88 Transit Lines

National Labor Relations Board - Board Decisions

Jul 12, 1994

314 N.L.R.B. 324 (N.L.R.B. 1994)

324
314 NLRB No. 57
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was re-
admitted to the AFL–CIO. Accordingly, the caption has been amend-
ed to reflect that change.
2 300 NLRB 177 (1990), enfd. mem. 937 F.2d 598 (3d Cir. 1991).
3 At the hearing, it was determined that 14 drivers were hired dur-
ing the course of the backpay period. These individuals are referred
to as ‘‘replacements’’ in the backpay specification. The total number
of drivers at any one time never exceeded 23.
88 Transit Lines, Inc. and Teamsters Local Union
No. 872, a/w International Brotherhood of
Teamsters, AFL–CIO.1 Cases 6–CA–20490, 6–
CA–20984, and 6–CA–21380
July 12, 1994
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS DEVANEY
AND BROWNING
On June 25, 1993, Administrative Law Judge Harold
Bernard Jr. issued the attached supplemental decision.
The General Counsel filed exceptions, a supporting
brief, and an answering brief. The Respondent filed
cross-exceptions, a supporting brief, and an answering
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this Sup-
plemental Decision and Order.
The General Counsel excepts to the judge’s supple-
mental decision, contending that the judge erred (1) in
denying backpay to the replacement drivers and (2) in
not granting backpay to all of the original drivers for
each of the weeks that they were employed during the
backpay period. For the following reasons, we agree
with the General Counsel.
Background
A. The Underlying Unfair Labor Practice
As fully discussed in the Board’s underlying Deci-
sion and Order,2 shortly after a representation election
was conducted at the Respondent’s facility, the Re-
spondent announced to its employees that its transit-
run schedule would be changed, that is, that schedule
B, which had been in effect for many years, would be
replaced by schedule C. That change in the transit-run
schedule was made effective November 28, 1987.
Prior to the change, the schedule provided for 15
fixed runs that were bid on by the drivers every 4
months. These bids were awarded in order of seniority.
After the change, the total number of fixed runs de-
creased by one, and only eight of those remaining
fixed runs were open for bids. Under schedule C, the
fixed runs not open for bids were assigned by the Re-
spondent, at its discretion, on a daily basis.
The Board found that the scheduling change was un-
lawfully made and directed the Respondent to ‘‘make
whole its employees for any loss of earnings and other
benefits they may have incurred’’ as a result of the Re-
spondent’s unlawful schedule change.
On June 14, 1991, the United States Court of Ap-
peals for the Third Circuit entered a judgment enforc-
ing the Board’s Order. Because a controversy arose
over the amount of backpay due the discriminatees
under the terms of the Board’s Order and the court’s
judgment, on September 16, 1992, the Regional Direc-
tor issued a backpay specification and notice of hear-
ing. Following a January 21, 1993 hearing, the judge
issued a supplemental decision. In his decision, the
judge amended the backpay specification and only or-
dered the Respondent to pay a portion of the backpay
requested therein.
B. The Backpay Specification
Under the Regional Director’s specification, the
backpay period began on November 29, 1987, when
the Respondent implemented schedule C and ended on
August 18, 1991, when the Respondent reinstituted
schedule B. The backpay period consisted of 194
weeks. Under the specification, as a result of the Re-
spondent’s implementation of schedule C, the employ-
ees in the bargaining unit, as a group, lost 2-3/4 hours
of work each day of every week in the backpay period,
or a total of 13.75 hours each week of the backpay pe-
riod. The wage rate for the discriminatees for the en-
tire backpay period was $6.75 per hour. Backpay is
sought for 23 discriminatees who worked for the Re-
spondent as full-time and regular part-time drivers, and
any replacement drivers hired during the backpay pe-
riod.3 The specification sets forth the names of the
discriminatees and the number of weeks each
discriminatee actually worked during the backpay pe-
riod. Applying this backpay formula, each
discriminatee lost $4.04 per week for each week
worked during the backpay period.
C. The Judge’s Decision
At the outset of the hearing, the parties stipulated to
the following:
During the backpay period and as a result of Re-
spondent’s implementation of the change in driv-
ers’ schedules to Schedule C, the bargaining unit
employees as a group were scheduled for two-
and-three quarter hours less of scheduled route
work per week day than before the change total-
ing 13 and 3/4 hours for each week of the back-
pay period. These same employees, however, on
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4 Brown-Graves Lumber Co., 300 NLRB 640 (1990), enfd. 949
F.2d 194 (6th Cir. 1991).
