Abell, A. S., Company

National Labor Relations Board - Board Decisions

Aug 26, 1981

257 N.L.R.B. 1012 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The A.S. Abell Company and Baltimore Typographi-
cal Union No. 12
The Baltimore News American Division, The Hearst
Corporation and Baltimore Typographical
Union No. 12. Cases 5-CA-7980 and 5-CA-
8061
August 26, 1981
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 6, 1981, Administrative Law Judge
Sidney J. Barban issued the attached Supplemental
Decision in this proceeding. Thereafter, the Gener-
al Counsel filed exceptions and a supporting brief,
and Respondent The Baltimore News American
Division, The Hearst Corporation (herein Respond-
ent Hearst) filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modified below.
At issue before the Board is the question of the
entitlement of employees Martin, Randolph, Ever-
hart, Woodruff, Burrows, and Oberg to vacation
benefits from Respondent Hearst. There are no ex-
ceptions to the Administrative Law Judge's dispo-
sition of the backpay liability of Respondent A. S.
Abell Company, or to his disposition of the back-
pay liability of Respondent Hearst except with re-
spect to the vacation benefits due the employees
named above, and we adopt those findings and
conclusions to which no exceptions have been
filed. We disagree, however, with the Administra-
tive Law Judge's treatment of the vacation benefits
issue.
As the Administrative Law Judge found, each of
the six named employees was unlawfully terminat-
ed at a time when he had been employed by Re-
spondent Hearst for more than 4 years, and that
this length of service presumptively entitled him to
vacation benefits pursuant to the applicable collec-
tive-bargaining agreement. However, the Adminis-
trative Law Judge found that it was impossible to
calculate the amount of vacation benefits to which
each employee was entitled without evidence of his
prior absentee rate, and concluded that the presen-
tation of such evidence was part of the burden of
257 NLRB No. 144
the General Counsel. In the circumstances of this
case we believe this conclusion to be in error.
The agreement states that employees with 4
years of service are entitled to 20 days' vacation
pay, unless they were "fully paid for less than 215
straight time shifts," in which case they "shall re-
ceive vacation credits based on one day for each 12
days worked .... "' The question is whether the
General Counsel's undisputed showing that these
employees each had 4 years of appropriate service
is sufficient to make them presumptively entitled to
20 days' vacation pay, and to shift the burden to
Respondent Hearst to show otherwise. The evi-
dence which might warrant a reduction of that en-
titlement is in the payroll records in Respondent
Hearst's possession. It is reasonable, therefore, to
place on Respondent Hearst the responsibility for
showing that they were entitled to less or none.
This shift of burden accords with our normal prac-
tice with regard to diminution of backpay. See
Eastgate I.G.A. Foodliner, 253 NLRB 735 (1980).
Here, of course, Respondent Hearst did not
come forward with the evidence we have found it
was its burden to produce. However, we deem it
appropriate to allow it a further opportunity to do
so. We do not perceive Respondent Hearst's with-
holding of this evidence as an attempt to prolong
these proceedings. Rather, it appears that it be-
lieved in good faith that presentation of this evi-
dence was part of the General Counsel's burden, as
the Administrative Law Judge found. The General
Counsel, for his part, however, acknowledges in
his brief in support of exception that evidence of
these employees' absentee rates, if such exists,
could reduce their entitlements, and states that the
General Counsel "will accept a reduced vacation
benefit award if the applicable absentee rates can
be agreed upon." To best accommodate the parties'
legitimate desire to resolve this matter fairly and fi-
nally, we shall remand the issue of vacation bene-
fits for these employees to the Administrative Law
Judge. 2
'The pertinent section of the collective-bargaining agreement reads as
follows:
Employees with four (4) or more years continuous priority in any
particular office shall commence earning vacation credits on the
basis of four (4) weeks vacation with 20 days' pay for the succeeding
vacation credit year, said earning of vacation credits for each indi-
vidual employee to begin on the day the employee reaches his fourth
anniversary of continuous priority in any one office. Employees with
four (4) or more years of continuous priority in any one office who
have been fully paid for less than 214 straight time shifts, such as
holidays and vacations, prior to March 1, shall receive vacation
credits based on one day for each 12 days worked on a situation.
2 If the parties are able to reach agreement which the Administrative
Law Judge approves, of course. further proceedings will be unnecessary.
1012
THE A. S. ABELL COMPANY
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respond-
ents, The A. S. Abell Company and The Baltimore
News American Division, The Hearst Corporation,
Baltimore, Maryland, their officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order as so modified:
Delete paragraph 4.
IT IS FURTHER ORDERED that Case 5-CA-8061
be, and it hereby is, severed and remanded to the
Administrative Law Judge for determination of the
issue of vacation credits to employees Martin, Ran-
dolph, Everhart, Woodruff, Burrows, and Oberg
consistent with the foregoing Decision.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at Baltimore, Maryland, on March 10,
11, 12, 13, 19, 20, and 25, 1980, upon separate backpay
specifications issued in Case 5-CA-7890, in respect to
Respondent The A. S. Abell Company (herein Respond-
ent Abell or Abell), on October 10, 1979, and in Case 5-
CA-8061, in respect to Respondent The Baltimore News
American Division, The Hearst Corporation (herein Re-
spondent Hearst or Hearst), on October 12, 1979, pursu-
ant to a Decision and Order of the National Labor Rela-
tions Board (herein the Board), issued on June 8, 1977
(230 NLRB 17), and a Supplemental Decision and Order
issued on June 28, 1979 (243 NLRB 171), in Case 5-CA-
7980, and pursuant to a Decision and Order of the Board
issued on June 14, 1977 (230 NLRB 216), and a Supple-
mental Decision and Order issued on June 28, 1979, in
Case 5-CA-8061 (243 NLRB 170). Answers were duly
filed by Respondents controverting the allegations of the
backpay specifications, and raising certain issues which
will be considered hereinafter.
In accordance with discussions had at the hearing, in
an effort to settle some of the problems with which the
parties were having difficulty, I issued, on May 28, 1980,
a preliminary Decision and Order in this matter, which is
incorporated herein by reference. Respondent Abell and
the General Counsel requested special permission to
appeal from that Decision and Order, which was denied
by the Board on August 12, 1980, on the ground that the
matters complained of could "be dealt with adequately
upon exceptions of the Administrative Law Judge's Sup-
plemental Decision."
Upon the entire record in this case, from observation
of the witnesses and their demeanor, and after considera-
tion of the briefs filed by Respondents Abell and Hearst,
and by the General Counsel, I make the following:
FINDINGS AND CONCLUSIONS'
I. THE PRIOR PROCEEDINGS
The Decisions and Orders of the Board in the prior
cases, and the opinion of the court of appeals were de-
scribed at some length in the preliminary Decision, and
will not be repeated here. Suffice it to say that the Board
held that each of the Respondents had violated the Act,
in the circumstances here obtaining, by inducing certain
of their employees through payment of large sums of
money (referred to as the "buyout") to take early retire-
ment from their employment, and ordered (a) that these
employees be offered reinstatement, but imposed as a
condition to reinstatement that such employees repay to
the Respondent involved the excess, if any, of the em-
ployee's buyout over the amount of his net backpay, and
(b) that such employees be made whole for losses suf-
fered as a result of Respondent's unfair labor practices,
with the proviso that interim earnings for any such em-
ployee who "desires to return to work pursuant to this
Order shall include any payments received pursuant to
the [buyout]."
In the preliminary Decision, in essence, I held that (1)
employees who refused, or were not eligible for rein-
statement are not entitled to backpay, (2) Respondents
are obligated to pay interest on backpay awards, comput-
ed in accordance with Isis Plumbing & Heating Co., 138
NLRB 716 (1962), (3) backpay should be computed on a
quarterly basis, and that (4) the employees induced to
retire had an obligation to seek interim employment (this
conclusion arrived at quite reluctantly), and also dis-
cussed the factors and formulas to be used in determining
deductions from gross backpay for absenteeism and in
determining Respondents' obligation for pension fund
contributions and the employees' rights to vacation pay-
ments. Each of these will be further considered in con-
nection with specific cases hereinafter.
II. ISSUES INVOLVING RESPONDENT HEARST
A. Eight Uncontested Employees
Thirteen of Hearst's employees were involved in the
buyout. As to two of these, Earl Cummins and Curtis
Johnson-Bey, the General Counsel agrees that no back-
pay is due. Nor does it appear that any other benefits are
claimed for these two. As to six employees, Robert Bur-
rows, Dennis Everhart, John H. Martin, Jr., Carl Oberg,
Arthur G. Randolph, and William L. Woodruff, the
General Counsel and Respondent Hearst are in agree-
ment as to the amount of backpay due and the amount of
ITU Pension contributions owed on behalf of these em-
ployees. Respondent Hearst attached to its brief a receipt
showing that it had paid over to the Board, on March
21, 1980, the agreed-upon amounts. However, these pay-
ments do not include interest. Respondent Hearst there-
fore owes interest on these amounts to March 21, 1980,
in accordance with the preliminary Decision in this
matter. At the time the parties agreed upon the backpay
'Reference herein to "briefs" of the parties refers to the final briefs or
memorandums submitted in early October 1980
1013
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and pension benefits owed on behalf of these employees,
the parties reserved the issue of what vacation benefits, if
any, are due these six employees. This issue will be con-
sidered hereinafter.
B. Ann Righter
Righter, who accepted a buyout of $20,000, payable in
monthly installments, from Hearst, refused Respondent's
offer of reinstatement because she preferred other em-
ployment which she had secured. In the preliminary De-
cision, I held that under the Board's Order employees
who had accepted buyout payments from Respondents
to take early retirement and thereafter refused an offer of
reinstatement were not eligible to receive backpay or lost
fringe benefits (but were likewise under no obligation
under the Board's Order to repay the buyout). The Gen-
eral Counsel requests that I reconsider my decision that
those employees are not entitled to backpay. As I point-
ed out in the preliminary Decision, the language of the
Board's remedy and Order in this case convinces me that
the Board did not order backpay paid to those employ-
ees who elected not to return to work. 2
I have had some second thoughts which I will discuss
hereinafter, concerning situations in which employees
show a desire or intention to return to work, but are pre-
vented by some action or conduct of a respondent, but
that is not the case here.
For the reasons stated I find that Righter is not enti-
tled to backpay or lost benefits by reason of Respond-
ent's unfair labor practices against her.
C. Francisco Cardozo and Lee Martinez
None of the parties has been able to locate either Car-
dozo or Martinez during the entire course of this pro-
ceeding despite reasonable efforts to do so by the Gener-
al Counsel, Respondent Hearst, and the Union. Accord-
ing to the stipulation of the parties, Cardozo last worked
for Hearst February 27, 1976,3 Martinez, on August 14,
1976.
On March 9, 1979, Hearst sent Cardozo a letter offer-
ing him reinstatement to work. The letter was returned,
marked "Addressee Unknown, no forwarding address."
On October 13, 1977, Hearst sent Martinez a letter offer-
ing reinstatement. It received no response to this letter.
No gross pay figures were alleged in the backpay
specification for either Cardozo or Martinez, it being
noted that the General Counsel had been unable to
locate these persons. But sufficient data was developed at
the hearing to compute gross backpay figures for each.
The General Counsel argues that Hearst should be or-
dered to pay those gross amounts to the Regional Direc-
tor for Region 5 to be held in escrow for a reasonable
2 In addition to the references in the preliminary Decision, I have
noted that par. 2(b) of the Board's Order contains this language: "Interim
earnings for an employee who was unlawfully induced to retire early but
desires o return to work pursuant o this Order shall include any payments
received pursuant to the buyout]." (Emphasis supplied.) If the Board had
intended that all of the discriminatees receive backpay, the language em-
phasized would clearly be surplusage.
a In a footnote to Appendix 6 of his brief, the General Counsel sug-
gests this date is erroneous since the buyout was not implemented until
July , 1976. It is unnecessary to pass on this.
time while further efforts are made to locate Cardozo
and Martinez. See, e.g., Semiole Asphalt Refining, Inc.,
225 NLRB 1202 (1976). Hearst responds that this "would
serve no practical purpose . . . because nothing further
can be done to locate the employees," and "it would be
unfair to deprive Respondent of the use of these funds
for several years in the vague hope" that someone may
yet find these employees.
So far as I am aware, the Board has never specifically
passed on this issue of what length of time or what cir-
cumstances justify a holding that a respondent has no
further obligation to a missing discriminatee. However, I
have noted that in Semiole Asphalt, supra, the Board,
some 4 years after the unfair labor practice, ordered
gross backpay for a missing discriminatee (Dunn) held in
escrow for I year while a final effort was made to locate
the employee.
