Imco/International Measurement & Control Co., Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1985

277 N.L.R.B. 962 (N.L.R.B. 1985)

962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IMCO/International Measurement & Control Com-
pany, Inc. and Chicago and Central States Joint
Board, Amalgamated Clothing and Textile
Workers Union. Case 13-CA-19837
5 December 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 28 June 1984 Administrative Law Judge Karl
H. Buschmann issued the attached supplemental de-
cision based on a backpay specification dated 31
August 1984.1 The Respondent filed exceptions
and a supporting brief, and the General Counsel
filed cross-exceptions and a brief in support and in
reply to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings,2 and
conclusions3 and to adopt the recommended
Order.
1. The judge found that Rita Lannon was not en-
titled to a pay raise pursuant to reinstatement to
her former job on 2 November 1981 and therefore
should be awarded no backpay following her rein-
'
The Board's original Decision and Order is reported at 261 NLRB
1323 (1982) The decision was enforced by unpublished order by the U.S.
Court of Appeals for the Seventh Circuit on 12 March 1984, Docket No
82-2418
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law Judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
The judge, in discussing discrimmatee Lindy Shroba's employment
with the Budgeteer Motor Inn, stated Shroba testified she was informed
by a management official that her termination resulted from a "lack of
work " However, a review of Shroba's testimony reveals that it was with
respect to her employment with the New Lenox State Bank that Shroba,
at the time of her discharge, was told by management official Patricia
Holm that she was no longer needed due to a "lack of work." Our
review of the record further reveals that Holm, a Respondent witness,
did not rebut Shroba's testimony Consequently, in agreeing with the
judge that Shroba is entitled to full backpay following her termination
from the bank, we find, contrary to the Respondent's contentions, that
the record fails to establish that Shroba was discahrged for cause from
that job With regard to Shroba's termination by the Budgeteer Motor
Inn, we agree with the judge that Shroba should not be charged with
interim earnings following her discharge from that job, but in doing so
we rely solely on the judge's discussion of what he viewed as an alterna-
tive and frivolous reason for her discharge, i e , her voluntary surrender
of room keys inadvertently retained during an earlier period of employ-
ment with that employer
' As modified below, Chairman Dotson agrees with the conclusions
reached by the judge regarding the obligation of the discriminatees to
mitigate the Respondent's backpay liability However, in reaching these
conclusions the Chairman relies on the analysis set forth in Brady v Thur-
ston Motor Lines, 753 F 2d 1269 (4th Cir 1985).
statement. We find merit in the General Counsel's
exception to this finding.
At the time of her unlawful layoff, discriminatee
Lannon earned $3.50 per hour. The judge found
that had Lannon's employment with the Respond-
ent continued she would have received three pay
raises amounting to $1.25 per hour during the
period between her layoff and reinstatement. Thus,
the judge's backpay award for the period preced-
ing Lannon's reinstatement, with which we agree,
includes such interim pay raises. On 2 November
1981 Lannon was reinstated at her former rate of
pay, a rate which did not include any of the pay
raises granted to comparable employes. The judge
found that by accepting the terms of the Respond-
ent's reinstatement offer, Lannon waived her right
to the pay raises following her reemployment. The
judge also found no evidence that Lannon's rein-
statement was invalid or that the Respondent un-
justly withheld any pay raises. Accordingly, the
judge subtracted the pay raises included in the
General Counsel's backpay computation for the
period following Lannon's reinstatement until her
voluntary resignation on 19 February 1982. We
agree with the General Counsel that Lannon is en-
titled to the pay raises following her reinstatement.
In Carter Lumber,4 the Board found that an em-
ployer's refusal to pay a reinstated discriminatee a
rate of pay which included general interim pay
raises constituted a failure to make a valid offer of
reinstatemnt. We adhere to that view and find that
as the Respondent's offer of reinstatement set Lan-
non's wage rate at an amount less than that to
which she was entitled, her acceptance of this offer
did not toll the Respondent's backpay liability. Ac-
cordingly, as in Carter Lumber, we shall modify
the recommended Order by requiring the Respond-
ent to pay Lannon, in addition to the amount set
forth therein, the difference between her actual
rate of pay following her return to work and the
rate at which she should have been compensated.
According to the General Counsel's undisputed
computations, the amount of additional backpay
owed due to this modification is $725.63.5
2. With regard to Lindy Shroba (Daugherty), the
judge concluded that Shroba should be charged
with 4 weeks of interim earnings following her loss
of employment with R.O.W. Windows. We agree
with the General Counsel that Shroba is entitled to
full backpay for that period.
Shroba worked for R.O.W. Windows for only 3
days. She lost the job when the friend with whom
4 227 NLRB 730 (1977), enfd 573 F 2d 387 (6th Cir 1978)
5 The amount to be paid Lannon is $11,912.85, the total of $11,187 22
ordered by the judge plus $725.63 as modified
277 NLRB No. 96
IMCO/INTERNATIONAL MEASUREMENT CO.
she was commuting quit her employment with the
same company, leaving Shroba without transporta-
tion." About 4 weeks later, when her transporta-
tion problems were resolved, Shroba returned to
R.O.W. Windows in an attempt to regain her pre-
vious job, but the company refused to reinstate her.