5 NLRB Casehandling Manual (Part Three) Compliance Pro-
ceedings, sec. 10530.2(c).
an individual basis, did not necessarily experience
lower gross earnings either annually or quarterly,
and indeed many employees had higher gross
earnings after the change to Schedule C than be-
fore the change was made. Gross earnings, as
used in this stipulation includes earnings from
scheduled routes as well as charter runs.
Although the judge accepted the parties’ stipulation
and found that the theory supporting the specification
was valid, he concluded it was necessary to amend the
specification.
The judge found that the 14 replacement employees
should be excluded from consideration for backpay be-
cause they were not employed at the time that the
schedule was changed. The judge reasoned that the re-
placement drivers did not have any losses to be re-
stored to them because they were not employed at the
time the Respondent unlawfully changed its schedule.
As to the original 23 employees, the judge found
that the General Counsel’s formula was in error be-
cause it failed to take into account what the judge
deemed interim earnings of these employees during the
backpay period. In particular, the judge noted that the
records showed that the earnings of these employees
for specified years of the backpay period exceeded the
wage totals of the base period year, i.e., the year im-
mediately preceding the unfair labor practice. The
General Counsel had argued that the greater earnings
were attributable to work analogous to extra overtime
and that compensation for such work is normally not
considered as part of interim earnings under long-es-
tablished Board compliance policies. The judge re-
jected this argument because he viewed the Respond-
ent’s operations both before and after the unlawful
schedule change as providing ‘‘an amorphous, ever-
changing mix or environment of opportunities for
work’’ and saw no significant differences between pat-
terns of overtime before or after the commission of the
unfair labor practices. Hence, he concluded that
‘‘[w]hen any post-unfair labor practice year’s total
wages equal or exceed the base period year,’’ he
would deem these to be interim earnings that ‘‘miti-
gated any gross back pay for such year,’’ and he ac-
cordingly deducted from gross backpay ‘‘an amount
equal to General Counsel’s formula figure of $4.04 per
week times the number of weeks in the work year as
set forth in the original formula.’’
Analysis
A. Replacement Driver Issue
We find that the judge improperly excluded the 14
replacement drivers from consideration for backpay.
The Respondent’s actions were directed against the
bargaining unit as a whole. The change in schedule
was designed to cause a loss of work and, in fact, re-
sulted in all employees in the unit losing the oppor-
tunity to bid on run 14. As replacement employees be-
came part of the unit, they suffered the same disadvan-
tage of not being able to bid on this work as did the
other unit employees. Since the action was directed
against the unit, the proper remedy requires that the
unit, including the replacement drivers, must be made
whole for any loss of earnings that resulted from the
Respondent’s unlawful conduct. Any other course
would mean that the bargaining unit would not be
made whole for the Respondent’s unlawful actions.4
B. Interim Earnings Issue
We disagree with the judge’s decision to treat as in-
terim earnings any amount by which the
discriminatees’ post-unfair labor practice annual earn-
ings exceeded their base-period year earnings with the
Respondent. We reject that decision because it is an
inappropriate application of the interim earnings’ con-
cept to a case involving a violation other than dis-
charge from employment, and because it effectively re-
solves uncertainties in favor of the wrongdoer.
Interim earnings are earnings from employment that
is a substitute for employment taken away as a result
of unlawful conduct. Affected employees obtain such
employment in accordance with their obligation to
mitigate their damages. The backpay ultimately owed
a discriminatee is determined by subtracting the in-
terim earnings from his or her gross backpay—i.e.,
‘‘What the discriminatee would have earned from em-
ployment had there been no unlawful action.’’5 That
substitution concept, however, makes sense only with
respect to employees who have been unlawfully dis-
charged. The employees here were not discharged but
were simply the victims of an unlawful schedule
change; neither the judge nor any party contends that
they were required, as part of any mitigation obliga-
tion, to obtain additional replacement work from some
other employer during the backpay period. In his reso-
lution of the interim earnings issue, however, the judge
treated any instance of annual earnings in excess of
base-period annual earnings as if they were attributable
to work that was a substitute for work that was taken
away as a result of the Respondent’s unlawful conduct.