In the present matter I am impressed not only with the
time that has passed, but even more by the fact that none
of the parties has been able to locate these employees
from the beginning and that the General Counsel failed
to allege gross backpay due these men in the specifica-
tion. Thus, this is not a case in which these employees
are known at some time to have exhibited an interest in
this matter or cooperated in its prosecution, but could
not be located for the backpay hearing. In these circum-
stances, I believe that, rather than ordering that Re-
spondent Hearst pay the gross backpay due these men
into an escrow account for a year, it would be more ap-
propriate to retain jurisdiction over this matter for I year
from the date of the order herein with respect to these
two men, with permission to the General Counsel, if he
can locate one or both of them in that time, to move to
reopen this matter with regard to Cardozo or Martinez,
or both of them.
D. Allan Czarnowsky
1. Backpay
(a) Absenteeism
The parties are in disagreement as to what rate of ab-
senteeism should be applied in calculating the gross back-
pay owed to Czarnowsky. Figures were supplied for
work periods from the beginning of 1974 through the
end of 1979. Czarnowsky had a heart attack in Decem-
ber 1975 (he had no prior history of heart attacks) which
caused him to miss the first 6 consecutive months of
1974. Czarnowsky was at work 42 percent of the entire
year of 1974, indicating a loss of 8 percent of worktime
for the last 6 months, after he returned to work that
year. In 1975, Czarnowsky was present at work 92 per-
cent of the time, again showing 8 percent lost time. In
the latter part of 1975, Czarnowsky had an operation
which caused him to lose another 6 consecutive months
from work. As a result, Czarnowsky was at work only 4
percent of the time from the first of January through
July 1976 (the time of the buyout). After the buyout,
during the backpay period, Czarnowsky, in describing
the condition of his health, stated, "I wouldn't say 100
percent, but I was not sick at any time." Just before re-
turning to work for Respondent Hearst, Czarnowsky
1014
THE A. S. ABELL COMPANY
was diagnosed as having high blood pressure. After his
return to work in March 1979 until the end of December
1979, Czarnowsky was present at work 79 percent of the
time. He attributed his absence from work during this
period to his high blood pressure, adding that he had
trouble breathing in humid weather. Czarnowsky also ac-
knowledged that his legs hurt in "bad weather."
The General Counsel asserts that Czarnowsky's rate of
absenteeism should be determined by reference to the
year 1975, the only year in which he had no debilitating
illness, and his absence rate was 8 percent. Hearst argues
that a reasonable procedure would be to average all of
the years from 1974 through 1979 or use Czarnowsky's
attendance record after he returned in 1979. 1 find none
of these contentions very satisfactory. Respondent's main
argument (averaging 1974 through 1979) penalizes Czar-
nowsky heavily for unusual absences for illness and oper-
ations. The General Counsel's proposal does not take
into account any cumulative effect of Czarnowsky's var-
ious illnesses upon his work patterns. A more realistic
procedure would be to disregard the 6 consecutive
months in 1974, when Czarnowsky was out of work re-
covering from his heart attack and also disregard the 6
consecutive months in 1976 when he was out of work re-
covering from an operation on his legs. On this basis,
Czarnowsky had an absence rate of 8 percent in 1974, or
an attendance rate of 92 percent; he had the same in
1975. In 1976, Czarnowsky was out until approximately
July recovering from his operation. In July he was ille-
gally terminated. I would ignore the 4 percent annual at-
tendance figure for 1976, based on the short period he
was at work between these two events. I will thus aver-
age an attendance rate of 92 percent in 1974, 92 percent
in 1975, and 78 percent in 1979. This gives an average
attendance rate of something in excess of 87 percent,
which (87 percent) I believe is a reasonable rate to use
for these purposes.
(b) Interim employment
After being "retired" on or about July 9, 1976, Czar-
nowsky did not seek work during the month of July. In
August he began contacting firms in the printing indus-
try which might have need for the printing skills which
he possessed. He also periodically contacted the business
manager of the Baltimore Typographical Union to ascer-
tain what situations were available, and read newspaper
want ads looking for work requiring his skills. He ap-
pears to have followed this pattern of action during the
entire backpay period, whenever he was not employed.
Czarnowsky had been employed in the printing indus-
try since he was 16 years of age. For most of his adult
working life, the only work he knew was that of a lino-
type operator. However, for some period before going to
work for Hearst, he had worked behind a bar dispensing
beer in two taverns (he referred to this as "Beertend-
ing"). He was not qualified to serve a wide range of
mixed drinks, however, as a bartender.
In the third quarter of 1976, Czarnowsky obtained em-
ployment at a tavern dispensing beer behind the bar.
After a couple of months he was laid off when the
owners no longer had need for him. Czarnowsky testi-
fied that he did not thereafter check help wanted ads in
the paper or look for taverns seeking help to dispense
beer across a bar, because he was concerned that as a
bartender he might become involved in the physical af-
frays that often occur in those situations, and because
"there were not many taverns that are strictly beer tav-
erns that are looking for help." There was no evidence
that during the backpay period there were newspaper
ads, or that there were jobs available in taverns for
which Czarnowsky was qualified.
Czarnowsky obtained employment with Baltimore
Type and Composition Company in the fourth quarter of
1977 and continued with them until that company went
out of business, apparently in the second quarter of 1978.
He next secured employment as a maintenance man at an
apartment house in the first quarter of 1979, apparently
until the time he was reinstated by Respondent Hearst in
March 1979.
Respondent Hearst contends that Czarnowsky should
be penalized for 3 weeks in July 1976, immediately after
he "retired," when he admittedly did not seek work. Re-
spondent also aruges that Czarnowsky's failure to look
for bartending jobs in the second, third, and fourth quar-
ters of 1977, until December 5 (when he was employed
by Baltimore Type), "constitutes a willful loss of earn-
ings" for which he should be penalized for 45 weeks. I
do not agree.
As the Board held in Saginaw Aggregates, Inc., 198
NLRB 598 (1972) (where the discriminatee seems not to
have sought work for 2 weeks after his layoff): "It is
now well settled that an employee discriminatorily [ter-
minated] need not instantly seek new work; rather the
test is whether, on the record as a whole, the employee
has diligently sought employment during the entire back-
pay period."
On the record as a whole, it cannot be said that Czar-
nowsky did not make reasonable and diligent efforts to
find interim employment. Though Respondent asserts
that after a reasonable time Czarnowsky should have
"lowered his sights" and sought other employment, such
as bartending,4 the record does show that Czarnowsky
was willing to accept other employment besides typeset-
ting, when such work was available. As to his reluctance
to work at bartending jobs, I do not believe that, in cir-
cumstances such as these, an employee should be re-
quired to seek employment which he rationally believes
may subject him to physical hazard. In any event, there
is no indication that any such employment was available
during the period involved. I therefore do not find that
Czarnowsky should be penalized as Respondent argues.
(c) Backpay computation
The parties are agreed as to the maximum number of
work shifts and the wage rate per shift applicable to each
quarter in the backpay period. There is no dispute as to
the amount of Czarnowsky's interim earnings in each
4 Respondent Hearst argues. "Since Czarnowsky had experience as a
bartender and in iew of the acknowledged scarcity of printing jobs,
Czarnowsky's refusal to seek non-printing employment during the second
and third quarters of 1977 and the fourth quarter of 1977 until December
5, 1977, constitutes a willful loss of earnings disqualifying him for hack-
pay [for 45 weeksl
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quarter. I have computed the backpay due Czarnowsky
by quarters, as detailed below, by () multiplying the ap-
plicable number of shifts by the applicable shift rate; (2)
multiplying the result thereof by Czarnowsky's attend-
ance rate (87 percent) to find the gross backpay figures;5
and deducting from this quarterly gross backpay figure
the amount of any interim earnings in that quarter plus a
portion of the buyout payment which together with the
amount of the interim earnings will equal to the gross
backpay figure, until the total amount of the buyout is
exhausted.
The General Counsel's suggested method of handling
the quarterly deduction of the buyout is somewhat differ-
ent. He would deduct in each quarter, until the buyout is
exhausted, an amount of the buyout equal to the gross
backpay figure. One result of this computation is that
where the employee had interim earnings in the quarter,
those earnings plus the buyout figure allocated to that
quarter will exceed gross backpay, until the quarter in
which the total buyout is exhausted. The General Coun-
sel states that in such instances, those quarterly excesses
should be used to diminish or wipe out net backpay due
in other quarters in which gross backpay exceeded inter-
im earnings. This method of computation, however
(though it should give the same ultimate result as the
method I have chosen), seems to me to violate the prin-
ciples of F. W. Woolworth Company, 90 NLRB 289
(1950), to the effect that in computing the backpay each
quarter should stand on its own.
Based on the above analyses, Czarnowsky's backpay
has been computed as follows:
Qtr. Shifts
59
65
65
65
65
65
65
65
65
65
53
$58.10
58.10
60.30
60.30
62.10
62.10
64.30
64.30
66.10
66.10
70.16
Rate
$3427.90
3776.50
3919.50
3919.50
4036.50
4036.50
4179.50
4179.50
4296.50
4296.50
3715.30
Interim
Total Attendance EarningsEnmings
.87
.87
.87
.87
.87
.87
.87
.87
.87
.87
.87
Total Net Backpay
$2982.27
3285.56
3409.97
3409.97
3511.76
3511.76
3636.17
3636.17
3737.96
3737.96
3232.31
272
125
0
0
0
280
910
910
0
0
1320
Buyout Net Backpay
S2710.27
3160.56
3409.97
3409.97
2309.93
3231.76
2726.17
2726.17
3737.96
3737.96
1912.31
SO
0
0
0
1202.53
$18,274.86
E. Frederick Cucco
I. Interim employment; health problems
Cucco's last day of work for Hearst prior to being "re-
tired" was August 8, 1976. He immediately sought assist-
ance through the Maryland Unemployment Compensa-
tion office. When this was unsuccessful, Cucco, called
printing establishments in Baltimore. In 1976 and 1977,
Cucco sought work at an automobile dealer, a paint
store, the railroad, a liquor distributor and in the refrig-
eration industry. Cucco applied for work through the
CETA program 6 and another job assistance program that
he referred to as the Manpower Wagon. At various
times during the backpay period, he responded to news-
paper ads. In October and December 1977, he unsuccess-
fully sought work in Pennsylvania.
Cucco's backpay picture is complicated by a pattern of
illness during this period resulting from complications
caused by diabetes. Cucco had suffered from diabetes
5It is noted that Respondent Hearst uses a slightly different computa-
tion to find the gross backpay figure, multiplying the applicable number
of shifts by the attendance factor, and then after rounding off the resul-
tant fractional figure, multiplying that figure by the shift rate. Overall, I
consider that the method chosen above will give more accurate results.
since childhood. It seems not to have interfered much
with his work for Respondent Hearst; his absentee rate
before the buyout was 20 percent, and after his reinstate-
ment, 10 percent. However, between December 1976 and
about mid-February 1977, though continuing to seek
work by responding to newspaper ads by telephone,
Cucco was not feeling well. In late September 1977, at
the invitation of a friend, Cucco drove to Florida to seek
work. He immediately became seriously ill, near coma-
tose with a high sugar level in his blood stream. He flew
back to Baltimore. The entire trip to Florida consumed 4
days. For about 3 weeks thereafter Cucco was in Balti-
more recuperating from his illness. In October 1977, at
the invitation of another friend, with whom he had pre-
viously worked, Cucco traveled to Pennsylvania to look
for work. Though he and his friend sought work for
Cucco, they were unsuccessful. During this period
Cucco continued to feel unwell. Toward the end of the
year, or the beginning of 1978, Cucco returned to Balti-
b Respondent argues that [from June 1977 until the end of July 1977,
Cucco was too ill to qualify for the CETA program." This misconstrues
the record. Cucco sought work through that program and was hired by a
private company. When, in the course of medical examinations, it was
found that he had a high blood sugar level, he was told that he could not
be employed until he got the sugar level down. Cucco then sought other
work.
3Q76
4Q76
1Q77
2Q77
3Q77
4Q77
IQ78
2Q78
3Q78
4Q78
IQ79
1016
THE A. S. ABELL COMPANY
more. On January 13, 1978, he had a bad automobile ac-
cident and was confined to bed for about a month and a
half (apparently to the first part of March 1978).