The judge found that Shroba had temporarily
abandoned her obligation to obtain interim employ-
ment and charged her with interim earnings for the
4-week period that she was without transportation.
In Fort Lock Corp.,7 the Board found that an in-
dividual who loses interim employment due to a
lack of transportation beyond the person's control
has not engaged in a willful loss of earnings justify-
ing the loss of backpay.73 Accordingly, we find that
Shroba, who had no control over her lack of trans-
portation, is entitled to full backpay for the 4-week
period following her loss of employment with
R.O.W. Windows.9 We shall therefore modify the
recommended Order by requiring the Respondent
to pay Shroba an additional $640, the amount erro-
neously subtracted by the judge.'_0
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, IMCO/International Measurement &
Control Company, Inc.,, Chicago, Illinois, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order, except that the back-
pay grand total to be paid to Rita Mae Lannon
shall be $11,912.85 and the backpay grand total to
be paid to Lindy Shroba shall be $29.399.83.
6 At the time, Shroba's vehicle either was in a repair shop or had been
repossessed
9 233 NLRB 78 (1977).
8 Accord: Selgmar & Associates, 273 NLRB 1216 at 1223, 1224 (1984)
s Although not critical to our findings, we note that Shroba made a
diligent effort to obtain interim employment, acquired six jobs in a 2-year
period, and attempted to mitigate the Respondent's backpay liability
whenever possible. For instance, Shroba worked at several undersirable
jobs and accepted interim work which resulted in her being dependent on
othei s for transportation
10 The amount due Shroba is $29 399 83, the total of $28,759 83 or-
dered by the judge plus $640 as modified.
Melvyn Basan, Esq., for the General Counsel.
Dennis R . Schlemmer, Esq. (Leydig, Yost, Osann, Mayer &
Holt, Ltd.), of Chicago , Illinois, for the Respondent.
Mordecai (Mort) Weiner, Esq., of Chicago , Illinois, for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN , Administrative Law Judge.
This backpay proceeding was litigated before me in Chi-
cago, Illinois , on 16 and 17 January 1985 on the General
963
Counsel's backpay specification and notices of hearing,
dated 31 August 1984. The answer to backpay specifica-
tion, dated 28 September 1984, filed by
IMCO/International Measurement & Control Company,
Inc. raised issues concerning the interim earnings of sev-
eral discriminatees, their backpay period, as well as pay
raises to which they would have been entitled. On the
entire record, the demeanor of the witnesses as they tes-
tified before me, and the posttrial briefs of the parties I
make the following
FINDINGS OF FACT
On 26 August 1981 Administrative Law Judge Robert
T. Wallace issued his decision in the underlying unfair
labor practice case finding that the Respondent
IMCO/International Measurement & Control Company,
Inc. had violated Section 8(a)(1) and (3) of the National
Labor Relations Act. The National Labor Relations
Board affirmed his decision on 28 May 1982. The
Board's Order required the Respondent, inter alia, to
"[m]ake all employees whole, with interest, for the loss
of pay they suffered as a result of the punitive closure of
the plant" and to "[o]ffer Lindy Shroba, Barbara Fretts,
and Rita Lannon immediate and full reinstatement to
their former jobs . . . [and] to make them whole, with
interest, for any loss of earnings."
On the Board's petition for enforcement of its Order,
the United States Court of Appeals for the Seventh Cir-
cuit, following its own review of the case, ordered en-
forcement of the Board's Order on 12 March 1984.
On 31 August 1984, after the Regional Director of the
National Labor Relations Board for Region 13 and the
Respondent were unable to agree on the amount of back-
pay and the requirement of reinstatement , the Regional
Director issued a backpay specification and notice of
4hearing.
The computation of backpay appeared in great detail,
showing the hourly rate of pay of the discriminatees,
their interim earnings , their pay raises , and period of em-
ployment broken down into calendar quarters. Accord-
ing to the summary of these calculations , Respondent
owed the following amounts to these employees:
(1) Mary C. Wilson: $24.75
(2) Jill Potts: $21.37
(3) Leslie Statt (Formentini): $20.25
(4) Sophie R. Randis: $18.00
(5) Helen E. Wenmouth: $20.25
(6) Arlene Dahlman: $50.00
(7) Gertrude Nijakowski: $14.62
(8) Linda L. McCarthy: $ 18.00
(9) Judy Deitelhoff: $13.95
(10) Rita Mae Lannon: $13,664.40
(11) Barbara Fretts (Klopp): $5612.21
(12) Linda Shroba: $9789.42
The amounts of backpay of not more than $50 due
each of the first nine discriminatees were admitted by the
Respondent. However, the backpay computed in the
backpay specification for Linda Shroba (Daugherty),
Barabra Fretts (Klopp), and Rita Lannon were disputed.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the initial stage of the hearing on these issues,
the General Counsel was permitted to amend his back-
pay specifications to reflect revised calculations of the in-
terim earnings of each of the three discriminatees and to
correct and clarify the data upon which their assumed
pay raises were based (G.C. Exh. 2). According to these
amended specification figures, which show in great detail
the discriminatees' gross backpay per calendar quarter, as
well as their interim earnings from the various jobs
during the backpay period, the net amounts for the three
employees appeared as follows:
Rita Mae Lannon: $11,167.85
Linda Shroba: $8780.02
Barbara Fretts: $8636.53
The specifications, as amended, made it clear, howev-
er, that the backpay for Lannon and Shroba was not lim-
ited to these amounts. The balance of backpay for the
backpay period after 2 November 1981 was unknown
"because of Respondent's refusal to provide payroll
records for the period since 2 November 1981." These
documents were the subject of a subpoena request. Re-
spondent agreed in the course of the proceeding to fur-
nish these payroll records to the General Counsel under
certain conditions.