The judge’s reasoning also reflects the view that the
increased earnings showed that the employees had not
in fact suffered any losses as a result of the discrimina-
tory schedule change. We do not agree with this rea-
soning. The amount of work that the Employer took
away was relatively small, averaging less than an hour
per day per employee, and is work that the unit could
easily have absorbed. Even if individual employees’
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Bridgeway Oldsmobile, 294 NLRB 858, 862 (1989); A & T Mfg.
Co., 280 NLRB 916, 917 (1986).
actual earnings were higher than they were before the
schedule change, there is no reason to believe that they
could not have been even higher if the employees had
been able to bid on the eliminated run. The Employer
has the evidence of how much each discriminatee
worked each day and what, if any, logistical problems
they would have had in doing additional work, includ-
ing work from the eliminated run. The Employer, how-
ever, has not introduced any evidence to show that
even one of the discriminatees could not have per-
formed this additional work. In any event, even if indi-
vidual employees could not have performed the addi-
tional work, the work would have gone to other, less
busy employees, and the Employer’s total backpay li-
ability would have been the same. In the alternative,
if all the employees were too busy, then the Employer
would have been forced to hire additional employees
into the unit, and his total backpay still would have
been the same. In sum, the Employer was in the best
position to provide evidence that the employees would
not have earned any additional amounts because of
their workloads, and it has not introduced any such
evidence. Finally, we resolve any uncertainty about
this issue against the wrongdoing Respondent, whose
unfair labor practice created it.6 For all these reasons,
we find that the judge incorrectly amended the back-
pay specification. Accordingly, we do not adopt the
judge’s amendments to the backpay specification and
find that backpay is to be calculated in accordance
with the original specification.
ORDER
The National Labor Relations Board orders that the
Respondent, 88 Transit Lines, Inc., Charleroi, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
make whole the employees named below by paying
them the sum indicated, plus interest accrued to the
date of payment, less the tax withholdings required by
law. Interest shall be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
Discriminatee Weeks WeeklyLoss Net Backpay
Larry Boyd 115 4.04 464.60
David Carroll 7 4.04 28.28
Lou Cella 194 4.04 783.76
D. Danilchak 194 4.04 783.76
Lloyd Douglas 174 4.04 702.96
W. Dubarr 194 4.04 783.76
Robert Evans 194 4.04 783.76
Alphonso Guth 194 4.04 783.76
Reid Holub 194 4.04 783.76
Robert Kepics 110 4.04 444.40
G. Klochak 194 4.04 783.76
Russell Klose 194 4.04 783.76
K. Laskey 194 4.04 783.76
Clyde Parsons 127 4.04 513.08
Paul Phillips 194 4.04 783.76
Joseph Rapp 41 4.04 165.64
Gregory Smith 194 4.04 783.76
Roger Syme 55 4.04 222.20
T. Theakston 114 4.04 460.56
Herbert Wise 76 4.04 307.04
A. Capozzoli 53 4.04 214.12
J. Johnson 7 4.04 28.28
G. Lancaster 194 4.04 783.76
Warner 53.4 4.04 215.74
Vernet 8.2 4.04 33.13
Szedon 96.2 4.04 388.65
Livingston 1.8 4.04 7.27
Rothrauff 0.4 4.04 7.27
Schulz 54.2 4.04 218.97
Hoffman 51.6 4.04 208.46
Nomit 69.2 4.04 279.57
Marinos 47.6 4.04 192.30
Wyvrath 20.2 4.04 81.61
Bulna 56.8 4.04 229.47
Burnworth 24.0 4.04 96.96
Nedley 19.4 4.04 78.38
Leaver 18.0 4.04 72.72
Julie Rose Stern, Esq., for the General Counsel.
Bruce D. Bagley, Esq., of Harrisburg, Pennsylvania, for the
Respondent.
Stephen H. Jordan, Esq., of Pittsburgh, Pennsylvania, for the
Charging Party.
SUPPLEMENTAL DECISION
HAROLD BERNARD JR., Administrative Law Judge. I heard
this backpay case on January 21, 1993, in Pittsburgh, Penn-
sylvania, pursuant to a backpay specification and notice of
hearing issued September 16, 1992, based on the Board’s
Decision and Order at 300 NLRB 177 dated September 28,
1990, later enforced by the United States Court of Appeals
for the Third Circuit on June 26, 1991. (G.C. Exhs. 1a, b.)
