Ford Brothers, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1987

284 N.L.R.B. 211 (N.L.R.B. 1987)

FORD BROS. 211
Ford Brothers, Inc. and Teamsters Local Union No.
159, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case 9-CA-15848
12 June 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
—
On 2 October 1986 Administrative Law Judge
Norman Zankel issued the attached supplemental
decision. The General Counsel and the Respondent
filed exceptions and supporting briefs. The Re-
spondent also filed a brief in opposition to the Gen-
eral Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and, to the extent consistent herewith, has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
We agree with the judge that the backpay owed
to certain discriminatees in this case should be
computed in accordance with the Board's formula
in Ogle Protection Service, 183 NLRB 682 (1970),
rather than under the formula stated in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and that the
amount of backpay to which they would be enti-
tled should be determined by deducting the discri-
minatee's interim earnings during the backpay
period from their actual gross earnings during a
representative period, extrapolated to the backpay
period, with an adjustment to account for required
contractual compensation increases. 1 During the
backpay hearing and in its brief to the judge, the
Respondent asserted that the calendar quarter im-
mediately preceding the unfair labor practices, i.e.,
the third quarter of 1980, should serve as the base
representative period for the purpose of making the
backpay computations. The judge disagreed, noting
that the Respondent's business was seasonal, that
the third calendar quarter was traditionally the Re-
spondent's slowest period, and that the use of the
lesser earnings obtained during that quarter should
not be reflective of true earnings and would result
in an incomplete remedy for some discrirninatees.
The judge, instead, found that the discriminatees'
We also agree with the judge that employee Mann is not entitled to
receive backpay and that employees Davis, Devore, Hopper, Rambo, and
Wheeler are entitled to backpay only for losses mcurred while employed
at the Respondent's Kenova, West Virginia facility
second quarter 1980 earnings would more accurate-
ly represent their actual earnings and, accordingly,
used the second quarter 1980 earnings to compute
the backpay for certain discriminatees. However,
some discriminatees earned more during the third
quarter 1980 than in the second quarter 1980. For
these discriminatees, the judge used their third
quarter 1980 earnings to compute their backpay,
reasoning that the Respondent's use of these in-
creased sums in its proposed formula was tanta-
mount to an admission that these higher earnings
were actually representative of the earnings of the
discriminatees in question.
In its exceptions, the Respondent argues that the
judge erred in finding that its operation was sea-
sonal, that the third calendar quarter was tradition-
ally slow, and that the discriminatees' second quar-
ter 1980 earnings were more representative than
their third quarter 1980 earnings. The Respondent
further argues that it is illogical to use different
base periods with respect to indistinguishable dis-
criminatees. We agree with the Respondent.
In finding that the Respondent's operation was
seasonal and that its third business quarter was tra-
ditionally the slowest, the judge relied primarily on
the testimony of employee Ivan Smith, who the
judge found credibly testified that "work slowed
down during the summer of 1980." However, the
judge's finding in this regard is based only on a
partial reading of Smith's testimony. When consid-
ered in its entirety, Smith's testimony is, in our
view, not supportive of the judge's fmding.
Smith, for example, did not testify that the third
calendar quarter was traditionally a slow period for
the Respondent. Rather, Smith testified that the
third calendar quarter was not necessarily slow,
and further stated that the slow periods, if any, oc-
curred during the spring and fail seasons, i.e., the
second and fourth quarters. As pointed otit by the
judge, Smith did testify that work was slow during
the summer of 1980. However, he further testified
on cross-examination that work was slow during all
of 1980, not just the summer months. Further, in
testifying that work was slow during the summer
of 1980, Smith appeared to be referring to the
amount of work that was available to him during
that period. Thus, when asked about his level of
work before he was transferred to Kenova, Smith
stated that the "Third quarter of 1980 was very
slow for me." As to the amount of work that was
available to other employees during the same
period, Smith could only speculate that work was
slow for employees at a "certain level on the (se-
niority) board." Finally, Smith's brief reference to
the alleged seasonal nature of the Respondent's op-
eration was, as, indeed, the judge acknowledged
284 NLRB No. 25
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
during the hearing, speculative and not supported
by any documentary evidence. Under these cir-
cumstances, we find nothing in Smith's testimony
to support the judge's finding that the Respond-
ent's operation was seasonal and that its third busi-
ness quarter was a traditionally slow period. 2 In
the absence of such evidence we find, in agreement
with the Respondent, that use of the third calendar
quarter of 1980 as the base representative period is
appropriate. Thus, the Respondent contends, and
we agree, that in the absence of evidence showing
a significant difference between quarters, it is more
appropriate to choose the quarter closest in time to
the unfair labor practices as the most representa-
tive. We shall, accordingly, determine the amount
of backpay owed to the discriminatees on the basis
of their third quarter, rather than second quarter,
1980 gross earnings in the manner described by the
judge in his supplemental decision.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Ford Brothers, Inc., Coal Grove, Ohio,
and Kenova, West Virginia, its officers, agents,
successors, and assigns, shall make whole the indi-
viduals listed below by paying to them the sums set
forth opposite their names, with interest, in the
manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977):
Burd, Leslie $ 8,654.41
Carr, Glenn 2,140.20
Devore, Tex 34.50
Dickerson, Homer 2,596.51
Dotson, Boyce 108.52
Holbrook, Donald 61.50
Howard, Donald 230.77
Menshouse, George 970.88
Montavon, Harold 63.96
Indeed, the judge's use of the third quarter for certain chscrumnatees
because their earnings were higher in that quarter belies the characteriza-
tion of the quarter as "slow"
3 The third quarter 1980 earnings for all discriminatees are set forth in
the R. Exit 2, which the Judge apparently used to compute the backpay
for certain of the discrimmatees referred to above (see also fn 2, supra).
Utilizing the formula adopted by the judge (see the appendix attached to
his supplemental decision), the chscnmmatees' third quarter 1980 earnings
were extrapolated to the backpay period. The extrapolated amount, as
agreed to by all parties, was factored at 1 077 to arrive at the gross back-
pay figure. The difference between the discriminatees' Interim earnings
during the backpay period and the gross backpay figure represents the
net backpay to which they would be entitled Utilizing the above formu-
la, we find that the interim earnings of discriminatees Carr, Dotson,
Napier, L. Rife, Ross, Skeens, Sparks, Stover, and Truesdell (in addition
to those referred to in the appendix portion of the judge's decision) ex-
ceeded their gross backpay and, except for the interim expenses listed
next to their names in the appendix to the decision, they are not entitled
to any monetary recovery The judge's supplemental Order shall be
modified to reflect our finding here.