These records were furnished without disclosing the
employees' names and were made a part of the record
(G.C. Exh. 41). It was further agreed during the pro-
ceeding that the General Counsel would be able to sup-
plement the record, either by stipulation or by a post-
hearing motion, with additional backpay calculations
based on those payroll records. The record was accord-
ingly left open for the sole purpose of receiving amended
specifications, including any necessary supporting docu-
ments, based on such records.
On 11 March 1985 the General Counsel filed a motion
in three parts, a motion to correct the transcript, to sup-
plement the record, and to amend backpay specification.
The motion is unopposed. The corrections in the tran-
script which primarily involve typographical errors and
misnumbered exhibits appear justified and necessary. The
supplement to the record which is in the form exhibits
(G.C. Exhs. 43 and 44) are copies of the Respondent's
payroll records for employee Gertrude Nijakowski for
the period from January 1981 through 1985 and discri-
minatee Rita Lannon from her reinstatement in Novem-
ber 1981 through her resignation in February 1982. Lan-
non's records are obviously relevant. Nijakowski's pay-
roll records are relevant because the General Counsel se-
lected her as a representative employee for purposes of
estimating any pay raises or bonuses to which the discri-
minatees would be entitled. The amendment to the back-
pay specification consists of a recalculation of the back-
pay based on the payroll records which the Respondent
produced during the hearing. The summarized figures
for the backpay as revised show the following:
Rita Mae Lannon: $11,912.85
Linday Shroba: $29,399.83
Barbara Fretts (Klopp): $8656.53
I have carefully considered the motion to correct tran-
script and to supplement the record with General Coun-
sel's Exhibits 43 and 44, as well as the motion to amend
the backpay specification; and grant the motion. Re-
spondent's evidence taken during these proceedings and
the Respondent's argument contained in its brief will of
course be considered in the analysis of the backpay spec-
ifications, as amended.
Generally, backpay is computed according to the for-
mula established in F. W. Woolworth Co., 90 NLRB 2'89'
(1950), plus interest as computed in Florida Steel Corp.,
231 NLRB 651 (1977). Moreover, backpay covers not
only backpay but also other employment benefits such as
bonuses or raises. United Shoe Machinery Corp., 96
NLRB 1309 (1951). The backpay period begins with the
date of the employee's discharge and ends with a valid
offer of reinstatement. Interim earnings must be deducted
from the backpay award; and the discharged employee
must undertake a reasonable effort to obtain interim em-
ployment and to mitigate the employer's backpay liabil-
ity. The burden of showing interim earnings or willful
failure to seek other employment is on the Respondent.
NLRB v. S.E. Nichols of Ohio, 704 F.2d 921 (6th Cir.
1983); Dodson's Market Y. NLRB, 553 F.2d 617 (9th Cir.
1977).
In the present case, it is initially apparent that the
General Counsel has assumed most of that burden. He
has come forward with the interim, earnings of the em-
ployees, their interim employment history including oc-
casional discharges from interim jobs.
Although computation of gross backpay is based on
routine procedure, interim earnings were uncovered by
the General Counsel through his own investigation, in-
cluding interviews with the employers and employees, an
examination of payroll records, questionnaires sent to in-
terim employers, as well as W-2 forms and paycheck
records. The Respondent has not specifically attacked
the detailed and lengthy computations as they appear in
the record nor the individual data used by the General
Counsel. The Respondent has offered little or no inde-
pendent proof of the backpay or the interim earnings.
However, the Respondent has broadly raised such issues
as whether the discriminatees would have received any
pay raises, whether they had failed to make a diligent
search for interim employment, or whether the backpay
period was appropriate. Under these circumstances, it is
unnecessary to repeat the lengthy and involved tabula-
tions which appear in the General Counsel's brief.
