CARNEGIE LINEN SERVICES, INC.

National Labor Relations Board - Administrative Judge Opinions

Dec 29, 2015

02-CA-039560 (N.L.R.B. Dec. 29, 2015)

JD(NY)-49-15
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CARNEGIE LINEN SERVICES, INC.
and Case No. 02-CA-039560
LAUNDRY, DISTRIBUTION, AND FOOD SERVICE
JOINT BOARD a/w WORKERS UNITED a/w SEIU
f/k/a LAUNDRY, DRYCLEANING AND ALLIED
WORKERS JOINT BOARD, WORKERS UNITED
Margit Reiner, Esq., for the General Counsel.
Nicholas Stevens, Esq.
(Starr, Gern, Davison & Rubin, P.C.),
of Roseland, New Jersey, for the Respondent.
Ira J. Katz, Esq., for the Charging Party.
DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. This is a supplemental proceeding to
determine the amount of backpay owed to Jose Luis Diaz. It was heard in New York, New York,
on October 22, 2014, January 21, 2015, February 19, 24, and 25, 2015, and March 12, 30, and
31, 2015. In the underlying case in this matter, the Board found that Carnegie Linen Services,
Inc. (Carnegie or Respondent) inflicted bodily injury upon Diaz in response to his union activities
and discharged him because he assisted and joined the charging party union in this matter (the
Union), and engaged in concerted activities, in violation of Section 8(a)(3) and (1) of the Act.
Carnegie Linen Services, Inc., 357 NLRB No. 188 (2011), enfd. Fed Appx. 7 (2d Cir. 2012).
Here, the General Counsel contends that, in addition to whatever physical injuries Diaz might
have suffered, he developed a psychiatric illness and demonstrates symptoms consistent with
posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) which preclude his
return to work, and that these psychiatric illnesses were caused by Respondent’s unfair labor
practices. Accordingly, counsel for the General Counsel seeks a backpay remedy and order
which continues until Diaz recovers from such illnesses and is able to return to gainful
employment, or alternatively to his statutory retirement age under Social Security regulations,
which has been calculated to be July 31, 2041, the date when Diaz is first entitled to full or
unreduced Social Security retirement benefits.
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Upon the entire record, and considering the briefs filed by the parties, I issue the
following
FINDINGS OF FACT
Chronology of events
To better set forth the context for the parties’ respective arguments; I have set forth a
chronology of events. Some predate Diaz’ unlawful discharge and are relied upon by
Respondent in framing its contentions as to why Diaz should not be awarded the remedy sought
by the General Counsel:
August 2, 2009: Diaz had a physical altercation with a coworker (Tyrone) at Respondent’s
facility during which he was briefly knocked unconscious. He was sent to the hospital; however
after being seen he returned to work and resumed his job duties.
October 24, 2009: Diaz had a confrontation with another coworker (“Rigo”) who threatened him
with a knife and said he would stab him. Diaz called the police, but by the time they arrived,
Rigo had disposed of the knife. Diaz remained at work.
October 28, 2009: Diaz had a confrontation with another coworker (“Pappo”). Apparently this
dispute arose over whether Diaz had characterized Pappo as an informant on union activities at
the facility.
November 6, 2009: Carnegie Supervisor Garlasco offered Diaz a bribe to cease his organizing
efforts on behalf of the Union. Diaz refused.
November 7, 2009: The offer of a bribe was reiterated to Diaz, and he again refused. In the
presence of two company supervisors, Garlasco and Nelson Astacio, Respondent’s owner Gary
Perlson told Diaz that his shift would be changed, and he would be, “cleaning [his] ass with [his]
mouth, mother fucker, son of a bitch, stupid. Leave my company.” Perlson then splashed hot
coffee in Diaz’ face (the foregoing, and certain relevant subsequent events are more fully set
forth in the underlying case and form a basis for the unfair labor practice findings here). Diaz
called the Union and called the police. When the police arrived, Perlson denied that he had
discharged Diaz, and promised him time off and reimbursement for his medical expenses. Diaz
then went to the hospital emergency room where he was diagnosed with first degree burns and
a left corneal abrasion.
November 9, 2009: Diaz saw a physician who provided him with a note stating that he could
return to work on the following day. Diaz visited the facility and gave the note to Garlasco, who
told him to call Local 1964 (the union which then and presently represents the employees at the
facility). Diaz called Union Representative Marcia Marchelli, who advised him to write an
account of what happened. Diaz’ written description of events noted especially that Perlson,
“attacked me physically, throwing a large quantity of hot coffee in my face. I had done nothing
wrong. Gary was angry with me for exercising my rights. That’s all.”
November 10, 2009: Diaz returned to work where he was told by the evening manager that
Perlson did not want him in the company, that he was fired and should leave immediately.
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November 12, 2009: Diaz attended a grievance meeting also attended by Perlson, Garlasco
and a representative of Local 1964.
November 16, 2009: Diaz attended a campaign meeting for the Union.
November 17, 2009: Diaz attended a union rally at City Hall in lower-Manhattan.
November 23, 2009: Union chief of Staff Megan Chambers took Diaz to consult with a workers’
compensation attorney.
November 26 and 27, 2009: Diaz returned to the Carnegie facility to distribute union campaign
flyers to employees. They were told to leave the premises. On November 27, the police were
called and the union representatives told them they were campaigning for the Union. Perlson
approached Diaz and, as Diaz testified in the underlying hearing, stated:”[Y]ou didn’t have
enough with the coffee? Do you want more coffee?”
November 28, 2009: Diaz went to a Miron & Son facility (a Carnegie competitor) to distribute
Union leaflets.
December 3, 2009: Diaz filed a criminal complaint against Perlson.
December 21, 2009, through January 11, 2010: Diaz traveled, unaccompanied, to the
Dominican Republic to visit friends and family.
January 17 through 20, 2010: Diaz assisted Union organizer Marchelli and visited homes of
employees to campaign for the Union with regard to an upcoming election. He met with
approximately 80 workers during this period of time.
January 20, 2010: Diaz went to the Carnegie facility on that day, which was the date of the
election. He also visited two coffee shops on that day with union representatives.
January 22, 2010: Diaz visited the homes of Carnegie employees to solicit witnesses in support
of union objections to the election; Diaz also travelled to New Jersey to obtain a copy of the
Local 1964 collective-bargaining agreement.
February 4, 2010: Diaz saw Dr. Hugo Morales, his treating psychiatrist since then, for the first
time. He went with his brother (or possibly step-brother), “Manny.” Diaz has since seen Dr.
Morales on numerous occasions, as will be discussed below;
May 5 through 18, 2010: Diaz travelled, unaccompanied, to the Dominican Republic, to attend
to matters regarding his wife’s immigration status; she joined him in the United States in June
2010.
July 13, 2010: Attorneys for Diaz sign a verified response to a demand for a bill of particulars in
connection with a civil action brought against Perlson. The response states, in pertinent part,
“the Plaintiff’s injuries are a corneal abrasion in his left eye, blurred and reduced vision in his left
eye, infected lacrimal duct; headaches, pain in his left eye, emotional and psychological
distress, including post-traumatic stress disorder.” It further states, “The Plaintiff was
incapacitated from employment for approximately 9 days.”
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October 2010: Diaz was found by the Workers’ Compensation Board (WCB) to have a work
related injury to the left eye as well as PTSD. The WCB ordered the insurance carrier to begin
paying him benefits as of February 4, 2010, the first day he produced medical evidence of
disability. Such payments are expected to continue until December 25, 2021. His benefits
continuing to present are $230 per week.
November 2010: According to Diaz’ testimony, he stopped looking for work at this time upon the
advice of counsel; however, his work logs and cross-examination in response thereto indicate
that his search for work may have continued to some extent from January 2010 until
approximately July 2011. This will be discussed in further detail below.
January 31, 2011: Diaz testifies in the underlying unfair labor practice case in this matter.
Administrative Law Judge Steven Davis noted in his decision that Diaz, “gave specific, precise
testimony about an event that would certainly have made an impression on him.” (ALJD at p. 7);
Judge Davis further noted that [he] “carefully quoted the outrageously hostile remarks made by
him by Perlson, words which undoubtedly remained in his memory. He also precisely described
how Perlson took the lid off the coffee and threw its contents in his face.” (ALJD p. 8).
June 21, 2011: Diaz applied for Social Security Disability benefits. The Social Security
Administration issued a notice of award on August 1, 2011, concluding that Diaz became
disabled under its rules on February 4, 2010, and would be entitled for benefits as of August 1,
2011, in the monthly amount of $878.
December 25, 2011, to January 9, 2012: Diaz and his wife travel to the Dominican Republic
where they visit with family.
May 21, 2012: the Unemployment Insurance Board found that Diaz was ineligible for benefits he
had been receiving since shortly after his discharge from Respondent.
January 3 to 14, 2013: Diaz and wife travel to the Dominican Republic where they visit with
family.
February 2014: Diaz poses for a photograph taken by and in connection with an article
published in the New York Daily News just prior to the inception of Perlson’s criminal trial
stemming from his assault of Diaz.
August 13 to 27, 2014: Diaz and wife travel to the Dominican Republic where they visit with
family.
October 20, 2014: Diaz repaid a lump sum of $8710 to the Unemployment Insurance Board.
Diaz’ testimony at the instant hearing
Under questioning from the counsel for the General Counsel, Diaz outlined his
educational and work history prior to his employment at Respondent. He testified that while
living in the Dominican Republic, he completed high school in 1994. He then assisted his
grandfather on his farm from 1994 to 1997; and he subsequently worked in a factory in the area
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of quality control from 1997 to 2001, the year he moved to the United States. While in this
country, Diaz attended English classes for 1 year and has had no further education.
Diaz worked at a facility referred to as Princeton Laundry beginning in 2001, and then
worked for another facility—a cap manufacturer—for 6 months in early 2005. He worked for
Miron & Sons, a competitor of Respondent, from June 2005 to December 2006. He was then
hired by Carnegie as a machine operator, where he initially worked the night shift from 11 p.m.
to 7 a.m.
As Diaz testified (with specificity and no apparent difficulty with recollection),1 after his
discharge, he returned to the Employer’s premises on 5 occasions. The first time, on November
9, was to present a medical report stating that he was able to return to work. He later reported
on that day at the time he had been scheduled to work and was told that he was discharged.
Later that week, he returned for a meeting with employer and Local 1964 representatives to
discuss and grieve his discharge. On September 12, he returned with Union Representative
Marcelli to distribute flyers to employees and he then returned on January 20, 2010, because of
the election and to give support to his coworkers.
Diaz testified that he did not do any work for the Union after January 2012; but
acknowledged that in February 2014. Union Representative Chambers arranged for a
newspaper to take his picture for publication. He did not give an interview at the time.
As Diaz testified, his search for work began within 2 weeks after his discharge. He asked
Marchelli where he could go, looked in papers such as El Diario about 3 times per week and
would visit about 8 facilities per day. He searched for work within a perimeter of about 25 streets
from his home.
After Diaz’ wife joined him, in about June 2010, he also began internet searches for
employment, about 3 to 4 times per week. He generally sought maintenance work.
As Diaz testified, his efforts to search for work resulted in no job offers.
Diaz testified that he consulted with Dr. Morales, because he visited an attorney (Neil
Abramson) who said he had to see a psychiatrist. Chambers brought him to Dr. Morales’ office.
Diaz stated that he told Dr. Morales that he was feeling afraid, that he could not sleep, that
someone was following him and he had problems because of a bad eye. Although these
difficulties had first appeared in December 2009, he wanted until February 2010 because that
was the first appointment he could receive. Diaz claims that he had similar symptoms to some
extent prior to December 2009. He asserted that his fears began after Perlson threatened him
during leafleting on November 27, 2009 (as has been described above and in the underlying
ALJD).

1 This was generally the case throughout Diaz’ direct examination.
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Initially, Diaz undertook his work search alone. Once his wife arrived in the United
States, she would accompany him due to his fears. He did not ask others to assist because he
did not want to discuss the coffee incident with them.
As Diaz testified, he stopped searching for work in November 2010. He testified in this
hearing that attorney Abramson told him not to look for work, because he was preoccupied and
feeling bad. Diaz also stated that he could not go out of the house because his wife was working
and could not accompany him.
Pursuant to Respondent’s request, counsel for the General Counsel produced a
document purporting to be Diaz’ work logs and he was called to the stand to offer testimony
regarding the entries contained therein. As Diaz testified, he started keeping the log in January
2010 at Marchelli’s suggestion because he might need it one day. As Diaz testified, the log
represented the places he looked for work, the address and telephone number of the facility and
the dates he conducted his work searches. His testimony reflects that he continued to search for
work beginning in January 2010, at times in locations not necessarily adjacent to his home.2
The work log reflects notations continuing until July 2011. Diaz testified that he would visit
personally, telephone or look through the internet. He additionally testified that he contacted
several facilities suggested by Union Representative Marchelli, which are also reflected in his
log. Generally, Diaz testified that he continued to look for work, because he wanted to work.
Most of the internet searches were conducted with the assistance of his wife, because he did
not know much about the internet. Diaz admitted that he applied for a job with a company called
Hoosier Stamping, located in Evansville, Indiana. When asked about the location he replied,
“Well, my wife was helping me.” When asked whether he would have gone to Indiana to accept
such a job, replied that he would not, because his family here in New York. Diaz’ work log
reflects that on July 24, 2011, he applied to a facility referred to as Zerodraft located in
Syracuse, New York. When asked whether he would have moved to Syracuse if he had gotten
employment he replied that he did not know the distance. When asked how far he would have
been willing to travel to employment he replied: “One hour to three by bus.” On July 29, 2011,
Diaz applied for a position in Loudonville, New York, located near Albany. He stated he could
not say if he would have gone there for a position. Diaz testified that after July 2011, his wife
continued to look for work for him, but he could not remember when she stopped. Counsel for
the General Counsel asked Diaz: “Now you testified that you had stopped looking for work
around November of 2010 and yet, we see there are some entries for June and July of 2011.
Can you explain that? Diaz’s answer was: “I felt that I wanted to do something. My body was
telling me I wanted to go to work.”
Diaz and his wife have two children. At the time of the hearing they were ages 4 and 1.
He states that his wife and his mother provide child care.

