Greyhound Taxi Co., Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1985

274 N.L.R.B. 459 (N.L.R.B. 1985)

GREYHOUND TAXI CO
Greyhound Taxi Co., Inc . and Robert J. Sans and
Automotive Teamsters , Chauffeurs and Miscel-
laneous Employees Local 165, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Harold
L. Wakefield . Cases 20-CA-10868, 20-CA-
12909, 20-CA-10892, and 20-CA-11154
27 February 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 4 June 1982 Administrative Law Judge Wil-
liam L. Schmidt issued the attached supplemental
decision.' The Respondent filed exceptions and a
supporting brief, and the General Counsel filed a
brief in support of the judge's supplemental deci-
sion.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge' s rulings,
findings, and conclusions as modified and to adopt
the recommended Order as modified.
In the underlying unfair labor practice proceed-
ing the Board determined that the Respondent had
constructively discharged Wakefield by threatening
and assaulting him. The assault caused minor physi-
cal injuries which apparently incapacitated Wake-
field for approximately 2 weeks. The Respondent
was liable for backpay during that period. Ameri-
can Mfg. Co. of Texas, 167 NLRB 520, 522 (1967).
Wakefield concededly remained out of the job
market for over 5 years after that due to what a fo-
rensic psychiatrist testifying for the General Coun-
sel described as a psychological disability, which
allowed him to go to college but not to work. The
judge found that the Respondent caused and there-
fore is liable for the psychological disability. We
accept the judge's crediting of the evidence that
Wakefield was disabled inasmuch as that evidence
was uncontradicted. But we part company on the
question of responsibility.
Under American Mfg., supra, a respondent in a
backpay proceeding meets its burden for the tolling
of backpay by showing that the discriminatee was
unavailable for employment. This the Respondent
has shown here. At that point the burden shifted to
the General Counsel to rebut his defense by show-
ing that the unavailability was due to the Respond-
ent's unlawful conduct. Ibid. Even when such a
showing is made in rebuttal, we do not know that
the Board should be in the business of making
' The Board's original Decision and Order is reported at 234 NLRB
865 (1978)
459
open-ended awards for disability in the manner of a
court in a civil tort action. See Graves Trucking,
Inc. v. NLRB, 692 F.2d 470, 476-477 (7th Cir.
1982). In any event, here the General Counsel has
not sustained his burden as to the cause and effect.
The judge grossly oversimplified the psychiatric
testimony when he characterized Dr. Groesbeck's
conclusion as being that Wakefield's emotional dif-
ficulties "resulted directly from the circumstances
surrounding the attack upon him and the loss of his
job." It is undisputed that Wakefield had required
psychiatric treatment before he was employed by
the Respondent. His employment history was char-
acterized by unhappiness with previous employers
and with the Respondent for some time prior to
any unfair labor practices. Dr. Groesbeck, the Gen-
eral Counsel's principal psychiatric witness, testi-
fied that Wakefield was predisposed to his recent
psychiatric condition by his lifetime pattern-that
he was not "a fully capable, functioning individ-
ual"-before his experiences with the Respondent.
Dr. Groesbeck testified that the recent disability
was the cumulative effect of a series of incidents
including some that preceded the unfair labor prac-
tices and to a lesser extent some that did not even
involve the Respondent. Difficult relations with his
own union also affected Wakefield's emotional
equilibrium.
The General Counsel's attempt to isolate the
unfair labor practices as the immediate triggering
cause fell short. Dr. Groesbeck stated that:
I felt very clearly that the primary element of
causation was the work situation and the varie-
ty of incidents that had taken place that built
up over the previous two years . . . .
Counsel for the General Counsel elicited on redi-
rect examination a statement that "the direct as-
sault would have to be said to be more significant"
than the other incidents. But nowhere is there any
evidence that this incident standing alone would
have had the same effect. Indeed Wakefield had ex-
hibited erratic behavior prior to the constructive
discharge, especially in relation to employment sit-
uations.
For these reasons we find completely unjustified
the judge's conclusion that "Wakefield's disability
resulted solely from the circumstances surrounding
his attack and unlawful termination." Not only is
the evidence contrary to that conclusion, it is insuf-
ficient to support a reasoned conclusion that Wake-
field would have been fit for work had the unfair
labor practices not occurred. In these circum-
stances the Respondent's backpay obligations ter-
minated when Wakefield recovered from his minor
physical injuries but remained out of the job
274 NLRB No. 60
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
market because of a preexisting psychological dis-
ability. As the judge has provided us with no basis
for determining the net backpay due Wakefield for
the period of his physical disability we shall
remand the backpay proceeding as to Wakefield to
the judge in order to have him make that determi-
nation consistent herewith. We shall adopt his rec-
ommended Order as to employee Sans.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Greyhound Taxi Co., Inc., Sacramento,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Delete paragraphs 2(a) and (b) and renumber
the subsequent paragraph accordingly.
IT IS FURTHER ORDERED that this proceeding is
remanded to the administrative law judge for the
purpose of determining the amount of backpay and
other restoration of benefits due to Harold L.
Wakefield consistent with this Supplemental Deci-
sion and Order.
MEMBER DENNIS, dissenting.
Contrary to my colleagues, I would not overturn
the judge's findings in this admittedly unusual case.
The uncontradicted psychiatric testimony estab-
lishes, at the very least, that the Respondent's un-
lawful conduct aggravated Wakefield's nondisa-
bling mental condition into a disabling one. Such
an aggravation of a preexisting condition is all the
proof the Board requires. See Fabric Mart Draper-
ies, 182 NLRB 390 (1970); M.F.A. Milling Co., 170
NLRB 1079, 1080 (1968), enfd. sub nom. Laborers
Local 676, 463 F.2d 953 (D.C. Cir. 1972). A
wrongdoer takes its victims as it finds them.
SUPPLEMENTAL DECISION AND ORDER
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge.
