Nameplate Manufacturers of America, Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1975

217 N.L.R.B. 518 (N.L.R.B. 1975)

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nameplate Manufacturers of America, Inc. and Dis-
trict 65 , Distributive Workers of America. Case
29-CA-3505 -
April 25, 1975
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On January 29, 1975, Administrative Law Judge Eu-
getie E. Dixon issued the attached Supplemental Deci-
sion in this proceeding.' Thereafter, Respondent filed
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the exceptions
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommendations as set forth in the final
paragraph of his Supplemental Decision.
ORDER
Pursuant to Section 10 (c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommendations of the
Administrative Law Judge and hereby orders that Re-
spondent, Nameplate Manufacturers of America, Inc.,
Brooklyn, New York, its officers , agents , successors,
and assigns , shall take the action set forth in the said
recommendations:
I The Board's Decision and Order in this proceeding issued April 5, 1974
(not reported in volumes of Board decisions).
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Administrative Law Judge: On Febru-
ary 25 , 1974, the Board issued its Decision and Order against
Nameplate Manufacturers of America , Inc., requiring Re-
spondent to make Alice Padilla whole for loss of earnings
resulting from her discharge by Respondent on July 30, 1973.
A controversy having arisen over the amount of backpay
due the discnminatee , on November 7, 1974, the Regional
Director for Region 29 issued a backpay specification and
notice of hearing. Respondent duly filed an answer and the
matter was heard in Brooklyn , New York, on December 9,
1974.
All parties were afforded full opportunity to participate, to
call, examine , and cross-examine witnesses , and to present
evidence. At the close of the hearing, the parties waived the
right to submit briefs but presented oral arguments.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS AND CONCLUSIONS
The backpay specification covers a period from July 30,
1973, when Padilla was discharged to April 29, 1974, when
she was reinstated by Respondent. Padilla's rate of pay with
Respondent was alleged to be $80 per week. Thus for the 9
weeks of the third quarter of 1973 her earnings from Re-
spondent would have been $720 (9 weeks times $80); for the
fourth quarter of 1973, $1,040 (13 weeks times $80); for the
first quarter of 1974, $1,040 (13 weeks at $80 a week); and
the 4 weeks of the second quarter of 1974, $320.
The specification shows her interim earnings as being $340
in the third quarter of 1973; $775 in the fourth quarter of
1973; and no earnings in the first two quarters of 1974. On
this basis she had an amount of $380 due from Respondent
for the third quarter of 1973; $265 for the fourth quarter of
1973; $1,040 for the first quarter of 1974; and $320 for the
second quarter of 1974 or a total of $2,005 due her.
In its answer Respondent alleged that "the backpay period
should end on or about December 15, 1973, when the Em-
ployer unconditionally offered reemployment" to Padilla and
further that it lacked information sufficient to form a belief
as to her "interim earnings, or her efforts to obtain interim
earnings."
The evidence shows that after her discharge Padilla
secured a job at Lerners (otherwise unidentified) and worked
there from August 27, 1973, until she was discharged Friday,
November 30, 1973. On the following Monday she applied
for unemployment compensation at the state labor depart-
ment and was told to return in 2 weeks for her first check.
At this time she was also interviewed by a different official
(apparently in the employment division) where her two previ-
ous jobs were discussed including why she was fired and the
pending NLRB case.
On her return to the employment office, according to
Padilla's testimony, she signed for a check,' but then was
told that she "could not get unemployment" because of what
Lerners had reported about her. Some 2 weeks later she
learned that she could appeal the adverse ruling but she never
took any steps to do so. Nor did she ever go back to the state
office. Instead, according to her testimony, she felt she could
find work on her own quicker. To this end she made three or
four efforts a week (or as often as she "could impose on
someone" to watch her daughter) to find a job through pri-
vate agencies and direct contact with different stores.
Among the things she did, according to her testimony, was
to apply at the Chemical Bank. She passed all the tests and
was waiting for assignment for a physical when she got a call
from the Bank informing her that she was being rejected
because she had been given two bad references. According to
her testimony she had given the Bank four references, two of
i On cross she denied any recollection of having received a check from
the State at this time or at any time N
217 NLRB No. 84
NAMEPLATE MANUFACTURERS OF AMERICA, INC.
whom were no longer in operation. Respondent was one of
the other two she gave.'
In her effort to seek employment, according to Padilla's
further testimony, she also sought reinstatement with Re-
spondent just before Christmas. Prisco, told her there was
nothing available.' In March the Union told her to try Re-
spondent again.' Again Prisco told her that there was noth-
ing available but this time offered to help her get a job else-
where. According to his testimony he "told her they were
hiring across the street, and if she wanted to try, she could
go in there, she could probably get a job," that he did not
really know and she would have to try. Padilla did not try.
According to Prisco's further testimony (confirmed by
Padilla in hers) he also told her of a job opening in Freeport.
In this she was not interested because she had no way to get
there.
In his further testimony Prisco described how in December
1973 he received an inquiry from the state labor department
as to whether work was available for Padilla. He informed the
department that work was available. Accordingly the depart-
ment mailed to Padilla a form letter entitled "Notice of Possi-
ble Rehire" stating "Your former employer listed below has
notified this office that he has work available for you. Report
to him immediately concerning this employment. Failure to
report for this interview may result in disqualification of your
2 Respondent's president Vincent Pnsco denied having had any inquiry
about Padilla from other employers during the period in question
3 Prisco denied that Padilla made any application on December 1973
4 This suggestion apparently was the result of a favorable Board decision
in her case The Union had written Respondent saying that Padilla would
be reporting for work Tuesday morning on March 12, 1974
519
unemployment insurance claim." In her testimony Padilla
claimed that she never received the labor department's letter.
Conclusions
On this evidence I find that Padilla made adequate effort
to seek employment and mitigate the loss of her wages. In the
face of three or four job applications a week and her near
success at the Chemical Bank, I do not deem her failure in
March to follow Prisco's suggestion that she apply across the
street as disqualifying her for backpay from that point, partic-
ularly in view of the failure to show that a job was indeed
available to her.
I also am of the opinion and find that no valid offer of
reinstatement was made by Respondent through the state
agency to Padilla. Clearly, a form headed "Notice of Possible
Re-Hire" ,regardless what else it says is not an offer unequivo-
cal, firm, and clear as the law requires. Lipman Bros, Inc.,
et al., 164 NLRB 850, 853 (1967). Nor does the phrase "Has
work available" meet the requirement of apprising the dis-
criminatee that she is being offered reinstatement to her for-
mer or substantially equivalent position. All- Tronics Inc., 175
NLRB 644 (1969). The "available" work could be substan-
tially different in remuneration , duties, and benefits than the
former position.
On the basis of the foregoing findings and the entire record
in the case I find that Alice Padilla is entitled as provided in
the specification to $2,005 in backpay with interest at 6 per-
cent per annum as provided in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). Appropriate deductions shall be made
from the amount due as required by law.