About the first of June 1978, after medical examina-
tions, Cucco was informed that as a result of his diabetic
condition he was medically disabled from work. He was
not released for work until October 1978. He obtained
employment in October with a firm in the printing indus-
try, but was laid off after 2 weeks through no fault of his
own. He continued to seek work and was employed by
Automatic Data Process on November 7, 1978. In antici-
pation of reinstatement with Hearst, Cucco quit this em-
ployment on January 25, 1979 (somewhat prematurely as
it turned out).
2. Backpay computation
The General Counsel and Respondent Hearst differ
significantly as to the computation of backpay due to
Cucco, based in part on differing interpretations as to
when Cucco was ill and thus unavailable for work, and
with respect to the application of disability payments to
Cucco under provisions of the applicable collective-bar-
gaining agreements (sec. 60 of the 1974-76 contract; sec.
66 of the 1977-79 contract).'
The positions of the parties are discussed immediately
following on a quarterly basis:
Third Quarter 1976-the parties are agreed that by
reason of the allocation of $1,843.92 of the buyout to this
quarter, there is no net backpay due Cucco for this quar-
ter.
Fourth Quarter 1976-In this quarter Respondent
Hearst contends (Exh. F attached to the brief) that
Cucco was disabled from work for 20 shifts-4 weeks-
but would allow disability pay. Hearst does not explain
the basis for penalizing Cucco 20 shifts in this quarter.
The General Counsel contends that Cucco should not be
penalized during this quarter because the record shows
that he was actively seeking work during this quarter
and he does not appear to have declined employment. It
further does not appear that he was under the care of a
doctor at this time. It is the Respondent's burden to
Shifts
61'
Rate
63.10
Total
$3849.10
show that Cucco was removed from the job market
during this period. Though Cucco admits not feeling
well in December, he insists that if he could have found
the work he was seeking, he could have worked. For
these reasons, and because the selection of any specific
penalty would be based entirely upon speculation, I find
that Cucco should not be penalized during this quarter.
By reason of the allocation of $3,073.20 of the buyout to
this quarter, however, the General Counsel claims no net
backpay for this quarter. Respondent Hearst by allocat-
ing a lesser amount, arrives at the same result.
First Quarter 1977-Hearst contends (Exh. F) that
Cucco should be penalized 50 shifts for disability during
this quarter, but apparently would award disability pay
based on 40 shifts. Respondent again does not explain the
basis for its claim. Here again Cucco admits that the in-
disposition he felt in December continued until mid-Feb-
ruary, but that he was seeking work. For the same rea-
sons set forth with respect to the fourth quarter in 1976,
I find that Cucco should not be penalized during this
quarter. By reason of the allocation of $3,187.60 of the
buyout to this quarter, the General Counsel claims no
net backpay for the quarter. Respondent by allocation of
a lesser amount arrives at the same result.
Second Quarter 1977-Hearst claims no disability pen-
alty for this quarter. Both parties claim no net backpay
due this quarter. The General Counsel allots $3,187.60 of
the buyout to the quarter, Respondent, a lesser amount.
Third Quarter 1977-Hearst contends that Cucco was
disabled for this entire quarter and should be awarded
only disability pay. The General Counsel asserts that
Cucco should not be charged with any disability for this
quarter. The facts show that in late September, Cucco
became very ill on a trip to Florida which eventually
lasted 4 days, and could not work. For 3 weeks thereaf-
ter, undoubtedly in October, he was disabled, recuperat-
ing from that onset of illness. The General Counsel with-
out explanation, places this entire disability in the fourth
quarter of 1977. Respondent, on the other hand, does not
explain its claim that Cucco was disabled during this
entire third quarter.8 On this basis Cucco's backpay for
the quarter is computed as set forth below:
Attendance Gross Backpay
"*80 ***$3079.28
Interim
Earnings
0
Buyout
$3079.28
Net Backpay
0
*65 shifts less 4 for the trip to Florida.
"This is the agreed attendance figure. In this situation it probably distorts the result somewhat since it probably reflects absence
for illness and we have already adjusted the number of shifts for illness.
***Disability pay not applicable here since it becomes effective only on the 8th day of illness.
Fourth Quarter 1977-Both Respondent and the Gen- shifts for disability in this quarter. However, based on
eral Counsel agree that Cucco should be penalized five the analysis set forth above, I find that Cucco was dis-
7 In brief, those contracts provide that a full-time regular employee, ac-
tively employed, with at least months' service who is under the care of
a doctor for a period of disability, shall receive benefits of 55 percent of
his basic weekly straight time wage up to a maximum of $125 per week
($150 per week after July 6. 1978) beginning on the 8th day of disability,
for a total of 26 weeks (ith certain qualifications)
' The fact that during this quarter he was rejected by an employer
who had a higher medical standard than he could meet in and of itself
does not disqualify Cucco, as Respondent seems to claim (See fn. 6,
above.)
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abled for 3 weeks (15 shifts) in October while recuperat- ing from the illness incurred in Florida. On this basis,
backpay for this quarter would be as follows:
Rate otal ] Attend-
ance
Gross Dis-
Back- ability Grota
pay Pay
50* 63.10 $3155 **.80 $2,2524 $300 $2824 $628.84 $2,195.16
*65 shifts less 15
**As noted above this probably distorts the result somewhat.
First Quarter 1978-Both the General Counsel and Re-
spondent agree that Cucco should be penalized 35 shifts
in this quarter, as computed by the Region's compliance
Shiftsj
30
Rate
65.30
botal
$1959
Second Quarter 1978-The General Counsel and Re-
spondent Hearst agree that Cucco is entitled to $875 net
backpay for this quarter, from disability payments.
Third Quarter 1978-The General Counsel and Re-
spondent Hearst agree that Cucco is entitled to $1,850
net backpay for this quarter, from disability payments.
Fourth Quarter 1978-The General Counsel and Re-
spondent Hearst agreed that Cucco is entitled to
$2,115.58 net backpay for this quarter.
First Quarter 1979-The General Counsel and Re-
spondent agreed that Cucco is entitled to $414.26 net
backpay for this quarter.
Summary and total. Based upon the above, no net
quarterly backpay is due for the third quarter 1976
through the third quarter 1977. Net quarterly backpay
for the remaining quarters are as follows:
4thQ77
IstQ78
2ndQ78
3rdQ78
4thQ78
I stQ79
Total Net Backpay
$2,195.16
1,567.20
875.00
1,850.00
2,115.58
414.26
$9,017.20
3. Medical expenses
The backpay specification in this matter alleges medi-
cal expenses of $1,222.45 due Cucco, apparently incurred
in the fourth quarter of 1977. This is not denied. I find
that Cucco is entitled to $1,222.45 in medical expenses.
F. Vacation Benefits
The General Counsel contends that Respondent is ob-
ligated to Cucco and Czarnowsky and its other employ-
officer. I accept the agreement. On this basis, backpay
for this quarter is computed as follows:
InterimAttendance Gross Backpay Earings Net Backpay
Earnings
.80 $1,567.20 0 $1,567.20
ees involved in this matter for certain vacation benefits,
stated in the backpay specification to be "4 (four) weeks'
vacation with 20 (twenty) days' pay for the year 1979
. . . which represents the vacation credit each employee
would have earned during the backpay period." (Par.
B2) However, the General Counsel contends here that
Czarnowsky is entitled to 17 and a fraction vacation days
at most, and that Cucco at most is entitled to 7-3/4 vaca-
tion days.
According to section 56 of the applicable bargaining
agreement, as explained by the parties (see the prelimi-
nary Decision), employees with 4 or more years of serv-
ice, such as Czarnowsky and Cucco, who are paid for at
least 215 "fully paid shifts,"9 from March I through the
last day of the following February (the vacation credit
year) are entitled to 4 weeks' vacation credit with 20
days' pay. Employees who have earned less than 215
fully paid shifts during the vacation credit year are enti-
tled to I day's vacation for each 12 fully paid shifts. The
vacation entitlement is taken in the 12-month period fol-
lowing the vacation credit year.
The backpay specification thus claims that Czar-
nowsky and Cucco, and the other employees involved,
were entitled to vacation benefits which were earned
from March 1, 1978, through February 28, 1979, to be
used in the following 12 months, but which they did not
receive.
It is therefore first necessary to determine how many
fully paid shifts should be credited to each of these em-
ployees during the period from March 1, 1978, through
The parties seemingly agreed that the bargaining agreements require
Ihe employees to work "fully paid shifts" to qualify for vacations and
pension contributions. In the preliminary Decision, it was held that the
lunumber of "fully paid shifls" in the backpay period are the number of
shifts available to be worked reduced by the individual's absentee factor.
Shifts
Net
Backpay
1(18
THE A. S. ABELL COMPANY
February 28, 1979. The parties are agreed that there are
260 total available shifts in the work year. As held in the
preliminary Decision, this figure should be reduced by
the employee's absentee factor. In Czarnowsky's case
this gives 226 fully paid shifts. He is, therefore, entitled
to vacation credits based on 4 weeks of vacation with 20
days of pay.
In Cucco's case, the problem is again complicated by
his disabilities during the backpay period. Those shifts
when he was ill during the vacation credit year must be
deducted from the shifts available. The analysis is as fol-
lows: In March 1978, Cucco had available 22 shifts. His
attendance figure for the quarter was 80 percent. He is
therefore credited with 17.6 shifts for March 1978. The
General Counsel and Respondent seemingly agreed that
Cucco is not entitled to any credit for shifts in the
second and third quarters of 1978. His attendance figure
for this quarter is 90 percent. He is therefore credited
with 58.5 shifts for this quarter. Both Respondent and
the General Counsel assert that Cucco had 19 shifts
available to him in the first quarter 1979 (because he quit
interim employment in January). The applicable attend-
ance factor is 90 percent, so Cucco is credited with 17.1
shifts in the first quarter of 1979. The total number of
fully paid shifts for the vacation credit year was thus
93.2. Disregarding the fraction, Cucco is entitled to a va-
cation credit of 7.75 days with pay accumulated during
the vacation credit year.
As previously noted, when the parties during the hear-
ing agreed upon the backpay and pension benefits to
which employees Martin, Randolph, Everhart, Wood-
ruff, Burrows, and Oberg were entitled, they reserved
the issue of what vacation benefits, if any, were due to
these six employees. Respondent Hearst, in its brief, as-
serts that the vacation credits of these six employees
"cannot be calculated" because "no evidence was intro-
duced at the hearing regarding the number of fully paid
shifts for each of these six." The General Counsel notes
that the issue was reserved, but does not thereafter dis-
cuss it.
The Board found that each of these six employees was
discriminatorily terminated in 1976. The record indicates
that each of them had been employed more than 4 years
at the time. In the absence of evidence to the contrary I
infer that Respondent did not offer them reinstatement
until early 1979, after the decision of the court of ap-
peals.'" In these circumstances, the presumption would
be that these employees are entitled to some amount of
vacation benefits, on the same basis as Czarnowsky and
Cucco. However, as Respondent Hearst points out, in
the absence of some evidence of the absentee rate of
each of these employees, it is impossible to calculate the
entitlement of each of them to vacation benefits. The
burden of establishing the discriminatee's right to em-
ployment benefits is on the General Counsel. In the cir-
cumstances, I see no alternative but to recommend dis-
missal of the General Counsel's claim for vacation bene-
fits for these six employees.
'O Czarnowsky, Cucco, and Cardozo were sent letters in March 1979
adivising that they could be reinstated I am aware that Respondent sent
letters, of a somewhat different kind, in 1977 to Righter and Martinez ad-
vising them to the same effect. No reason is given for these early letters.
There remains, apparently, one further problem with
respect to the vacation benefits due Czarnowsky and
Cucco. These benefits have not been converted into
dollar amounts by the backpay specification, or by the
General Counsel or the Respondent. The General Coun-
sel refers to it as an "additional and distinct item of com-
pensation owed the employees." So far as I am aware
neither the bargaining agreement, nor the record, speci-
fies the rate or rates of pay to be used in computing va-
cation pay which has been earned but not taken. If the
parties are otherwise unable to agree on the rate, I
would apply the rate in effect at the date of the employ-
ee's return to work which is applicable to the shift that
the discriminatee was working when terminated.