Napier, Elmer 6,906.63
Rambo, Donald 117.36
Ross, Robert 570.72
Skeens, Kenneth R. 428.04
Sparks, Harry 700.28
Stover, William 642.06
Truesdell, Hancel 1,605.15
Ward, Thomas 7,724.77
$33,556.26
Andrew L. Lang, Esq., for the General Counsel.
William C. Maul, Esq. (Thompson, Hine & Flory), of Co-
lumbus, Ohio, for the Employer.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. This
backpay case was tried before me at Catlettsburg, Ken-
tucky, on 6-9 January 1986 on an original backpay speci-
fication that issued on 2 April 1985. An amended back-
pay specification issued on 1 July 1985.
A second amended backpay specification, dated 12
February 1986 (G.C. Exh 8) issued after the instant
hearing adjourned on completion of the parties' presenta-
tion of evidence. The Employer filed an answer to the
second amended backpay specification. That answer (R.
Exh. 6) is dated 11 March 1986.
I issued a written order on 31 March 1986 (G.C. Exh.
10), by which I received the specification and the Em-
ployer's answer to it in evidence.'
I. BACKGROUND
The instant proceeding arises from a dispute over the
scope of, and formula to be applied to, the make-whole
remedy contained in an underlying unfair labor practice
case. The Board, in Ford Bros., 263 NLRB 92 (1982),
adopted Administrative Law Judge Jerry B. Stone's rec-
ommendation that 34 named employees 2 be made whole
for losses incurred from the Employer's repudiation of its
collective-bargaining obligations to the Union.
In relevant part, Judge Stone concluded the Employer
refused to bargain in violation of Section 8(a)(5) of the
National Labor Relations Act, when it unilaterally relo-
cated part of the bargaining unit work and employees
from Coal Grove, Ohio, to Kenova, West Virginia, and
refused to apply the contractual wage rates and other
terms and conditions of employment to the bargaining
unit employees who had been transferred (Conclusion of
Law 7, 263 NLRB at 92, 103).
Judge Stone recommended the Employer undertake a
variety of remedial activity. One recommendation is par-
ticularly germane; that the Employer apply the contrac-
tual wage rates and other terms and conditions of em-
My 31 March Order also constitutes formal closure of the hearing.
Presently, backpay is claimed for 33 individuals. The name of Merrill
Wells no longer appears in the specification Wells resigned his employ-
ment on 30 December 1980 I granted the General Counsel's motion,
made at the 9 January 1986 session of the instant proceeding, to delete
par. 1(xx) pertaining to Wells from the specification.
FORD BROS. 213
ployment to the unit employees who had been trans-
ferred to Kenova. Judge Stone did not explicitly recom-
mend the transferred employees be made whole for mon-
etary losses that may have resulted from the unlawful re-
fusal-to-bargain (8(a)(5)) violations. Thus, his decision
contains no reference to Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971).
Judge Stone also concluded the Employer discriminat-
ed against employees in violation of Section 8(a)(3) of
the Act by transferring the 34 bargaining unit employees,
whom he named, to Kenova (Conclusion of Law 4, and
text accompanying fn. 21, 263 NLRB at 103).
Stone recommended the transferred unit employees be
made whole for losses resulting from that "discrimina-
tion" until the Employer once again complied with its
contractual commitments. Judge Stone's decision does
not reflect severance of any bargaining unit employee
(by termination, layoff, suspension, or any other method)
from his employment with the instant Employer. Never-
theless, Judge Stone recommended that backpay and in-
terest should be computed according to the formula es-
tablished in F. W. Woolworth Co., 90 NLRB 289 (1950),
Isis Plumbing Co., 138 NLRB 716 (1962), and Florida
Steel Corp., 231 NLRB 651 (1977).
The Board's General Counsel and the Employer filed
exceptions to Judge Stone's decision. The Board, in 263
NLRB 92, supra, affirmed Judge Stone's rulings, find-
ings, and conclusions pro forma. Also, the Board adopt-
ed Judge Stone's recommended Order after modifying it
in a respect not relevant to the instant proceeding.
The Board's Order was enforced by a judgment order
of the U.S. Court of Appeals for the Third Circuit on 28
April 1983 (Docket No. 82-3417).3
The specification asserts the Employer has complied
"with certain provisions of the Board's Order as en-
forced." However, I am called on to determine the ap-
propriate formula and amounts of sums due, together
with the identity of beneficiaries of the Board's Order.
IL THE ISSUES
(1) Is backpay to be computed pursuant to the F. W.
Woolworth, supra, formula or the formula established in
Ogle Protection Service, supra? (2) Are E. Davis, T.
Devore, G. Hopper, F. Mann, D. Rambo, and C. Wheel-
er properly included as backpay recipients? (3) What are
the sums due to those who are entitled to the benefits of
the Board's Order?
III. DISCUSSION, ANALYSIS, AND CONCLUSIONS
A. The Applicable Backpay Formula
The parties' arguments put in issue whether I am at
liberty to consider and find that any other than the Wool-
worth formula may be applied to calculate the amount of
backpay in the instant case.
The General Counsel's backpay computations are
based on application of the Woolworth formula. The Gen-
eral Counsel asserts this formula is appropriate because,
in the General Counsel's words, "the Board and Court of
8 G C. Exh. 1(b).
Appeals have both ordered" that the make-whole
remedy herein be calculated as prescribed in Woolworth
(G.C. Br. at 12). I find the General Counsel's assertion
literally true. The Board's pro forma adoption of Judge
Stone's make-whole recommendation contains no repudi-
ation of his reference to Woolworth. The circuit court
summarily enforced the Board's Order. Neither the
Board nor the court explicitly even mentioned Wool-
worth.
The Employer claims it is improper to compute back-
pay by the Woolworth formula. Instead, the Employer
contends the Board designed the Ogle formula expressly
to fit the present factual circumstances. Further, the Em-
ployer asserts neither the Board's Decision and Order
nor the Third Circuit's enforcement order comprises ir-
revocable precedent with respect to the appropriate for-
mula for backpay computation.
I agree with the Employer's position. I conclude I am
not foreclosed from consideration of a backpay formula
other than Woolworth. This is so notwithstanding the
Board's affirmance of Judge Stone's conclusions and rec-
ommendations, and the court's enforcement of the
Board.
Initially, I hasten to recognize that it is my duty to
follow Board precedent. Waco, Inc., 273 NLRB 746 fn.
14 (1984), citing Iowa Beef Packers, 144 NLRB 615, 616
(1963). Next, I am persuaded that use of the Woolworth
formula is contrary to the overwhelming Board prece-
dent relevant to the particular circumstances of the case
at bar. Effectively, then, my agreement with the Em-
ployer fully comports with my obligation to adhere to
Board pronouncements.
The circumstances that exist herein dictate a departure
from Judge Stone's recommendation. Those circum-
stances are:
(1) The Woolworth versus Ogle issue was neither litigat-
ed nor actually, or necessarily, determined in any prior
proceeding.