This supplemental proceeding to determine the amount
of backpay due two employees whose employment the
National Labor Relations Board (the Board) previously
found to have been discriminatorily terminated was
heard by me on October 7 and 8, 1981 at Sacramento,
California.' The General Counsel and the Respondent
i The Board's Decision and Order in Cases 20-CA-10868, 20-CA-
10892, and 20-CA-11154, reported at 234 NLRB 865 and referred to
hereinafter as Greyhound 1, issued on February 10, 1978 The Board's
Order in Case 20-CA-12909, wherein the Board adopted the decision
and recommended order of the administrative law judge in the absence of
exceptions, issued on April 11, 1978 It is not officially reported but is
referred to hereinafter as Greyhound II
entered into certain stipulations which provide, inter alia,
that they are unable to agree upon the amount of back-
pay due to Robert J Sans (Sans) and Harold L. Wake-
field (Wakefield) under the terms of the Board's Orders,
and in the event of further judicial proceedings are nec-
essary to enforce said Orders, the only issue before the
court would be the validity of the backpay computation.
Based on the foregoing, the Acting Regional Director
for Region 20 of the Board issued a backpay specifica-
tion dated January 19, 1981, wherein it was alleged that
the total backpay principal due Sans through the third
quarter of the calendar year 1980 was $11,267.50 and
that the Respondent was required to make retirement
contributions on behalf of Sans through the same quarter
in the amount of $283. In addition, the backpay specifica-
tion (as amended by the Acting Regional Director on
July 24, 1981) alleged that the backpay due to Wakefield
through the fourth quarter of 1980 was $37,001 69 and
that the retirement contributions required on behalf of
Wakefield was $1282. The Respondent's operative an-
swers dated May 18 and August 6, 1981, acknowledge a
portion of the monetary liability alleged and deny that
the Respondent is liable as to other portions.
On the entire record in this matter, my observation of
the demeanor of the witnesses who appeared before me,
my careful consideration of the arguments of the General
Counsel and the Respondent at the hearing and in their
posthearing briefs, and my careful consideration of the
decisions in the underlying cases, I make the following
FINDINGS OF FACT
1. THE PRIOR PROCEEDINGS AND THE CONTENTIONS
HERE
Insofar as is pertinent here , the Board found in Grey-
hound I that the Respondent violated Section 8(a)(1) of
the Act on February 13, 1976, when its agents physically
assaulted Wakefield and that it also violated Section
8(a)(3) of the Act when it terminated Wakefield on the
same date. In that same decision , the Board found that
the Respondent violated Section 8(a)(3) of the Act when
it reduced Sans' wages on July 6, 1975, suspended Sans
for I week on October 11, 1975, suspended Sans for 1
day on October 22, 1975, and discharged Sans on Janu-
ary 28 , 1976. In Greyhound II, the Board adopted its ad-
ministrative law judge's finding that the Respondent vio-
lated Section 8(a)(3) and (4) of the Act by reemploying
Sans on January 11, 1977, under conditions more onerous
than his previous conditions of employment and that the
Respondent further violated Section 8 (a)(3) and (4) of
the Act by again discharging Sans on May 17, 1977. To
remedy the discriminatory conduct in Greyhound I, the
Board ordered the Respondent to: (1) offer to each em-
ployee "immediate , full and unconditional reinstatement
to his former position "; and (2) to make each employee
whole "by paying to each a sum of money equal to the
amount he would have earned from the date of the dis-
crimination . . . until such discrimination has been fully
eradicated, less his net interim earnings during the period
of such discrimination"; and (3 ) make Sans whole for the
loss in earnings resulting from the July 1975 reduction in
GREYHOUND TAXI CO 461
wages and the October 1975 suspensions To remedy the
violations found in Greyhound II, the Board ordered the
Respondent to pay Sans "for his loss of earnings which
resulted from the unfair labor practices found [t]herein "
11. THE BACKPAY DUE ROBERT J SANS
A The Pleadings and Issues
The formula adopted by the General Counsel in the
backpay specification for the computation of the gross
backpay due Sans has two essential features. For all
weeks since July 5, 1975, during which Sans was em-
ployed, the General Counsel alleges that Sans is due an
additional $8.50 to compensate him for the reduction in
wages which was imposed on that date as found in Grey-
hound I With respect to those periods when Sans was
unemployed due to the unlawful discharges and suspen-
sions, the General Counsel alleges that the appropriate
measure of Sans' gross backpay is the contractual wage
rate applicable for his position with the Respondent plus
the $8.50 described above multiplied by the number of
weeks, or portions thereof, Sans was not employed. z The
backpay periods, for which the General Counsel applied
this latter formula in the specification, are October 11
through October 17, 1975; January 28, 1976, through
January 9, 1977; and May 17 through July 5, 1977 In ad-
dition, the specification alleges that Sans is entitled to re-
ceive a $10 Christmas bonus paid in December 1976; va-
cation pay (normally paid in the first quarter) which he
would have received in 1976 and 1977 in the amounts of
$206.70 and $226.20, respectively, and contributions to
the contractual pension program in the amount of $60
per calendar quarter for all of 1976 and $43 for the
second quarter of 1977
In its answer, the Respondent admitted that the appro-
priate measure of the gross backpay for the periods when
Sans was not employed was as alleged by the General
Counsel In addition, the Respondent admitted the Gen-
eral Counsel's allegation concerning the 1976 Christmas
bonus and the contributions due the pension program
The Respondent's answer admitted that the vacation
amounts due Sans, as alleged by the General Counsel,
were accurate but alleged affirmatively that the Re-
spondent was entitled to offset the sum of $100 against
the vacation payment due for 1976, pursuant to the terms
of a personal loan Sans received from Respondent's offi-
cial, Mohinder Rye. The Respondent's answer denies
that Sans is entitled to the $8.50 weekly payment for any
period after he accepted reinstatement at the contractual
wage rate on January 9, 1977.3 The Respondent's answer
further alleged affirmatively that Sans failed, during the
periods of his unemployment, to mitigate his losses by
seeking or obtaining interim employment. At the hearing,
the Respondent moved to amend its answer as it per-
tained to the gross backpay formula adopted by the Gen-
2 The contractual wage rate refers to the collective-bargaining agree-
ment in effect between Respondent and the labor organization listed in
the caption which represents certain of Respondent's employees Hereaf-
ter that organization is referred to as the Union
3 In its brief, the Respondent argues that the General Counsel failed to
establish Sans' entitlement to the $8 50 per week "for any period whatso-
ever "
eral Counsel to measure Sans' losses for those periods
when he was unemployed on the ground that the formu-
la wrongfully assumed that Sans would have worked at
all available times during these backpay periods and that
Sans' prior work history did not support such an assump-
tion Finally, the Respondent's answer denied knowledge
of Sans' interim earnings and in its brief Respondent
argued that the unemployment compensation collected
by Sans should be deducted as interim earnings.