Interim Employment
Respondent's first argument raised is whether the
claimants had failed to make a diligent search for interim
employment. For example, Respondent states, inter alia,
that "claimants failed to present any contemporaneous
documentary evidence that they sought, other employ-
ment, other than their own self-serving notes." More-
over, Respondent offered a list of classified advertise-
ments for job openings obtained from the "Star Herald,"
a local bi-weekly newspaper (R. Exh. 9). These jobs
openings were for technician trainees, waitresses, kitchen
help, babysitters, salesmen, barmaids, school crossing
IMCO/INTERNATIONAL MEASUREMENT CO
guards, maids, school bus drivers, and assemblers and ap-
parently appeared in the local paper between May and
October 1980. Relying on this information, Respondent
argues that employment opportunities were available and
that the claimants simply failed to make any diligent ef-
forts to find jobs.
The record, however, shows that the three individuals
not only carefully searched for other jobs but actually
found jobs and in fact were able to mitigate Respond-
ent's backpay liability.
Barbara Fretts (Klopp): This discriminatee had worked
for the Respondent for 8 months and earned $3.25 an
hour, when she was unlawfully discharged on April 16,
1980. Klopp testified that she looked for any job she
could find. She stated (Tr. 87): "I looked in the newspa-
per, I went all over looking for whatever I could find, I
called places, I went through people that I knew were
looking for help." Her prior experience included assem-
bly and secretarial work, although she felt unqualified to
be a secretary. She had kept a job search form which
showed the prospective employers, dates of application
and the result of the job application. (G.C. Exhs. 17, 18,
19). A perusal of the forms indicates that Klopp had
made a daily search for work at numerous companies
within a radius of up to 40 miles. The list contains ap-
proximately 200 places where she "actually applied for a
job." She testified that she had not even listed certain
companies when she had solicited them for jobs by tele-
phone.
Fretts obtained jobs during the interim period. The
first job was a part-time position supervising children on
a bus with Vander Aa Bus Lines from 6 November 1980
to 8 October 1981. She continued to search for full-time
work, however, and became employed at South Metro-
politan Association teaching retarded children. Her earn-
ings from these jobs were properly subtracted from the
Respondent's backpay liability which expired on 2 No-
vember 1981. On that date Klopp had received an offer
of reinstatement from the Respondent. She decided not
to accept it and instead continued in her present employ-
ment.
The record does not contain any evidence that Klopp
had somehow failed to make a diligent serach for interim
employment as alleged by the Respondent. To the con-
trary, the record shows that Klopp had made an extraor-
dinary effort to find a job and that her success in this
regard resulted in a substantial mitigation of Respond-
ent's backpay liability.
Rita Lannon: At the time of her discriminatory layoff
on 16 April 1980, Lannon had been employed at IMCO
for about 2-1/2 years. She accepted Respondent's rein-
statement offer in November 1981 and worked there
until her resignation in February 1982. Respondent's
backpay liability includes, according to the General
Counsel, pay raises to which she was entitled but failed
to receive while she was employed at IMCO after her
reinstatement.'
Lannon made a serious effort to look for other em-
ployment. With limited skills and having left high school
1 This issue of pay raises is discussed infra under pay raises.
965
prior to graduation, she applied for anything she could
get. She testified as follows:
I went out and I looked in the newspaper, went out
looking, friends told me about jobs, went to Job
Service in Joliet. I was mainly looking for anything
at the time . . . . Basically anything I could find at
the time because I was out of a job and I needed
the money. . .. I applied for waitress jobs, cleaner
jobs, bus kids job, anything really.
Lannon recorded her job search and application efforts
(G.C. Exhs. 20-23). The list indicates the type of jobs for
which she applied, the places of employment, whether
she contacted the prospective employer by telephone or
in person, and the results. The evidence shows that she
made considerable efforts, sometimes making three con-
tacts in one day. She received unemployment compensa-
tion and still made a job search through the unemploy-
ment office after her unemployment benefits had expired.
Her job search was successful when she became em-
ployed at a restaurant called Klaus' German Inn, first as
a bus person and than as a waitress. Lannon left the job
to accept IMCO's reinstatement offer. The record over-
whelmingly proves that Lannon had made a deligent and
conscientious effort in seeking interim employment and
that she succeeded in mitigating Respondent's 'backpay
liability.
Lindy Shroba Daugherty: When Shroba was laid off on
16 April 1980, she had been in the employ at IMCO only
about 2 or 3 months. She, like the other discriminatees,
looked for work immediately after the unlawful layoff.
She testified that she "tried to look in the papers and
tried to drive around whenever [she] had a car and [she]
called friends and relatives trying to get jobs through
them." She looked for any jobs in factories or motels in-
cluding cleaning jobs or security guard work. She re-
called applying to such firms as Amoco, Caterpillar,
Howard Johnson, Quality Inn, Budgeteer Motel, Red
Roof Inn, Holiday Inn, Joyce Bolting Company, Venture
Stores, Olin Chemical, K-Mart, and grocery stores. She
had kept a record of her job search but, according to her
testimony, had lost some of her records (G.C. Exhs. 25-
28, 29). She collected unemployment compensation and
submitted certain records of her job search also to that
agency.