I recognize the doctrine of res judicata applies to
Board proceedings. Laborers Local 282 (Millstone Con-
struction), 236 NLRB 621, 623 (1978). Board findings and
conclusions in an unfair labor practice case may not be
relitigated in the subsequent backpay proceeding, Brown
& Root, Inc., 132 NLRB 486, 492 (1961), enfd. 311 F.2d
447, 451 (8th Cir. 1963).
No evidence was presented to me to show that any
party, even attempted earlier to litigate the issue of the
method to be used to establish the scope of the make-
whole remedy. The dispute concerning which formula is
appropriate first became an issue for litigation in the in-
stant supplemental proceeding. There has been no previ-
ous adjudication of the formula issue. Accordingly, nei-
ther the Board nor circuit court was required to assess
the merits of the competing parties' positions on that
issue.
As earlier noted, both the Board's Decision and Order
underlying the instant backpay proceeding and the cir-
cuit court enforcement order are mute regarding the for-
mula for computation of amounts due the discriminatees.
This silence tends to show that the issue before me was
not actually determined.
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I also find resolution of the formula issue was not nec-
essary to a decision in the underlying unfair labor prac-
tice proceeding. There, the Board was concerned with
whether the Employer engaged in the unfair labor prac-
tices found by Judge Stone. Although Judge Stone cited
Woolworth, his reference was not essential to the Board's
judgment regarding the merits of his findings and conclu-
sions on the substantive issues. The very function of the
instant supplemental proceeding is to maintain the dis-
tinction between compliance issues from those involving
culpability for violations of the Act.
I conclude that the scenario described above makes it
reasonable to find that the Woolworth versus Ogle issue
has not been preempted from resolution at this stage of
the case. See NLRB v. Master Slack, 773 F.2d 77, 81 (6th
Cir. 1985); Marlene Industries Corp. v. NLRB, 712 F.2d
1011, 1015-1016 (1983).
(2) The nature of the underlying unfair labor practices
commands the application of Ogle, not Woolworth.
The Ogle formula explicitly applies to situations where
"the amounts due result from [the Employer's]. . repu-
diation and failure to apply the terms of a collective-bar-
gaining agreement." The Board described such a viola-
tion as one "which does not involve cessation of employ-
ment status or interim earnings that would in the course
of time reduce backpay." The Board concluded that in
such situations "a quarterly (Woolworth) computation is
unnecessary and unwarranted."
The above-quoted language of the Ogle decision shows
the Woolworth formula was not designed to make whole
employees whose monetary losses result from their em-
ployer's repudiation of collective-bargaining obligations.
This is especially true where, as here, those employees
remain employed by the offending employer throughout
the period for which backpay may be due.
Some of Judge Stone's findings themselves provide im-
pressive evidence that application of Woolworth to the in-
stant case is erroneous. First, all monetary losses claimed
due were directly, and solely, caused by the Employer's
failure to pay the unit employees transferred to Kenova
wage rates established by the Employer's collective-bar-
gaining agreement with the Union at Coal Grove.5
Judge Stone found no "cessation of," or disruption in,
the employment status of any bargaining unit employee.
The Board independently did not make such a fmding.
The General Counsel has made no such claim before me.
Of the 33 discriminatees, 15 testified in these backpay
proceedings. The testimony of each shows none suffered
any break in employment status. These two factors tend
to show that the instant facts fit the remedial prerequisite
for application of Ogle.
Finally, the applicable Board decisional authorities
overwhelmingly support the use of Ogle to make the re-
quired computations in this case. In New B Mfg. Corp.,
272 NLRB No. 99 (Sept. 28, 1984) (not reported in
Board volumes), 6 the Board clearly and defmitively pre-
5 The specification also claims sums due for the Employer's failure to
adhere to the contractual holiday and vacation benefits
6 Not published in bound volumes of Board decisions.
scribed the conditions for application of Ogle and Wool-
worth. The Board declared:
With respect to those employees who have contin-
ued to be employed at reduced wages and benefits,
we shall direct the Respondent to make them whole
by paying to them the difference between the wages
and benefits which they have received and those
which they should have received under the terms of
the Respondent's collective-bargaining agreement
with the Union. See Ogle. . . . With respect to any
bargaining unit employees who may have been laid
'off or terminated by the Respondent because of its
continuation of its manufacturing operations, we
shall require the Respondent to make them whole
for any loss of earnings by payment to them of a
sum of money equal to that which normally would
have been earned from the date of their unlawful
layoff or discharge to the date of Respondent's offer
of reinstatement, less net earnings during such
period. The amount of backpay shall be computed
in the manner established by the Board in F. W.
Woolworth Co.. . . [New B Mfg.,] supra, slip op. 5-
6.7
The Board provided identical guidance for application
of Ogle and Woolworth in Hedaya Bros., 277 NLRB 942
(1985). There, the Board ordered a Woolworth backpay
computation for an employee who had been discharged,
and an Ogle computation for unilateral elimination of
holiday pay benefits to employees whose employment re-
lationship had not been severed. (Hedaya, supra).5
The Board's application of Ogle and Woolworth has
been substantially consistent through the years. Pete
O'Dell & Sons Steel, 277 NLRB 1358 fn. 1 (1985); Bozzu-
to's, Inc., 277 NLRB 977 (1985); Erin Mechanical Corp.,
277 NLRB No. 49 (Nov. 12, 1985) (not reported in
Board volumes); Watonwan Hospital, 276 NLRB 826
(1985); Neighborhood Roofing, 276 NLRB 861 fn. 3
(1985); Dane County Dairy, 273 NLRB 1711 fn. 2 (1985);
Watt Electric Co., 273 NLRB 655, 660 fn. 23 (1984), in
which Ogle was used as a basis for computation of
amounts due because of reduced wage payments until a
discriminatory constructive discharge, at which point
Woolworth was used to compute backpay; Eagle Express
Co., 273 NLRB 501, 503 (1984), in which Ogle was ap-
plied to a unilateral failure to pay contractual wage rates
and cost-of-living increases; Henry Miller Spring Co., 273
NLRB 472 fn. 4 (1984); Consumat Systems, 273 NLRB
410 fn. 2 (1984), in which Ogle was used to remedy an
unlawful withdrawal of recognition and refusal to sign a
collective-bargaining agreement; McWhorter Trucking,
273 NLRB 369 (1984); Atlas Glass & Mirror Co., 273
NLRB 179, 181 (1984); S/S Research Corp., 272 NLRB
No. 151 fn. 3 (Nov. 2, 1984) (not reported in Board vol-
7 In New B, the Woolworth computation was ordered to make whole
employees whose employment status was affected by the employer's uni-
lateral termination of manufactunng operations.