Hence, as framed by the pleadings and arguments, the
issues presented for decision with respect to the amount
of Sans' backpay are as follows.
1. Whether the Respondent's amendment pertaining to
the gross backpay formula should be permitted and, if so,
whether the formula should be modified in accord with
that amendment.
2. Whether Sans made a diligent search for interim
employment.
3. Whether the admitted interim earnings in the speci-
fication constitute all of the interim earnings.
4. Whether Sans is entitled to the $8 50 payment for
those periods after January 9, 1977
5 Whether the Respondent is entitled to offset the
loan amount against the vacation pay due in the first
quarter of 1976.
B. Sans' Gross Backpay Formula
With regard to the gross backpay formula for those
periods when Sans was not employed and, in particular,
the Respondent ' s attempt to amend its answer at the
hearing with respect thereto, it is my responsibility to
consider whether the General Counsel 's formula is the
proper one in view of all the facts adduced by the parties
and to make recommendations to the Board as to the
most accurate method of determining the amounts due.
American Mfg Co of Texas, 167 NLRB 520 (1967). Al-
though the Respondent did not address this question in
its brief, that fact is not sufficient to relieve me of the
responsibility imposed by the Board.
In brief, the General Counsel argues that the amend-
ment should not be permitted because of its belated
nature and the provisions of Section 102 54 (b) and (c) of
the Board 's Rules and Regulations.' In effect , the thrust
4 The pertinent portions of Sec 102 54(b) and (c) provide
(b) Contents of the answer to specification- The respondent shall
specifically admit , deny , or explain each and every allegation of the
specification , unless the respondent is without knowledge , in which
case the respondent shall so state , such statement operating as a
denial Denials shall fairly meet the substance of the allegations of
the specification denied When a respondent intends to deny only a
part of an allegation, the respondent shall specify so much of it as is
true and shall deny only the remainder As to all matters within the
knowledge of the respondent , including but not limited to the vari-
ous factors entering into the computation of gross backpay , a general
denial shall not suffice As to such matters, if the respondent disputes
either the accuracy of the figures in the specification or the premises
on which they are based , he shall specifically state the basis for his
disagreement setting forth in detail his position as to the applicable
premises and furnishing the appropriate supporting figures
(c) Effect of failure to answer or to plead specifically and in detail to
the specification If the respondent files an answer to the specifi-
cation but fails to deny any allegation of the specification in the
manner required by subsection (b) of this section , and the failure so
Continued
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Respondent's original argument here was that the
gross backpay formula for Sans' periods of unemploy-
ment fails to account for the fact that Sans' past employ-
ment record reflects occasional absences for illness and
other personal reasons, and that he was not normally
compensated for such absences. Although it is true that
in applying the gross backpay formula the General
Counsel has inaccurately determined that Sans was in
fact available for employment during all of the periods
when he was unemployed, that assumption does not
render the formula invalid as a measurement tool. Under
the General Counsel's formula, those occasions when
Sans was actually available for employment during the
backpay period could be ascertained and would result in
a reduction of the amounts due to him. By contrast, any
formula based upon a projection of Sans' past attendance
record through the periods of unemployment he suffered
as a result of the Respondent's discrimination bears a
substantial potential for penalizing either Sans or the Re-
spondent unduly. Thus, if an averaging formula proposed
by the Respondent were adopted, factoring in Sans'
actual unavailability during the backpay period would be
inappropriate. In this circumstance, if Sans' actually un-
availability exceeded the average of his past absenteeism,
the Respondent would be penalized; if it were less, Sans
would be penalized. Accordingly, I recommend that the
Board adopt the gross backpay formula proposed in the
specification but deduct equivalent amounts for periods
when Sans was actually unavailable for work.5 By fol-
lowing this procedure, I am satisfied that the General
Counsel's gross backpay formula will most nearly ap-
proximate the earnings Sans would have had in the ab-
sence of the Respondent's discrimination.
In this proceeding, Sans testified that he was in good
health throughout the period of his unemployment from
January 28, 1976, through January 9, 1977, but no testi-
mony was elicited with respect to any other backpay
period. Nevertheless, there is a specific finding in Grey-
hound II (slip op. at 25) that Sans declined to report for
work on July 1, 1977, following the resolution of the
grievance related to his May 17, 1977 discharge because
he was suffering from impetigo. Under these circum-
stances, I find that the gross backpay due Sans for the
third quarter of 1977 is $96.60 less than the amount al-
leged in the backpay specification for the third quarter of
1977.6 I further recommend that the Board require the
to deny is not adequately explained , such allegation shall be deemed
to be admitted to be true, and may be so found by the Board without
the taking of evidence supporting such allegation , and the respond-
ent shall be precluded from introducing any evidence controverting
said allegation
Entirely aside from the conclusion that the General Counsel 's formu-
la is likely to produce the most accurate approximation of the backpay
due Sans, the evidence proffered by the Respondent is totally insufficient
to devise an alternate formula Thus, the only evidence presented by the
Respondent was Sans' acknowledgment that he was occasionally absent
from work as were others and Mohinder Rye's testimony that he had re-
cently reviewed Sans' records and concluded that Sans was absent about
3 or 4 days per month in some unspecified period and for unspecified rea-
sons
6 The backpay specification appears to base the 1977 third quarter
losses on the assumption that between July 1 and 6, 1977, Sans lost wages
equivalent to 3 days' work On that basis the $96 60 was calculated by
multiplying Sans' daily rate (including $ 1 70 per day attributable to the
General Counsel to ascertain the onset of the disabling
nature of this illness and make any further necessary de-
duction consistent herewith.