G. Personal Leave Days
The backpay specification alleges that the employees
involved in the buyout who are reinstated are entitled to
"[plaid personal leave" in the amount of the individual's
straight time rate of pay for three shifts. The applicable
contract provides that employees for 3 years or more are
entitled to such benefit in an annual period beginning
July 1 (see G.C. Exh. 3, sec. 69(a), et seq.). Apparently
by analogy to the vacation benefits, the Regional compli-
ance officer testified that the employees were entitled to
receive 3 days of leave with pay in 1979, after their
return for work, for leave earned in 1978. The analogy is
not accurate, however. As I read the contract (section
69(d)), the leave "must be taken in the year in which en-
titlement occurs or be cancelled. " " It has previously
been found that the employees involved are entitled to
be paid for all the time they would have been available
for work during the backpay period. If it were also to be
found that these employees are entitled to three shifts'
pay in addition, for personal leave they could not take
during the year 1978, these employees would then re-
ceive a benefit which they could not have received if
they had been working.
For this reason I shall recommend dismissal of this al-
legation of the backpay specification.
H. Pension Contributions
The General Counsel contends that Respondent Hearst
is obligated, pursuant to the applicable bargaining agree-
ments, to make contributions to the ITU Pension fund of
$2.4012 per "fully paid shift" that Czarnowsky and Cucco
would have worked during the backpay period. As has
been noted, it was held in the preliminary Decision that
the number of "fully paid shifts" in the backpay period
are the number of shifts available to be worked reduced
by the individual's absentee factor.
The computation of pension contributions owed on
behalf of Czarnowsky is relatively straightforward. The
parties are agreed that the number of shifts available for
Czarnowsky to work during the backpay period was 697
(see Czarnowsky's backpay computation above). Czar-
" Compare the previous bargaining agreement (G.C. Exh. 2, sec.
72(b)) which provided for payment to the employee for unused leave.
' Respondent Hearst and the General Counsel stipulated to this rate of
contribution.
1019
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nowsky's attendance percentage, as previously found, is
87 percent. Thus the number of fully paid shifts available
during his backpay period would be 606.39. Disregarding
the fraction as less than a fully paid shift, the pension
contribution on behalf of Czarnowsky would be
$1,454.40 (606 shifts times $2.40).
The computation of pension contributions on behalf of
Cucco is complicated by his pattern of disability during
the backpay period, as has been noted. Both Hearst and
the General Counsel in their computations reduce
Cucco's available shifts by his periods of disability as
well as by an agreed absentee factor, although they do
not agree on the periods of disability to be deducted.
Based on my analysis of the evidence (see discussions of
Cucco's backpay and vacation benefits above) and the
parties' briefs, I find that pension contributions for Cucco
should be computed as follows: beginning with the third
quarter of 1976 through the first quarter of 1978, Cucco
had 375 available shifts (39 in the third quarter of 1976;
65 each in the fourth quarter of 1976, and in the first and
second quarters of 1977; 61 shifts in the third quarter of
1977; 50 shifts in the fourth quarter of 1977; and 30 shifts
in the first quarter of 1978), which are reduced by an at-
tendance percentage of 80 percent, giving 300 fully paid
shifts through the first quarter of 1978. Cucco further
had 65 available shifts in the fourth quarter of 1978 and
19 shifts in the first quarter of 1979 for a total of 84 shifts
reduced by an attendance factor of 90 percent to give
75.6 fully paid shifts. Disregarding the fraction, Cucco
thus had 375 fully paid shifts during the backpay period.
Respondent Hearst thus is obligated to contribute $900
to the pension fund on behalf of Cucco.
Ill. ISSUES INVOLVING RESPONDENT ABELL
A. Uncontested Employees
The backpay specification lists 34 employees of Re-
spondent Abell as participating in the buyout. As to
seven of these, Diann Davis, Edward H. Davis, Tito
Miraflor, John Pearlman, Ivory W. Pulley, James R.
Taylor, and Douglas Smith, the General Counsel agrees
that Respondent Abell is in compliance with the Board's
Order.
B. Employees Who Refused Reinstatement
The record shows that the following 12 Abell employ-
ees refused reinstatement: Leonard Bankert, Roy D.
Canapp, Glenda Fogle, Fred J. Hammond, Bernie Lit,
Jr., Joseph T. McComas, Richard Nelson, William L.
Price, Leroy Stirewalt, Geraldine Thornton, Harris A.
Welcom, and Thomas Wiggins. Respondent also lists
Paul F. Moran and Delores T. Peacock as having re-
fused reinstatement.'3 Since they are not mentioned in
the General Counsel's brief I assume for the purpose of
this decision that they refused reinstatement. Respond-
ent's brief also lists R. A. Troestrum in this group. He
will be treated separately hereunder.
For reasons set forth in the preliminary Decision, I
find that employees who refused reinstatement are not
" Respondent also lists four names not mentioned in the backpay speci-
fication. I have disregarded them.
entitled to backpay. The General Counsel does not claim
that they are entitled to fringe benefits.
C. Employees Desiring Reinstatement But Unable To
Make Restitution
This issue is somewhat more complicated than I appre-
ciated at the time of the preliminary Decision and I have
reconsidered it in the light of the more extensive discus-
sion in the parties' brief. Two employees involved in this
matter Richard Eure and Gertrude Parker were reinstat-
ed pending computation by the Regional compliance of-
ficer as to whether they owed Respondent Abell restitu-
tion of the excess of the buyout amount over net back-
pay owed to them. Eure and Parker were unable to pay
the calculated excess amount, and though each made
offers to repay the amount on an installment basis, Re-
spondent Abell rejected those offers, insisting on full re-
payment before permitting Eure and Parker to return to
work. Respondent has placed each on unpaid leave of
absence pending full repayment of the amount due. One
employee, Faye Flythe, has paid the full amount calcu-
lated by the Compliance Officer and has been reinstated.
Another employee, Jack Wetherson has been reinstated,
apparently after reimbursing Respondent. Respondent
states that it reserves the right to increase the amounts
which it seeks as due from each of these or from other
employees as a result of the findings made in this case."
The General Counsel argues that although the Board's
Order requires repayment of the amount of the buyouts
which exceeds the employee's backpay "as a condition of
his reinstatement," there is nothing in that Order "that
requires full, up-front reimbursement of the excess." The
General Counsel contends that Respondent Abell should
"be directed to . . . offer Parker and Eure the opportu-
nity to return to their former positions. If such offer is
accepted, Respondent and the employees should be di-
rected to enter into mutually agreeable arrangements for
the repayment .... "Respondent, of course, does not
agree.
I agree with the General Counsel that there is nothing
in the Board's Order, or in the court's opinion that speci-
fies when or how reimbursement of the excess buyout is
to be made. It seems to me, however, that a reasonable
interpretation of the Order would be to require full reim-
bursement in advance of reinstatement in cases where
immediate lump-sum payments of the buyout were made
in the first instance, but to require only periodic pay-
ments in the same ratio as Respondent made periodic
payments of the buyout to the employees in the first in-
stance. While I believe that the resolution of the problem
which the General Counsel desires is sound and should
be encouraged, since it appears that Parker and Eure ac-
cepted lump-sum payments of the buyout, I do not feel
justified in recommending the Order which the General
Counsel suggests for Parker and Eure.
However, since these employees have demonstrated a
"desire" to return to work within the meaning of the
Board's Order, they are clearly entitled to credit for
'4 Respondent Abell contends that it reinstated Leroy James without
requiring reimbursement in advance and has been left without reasonable
means of obtaining repayment when James was discharged thereafter.
THE A. S. ABELL COMPANY
backpay (which in these cases is wiped out by the
buyout) and to fringe benefits on the same basis as other
employees who accepted Respondent's offer of reinstate-
ment.
D. R. A. Troestrum
The parties are agreed that they have been unable to
locate Troestrum since the buyout. Respondent Abell
sent him a letter in January 1979, which was returned,
marked "No forwarding address." Since Troestrum's sit-
uation is the same as that of Hearst employees Martinez
and Cardoza, considered previously, I will recommend
the same remedy as to Troestrum.
E. Problems in Backpay Computation
It is, of course, unnecessary under the findings made
above to compute backpay or benefits for the 14 employ-
ees who refused reinstatement, or the 7 as to whom Re-
spondent is in compliance or for Troestrum. Backpay
and benefits will be computed for Parker, Eure, Flythe,
James and for the remaining 8 employees: Jeffrey D.
Buckmeier, Deborah V. Nash, W. James Neeld, Aldora
M. Singleton, William E. Staubs, John L. Strosnider,
Joseph P. Trainor, and Jack Wetherson.
In computing backpay, however, there continues to be
a dispute over the proper absentee factor to be used to
adjust gross backpay as discussed below.
1. The absenteeism issue
The parties are agreed that each discrimatee's gross
backpay for the backpay period should be adjusted to re-
flect that employee's anticipated absenteesim. Respond-
ent Abell and the General Counsel are also agreed that
this absentee percentage may be determined by reference
to the employees' average number of absences in the
years 1974-75 and 1975-76 (these averages, computed by
Respondent, are listed in Charging Party Exh. 2). The
parties are in disagreement, however, as to whether 25
shifts (20 vacation shifts, 3 for personal leave and 2 hol-
idays) 5 should be excluded from the 260 maximum
number of work shifts in a year in computing the absen-
tee percentage. Though they are paid for these 25 shifts,
the employees are prohibited from working on those
days. As discussed in the preliminary Decision, I agreed
with Respondent Abell that the 25 shifts should be ex-
cluded as they obviously are not part of the employees'
work year, but in fact constitute benefits to which the
employees are entitled in the form of time off with pay.
However, in coming to this conclusion, I attached two
conditions, (I) that these 25 shifts not be included in
computing the gross backpay figure diminished by the
absentee factor, and (2) that the value of these 25 shifts
be added to the gross backpay figure after it has been di-
minished by the absentee factor. In that way, the 25
shifts would be treated as additional benefits, and not
part of the actual work year for these purposes. These 25
shifts are hereinafter referred to as "benefit shifts."
The General Counsel objects to the decision that the
absentee percentage be based on a work year of 235
'' It is noted that this number was incorrectly stated in the preliminary
Decision to be 35.
work shifts rather than 260. Respondent Abell has used
absentee ratios based on a 235-shift work year in making
its computations, but has failed to treat the 25 extra bene-
fit shifts separately for the purpose of backpay computa-
tions as I held. A few rough calculations have convinced
me that this oversight can make a significant difference
in the result. Since it is obviously impossible for me to
determine when each employee would have taken
his/her benefit shifts each year, and at what rate of pay
(the shift rate changes twice a year), I have adopted the
following formula: I have allotted the 25 days each year
among the 4 quarters as equally as possible, and have al-
lotted proportionate amounts to the quarters at the be-
ginning and end of the backpay period where these are
not full quarters. Thus I will assume for the purposes of
this Decision that the employee was given 6 days off
with pay in the first, second, and third quarters of the
year and 7 days off in the fourth quarter of that year.
These days are not to be included in determining the
backpay amount which is diminished by the appropriate
absentee factor, but these days off multiplied by the shift
rate for that quarter shall be added to that figure after it
has been diminished by the absentee factor, to give the
gross backpay figure for the employee involved. I am
well aware that it could be argued that in actual prac-
tice, the 25 benefit shifts would not be distributed in this
fashion. However, on the state of this record, I find that
this formula is required to reasonably compute backpay
on the basis of the absentee factor sought by Respondent
with which I have agreed as set forth in the preliminary
Decision.
2. Payments in lieu of Blue Cross coverage as part
of the buyout
Some of the employees, but not all, who accepted the
buyout also accepted Respondent's offer of $800 in lieu
of a year's Blue Cross coverage. Respondent Abell con-
tends that for the employees who accepted the $800 this
amount should be included in the buyout amount. The
Regional Compliance Officer did not include this $800 in
the buyout, essentially on the basis that these employees
were entitled to the year's Blue Cross coverage, quite
apart from the buyout, and when they chose the $800
they only received compensation for a benefit to which
they were otherwise entitled, and, conversely, relieved
Respondent of an obligation. t
Respondent, however, contends that this $800, which
was given to some employees at the same time as the
buyout, is to be returned under the terms of the Board's
Decision and Order in this case, 243 NLRB 171, which
states: "Interim earnings for an employee who was un-
lawfully induced to retire early but who desires to return
to work pursuant to this Order shall include any pay-
ments received pursuant to the early retirement plan."
(Emphasis supplied.) Upon consideration of the entire
proceeding in this matter, it is clear to me that the $800
payment in lieu of Blue Cross coverage was not a pay-
16 At the same time, Respondent also gave the employees a check for
accrued vacation earned but which they were unable to take The com-
pliance officer deducted that amount, not because it was part of the
buyout, but in order to avoid duplicate payment to the employees.