8 The New B and Hedaya rules for application of the formulas are not
new. In Olympia Plastics Corp., 266 NLRB 519 fn, 4 (1983), Ogle was ap-
plied to a refusal-to-bargain violation that, as herein, resulted in reduced
work to urut employees and applied Woolworth to compensate for money
lost because of an employer's unlawful discrimination.
FORD BROS. 215
utiles) Nationwide Painting Co., 272 NLRB No. 128 (Oct.
22, 1984) (not reported in Board volumes); Maislin Trans-
port of Delaware, 272 NLRB No. 55, slip op. at 5 (Sept.
25, 1984) (not reported in Board volumes); Truck & Dock
Services, 272 NLRB 592, 593 (1984); Lauren Mfg Co., 270
NLRB 1307, 1309 (1984); European Parts Exchange, 270
NLRB 1244 fn. 2 (1984); Contractors Excavating, 270
NLRB 1189, 1192 fn. 6 (1984), factually analogous to the
instant case; Frontier Hotel, 270 NLRB 1142, 1145 (1984);
Dane County Dairy, 269 NLRB 218, 222 (1984); E. G.
Sprinkler Corp., 268 NLRB 1241 fn. 5 (1984); American
Navigation Co., 268 NLRB 426, 429 fn. 9 (1983) John
Morrell & Co., 268 NLRB 304 (1983); Ross Crane Rental
Corp., 267 NLRB 415, 417 (1983); Nabco Corp., 266
NLRB 687, 696 (1983); Granite State Distributors, 266
NLRB 457 fn, 2 (1983); Jolie Belts Co., 265 NLRB 1130,
1131 (1982), in which Ogle was applied to remedy a dis-
criminatory reduction in working hours (8(a)(3) viola-
tion) in situations where employees suffered no cessation
of employment status; Peter Poor Ambulance Service, 265
NLRB 1119, 1124 fn. 4 (1982); Cutter Laboratories, 265
NLRB 577, 579 (1982); Artim Transportation System, 264
NLRB 139 fn. 2 (1982); Huttig Sash & Door Co., 263
NLRB 1256, 1257 (1982), Ogle used to remedy 8(a)(1)
violation involving withholding employee wage increase
in situation in which there was no cessation of employ-
ment status; Delano Hotel, 263 NLRB 1418 (1982); Rock-
land Lake Manor, 263 NLRB 1062, 1071 fn. 38 (1982);
Asbestos Workers Local 53 (Insul-Contractors), 262 NLRB
934 fn. 2 (1982); Fitzpatrick Electric, 242 NLRB 739
(1979); Western Boot & Shoe, 205 NLRB 999, 1007 fit 36
(1973); Trade Mart, 204 NLRB 1, 5 fn. 5 (1973); Terri-
Flex Products, 200 NLRB 3, 15 (1972); and Paramount
Plastic Fabricators, 190 NLRB 170 (1971).9
(3) The Board itself, in Ogle, established the precedent
for deviating from use of a clearly inappropriate backpay
formula.
The Board, in Ogle (183 NLRB at 683), wisely ob-
served: "Notwithstanding that our original Decision and
Order . . . inadvertently specified that the Woolworth
formula should be applied in computing the amounts due
employees, it seems obvious and we find that the formula
has no application." The Board then reviewed the ration-
ale for using Woolworth. Finally, the Board concluded
that "A quarterly computation is unnecessary and un-
warranted," in factual situations analogous to Ogle. Thus,
the Board effectively vacated its earlier original directive
(Ogle, 149 NLRB 545, 547 fn. 8 (1964), enfd. 395 F.2d
497 (6th Cir. 1967), cert. denied 389 U.S. 843) to com-
pute backpay by the Woolworth formula.
9 The General Counsel correctly cited Royal Contractors, 271 NLRB
No. 208 (Aug. 31, 1984) (not published in bound volumes of Board deci-
sions) as the solitary exception to the manner in which the Board applied
Ogle and Woolworth in the above-cited cases uncovered by my research.
Royal contains a backpay remedy under Ogle for repudiation of contrac-
tual wages and benefits and also discriminatory discharges. The Board's
summary judgment decision did not explain its failure to order a Wool-
worth computation of the backpay that resulted from the discharges. In
any event, I conclude the Board did not intend Royal Industrial to
change the earlier-used principles. My conclusion is based on the consist-
ent application of those principles in the above-cited cases decided by the
Board after Royal Industrial.
The original Ogle case involved even less impressive
circumstances than the instant case for deviation from
the Woolworth computation. There, in salient part, the
employer was found guilty of an 8(a)(5) refusal to bar-
gain when it failed to sign a collective-bargaining agree-
ment that contained terms on which agreements had
been reached and refused to process grievances. The
Board's trial examiner found the employer unlawfully re-
fused to bargain. But he did not recommend make-whole
remedial relief for those violations. Instead, the Board
itself added the make-whole provisions as a remedy for
those violations. Despite this, in the backpay proceeding
(183 NLRB 682) the Board later concluded (as noted
above) that Woolworth was "unnecessary and unwarrant-
ed." In effect, the Board acted on reconsideration of the
efficacy of the Woolworth formula to the circumstances
present in Ogle.
In contrast, I have earlier observed the Board has not
at all explicitly addressed the formula-for-computation
issue in the instant case. The current proceeding presents
the Board its first opportunity to review the propriety of
Judge Stone's recommended backpay formula. In this
context, it is my obligation to make recommendations to
assist the Board's review.
The weight of applicable precedent leads me to con-
clude that Judge Stone's reference to Woolworth is an in-
advertent error in the circumstances of the instant case.
The Board customarily has corrected such inadvertences
by making necessary amendments to the decisions of its
administrative law judges, e.g., the following cases cited
above: Pete O'Dell & Sons, fn. 1; Dane County, 273
NLRB 1711 fn. 2; Olympia Plastics, compare fit 4 at 519
to 542; Consumat Systems; Truck & Dock Services; Euro-
pean Parts Exchange; Granite State Distributors; Jolie
Belts; Delano Hotel; Huttig Sash; Asbestos Workers Local
53; and Fitzpatrick Electric, fn. 1.
The General Counsel cited International Harvester Co.,
204 NLRB 710 (1973). There, the Board ordered back-
pay computation pursuant to Woolworth to remedy impo-
sition of discriminatory job assignments and denial of
work opportunities and training. The General Counsel
argues the unlawful discriminatory conduct in Interna-
tional Harvester is analogous to the 8(a)(3) violations in
the instant case. I disagree. I find International Harvester
materially distinguishable. In that case, the 8(a)(3) viola-
tion was based on clear and convincing evidence of un-
lawful discriminatory motivation. The instant 8(a)(3) vio-
lations flow, instead, from the Employer's unilateral re-
pudiation of its collective-bargaining obligations. Judge
Stone's conclusions of law regarding the 8(a)(3) violation
reflect this. Thus, Judge Stone concluded that it was the
transfer to Kenova that constituted the 8(a)(3) violation.