32788 TRANSIT LINES
The decision found, in relevant parts, that Respondent had
changed its drivers’ operating schedules as retaliation for the
Union’s success in the election, and further, unilaterally
changed its policy relating to employee reimbursement for
lodging expenses thereby respectively violating Section
8(a)(1), (3), and (5) of the Act. The remedy for the violation
of Section 8(a)(5) of the Act was secured by the parties’ set-
tlement before me at the hearing and pursuant to counsel for
the General Counsel’s motion this matter was amended out
of the specification.
The General Counsel also moved to amend the specifica-
tion to reflect a corrected amount of backpay allegedly due
14 so-called replacement employees, discussed below, and I
also granted this motion.
The Board’s Order required Respondent to ‘‘make em-
ployees whole for any losses they may have suffered as a re-
sult of these unlawful actions . . .’’ under established guide-
lines. (G.C. Exh. 1a fn. 7, p. 9.) Given the withdrawal from
the specification of the matter involving reimbursement ex-
penses, there leaves the question of a proper make-whole
remedy regarding the drivers’ schedules change remaining
for consideration.
I. BACKGROUND
On November 29, 1987, Respondent changed from a B
schedule to a C driving schedule which caused or involved
a realignment of its 15 different fixed bus driving scheduled
routes, but did not directly change its way of operating its
charter runs. All the drivers did both types of runs to varying
degrees; in some instances driving a fixed route in the morn-
ing and a charter run that afternoon. The fixed schedule
routes in some cases were reduced in size with an attendant
enlargement in others. Number 14 run was, however, entirely
discontinued, with all its driving hours, save for 2-3/4 hours,
which were eliminated, being absorbed by other routes pur-
suant to the changed schedule. Respondent President Nones
testified that run number 14 partly involved 2-3/4 hours paid
dead time sitting at the terminal waiting to make the trip to
California, Pennsylvania so it was his view that no actual
physical work had been eliminated by the change. The par-
ties nonetheless stipulated that after all the dust had settled,
there were 2-3/4 hours less driving time on fixed scheduled
routes available for unit employees after the unlawful change
than before. Charter driving worktime remained the same.
This circumstance continued until Respondent returned mat-
ters to the status quo ante on August 18, 1991, which then
constitutes the ending date for the backpay period which
therefore spans 1 month in 1987, all of 1988, 1989, 1990,
and to August 18, 1991.
Regional Compliance Agent Clyde Graham with Respond-
ent’s cooperation during his extensive investigation into the
4-year-long period of employee records, was unable to trace
the lost 2-3/4 hours to any single employee, core group of
employees, or even a pattern consisting of any group of em-
ployees who could be identified as those who suffered losses
from the reduction in hours after run 14 was eliminated. He
could not find such a single employee because it had been
a bid run that no longer existed past November 29, 1987.
Further, all the fixed runs pre-ulp were up for bid every 4
months though some continuity of drivers in some runs
seemed apparent to him; yet in the post-ulp period eight runs
remained bid runs, but six lost bid status and Respondent as-
signed drivers to those runs daily, at its discretion. The wage
rate for fixed runs remained the same $6.75 per hour at all
relevant times, but some routes are longer time-wise than
others, yielding higher pay. The records contained the reports
of income derived by unit employees from charters, as well,
adding to the complexity in matters. There were three ways
employees could get a charter, either from client requests by
name, bidding, or by assignment from Respondent. If some-
one took a charter and their fixed transit run was vacant
someone left on the ‘‘extra board’’ a list of unassigned driv-
ers, could be assigned. Originally employee charter pay was
based on the higher of mileage or an hourly rate; after Au-
gust 12, 1990, Respondent used an hourly rate. Thus, there
was a mix of different assignment and pay scenarios for the
23 drivers whose records came under scrutiny. When fin-
ished with the investigation it is undenied that the results
showing many unimpaired if not improved employees’ in-
comes after the unlawful change in scheduling led Graham
to inform President Nones and an associate of Nones that,
‘‘as far as he was concerned we did not owe the drivers any
money but the final decision was not his.’’
II. ISSUANCE OF THE BACKPAY SPECIFICATION
Since no specific employee could be singled out and iden-
tified as having lost the 2-3/4 hours, the Region determined
the loss should be distributed fairly among unit employees,
Graham testified. Thus, based on a 5-day workweek with a
daily loss of 2-3/4 hours, a weekly loss of 13-3/4 hours re-
sulted, multiplied by the hourly rate of $6.75 yielding $92.81
divided among 23 drivers thereby each driver being entitled
to $4.04 per week for each week he remained in the unit
during the backpay period. The resulting figure would rep-
resent each driver’s backpay. For any new employees hired
after the ulp as a replacement for departed unit employees
the same formula would apply for the period he worked in
the unit until the August 18, 1991 backpay period ended.
