjournments and I agreed that the hearing should be closed. I
did, however, permit the Respondent to later submit an applica-
tion regarding a request to reopen the hearing for good cause.
Among other things, Respondent’s counsel indicated that he
might seek to engage a handwriting expert.
To briefly review the state of the record, the Respondent
produced a witness who testified that a “letter of resignation”
purportedly signed by Macua was contained in his personal file.
This document was received into evidence as a business record,
but the witness could not testify that this was Macua’s signature
and could not testify as to the circumstances under which he
allegedly signed the document.
The General Counsel then called Macua as a rebuttal witness
and he testified that the signature on the document was not his
and that he did not authorize his supervisor, John Rubbo, to
sign for him. He testified that he never resigned his position at
the school and that he was told in substance, that he was laid
off because the school had hired another person to replace him.
Before the last day of the hearing, the General Counsel and
the Respondent’s counsel were aware that there was a dispute
regarding whether Macua had resigned his position at the
school. And in this respect, the General Counsel had notified
the Respondent that she would not stipulate to the document
that purported to be Macua’s resignation. As it is clear from
the testimony from the witness who identified the document as
a business record, that similar “resignations” had been obtained
by Rubbo from other employees with essentially identical lan-
guage, it should have been obvious to the Respondent that in
the absence of a stipulation from the General Counsel regarding
the alleged resignation, that the Respondent would need to call
the person who either solicited or was present when Macua
allegedly signed the document that purports to be his resigna-
tion.
As the Respondent has not shown that the evidence it seeks
to offer would qualify as newly discovered or that Rubbo was
not available to testify on June 21, 2010, or that it made any
efforts to obtain his testimony prior to that date, I shall deny the
Respondent’s request to reopen this record.
Dated: July 14, 2010

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