(Conclusion of Law 4.) The extensive Board precedent
cited above convinces me that the Ogle formula is to be
used to make whole employees who suffer monetary
losses from their employer's misconduct of the type
present in this case.
On the foregoing I find the backpay due in the instant
case should be computed in the manner prescribed in
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ogle, with interest as set forth in Florida Steel Corp., 231
NLRB 651 (1977)."
B. Identification of Discriminatees
1. The facts
The backpay specification claims Ellis Davis, Tex
Devore, Glenn Hopper, Fred Mann, Donald Rambo, and
Clayton Wheeler are entitled to backpay. Judge Stone
expressly identified these individuals among those em-
ployees who were transferred to Kenova. Specifically,
Judge Stone found these six employees were employed
at Kenova at rates of pay less than the applicable Coal
Grove contractual rates."
Judge Stone did not explain the precise basis for his
finding that these six employees had been transferred to
Kenova. Also, Judge Stone's decision contains no facts
that trace the employment history of these employees
during the backpay period.12
At the instant hearing, the parties stipulated that: F.
Mann actually did not transfer to Kenova; E. Davis was
transferred, but returned to Coal Grove on 1 October
1980. His transfer to Kenova was only of 1-day duration;
T. Devore and D. Rambo were transferred, but returned
to Coal Grove on 2 October 1980. Their transfers to
Kenova were of 2 days' duration; G. Hopper was trans-
ferred, but returned to Coal Grove on 6 October 1980;
and C Wheeler was transferred, but returned to Coal
Grove on 13 October 1980.
The Employer asserts these facts show these six discri-
minatees are indistinguishable from 13 unit employees
who were never transferred to Kenova. Neither the
Board nor Judge Stone found any of those 13 to be a dis-
criminatee. None of them is named as a potential back-
pay beneficiary in the instant proceeding."
The General Counsel theorizes that Davis, Devore,
Hopper, Mann, Rambo, and Wheeler are entitled to be
made whole for the value of diminished work opportuni-
ties caused by the transfer of work. Accordingly, the
backpay claimed for these employees covers the entire
time the transferred work remained at Kenova, without
regard to the fact these discriminatees either actually did
not transfer to Kenova or returned to Coal Grove short-
ly after the transfer.
Natalie B. Morton, the Regional Office field examiner
who prepared the instant specification, explained back-
pay is claimed for these six employees because "the
Board's Order, as enforced, specifically finds that the
transfer of work from Coal Grove to Kenova was a [sic]
specific and separate violation of the Act." (Tr. 196.)
Also, paragraph 1(b) of the specification asserts the ter-
mination date for the backpay period corresponds to the
10 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
11 Judge Stone included the names of these six employees again in his
recommended make-whole order. The Board also included these six indi-
viduals' names in its revised notice to employees Thus, these six employ-
ees were identified as being entitled to be made whole for monetary
losses incurred from the failure to pay the Coal Grove wage rates.
12 The parties agree the backpay period runs from 28 September 1980
to 1 June 1982 This encompasses 87 weeks
13 Judge Stone found the bargaining unit consisted of 47 employees,
the 34 transferees to Kenova, plus the 13 who remained at Coal Grove at
all times
date the transferred bargaining unit work was returned to
Coal Grove.
Morton engaged in a herculean, but (as the General
Counsel admits) imperfect, effort to reconstruct the as-
signment process during the backpay period by seniority
as required in the Coal Grove collective-bargaining
agreement. Thus, Morton reconstructed the assignment
process by first reestablishing a single seniority roster of
all unit employees regardless of whether their work
domicile was Coal Grove or Kenova. Then, Morton as-
signed the most lucrative unit work actually performed
during the backpay period to the unit employees, in se-
niority order, on a weekly basis." Morton next factored
in other relevant information and engaged in a rather
elaborate and complex computerized backpay analysis."
The evidence directly relevant to the issue under con-
sideration, but not yet reported, is sparse. It was present-
ed by Morton, Rambo, Wheeler, and Mann. That evi-
dence is summarized as follows.
Morton testified that each of the six discriminatees in
dispute worked under the Employer's collective-bargain-
ing agreement with the Union while at Coal Grove
during the backpay period, except for the limited time
each spent at Kenova. Further, Morton testified that all
six employees received the wages and other benefits con-
tained in the Coal Grove contract." Morton also testi-
fied that the Employer applied the Coal Grove collec-
tive-bargaining agreement to these 6 discriminatees in
precisely the same manner as it did to the 13 employees
who had remained at Coal Grove.
Rambo and Wheeler testified as the General Counsel's
witnesses. Each confirmed the brevity of his tenure at
Kenova and presented the amounts of his interim earn-
ings Each presented additional testimony apparently de-
signed to show that the transfer of work to Kenova di-
minished his work opportunities at Coal Grove during
the backpay period. Thus, Rambo testified he had been
laid off an unspecified length of time after he returned to
Coal Grove from his 2-day transfer to Kenova. Rambo
then bid for, and worked on, a so-called dedicated truck
route."
Wheeler testified that he "was making substantially
less" during his approximately 2 weeks at Kenova. Also
he testified he had "substantially less" work at Coal
Grove after his return from, than before his transfer to,
14 In actual practice, employees bid for jobs in seniority order on a
daily basis.
I find it unnecessary to fully descnbe the process m this decision.
Morton described her activity during direct examination. (Tr. 42-62.)
16 In fact, certain contractual increases were not implemented in 1981.
A separate unfair labor practice proceeding, 272 NLRB 1222 (1984),
ensued. There, the Board found the Employer unlawfully refused to bar-
gain by its unilateral discontinuance of compliance With the Coal Grove
contractlial workweek guarantee and failure to implement contractual
wage increases between 16 May 1981 and 8 May 1982 The Board's
make-whole remedy in that case currently is pending before the US.
Court of Appeals for the Sixth Circuit. The backpay that may be due any
of the six disputed employees under the Board's Order in 272 NLRB
1222, of course, is excluded from the instant specification.
17 No party disputes that an employee who bids successfully for a
dedicated run precludes selection of work by seniority. In fact, Morton
did not integrate the impact of dedicated runs when making her backpay
calculations
FORD BROS. 217
Kenova. The record shows Wheeler had been laid off
for 11 weeks in 1981.
The Employer contends Davis, Devore, Hopper,
Mann, Rambo, and Wheeler are improperly included as
potential recipients of backpay. The Employer claims no
backpay is due any of these individuals. Two principal
reasons are given: (1) they are, in effect, in the same po-
sition as the 13 unit employees who were never trans-
ferred to Kenova; and (2) there is no record evidence to
support the General Counsel's theory that the six em-
ployees in dispute are entitled to compensation for lost
work opportunities.