Her persistency in trying to find employment resulted
in several interim jobs all of which effectively mitigated
Respondent's backpay liability. Some of the jobs were
only temporary or of short duration, forcing her to un-
dertake renewed efforts to be gainfully employed. Not
until May 1982, when she became a schoolbus driver for
a local high school, did she become permanently em-
ployed. Nevertheless, it is the General Counsel's position
that Respondent had failed to make a valid reinstatement
offer as mandated by orders of the Board and the Sev-
enth Circuit. Accordingly, her entire work history since
her layoff is under scrutiny, particularly where, as here,
this employee was discharged from several interim jobs
and is accused by the Respondent of failing to make a
diligent search for work.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the extent of her job search is not as well
documented ' as those of the other two former IMCO em-
ployees, the interim jobs which Shroba was able to find
and keep convincingly demonstrate her extraordinary ef-
forts to find work. According to her testimony, she
sometimes applied for as many as five jobs in one day.
She located her first job at the New Lenox State Bank
already 1 month after her layoff. From May 1980 until
November 1980 she worked as a part-time cleaning lady.
She only worked 2 to 3 hours a day averaging 12 hours
a week . She continued to look for full-time work, but
could not find any jobs at that time. Six months later she
was discharged under questionable circumstances . Patri-
cia Holm , assistant cashier, speaking on behalf of the
bank, had completed an interim earnings report form,
dated 10 December 1981, and explained by letter of 21
September 1984 that Shroba was discharged because of
"inconsistent hours-time cards filled out incorrectly-
overdrafts in her checking accounts-failure to report to
work on three consecutive days" (G.C. Exh . 11, R. Exh.
8). Although the bank had warned her about that activi-
ty on 24 July 1980, she continued to work there for 3 or
4 months before she was discharged on 6 November
1980. Yet the record contains evidence that only 1
month before her discharge she had been a victim of
sexual harassment by the bank 's president and vice presi-
dent. Shroba testified about the incident and explained
that she had reported the matter to Patricia Holm short-
ly after it happened . Indeed, in her testimony, Holm
reaclled that Shroba had brought the incidents to her at-
tention . However, Holm was not certain whether the in-
cidents of harassment had any relationship to the bank's
decision to' terminate Shroba's employment or whether
Shroba 's failure to report for work thereafter was the
result of the unfortunate incidents . The record intimates
that both Shroba 's discharge and her failure to fill out
her timecard correctly were related to these incidents.
Without belaboring the point , the record casts into doubt
the accuracy of the bank 's official reason for Shroba's
termination and removes any inference that she was dis-
charged for cause from this interim employment.
During her employment as a cleaning lady with the
New Lenox State Bank, she was also employed on a
part-time basis as a housekeeper at the Budgeteer Motor
Inn. She had been employed there prior to the job with
IMCO . Her employment lasted from 26 July to 7 Octo-
ber 1980 , when she was discharged . The record shows
that her discharge occurred when she voluntarily re-
turned nine room keys which she had inadvertently kept
after checking and cleaning the motel rooms. The Em-
ployer had accused her of stealing keys and was other-
wise critical of her work performance as a maid. (R.
Exh. 7.) Shroba, however , testified that management of
the motel informed her of the reason for the discharge.
The, reason was lack of work.
The Respondent argues that the combined wages of
both her motel and the bank jobs should have been in-
cluded as interim earnings, not only for the duration of
her employment but for the entire period of time until
she found full-time employment , on the ground that she
was also discharged for cause from the motel . 2 Again,
the record does not support Respondent's argument.
Even if it is assumed that the motel fired Shroba not for
lack of work but for cause , the evidence shows that the,
reason for the discharge was frivolous . Her inadvertent
retention of keys and their voluntary surrender can
hardly be regarded to be of such negligent or intentional
misconduct to justify a discharge , Indeed, had she been
dishonest and simply failed to return the keys, she might
not have been discharged . The motel's other criticism of
her work was not sufficiently articulated and vague and,
in any case , was not the basis of her discharge . In short,
the record shows that the circumstances surrounding her
dismissals did not detract from Shroba's diligent efforts
to mitigate Respondent 's backpay liability. If they did,
employees would become reluctant to apply for interim
employment at certain establishments which are per-
ceived as providing insecure job tenure and opt for no
interim employment rather than risk a discharge.
Shroba's next interim employment was a full-time job
with R .O.W. Windows . Her work consisted of making
windows and sawing wood. There she worked only 3
days because she lacked her own transportation. Her car
had either been repossessed or been in the repair shop.
And a friend with whom she had driven to work had left
her employment with that same company. This presents
a difficult question. It might be argued that she would
have been in the same position with IMCO and would
have been without transportation to commute to her
former job there; on the other hand , had she continued
her IMCO employment , she might have been able to
have her car repaired or at least prevented its reposses-
sion. In any case , Shroba went back to R.O .W. Windows
3 or 4 weeks later when her transportation problem had
been resolved , but the company refused to reinstate her.