2 The first entry is dated January 7, 2010; however, as counsel for the General Counsel
noted, Diaz was by his own admission in Santo Domingo on that date. When asked about that,
Diaz stated he had just recently returned and went to the company.
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Diaz further testified that he attended a gym located about 5 minutes from his home for
workouts; and that it was his own idea. He does a cardio routine and exercises for his shoulder
on his doctor’s advice. His typical workout lasts about 1 hour. He also attends his medical
appointments and otherwise is in the house with his mother and children.
On cross-examination, Diaz stated that if he had found a job at the time he was initially
searching for work, it was possible that he would still be working today. He also testified on
cross-examination that he did not tell Dr. Morales that he went to airports.
Diaz visits his mother’s home, which is about a 10 minute walk and his brother’s
residence, which is about a 15 to 20 minute walk from his apartment.
Diaz testified that did not recall whether he told Dr. Morales about his fight with Tyrone,
where he became unconscious and was taken to the hospital. He stated that he did tell Dr. Shvil
(an expert witness retained by Counsel for the General Counsel, whose testimony is discussed
below) about it. Diaz testified that he did not tell Dr. Morales about the knife incident Rigo and
did not recall whether he told Dr. Shvil. He “probably” told Dr. Morales about his confrontation
with Pappo, but did not tell Dr. Shvil about it.
Diaz testified that he did not remember whether he told Dr. Morales about his search for
work. He did tell him that he returned to the work site on November 10 and attended a
grievance meeting on November 12. He did not tell Dr. Morales about the rally on November 17,
but did inform him that he went back to Respondent on November 27 to leaflet, and told him
what Perlson said to him on that day. Diaz did not tell Dr. Morales about leafleting at Miron &
Son; however he stated that he did discuss his trip to the Dominican Republic, his work for the
Union between January 17 and 20, 2010, the 80 employees he visited and spoke with prior to
the election; the election day itself and where he went to eat with union representatives.3 Diaz
testified that he agreed with the statement in Dr. Morales’ initial report that he spends most of
his time at home and only goes to places where they have cameras for protection.
According to Diaz, it was “probable” that he informed Dr. Morales about his subsequent
trip to the Dominican Republic in May 2012.
As Diaz testified, during his visits, Dr. Morales did not administer any written tests but
asked him various questions which were always different. He did not recall whether he was
shaven and stated that he dressed casually, as he typically does.4 Their sessions lasted one
hour or more and his wife accompanied him to all visits once she arrived in the United States.

3 These activities are not reflected in any report generated by Dr. Morales, and do not
appear to have been considered by him in generating his diagnosis and prognosis.
4 Dr. Morales’ reports uniformly refer to Diaz’ appearance as untidy and unshaven. This was
not his appearance during the multiple dates of the hearing where he was neatly dressed and
well groomed.
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In about May 2010, Diaz told Dr. Morales that he was hearing voices of unknown people
laughing and calling his name. He told Dr. Morales about problems with his eye, which Diaz
believed was related to the coffee splashing. He also consistently told Dr. Morales that he had
poor concentration and poor memory.
Diaz had a session with Dr. Morales on May 4, 2010, which was 1 day prior to a trip to
the Dominican Republic. Diaz did not recall whether he told Dr. Morales about this upcoming trip
and stated that he did not report it at his next appointment, in June.
Diaz did not recall whether he advised Dr. Morales about his wife’s pregnancies or the
birth of his children. He stated that he probably told Dr. Morales that he had lost his father at a
young age, and his grandfather was like a father to him.
Diaz saw Dr. Shvil in January 2015. His step brother, Manny, accompanied him. The
evaluation took about 2 hours. He did not recall what he told Dr. Shvil about hallucinations, but
did tell him he was hearing voices. He did not recall telling Dr. Shvil about the events
immediately following the coffee splashing such as the grievance meeting, leaflet distribution,
the rally at City Hall, visiting coworkers’ homes, his other work for the Union prior to the election,
or the criminal trial against Perlson.
Diaz applies for Unemployment Insurance benefits
Two weeks after his discharge, Diaz applied for unemployment insurance benefits.
Although he initially was granted such benefits, the Department of Labor subsequently found
that Diaz was ineligible to receive such benefits on the basis that he was not capable of work
and charged him for an overpayment. Diaz contacted Union Representative Chambers, who
advised him to file an appeal, which he did, and maintained for a substantial period of time.
Thereafter, on May 21, 2012, the Unemployment Insurance Appeal Board issued a
determination finding that Diaz was liable for the overpayment, but that he was without fault
because he wanted to work and had applied for employment until November 23, 2010, when,
upon the advice of his workers’ compensation attorney, he informed the Department of Labor
that he was unable to work. As noted above, in October 2014, Diaz repaid a sum of $8710 to
the Department of Labor.
The Workers’ Compensation Board determination
On October 20, 2010, Diaz was found by the WCB to have a work-related injury to his
left eye as well as PTSD. The WCB directed the insurance carrier to begin paying him benefits
as of February 4, 2010, the date on which he first produced medical evidence of disability. Diaz
was also referred to the bureau’s rehabilitation unit. A vocational rehabilitation counselor
interviewed Diaz, with his step-brother serving as interpreter and issued a report finding that
Diaz was not a candidate for vocational rehabilitation at that time. Diaz’ disability was initially
characterized as a temporary partial disability. On April 25, 2014, the WCB found Diaz to be
permanently partially disabled and entitled to continuing payments for 400 weeks.
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Diaz’s submission to the Social Security Administration and associated records
As noted above, on or about June 21, 2011, Diaz completed, signed, and submitted an
application for disability benefits to the Social Security Administration, was found to be disabled
as of February 4, 2010, and began receiving such benefits in about August 2011. Diaz was
awarded such benefits due to a diagnosis of PTSD, meeting a listing under Social Security
regulation 12.06AB and resulting in several marked restrictions in his psychiatric residual
functional capacity assessment. There are various components to this application which include
records from Dr. Morales, records from other health care providers and Diaz’ personal
statement regarding his medical condition which led him to apply for benefits. I will address the
latter statement here, and other portions of Diaz’ medical records below.
As an initial matter, it should be noted that throughout the hearing in the instant matter
Diaz presented, and it was generally acknowledged, that he had limited facility in English.5 He
testified quite clearly that his wife assisted him in completing his portion of the application which
is in English and includes a question and answer section relating to his ability to function
physically and emotionally as regards the requirements of work and more generally in terms of
daily activities of living. I further note, however, that Disability Examiner Ken Poletto made a file
note of a conversation which he had with Diaz’ step-bother, Manuel Perez, who contacted him
and according to Polleto’s note, the SSA received the following information:
He proceeded to tell me that since the claimant experienced this traumatic event at his
work place where his boss threw a cup of hot coffee in his face/tried to pay him off/and
fired him, he has not been the same person. The union he had through his work didn’t
help him either and he was tired of working long hours and whatever shift they made him
work, he tried to get other workers together to go to the union as a group and his boss
retaliated. He locks himself in his bedroom and looks out the window in fear that his boss
will come after him after he gets out of jail for assault. His wife found the ADL paperwork
that the claimant hid in a dresser drawer due to fear after he saw his employer’s name
on the paperwork. His step-brother said that the claimant used to enjoy all kinds of
sports, family gatherings, and doing things outside and now he just takes his medicine,
his wife helps him wash up, and then he always goes in his bedroom and locks the door
in fear. He always looks out the window in fear that someone will get him. He went to the
store with his family shortly after the incident and he saw a stranger with a cup of coffee
and he grabbed it and threw it across the room. The owner of the store didn’t press
charges because he knew the family and they explained what is going on, his step-
brother has to travel 2 hours to come and help with him with all these appointments.
Claimant and his wife both are Spanish speaking only and have a difficult time with all of
what is going on. His step-brother said that the whole family has been affected by this as
he is so different than the man he used to be.

5 Diaz not only testified with the aid of an interpreter, but one was made available by counsel
for the General Counsel to assist him throughout these proceedings.
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Thus, this note, made by an representative of the SSA, which purports to reflect his
discussions with a relative of Diaz, as his stated representative, calls into question (at the very
least) whether Diaz’ wife would have, in fact, been proficient enough in English to be able to
adequately assist him in completing the narrative portion of his application. In any event, Diaz
adopted the statements contained therein, and signed and attested to the truthfulness of his
application. There is no evidence he was unaware of or misled as to the nature of its contents.
In general, it must be said that, Diaz presented himself as someone who was far less
than functional in terms of daily activities. Moreover, it does not appear to me that someone with
limited facility in English would have been able to assist Diaz and fashion certain of the following
responses.
For example, when asked to describe his household chores and yard work, Diaz
responded: “Always see him with a hot cup of coffee looking for me. He wants to kill me. My
work is keeping him away from me.”
Numerous other responses reflect Diaz’ preoccupation with the notion that Perlson is out
to harm him and its repercussions are that he, “can’t sleep any more, always moody, depressed
and unable to do this I use to do before…always fearful of it. I have panic attacks, fear of going
outside.” Diaz continued to explain that he only went outside to see his “attending physician, see
my lawyer, all appointments I have, the only time I go out. The rest of my time I spend locked in
my room.”
Diaz reiterated that he spent much of his days locked in his room. For example, when
asked how often he socialized with others he responded: “When I have to only. I just want to be
alone, no one to harm me if I am locked in my room.”
When asked about what he does to deal with anxiety, Diaz again responded: “I talk to
my wife and my family. I request to see my psychiatric Morales and I lock myself in my room.”
When asked how stress or changes in his schedule affected him he replies, “I don’t like
changes in my life or schedule. I like to be locked in my room.”
Diaz further stated that he was “unable to travel or go anywhere by myself.”
In Section 3, entitled “Remarks,” Diaz attested as follows:
I never suffered from any health conditions. All these psychiatric issues that I am now
facing are due to the physical assault when Gary, the owner of Carnegie Linen Services
where I worked for approximately three years. Now I am totally disabled. Although I am
under psychiatric treatment for two years and a half, I do not demonstrate any indicator
of improvement with the proper professional psychiatric care. I am always complained of
poor memory, poor concentration, insomnia, flashbacks, nightmares, auditory
hallucinations, fears and somatic manifestations.
In this regard, Diaz stated that he was, “unable to hear clearly [and that] sometimes I
hear voices and people laughing [at] me.”
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He is unable to use his hands because, “I have the perception that hot coffee is going to
burn my face.”
Diaz further stated that he depended on his wife to shop and help him shave, feed
himself, clean himself after using the toilet, prepare his food and take his medication, among
other things.
In terms of the physical effects of the assault, Diaz (or his representative) wrote that he
has a “visual disturbance, discomfort and dryness. I have to wear glasses. I lost the vision on
my left eye due to the assault.”6 Diaz further stated that he is unable to travel independently and
that the “fatigue and anxiety never go way due to the ripple effects of the physical assault.”
Diaz’ Medical Treatments
Segundo Ruiz Belvis Diagnostic and Treatment Center
At all relevant times, Diaz received his general medical care from the Segundo Ruiz
Belvis Diagnostic and Treatment Center, where he received physical examinations and medical
testing, medication and treatment for diabetes and other ailments. He also was seen by Marie
Greene, an optometrist, who examined him on several occasions after the so-called “coffee
splash” incident.7
On November 25, 2009, Dr. Greene conducted an examination of Diaz based upon
complaints of pain in or around his eye and a superficial injury of the cornea. Dr. Greene’s
assessment was that the abrasion of the cornea was clinically resolved and that Diaz’s
subjective complaints did not match the symptoms presented. At this time his vision without
glasses was measured to be 20/25 in both the left and right eyes, as it was on several
subsequent visits. On December 3, 2009, Diaz returned to see Dr. Greene and complained of
redness, tearing and irritation in his left eye. It was noted that he had gone to court that morning
to report the incident. He was found to have a superficial injury of the cornea. The diagnosis
was “subjective visual disturbance, unspecified OS [left eye].” Again, Dr. Greene noted that the
symptoms complained of did not match the clinical presentation. In other notes, dated
December 4 and 11, 2009, Dr. Greene again found a “subjective visual disturbance, unspecified
OS.” On December 11, Diaz’ vision tested without glasses was found to be 20/20 in both eyes.
On January 26, 2010, Diaz’ vision was again tested and found to be 20/30 in his left eye and
20/20 in his right eye. The optometrist found: “subjective visual disturbance, unspecified
pseuomenganous conjunctivitis OS.” Dr. Green noted: “concerns of purposeful irritation of eye
by pt. in light of pending lawsuit.” Diaz was advised to avoid manipulating his eye and
prescribed a medication referred to as Tobradex to take for 1 week.