Mann testified on behalf of the Employer. Mann ex-
plained that jobs were assigned on a daily basis in senior-
ity order the day before a job was scheduled to be per-
formed. If an employee was unavailable for work (e.g.,
illness or vacation), job assignments were offered to the
next most senior employee.
Mann contradicted Morton's major assumption that
the most senior employees would perform the most lu-
crative assignments. Mann explained that both the most
senior and second most senior employees frequently ac-
cepted a particular assignment that was not the most lu-
crative. Mann testified that the most senior employee
sometimes accepted assignment to less lucrative jobs for
personal reasons such as satisfying a desire to eliminate
or reduce the frequency that employee was required to
make overnight trips. Mann was unchallenged in this tes-
timony.
Finally, Mann, in generalized testimony, claimed
"there wasn't much difference" in his job at Coal Grove
before and after the transfer of work—that his take home
pay was less in 1982—and that he might have moved up
one position on the seniority list during the backpay
period.
2. Analysis
The General Counsel's claim for backpay on behalf of
the six disputed employees is appealing—but only super-
ficially. At first glance, these six employees appear enti-
tled to share a backpay award in the manner the General
Counsel contends First, the Board's Order, as enforced,
explicitly identifies each as a discriminatee. Second, the
General Counsel's backpay claim for lost work conceiv-
ably could comprise a valid basis for a monetary award.
But this is true only if the evidence supports such pay-
ment as a necessary ingredient of making any, or all, of
these employees whole; and if the evidence demonstrates
the validity of the formula used for computation.
I conclude the General Counsel's reliance on the
Board's inclusion of these employees as persons entitled
to backpay is misplaced. The evidence does not support
a conclusion that Davis, Devore, Hopper, Mann, Rambo,
and Wheeler are entitled to backpay encompassing the
fun time the bargaining unit work remained at Kenova.
The Board's explicit inclusion of their names as discri-
minatees does not dispose of the instant issue. Such inclu-
sion, in the particular circumstances of this case, merely
identifies these persons as Members of a group who may
be entitled to receive the benefit of the Board's make-
whole remedy. The breadth, scope, and application of
that remedy is expressly the purpose of this supplemental
proceeding.
My conclusions are derived from the following:
(a) The record shows it is inaccurate to claim Mann is
properly, includable as a discriminatee. Facts, not adduced
during the underlying unfair labor practice hearing,
show he never left Coal Grove. Clearly, Mann previous-
ly was identified as a discriminatee without the benefit of
all the relevant facts. I shall recommend appropriate cor-
rective action.
(b) The record contains insufficient evidence of lost work
opportunities to Davis, Devore, Hopper, Rambo, and Wheel-
er after their return to Coal Grove. The lost-work theory
is predicated on an assumption that the most lucrative
jobs are performed by the most senior employees. I con-
clude the record as a whole reflects that assumption is
not warranted.
Wheeler presented the strongest evidence favoring the
General Counsel's position. However, I find Wheeler's
testimony not probative. Wheeler's claim of substantial
reductions in wages at Kenova and work opportunities
after return to Coal Grove is attributable to his 11-week
layoff." The record contains no documentary evidence
by which the claimed diminished work opportunities can
be traced to the transfer of unit work to Kenova. This
context, in concert with other relevant evidence to be
discussed below, makes it exceedingly difficult (if not
virtually impossible) to adopt the presumption implicit in
the General Counsel's theory that all wage and work op-
portunity reductions suffered by unit employees during
the time unit work was at Kenova were caused by the
unfair labor practices that gave rise to this backpay hear-
ing.
Rambo's testimony, likewise, does not serve to support
the validity of the General Counsel's assumptions. The
record shows a reduction in Rambo's income during the
backpay period. However, his testimony that he was a
successful bidder on a dedicated route leaves question-
able the extent to which his diminished income may be
ascribed to voluntary choice rather than to the unlawful
transfer of work to Kenova. I can find no evidence in
this record to resolve this question. As earlier noted, the
record shows that the General Counsel's reconstruction
of work assignments did not reflect the effect of bids for
dedicated routes.
Mann directly contradicted the assumption that the
most senior employees received the most lucrative as-
signments. This refutation occurred when he explained
the most senior employees commonly bid for jobs on
grounds of personal convenience rather than financial
reward. Mann's testimony is unrefuted in this regard.
The totality of evidence described above persuades me
that the lost-work theory is invalid both as a measure of
backpay and identification of individuals entitled to such
an award. I have considered the able, conscientious, and
meticulous manner by which Morton prepared the speci-
fication. It was compiled from work actually performed
during the backpay period. Nonetheless, I find the basic
18 No party or pleading alleges that the layoff constituted an unfair
labor practice or was in any way connected to the unlawful transfer of
unit work to Kenova.
218
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
premise of those computations is flawed. The evidence in
this record casts such serious doubt on the validity of the
underlying assumptions as to lead me to conclude that
the lost-work theory does not provide an accurate meas-
ure of backpay liability.
On the foregoing, I find that Mann should not be iden-
tified as a backpay recipient; and Davis, Devore,
Hopper, Rambo, and Wheeler are discriminatees entitled
to backpay only to the extent of any monetary loss each
may have incurred during the time Kenova was his work
domicile.
C. The Appropriate Formula
My obligation is to determine the most accurate
method of calculating the backpay period. J. S. Alberici
Construction Co., 249 NLRB 751 (1980); American Mfg.
Co., 167 NLRB 520 (1967). This obligation is coupled
with the fundamental notion that uncertainties will be as-
sessed against the wrongdoer. NLRB v. Miami Coca-Cola
Bottling Co., 360 F.2d 569 (5th Cir. 1966). Accordingly, I
have considered the formulas and calculations proposed
by the General Counsel and the Employer with these
principles in mind.19
The General Counsel proposes use of a conventional
formula. Specifically, the General Counsel used the
fourth formula prescribed in the Board's Casehandling
Manual, Part Three, Compliance Proceedings, Section
10544. Nevertheless, I conclude the General Counsel's
formula is not the appropriate one to use in all the cir-
cumstances of this case. That formula is among four
gross backpay formulas suggested in the Board's Compli-
ance Manual, Section 10536 et seq.
Normally, the first two formulas are not used in situa-
tions in which the backpay period is of long duration
and the employer's business is seasonal. I find the instant
87-week backpay period a factor that the General Coun-
sel asserts tends to disqualify the use of the first two for-
mulas in this case. Also, I find the evidence supports the
General Counsel's uncontradicted contention that the
Employer's work was seasonal. Specifically, employee I.