A separate feature of Sans' gross backpay is the addi-
tion of the $8.50 per week to his contractual wage rate
for all periods since his wages were reduced by that
amount on July 6, 1975. As noted, the Respondent con-
tends that the General Counsel has failed to establish
Sans' entitlement to the $8.50 per week "for any period
whatsoever" ( in its brief) or, in the alternative, for any
period following Sans' reinstatement in January 1977.
Over the General Counsel's objection, I permitted the
Respondent to elicit testimony in the instant proceeding
from its president, Mohinder Rye, to the effect that the
$8.50 per week payment was a portion of a payment
made to Sans for extra work which he previously per-
formed and that his pay was reduced when he ceased
doing the extra work. The General Counsel then offered
Sans' testimony that he had ceased doing the extra work
about 2 years before there was any reduction in his pay.
Having carefully considered the decision in Greyhound
I where the pay reduction issue is treated, I am in agree-
ment with the General Counsel's contention that the
finding sought by the Respondent as to this issue is
barred by the principle of res judicata. In effect, the Re-
spondent sought to establish that Sans' pay was reduced
by $8.50 per week for nondiscriminatory reasons. It is
clear that by doing so, the Respondent was attempting to
relitigate a matter which had already been decided.
Thus, in Greyhound I the administrative law judge found
that Sans was originally paid $17.50 per week over the
contract scale for his job classification. When that
amount was reduced by $9 per week, Sans filed a griev-
ance and a meeting ensued between the Union and the
Respondent on July 6, 1975, concerning Sans' pay reduc-
tion grievance. The administrative law judge then found:
Sans began his presentation to the grievance com-
mittee by explaining that when he refused Mo-
hinder's order to dispatch part-tme drivers on
"long-hauls," Mohinder had retaliated by reducing
his weekly salary from $150 to $141. At this point,
Mohinder, who was present in the union hall,
"jumped up" and shouted that in addition to Sans'
first reduction from $150 to $141, his salary was
now being reduced for a second time from $141 to
$132.50 a week.
See Greyhound I at 868.
Based upon the administrative law judge's finding
above, the Board concluded as follows:
$8.50-per-week item) by 3. This deduction is not predicated upon a con-
clusion that Sans had a duty to report for work immediately upon Rye's
offer Rather, it is predicated upon the fact the the nature of the General
Counsel's gross backpay formula makes it appropriate to proportionately
reduce the amount of gross backpay for any time Sans was actually un-
available for work due to an illness not attributable to interim employ-
ment or his unlawful discharge. American Mfg Co of Texas, supra. Impe-
tigo-for taxicab dispatchers-must be regarded as one of the "hazards of
living generally "
GREYHOUND TAXI CO
We further conclude, however, on the basis of the
Administrative Law Judge's findings, which he in-
advertently omitted from his conclusionary findings,
remedy, and recommended Order, that the Re-
spondent additionally violated Section 8(a)(3) and
(1) by reducing employee Sans' wages on July 6,
1975 . . . .
See Greyhound I at 865. In accord with that conclusion,
the Board specifically ordered that the Respondent
remedy its action of discriminatorily reducing Sans' pay
in July 1975, by making Sans whole. There is no evi-
dence that the Respondent ever reinstated this payment
I am not now at liberty to decide that Sans' pay was
reduced for some reason other than the foregoing.
Hence, contrary to the Respondent's contention, there is
a clear basis for adding the $8.50 per week to Sans' gross
backpay. In its answer, the Respondent asserted that that
sum should be discontinued because Sans accepted rein-
statement in January 1977 at his contractual wage rate. I
also reject that contention. Entirely aside from the fact
that the administrative law judge in Greyhound II found
that Sans' reinstatement in January 1977 was to a more
onerous shift and was made after Sans rejected a dis-
criminatory reinstatment offer, there is absolutely no in-
dication that Sans intended to waive his right to have his
pay set on the basis of nondiscriminatory criteria. Ac-
cordingly, I find that it is appropriate that Sans' gross
backpay includes the additional $8.50-per-week payment
for all periods since July 6, 1975.7
C. Other Issues Related to Sans' Backpay
The Respondent believes that the unemployment com-
pensation collected by Sans during the periods when he
was not employed should be treated as interim earnings,
and as such subtracted from Sans' gross backpay. It has
long been settled that such an offset is not permitted and,
accordingly, I shall not do so here. NLRB v. Gullett Gin
Co., 340 U.S. 361 (1951); Amshu Associates, 234 NLRB
791 (1978).
The Respondent's answer also sought to offset a per-
sonal loan to Sans against the amount of vacation pay
due to Sans in the first quarter of 1976. It is a well-estab-
lished policy that such offsets are not permitted See,
e.g, NLRB v. Mooney Aircraft, 366 F.2d 809 (5th Cir.
1966). Accordingly, I shall not do so here.8
There remains the question as to whether Sans made a
diligent search for interim employment during the two
periods when he was not employed-January 28, 1976
through January 9, and May 17, 1977, through July 5,
1977. Sans, who has been employed by Sacramento taxi-
cab companies for 30 years, testified that following his
initial discharge he registered for unemployment com-
pensation and filed the required reports with the appro-
priate state agency 'each 2 weeks concerning his search
' Of course, no such amount would be due for periods when Sans is
not entitled to backpay for other reasons such as the strike period in Jan-
uaiy 1976 and the period of Sans' illness in July 1977 However, backpay
attributable to this aspect of the case will continue to accrue until the Re-
spondent takes the necessary action to restore this payment
8 Moreover, Sans' testimony that the loan had previously been paid is
uncontradicted
463
for work in order to maintain his eligibility for that bene-
fit. In addition, Sans visited the unemployment office
(which was about a block and a half from his home) on a
daily basis for a considerable period in order to check
over the jobs posted on the bulletin board at that office.