At the hearing Graham explained why the Board’s estab-
lished backpay formulas lacked applicability. The ‘‘replace-
ment employee’’ model, for example, did not apply as no
employee was terminated by the ulp. The ‘‘representative
employee’’ formula by which an employee like the
discriminatee job-wise continues doing the same work and
thus his earnings are a good measure for backpay was not
an available formula either. Finally, it was Graham’s testi-
mony that the average gross earnings or average gross hours
models based upon a representative period prior to the ulp
applied through the course of the backpay period as a base
against which earnings in the period could be contrasted
were simply invalid because in this case he averred, the loss
of the 2-3/4 hours represented ‘‘a piece of the pie [that] was
missing’’ which employees were not shown to have ever re-
ceived.
When I asked the witness why he had not simply com-
pared gross earnings of unit employees pre-ulp with such
earnings post-ulp he did not hesitate to respond that it was
because he agreed somewhat with Respondent’s assertion in
the course of compliance proceedings that a number of em-
ployees made more money during the backpay period. He
cited also as a supporting reason that employees after the
change may have made decisions they may not have made
but for the change. Questioned further, Graham explained
that the number of employees in the unit decreased during
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the backpay period which could have accounted for larger
earnings and that in any event none of the employees were
paid for the 2-3/4 hours.
III. THE PARTIES’ STIPULATION
With this background, the parties stipulated that,
During the backpay period and as a result of Respond-
ent’s implementation of the change in drivers’ sched-
ules to Schedule C, the bargaining unit employees as a
group were scheduled for two-and-three quarter hours
less of scheduled route work per week day than before
the change totalling 13 and 3/4 hours for each week of
the backpay period. These same employees, however,
on an individual basis, did not necessarily experience
lower gross earnings either annually or quarterly, and
indeed many employees has [sic] higher gross earnings
after the change to Schedule C than before the change
was made. Gross earnings, as used in this stipulation
includes earnings from scheduled routes as well as
charter runs.
IV. CONTENTIONS OF THE PARTIES
Counsel for Respondent objects to the formula because it
does not take into account the employees’ backpay period
earnings, a consideration which Graham acknowledged to be
the usual procedure, and to Graham’s rationale that the num-
ber of employees in the unit decreased so that individual
earnings could naturally have been greater points out on brief
that nine drivers left the payroll but 14 replacements were
hired which militates against any decrease. (R. Exhs. 2, 4.)
In this respect it is noted that neither Graham or the General
Counsel supplied any probative evidence to support the view
that the size of the unit decreased at times pertinent to as-
sessing the significance to be given employee backpay period
earnings. I asked Graham for the basis of his assertion that
the unit had decreased in number of employees and he re-
plied,
What I am telling you is I can’t give you a specific
number at any given time after that, but when I ana-
lyzed those records, I went through the records of who
came in and when they were there. There was such a
transient situation that I really can’t give you a defined
number other than at the time that they remedied the
situation (August 18, 1991) there was less than the 23.
I conclude in this respect that there is no proof to support
the alleged unreliability in using employees’ backpay period
earnings as a measure of their losses which can be attributed
to a decrease in the size of the unit, when such has not been
demonstrated.
Respondent also contends the representative employee test
or something akin to it could have been used because em-
ployee Phillips held run 14 for the year pre-ulp. Run 14 was
entirely eliminated so there could be no representative em-
ployee to track earnings from post-ulp. Counsel further ar-
gues on brief that the formula uses a bludgeon-like approach,
rather than ascertaining actual interim earnings if any, and
that the approach taken is unprecedented in its ignoring of
interim earnings entirely. Further, with regard to the backpay
allegedly due replacement employees, Respondent counsel
asserts that such employees, not being present pre-ulp have
nothing to be made whole for or restored to and therefore
should be excluded from any backpay remedy.
To defend the formulas’ approach, which focuses only on
the reduction of 2-3/4 hours from the discontinued run 14 out
of the 15 runs and the entire mix of combined fixed route
and charter work—as well as ignoring all interim earnings,
the General Counsel argued that the violation found was lim-
ited (for purposes of analysis herein) to such reduction only,
which only affected fixed route schedule work opportunities.