6 During the course of the hearing, which extended over a number of days, I failed to
observe any occasion on which Diaz required the use of corrective lenses for either near or
distance vision.
7 That is how it is referred to in the relevant medical files.
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On March 25, 2010, it was noted that “Pt. presents with white coating on eyelid. Reports
still using antibiotic ointment prescribed by ER doctor when presented to ‘coffee splash’
incident.” Dr. Green added, “Note that pt. was observed by doctor in waiting when he presented
for dental apt 3/22/10 with no abnormalities to eye. Often discrepancy with clinical presentation
and sxs. Concerns about malingering in light of pending workman’s comp case.” At this visit,
Diaz was advised to use lubricants for his eye.
On July 1, 2010, Diaz was seen by Dr. Kirti Shah for an assessment of his diabetes. He
had not been taking his insulin, as directed, and the doctor noted, “once again, pt. was educated
in self administration of insulin and dose of Lantus, to keep record and bring on next visit.”
On September 3, 2010, Diaz was again seen by Dr. Greene who reported: “Ohx: coffee
splash accident, taken to LHC ER and first eval by LHC eye clinic. Suspected h/o malingering
and atypical presentations of lid swellings.” Diaz was found to have acute conjunctivitis of the
left eye. It was further noted, “Questionable pt. induced. No evidence of sequelae of coffee
splash incidence. He was prescribed maxitrol for 1 week.” On Friday September 10, Diaz
reported improvement with the use of drops and washing his face. And the conjunctivitis of the
left eye was found to be resolved.
On September 22, 2010, Diaz attended a medical appointment with a nurse practitioner
who noted Diaz, “has hx of depression being followed at outside MH clinic & is on lexapro and
trazodone but is having financial & family problems with some exacerbation. No change in med
doses since Feb 2010; occ feelings he would be better off not here but no active suicidality.
Insomnia.”
On April 4, 2011, Dr. Greene examined Diaz again. His vision was 20/25 in both eyes
without glasses. Dr. Greene noted: ”Seeking original care/second opinion from LHC. As seen
there post ‘coffee splash injury,’ all clinical exams variable, inconsistent. r/o malingering.”
On April 6, 2011, Diaz was seen and treated because of painful toenails resulting in
difficulty in ambulation. At another podiatry visit, conducted April 20, 2012, Diaz was subjected
to a “risk screening” where he was found to have neither anhedonia nor a depressed mood (it is
not clear from the clinical note whether this was the evaluator’s opinion or Diaz’ self-reporting).
He was again seen and treated for painful toenails and other difficulties with his feet on April 20,
2012. On August 21, 2012, there were again negative findings with regard to anhedonia and
depressed mood, although he was given a secondary diagnosis of “Depressive disorder, not
elsewhere classified—being treated at outside facility.” Diaz had another podiatry visit on
September 7, 2012, where he complained of painful toenails bilaterally, having difficulty wearing
shoes and a history of pain on ambulation.
At a medical visit December 7, 2012, Diaz was found to have as a secondary diagnosis:
“Depressive disorder, not elsewhere classified—being treated at outside facility.” To help
manage his diabetes, Diaz was told to follow nutritional instructions, to check his feet daily and
walk for 30 minutes 4 days per week. In what appears to be his next visit to the clinic, Diaz
reported that he had been going to the gym and feels much better. On March 29, 2013, it was
again recommended that Diaz walk 30 minutes per day on 4 days per week.
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On July 30, 2013, the following note was made. “Patient with hyperlipidemia, Dm, PTSD
goes to a psychiatrist. Feels well. Diabetes is better.” Diaz was again advised to walk for 30
minutes 4 times per week. On August 2, 2013, Diaz reported that he has no complaints and has
begun an exercise program. On September 20, 2013, Diaz was found to have 20/20 vision
without glasses in both eyes. On November 19, 2013, questions relating to anhedonia and
depressed mood produced negative results, he was instructed to walk for 30 minutes 4 days per
week, and it was noted that Diaz goes to a psychiatrist. The negative results regarding
anhedonia and depressed mood were reiterated in an examination conducted on April 3, 2014;
however, it was noted that Diaz goes to a psychiatrist for depression and takes Lexapro and
Trazodone. On October 1, 2014, it was noted that Diaz had a “depressive disorder, not
elsewhere classified—being treated at outside facility.”
Throughout the period of his treatment at Segundo Ruiz Belvis, in numerous medical
notes, Diaz was assessed as a patient who did not demonstrate learning barriers, understood
verbal information and written materials, and demonstrated adequate understanding relating to
medication, its proper dosage and frequency, the reasons for taking the prescribed medications
and their possible side effects. He was instructed as to how to self-administer insulin injections
but as not always compliant in following medical instructions regarding how to control his
diabetes through weight control, diet and exercise.
Metropolitan Hospital Center Records
On March 1, 2012, Diaz went to the Metropolitan Hospital Center, where he was seen by
a physician in the Arthritis Rheumatology department. He was described as having shoulder
pain for 1 year. He was seen again on March 30 and diagnosed with myalgia myositis, disorders
of the bursae and tendons in the shoulder region. On that visit Diaz attributed his symptomology
to overuse of the left upper extremity in his work; and told the physician that the pain had begun
4 years previously. It was also noted that Diaz maintained good eye contact and was not in
distress. He was given trigger point injections of Lidocaine and reported immediate relief. He
was also advised to engage in home exercises.
On April 13, 2012, when Diaz was seen for a physical therapy evaluation, it was noted
that he reported that he was on disability, and was independent with respect to his activities of
daily living. He was found to “verbalize adequate understanding regarding treatment plan and
goals. . . ” He was seen again for physical therapy on April 19, 2012, when he performed
various exercised prescribed for him by the physical therapist. Sessions followed on May 3, 11–
12, June 8, 15, and 30 at which time he was discharged from physical therapy. Throughout
these sessions it was noted that Diaz demonstrated adequate understanding relating to his
therapy and the instructions provided by his health care providers.
Diaz’ Psychiatric Treatment and Other Evaluations
DSM Criteria for PTSD
Both Dr. Morales and Dr. Shvil (whose report and corresponding testimony is discussed
below) referred to the Diagnostic and Statistical Manual Section 309.81 in evaluating Diaz. Dr.
Nassar, the Respondent’s expert witness, expressed skepticism about the framework of this
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diagnostic measure. The most recent version is known as the DSM 5, although certain of Diaz’s
evaluations were pursuant to an earlier version (the DSM IV).
The diagnostic criteria identify the trigger to PTDS to be violence in one (or more) of the
following ways:
Exposure to actual or threatened death, serious injury or sexual violation. The exposure
must result from one or more of the following scenarios, in which the individual:
Directly experiences the traumatic event;
Witnesses the traumatic event in person;
Learns that the traumatic event occurred to a close family member or close friend (with
the actual or threatened death being either violent or accidental); or
Experiences first-hand or extreme exposure to adverse details of the traumatic event
(not through media, pictures, television or movies unless work related.)
The disturbance, regardless of its trigger, causes clinically significant distress or
impairment in the individual’s social interactions, capacity to work or other important
areas of functioning. It is not the psychological result of another medical condition,
medication, drugs or alcohol.
The foregoing is referred to in the DSM as “Criterion A.”
Criterion B for diagnosing PTSD is having one or more intrusive symptoms associated
with the traumatic event beginning after it occurred such as recurrent, involuntary and intrusive
distressing memories of the traumatic event; recurrent distressing dreams in which the content
and/or affect of the dream are related to the traumatic event(s); dissociative episodes (e.g.
flashbacks) in which the individual feels or acts as if the traumatic event(s) were reoccurring;
and intense or prolonged psychological distress at exposure to internal or external cues that
symbolize or resemble an aspect of the traumatic event(s).
Criterion C refers to persistent avoidance of stimuli associated with the traumatic
event(s), beginning after they occurred evidenced by avoidance or efforts to avoid distressing
memories, thoughts or feelings about or associated with the traumatic event(s) and avoidance
of external reminders that arouse distressing memories thoughts or feelings (such as people,
places, conversations, activities, objects or situations) of the traumatic events.
Criterion D relates to negative alterations in cognitions and mood associated with the
traumatic event(s) beginning or worsening after occurrence as evidenced by two or more of the
following: inability to remember an important aspect of the event(s); persistent and exaggerated
negative beliefs or expectations about oneself, others or the world; persistent, distorted
cognitions about the cause or consequences of the event(s); persistent negative emotional
state; markedly diminished interest or participation in significant activities; feelings of
detachment or estrangement from others; and persistent inability to experience positive
emotions.
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Criterion E regards alterations in arousal and reactivity associated with the traumatic
event(s) beginning or worsening after the event including irritable behavior, angry outbursts,
reckless or self-destructive behavior, hypervigilence, being easily startled, experiencing
difficulties with concentration, and sleep disturbances.
As is relevant to Diaz’ activities after the events of November 7, 2009, the DSM notes
that: “Symptoms usually begin within the first 3 months after the trauma, although there may be
a delay of months, or even years, before criteria for the diagnosis are met.” This was generally
concurred with (although with some qualification as expressed by Dr. Nassar, explained below),
by the medical professionals who testified at the hearing.
The Testimony of Dr. Morales
As his curriculum vitae and testimony reflect, Dr. Morales has practiced psychiatry since
1957. He is a Distinguished Life Fellow of the American Psychiatric Association, and is a
Diplomate of the American Board of Forensic Medicine, the American Board of Psychology and
Neurology and the American Board of Quality Assurance and Legalization Review Physician.
He has testified as an expert witnesses in various courts and, most frequently, before the
Workers’ Compensation Board. This is not, however, the primary source of his income.
As Dr. Morales testified, he currently treats hundreds of patients, about 30 to 40 percent
of whom have been diagnosed with PTSD. As noted above, he has been Diaz’ treating
psychiatrist for years, and has consistently submitted reports of his evaluation of Diaz’ condition
to the Workers’ Compensation Board. Such records were also submitted in support of Diaz’
application for Social Security Disability benefits.
Dr. Morales first saw Diaz on February 4, 2010. As he testified, Dr. Morales evaluated
Diaz’ demeanor, heard his chief complaints, took a history, evaluated his premorbid personality
and psychiatric history and assessed his functioning in terms of daily activities. He then
rendered a diagnosis and prognosis.
Dr. Morales testified that, in Diaz’ case, his premorbid personality was that of an active
and hard working person, who had an active social life and had never suffered from any
physical or mental incapacity. He further testified that when Gary Perlson attacked Diaz, he was
humiliated.
According to Dr. Morales, Diaz told him that he felt useless, helpless, and afraid that his
life was in danger right after this trauma. He complained of symptoms of insomnia, nightmares,
flashbacks, and an inability to sleep. He further complained of being agitated, irritable, and
afraid that Perlson would hurt him again or send someone to kill him. In addition, as Dr. Morales
testified, Diaz presented as depressed, apathetic, and anhedonic, i.e. he lost the capacity to
enjoy activities he used to enjoy.
Dr. Morales opined with a reasonable degree of medical certainty that Diaz was suffering
from classic symptoms of PTSD, associated with major depressive disorder (MDD), both
causally elated to the events of November 7, 2009. Dr. Morales concluded the issue of causality
was based upon the fact that Diaz had no psychiatric problems prior to the date of the incident
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in question and had been able to work without difficulty. Dr. Morales determined that Diaz was
unable to work because of:
Suspiciousness that he’s going to be hurt. Feeling what we call a paranoid tendency that
unknown people would follow him and he might be hurt. Also, some hallucinations,
insomnia, nightmare, frustration, irritability, panic manifestation, all of these symptoms
will disable him or anybody suffering from that.
Dr. Morales initially found Diaz to be temporarily disabled, but by May 2010, he changed
his opinion and concluded that Diaz was permanently totally disabled. At this time, Dr. Morales
opined and wrote in his report that Diaz had a “severe psychotic condition;” however, he
testified at the hearing that Diaz was not psychotic.
Regarding Diaz’ search for work, Dr. Morales testified that it was not inconsistent with a
diagnosis of PTSD for Diaz to have continued attempting to search for work during the 1st year
of his disability. As Dr. Morales testified, he counseled Diaz to be active, but that either his
depression or the prescribed medication was sapping his energy. In this regard, Dr. Morales
testified that he encouraged Diaz to look for work “to be active” and because it “will increase
their confidence and self-esteem, I would want them to do this, to go out and do things.” He did
not, however, refer Diaz to vocational rehabilitation because it may “increase the feeling for
uselessness and helplessness.”
According to the record, Dr. Morales last saw Diaz in January 2015 and testified that his
opinion on the causal relationship of his disability and his diagnosis of Diaz’ condition has not
changed.
On cross-examination, Dr. Morales testified as follows regarding his application of the
DSM PTSD criteria as applied to Diaz:
Q: (by Respondent’s counsel): As I read 309.81 which is a code that you cite to in your
report, the first element that a patient needs to meet for a diagnosis of post-traumatic
stress disorder is exposure to actual or threatened death, serious injury or sexual
violence. Is that correct, do we agree?
A: (by Dr. Morales): correct
Q: Okay. There are other ways that a patient can meet that criteria, correct?
A: Other ways, No.
Q: Let me – As I read the DSM criteria relative to post traumatic stress disorder, you can
meet that criteria by directly experiencing it, by experiencing the event, correct?
A: Correct.
Q: And, also, if a person learns that a loved one or a friend was exposed to actual or
threatened death, serious injury or sexual violence, they can meet that criteria.
A: Correct
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Q: And so, in addition to a person actually experiencing exposure to a threat of death or
serious injury or sexual violence, if a loved one is in the area and sees those events
happen to a loved one, they can also meet the criteria, right?
A: correct
Q: And, I believe and correct me if I’m wrong, I just want to be clear, according to the
way you testified in this case, it’s your opinion that if a person subjectively perceives a
threat of injury as severe, they can meet that criteria –
A: Correct.
Q: Okay, Is that – Is that issue of perception anywhere codified in the 309.81 of the DSM
criteria for diagnosis?
A: I don’t know if it’s in there or not, but it’s standard in psychiatry, perception is the most
important thing.
Q: But you don’t know – Can you point me to either in the DSM 5 or in the practice
guidelines for treating a patient with acute stress disorder and post-traumatic stress
disorder, where it says that the requirement of experiencing a threat of death or serious
injury is subjective in nature?
A: Well, you see there is the stressor, the stressor traumatic event indicating how severe
it should be for you to develop PTSD. Also, remember, this is the guideline, they are not
specific that it has to be that way, they are guidelines.
Q: Okay, Is it -- Is it also your opinion if a person is in the vicinity where a loved one is
and they see a loved one, you know, exposed to an injury that if their loved one
subjectively perceives something as dangerous and they find that out that’s enough to
meet the first criteria, the DSM criteria.
A: It is. Yes.
Respondent’s contentions regarding Dr. Morales’ testimony
Respondent argues that the evidence establishes that, in assessing Diaz’ premorbid
personality, Dr. Morales did not inquire, Diaz did not volunteer and therefore Dr. Morales failed
to consider, various other potentially traumatic events Diaz had experienced. Respondent
further argues that Dr. Morales failed to consider Diaz’ activities shortly prior to his diagnosis of
PTSD and MDD such as travelling independently to the Dominican Republic, returning to the
Employer’s facility at the time of the election, on January 20, 2010, otherwise campaigning for
the Union and assisting the Union in finding employees to support its objections to the election.
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Respondent additionally points to what it contends are instances of inconsistent
testimony relating to the cause of Diaz’ fatigue; the extent to which his vision was
compromised;8 whether Diaz could have continued to work had he found a job within the year
and whether Diaz’ immediately bringing up the coffee incident in conversation was consistent
with symptomology of PTSD. Similarly, although Dr. Morales had observed that Diaz’s memory
is intact, he consistently noted subjective complaints of poor memory and concentration.
Dr. Morales admitted that he took handwritten notes of his interview of Diaz only upon
their initial meeting. Thus, the record fails to contain contemporaneous notes of their sessions or
to establish or otherwise corroborate the assertions set forth in the various reports contained in
the record.
In this regard, as Respondent notes, on several occasions, Dr. Morales wrote in his
reports that it was Diaz’ right eye rather than his left eye which was injured. Dr. Morales did not
review any of Diaz’ medical records prior to reaching a diagnosis, despite his admission that
such medical records can be a helpful source of “collateral information” in the evaluation of
PTSD. While Dr. Morales testified that he gave Diaz the recognized objective test of
remembering three words; there is no mention of this in his reports. Dr. Morales was apparently
unaware that immediately prior to visiting him for the first time, Diaz visited the Dominican
Republic and travelled unaccompanied; he was also apparently unaware of the difficulties Diaz
with several of his coworkers in the months prior to his discharge.
In short, Respondent argues that Dr. Morales’ opinion was based upon an improper
subjective test, relying upon the limited and self-serving information provided by Diaz without
benefit of review of any medical records and that his reports evince numerous internal
inconsistencies and reflected an evaluation of PTSD symptomology which unduly relies upon
subjectivity rather than medical evidence. Accordingly, Respondent argues the diagnosis and
opinion of Dr. Morales should be rejected.
Dr. Shvil’s Evaluation of Diaz and Related Testimony
In support of its theory of ongoing backpay liability, counsel for the General Counsel
arranged for Diaz to be evaluated by Dr. Erel Shvil, a clinical psychologist with a specialty in
PTSD. Dr. Shvil was asked to determine whether Diaz suffers from PTSD; whether the PTSD is
a result of the unfair labor practices in this case and whether Diaz’s medical condition currently
prevents him from returning to work.
Dr. Shvil’s background
As Dr. Shvil testified, his interest in this area began when he served in the Israeli
Defense Forces and saw individuals who were exposed to trauma in war zone situations. He