On balance , I find that Shroba had temporarily aban-
doned her obligation to obtain interim employment. Be-
cause the circumstances were beyond her control, how-
ever, the interim earnings should be limited to the time
her transportation problem persisted . This time would
not exceed 4 weeks. Under the established formula, and
as suggested by the General Counsel, this amounts to ($4
per hour x 40 hours x 4 weeks ) $64 to be subtracted
from her gross backpay.
Shroba worked briefly for Newspaper Readers
Agency, Inc. in the fall of 1980. She earned only $50 for
3 weeks of work at the rate of 10 hours a day wrapping
and delivering newspapers to the delivery boys. She
gave up this job because the pay was unreasonably low
when compared with the long hours of work.
She also worked at Lasits and Rohline Service from
24 March 1981 to 8 July 1981 and earned $660 there
cleaning barrels. That job terminated as soon as the spe-
cific task for which Shroba had been hired was finished.
In May 1982, Shroba found her present job as a
schoolbus driver for the Joliet Townshii High School.
She has been working between 20 hours and 40 hours a
2 The record contains an unemployment insurance referee's decision
supporting Respondent 's argument that she was fired for cause The
Board is not bound by that decision and an analysis of the issue on this
record does not support the referee 's conclusion
IMCO/INTERNATIONAL MEASUREMENT CO
week and her earnings are appropriately reflected as in-
terim earnings for 1982 to date.
Shroba's long and difficult job search does not reflect
a willful failure to look for work or keep a substantially
similar job. To the contrary, the record shows convinc-
ingly that Shroba has made a diligent and extraordinary
effort to obtain employment, and to mitigate Respond-
ent's backpay liability and that she succeeded in obtain-
ing interim employment . As aptly stated by the General
Counsel, an employee who fails to meet the test of
making a diligent search "does not obtain six jobs in a 2-
year period, including cleaning a bank at night and on
weekends ; cleaning motel rooms ; sawing wood for
window sashes ; delivering newspapers in the middle of
the night; cleaning barrels, and driving a school bus."
Shroba's Reinstatement Offer
The General Counsel has taken the position that the
Respondent has failed to make a valid reinstatement offer
to Lindy Shroba and that Respondent 's backpay liability,
therefore , extends to the present time. Respondent, on
the other hand , argues that Shroba has received a valid
offer of reinstatement but that she refused to accept it.
The record shows that the following letter, dated 24
September 1981 and signed by Respondent 's attorney,
Dennis Schlemmer , was mailed to Shroba (G.C. Exh.
20):
This is to advise you that we are hereby offering
you reinstatement -of your former job at IMCO, ef-
fective immediately . Please let us know promptly as
to whether you intend to return to work.
Shroba testified that she called IMCO on the day she
received the letter . The secretary who answered her call
referred the call to Frank Dybel, the Company 's presi-
dent. When Shroba finally reached him at 9 p.m ., Dybel
answered stating that she would not get her job back.
Dybel who admitted having , a poor memory did not
deny the conversation . After consultation with the
Union, Shroba sent the following letter, dated 28 Sep-
tember 1981 (G.C. Exh. 31):
Dear Mr. Dyble or Mr. Schlemmer:
I accept your offer of reinstatement of former
job. Please contact me as to when you want me to
return to work, had I not been fired.
I expect that I will be paid whatever my former
hourly rate was plus whatever increases I would
have received , had I not been fired.
Sincerely yours,
Lindy Shroba
Respondent received the letter on 29 September 1981.
But Shroba was not contacted again for almost a month.
In the meantime, Shroba had made plans to accompany a
friend , Michael Daugherty [now her husband] , on a trip
to Arizona . She notified Mort Weiner, the Union's busi-
ness agent , of her plans and attempted to call IMCO. As
before, the Company refused to accept her calls. The
record shows that Shroba and Daugherty left on or
about 30 October . The record , however, is not clear ex-
967
actly when she left and when she received Respondent's
letter , dated 27 October 1981. That letter, written by Re-
spondent 's attorney Schlemmer , stated as follows (G.C.
Exh. 32):
Dear Ms. Shroba:
I am pleased to advise that you may return to
your employment at International Measurement's
Control Company this Monday morning , November
2, 1981. Your wage upon return to work will be
$3.35 per hour.
The General Counsel argues that she left on Friday, 30
October 1981 , and certain documentary evidence sup-
ports this position . In any case , Shroba testified that she
did not receive Respondent 's letter prior to her trip. Her
testimony appears credible . When asked whether she
would have gone on the trip had she known about the
letter, she testified (Tr. 1984): "No, I would have went
to work and give it a shot again . I would have liked to
try again ." Shroba testified that she became aware of the
letter while she was on her trip when she called her
home. She asked a friend to open her mail and promptly
called the Union . Mort Weiner" notified Attorney
Schlemmer that Shroba was out of town and could not
return for 2 weeks, but that she wanted the job back.
Weiner also called and informed Respondent 's vice presi-
dent Palette Dybel that Shroba desired her job back.
Frank Dybel admitted that he had received Shroba's
message from his attorney on 2 November . Nevertheless,
by letter of 9 November 1981, Frank Dybel notified
Shroba as follows (G.C. Exh. 33):
You were requested to report to work on No-
vember 2, 1981. And you failed to appear or notify
us in writing that you no longer desired to work
here. Work was set up for your return.