Smith credibly testified that work slowed down during
the summer of 1980; and documents in the record show a
notable drop in actual earnings among the discriminatees
when a comparison is made of their third and second
quarter 1980 earnings. (Compare "Actual pay" columns,
G.C. EXh. 7 and R. Exh. 2 for Carr, Davis, Devore,
Dotson, Howard, McGinnis, Menshouse, Montavon, C.
Napier, L. Napier, Rambo, Riffe, Robinson, Ross, K. R.
Spears, I. Smith, Sparks, Spears, Stover, Truesdell, and
Wheeler.)
The third formula is based on earnings of employees
who did work before the unfair labor practices and
during the backpay period that was similar in content,
rate, and most conditions to the discriminatees. I agree
with the General Counsel that the split of the bargaining
unit between Kenova and Coal Grove creates a major
impediment to application of the third formula to the
case at bar.
19 I have considered every bit of evidence and argument of counsel,
although not each is described or discussed. Omitted material is deemed
irrelevant, superfluous, or not highly probative.
The fourth formula normally is designed for use when
"Use of the other formulas . . . is not possible or appro-
priate" (Compliance Manual, Sec. 10544.2 (b)). The Gen-
eral Counsel concedes the formula in the specification is
imperfect, but argues the fourth formula is clearly the
"most adoptable to the instant case." (G,C. Br. 7.) The
Employer contends the General Counsel's formula ig-
nores available historic factual data and is improperly
and, in an unprecedented manner, based on hypothetical
forecasts. In essence, the Employer proposes an alternate
method of computation that it claims results in legitimate
predictions based on preexisting factual data.
I agree that the General Counsel's use of the fourth
formula is unwarranted in the instant case. I find an in-
surmountable obstacle to approval of the General Coun-
sel's proposed formula. The formula's appropriateness
depends on the accuracy of the General Counsel's proc-
ess of "reconstruction" of job assignments during the
backpay period. In turn, whether the reconstruction
process was accurate requires a finding that there is va-
lidity to the General Counsel's assumption that the most
lucrative jobs went to the most senior employees. I have
found the General Counsel's assumption is invalid be-
cause it is not supported by the record as a whole. This
finding, in my view, tends to render the General Coun-
sel's formula sufficiently speculative and conjectural as to
require its rejection.
Despite my earlier observation that the length of the
backpay period and seasonal nature of the Employer's
operation lends some support to the General Counsel's
rejection of the first two formulas, I am persuaded that
the erroneous assumption on which the General Counsel
proceeded to use the fourth formula overrides whatever
factors and criteria would otherwise have made use of
the first formula inappropriate in this case.
The Employer proposes a formula that utilizes histori-
cal information favored by the first two formulas. The
Employer claims its formula is "simple, straightforward
and traditional," being based on a comparison of a discri-
minatee's gross earnings during the backpay period with
the same individuals' gross earnings during the calendar
quarter immediately preceding the unfair labor practices,
extrapolated to the backpay period and adjusted to re-
flect required contractual increases in compensation.
My task is to recommend a realistic, fair, and equitable
method for making whole those discriminatees entitled to
backpay. In my view, there is sufficient available evi-
dence in this record to use the discriminatees' actual his-
torical earnings, adjusted to reflect necessary and appro-
priate changes during the backpay period. The Board has
declared an actual earnings formula is "the most fair,
suitable, and equitable formula to employ," in the ab-
sence of special circumstances. See, e.g., Chef Nathan
Sez Eat Here, 201 NLRB 343, 345 (1973).
I conclude the Employer's proposal most closely ap-
proximates the Board's make-whole principles. That pro-
posal, like the first formula, utilizes actual earnings and
emanates from the discriminatees' employment history.
But it is deficient in one respect. The formula does not
utilize a representative work period to make the pre-
unfair labor practice gross backpay computation. In
Base Extrapo-
earnings lation (-)
extrapolat- factored
ed to at 1.077
backpay (gross
period backpay)
Actual

Actual
Name earnings Earnings
1980/2

1980/3
Actual (=--)
interim
earnings"
Interim
Ex-
penses
Net sum
due
Differ-
ence
FORD BROS. 219
effect, the Employer preserves the advantage of its slow
business season by using the third quarter 1980 earnings
as the base computation for each of the discriminatees.
The resultant net backpay cannot fairly reflect the most
accurate sum required for a complete remedy.
I have earlier explicitly identified the names of discri-
minatees whose third quarter 1980 earnings were notably
less than for the second quarter 1980. Employee I.
Smith's testimony attributes that condition to the season-
al slowdown. I can find no evidence or persuasive argu-
ment by which the Employer seeks to otherwise explain
the earnings differences. Where, as here, there are uncer-
tainties such as the impact of business fluctuations, they
will be assessed against the wrongdoer. NLRB v. Miami
Coca-Cola Bottling Co., supra. On the state of this record,
I find it necessary to adjust the Employer's formula so
that gross backpay will be based on second quarter 1980
actual earnings for some of the discriminatees (see G.C.
Exh. 7). This adjustment is based on my presumption
that their lesser third quarter 1980 earnings were due to
seasonal conditions.2°
On all the foregoing, I find the most appropriate for-
mula for backpay computation is one that uses the actual
earnings either for second or third quarter 1980 (deter-
mined according to the criteria discussed immediately
above), as its base. That amount first will be extrapolated
to the 87-week backpay period. Then, the resulting sum
will be adjusted by a factor of 1.077 21 to account for re-
quired contractual compensation increases. 22 The result-
ing sums will comprise the gross backpay, from which
will be deducted actual interim earnings during the back-
pay period. The difference, if any, plus interim ex-
penses, 23 will constitute the net amount due.24
24 In my view, the adjustment wiil provide a more representative
period than the Employer proposes on which to compute backpay for the
affected discriminatees. The' records show a few chscriminatees earned
more during third quarter 1980 than the previous calendar quarter. For
them, I adopt the Employer's proposal to use third quarter earnings as a
computation base. The earnings increases during the slowdown period
remain unexplained on the record. However, I consider the Employer's
use of those increased sums in its proposed formula tantamount to an ad-
mission that those earnings actually are representative.
22 Undisputed by the General Counsel.
22 Various other adjustments used by the General Counsel are deemed
unnecessary. I find they are encompassed by implication by my finding
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Ford Brothers, Inc., Kenova, West
Virginia, its officers, agents, successors, and assigns shall
make whole the individuals listed below by paying to
them the sums set opposite their names. The amounts
due each discriminatee shall be paid with interest com-
puted in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977).26
Burd, Leslie $ 8,654.41
Carr, Glenn 9,916.53
Devore, Tex 34.50
Dickerson, Homer 2,596.51
Dotson, Boyce 108.52
Holbrook, Donald 61.50
Howard, Donald 230.77
Menshouse, George 970.88
Montavon, Harold 63.96
Napier, Elmer 6,906.63
Napier, Lester 2,143.80
Rambo, Donald 117.36
Riffe, William 22,303.91
Ross, Robert 572.18
Skeens, Kenneth R. 710.89
Sparks, Harry 4,750.46
Stover, William 4,488.31
Truesdell, Hancel 8,921.87
Ward, Thomas 7,724.77
Total $81,277.76
that it is Ogle, rather than Woolworth, which governs computation of the
remedy in this case.