Most of the posted jobs-according to Sans-required
experience which he did not have. Sans was never re-
ferred for job prospects by the state employment service.
In addition, Sans testified that he registered on the
Union's out-of-work list but was never referred for em-
ployment by the Union. Otherwise, Sans testified that he
unsuccessfully applied for several jobs he saw advertised
in the newspaper. Specifically, Sans recalled applying for
a dispatcher's job with the local city and county police
agencies, a delivery job with a local florist, a job with a
delivery service in West Sacramento, and jobs at several
gasoline stations.
Sans candidly acknowledged that he did not apply for
positions with the two other taxicab companies in Sacra-
mento-Courtesy and Yellow. Sans said he had previous-
ly worked at both companies and departed under cir-
cumstances which he believed would not result in his
being favorably considered for reemployment. Thus,
Sans testified that he left Yellow 25 years ago after it
was discovered that he had embezzled $6000 from that
company. Sans also testified that when he left his em-
ployment at Courtesy a number of years ago, it was nec-
essary for him to commence a state administrative pro-
ceeding to recover unpaid vacation pay. As a conse-
quence, Sans felt his prospects for employment at these
two companies were nil and, accordingly, he did not
seek employment with either company.9 In addition, fol-
lowing his second discharge in May 1977, Sans did not
seek other employment independent of registering with
the state service. According to Sans, he learned on ap-
proximately June 19 or 20, 1977, that he was to be rein-
stated pursuant to a grievance proceeding related to his
second termination and, as a consequence, he did not un-
dertake to seek interim employment as a result of the
action on that grievance.
A discriminatee has the duty to minimize the losses in-
curred during the backpay period by making a reasona-
ble effort to seek interim employment. Phelps Dodge
Corp. V. NLRB, 313 U.S. 177, 197 (1941); NLRB v.
Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Cir.
1966). In backpay cases, the lack of a diligent search for
interim employment is treated as an affirmative defense
and the burden of proof is on the wrongdoer to show
that the back ay claimant did not make a reasonable
search to fins interim employment in light of all of the
circumstances after the General Counsel produces the
claimant for cross-examination. Virginia Electric v.
NLRB, 319 U.S. 533, 544 (1943); NLRB v. Mastro Plas-
tics Corp., 354 F 2d 170, 177 (2d Cir. 1965); NLRB Y.
Brown & Root, 311 F.2d 447, 454 (8th Cir. 1963) Reason-
able efforts to secure interim employment does not mean
9 The reasonableness of Sans' assessment in this regard-all other cir-
cumstances aside-appears to be confirmed by the administrative law
judge's finding in Greyhound II that the owner of Yellow testified in that
case that he had "an unfavorable opinion of Sans' credibility " See Grey-
hound II, slip op at 6
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the backpay claimant is held to the highest standard
of diligence in seeking interim employment NLRB v. Ar-
durnr Mfg. Corp., 394 F.2d 420, 423 (1st Cir 1968)
Rather, the reasonableness of the backpay claimant's
search for interim employment is measured in light of all
the circumstances including the individual's skill, qualifi-
cations, age, and the labor conditions in the area. Mastro
Plastics Corp., 136 NLRB 1342, 1359 (1962) The back-
pay claimant's registration with the state employment
service is prima facie evidence of a reasonable search
and evidence that the claimant did, in fact, seek work.
Firestone Synthetic Fibers Co, 207 NLRB 810, 812 (1973);
Madison Courier, 202 NLRB 808, 813 (1973). The lack of
success in finding interim employment, the failure to
make application at a particular location, the failure to
follow certain practices and the inability to recall, while
testifying, the number or names of locations where inter-
im employment was sought have all been held to be in-
sufficient to meet the burden of showing the backpay
claimant's search was not reasonable. NLRB v. Pilot
Freight Carriers, 604 F.2d 375 (5th Cir. 1979); NLRB v.
Cashman Auto Co., 233 F.2d 832 (1st Cir. 1955); DeLor-
ean Cadillac, 231 NLRB 329, 331 (1977); Southern House-
hold Products Co., 203 NLRB 881 (1973); Cornwell Co.,
171 NLRB 342, 343 (1968) In all cases where there is
doubt as to the reasonableness of the search, the issue is
to be resolved in favor of the backpay claimant as op-
posed to the wrongdoer. NLRB v. NHE/Freeway, 545
F.2d 592, 594 (7th Cir. 1976)
Sans has spent over 30 years in various aspects of the
taxi industry in Sacramento and, as a consequence, he
has little experience in other endeavors. In addition, the
findings made in Greyhound II show that Sans relies pri-
marily on the Sacramento public transit system as his
principal mode of transportation. Notwithstanding, the
evidence shows that Sans did search for other work by
visiting the unemployment office more than required,
making applications not only with potential interim em-
ployers where his experience would be beneficial, but
also at other enterprises where only minimal skill would
be required. Under the circumstances, Sans' failure to
make application at the other two taxi companies in Sac-
ramento cannot be found to be a basis for concluding
that his search was not diligent especially where, as here,
no attempt was made to rebut the evidence that these
employers in all likelihood harbor animus toward Sans
for matters which occurred during his prior employment
with them Moreover, the fact that Sans admittedly did
not seek other employment in the period immediately
following his second discharge when his grievance was
actively pending or thereafter while awaiting reinstate-
ment likewise cannot be regarded as a failure to mitigate
his losses. In the latter period, the evidence is undisputed
that Sans was actively pursuing a grievance seeking his
reinstatement. 10 In these circumstances, I do not find
10 The findings in Greyhound II, slip op at 24, show that Sans' griev-
ance was resolved on June 30, 1977 For purposes of this decision, I
relied on that date rather than Sans' estimate of June 20, 1977, made in
his testimony at the instant hearing
that it was unreasonable for Sans to await the outcome
of the grievance proceeding (which appears to have been
resolved rather rapidly by some standards) before com-
mencing an extensive search for interim employment in
view of his prior experience seeking work Compare
Keller Aluminum Chairs Southern, 171 NLRB 1252, 1257
(1968). Accordingly, I find that the Respondent has
failed to meet its burden of establishing that Sans did not
make a reasonable search for interim employment.