Two weeks has gone by and we still have not re-
ceived any notice stating why you did not report on
the scheduled day for work.
Therefore our only choice is to notify you that
your job here at IMCO has now been terminated.
Shroba made one last attempt to get her job back. She
went to Respondent ' s premises after she had returned
from her trip in the middle of November . But Respond-
ent President Frank Dybel , in an open display of hostili-
ty, yelled at her to get off his property , threatened to
call the police, and promised that she would never work
there again. Dybel admitted that he "read her the riot
act."
The evidence, as summarized above , certainly does not
show that the Respondent had made a bona fide attempt
to reinstate this employee . There was no showing why
Shroba could not have reported for work 2 weeks later.
Respondent simply seized on her 2-week absence to
avoid its obligation to reinstate her.
3 His testimony is somewhat inconsistent His testimony indicates that
he received the call on Friday which would have been 30 October. His
affidavit states 29 October In any case, he called Schlemmer on 31 Octo-
ber 1981.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record does not show that Shroba had abandoned
or waived her reinstatement rights. To the contrary, the
Union and Shroba had kept the Respondent fully and un-
equivocally informed of Shroba's desire to have her job
back. The mere fact that Shroba failed to report for
work on a particular day-a date unilaterally set by the
Company without exploring her availability-does not
indicate a waiver of her reinstatement rights, particularly
where, as here, she had expressly and continuously indi-
cated her desire to return to work. Had Shroba been em-
ployed at that time, Respondent's reporting date for
Shroba would in any case not have allowed for the cus-
tomary 2 weeks' notice to her employer. The evidence
clearly shows that the Respondent went through the for-
malities of a job offer but in practice rebuffed Shroba's
efforts at every opportunity. Even if Shroba had known
about the 2 November reporting date prior to her trip to
Arizona-an assumption not supported by the record-
the Respondent has in no way indicated that it was
somehow prejudiced or damaged by her 2-week delay in
reporting for work. Respondent waited almost 4 weeks
from its initial letter in which it solicited her interest in
reinstatement to the letter offering her reinstatement.
During that time, her telephone inquiries were routinely
rebuffed. Respondent clearly failed to make a bona fide
reinstatement offer. Any other interpretation would ef-
fectively permit the Respondent to flout the order of the
court and the Board , and signal that compliance with
such an order would consist of simply going through the
motions without fulfilling its intent and spirit. I accord-
ingly find that Respondent's backpay liability continues
until a bona fide offer of reinstatement has been made.
Interim Pay Raises
The backpay period for the three discriminatees com-
menced on 16 April 1980 when they were unlawfully
laid off. According to the backpay specification, as
amended, the computation for gross backpay included
certain pay raises which, according to the General Coun-
sel, the three former employees would have received
during their employment with IMCO.
These pay raises amounted to 50 cents per hour in
1980, 25 cents per hour on 13 April 1981, and 50 cents
per hour on 23 October 1981 for all three discriminatees.
Shroba, because her backpay period extends beyond the
fourth quarter of 1981, would be entitled to pay raises of
$1 per hour on 10 October 1983, and 50 cents per hour
on 12 March 1984 . As already stated, the discriminatees
are entitled to the pay raises which they would have re-
ceived had they not been unlawfully laid off. The Re-
spondent, however, argues that the evidence "indicated
that there is no likelihood that the claimants would have
received any raise during the backpay period." Respond-
ent's position is based on the testimony of its president
Frank Dybel, who indicated that the layoff of the three
employegs made it necessary for the remaining work
force to increase their production, and therefore the re-
maining employees received a bonus which ultimately
became a pay raise for them. Dybel also testified that a
time factor of not less than 5 years would justify a pay
raise. When asked whether he could identify a typical
employee on his present work force who could be com-
pared to the three former employees for pay raise pur-
poses, Dybel stated, "It is hard for [him] to say what a
typical employee is because they become more, oh, they
are worth more to [him] because there is less of them.
They do more things. They are more efficient." Dybel
disagreed with the General Counsel's selection of Ger-
trude Nijakowski as a typical employee because of her
skill and ability to work independently on an important
aspect of the Company's product. Although his testimo-
ny was generally evasive and often confused, he indicat-
ed that his present work force-of which more than half
had been employed prior to the layoff-was generally
superior because they had become more efficient, were
able to perform more tasks, and had become more im-
portant to the Company. Respondent did not suggest any
of its employees who might be considered more typical
than Nijakowski, nor did the Respondent take issue with
the specific pay raises which the General Counsel com-
puted had been received by Respondent's work force
since the layoff of the three discriminatees.
