NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,426, HOFFMAN PLASTIC COMPOUNDS, INC. and CASIMIRO ARAUZ., (July 29, 1994), National Labor Relations Board, (Jul 29, 1994)

HOFFMAN PLASTIC COMPOUNDS, INC. and CASIMIRO ARAUZ.

314 NLRB No. 111.Case No. 21-CA-26630. July 29, 1994 Jay R. Pollack, Administrative Law Judge..

Before Gould, Stephens and Browning.

Peter Tovar, for General Counsel. Ryan McCortney (Sheppard, Mullin, Richter & Hampton), Los Angeles, California, for Respondent.

Back Pay--Period of Liability--Reinstatement Refused.--For backpay purposes, an employer’s liability was terminated after it offered reinstatement to a discriminatee, who thereafter refused it. Although the employee expressed satisfaction with the offer of reinstatement because it would have returned him to the same job he had before his unlawful layoff, he failed to return to work. Thus, the employee was properly terminated for breach of employment. Section 10(c).

Back reference: ¶5465.0356.

Remedial Orders--Reinstatement--Illegal Alien.--A remedial order requiring an employer to reinstate a discriminatee was rejected because it would have been impossible for the employer to comply with the order. At all times during him employment, the discriminatee was illegally working in the United States, although the employer did not know that fact at the time, and he was still in violation of U.S. immigration laws, which made his reemployment unworkable. Section 10(c).

Back reference: ¶5440.621.

Supplemental decision following (1992) 306 NLRB--(No. 17), 1991-92 CCH NLRB ¶17,074.

From Text of Board’s Decision

The Board has considered the supplemental decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [1] and conclusions and to adopt the recommended Order as modified. [2]

We agree with the judge that the Respondent made a valid verbal offer of reinstatement to Moises Gonzalez on March 10, 1989. It is well established that an offer of employment must be specific, unequivocal, and unconditional in order to toll backpay and satisfy a respondent’s remedial obligation. Holo-Krome Co., [1991-92 CCH NLRB ¶16,592] 302 NLRB 452, 454 (1991), enf. denied on other grounds [120 LC ¶10,977] 947 F.2d 588 (2d Cir. 1991), rehearing denied [120 LC ¶11,094] 954 F.2d 108 (2d Cir. 1992). Gonzalez testified that he understood that the Respondent’s reinstatement offer was specifically for his former job at his former rate of pay. Gonzalez immediately accepted the offer of reinstatement. In addition, the credited testimony establishes that the Respondent did not demand that Gonzalez make an immediate decision to accept the offer and did not condition its offer of reinstatement on the withdrawal of Gonzalez’ unfair labor practice charge or any other factor. We accordingly find that the Respondent made Gonzalez a valid offer of reemployment and satisfied its remedial obligation in this regard.

The General Counsel has also excepted to the judge’s finding that the Respondent terminated Gonzalez, following his acceptance of reinstatement, pursuant to its policy imposing termination on any employee who fails to, in the words of Plant Manager Wilkerson, “call in or ... show up for three days.” The record establishes that Gonzalez did not report to work for his scheduled evening shifts on March 11 or 12, 1989, did not thereafter report for work, and that Wilkerson terminated Gonzalez in the afternoon of March 13, 1989, on the failure of Gonzalez to contact Wilkerson. The General Counsel contends that the Respondent, under its policy, was required to wait until Gonzalez had failed to appear for his third consecutive evening shift on March 13, 1989, before terminating him, that accordingly the Respondent improperly applied its policy in terminating Gonzalez, and hence that its backpay liability is not tolled. Under the circumstances of this case, we need not decide whether the Respondent improperly applied it policy in terminating Gonzalez. Rather, we find that the Respondent’s backpay obligation to Gonzalez was tolled because the Respondent made a valid offer of reinstatement which Gonzalez accepted, and Gonzalez thereafter failed to adhere to his side of the agreement and make himself available for work. See generally American Mfg. Co. of Texas, [1968-1 CCH NLRB ¶21,779] 167 NLRB 520, 521 (1967).