On the basis of the foregoing findings, the amount of
accrued backpay and retirement contributions with re-
spect to Sans through May 31, 1982, is as calculated in
Appendix A.
III. THE BACKPAY DUE HAROLD L. WAKEFIELD
A. The Contentions and Background
At the instant hearing, the General Counsel conceded
that Wakefield has never worked since the date of his
unlawful termination (February 13, 1976) and sought to
prove that the reason Wakefield has not worked (or for
that matter, sought work with one minor exception) was
due to the psychological dislocation suffered by Wake-
field as a direct consequence of his discharge by the Re-
spondent. The Respondent contends that Wakefield
should receive no backpay because he did not seek inter-
im employment; that if it is determined that Wakefield is
entitled to backpay, the backpay period should terminate
as of the date of any one of the three reinstatement offers
Respondent made to Wakefield; and that sho'ild backpay
be awarded the Respondent is entitled offset amounts re-
ceived by Wakefield as unemployment compensation,
workmen's compensation, and other disability pay-
ments. 1 1
The issues raised with respect to Wakefield are unusu-
al. As a consequence, a brief review of relevant facts in
the underlying case is required to fully comprehend the
findings which follow.
In Greyhound I, the administrative law judge conclud-
ed that Wakefield was, in effect, constructively dis-
charged. Thus, the judge stated-
In addition, there is interference, coercion, and re-
straint practiced by Respondent in . . . rendering
Wakefield's working conditions so intolerable which
culminated in him being assaulted by Surinder
Singh (a supervisor of Respondent and a cousin of
its owners) and placed in such great fear that it
caused him to involuntarily terminate his employ-
ment. . . .
See Greyhound I at 877.
Certain findings in Greyhound I and evidence adduced
in the instant proceeding disclose that Wakefield had a
running dispute with the Respondent commencing in late
t l The gross backpay formula in Wakefield's case is not in dispute It
is grounded upon the average earnings of other taxi drivers during the
backpay period whose earnings ranked immediately above and below
Wakefield for a representative period while Wakefield was employed by
the Respondent I find this method of measuring the gross backpay will
provide an accurate estimate of what Wakefield would have earned had
he not been unlawfully terminated
GREYHOUND TAXI CO
1974 after his arm was broken (apparently by a passenger
in a robbery attempt). While recuperating, Wakefield
missed an extended period of work during which time he
received workmen's compensation payments There is
evidence that officials of the Respondent accused Wake-
field of malingering at this time; that threats were made
to the effect that the Respondent intended to get rid of
Wakefield because of the expense he was causing the Re-
spondent ; that Wakefield , in response, became more
active in the Union; that hostility toward Wakefield in-
tensified thereafter; that Wakefield was discharged fol-
lowing a minor accident in December 1975, but was rein-
stated following a grievance proceeding ; and that in the
course of the grievance proceeding Singh told Wakefield
(from a distance about 4 inches from Wakefield's nose)
that he "would murder anybody that gets in my friend's
way." The findings in Greyhound I detail a brief scuffle
involving Wakefield and Singh on his final day of work
which, according to Wakefield, commenced in the pres-
ence of Joginder Rye, one of the Respondent 's owners.
This occurred following a brief exchange of comments
by Joginder Rye, Singh, and himself concerning an
NLRB matter The evidence shows that Singh put an
arm lock around Wakefield's neck and, by simultaneous-
ly kicking Wakefield' s ankle, attempted to throw Wake-
field to the concrete floor. Although Wakefield resisted
sufficiently to prevent himself from being thrown down
and worked himself free of Singh's grip , he asserted that
immediately following the incident his neck was sore,
and that it made it difficult for him to turn his head to
look for traffic while driving. After working for a couple
of hours, Wakefield left work and went to the emergen-
cy room of a local hospital where he sought medical at-
tention for the soreness in his neck . Wakefield testified
that the diagnosis by the emergency room doctor was
that he had "pulled his neck out of joint" and that it
would heal by itself.12 Thereafter, Wakefield went to the
local police department where he reported the assault by
Singh and requested police action against Singh Eventu-
ally, Wakefield was informed that there was nothing that
the police could do about the incident . In the meantime,
Wakefield also began to experience pain with the ankle
which had been kicked by Singh and he visited a Dr.
Patrick Clancy, the physician who treated him for his
broken arm. According to Wakefield, Dr. Clancy diag-
nosed his ankle problem as a sprain and recommended
that he keep it wrapped with an elastic bandage and that
he soak the ankle. When Wakefield expressed his great
fear of returning to work, Clancy told him that he would
put him on disability for a few days. Wakefield never re-
turned to work because (according to the findings in
Greyhound I) he was afraid to do so.
To seek compensation for the losses suffered as a con-
sequence of the minor physical injuries he suffered in the
battery by Singh, Wakefield went to a local attorney
who specializes in workmen 's compensation matters. Fol-
lowing an interview, the attorney told Wakefield he
thought there was something the matter with him and re-
quested that Wakefield visit a psychiatrist. Wakefield
12 A report in evidence describes the diagnosis as a contused (bruised)
left sternocleidomastoid (neck) muscle
465
agreed to do so. Thereafter, in late May and June 1976,
Wakefield had three sessions with Dr. C. Jess Groes-
beck, an assistant professor of psychiatry at the Universi-
ty of California, Davis, and a private practitioner of psy-
chiatry (specializing in forensic psychiatry ) in the Sacra-
mento-Woodland, California area. Groesbeck specializes
in forensic psychiatry.
Groesbeck testified in this proceeding that it was his
professional diagnosis following his evaluation of Wake-
field in 1976 that he was suffering from traumatic anxiety
neurosis with marked symptomatology in both the psy-
chological and physical spheres. In lay terms, Groesbeck
explained that Wakefield was suffering from an emotion-
al disturbance which impaired his ability to function psy-
chologically as a consequence of a traumatic incident.