The General Counsel explained at great length the
basis on which Nijakowski had been selected as a com-
parable or typical employee. For example, Nijakowski,
like Lannon, Shroba, and Klopp, was classified as'an "as-
sembly" employee. Her seniority of 12 months at the
time of the layoff was comparable to the average seniori-
ty of the three discriminatees, ranging from 2-1/2 years
for Lannon, 8 months for Klopp, and 2 months for
Shroba. Klopp earned $3.25 an hour, Lannon $3.50, and
Shroba $3.10 an hour as compared with $3.25 for Nija-
kowski, about the time of the layoff. The General Coun-
sel carefully examined the payroll records of Respond-
ent's work force, assembled various charts reflecting the
time and extent of their pay raises, and found that Nija-
kowski received raises about the same time and in about
the same amounts as all other employees.
In short, Nijakowski's pay raises were comparable
with those received by the remaining work force and
there is no evidentiary support for any inference that Ni-
jakowski received preferential treatment on the basis of
her unique skill and efficiency. Respondent was afforded
repeated opportunities but failed to select any of its em-
ployees as being more comparable to the three discrimin-
atees. Moreover, the notion that any and all of the
present employees were more skilled , efficient , and valu-
able than the three former employees justifying the pay
raises to the present employees and not to the former
begs the question. Lannon, Shroba, or Klopp might have
developed into the same highly skilled, efficient, and val-
uable employees if they had remained on Respondent's
work force. Dybel conceded that his employees received
no outside training and that all of them were trained at
Respondent's factory . In addition , it is clear that the Re-
spondent had experienced turnover in the employee
complement because only about half of the present work
force was employed at the time of the layoff.
The record does not support Respondent ' s argument
that the three former employees would not have re-
ceived the pay raises received by Nijakowski or the
other employees. While the payroll records fail to show
a definite pattern of pay raises, making the use of a
IMCO/INTERNATIONAL MEASUREMENT CO. 969
"comparable employee" appropriate under these circum-
stances, the record supports the General Counsel's con-
clusion based on an exhaustive and detailed analysis of
the payroll data.
There are, however, two areas in which I disagree
with the General Counsel's computation of backpay. The
first, already indicated above, deals with Shroba's un-
availability for employment when she experienced a
transportation problem during the brief job tenure with
R.O.W. Windows in the fourth quarter of 1980. Since
she lacked transportation for a 4-week period, I find that
$640 ($4 per hour x 40 hours x 4 weeks) should be sub-
tracted from $29,399.83, the amount by the General
Counsel. The amount due Shroba, as modified, is
$28,759.83.4
The other area of disagreement is the inclusion of a
pay raise for Lannon while she was employed by IMCO.
After Lannon had been reinstated to her former job in
November 1981, in accordance with the Board's Order,
she worked there until February 1982 when she resigned.
The General Counsel correctly states that, Respondent's
backpay liability terminates with a valid offer of rein-
statement. That date for Lannon was 2 November 1981.
Without a showing that Lannon's reinstatement was not
a bona fide job offer, the General Counsel argues, on the
other hand, that Lannon's "backpay period extends until
the date of her resignation, with the only liability for the
period after her reinstatement consisting of raises which
she should have received but didn't." Since the record
does not support a finding that Lannon's reinstatement
was invalid or that the Respondent unjustly withheld
pay raises, I cannot find that Respondent's liability ex-
tends beyond her actual reinstatement on 2 November
1981. I further find that Lannon, by accepting the rein-
statement offer at a pay rate which did not include a pay
raise, waived her right to obtain the pay raise while she
was so employed. Accordingly, the pay raises included
in the General Counsel's backpay computation for
Lannon while she was employed at IMCO should be
subtracted. That amount is as follows:
$450.00 ($4.75-$3.50) x 40 hours x 9 weeks in 4th
quarter 1981.
$275.03 ($4.75-$3.50) x 220.5 hours until 19 Febru-
ary 1982 in 1st quarter 1982.
Lannon's total backpay liability of $11,912.85 re-
duced by $725.63 totals $11,187.22.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
ORDER
The Respondent is ordered to make the following
named employees whole, in conforming, with the court
judgment and Board Order herein, by paying each of
them the amounts set forth opposite his or her name, to-
gether with any additional amounts of backpay for Linda
Shroba until a valid offer of reinstatement is made, with
interest computed thereon in the manner prescribed in
the Board's Order. The Respondent shall make the ap-
propriate deductions from the amounts of any tax with-
holding required by state and Federal laws.
1. Mary C. Wilson: $24.75
2. Jill Potts: $21.37
3. Leslie Statt (Formentini): $20.25
4. Sophie R. Randis: $18.00
5. Helen E. Wenmouth: $20.25
6. Arlene Dahlman: $50.00
7. Gertrude Nijakowski: $14.62
8. Linda L. McCarthy: $18.00
9. Judy Deitelhoff: $13.95
10. Rita Mae Lannon: $11,187.22
11. Linda Shroba: $28,759.83
11. Barbara Fretts (Klopp): $8,656.53
4 Inasmuch as backpay liability continues until the Respondent makes a
valid offer of reinstatement to Shroba, computation of additional backpay
due in the interim shall be performed by the General Counsel, in accord-
ance with the established formula, at the time the backpay period is ter-
minated for this discriminatee by such a valid offer
5 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 pur-
poses