8 As Respondent notes, Dr. Morales testified that Diaz told him that he had “lost most of the
vision in his eyes” but then stated that Diaz suffered only from “blurred vision.”
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thereafter earned two masters degrees and a Ph.D. from Teachers College, Columbia
University in clinical psychology.
As part of the requirement for getting his Ph.D., Dr. Shvil treated and evaluated patients
at the Columbia University out-patient clinic, and later served a clinical internship as a
psychologist at Jacobi Medical Center, affiliated with Yeshiva University’s Albert Einstein
College of Medicine, treating persons suffering from PTSD as result of civilian trauma such as
domestic abuse, gang violence and similar kinds of events. Dr. Shvil also worked as an
assistant in the Teachers College Department of Clinical Psychology and as an adjunct
professor of psychology in both the undergraduate and graduate schools of Pace University.
After receiving his Ph.D. in 2011, Dr. Shvil completed his postdoctoral work and became
a licensed clinical psychologist and began teaching in the Teachers College Department of
Psychology.
Dr. Shvil has received two postdoctoral fellowship grants, the first working under the
mentorship of Yuval Neria, a world renowned expert in PTSD who was recruited by Columbia
University after 9/11 due to his expertise in trauma and PTSD. The second fellowship, still
extant, was awarded to him by the National Institutes of Mental Health.
The substance of Dr. Shvil’s work is in studying the biomarkers of PTSD in the brain and
assessing the impact of new treatments for this disorder. The subjects of this study are
individuals who either have PTSD or were exposed to trauma but did not become ill. Dr. Shvil
testified that he acts as a “gatekeeper” of the study, i.e. he determines whether potential
subjects have PTSD and if so, the level of severity they exhibit. He also supervises the research
of assistants who perform initial screenings for the study.
Dr. Shvil testified that over the course of his fellowships he has evaluated over 300
patients. He has treated about 25 patients who suffer from this disorder. For the past 4 years,
Dr. Shvil has maintained a private practice where he treats from 13 to 15 patients at any one
time. At the time of the hearing, he had 13 patients in private practice, 7 of whom suffer from
PTSD.
Dr. Shvil also serves as a reviewer for peer reviewed journals, and has contributed
articles to journals, six of which deal with PTSD. He has also spoken about his research at
various professional conferences.
Dr. Shvil’s examination of Diaz
According to Dr. Shvil’s report (entitled Psychological Evaluation), he was referred by the
General Counsel to assess (1) whether Diaz is diagnosable as having PTSD; (2) to determine
whether his mental condition is the result of the unfair labor practices he experienced (referred
to as “the event” in his report); (3) the degree of Diaz’ disability; and (4) whether his current
mental condition renders him unable to work.
Dr. Shvil utilized the services of a professional interpreter hired by the Board. In addition,
an individual referred to as Diaz’ “brother” accompanied Diaz throughout the evaluation, as Diaz
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stated that he felt “too timid” without him; stating that he went with his brother everywhere when
he is out of the house.
Dr. Shvil observed that at the initiation of the interview, Diaz appeared startled and
behaved anxiously, pointing to a coffee mug on Dr. Shvil’s desk. It was only after Diaz was
reassured that it was empty that he relaxed.
Dr. Shvil observed that throughout the interview, Diaz maintained good eye contact and
normal thought process. However, he also evidenced anxiety demonstrated by shaky hands,
dry mouth and darting eyes. He demonstrated an affect described as “labile” in that he began
crying and shaking at several points throughout the interview; and required breaks to calm down
before he was able to continue.
When interviewed by Dr. Shvil, Diaz denied having any auditory or visual hallucinations;
and did not appear to be suicidal.
In the history recounted to Dr. Shvil, Diaz discussed the fact that he was born and raised
in the Dominican Republic, that his father passed away when he was very young, and his
mother moved to the United States during his early adolescence. Diaz grew up at his
grandparent’s house with his younger brother. He worked on his grandfather’s farm and
completed high school. He then performed work in a factory until 2001.
In 2001, at the age of 27, Diaz moved to the U.S. and reunited with his mother. He met
his half-brother and half-sister. He had a series of jobs in the laundry industry, and eventually
found work with the Respondent where he remained employed for approximately 3 years.
Diaz reported that he was socially active, played outdoor sports and went to movies or
parties. Once per year he visited relatives in the Dominican Republic. He met his current wife
and they married in the Dominican Republic in 2009. At the time of his interview with Dr. Shvil,
Diaz reported he had two daughters: one aged 3 and the other 8 months old.
Diaz told Dr. Shvil that his work at Carnegie was “hard but satisfying.” He stated that he
maintained good terms with the owner and the other supervisors, Nelson and Garlasco. He
became one of the more senior employees and felt that his employer trusted him to ensure that
things worked well.
Many of the newer employees were immigrants and “did not know their rights.” Diaz felt
that the union that represented the employees at the time did not do enough to help the workers
and he and a group of others began organizing.
Diaz reported that on November 7, 2009, a meeting which was scheduled to be held in a
nearby restaurant did not take place, because Garlasco found out and appeared at the
restaurant. The meeting was postponed.
As Diaz recounted to Dr. Shvil, on the following day, he was called into Garlasco’s office.
Garlasco asked him to stop his organizing efforts and offered him $3000 to do so. Diaz reported
that it was too late, and he had already spoken to the workers. When he left the building he was
summoned by Nelson to return to the facility where he encountered Perlson. Nelson and
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Garlasco were also present. Perlson spoke with him while Garlasco translated their discussion.
It was at this time that Perlson related the offensive and profane comments which have been
reported above and then threw coffee into Diaz’ face. Diaz told Dr. Shvil that, at this point,
Perlson told Diaz that he was fired.
As Dr. Shvil recounts in his report, both the police and an ambulance arrived at the
scene shortly thereafter. Perlson denied his actions and told Diaz he could return to work. Diaz
was taken to the hospital and discharged later that day, “apparently having treated for minor
burns.” On the following day, Diaz returned to work, although he was in pain from the burn. He
was told to leave immediately, as he had been fired. As Dr. Shvil reports, Diaz told him that he
felt very depressed and anxious and when he spoke with other workers they told him to be
careful; that Perlson was a dangerous man and could send men to hurt him. Diaz told Dr. Shvil
that, at this point, he became terrified.
Diaz then reported that on November 26, 2009, he was asked by the Union to distribute
flyers to employees in front of the Carnegie facility. He agreed, and as he was standing in front
of the facility, Garlasco surprised him from behind and took the flyers from him. Perlson also
approached him and stated, “Did you not have enough coffee? Do you want more coffee?” Diaz
went, along with an individual characterized as his brother, to the police precinct the following
day and pressed charges against Perlson. According to Diaz, Perlson was then arrested.
In evaluating Diaz, Dr. Shvil conducted a clinical interview which involves observing a
patient and assessing his medical condition by asking him questions pertaining to his history
and behavior. Dr. Shvil also conducted a mini mental status exam (MME) which determines
whether the patient has thought difficulties.
As Dr. Shvil noted, Diaz reported that on February 4, 2010, approximately 2 months after
the event, Diaz began seeing Dr. Morales complaining of a constant state of fear, insomnia, and
nightmares. He had stopped all social interaction, outdoor sports activities, and seeing friends.
He reported approximately 3 to 4 flashbacks per week where he “feels or acts” like the event is
happening over again. He may hear voices from the street, and thinks that it is Perlson asking,
“Do you want more coffee? Did you not have enough coffee?” He then experiences a strong
physiological reaction including sweating and a rapid heartbeat.
Diaz reported that he avoids crowds and never leaves his house alone. When riding the
subway, he has to leave before his stop because constantly worries for his safety and is afraid
someone will hurt him. He experiences shame for not being able to support his family and
believes people perceive him as worthless and incapable.
In the course of this clinical interview, Dr. Shvil found that Diaz’ history showed that he
had worked consistently prior to the trauma; and his social history showed that he interacted
with others by playing sports and attending social events. Dr. Shvil further noted that Diaz’ work
in trying to bring the Union to his work place showed him to be assertive and one who tries to
fight injustice.
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Dr. Shvil further found that when recounting the events of November 9 and 27, Diaz
appeared anxious: his hands shook, his mouth was dry and he cried. Dr. Shvil did not find these
behaviors to be exaggerated.
Shortly after these events occurred, in November 2009, Diaz began to have symptoms
of PTSD which he described as intrusive memories, nightmares, and flashbacks, avoidance of
places or situations that might remind him of the trauma, and feelings of shame, blame,
perceiving the world as a dangerous place, isolation, hypervigilence, and sleep difficulties.
In addition to the clinical interview and the MME, Dr. Shvil administered two tests to
Diaz. The first of these was the Clinician Administered PTDS Scale for the DSM IV (the CAPS).
This was described by Dr. Shvil as a structured interview wherein the clinician asks the patients
questions which are based upon the criteria set forth in the DSM IV.9 Dr. Shvil characterized the
CAPS as the most reliable and validated tool for assessing PTSD in use today, and referred to it
as the clinical and research community’s “gold standard.” He noted that in recent years no well-
regarded journal has published any article researching the PTSD population that does not use
the CAPS.
The second test Dr. Shvil administered to Diaz was the Structured Clinical Interview for
DSM IV Axis I Disorders (the SCID). Similar to the procedure followed with the CAPS, the
clinician reads the patient questions in the SCID and asks follow up questions as necessary to
assist the clinician in determining whether the symptoms that the patient endorses is related to
the trauma suspected of causing PTSD (or other disorders characterized in the DSM as falling
within the ambit of Axis I).
Dr. Shvil testified that professionals in the field find the SCID to be a reliable and
validated instrument to assist in determining whether someone suffers from disorders in addition
to PTSD, or whether other disorders preexisted prior to the trauma.
Dr. Shvil’s Report, Diagnosis and Opinion
Based upon the clinical interview and the CAPS, and applying the DSM 5 criteria, as set
forth above, Dr. Shvil determined with a reasonable degree of psychological certainty that Diaz
suffers from PTSD. He found that Diaz had suffered a direct physical attack accompanied by the
perceived threat of serious injury to his eye. Diaz’ symptoms have persisted for the past 3 years
and cause him significant social and vocational impairment. Dr. Shvil’s findings are
substantiated by the result of the CAPS which show extreme PTSD symptom severity. He
further concluded, based upon the clinical interview and the SCID, that Diaz additionally suffers
from MDD. In this latter condition, the sufferer manifests feelings of sadness, helplessness and
worthlessness, lack of motivation, and anhedonia. As Diaz reported to Dr. Shvil, more days than
not, he had feelings of worthlessness and shame, had problems sleeping, lacked energy, and