The trauma involved, according to Groesbeck, was the
series of work incidents culminating in the battery com-
mitted by Singh and his termination. The symtomatology
referred to by Groesbeck included a highly agitated de-
meanor, extreme concentration difficulties ; continually
ruminating about the loss of his job; and patient com-
plaints about the lack of sleep, numerous nightmares in-
volving attacks by animals , physical sensations of tin-
gling and dizziness , impotence , severe headaches (which,
on occasion , would last as long as a week), frequent gas-
trointestinal upset acccompanied by diarrhea, feeling
constantly anxious and intense so that it was difficult for
him to drive, feelings of guilt over the loss of his job and
fears that agents of the Respondent were going to phys-
ically injure his wife and himself. Groesbeck testified
that it was clear that the position which Wakefield had
with the Respondent was the only job at which he had
been successful and, as a consequence, Wakefield's job
had come to mean a great deal to him 13 When condi-
tions became so intolerable for Wakefield that he felt he
could not return to work because of the threats made on
his life and the battery, Groesbeck said that Wakefield
"just blew . . . sky high emotionally, so to speak "
Groesbeck also testified that a more recent examination
of Wakefield disclosed some remission from the severity
of his earlier condition but that elements of depression,
anxiety neurosis , and paranoia remained. 14 Groesbeck
conceded that Wakefield's emotional difficulties could
have been brought on by another series of events as a
result of his acquired personality makeup but, on the
other hand , he asserted that they could have remained in
a latent state much longer than they did . Notwithstand-
ing, Groesbeck was of the view that Wakefield's emo-
tional difficulties which surfaced in 1976 resulted directly
from the circumstances surrounding the attack upon him
and the loss of his job.
Following Groesbeck's 1976 evaluation of Wakefield,
Wakefield was examined by two additional psychia-
trists-Dr. G. Edward Sebastian and Dr Ralph F. Sett.
13 Wakefield had been in the Respondent 's employ since August 1968
Prior to this employment , Wakefield held a variety of fobs, most for very
short time periods, which he either quit in protest of perceived policies
or practices or was discharged Wakefield testified that he 'loved " his job
with the Respondent
14 These impressions are based on Groesbeck's September 1981 exami-
nation of Wakefield This examination was requested by the General
Counsel
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both of these psychiatrists were retained by insurance
companies whose interests were adverse to Wakefield,
namely, the Eldorado Insurance Company, the Respond-
ent's workmen's compensation carrier, and Mutual of
Omaha, which had insured Wakefield under a privately
purchased disability plan in 1973. Although neither psy-
chiatrist testified in this proceeding, their written evalua-
tions were received in evidence without objection and
Groesbeck testified that he knew them as respected prac-
titioners in that locale If there are any significant differ-
ences in either the diagnosis or the identification of the
cause of Wakefield's illness between these two psychia-
trists and Dr. Groesbeck, such differences are not dis-
cernible by this trier of fact nor did the Respondent
point to any such difference. Thus, following Sebastian's
diagnosis that Wakefield was suffering from anxiety neu-
rosis, his report continues as follows:
Discussion: Mister Wakefield has had some diffi-
culty finding himself in his life He was not interest-
ed in scholastic achievement during his high school
years. He was unable to settle down in a job or a
type of job. Eventually he found a job which he en-
joyed, that of a taxi-cab driver. He lost his job as a
cab driver in Los Angeles because of his naivete re-
garding people. In 1968 he started to work for
Greyhound Taxi Company in Sacramento He ap-
parently did a satisfactory job until October, 1974
when his left forearm was injured in a robbery at-
tempt while he was driving his cab. From then on,
his employment situation deteriorated. The owner
of the company apparently felt that Mister Wake-
field was using his injury to collect compensation
funds. As more pressure was exerted to force him
to leave the company, Mister Wakefield stubbornly
clung to his job and to his principles. He became
active in his union and tried to encourage changes
in company management policies with the help of
union backing. These attempts failed and Mister
Wakefield began to feel that our legal system was in
danger. At work he began to receive threats against
his person He was told by one company official
that if they were in India and Mister Wakefield be-
haved toward his superiors as he has been behaving,
he would be killed and the incident forgotten. He
feared for his life and left his job in February 1976
after the alleged physical assault upon him.
I see Mister Wakefield as a tense, nervous, emo-
tionally immature person. However, he seemed to
find a niche for himself in his taxi-cab job. He
would probably have continued in that job for
many years had not management taken such an un-
reasonable attitude following his job-related injury.
He was frustrated in his attempts to obtain justice
through his union and through the courts. He
learned the lesson that it is very difficult for an indi-
vidual to successfully fight City Hall. He became
tense, anxious , upset with the previously described
symptomatology. He has had to receive counseling
because of his emotional turmoil. Since he is no
longer exposed to the work environment, he is not
fearful for his life and his tension level is down.
However, he still becomes very upset when he talks
about the job situation. One benefit from this situa-
tion is his enrollment in college where he is doing
well academically Hopefully he will be able to find
a vocation or profession which is more in keeping
with his intellectual abilities
Conclusion:
1. I feel that Mister Wakefield's job situation ag-
gravated an underlying emotional condition.
2. He is disabled for his job as a taxi -driver for
Greyhound Taxi.
3. The disability is job -related.
4. The disability for other jobs is temporary.
5 He should continue to receive treatment (pref-
erably by a psychiatrist since the use of medication
is involved) until symptoms relief and his readjust-
ment to a new vocational life are attained
Dr. Sett's evaluation is similar Thus, Sett's report
reads in part as follows-
Discussion- Mr. Wakefield is a man who shows
overwhelming anxiety The anxiety is so severe that
it leads to a scattering of his thought processes and
disorganization He is given to obsessional rumina-
tion with marked hostility and a paranoid stance es-
pecially prominent when he talks about the turmoil
related to his employment with the Greyhound
Taxi Company. This is where the paranoia really
surfaces and he relies upon projection as his pri-
mary defense mechanism. All of this is superim-
posed on an extremely dependent individual with
tenuous ego-strengths It is my opinion that he does
derive a tremendous amount of gratification of these
dependency needs from his wife, his therapist, and
the counselors who are working with him at school.