She argues the loss only impacted there, and not on the char-
ter driving work, so that interim earnings are irrelevant inso-
far as drivers earned income from such other source. Further,
she notes nonbinding comment in the Board’s compliance
manual that the discriminatee is not obliged to work over-
time to reduce a respondent’s backpay obligation par.
10604.3, and that the formula was accurate, reasonable and
proper. She argued that ‘‘Graham found it extremely dif-
ficult, if not impossible, to determine with any accuracy what
pre-change earnings or hours of work should be used for a
comparison.’’ (G.C. Br. 6.) Turning to charter runs, she fur-
ther noted the absence of data showing how many hours
were required to be worked to achieve the earnings from
such work and contended such income would not be relevant
anyway because the change did not affect charter work. To
support her inclusion of replacement employees in the rem-
edy General Counsel points out that the Board’s Order did
not expressly delimit the term employees from the remedial
portion on the decision to only those employed at the time
of the ulp.
V. ANALYSIS
The General Counsel had to prove that the formula used
to determine gross backpay was ‘‘reasonable under the cir-
cumstances.’’ Rikal West, Inc., 274 NLRB 1136, 1137
(1985). The formula in this case could not reach the exact
correct figures here due to a host of dynamics in assignment
and pay systems which could change daily but, so long as
it was reasonable and had a legal basis, this was all that was
required, for there is considerable discretion in selecting, ‘‘a
methodology which is reasonably designed to approximate
the amount of backpay a wrongfully discharged employee
would have received absent the employer’s wrongful con-
duct,’’ and (if such is the case) ‘‘General Counsel’s com-
putation of gross backpay, in the absence of preponderant
contrary evidence, meets the legal standards of permissible
discretion in determining approximate gross backpay.’’
Churchill’s Supermarkets, 301 NLRB 722 (1991), citing
Rikal West, Inc., supra at 1138, and NLRB v. Carpenters
Local 180, 433 F.2d 934 (9th Cir. 1970); and Iron Workers
Local 378 (Judson Steel), 262 NLRB 421 (1982).
The Board’s decision in the case underlying that before me
rested on the loss of 2-3/4 hours which could not be traced
specifically, and did not lend itself to any of the four usual
formulas in the Region’s judgment, leaving available under
established policies any formula reasonable and proper and
which would be the most accurate available on which to
make the gross backpay calculation. For ‘‘it is well settled
that the finding of an unfair labor practice is presumptive
proof that some backpay is owed [case cited] and that in a
backpay proceeding the sole burden on the General Counsel
is to show the gross amounts of backpay due. . . . Once that
32988 TRANSIT LINES
1 The 14 so-called replacement employees were all hired post-ulp
and Compliance Agent Graham noted ‘‘a very transient operation [in
the backpay period], there were people that came in and out for
short periods of time.’’ The records show moreover, a wide range
in their tenure, from less than a week to widely varying periods of
time. Unlike the original core group employees pre-ulp, the replace-
ment employees’ sporadic employment only post-ulp cannot be con-
trasted with pre-ulp earnings to determine interim earnings. Further,
such employees have no losses to be restored to them, since they
were not employed at the time of the elimination of run 14. See Sys-
tems Management, Inc. v. NLRB, 901 F.2d 297, 308–309 (3d Cir.
1990). While I have otherwise concluded (except for the omission
of interim earnings from the calculation of backpay due the 23 em-
ployees working pre-ulp) that the formula reasonably approximates
gross backpay due employees, I find that the transitory replacement
employees are not includable therein, or in any other formula, for
backpay purposes, under the Board’s Order. The specification is
hereby further amended therefore, to exclude them from coverage,
as any determination of such matter would be unduly speculative.
Georgia Kraft Co., supra; and Sure Tan, Inc. v. NLRB, supra.
is established, ‘the burden is upon the employer to establish
facts that would mitigate that liability.’’’ Hacienda Hotel &
Casino, 279 NLRB 601, 603 (1986), and cases cited. Any
uncertainty in such situations is resolved against the Re-
spondent who is considered a wrongdoer responsible for such
uncertainty who therefore bears responsibility, rather than the
wronged against employees. Churchill’s Supermarkets, supra
at 725, and Hacienda Hotel & Casino, supra at 603.
Saying this, it is important to note, as well, Board law
cautioning against the use of speculation, since a ‘‘backpay
remedy must be sufficiently tailored to expunge only the ac-
tual and not merely speculative consequences of the unfair
labor practices.’’ Georgia Kraft Co., 288 NLRB 29 (1988),
citing Sure Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984).