9 The CAPS uses questions relative to the DSM IV, rather than the relatively new DSM 5
which has supplanted it. A new test using the more recent criteria is still in the process of being
tested for reliability.
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felt that life was not worth it. Dr. Shvil determined that the SCID ruled out all Axis I disorders
other than PTSD and MDD.
Dr. Shvil further testified that he concluded, to a reasonable degree of psychological
certainty, that Diaz’s PTSD was related to the events of November 7, 2009, and his MDD was
related to the PTSD. In particular, the November 7 incident was the cause of the PTSD and
began becoming evident after the threat issued by Perlson on November 27. By way of
example, Dr. Shvil referred to a soldier traumatized during deployment in a gunfight who saw
people dying or wounded. Although this soldier may initially have some symptoms of PTSD
such as nightmares and difficulty in sleeping, he will continue to function until he returns to the
United States and hears a door slam and an ambulance approaching. According to Dr. Shvil, it
was in that way that the threats issued on November 27 incident, which related to the November
7 event, triggered the trauma.
Dr. Shvil further testified that he had determined, to a reasonable degree of
psychological certainty, that Diaz was unable to return to work and keep a job at the current
time due to his diminished level of social, emotional and vocational functioning. He has trouble
interacting with others, leaving the house alone and taking the train. He has trouble
concentrating and would constantly be bombarded by memories of the trauma.
Respondent’s contentions regarding Dr. Shvil’s testimony and opinion
In challenging Dr. Shvil’s testimony and opinion, Respondent relies upon the fact that Dr.
Shvil did not consider relevant aspects of Diaz’ premorbid work and social history – in particular,
the work-related difficulties he experienced between August and October 2009 where he was
involved in altercations with several coworkers. Respondent further notes that the hypotheticals
cited by Dr. Shvil in his testimony relate to traumatic events which do not include an example of
someone who had coffee splashed in his face. Rather, the examples offered by Dr. Shvil were
far more extreme in nature such as “a soldier in an ambush and instantaneously getting
attacked by an enemy,” “a car accident,” “someone in a captivity situation and he knows that
some is going to kill him or torture him,” “policemen or people who need to be working in high
stress or potentially traumatic situations are trained not to emotionally react to trauma. . .
experience horrendous events, events that by all means are life threating or serious injury [and
suffer from PTSD],” “a victim of rape” and “horrible rape, with multiple guys—sometime family
members.”
Respondent also points to the fact that the General Counsel offered into evidence a
blank version of the SCID, rather than the once actually completed during Diaz’ interview (which
was entered into evidence by the Respondent) and contends further that the responses Diaz
gave Dr. Shvil were inconsistent with his testimony regarding Diaz’ psychiatric condition. For
example, when shown the copy of the SCID that Dr. Shvil had actually completed, he reported
(as a response to Question 6) that Diaz stated that he was not afraid to do things like “speaking,
eating or writing in front of others.” For Question 7, Dr. Shvil noted that Diaz reported that there
were not other things that he was “especially afraid of.” For Question 8, Dr. Shvil noted that Diaz
denied being “bothered by thoughts that didn’t make any sense and kept coming back to [him]
even when [he] tried not to have them.” When asked, “[h]as it ever seemed like people were
talking about you or taking special notice of you,” Dr. Shvil noted that Diaz denied such feelings
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or observations. For the question, was “anyone going out of their way to give you a hard time, or
trying to hurt you?” Dr. Shvil noted that Diaz stated that he was not experiencing that. In
addition, Diaz denied that experienced hearing voices and things that other people could not
hear, or experiencing visual hallucinations. He also denied “worry[ing] a lot about bad things that
might happen.”
As Respondent argues, the foregoing responses refute the objective DSM IV criteria
which formed the basis for Dr. Morales’ diagnosis and Dr. Shvil’s testing and evaluation of Diaz
pursuant to the CAPS. Moreover, it is argued, Dr. Shvil’s own examples of the trauma people
experience who actually do suffer from PTSD are far beyond the splashing of coffee and there
is no factual basis upon which to conclude that Diaz has suffered a “serious injury.”
Respondent further notes that Dr. Shvil testified that he did not review the statements
made by Diaz in his 2011 application for SSD in preparation of his report and that he was
unaware (until he reviewed Dr. Nassar’s report, as discussed below) that Diaz had returned to
the Carnegie Linen facility on several occasions after his discharge.
Respondent additionally argues that Dr. Shvil provided contradictory testimony as to the
cause of Diaz’ PTSD, first testifying that was caused by the November 7 coffee splashing
coupled with the November 27 confrontation with Perlson, and then opining that it was solely
caused by the coffee splashing, and his further opinion that it was not relevant that the physical
symptoms of this event were not serious.
Respondent further contends that Dr. Shvil failed to make efforts to obtain a complete
picture of Diaz and his activities both before and after the coffee incident; in particular, by not
reviewing his other medical records and other documentation relating to his claims of disability.
Dr. Shvil also acknowledged, as a hypothetical matter, that if he had read medical records
indicating that a potential subject for his study was suspected of malingering that would have
aroused suspicions.
Dr. Nassar’s report and testimony
Dr. Nassar was qualified, as were Dr. Morales and Dr. Shvil, as an expert witness in this
matter. Dr. Nassar is a medical doctor and psychiatrist, licensed since 1975. While serving in
the military between 1973 and 1975, he diagnosed and treated soldiers returning from Vietnam,
observing the rise in PTSD among them. Dr. Nassar has been qualified, and has testified, as an
expert in various courts since the 1980’s.
Dr. Nassar examined Diaz on January 7, 2015, with the benefit of an interpreter. His
preparation for this examination consisted of a review of the compliance specification and
answer in this matter, Diaz’ medical records, his application for Social Security Disability and the
reports and opinions of Dr. Morales and Dr. Shvil.
Dr. Nassar testified that the hallmark of PTSD is that there is both a serious threat to
one’s survival or a serious injury, but it is linked to not just the threat but also to an inability to
react or a sense of helplessness in the face of that impending danger. As Dr. Nassar testified, it
is that combination which overwhelms ordinary coping mechanisms.
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When asked to provide examples of the types of traumatic events that he has seen to
trigger the disease, Dr. Nassar referenced tortured Tibetan monks, gunshot victims; soldiers
returning from Vietnam who saw people killed and had killed people themselves and soldiers
returning from Afghanistan and Iraq. He also stated that he feared that the use of the term
PTSD as a diagnosis was becoming overgeneralized and therefore minimizing the damage and
disruption to lives that the disease causes.
When asked whether he had ever diagnosed someone with PTSD based upon
circumstances similar to those at issue here, Dr. Nassar said no; nor had he ever seen such a
diagnosis in published literature. However, he did note as an example where PTSD was caused
when acid was thrown in the face of Afghan women.
Dr. Nassar testified that certain of Diaz’ behaviors after the coffee incident (and the
subsequent threat from Perlson) were inconsistent with the type of behaviors typically
associated with PTSD: in particular, his return to the facility on November 27 and January 20.10
In addition, Dr. Nassar testified that, in his opinion, the behaviors exhibited by Diaz immediately
after the coffee event, such as calling the police and the Union, did not evince the requisite
element of helplessness.
Dr. Nassar testified that Diaz’ responses in the SSD questionnaire (set forth in part
above) were more consistent with those of someone suffering from dementia or traumatic brain
injury, rather than those of someone with PTSD.
Dr. Nassar additionally testified that the SCID, administered by Dr. Shvil, could not be
relied upon because of its subjectivity and that the same was true for the CAPS. Generally, Dr.
Nassar opined that while the CAPS is useful as a general screening tool in a clinical setting, it is
inapposite in a forensic context.
In reviewing Dr. Morales’ reports he found that there was no support for the conclusion
that Diaz had had “boiling” liquid thrown at him or that there was a “serious injury” to Diaz’ eye,
as the hospital records fail to support that conclusion.
Dr. Nassar reviewed the records provided by the Segundo Ruiz Belvis clinic which, as
noted above, administers general health care to Diaz. When examined on November 25, 2009,
Diaz’s vision was measured as 20/25 in both the left and right eyes. As Dr. Nassar testified, this
is not a significant loss of vision. The examiner found that the activity muscles were normal,
there had been a prior corneal abrasion but that it was superficial, had been resolved and the
subjective complaints presented did not match the symptoms complained of, “no evidence of
sequelae of coffee splash incident.”
Diaz’ vision was measured again on December 3, 2009; again found to be 20/25 in both
eyes. The assessment of the optometrist was at that time that there was a subjective visual

10 Dr. Nassar testified that while full-blown PTSD may take some time to develop, symptoms
will be experienced from the outset and develop over time.
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complaint which did not match the clinical presentation. Similar observations made by another
clinician were reported and made part of Diaz’ medical records on March 25, 2010.
Dr. Nassar further testified that the medical records he reviewed (with the exception of
the reports generated by Dr. Morales) failed to substantiate Diaz’ subjective complaints in other
respects. In particular, the records fail to demonstrate that Diaz was experiencing auditory
hallucinations or that he was incapable of caring for himself. He was given instructions as to
how to administer insulin for his diabetes; there appeared to be no difficulty with memory or
concentration and he understood the medical instructions given to him.
Dr. Nassar testified that in his opinion Diaz was malingering or grossly exaggerating his
symptoms. The indicators for this included: an exaggerated willingness to talk about Perlson;11
his descriptions of dreams inconsistent with PTSD;12 reports of hallucinations more related to a
psychotic condition, without associated symptomology, as well as Diaz’ gross exaggeration of
symptoms including complaints of eye injury. In addition, Dr. Nassar noted Diaz’ general
unresponsiveness to basic questions during the clinical interview and his abrupt termination of
the interview when asked to participate in a mental status examination.
The General Counsel’s challenge to Dr. Nassar’s testimony
The General Counsel challenges Dr. Nassar’s testimony on several grounds. First, the
General Counsel makes an attempt to minimize his professional achievements. In this regard I
find that while Dr. Nassar’s career arc does not mirror the academic and research focus of Dr.
Shvil, he has developed a different sort of practice: one, admittedly, which involves numerous
instances where he has testified as an expert witness.
To a large extent, the General Counsel relies upon supplemental testimony of Dr. Shvil
to rebut Dr. Nassar’s assertions. Respondent objected to the admission of this testimony,
claiming that inasmuch as Dr. Shvil failed to prepare a supplemental report, such testimony did
not comport with the Federal Rules and constituted undue and unfair surprise. Counsel for the
General Counsel contends that it was under no obligation to provide Respondent with what is
tantamount to pretrial discovery and it was within its rights to present such testimony. I allowed
Dr. Shvil to testify in rebuttal to Dr. Nassar’s report. Here are the points relied upon by the
General Counsel:

11 Dr. Nassar noted in his report that Diaz immediately began to describe being followed,
and he had to redirect the initial part of the examination to obtain basic information, such as
Diaz’ address. Throughout the examination, Diaz would often not respond directly to questions
but “would revert back to his fears of Gary Perlson and his need to be protected by his wife or
others.”
12 As Dr. Nassar, testified, after an initial period where a recreation of the trauma may be
experienced in dreams, as time goes on, PTSD dreams consist of two elements: emotional
danger and helplessness, but sufferers do not have literal, factual recreations of the events
which caused the trauma.
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Dr. Shvil testified that Dr. Nassar’s opinion that Diaz’ actions after the coffee splashing
did not indicate that he was suffering from PTSD is incorrect because one cannot break down a
traumatic events into parts: the trauma consisted of Respondent’s owner accusing Diaz of
hurting the company, demeaning him with gross language, throwing coffee at him in the
presence of two managers and then firing him.
With regard to the severity threat, General Counsel contends that the issue of perception
was not addressed by Dr. Nassar. As the General Counsel argues, both Dr. Shvil and Dr.
Morales testified generally that the most important thing in assessing a patient is the context of
the event, and the clinician’s determination of how the patient perceived it, not the physical
symptoms resulting from the event, which may be registered in the memory as traumatic even if
it turns out there is no serious injury. Further, there is no correlation between the level of trauma
and the severity of symptoms.13
General Counsel argues that Dr. Nassar’s assertion that to have PTSD one must feel
helplessness is illogical as many people with PTSD do not feel impending danger prior to the
treat.
Dr. Shvil testified that a finding of helplessness is not necessary when diagnosing PTSD.
When confronted with an abstract he authored endorsing a position that the trauma induced a
response of fear, horror, and helplessness, Dr. Shvil responded that this article was based upon
the DSM IV, not the DSM 5 which omitted a response of intense fear, helplessness or horror as
a criterion for diagnosis.14 In this regard Dr. Shvil offered testimony, which I can only regard as
speculative, that Diaz might well have felt helpless because he couldn’t defend himself in the
situation at the time.
General Counsel points to the fact that Dr. Nassar takes issue with the diagnostic criteria
as set forth in the DSM as most of the criteria are subjective. However, many of the symptoms
which Dr. Nassar finds to evidence PTSD (such as hyperarousal dreams, intrusive thoughts,
flashbacks, withdrawal, and decreased expression of feelings) may be diagnosed by subjective
reports of the patient. Dr. Nassar acknowledged that Diaz told him that he has problems going
to sleep, he often dreams of Perlson screaming and throwing coffee and saying he wants to kill
Diaz. Dr. Nassar testified that that PTSD dreams area not merely a repetition of the event; it is
the emotional danger and feeling of helplessness which are relived in the dream that are of

13 I this regard, I note that in commentary distinguishing diagnostic criteria between the DSM
IV and the DSM 5 the American Psychiatric Association has stated, in pertinent part: “DSM 5
criteria for posttraumatic stress disorder differ significantly from those in DSM-IV. As described
previously [for acute stress disorder], the stressor criterion (Criterion A) is more explicit with
regard to how an individual experienced “traumatic” events. Also Criterion A2 (subjective
reaction) has been eliminated.”
14 Of course, this argument conveniently ignores the fact that the CAPS administered to
Diaz upon which Dr. Shvil largely based his diagnosis and prognosis was developed pursuant to
the DSM IV. In this regard, Dr. Shvil’s testimony reflects the differentiation regarding subjective
perception between the DSM IV and the DSM 5 which has been noted above.
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significance. Dr. Shvil stated that as long as the dreams relate to the event in some way,
including replaying it, they will be PTSD dreams.
General Counsel further argues that Dr. Nassar ignored Diaz’ self-reporting that he
avoids talking to friends because they will inquire about the incident, even though he testified
that a person with PTSD will avoid anything that will remind them of the event. Dr. Shvil stated
that anything could remind Diaz of Perlson and his disability because his world becomes very
small as he attempts to avoid reminders of the trauma. Similarly, General Counsel argues that
Dr. Nassar discounted reports that Diaz hears menacing voices which he relates to Perlson
even though they were reported to him, as were Diaz’s reports of hypervigilence.
In sum, counsel for the General Counsel contends that Dr. Nassar is an outlier in the
field of PTSD: based upon his experiences working with people who have experienced horrible
trauma, he is unable to acknowledge when a lesser trauma is found to cause the disorder.
Analysis and Conclusions
In support of its contention that Diaz is entitled to be eligible for continuing backpay from
the date of his discharge until he recovers from his psychiatric illnesses and is able to return to
work or is eligible for full retirement under Social Security regulations, counsel for the General
Counsel avers in paragraph 15 of its compliance specification as follows:
(15) To ensure proper monitoring of Respondent’s ongoing obligation to make Diaz
whole, each year by January 5, the Region will:
(1) Contact Diaz to obtain evidence reflecting his disability status and whether he has
incurred any medical expenses.
(2) Contact Respondent to obtain evidence reflecting hourly wages for the position of
pressers/loaders and any changes in the medical reimbursement to which they are
entitled.
(3) Based on information obtained from Diaz and Respondent, adjustments to the
quarterly amounts owed to Diaz will be made by the Region if appropriate.
(4) Notify Respondent by the last day of each calendar quarter what the amount of
backpay, medical reimbursements, and interest is for that quarter.
(5) Notify Diaz to contact the Region immediately should he become eligible to return to
his former position at Respondent.
The compliance officer who testified at the hearing offered no testimony or other
evidence to demonstrate, explain or otherwise substantiate the assertions made above, and the
General Counsel has failed to do so otherwise, as well.
In my view, the assertion that Respondent has an ongoing obligation for backpay for
decades to come, and the vague efforts committed to by the General Counsel, as described
above, without any definitive testimony in this regard, raise substantial due process
considerations. It appears from the forgoing, that the General Counsel plans, on an annual
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basis (assuming that they do so, for who is actually to monitor whether that happens or gets
absorbed and forgotten in the administrative day-to-day shuffle) to conduct an exclusively ex –
parte examination of whether Diaz is disabled and therefore entitled to continuing backpay
payments. In the interim, compliance officers, regional directors and attorneys and general
counsels may (and probably will) come and go and the utilization of administrative resources
may well be reconfigured. While this may seem unduly speculative, so too is the General
Counsel’s assertion of continued monitoring of Respondent’s continuing obligation in this
matter.
Further, the General Counsel has failed to prove (as they are obliged to do, as it is
asserted as a part of their ongoing obligation) what methods they would use to determine
whether Diaz remains disabled and unable to work. Is the General Counsel planning to depose
Diaz, take affidavits from him and other witnesses, employ medical experts or simply ask Diaz
how he is feeling? There is no apparent effort to determine whether Diaz should or will seek
mitigation of Respondent’s backpay obligation. In this regard, it should be noted that under
Social Security regulations, it is contemplated that an individual receiving disability payments
may well be able to engage in work activities, they can engage in work activities without
forfeiting their rights to disability payments and there are programs to assist them to do so. For
example, there is a trial work period where individuals may test their ability to work for a 9-
month period and still be considered disabled. See CFR 404.1592. In addition, any individual
who receives Social Security benefits may earn up to a certain amount without disqualification
for such benefits. In calendar years 2010 and 2011 this was $1000 per month, and this amount
has increased in years thereafter.
Moreover, the General Counsel has failed to explain what opportunity might be afforded
to the Respondent to counter any such adverse determination by the Region. None is even
suggested. Were I to find, after the fully litigated proceeding here, that the evidence establishes
that Diaz’s inability to work was caused by the unfair labor practices of his employer, how long
in the future could this finding be reliable and supportable? In this regard I note that Dr. Shvil,
the expert that General Counsel relies upon most heavily, has opined only that Diaz is
“currently” disabled and unable to work. His opinion, therefore, does not suggest a future
prognosis, or the possibility of recovery which presumably one would strive for under such
circumstances, if they are genuine.
Section 10(c) of the National Labor Relations Act charges the National Labor Relations
Board “to take such affirmative action including reinstatement of employees with or without back
pay, as will effectuate the [Act’s] policies” when an employer engages in an unfair labor practice.
In order to “effectuate the policies” of the Act, the Board “must tailor the remedies to the
violations in each case” and strive to “reaffirm to employees their Section 7 rights and to
reassure them that the Respondents will respect those rights in the future.” Pacific Beach Hotel,
361 NLRB No. 65 (2014).
In this instance, the General Counsel is contending that an award of continuing backpay
is not a request for front pay, but for purposes of analyzing the appropriateness of such a
remedy, I find the principles enunciated in the area of front pay, insofar as they have been
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articulated by other administrative agencies and the courts in enforcing such orders to be
instructive.15
Although “the Board has never awarded front pay in lieu of reinstatement to a victim of
unlawful discrimination under the Act, nor has it addressed its statutory authority to do so,”
Pacific Beach Hotel supra, slip op. at 10, the Board has acknowledged that Title VII of the Civil
Rights Act of 1964, which has remedial provisions based on the National Labor Relations Act’s
own remedial provisions, recognizes front pay as a viable remedy. Therefore, given the Board’s
guidance on this issue, I find it appropriate to consider relevant precedent arising under other
statutory authority to see what ongoing monetary obligations are considered under such
schemes.
The Supreme Court defines front pay as “money awarded for lost compensation during
the period between judgment and reinstatement or in lieu of reinstatement,” Pollard v. E.I. du
Pont de Nemours & Co., supra at 846 (2001), and has been recognized by federal courts and
administrative agencies as a remedy for employment discrimination. Pacific Beach Hotel, supra.
In Pollard, supra, the U.S. Supreme Court determined that front pay is separate from
“compensatory damages within the meaning of § 1981a, and. . . that the statutory cap of §
1981a (b)(3) is inapplicable to front pay.” Id. at 848. Additionally, the Court recognized two
scenarios where, in lieu of reinstatement, front pay may be an appropriate remedy for
employment discrimination claims brought under Title VII of the Civil Rights Act of 1964. Id. at
846. For example, “when an appropriate position for the plaintiff is not immediately available
without displacing an incumbent employee, courts have ordered reinstatement upon the
opening of such a position and have ordered front pay to be paid until reinstatement occurs.”
Ibid. Secondly, under circumstances where “reinstatement is not viable because of continuing
hostility between the plaintiff and the employer or its workers, or because of psychological
injuries suffered by the plaintiff as a result of the discrimination, the courts have ordered front

15 In Pacific Beach Hotel, the discriminatee had twice been unlawfully terminated by the
respondent. This conduct raised a “serious question as to whether reinstatement adequately
serves to make [the employee] whole” slip op. at 10. While neither the General Counsel nor the
Union asked for front pay in lieu of reinstatement as a remedy for the worker, the Board
discussed the issue. Citing to Pollard v. E. I. du Pont de Nemours & Co., 523 U.S. 843, 848
(2001), The Board noted that the language of the NLRA, which authorizes the NLRB to issue an
order “requiring such person to cease and desist from such unfair labor practice, and to take
such affirmative action including reinstatement of employees with or without back pay . . . ,” has
been used to interpret the later enacted Title VII, which authorizes courts to “enjoin the
respondent from engaging in such unlawful employment practice, and order such affirmative
action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of
employees, with or without back pay” (Emphasis supplied).
The Board declined to grant front pay to the terminated employee, stating that before it
would seek to employ front pay as a regular remedial action, there needed to be a better
understanding as to what types of cases it will be applied to, what type of test will be used to
determine whether front pay should be a remedy, and how the payment will calculated.
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pay as a substitute for reinstatement.” Ibid. See also Gotthart v. National R.R. Passenger Corp.,
191 F.3d 1148, 1156 (9th Cir. 1999); Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945, 957
(10th Cir. 1980). Also, courts have recognized front pay “when the employer has demonstrated
aggressive behavior towards the former employee.” Pacific Beach Hotel, supra.
Federal courts use front pay as a way “to make a victim of discrimination ‘whole’ and to
restore him or her to the economic position he or she would have occupied but for the unlawful
conduct of his or her employer.” Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C. Cir. 1995), cert.
dismissed, 516 U.S. 1155 (1996), quoting Green v. USX, 843 F.2d 1511, 1531 (internal
quotation marks and punctuation omitted). In order to determine the amount of front pay needed
to make a party whole, the plaintiff must provide the court with “enough evidence to enable the
court to make a reasonable projection of future loss of income,” Shore v. Federal Express Corp.,
777 F.2d 1155, 1160 (6th Cir. 1985), which includes “the amount of the proposed award, the
length of time the plaintiff expects to work for the defendant, and the applicable discount rate.”
McKnight v. General Motors Corp., 973 F.2d 1366, 1372 (7th Cir. 1992), cert. denied, 507 U.S.
915 (1993). The defendant may “challenge the award's amount, length, or interest rate, or to
establish as an affirmative defense that the plaintiff failed to mitigate damages.” Barbour, 48
F.3d at 1279-80. See also, Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir.
1987) (“[F]ront pay is intended to be temporary in nature”).
Courts note that “[c]alculations of front pay cannot be totally accurate because they are
prospective and necessarily speculative in nature.” Reneau v. Wayne Griffin & Sons, Inc., 945
F.2d 869, 870 (5th Cir.1991). Calculating front pay is onerous and intricate.
Numerous factors are relevant in assessing front pay, including life expectancy, salary
and benefits at the time of termination, any potential increase through regular
promotions and cost of living adjustment, the reasonable availability of other work
opportunities, the period within which a plaintiff may become reemployed with
reasonable efforts, and methods to discount any award to present net value.
Davoll v. Webb, 194 F.3d 1116, 1144 (10th Cir. 1999), citing Shore, 777 F.2d at 1160.
In Davoll, supra, the 10th Circuit Court of Appeals indicated that front pay must end on a
specific date, Id. at 1144, citing Carter v. Sedgwick County, Kan., 929 F.2d 1501, 1505 (10th
Cir.1991), and should consider “a plaintiff’s future in the position from which he was terminated,”
Id. at 1144, while representing “the individualized circumstances of the plaintiff and the
employer.” Ibid. Although, “the cut-off date is within the district court's discretion, that
determination ‘must be based on more than mere guesswork.’” Ibid. (internal quotations
omitted). See also, EEOC v. HBE Corp., 135 F.3d 543, 555 (8th Cir. 1998) (Front pay award for
Title VII race discrimination action reduced from five to one-year, because of high turnover rate
for employees in discriminatees’ position and five-year award was based on assumption that
discriminatees would have remained in the position “two or three times as long as any of their
predecessors”); Boehm v. American Broadcasting Co., Inc., 929 F.2d 482, 488 (9th Cir. 1991)
(Six-year front pay award was longer than normal federal discrimination awards, but not so
unusual as to warrant reversal).
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The front pay award may be limited where it would be “unduly speculative.” Barbour, 48
F.3d at 1280. Yet, the district court “should not refuse to award front pay merely because some
speculation about future earnings is necessary, or because parties have introduced conflicting
evidence.” Ibid. In Barbour, above, the Court of Appeals for the District of Columbia remanded
the case to the district court to determine the amount of front pay that would make the plaintiff
whole. On remand, the district court awarded the plaintiff 1 year of front pay, which the Court of
Appeals affirmed. Barbour v. Merrill, 132 F.3d 1480 (D.C. Cir. 1997). See also McKnight v. GM,
973 F.2d 1366, 1372 (7th Cir. 1992) (“The longer a proposed front pay period, the more
speculative the damages become”); Peyton v. DiMario, 287 F.3d 1121, 1129–1130 (D.C. Cir.
2002) (26-years of front pay in Title VII case was “unduly speculative.” Lifetime front pay is
disfavored for individuals over the age of forty and an “employee's subjective intent to remain at
a job until retirement, by itself,” does not justify an award of front pay for the rest of their career).
In the instant case, the following factors militate against the remedy sought by the
General Counsel:
The inability of the General Counsel to articulate how it will continue to appraise, as well
as its apparent reliance upon, Diaz’s continuing self-reporting regarding the state of his
disability, which I find to be unreliable for various reasons as have been set forth above
and will be discussed in further detail below;
The turnover rate in the industry generally. In this regard I note that Diaz became
employed by Respondent in December 2006. As he told Dr. Shvil, at the time of his
discharge he was one of the more senior employees at the facility.16 It should be noted
as well that Diaz’s other employment was relatively short-term in nature;
The speculative nature of the damages due to the unprecedented length of the proposed
backpay period;
The failure of any of the General Counsel’s witnesses to opine on whether Diaz, with
appropriate treatment, could foresee recovery from his condition and whether, given his
age and overall general health, he would eventually be a candidate for another position
which would serve to mitigate Respondent’s backpay obligation.
Moreover, while it is a fundamental precept of Board law that Diaz is entitled to a lawful
backpay remedy, under the circumstances presented herein, it is the failure of the General
Counsel to consider the requirements of due process and fairness owed to the Respondent in
the determination of whether Diaz remains disabled on an ongoing basis for years to come
which confound this process.
In support of its contention that Respondent’s backpay liability should not be tolled due
to Diaz’ alleged ongoing disability, the General Counsel relies, in significant measure, on two