1021
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment made pursuant to the early retirement plan, nor did
the court or the Board intend that it be returned. The
return of the buyout was required to prevent those em-
ployees who wished to cancel their arrangement with
Respondent from becoming unjustly enriched. This is not
so with respect to the payment to the employees for
which they gave up their right to Blue Cross coverage. I
therefore find that the $800 payment for this purpose
should not be deducted from gross backpay.
F. Individual Backpay Computations
1. Jeffrey D. Buckmeier
Buckmeier received $15,000 in a lump sum for his
buyout. He also received $1,605.03 for unused vacation. 17
In the following table computing Buckmeier's backpay,
the parties are agreed on the total number of shifts avail-
able to be worked, the wage rates per shift, the amounts
of interim earnings, and the penalties assessed against
Buckmeier for not diligently seeking, or for terminating
interim employment. In this table and in the ones set
forth hereinafter for other employees, the backpay calcu-
lation is as follows: The first column identifies the quar-
ters and years for the backpay period. The second
column lists the number of benefit shifts attributable to
that quarter, as previously discussed (6 shifts in the first,
second, and third quarters in each year, 7 shifts in the
fourth quarter, and a proportionate amount for the first
and last quarters of the backpay period). The third
column sets forth the amount of shifts available for work
that quarter (the maximum number less the number of
benefit shifts). The fourth column is the wage rate,
which is multiplied by the number of shifts in the third
column. The total of this computation is multiplied by
the attendance percentage of the employee involved (as
previously discussed, Respondent's figures for this are
accepted) set forth in the fifth column. The result of this
calculation is set forth in column 6 as a subtotal. The
number of shifts in column 2 (the benefit shifts) is multi-
plied by the wage rate to obtain the value of the benefit
shifts allocated to that quarter, which is set forth in
column 7,18 and when added to the subtotal in column 6
comprises gross backpay. From this, in each quarter
there has been deducted the employee's interim earnings
for that quarter and a portion of the buyout sum which
together equal the gross backpay (to the point that the
buyout sum for the employee is exhausted).
JEFFREY D. BUCKMEIER - Buyout $17,405.03
Qtrs . Benefit Reg. Wage Attendance Sub Total
Shifts Shifts Rate
4 41 58.10
7 58 58.10
6 59 60.30
6 59 60.30
6 53 62.10
7 0 62.10
6 0 64.30
6 12 64.30
6 59 66.10
7 58 66.10
2 24 70.10
.915
.915
.915
.915
.915
0
0
.915
.915
.915
.915
$2179.62
3083.37
3255.30
3255.30
3011.54
0
0
706.01
3568.41
3507.93
1539.40
Value
Benefit
Shifts
$232.40
406.70
361.80
361.80
372.60
434.70
385.80
385.80
396.60
462.70
Gross Interim
Backpay Earnings
$2412.02
3490.07
3617.10
3617.10
3384.14
434.70
385.80
1091.81
3965.01
3970.63
48.00
1854.00
696.00
388.00
1526.00
0
0
404.00
1367.00
2350.00
Net
Buyout BackpayBckpy
$2364.02
1636.07
2921.10
3229.10
1858.14
434.70
385.80
687.81
2598.01
489.80
140.20 1679.60 188.00
Total Net backpay due
0
0
0
0
0
0
0
0
0
1130.83
Pension Contributions. The parties are agreed that Re-
spondent Abell is obligated to contribute $2.20 for each
fully paid shift (each shift in the quarter reduced by the
appropriate attendance percentage). The parties are
agreed that for the purpose of pension contributions,
Buckmeier had 473 shifts in the backpay period. The at-
tendance percentage in his case is .915. This would give
432.8 shifts. Disregarding the fraction as less than a fully
'This is the sum asserted by the Cieneral Coulscel in his computations
attached to his brief. Though Respondcnt' brief asserts $1.665.03 for
unused vacation. this is obviously a typographical error, iasmuchl as Re-
spolidetu states that on the date of his termination. uckmeier received
paid shift, this gives $950.40 as the amount of pension
contribution to be made on behalf of Buckmeier.
Vacation benefits. Employee vacation benefits are also
computed on the basis of fully paid shifts, as has been
noted. To recapitulate: employees with the seniority here
involved are entitled to 20 shifts off with pay if they
work 215 fully paid shifts in a 12-month period from
March 1 through the last of the following February.
$17.405.03, which included $15,5(X) and $800 cash payment in lieu of
medical insurance coverage. as well as the sum for unused vacation.
"' The value of the employee's benefit days for the quarter has been
included in column 7 anld as gross hackpay for the quarter even in the
quarters in which the employee was otherwise disqualified, on the basis
that the employee is entitled to these days with pay, even when he does
not work.
3Q76
4Q76
IQ77
2Q77
3Q77
4Q77
1Q78
2Q78
3Q78
4Q78
1Q79 0 1491.60
$2,622.43
I )1022
THE A. S. ABELL COMPANY
Those who work less than 215 fully paid shifts receive I
day of paid vacation for each 12 paid shifts worked
during that period.
The parties are agreed that from March 1, 1978,
through February 28, 1979 (the vacation credit year), the
maximum number of shifts Buckmeier might have
worked was 174. This figure adjusted by an attendance
ratio of .915 gives 159 fully paid shifts (disregarding the
fraction). This is less than 215 shifts, so 159 shifts divided
by 12 entitles Buckmeier to 13 days of vacation pay.
2. Richard C. Eure
The backpay computation for Eure is as follows:
RICHARD C. EURE - Buyout $16,481.55
Value
Wage Attend- Sub Total Benefit
Rate ance Shifts
Gross Interim
Backpay Earnings
Net
Buyout Back-
pay
6 54 58.10
7 58 58.10
6 59 60.30
6 59 60.30
6 59 62.10
7 58 62.10
6 59 64.30
6 59 64.30
6 59 66.10
7 58 66.10
5 45 70.10
.843 $2644.83
.843 2840.74
.843 2999.14
.843 2999.14
.843 3088.67
.843 3036.32
.843 3198.09
.843 3198.09
.843 3287.62
.843 3231.89
.843 2659.24
$348.60
406.70
361.80
361.80
372.60
434.70
385.80
385.80
396.60
462.70
350.50
$2993.43
3247.44
3360.94
3360.94
3461.27
3471.02
3583.89
3583.89
3684.22
3694.59
*3059.74
0 2993.43 0
796.00
1990.40
2196.04
2629.60
2169.60
3115.54
3469.18
3604.38
3604.38
2755.86
Total Buyout allocated
Excess buyout over gross backpay and interim earnings
'Includes $50 medical expenses
Pension contributions. The parties are agreed that for
the purpose of computing pension contributions owed on
behalf of Eure during the backpay period he had a maxi-
mum of 695 shifts subject to adjustment for absenteeism.
His attendance percentage was .843. This gives 585.9
shifts. The fractional shift is to be disregarded. The
agreed contribution per fully paid shift is $2.20. The
amount of pension contribution to be made on behalf of
Eure is $1,287.
Vacation benefits. From March 1, 1978, through Febru-
ary 28, 1979 (the vacation credit year), the maximum
number of shifts for computation of vacation benefits
was 261 shifts. His attendance factor was .843, giving 220
fully paid shifts. Since this is more than 215 shifts, Eure
is entitled to 20 vacation days with pay.
Respondent argues that Eure, as well as Flythe,
Parker, Wetherson and James, is not entitled to any
benefits under the Board's Order since, though he de-
sired reinstatement, he was unable to repay the buyout
and thus is not entitled to reinstatement. I have dealt
with this contention in an earlier section of this Decision.
Reg.
Shifts
2451.44
1370.54
1164.90
831.67
1301.42
468.35
114.71
79.84
90.21
303.88
0
0
0
0
0
0
0
0
0
0
$11,170.391
5,311.16
3. Fay C. Flythe
Flythe terminated on June 28, 1976. The compliance
officer therefore credited her with two shifts in the
second quarter of 1976. Respondent's witness Banach tes-
tified that these 2 days were off days and should not be
in the computation. The General Counsel notes that no
supporting detail was offered and contends that any
doubt should be resolved against Respondent. While
more detail would be preferable, I see no reason to disre-
gard Banach's testimony which is not attacked on the
record. The parties are in disagreement as to Flythe's in-
terim earnings in the third quarter of 1977. This appar-
ently results from an adjustment Respondent made to
conform with tax return totals supplied by Flythe. I have
therefore accepted Respondent's figure in this instance.
FAYE C. FLYTHE - Buyout $16,501.33
Value
Wage Attend-Wage Attend Sub Total BenefitRate oane Shifts
6 59 58.10
7 58 58.10
6 59 60.30
6 59 60.30
6 59 62.10
7 58 62.10
6 59 64.30
6 59 64.30
6 59 66.10
7 58 66.10
.889
.889
.889
.889
.889
.889
.889
889
.889
889
3047.40
2995.75
3162.80
3162.80
3257.20
3202.00
3372.60
3372.60
3467.01
3408.25
348.60
406.70
361.80
361.80
372.60
434.70
385.80
385.80
396.60
462.70
Gross Interim
Backpay Earnings
3396.00
3402.45
3524.60
3524.60
3629.80
3636.70
3758.40
3758.40
3863.61
3870.95
2,191.36
2,492.26
2,609.77
2,599.61
2,655.16
2,884.86
2,636.67
2,762.44
2,819.26
2,839.94
Net
Buyout Back-
pay
1204.64
910.19
914.83
924.99
974.64
751.84
1121.73
995.96
1044.35
1031.01
0
0
0
0
0
0
0
0
0
0
Qtrs.
Bene- R
fit Shifts
Shift s
3Q76
4Q76
IQ77
2Q77
3Q77
4Q77
IQ78
2Q78
3Q78
4Q78
IQ79
Bene-
fit
Shfts
QIrs.
3Q76
4Q76
IQ77
2Q77
3Q77
4Q77
IQ78
2Q78
3Q78
4Q78
1023
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gross Interim
Backpay Earnings
5 45 70.10 .889 2804.35 350.50 3154.85 2,291.37
Total buyout allocated
Excess of buy-out over gross backpay and earnings
Pension contributions. Flythe's maximum shifts for com-
putation of pension contributions are 700; adjusted by an
attendance factor of .889, she has 622 fully paid shifts in
the backpay period. At $2.20 per shift, Respondent owes
$1,368.40 in pension contributions on Flythe's behalf.
Vacation benefits. Flythe's maximum number of shifts
during the vacation credit year for computation of vaca-
tion benefits is 261; adjusted by .889, Flythe has 232 fully
paid shifts during the vacation credit year. Since this ex-
ceeds 215 shifts, Flythe is entitled to 20 days' vacation
with pay.
4. Leroy H. James
From the time James terminated from Respondent's
employ in June 1977 until early in the year 1978, James
was occupied with a printing business he and three asso-
ciates sought to establish in a small community in Penn-
sylvania. James invested his $15,000 buyout money in
this project. The business made no profit and, at the end
of 1977, it became necessary to liquidate the business.
From June until James left Pennsylvania, apparently in
February 1978, his basic living expenses and those of his
associates were taken care of by the business. All of
them lived in the same house and apparently ate togeth-
er. Gasoline used in their personal automobile on behalf
of the business was paid by the business. When the busi-
ness was liquidated, James received $3,000 as his share,
after creditors were paid. Respondent contends that
James should be disqualified for this entire period be-
cause he produced no records, and that the $3,000 which
he received should be considered interim earnings. How-
ever, James did explain why he did not have the business
records and gave the name of the business attorney as a
source of information. It is well established that self-em-
ployment constitutes an acceptable method of interim
employment during the backpay period. It is not re-
quired that the enterprise be successful. The $3,000
which James received as his share of the defunct enter-
prise was clearly distribution of capital not income.
There remains the problem of the living expenses
James received from the business during this period,
which may be considered income. The General Counsel
argues, rightly, that the burden was on Respondent to
show the value of this income. It has not done so. Nev-
ertheless, I do not wish to ignore the issue on that basis.
Net
Buyout Back-
pay
863.48 0
$10,737.66
$5,763.67
Based on the meager information available, and consider-
ing the communal nature of the living arrangements of
the business associates in Pennsylvania, it seems to me
that the value of James' share of these arrangements
cannot have been less than $20 a week, or a minimum of
$260 a quarter, and I so find.
Upon his return to Baltimore from Pennsylvania,
James unsuccessfully sought work until July 1977. From
July until September 1977, James was in Mississippi
taking care of a dying relative. The General Counsel
concedes that James should be disqualified for 10 weeks
in the third quarter 1977, apparently taking the position
that in the last part of that quarter James returned to
Baltimore and was actively seeking work. There is evi-
dence to support that position. Respondent argues that
he should be disqualified for the entire quarter. Inasmuch
as there is written evidence that James was back in Balti-
more seeking work by September 7, 1977, 1 find that
James should be disqualified for only 10 weeks in that
quarter.