The Board furthermore, eschews the use of a formula where-
in employees not entitled to backpay receive an undeserved
windfall. Ogle Protection Service, 183 NLRB 682, 683
(1970).
The responsibility rests here to determine the propriety of
the General Counsel’s formula and to make a recommenda-
tion to the Board concerning the most accurate method of de-
termining backpay. American Mfg. Co., 167 NLRB 520
(1967). Applying the above principles I conclude General
Counsel’s formula, insofar as it represents an effort to ascer-
tain gross backpay for the 23 employees working at the time
of the ulp is within the considerable, permissible discretion
afforded in such preparation, as far as it goes.1 However, in
my view it doesn’t go far enough, because I do not agree
that there is a valid reason for entirely ignoring employees’
documented earnings during the backpay period due to al-
leged irrelevancy, especially when the records thereof show
substantially larger amounts of pay over employee earnings
for the base pre-ulp period. Yet this is what the computation
does.
The Board’s Order required the customary make-whole
remedy on employees’ behalf for any losses they may have
suffered from Respondent’s action. Making whole, as the
Board’s Compliance Manual states, ‘‘involves payment to the
discriminatee of a sum equal to gross backpay (what the
discriminatee would have earned in employment lost through
discrimination) less net interim earnings (what was actually
earned from other employment during the period less ex-
penses incurred in seeking and holding interim employment),
the difference between the two being the net backpay due.’’
Supra, par. 10530. (Emphasis added.) The use of interim
earnings is based upon a concept that is a cornerstone prin-
ciple in backpay proceedings, applied over the years as a
necessary adjunct for determining back pay. No authority is
advanced to support the unprecedented rejection of it here,
nor is there any justification for its being ignored based upon
the facts.
The General Counsel’s argument that the employees’ total
earnings post-ulp included both fixed and charter runs and
could not be considered as interim earnings because the Re-
spondent’s change of schedules directly involved only the
fixed run schedule and not the charter runs is transparently
invalid. Employees enjoyed an amorphous, ever-changing
mix or environment of opportunities for work at Respond-
ent’s operation. There is no reason why their post-ulp earn-
ings from the same work environment or mix should not be
used to offset or mitigate losses from the tiny fraction of lost
hours in one of the components in such mix, either in law
or logic. Her citation from the nonbinding Compliance Man-
ual of the policy against employees being ‘‘obligated’’ to
work overtime in order to mitigate losses is without merit as
no employee was shown to have been required to do so—
nor was a contention even made of such. Moreover, overtime
was a very common other component in the employees’ pre-
ulp mix of job or work or pay opportunities so there was
nothing different bout overtime during the post-ulp period
such as would disqualify pay from the comparatively little
overtime involved it should be noted, from being considered
interim earnings. (R. Exh. 2.) Her final argument that the
post-ulp wages could have involved more working hours due
to longer charter lacks legal significance because such driv-
ing work was not forced on any employee and was an equiv-
alent task to what all unit bus drivers had been performing
in both pre and post ulp periods of time so that it would be
entirely appropriate to use for backpay purposes.
At the hearing Respondent offered records showing em-
ployee earnings from all sources and work at its operations
for the 23 original unit employees from the one year pre-ulp
period ending November 27, 1987, through August 18, 1991,
the entire backpay period, broken down into pay periods
(every 2 weeks); and including yearly totals. The General
Counsel, given the opportunity to examine the records and
having done so stated she had no objection to the records’
authenticity, but objected to their admission on the ground
they were not relevant because employees, absent the change
in route scheduling, may have earned more than as set forth
in the records. This objection being wholly speculative, and
the Respondent’s authentic records being very much relevant
to its burden of proving any mitigation of gross backpay aris-
ing from interim earnings, the records were received into evi-
dence. Having concluded that interim earnings may constitute
proper mitigation in this case, the examination of employee
records for the 5 years in question examined into a compari-
son of the base pre-ulp total earnings in the year before the
ulp with each of the yearly following periods until August
1991, the goal being to determine what net losses or net
backpay, if any, would be due under the General Counsel’s
formula herein found, save for its unwarranted omission of
any consideration of interim earnings, to otherwise constitute
a reasonable and helpful model.