23 The Employer has admitted the allegations contained in par. 1(1) of
the second amended backpay specification. I find the Employer liable for
reimbursement of such expenses that were incurred by reason of the un-
lawful transfer to Kenova.
24 The computations pursuant to this formula are contained in the at-
tached Appendix.
25 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
26 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
APPENDIX4
Burd, Leslie 'N.A. $7,202.34 $48,015.60 $51,712.80 $43.058.39 $8,654.41 0 $8,654.41
Carr, Glenn $7,355.44 N.A. 48,903.18 52,668.72 44,892.39 7,776.33 $2,140.20 9,916.53
Davis, Ellis 7,783.98 N.A. 51,893.46 55,889.26 58,530.51 dNone 0 None
Devore, Tex 8,142.74 N.A. 54,285.20 58,465.17 53,460.44 034.50 0 34.50
Dickerson, Homer N.A. 7,013.62 46,757.40 50,357.72 47,761.21 2,596.51 0 2,596.51
Dotson, Boyce 6,491.60 N.A. 43,277.55 46,609.92 46,501.40 108.52 0 108.52
Grim, Harold (WilliamY 7,105.68 N.A. g18,948.48 20,407.51 "22,247.83 None 0 None
Hamilton, Carli None None None None 22,749.56 None 0 None
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIXa-Continued
Base Extrapo-
earnings lation (-)Actual Actual Actual (=) Interimextrapolat- factored Differ- Net sumName earnings Earnings ed to at 1.077 interim ence Ex- due1980/2 1980/3 earningsb pensesbackpay (gross
period backpay)
Holbrook, Donald'
Hopper, Glen
Howard, Donald
Mann, Fred
McGinnis, James
Menshouse, George
Montavon, Harold
Napier, Chester
Napier, Elmer
Napier, Lester
Rambo, Donald
Rife, William
Robinson, (Robert) Dean
Ross, Robert
Skeens, Kenneth R
Skeens, Kenneth L.'
Smith, Ivan
Smith, Robert'
Sparks, Harry
Spears, Charles
Stover, William
Thomas, Johni
Truesdell, Hancel
Ward, Thomas
Wheeler, Clayton
Total
"The appendix contains the name of each individual for whom backpay is claimed in the second amended backpay specification.
Footnotes recapitulate my fmdings and disposition of the issues. All members are expressed in United States dollars and cents.
k The total of actual interim earnings as appear on G.C. Exh. 7 and R. Exh 2 Also, refer to stipulation (G.C. Exh. 9).
C Not applicable.
d At Kenova only 2 days. In any event, interim earnings exceeded gross pay.
e Actual difference is 5004.73. At Kenova only 3 days. Weekly difference is 57.53 (5004.73 ± 87 wks.). Daily difference is 11.50
(57.50 ± 5).
' Employer concurs in use of 2d quarter. Discriminatee on sick leave during 3d quarter.
g Adjusted to reflect sick leave.
k Second amended backpay specification shows total interim earnings were 22,329.08. Discrepancy is irrelevant. Earnings
exceeded gross backpay.
'Adjusted by Employer to reflect sickness, resignation, and retirement. Unchallenged by the General Counsel because adjustment
formula unknown. I accept adjustments. Other Employer computations are accurate. Records on which adjustments are based were
available in hearing room or could have been readily procured. Also see fn. 8, second amended backpay specification.
' Resigned 30 April 1981. No 2d quarter 1980 earnings available.
k At Kenova only 7 days. In any event, interim earnings exceeded gross backpay.
'Actual difference is 6,964.70, but did not transfer to Kenova.
Actual difference 17,016.26. At Kenova only 3 days. Weekly difference is 195.58 (17,016.26 ÷ 87 wks.). Daily difference is
39.12 (195.58 ÷ 5).
n Actual difference 17,152.53. At Kenova only 14 days. Weekly difference is 197.15 (17,152.53 ÷ 87 wks.). Daily difference is
39.43 (197.15 ÷ 5).
N.A. 332.42 803.37 865.23 3,073.62 None 61.50 61.50
N.A. 2,464.25 16,428.20 17,693.17 26,454.52 bNone 0 None
2,075.83 N.A. 13,838.94 14,904.53 24,418.67 None 230.77 230.77
N.A. 7,847.79 52,318.60 56,347.13 49,382.43 None 0 None
6,024.57 N.A. 40,164.00 43,256.63 46,589.98 None 0 None
3,025.61 N.A. 20,170.83 21,726.16 26,033.83 None 970.88 970.88
676.15 N.A. 4,507.69 4,854.78 13,100.50 None 63.96 63.96
5,917.46 N.A. 39,449.93 42,487.58 48,087.49 None 0 None
N.A. 7,503.60 50,024.00 53,875.85 48,217.67 5,658.18 1,248.45 6,906.63
7,821.52 N.A. 52,143.73 56,158.79 54,014.99 2,143.80 0 2,143.80
6,382.59 N.A. 42,550.81 45,827.23 28,810.97 m 117.36 0 117.36
4,400.78 N.A. 29,338.68 31,597.76 9,293.85 22,303.91 0 22,303.91
27782.52 N.A. 18,550.23 19,978.59 26,968.60 None 0 None
5,448.33 N.A. 36,322.38 39,119.20 39,117.74 1.46 570.72 572.18
6,204.54 N.A. 41,363.81 44,548.82 44,265.97 282.85 428.04 710.89
N.A. 418.80 802.70 864.51 1,571.79 None 0 None
4,627.80 N.A. 30,852.13 33,227.77 33,952.40 None 0 None
3,365.35 N.A. 17,387,59 18,726.43 20,694.66 None 0 None
4,967.60 N.A. 33,117.50 35,667.55 31,617.37 4,050.18 700.28 4,750.46
2,264.27 N.A. 15,095.21 16,257.54 28,510.41 None 0 None
6,766.59 N.A. 45,110.83 48,584.40 44,738.11 3,846.25 642.06 4,488.31
N.A. 269.61 1,572.73 1,693.83 12,563.84 None 0 None
7,459.95 N.A. 49,733.25 53,562.71 46,245.99 7,316.72 1,605.15 8,921.87
N.A. 8,511.59 56,744.00 61,113.89 53,389.12 7,724.77 0 7,724.77
7,877.77 N.A. 52,518.73 56,562.67 39,410.14 "552.02 0 None
$81,277.76