Respondent also contends that $120 which James re-
ceived for working a catered affair while in Mississippi,
and $800 he won at the race track on a trip back to Bal-
timore during his sojourn in Mississippi should be treated
as interim earnings during that period. Assuming that
race track winnings may be treated as interim earnings-
which I do not decide-both of these receipts occurred
during the period in which James was disqualified from
gross backpay and I find it not reasonable to charge him
with interim earnings during such a period.
From October 1977 through June 1978 the compliance
officer assessed a 50-percent penalty against James, and
from July 1978 until the end of the backpay period a 75-
percent penalty for less than diligent search for work.
Respondent argues, more broadly, that James should be
disqualified from any backpay during the entire backpay
period. I cannot agree with that position. I accept the
findings of the compliance officer. In the following table
I have reduced James' gross backpay by 50 percent in
the fourth quarter of 1977 and the first and second quar-
ter of 1978, and have reduced gross backpay 75 percent
in the third and fourth quarters of 1978 and the first
quarter 1979.
LEROY H. JAMES - Buyout $16,299.59
ValueAttend-Attend Sub Total Benefitance Shift
Shift
Gross Interim
Backpay Earnings
Net
Buyout Back-
pay
2 18 56.30 .636 644.52
6 59 58.10 .636 2180.14
7 58 58.10 .636 2143.19
Qtrs.
IQ79
Bene-
fit Reg.
Shfis Shifts
Value
Wage Attend- Sub Total Benefit
Rate ance Shifts
Qtrs.
Bene-
fit
Shifts
2Q76
3Q76
4Q76
Reg.
Shift
Wage
Rate
112.60
348.60
406.70
757.12
2528.74
2549.89
80.00
260.00
260.00
677.12
2268.74
2289.89
0
0
0
1024
THE A. S. ABELL COMPANY
ValueWage AttendVae A e Sub Total BenefitRate ance Shift
Gross Interim
Backpay Earnings
Net
Buyout Back-
pay
IQ77 6 59 60.30 .636 2262.70 361.80 2624.50 *100.00 2524.50 0
2Q77 6 59 60.30 .636 2262.70 361.80 2624.50 0 2624.50 0
3Q77 1 14 62.10 .636 552.94 62.10 615.04 0 615.04 0
4Q77 7 58 62.10 .636 2290.74 434.70 1362.72 0 1362.72 0
IQ78 6 59 64.30 .636 2412.79 385.80 1399.30 0 1399.30 0
2Q78 6 59 64.30 .636 2412.79 385.80 1399.30 0 1399.30 0
3Q78 6 59 66.10 .636 2480.34 396.60 719.24 0 719.24 0
4Q78 7 58 66.10 .636 2438.30 462.70 725.25 0 419.24 306.01
IQ79 5 45 70.10 .636 2006.26 350.26 589.19 0 589.19
Net backpay due $895.20
*James clearly returned to Baltimore by February 10, 1977. I have charged him with 5 weeks at $20 per week to that time.
Pension contributions. In computing the maximum shifts
in the backpay period for James, I count only 97.5 shifts
for the fourth quarter of 1977 and the first and second
quarters of 1978 together (50 percent of 197 shifts); and
count 45 shifts for the third and fourth quarter 1977 and
the first quarter of 1979 together (25 percent of 180
shifts). On the basis of 437.5 maximum shifts during the
backpay period, adjusted by an attendance rate of .636,
James has 278 fully paid shifts for the purpose of compu-
tation of pension contributions. At $2.20 per shift, Re-
spondent owes $611.60 in pension contributions on behalf
of James.
Vacation benefits. The maximum possible shifts in the
vacation benefit year for the first and second quarters of
1978 are 88; I find James is entitled to 44 shifts in these
quarters for the purposes of computation of vacation
benefits. The maximum number of possible shifts in the
vacation benefit year for the third and fourth quarters of
1978 and the first quarter of 1979 are 173; 1 find James is
entitled to 43.25 shifts in those quarters. On the basis of
131.25 maximum shifts during the vacation benefit year,
adjusted by .636, James has 83 fully paid shifts for the
purpose of computing vacation benefits. Divided by 12,
James is entitled to 6.9 paid days of vacation.
5. Deborah V. Nash
The backpay computations for Nash are as follows:
DEBORAH V. NASH - Buyout $15,703.75
Value
Wage Attend-ae Ae Sub Total BenefitRate anceSft
Shift
Gross Interim
Backpay Earnings
Net
Buyout Backpay
1 13 56.30
6 24 58.10
7 58 58.10
6 59 60.30
6 59 60.30
6 59 62.10
7 58 62.10
6 59 64.30
6 59 64.30
6 59 66.10
7 59 66.10
5 45 70.10
.732 535.75
.732 1020.70
.732 2466.69
.732 2604.24
.732 2604.24
.732 2681.97
.732 2636.52
.732 2776.99
.732 2776.99
.732 2854.73
.732 2854.73
.732 2309.09
Net backpay due
Pension contributions. On the basis of 679 maximum
shifts during the backpay period, adjusted by an attend-
ance ratio of .732, Nash has 497 fully paid shifts for the
purpose of computation of pension contributions. At
$2.20 per shift, Respondent owes $1,093.40 in pension
contributions on behalf of Nash.
Vacation benefits. On the basis of 261 maximum shifts
during the vacation benefit year, adjusted by .732, Nash
has 191 fully paid shifts for the purpose of computing va-
cation benefits. Divided by 12 Nash, is entitled to 15.9
days of paid vacation.
6. James W. Neeld III
There is a problem with respect to whether certain
social security disability payments received by Neeld
during the backpay period should be included in interim
earnings. Neeld, according to the compliance officer is a
deaf mute, which, of course, severely limited his employ-
ment opportunities away from Respondent. As noted,
when unable to secure other employment, he applied for
and received disability benefits from Social Security. The
compliance officer testified that he was in a quandary as
to how to handle these payments and included them in
Qtrs.
Bene-
fit
Shifts
Reg.
Shift
Qtrs.
Bene- Reg.
ftReg.fitSit ShiftShifts
2Q76
3Q76
4Q76
IQ77
2Q77
3Q77
4Q77
IQ78
2Q78
3Q78
4Q78
IQ79
56.30
348.60
406.70
361.80
361.80
372.60
434.70
385.80
385.80
396.60
462.70
350.50
592.05
1369.30
2873.39
2966.04
2966.04
3054.57
3071.22
3162.79
3162.79
3251.33
3317.43
2659.59
0
0
0
0
810.00
645.02
2028.58
1741.91
1874.20
2203.52
2113.66
1841.10
592.05
1369.30
2873.39
2966.04
2156.04
2409.55
1042.64
1420.88
873.36
0
0
0
0
0
0
0
0
0
0
0
414.73
1048.01
1203.77
818.49
$3,485.00
1025
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interim earnings because that seemed "fair" to him in the
circumstances.
So far as I am aware, the Board has never dealt with
such payments. Disability benefits of this sort, as I under-
stand the system, are available only to employees who
have qualified by making proper payments into the
system for the proper length of time and who are pres-
ently disabled from gainful employment, but only so long
as they are disabled. In a sense, the employee is collect-
ing on insurance which he has secured by his contribu-
tions. However, these are not payments made because he
was injured, but because his disability prevents him from
deriving income from employment. As such it is analo-
gous to that part of workmen's compensation payments
that are a substitute for lost wages and thus are properly
included in interim earnings, as both the General Counsel
and Respondent have done.
JAMES W. NEELD III - Buyout $16,187.08
Benefit
Shifts
2Q76
3Q76
4Q76
IQ77
2Q77
3Q77
4Q77
1Q78
2Q78
3Q78
4Q78
1Q79
0
6
7
6
6
6
0
0
6
4
5
5
Reg. Shift Wage Attendance
3 57.30
59 59.10
58 59.10
59 61.30
59 61.30
59 63.10
0 .. .
0
59
***39
38
45
**65.30
67.10
67.10
71.10
Value
Sub Total Benefit
Shift
.76 130.64
.76 2650.00
.76 2605.13
.76 2748.69
.76 2748.69
.76 2829.40
.76 2928.05
.76 1988.84
.76 1937.85
.76 2431.62
Net backpay due
35
41
36
37
39
26
33
35
Gross Interim
Backpay Earnings
0 130.64 0
4.60 3004.64 0
3.70 3018.83 70.06
i7.80 3116.49 0
67.80 3116.49 0
'8.60 3208.00 198.08
......... ------- *0
91.80 3319.85 1831.60
i8.40 2257.24 1925.88
35.50 2273.35 ****2717.04
55.50 2787.12 **'1857.78
Net
Buyout Backpay
130.64
3004.64
2948.77
3116.49
3116.49
3009.92
860.13
0
0
0
0
0
0
0
0
0
0
0
628.12
331.36
0
929.34
$1,888.82
*Though all parties agree that Neeld should be disqualified from receiving backpay for this quarter, Respondent claims Neeld
had $478.90 in earnings during this period from Social Security disability benefits. I have disregarded this. Either these payments were
not income or Neeld should not have been disqualified for the entire quarter.
**The wage rate used by General Counsel for this quarter differs. I believe his rate to be a typographical error.
***All parties agree that Neeld should be disqualified for I month in this and the following quarter as found by the Compliance
Officer. General Counsel would penalize Neeld 20 shifts; Respondent, 22 shifts. Reference to the Compliance Officer's worksheets
show he claculated $2907.76 as Neeld's gross backpay for both quarters (without an absentee factor). At $67.10 per shift, this indicates
that he credited Neeld with approximately 43 shifts, and penalized him 22 shifts. I have therefore accepted Respondent's figure.
""****General Counsel and Respondent differ substantially on these figures. I have accepted the figures on the Compliance
Officer's worksheets as closely as I can make them out (the photocopies in evidence are almost illegible).
Pension contributions. On the basis of 529 maximum
shifts during the backpay period, adjusted by an attend-
ance rate of .76, Neeld has 402 fully paid shifts. At $2.20
per shift, Respondent Abell owes $884.40 in pension con-
tributions on behalf of Neeld.
Vacation benefits. On the basis of 194 maximum shifts
during the vacation benefit year, adjusted by .76, Neeld
has 147 fully paid shifts for the purpose of computing va-
cation benefits. Divided by 12, Neeld is entitled to 12.25
paid vacation days.
7. Gertrude R. Parker
The General Counsel and Respondent are in disagree-
ment over the appropriate absentee factor to be applied
in computing Parker's backpay. During the period used
to compute the rate of absenteeism of the employees
here involved, running from 1974 through 1976, Parker
was absent 170 days in the period 1974-75 and 110 days
in the period 1975-76. The Region's compliance officer
asserted that the 170 days involved an unusual and non-
recurring disability and should be disregarded. He used
the figure for the 1975-76 period alone to compute Park-
er's absentee percentage.
In April 1973, Parker slipped on a wet substance at
work in Respondent's facility and was seriously injured.
She did not return to work until November 1974. She
continued to suffer from her injuries and from time to
time thereafter lost time from work because of those in-
juries. Assuming, as I do, that the periods used to com-
pute absentee percentages run from January 1, 1974, to
January 1, 1975, and from January 1, 1975, to January 1,
1976, (the dates of the start and end of the periods are
not given), it is clear that Parker's absences in 1974-75
were clearly related to her injury at work. I would infer
that some of the absences in 1975-76 were also related to
those injuries. In the circumstances, I believe that the
compliance officer's decision to use 110 days as the
figure for Parker's annual absences from work was fair
and reasonable. On the basis of a 235-shift work year, I
have therefore used .468 as Parker's absentee percentage
and .532 as Parker's annual attendance ratio. As in all
cases herein, I do not include in the buyout the $800 re-
ceived in lieu of insurance coverage.
A troublesome problem involves Parker's interim earn-
ings from employment by the Social Security Adminis-
tration. It was testified at the hearing that Respondent's
figures, which differed from those of the compliance offi-
1026
THE A. S. ABELL COMPANY
cer, were derived from Parker's tax returns. Respond-
ent's exhibits containing those figures were received
without objection. The tax returns were never offered.