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
VI. AMENDMENT TO SPECIFICATION
Consistent with these findings I shall amend the specifica-
tion to reflect net backpay due employee after deductions for
interim earnings reflected by Respondent’s records. For this
purpose, and due to the ebb and flow of earnings, which nat-
urally occurred in the unique milieu of their mixed assign-
ments, I conclude that the most reliable periods to use are
the yearly earnings totals in each of the years post-ulp, 1988,
1989, 1990, and 1991 (up until August 18, 1991, the end in
the backpay period). See NLRB Casehandling Manual (Part
Three) Compliance, section 10532.1. These yearly wage to-
tals are compared with the pre-ulp base period year earnings.
When any post-ulp year’s total wages equal or exceed the
base period year, and thus interim earnings mitigated any
gross back pay for such year, an amount equal to General
Counsel’s formula figure of $4.04 per week times the num-
ber of weeks in the work year as set forth in the original for-
mula is deducted from gross backpay. (G.C. Exh. 1c, par.
12.) Where the Respondent’s records do not prove any miti-
gation, such as where merely unexplained absences are
shown, and where the record evidence fails to support willful
loss of earnings (employee Wise’s case), I have concluded
Respondent has not carried its burden of proving a diminu-
tion in backpay as set forth in the specification, which I have
found except as noted above, to yield a reasonable approxi-
mation of the backpay due. The following shows the original
specification amounts due each employee first, and the basis
for such; then the amount of interim earnings yielded by the
records and as translated under the original specification is
set forth; the computation of net backpay under the amend-
ment to the specification is then shown.
Employee
Boyd
115 weeks x $4.04 = $463.45
less 1987 (11/29–11/26/88) 52 x $4.04 210.08
Net Backpay $253.37
Carroll
No mitigation proven Net Backpay $28.28
Cella
194 weeks x $4.04 = $783.76
less 1989 and 1990 104 x $4.04 420.16
Net Backpay $363.60
Danilchak
194 weeks x $4.04 = $783.76
less 1989 and 1990 104 x $4.04 420.16
Net Backpay $363.60
Douglas
174 weeks x $4.04 = $707.00
less 1988 and 1989 104 x $4.04 420.00
Net Backpay $287.00
Dubarr
No mitigation proven Net Backpay $783.76
Employee
Evans
194 weeks x $4.04 = $783.76
less 1989 and 1990 104 x $4.04 420.16
Net Backpay $363.60
Alphonso Guth
194 weeks x $4.04 = $783.76
less 1988 and 1990 104 x $4.04 420.16
Net Backpay $363.60
Holub
194 weeks x $4.04 = $783.76
less 1988 52 x $4.04 210.08
Net Backpay $573.68
Kepics
110 weeks x $4.04 = $444.40
less 1989 52 x $4.04 210.08
Net Backpay $234.32
Klochak
194 weeks x $4.04 = $783.76
less 1988 and 1990 104 x $4.04 420.16
Net Backpay $363.60
Klose
194 weeks x $4.04 = $783.76
less 1988, 1989, and 1990 156 x $4.04 630.24
Net Backpay $153.52
Laskey
No mitigation proven Net Backpay $783.76
Parsons
No mitigation proven Net Backpay $513.08
Phillips
194 weeks x $4.04 = $783.76
This employee’s base period earnings reflected a sum of
$17,613.02 but, to avoid a distortion in his base period’s use as a
comparison with later earnings during the Backpay period arising
from his being on furlough 12–20–86 through 13–28–86, the av-
erage of his earnings in other quarters during the base period
was projected, leaving a constructed base total of $19,119.
less 1988, 1989, and 1990 156 x $4.04 630.24
Net Backpay $153.52
Rapp
No mitigation proven Net Backpay $165.64
Smith
194 weeks x $4.04 = $783.76
less 1988, 1989, and 1990 156 x $4.04 630.24
Net Backpay $153.52
Syme
55 weeks x $4.04 = $222.20
This employee’s adjusted base period total learnings figure is
$16,977.88 warranted to avoid a distortion arising from his only
being employed for 2 and a fraction quarters in the base period.
No mitigation proven Net Backpay $222.20
Theakston
33188 TRANSIT LINES
Employee
114 weeks x $4.04 = $460.56
less 1988 and 1989 104 x $4.04 420.16
Net Backpay $40.40
Wise
No mitigation proven Net Backpay $307.04
Cappozoli
No mitigation proven Net Backpay $214.12
Johnston
No mitigation proven Net Backpay $28.28
Employee
Lancaster
194 weeks x $4.04 = $783.76
less 1989 52 x $4.04 210.08
Net Backpay $573.68
The amended net backpay due employees is $7,287.17 plus
interest as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]