16 In this regard I note that the Carnegie payroll records submitted to the General Counsel
additionally reflect a high turnover rate.
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Board cases dealing with the issue of continuing backpay: Graves Trucking, 246 NLRB 344
(1979), and Greyhound Taxi Co., Inc., 274 NLRB 459 (1985). A review of the longitudinal history
of these matters is instructive. In Graves Trucking, the respondent’s agent violently choked its
union shop steward and employee. Although never formally discharged, the employee in
question suffered from a neck injury which, it was contended, prevented him from returning to
work. In this case, which was an unfair labor practice proceeding, The Board found that the
administrative law judge failed to consider whether an ongoing backpay remedy was
appropriate and ordered that the employee should be awarded backpay from the period of
disabling injury in order to make him whole from losses resulting from the respondent’s unfair
labor practices which rendered him medically unfit to perform his former or a substantially
equivalent job for any employer. In so finding, the Board concluded that the relationship
between the respondent’s unlawful conduct and the employee’s injury was “clear and direct.”
344 NLRB at 345. The Board left to the compliance state of the proceeding a determination of
when the backpay should be tolled; thus it never addressed this precise issue. On review, the
Seventh Circuit concluded that an open-ended award of backpay to the steward assaulted by
the supervisor was an abuse of discretion and the award would be limited to a two-year period.
Graves Trucking, Inc., v. NLRB, 692 F.2d 470 (7th Cir. 1982). As the court stated:
No case has been brought to our attention where the Board ordered backpay, as here,
for as long in the future as disability would continue. An open ended award of that type
goes about as far as possible in supplanting the loss of earnings portion of a tort
recovery. More significantly, we think, it contemplates determination from time to time in
compliance hearings of questions of the continued existence of disability and its cause
and extent. Such questions may well be difficult and are outside the scope of those
usually dealt with by the Board. The open-ended character of the remedy exacerbates
all the problems of the limited expertise to which the Board has referred in the union
violence situations.17
The court continued:
We have considered the cases cited here where the Board has decided to attribute
various types of disability to the unfair labor practice at issue, and to require backpay for
that period. The longest cited was eleven months. We are mindful of the limitations on
our function as a reviewing court, but have selected two years as the outer limits of a
backpay award in this case. A two-year period would provide a substantial remedy even
is Nash’s disability lasted longer, but it would minimize the need of the board
continuously to make the type of determinations which are intrinsic in the implementation
of this remedy.
692 F.2d at 476–477.

17 In this regard, the court was referring to the Board’s refusal to award employees backpay
during disability suffered as a result of assaults by union agents, an argument raised by the
respondent as to why it should not be required to assume an ongoing backpay obligation.
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Counsel for the General Counsel further relies upon Greyhound Taxi Co., Inc., supra, a
supplemental proceeding to determine the amount of backpay owed to an employee named
Wakefield. In the underlying proceeding the Board found that the respondent’s agents had
physically assaulted Wakefield for his union activities, resulting in his constructive discharge. In
addition, after the assault, Wakefield, who had sustained minor injuries in the assault, later
developed what was characterized as a severe posttraumatic anxiety neurosis that required
medical treatment and prevented him from working for more than 5years.18 The administrative
law judge found that Wakefield’s disability resulted solely from the circumstances surrounding
his attack and unlawful termination. The administrative law judge relied upon the opinions of
three psychiatrists, two of whom were retained by insurance companies and whose interests
were adverse to Wakefield, but testified in support of his disability, along with other evidence,
and concluded that the level of traumatic anxiety which he suffered as a consequence of events
surrounding his unlawful discharge rendered him disabled for employment and in need of
psychotherapy and vocational rehabilitation. The judge further found that there was “absolutely
no evidence” in the record to support a finding that Wakefield was malingering. 274 NLRB at
469. The administrative law judge recommended that Wakefield’s backpay period be continued
until the time he completed the vocational rehabilitation required as a consequence of the
unlawful action respondent took against him, approximately 5 years.
The Board, in a split decision, held that Wakefield’s psychological disability was a result of
a preexisting mental condition and not caused by the respondent’s unfair labor practices. In
support of its conclusion the Board relied upon Wakefield’s erratic employment history, previous
psychiatric treatment and the perceived weaknesses in the testimony of a primary witness
called by the General Counsel. In rejecting the administrative judge’s recommendation, the
Board stated:
Under American Mfg. , supra, [167 NLRB 520, 522 (1967)] a respondent in a backpay
proceeding meets its burden for the tolling of backpay by showing that the discriminatee
was unavailable for employment. This the Respondent has shown here. At that point the
burden shifted to the General Counsel to rebut his defense by showing that the
unavailability was due to the Respondent’s unlawful conduct. Even when such a
showing is made in rebuttal, we do not know that the Board should be in the business of
making open-ended awards for disability in the manner of a court in a civil tort action
See Graves Trucking, Inc. v. NLRB, 692 F.2d 470, 476-477 (7th Cir. 1982).
On review, the 9th Circuit denied enforcement of the Board’s order and remanded the
matter to the Board to reassess the amount of backpay due to Wakefield. Wakefield v. NLRB,
779 F.2d 1437 ( 9th Cir. 1986). Accepting the remand as the law of the case, the Board adopted
the administrative law judge’s computation of Wakefield’s backpay, and sustained the award for

18 The evidence in the underlying case the findings showed that Wakefield was threatened
with murder and attacked by the same supervisor within a 2-month time span. 274 NLRB at
470.
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the 5-year period initially recommended by the administrative law judge. Greyhound Taxi Co.,
279 NLRB 1080 (1986).19
Absent some definitive Board guidance on this matter, I find the opinion of the Seventh
Circuit in Graves Trucking, as endorsed by the Board in Greyhound Taxi, to be persuasive in
this instance. Apart from the due process considerations discussed above, I find that the
evidence adduced in the instant case militates against awarding the open-ended backpay award
sought by the General Counsel. In this regard, I note that there are issues implicating Diaz’s
credibility which are demonstrated by the statements contained in his application for Social
Security Disability benefits, attesting to a level of disability which he failed to report his
psychiatrist or to other medical personnel; his confusing and contradictory testimony regarding
his search for work and when that may have ceased; the objective evidence concerning his
independent travel; his activities in support of the Union after his discharge; his attendance at a
local gym; his responses to the SCID as given to Dr. Shvil which were inconsistent with other
subjective complaints; his evasive testimony regarding what he may have told Dr. Morales and
Dr. Shvil about his activities subsequent to his discharge as well as the evidence regarding such
activities, as has been set forth above, and his refusal to fully cooperate with Dr. Nassar’s
examination. I additionally find it improbable that, if Diaz was as consumed with fears of
Perlson’s retaliation as he claims, he would have posed for a photograph for publication in a
widely-distributed local newspaper.
After considering the matter, I find that Dr. Nassar’s opinion is more reliable inasmuch as it
encompasses a more complete examination of Diaz’ premorbid state and his activities since the
alleged trauma. Thus, I agree generally with Dr. Nassar’s assessment that Diaz is exaggerating
his symptoms and further conclude that there is insufficient reliable evidence of a direct
causation between Respondent’s unfair labor practices and whatever disabilities may be
precluding Diaz from returning to gainful employment.
I further note that the Board has never endorsed a backpay award to the extent and nature
of that sought by the General Counsel and the relevant authority regarding front pay awarded
under other statutory schemes (as discussed above) does not either.
The Calculation of Diaz’ Backpay
It is well established that the finding of an unfair labor practice is presumptive proof that
some backpay is owed. The Lorge School, 355 NLRB 558, 360 (2010); Laborers Local 158
(Worthy Bros.), 301 NLRB 35, 36 (1991), enfd. 952 F.2d 1393 (3d Cir. 1991). The General
Counsel’s burden in a backpay proceeding is limited to showing the gross backpay due to each
discriminatee. The General Counsel has discretion in selecting a formula that will closely
approximate backpay, and may use any formula that approximates what the discriminatee

19 The other cases cited by the General Counsel on brief involve discrete situations involving
limited backpay periods or additional compensation for employees who suffered injuries on the
job which precluded their immediate return to their former, or substantially equivalent,
employment.
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would have earned had he or she not been discriminated against, as long as the formula is not
unreasonable or arbitrary under the circumstances. The Lorge School, 355 NLRB at 360;
Performance Friction Corp., 335 NLRB 1117, 1117 (2001) (noting that where the Board is
presented with conflicting backpay formulas, the Board must determine the most accurate
method for determining backpay).
Once the General Counsel meets its burden of showing the gross backpay owed, the
burden shifts to the respondent to establish facts that negate or mitigate its liability. St. George
Warehouse, 351 NLRB 961, 963 (2007); Parts Depot, Inc., 348 NLRB 152, 153 (2006), enfd.
260 Fed. Appx. 607 (4th Cir.2008). Any uncertainty about how much backpay should be
awarded to a discriminatee should be resolved in the discriminatee’s favor, and against the
respondent whose violation caused the uncertainty. The Lorge School, 355 NLRB at
360.
In a traditional case, the full make-whole remedy in a 8(a)(3) termination case consists of
reinstatement with backpay from the time of the unlawful discharge or refusal to hire until the
employer extends an offer of reinstatement. In this case, as noted above, the General Counsel
is seeking a different remedy which assumes that, due to the Respondent’s unfair labor
practices, Diaz will be unable to work for an indefinite period of time continuing into the future.
The General Counsel’s calculations in this regard are set forth in the Second Amended
Compliance Specification (GC Exh. 42(a) and (b)).
As for the method upon which backpay was calculated, based upon the information
available to her the Region 2 Compliance Officer concluded that “Formula One” from the NLRB
Casehandling Manual, Compliance Proceedings, Section 10540.2, would provide a reasonable
approximation of the backpay owed. Using this method, gross backpay is a projection through
the backpay period of the discriminatee’s average hours and/or earnings from an appropriate
period prior to the unlawful action. Thus, the compliance officer fixed the start date for the
backpay period based upon her review of the Board decision in the underlying case,
determining that it commenced on November 7, 2009, the date of Diaz’ unlawful discharge. She
established the average hours of work and the regular and overtime pay rates from a review of
paystubs and time cards from the period from January 2010 through November 2010. She
additionally obtained copies of the applicable collective-bargaining agreements and payroll
records for comparable employees and determined when there would have been an increase in
Diaz’ regular and overtime wages.20 She calculated whether Diaz was entitled to certain
reimbursements for medical expenses. The compliance officer then deducted from gross
backpay as interim earnings, certain payments Diaz received from the Union in 2009 and 2010
and monies he received from the State of New York Workers’ Compensation Board beginning in
February 4, 2010.21