The General Counsel suggests, since under either calcu-
lation Parker's buyout will exceed backpay, that we use
the compliance officer's figures and leave the parties to
negotiate acceptable figures. It would be pleasant to be
able to do so, but I feel obligated to resolve the issues on
the record if I can do so. If the compliance officer's cal-
culations were the only evidence in the record, I would
certainly rely on them. However, Respondent's testimo-
ny that its exhibit contained Parker's tax return figures
must take precedence, though the tax returns themselves
would have been more satisfactory evidence. 9 Respond-
ent's Exhibit 17 shows tax return earnings for 1977 to be
$10,348.00. It does not, of course, show earnings by
quarters. I have distributed the total equally by quarters.
This comes to $2,587 earnings per quarter. Respondent's
figures for 1978 agree with the General Counsel's except
in the fourth quarter where Respondent makes an adjust-
ment, with which I agree, to conform with Parker's tax
return. Though Respondent's witness testified that Re-
spondent accepted the compliance officer's figure for
Parker's interim earnings for the first quarter of 1979, the
compliance officer's worksheets for that quarter shows
no earnings while Respondent's exhibit shows a consider-
able figure. The evidence shows that because Parker quit
her interim employment during this quarter, the parties
are agreed that she should be credited with working
only 15 shifts, i.e., 23 percent, in that quarter. Parker's
average quarterly earnings in 1978, the nearest period,
was $2,041.00. I find that 23 percent of this amount-
$469.43-should be assessed as interim earnings for the
first quarter 1979. These findings are set forth in the
table below. 2 0
GERTRUDE R. PARKER - Buyout $14,771.11
Reg.
Shift
Value
Wage Attend-Wage Attend- Sub Total Benefit
Rate ance Shift
5 50 57.10
7 58 57.10
6 59 59.30
6 59 59.30
6 59 61.10
7 58 61.10
6 59 63.30
6 59 63.30
6 59 65.10
7 58 65.10
1 14 69.10
.532
.532
.532
.532
.532
.532
.532
.532
.532
.532
.532
1518.86
1761.88
1861.31
1861.31
1917.81
1885.30
1986.86
1986.86
2043.36
2008.73
514.66
285.50
399.70
355.80
355.80
366.60
427.70
379.80
379.80
390.60
455.70
69.10
Gross Interim
Backpay Earnings
1804.36
2161.58
2217.11
2217.11
2284.41
2313.00
2366.66
2366.66
2433.96
2464.43
583.76
368.50
646.50
2587.00
2587.00
2587.00
2587.00
2458.08
2099.52
2427.84
1178.56
469.43
,Vet
Buyout Back-
pay
1435.86
1515.08
0
0
0
0
0
267.14
6.12
1285.87
114.33
0
0
0
0
0
0
0
0
0
0
0
Total buyout allocated
Excess of buyout over gross backpay and earnings
Pension contributions. Parker's maximum shifts for com-
putation of pension contributions are 655; adjusted by an
attendance factor of .532 she has 348 fully paid shifts in
the backpay period. At $2.20 per shift, she is entitled to
$765.60 in pension contributions on her behalf.
Vacation benefits. Parker's maximum number of shifts
during the vacation credit year for computation of vaca-
tion benefits is 233; adjusted by .532, she has 123 fully
paid shifts during the vacation credit year. Divided by
12, Parker is entitled to 10.25 vacation days with pay.
8. Aldora M. Singleton
Among the employees here involved, only in the case
of Singleton and John L. Strosnider (considered herein-
after) do the General Counsel and Respondent differ as
to the wage rates to be used in computing backpay in
every quarter. I cannot account for this. However, Sin-
gleton and Strosnider are the only two among this group
'9 I am also disturbed by the fact that Respondent's witness also testi-
fied that its exhibit, for comparison. showed the figures from the compli-
who are credited 'with an extra $1.00 for every five shifts
for working on the lobster shift 1 day each week. Re-
spondent also uses the same wage rates in computing
backpay for each (except for the second quarter of 1978,
which I assume is a typographical error as to Stros-
nider). This would indicate that these two, among the
employees here involved, share a unique wage scale. I
have accepted Respondent's wage rates for Singleton
and Strosnider. 2 ' There are also significant differences
between the parties as to Singleton's interim earnings in
the first quarter of 1977 and in the first quarter of 1979
(there is also a 45-cent difference in the third quarter of
1978). I am unable to find support for Respondent's fig-
ures so I accept the General Counsel's concessions as to
interim earnings, derived from the compliance officer's
ance officer's worksheets. The figures shown. allegedly from the compli-
ance officer's worksheets. are not accurate according to my analysis
20 This does not mean to fioreclose the parties from agreeing on figures
which they believe more accurate. I am particularly concerned that the
asserted tax return figures are accurate
" If there is an error in this. I assume Respondent and the General
Counsel will agree on the correct figures
Bene-
fit
Shifts
Qtrs.
3Q76
4Q76
IQ77
2Q77
3Q77
4Q77
IQ78
2Q78
3Q78
4Q78
1Q79
$4,624.71
$11,146.71
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worksheets. 2 2 I have added the lobster shift increment
into Singleton's gross backpay in the table that follows.
ALDORA M. SINGLETON - Buyout $16,117.88
Bene-
fit Reg.
Shifts Shift
Value
Wage Attend- Sub Total Benefit
Rate ance Shift
1 12 56.50
2 20 58.30
7 58 58.30
6 59 60.50
6 59 60.50
6 59 62.30
7 58 62.30
6 59 64.50
6 59 64.50
6 59 66.30
7 58 66.30
5 45 70.30
.86 583.08
.86 1002.76
.86 2908.00
.86 3069.77
.86 3069.77
.86 3161.10
.86 3107.52
.86 3272.73
.86 3272.73
.86 3364.06
.86 3307.04
.86 2720.61
Net backpay due
Pension contributions. Singleton's maximum shifts for
computation of pension contributions are 620; adjusted
by an attendance factor of .86 she had 533 fully paid
shifts during the backpay period. At $2.20 per shift, Re-
spondent owes $1,172.60 in pension contributions on
Singleton's behalf.
Vacation benefits. Singleton's maximum shifts during
the vacation credit year for computation of vacation
benefits are 261; adjusted by .86, she has 224 fully paid
shifts during the vacation credit year. Singleton is enti-
tled to 20 days' paid vacation.
9. William E. Staubs
For the most part, during the backpay period, Staubs
was engaged in a business with an associate. Respondent
contends that in at least 2 years the business made a
profit with which Staubs should be credited. The busi-
ness tax returns for those years do show a gross profit
for those years, but also show net losses, or no taxable
income for those years. At one point Staubs testified that
the business paid for a side of beef for him which he
stated was treated on the business' books as a withdrawal
of that part of his investment in the business. Based on
this Respondent argues that it is reasonable to find that
the business supplied food to Staubs' family during the
entire backpay period, which should be charged as inter-
im earnings on the basis of the Bureau of Labor Statistics
figure for a family of four in the lower budget level for
the Baltimore area. On the basis of the record as a
whole, I find that Staubs, as he testified received no
income from the business during the backpay period. He
did receive income from other services as noted in the
following table.
There is apparently a minor discrepancy of 60 cents in
the amount of Staubs' buyout as claimed by the parties. I
have accepted Respondent's higher figure. Respondent
and the General Counsel also disagree on the wage rates
payable to Staubs during the backpay period. I have ac-
cepted Respondent's figures.
WILLIAM E. STAUBS - Buyout - $16,118.74
Bene- Wage
fit Reg.Shift Rate
Shifts
4 40 58.30
7 58 58.30
6 59 60.50
6 59 60.50
6 59 62.30
7 58 62.30
6 59 64.50
6 59 64.50
6 59 66.30
7 58 66.30
5 45 70.30
alueAttend-
Sub Total Benefit
OO~c'~ ~ Shift
.977
.977
.977
.977
.977
.977
.977
.977
.977
.977
.977
2278.36
3303.63
3487.40
3487.40
3591.16
3530.29
3717.97
3717.97
3821.73
3756.96
3090.74
233.20
408.10
363.00
363.80
373.80
436.10
387.00
387.00
397.73
464.10
351.50
Gross Interim
Backpay Earnings
2511.56
3711.73
3850.40
3850.40
3694.96
3966.39
4104.97
4104.97
4219.53
4221.06
3442.24
0
0
0
0
0
116.20
'116.20
*1696.78
475.50
0
0
Net backpay due
'General Counsel and Respondent differ slightly as to these figures. I have accepted the higher figures.
22 The largest discrepancy occurs in the first quarter of 1979, where
Respondent asserts that 10 weeks should be multiplied by $259.62 per
week income from the interim employer There is no indication as to
how this figure was derived. According to my calculations, Singleton did
not receive this amount of weekly income from that employer in any pre-
vious quarter.
Qtrs.
2Q76
3Q76
4Q76
1Q77
2Q77
3Q77
4Q77
1Q78
2Q78
3Q78
4Q78
1Q79
Gross Interim
Backpay Earnings
Net
Buyout Backpay
56.50
116.60
408.10
363.00
363.00
373.80
436.10
387.00
387.00
397.80
464.10
351.50
639.58
1119.36
3316.10
3432.77
3432.77
3534.90
3543.62
3659.73
3659.73
3761.86
3771.14
3072.11
0
0
0
581.00
1618.94
1755.00
1728.41
1837.00
1878.00
1892.45
2012.00
1402.00
639.58
1119.36
3316.10
2851.27
1813.83
1779.90
1815.21
1822.73
959.90
0
0
0
0
0
0
0
0
0
0
0
821.00
1869.41
1759.14
1670.11
$6,120.49
Qtrs.
3Q76
4Q76
1Q77
2Q77
3Q77
4Q77
1Q78
2Q78
3Q78
4Q78
1Q79
Net
Backpay
0
0
0
0
1770.31
3850.19
2988.77
2408.19
3744.03
Buyout
2511.56
3711.73
3850.40
3850.40
2194.65
0
0
0
0
4221.06
3442.24
$22,424.79
1028
THE A. S. ABELL COMPANY
Bene-
fit Reg.Shift
Shifts
Value
Wage Attend-
Ratge Atnecnd- Sub Total BenefitRate ancekpay due
Net backpay due
Gross Interim
Backpay Earnings Buyout BackpayBackpay
S22,424.79
*General Counsel and Respodnent differ slightly as to these figures. I have accepted the higher figures.
Pension contributions. Staubs' maximum shifts for com-
putation of pension contributions are 679; adjusted by an
attendance factor of .977, he has 663 fully paid shifts
during the backpay period. At $2.20 per shift, Respond-
ent owes $1,458.60 in pension contributions on Staubs'
behalf.
Vacation benefits. Staubs' maximum shifts during the
vacation credit year for computation of vacation benefits
are 261; adjusted by .977, he has 254 fully paid shifts
during the vacation credit year. Staubs is entitled to 20
days' paid vacation.
10. John L. Strosnider
As has been noted in connection with the computation
for Aldora Singleton, I have accepted Respondent's fig-
ures as to the applicable wage rates except for the
second quarter of 1978. I have included in Strosnider's
gross backpay in the table following the applicable incre-
ment for Strosnider's employment on the lobster shift.
There is a discrepancy as to Strosnider's interim earnings
in the fourth quarter of 1977. Respondent's witness
Banach attributes Respondent's higher total for interim
earnings to reliance on Strosnider's tax returns, but does
not further explain this particular discrepancy. Thus
Banach indicates that there is a difference of $227.54 be-
tween the compliance officer's total of interim earnings
and the tax return figure ("the difference between
$22,991.64 as shown by [Respondent] and $22,714.10 as
calculated by the NLRB"), but the additional amount
claimed by Respondent in the fourth quarter 1977 is
$382.58. Notwithstanding some uneasiness due to the in-
consistency in the evidence, I have decided to accept
Respondent's contention here based on the testimony
that Respondent's figures were derived from the tax re-
turns.
JOHN L. STROSNIDER - Buyout - $15,739.64
Reg.
Shift
Wage Attend-
Rate once
4 40 58.30 .968 2257.38
7 58 58.30 .968 3273.20
6 59 60.50 .968 3455.28
6 59 60.50 .968 3455.28
6 59 62.30 .968 3558.08
7 58 62.30 .968 3497.77
6 59 64.50 .968 3683.72
6 59 64.50 .968 3683.72
6 59 66.30 .968 3786.53
7 58 66.30 .968 3722.34
5 45 70.30 .968 3062.27
Net backpay due
Value
Benefit
Shift
233.20
408.10
363.00
363.00
373.80
436.10
387.00
387.00
397.80
464.10
351.50
Gross Interim
backpay Earnings
2490.58
3681.30
3818.28
3818.28
3931.88
3933.87
4070.72
4070.72
4184.33
4186.45
3413.77
0
292.00
1071.00
1256.00
3661.79
2780.17
1908.89
3448.80
3872.04
3913.76
892.23
Net
Buyou Backpay
2490.58
3389.30
2747.28
2562.28
270.09
1153.70
2161.83
621.92
312.29
30.37
0
0
0
0
0
0
0
0
0
0
242.32
2521.54
$2,763.85
Pension contributions. On the basis of 679 maximum
shifts during the backpay period, adjusted by an attend-
ance rate of .968, Strosnider has 657 fully paid shifts for
the purpose of computation of pension contributions. At
$2.20 per shift, Respondent owes $1,445.40 in pension
contribution on behalf of Strosnider.
Vacation benefits. On the basis of 261 maximum shifts
during the vacaton benefit year, adjusted by .968, Stros-
nider has 252 fully paid shifts for the purpose of comput-
ing vacation benefits. He is entitled to 20 days' paid va-
cation.
I 11. Joseph P. Trainor
The General Counsel contends that Trainor's backpay
should not be diminished by an absentee factor inasmuch
as he was absent less than 10 times during the base
period citing the NLRB Casehandling Manual, Part 3,
Sec. 10564(e) which instructs, in effect, that such absence
is de minimis, and to be disregarded. Respondent asserts
the contrary. While the manual may be useful for other
purposes, where the absentee factor is known, and Re-
spondent insists upon it, as here, it should be applied, and
I do so.
Trainor's interim earnings present a problem. Out of
12 quarters in the backpay period, the parties disagree as
to 6 of them. Respondent's witness Banach testified that
Respondent had Trainor's tax returns and Respondent
submitted a document in evidence showing the amounts,
but did not submit the tax return themselves. No expla-
nation is given for Respondent's division of the total
amount into quarters, although the distribution in some
quarters matches that of the compliance officer. The
total for the years match those in Respondent's Exhibit
21 asserted to have been taken from the tax returns.
Under the circumstances, I have accepted Respondent's
interim earnings figures.
Qtrs.
Bene-
fit
Shifts
Qtrs.
3Q76
4Q76
IQ77
2Q77
3Q77
4Q77
IQ78
2Q78
3Q78
4Q78
IQ79
1029
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JOSEPH P. TRAINOR Buyout $16,496.64
Wage Attend- Sub Total
Rate ance
Value
Benefit
Shift
Gross Interim
Backpay Earnings
Net
Buyou Backpay
I 7 56.30 .985 388.19 56.30 444.49 0 444.49
6 59 58.10 .985 3376.48 348.60 3725.08 271.40 3453.68
7 58 58.10 .985 3319.25 406.70 3725.95 2349.56 1376.39
6 59 60.30 .985 3504.33 361.80 3866.13 1372.00 2494.13
6 59 60.30 .985 3504.33 361.80 3866.13 0 3866.13
4 40 62.10 .985 2446.74 248.40 2695.14 1015.97 1679.17
7 58 62.10 .985 3547.77 434.70 3982.47 '1887.39 2095.08
6 59 64.30 .985 3736.79 385.80 4122.59 *2447.52 1087.57
6 59 64.30 .985 3736.79 385.80 4122.59 3501.69 0
6 59 66.10 .985 3841.40 396.60 4238.00 3033.48 0
7 58 66.10 .985 3776.29 462.70 4238.99 3472.61 0
5 45 70.10 .985 3107.18 350.50 3457.68 3272.19 0
Net backpay due
0
0
0
0
0
0
0
58.75
620.90
1204.52
766.38
185.49
$2,836.04
*Interim earnings for this quarter includes an amount that the compliance officer labeled "Workmans Comp." The Board has
held that such payments are included in interim earnings only to the extent that they are a substitute for earnings, but not to the
extent that they constitute damages for injury. American Mfg. Co. of Texas, 167 NLRB 520. In the absence of any evidence in the
record, I assume that the compliance officer followed the Board's rule.
Pension contributions. Trainor's maximum shifts for
computation of pension contributions are 687; adjusted
by an attendance factor of .985, he has 676 fully paid
shifts in the backpay period. At $2.20 per shift, Trainor
is entitled to payment of $1,487.20 in pension contribu-
tions on his behalf.
Vacation benefits. Trainor's maximum number of shifts
during the vacation credit year for computation of vaca-
tion benefits is 261; adjusted by .985 this amounts to 257
fully paid shifts. Trainor is entitled to 20 days vacation
with pay.
12. Jack Wetherson
The compliance officer testified that certain of Weth-
erson's income during the backpay period constituted
part-time, or supplementary income not deductible from
gross interim earnings. Comparison of Respondent's and
the General Counsel's computations indicate that they
differ on only one such item, $743.54 assertedly earned
from Informatics in the third quarter of 1978. The Gen-
eral Counsel seems to contend that inasmuch as Wether-
son quit full-time employment with Informatics in the
second quarter of 1978, obtained other full-time employ-
ment which continued to the end of the backpay period,
and earned only $743.54 from Informatics in the third
quarter and even less from that source in the fourth
quarter 1978, the income from Informatics in the third
quarter should be treated as supplementary income not
deductible from gross backpay. The figure themselves
seem to support the General Counsel's position, but one
is led to wonder why the General Counsel did not take
the same position with respect to $186.57 earnings from
Informatics in the fourth quarter of 1978, and in regard
to $219.22 earned from Deans in the third quarter of
1978. Perhaps an oversight in the maze of computations.
The record shows Wetherson to be an energetic
worker. Even while employed by Respondent he was en-
gaged in supplementary employment (not always mone-
tarily lucrative), but not with the employers here in-
volved. The problem is difficult. Wetherson's employ-
ment by Informatics and Deans in the third and fourth
quarters of 1978 were clearly not his principal employ-
ment. If they are not excluded from interim earnings, we
tend to penalize Wetherson for being an energetic em-
ployee. However, the burden is on the General Counsel
to show that these earnings should be excluded and I do
not think the burden has been met.
The General Counsel showed that Wetherson incurred
some expenses in obtaining and keeping interim employ-
ment which should be deducted from interim earnings.
Though Respondent does not refer to these expenses, I
am not aware that it attacks their validity. I will deduct
these sums.
The General Counsel and Respondent differ on the
amounts of some interim earnings. Respondent witness
Banach, in identifying Respondent's computations, assert-
ed that they were based on tax returns, or similar infor-
mation obtained from Wetherson. Where interim em-
ployment continued over several quarters, Respondent
seems to have allotted amounts to each quarter (to a con-
siderable extent following the amounts shown by the
General Counsel). In the table following hereafter, I
have accepted Respondent's figures for interim earnings.
JACK WETHERSON - Buyout $16,103.90
Wage Attend-
Rate ance
Value
Sub Total Benefit
Shift
Gross Interim
Backpay Earnings
Net
Buyout Back-
pay
4 39 57.10 .959 2131.14 228.40 2359.54 218.40 2141.14 0
7 58 57.10 .957 3169.39 399.70 3569.09 2621.37 947.72 0
Qtrs.
Bene-
fit
Shifts
Reg.
Shift
2Q76
3Q76
4Q76
IQ77
2Q77
3Q77
4Q77
IQ78
2Q78
3Q78
4Q78
IQ79
Qtrs.
3Q76
4Q76
Bene-
fit
Shifts
Reg.
Shift
1030
THE A. S. ABELL COMPANY
Value
Wage Attend-ae ae Sub Total BenefitRate once Shift
Gross Interim
Backpay Earnings
Net
Buyout Back-
pay
6 59 59.30
6 59 59.30
6 59 61.10
7 58 61.10
6 59 63.30
6 59 63.30
6 59 65.10
7 58 65.10
5 45 69.10
.957 3348.26
.957 3348.26
.957 3449.89
.957 3391.42
.957 3574.11
.957 3574.11
.957 3675.74
.957 3613.44
.957 2975.79
Total buyout allocated
Excess Buyout over gross backpay and interim earnings
Pension contributions. Wetherson's maximum shifts for
computation of pension contributions are 678; adjusted
by an attendance factor of .957, he has 648 fully paid
shifts in the backpay period. At $2.20 per shift, Respond-
ent owes $1,425.60 in pension contributions on Wether-
son's behalf.
Vacation benefits. Wetherson's maximum shifts during
the vacation credit year for computation of vacation
benefits is 261; adjusted by .957, Wetherson has 249 fully
paid shifts during the vacation credit year. Wetherson is
entitled to 20 vacation days with pay.
ORDER
A. The Respondent, The Baltimore News American
Division, The Hearst Corporation, its officers, agents,
successors, and assigns, shall in accordance with the pro-
visions of the section hereinabove entitled "The
Remedy," grant, pay, and contribute the following:
;Medical
Backpay Ex-
penses
Vacation
Benefits
(Days
with pay)
Pension
Contri-
butions
G. Personal Leave Days
For the reasons discussed above in connection with
Respondent Hearst, I find that the Abell employees here
involved are not entitled to personal leave days in addi-
tion to backpay. The contract requires that such days
must be taken in the year earned. In fact these days are
part of the 25 benefit days which have been separately
recompensed as noted above.
THE REMEDY
In the following Order, opposite the names of the em-
ployees involved, set forth under appropriate column
headings, are the net amounts of backpay, medical ex-
penses, vacation benefits, and pension contributions to
which the employee is entitled. The number under the
heading of vacation benefits shows the number of days
of vacation with pay for the number of shifts set forth to
which the employee is entitled. The amounts under the
heading of pension contributions are the amounts the re-
spondent involved is obligated to contribute to the ITU
Negotiated Pension Plan. The amounts under the head-
ing of backpay constitute net backpay to be paid to the
designated employee, from which are to be deducted the
tax withholding required by Federal and state laws. The
Respondent involved shall pay 6-percent interest com-
puted in accordance with Isis Plumbing & Heating Co.,
138 NLRB 716 (1962), upon each of the amounts and
benefits set forth.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, I hereby issue the following recommended:
(a) Allan
Czarnowsky
(b) Frederick
Cucco
$19,274.86 20 days $1454.40
9,014.20 $1222.45 7.75 days 900.00
(c) Interest to March 21, 1980, on backpay paid to
Robert Burrows, Dennis Everhart, John H. Martin, Jr.,
Carl Oberg, Arthur G. Randolph, and William J. Wood-
ruff, pursuant to agreement noted in Section II A of the
bove Supplemental Decision.
B. The Respondent, The A.S. Abell Company, its offi-
cers, agents, successors, and assigns, shall, in accordance
with the provisions of the section hereinabove entitled
"The Remedy," grant, pay, and contribute the following:
Jeffrey D. Buckmeier
Richard C. Eure
Faye C. Flythe
Leroy H. James
Deborah V. Nash
James W Neeld III
Gertrude R Parker
Aldora M. Singleton
William E. Staubs
John L. Strosnider
Joseph 1'. Trainor
Jack Wetherson
Vacation
BenefitsBackpay Benefitsy (Days with
Pay)
$2,622.43 13 days
20 days
20 days
895.00 6.9 days
3,485.00 15.9 days
1,888.82 12.25 days
10.25
days 765.60
6,120.49 20 days
22,424.79 20 days
2,763.85 20 days
2,836.04 20 days
20 days
Pension
Contri-
butions
$950.40
1287.00
1368.40
611.60
1093.40
884.40
1172.60
1458.60
1445.40
1487.20
1425.60
1624.58
1029.10
1630.39
1687.19
1763.06
1049.76
821.38
1307.57
961.29
$14,963.18
$1,140.72
Qtrs.
Bene-
fit
Shifts
Reg.
Shift
IQ77
2Q77
3Q77
4Q77
IQ78
2Q78
3Q78
4Q78
IQ79
355.80
355.80
366.60
427.70
379.80
379.80
390.60
455.70
345.50
3704.06
3704.06
3816.49
3819.12
3953.91
3953.91
4066.34
4069.14
3321.29
2079.48
2674.96
2186.10
2131.93
2190.85
2904.15
3244.96
2761.57
2360.00
0
0
0
0
0
0
0
0
0
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Jurisdiction is retained for 1 year from the date of
this Order in respect to the claims for backpay for Fran-
cisco Cardoza, Lee Martinez, and R. A. Troestrum, with
leave to the General Counsel to move to reopen these
proceedings as to any or all of said employees within
that time in accordance with the discussions as to these
employees in the above Supplemental Decision. After I
year from the date of this Order, in the absence of good
cause shown to the contrary, the claims for backpay as
to said employees shall be dismissed.
D. Except to the extent found hereinabove in this Sup-
plemental Decision, the allegations of the backpay speci-
fication are dismissed.
1032