20 These included contractually scheduled wage increases for December 2009, July 2010,
March 2012, June 2012, March 2013, July 2013, and March 2014.
21 Although Respondent’s answer disputes certain of these calculations, it failed to comply
with the Board’s Rules requiring that it “furnish appropriate supporting figures” to dispute wither
the accuracy of the figures or the calculations upon which they are based. See Rules and
Regulations Section 102.56(b) and (c). See also Pessoa Construction Co., 361 NLRB No. 138
(2014).
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Pursuant to the collective-bargaining agreement in effect from March 1, 2010, through
February 28, 2010, employees deemed to be comparable to Diaz began receiving, in March
2010, $25 dollars per month toward the purchase of health insurance. This was in addition to
the reimbursement for medical expenses as set forth in the applicable collective-bargaining
agreement. Based upon this information, which the compliance officer received from Local 1964
counsel, it was assumed that Diaz would have received this additional $25 per month beginning
in March 2010.
In addition, as noted above, under the collective-bargaining agreement, Diaz would have
been entitled to reimbursement for medical expenses, up to the annual maximum set forth
therein. Under the collective-bargaining agreement in effect from March 1, 2010, through
February 28, 2013, employees were entitled to up to $500 in medical reimbursements during
the 1st year of that agreement, up to $750 in medical reimbursements during the 2nd year of the
agreement and up to $ 1000 in the 3rd year of the agreement. The 1 year agreement in effect
from March 2013 to February 28, 2014, increases the reimbursement amount to $1500.
Based upon these contractual provisions and information provided by Diaz, some of
which was reiterated in his testimony at the hearing, and medical receipts provided by Diaz with
respect to certain of his expenditures, the compliance officer determined that he would be
entitled to receive certain sums which are set forth in the appendix to the compliance
specification by calendar quarter. There is no basis in the record to question or challenge these
computations.
The tolling of Diaz’ backpay
To be entitled to backpay, the claimant must mitigate damages by using “reasonable
diligence in seeking alternative employment.” NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175
(2d Cir. 1965), cert. denied 384 U.S. 972 (1966). The alternative employment must be
“substantially equivalent to the position from which [the discriminatee] was discharged and
suitable to a person of [their] background and experience” Southern Silk Mills, 116 NLRB 769,
773 (1956). In determining the reasonableness of any individual’s efforts, factors such as age,
skills, qualifications, and labor conditions in the area are appropriate for consideration. Alaska
Pulp Corp., 326 NLRB 522 (1998). The law does not require that the search be successful, only
that the discriminatee put forth an honest, good-faith effort to find work. St. George Warehouse
353 NLRB 497, 501 (2008). The Board has allowed a discriminatee a 2-week period to begin his
search for work following a discharge and, if a search for work begins within that time frame,
backpay will run from the date of the discharge. Grosvenor Resorts, 350 NLRB 1197, 1199
(2007).
The Board has held that the receipt of unemployment compensation under the
applicable eligibility rules for such benefits constitutes prima facie evidence of a reasonable
search for employment. Taylor Machine Products, Inc., 338 NLRB 831, 832 (2003), enfd. 98
Fed. Appx. 424 (6th Cir. 2004). Diaz testified that he applied for such benefits in the second
week after his termination and that he reported his search for work to qualify for benefits. In
addition the State of New York Unemployment Insurance Appeal Board found, in a decision
dated May 21, 2012, that Diaz searched for work during the period dating from his discharge to
February 4, 2010. Moreover, I credit Diaz’ testimony regarding his search for work during this
period of time which included visits to stores, supermarkets, laundries and restaurants several
times per week. In this regard I note that Respondent was unable to adduce evidence to show
that Diaz was either unavailable to work or willfully did not search for work during the weeks at
issue between November 7, 2009, and February 4, 2010. To the extent Diaz had interim
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earnings during this period; the compliance officer testified that adjustments were made
accordingly. No interim earnings were reported after the first quarter of 2010. Currently Diaz’
only sources of income are his Worker’s Compensation and Social Security Disability benefits.
As noted above, Diaz has been receiving Workers’ Compensation benefits beginning as
of February 4, 2010, and such payments will continue until December 25, 2021. In the answer to
the compliance specification, Respondent contends that it is entitled to an offset on any backpay
liability for these payments.
Workers’ Compensation benefits, to the extent they are temporary disability benefits, are
considered a substitute for lost wages during the temporary disability period, and are deductible
as interim earnings. A New York State Workers’ Compensation Board Notice of decision dated
May 2, 2014, shows it had, up until that date, designated Diaz’ injury as a temporary partial
disability. The compliance officer testified that she deducted the worker’s compensation benefit
payments received by Diaz from his gross backpay beginning in the week ending February 6,
2010. Respondent has presented no evidence, nor has it made any argument that it is entitled
to any additional offset for such payments.22
As noted above, Diaz has been receiving Social Security Disability benefits. An award
dated on or about August 1, 2011, found that Diaz was disabled as of February 4, 2010. Since
August 2011, Diaz has been receiving $878 a month. Respondent in its answer to the
compliance specification has asserted that it is entitled to an offset to any backpay liability for
these payments. General Counsel has contended that the Board has construed such disability
benefits as reparations for the injury suffered and has determined that they do not constitute
interim earnings. In support of this contention, the General Counsel has relied upon Domsey
Trading Corp., 351 NLRB 824, 832–833 (2007). A review of that case, however, shows that the
issue considered there was whether the administrative law judge erred in deducting Workers’
Compensation benefits from gross backpay. The Board found that he did not. Summarizing
here, the Board found that the benefits received by the employee in question during the
backpay period were temporary disability benefits and deductible as interim earnings. In my
view, this finding does not squarely address the issue before me as regards Diaz’ receipt of
Social Security Disability benefits and whether they should be used to offset a respondent’s
backpay obligation in appropriate cases.
In NLRB v. Gullet Gin Co., 340 U.S. 361, 337 (1951), the Court applied the so-called
“collateral source” rule to uphold the Board’s refusal to deduct unemployment benefits from an
employee’s NLRB backpay award for an unlawful discharge. The Court held that the
unemployment benefits at issue were collateral because they were not direct benefits from the
employer and that they were made “to carry out a policy of social benefit betterment for the
benefit of the entire state.” Id. Since then, the “collateral source” rule has been applied to
backpay awards arising under different statutory schemes when considering the question of
whether Social Security benefits should be offset against such awards. See e.g. Dominguez v.
Tom James Co., 113 F.3d 1188 (11th Cir. 1997) (claim arising under the Age Discrimination in
Employment Act of 1967, rejecting the claim that the plaintiff’s backpay award should be
reduced by the amount of Social Security benefits received after his termination). In other

22 Diaz was initially awarded $125 per week and these payments were subsequently
increased to $230 per seek pursuant to a Second Notice of Decision dated June 15, 2012. This
Notice provides that the insurance carrier is to “continue” payments in this amount.
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circuits, it has been held that the decision as to whether to deduct collateral source benefits
from backpay is within the discretion of the district court with regards to ADEA cases.
Applying this general theory, the administrative law judge in Greyhound Taxi, supra at
417, found that Social Security Disability benefits should not be deducted from gross
backpay.23
However, there is extant Board law which suggests that receipt of Social Security
Disability benefits will toll backpay, thereby obviating this particular issue. In Superior Export
Co., 299 NLRB 61, 61 fn. 2 (1990), the Board found that the discriminatee was not entitled to
backpay after a certain date when he began receiving Social Security Disability benefits. In
particular, the Board concluded that while the receipt of disability benefits, standing alone, was
not prima facie proof that that the discriminatee was no longer in the labor market, the Board
noted that the discriminatee’s disabilities did not prevent him from working for other employers
or preclude him from looking for another job (although the receipt of wages in excess of a
certain amount would have entailed a loss of eligibility for further benefits.). The Board
concluded that, absent affirmative evidence that the discriminatee continued his interim job
search, it relied upon his admission that he was no longer in the job market after the date he
began receiving such benefits. In Performance Friction Corp., 335 NLRB 1117 (2001), the
Board relied upon the findings of the Social Security Administration (which were arrived at,
unlike in the instant case, before an administrative law judge of that agency), that the
discriminatee at issue was unable to perform his previous employment or substantially
equivalent employment following a heart attack, despite his assertion that he was able to work
and that he regularly sought interim employment. In that case, the Board concluded that it was
not the discriminatee’s receipt of benefits, standing alone, which supported its decision to toll
backpay, but rather the findings of the SSA judge that he could not perform past or similar work,
a finding which was uncontradicted by the record, which formed the basis for its conclusion. In
Aero Ambulance Service, Inc., 349 NLRB 1314, 1315 (2007), a Board panel majority, contrary
to the administrative law judge, found that the discriminatee’s backpay period should be tolled
as of the time he began receiving Social Security Disability benefits. In that case, contrary to
Greyhound Taxi, the judge had concluded that the discriminatee’s disability benefits would
count as an offset to the Respondent’s backpay liability. Inasmuch as the Board tolled backpay
as of the date the discriminatee applied for these benefits, it never reached this issue.
Moreover, then-Member Liebman’s dissent did not address this specific issue either.
Inasmuch as I have determined that Diaz’ backpay should be tolled as of the date he
began receiving and accepting Social Security Disability benefits, as discussed below, this is not
a matter which I need decide at the present time, but have included the foregoing discussion to
the extent that the parties or the Board may disagree with my determination in this regard.
The tolling of Diaz’ backpay
As noted above, for due process and evidentiary reasons I disagree with the General
Counsel’s contention that Diaz’ backpay should continue until some indeterminate date in the
future when he is deemed able to return to work or, in the alternative, reaches his statutory full

23 Although the Board initially disagreed with the judge’s findings regarding backpay liability,
as discussed above, on remand the Board adopted the order of the administrative law judge.
However, it did not specifically address this issue.
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retirement age. The record as developed here presents several admittedly contradictory options
as to when his eligibility for backpay should be tolled, as follows:
February 4, 2010: The date when Diaz first saw Dr. Morales and the date which he asserted
was the onset of his disability causing him to be unable to work;
August 10, 2010: The date upon which the Region, on the basis of its investigation, initially
concluded that “[o]n August 10, 2010, Mr. Diaz took no further steps to recover from is ULP
related disability so that he could re-enter the labor market.”24
November 2010: the date, as Diaz testified (on February 24, 2015), he stopped looking for work
based upon the advice of his attorney;
June 21, 2011: the date upon which Diaz submitted his application for Social Security Disability
benefits in which he attested that he was unable to work because, among other things (as has
been set forth above), he was compelled to remain locked in his room due to fears, had lost
vision in one eye and needed significant assistance with the most basic activities of daily living;
July 2011: the date, as Diaz testified (on March 30, 2015), that he stopped looking for work;
August 2011: the date upon which Diaz began receiving, and accepting, Social Security
Disability Benefits.
March 26, 2013: The date of Respondent’s offer of reinstatement to Diaz and providing him with
a one week period within which to return to work;25
January 7, 2015: the date on which Dr. Nassar examined Diaz and provided medical evidence
sufficient (in my view) to rebut the other evidence in the record pertaining to Diaz’ psychiatric
condition and the purported level of his disability. 26
I have concluded, based upon the foregoing considerations, that the appropriate
measure for the tolling of backpay is the date upon which Diaz began receiving, and accepting,
Social Security Disability benefits based upon his attestation, under the penalty of perjury, to the
fact that he is no longer able to work due to a variety of disabling conditions. At that time, he
conclusively removed himself from the labor market, and the evidence establishes that he has
remained so until the present date. See Superior Export Co., supra; Performance Friction Corp.

24 These comments are set forth in a letter from the Region to counsel for the Union and
Respondent dated July 31, 2013. Obviously, the General Counsel has changed its position
since that date.
25 Diaz responded on March 27, 2013, that he wished to return to work, but was currently
disabled as result of injuries acquired at Respondent and wished to return to work on disability
leave. On April 11, 2013, Respondent wrote that inasmuch as Diaz had not returned to work
within the one week period set forth in its March 26 letter, he no longer had a right to
reinstatement but that other aspects of the Board’s Order had been complied with. The validity
of this offer of reinstatement or the sufficiency of Diaz’s response was not litigated herein.
26 Selecting this latter date would require an evaluation of whether Diaz’ Social Security
Disability benefits would offset Respondent’s backpay obligation.
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supra at 1119–1120.27 Accordingly, the backpay period shall run from the date of Diaz’s
discharge until the week ending July 30, 2011, after which time he commenced receiving Social
Security Disability benefits. In calculating the amount of Diaz’ backpay for this period of time, I
concur with the assumptions and computations set forth in the General Counsel’s amended
compliance specification and the appendix thereto.
On these findings facts and conclusions of law, and on the entire record, I issue the
following recommended28
ORDER
Carnegie Linen Services, Inc., its representatives, successors or assigns shall:
Make Payment to Jose Luis Diaz the sum of $37,466 plus interest, less tax withholdings
required by Federal and State Laws. The Respondent will also reimburse Diaz for any adverse
tax consequences or liabilities which may arise from this lump sum payment.
Dated, Washington, D.C. December 29, 2015
Mindy E. Landow
Administrative Law Judge

27 Admittedly, there is ambiguity in the record as to when Diaz actually removed himself
from the labor market. In this regard, I note that Board law is clear that such ambiguities with
regard to such affirmative defenses are to be construed against the respondent, as the
wrongdoer. Pessoa Construction Co., 361 NLRB slip op. at 11; Performance Friction Corp.,
supra at 1131.
28 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.