Without this type of nurturing, Mr Wakefield
would become extremely disorganized. This is
borne out by the first interview in which he showed
severe anxiety, disorganization to the point of physi-
cal hyperactivity with pacing and eventually bump-
ing into a bookcase in his efforts to gather the mate-
rials which he brought to the interview; however,
he appeared comfortable in the second session be-
cause he felt that I was supportive of him and also
because the second interview was much more struc-
tured in order to gather the necessary background
information without allowing him free reign. With-
out this structure he takes off in rambling manner
and he also documented this by saying that he did
this at home with his wife.
The clinical impression in this case is anxiety neu-
rosis, severe, post-traumatic type with obsessional
features and tendencies toward ego-fragmentation in
a basically paranoid personality. This condition has
been seriously aggravated by the series of events
which took place during the course of his employ-
ment. Based on the medical information available
and my examination of this patient, it is my medical
opinion that he is permanently disabled from per-
GREYHOUND TAXI CO
forming his duties as a taxi driver. The degree of
psychopathology which is present would preclude
him from performing this occupation for any em-
ployer. It is extremely difficult to say what other
occupation he could reasonably be expected to per-
form in because of his need for supportive, warm
environment with authority figures who would
build his ego-strengths which are at a very low ebb
He is obviously getting this support through his
counselors at the present time and he did talk about
the possibility of going into law, although I would
question his reality testing in considering this par-
ticular area of study.
In addition, attached to Sett's report is another standar-
ized reporting form in which Sett reported that Wake-
field was 100-percent disabled at the time of the report
for performing either his former or any other job and
recommended that Wakefield continue in psychotherapy
with medication, including the academic studies which
he was engaged in at that time
Other evidence supports the psychiatrists' evaluations
of Wakefield. Ron Estep, a therapist who worked with
Wakefield from June 1976 to March 1978, testified that
when he initially met with Wakefield he found him to be
"frankly paranoid" and gave consideration to having him
hospitalized for treatment. After deciding that this course
of action could always be undertaken if working with
Wakefield on an outpatient basis proved unsuccessful,
Estep soon sought to commence medication for Wake-
field in order to make progress in therapy. This was ac-
complished in conjunction with Dr Clancy who initially
prescribed Sinequan and then switched Wakefield to
varying dosages of Stelazine.is
Certain other ancillary evidence supports a finding
that Wakefield was severely disabled. Thus, in the
months following Dr. Groesbeck's initial evaluation,
Wakefield qualified for social security disability benefits
where, it is reasonable to presume, the medical evidence
of Wakefield's disability was carefully evaluated. In addi-
tion, Wakefield sought and obtained aid from the Califor-
nia Department of Rehabilitation Kathleen Roseler, the
social worker from that state agency who was assigned
to Wakefield's case, testified that, under normal proce-
dures of that department, the supporting medical evi-
dence is evaluated by that agency's staff psychiatrist
before aid is provided and that procedure was followed
in Wakefield's case. According to Roseler, approximately
only 5 percent of her 100 active cases involved a psychi-
atric disability.
As noted, there is no dispute about the fact that Wake-
field has not sought other employment since leaving the
Respondent's employ. There is agreement likewise that,
beginning at some unspecified time in 1977, Wakefield-
15 Stelazine is deemed effective in managing psychotic disorders and
can be effective in controlling excessive anxiety, tension, and agitation
seen in neurosis or somatic conditions Smequan is a psychotherapeutic
agent normally used in the treatment of psychoneurotic patients with de-
pression or anxiety, depression associated with alcoholism, or organic dis-
eases and psychotic depressive disorders with associated anxiety Physi-
cians Desk Reference, 34th Ed, Medical Economics Company, A Litton
Div, Oradell, N J, 1980
467
who had not previously completed high school-entered
the American River Junior College in Sacramento and
subsequently transferred to Sacramento State University
where he was awarded a bachelor's degree in May 1981.
That fall, Wakefield entered a law school in Sacramento
and was engaged in that endeavor at the time of the
hearing. To say the least, the Respondent is highly skep-
tical of Wakefield's true condition as a result of these ac-
tivities and considerable evidence, discussed below, was
developed concerning them.
Following his examination of Wakefield in June 1976,
Groesbeck recommended that Wakefield undertake psy-
chotherapy treatment, including vocational rehabilitation.
For this purpose, Groesbeck referred Wakefield to Ron
Estep, a licensed marriage, family, and child counsellor,
who was then practicing privately in Sacramento The
course for Wakefield's therapy was essentially charted by
Estep. According to Estep, once Wakefield's symptoms
were brought more under control through the use of
medication, he then moved on to probe the possibility of
Wakefield seeking employment Estep testified that
Wakefield was cooperative in this and other aspects of
his therapy By early 1977, Estep testified, Wakefield
agreed to his suggestion that he begin making applica-
tions for employment The first effort in this regard re-
sulted in severe regression of Wakefield's condition is
Accordingly, Estep said that he abandoned this course
and, instead, secured Wakefield's agreement to undergo a
battery of examinations at the American River College in
Sacramento. The tests disclosed that Wakefield had an
above average intellect but would require remedial train-
ing Subsequently, Wakefield was admitted to American
River. The purpose of this approach, according to Estep,
was to find something to occupy Wakefield's mind other
than the difficulties which he had with the Respondent
which, according to Estep, Wakefield ruminated about
continuously. Although Wakefield had some initial ad-
justment difficulties and later encountered instances of
overresponding to some fellow students, Estep felt essen-
tially that Wakefield's school activities served to keep his
mind occupied and he showed further signs of progress.
At the outset, Wakefield's schooling was not structured
or directed toward an academic goal It appears that this
came about at the time Wakefield became a client of the
California Department of Rehabilitation. According to
Roseler, based on Wakefield's performance at American
River, the department developed a vocational rehabilita-
tion plan in the community college system which con-
templated that he would eventually continue in a 4-year
college program, most likely at Sacramento State
Groesbeck, Estep, and Ron Meyers, the therapist who
succeeded Estep in working with Wakefield when Estep
discontinued his practice in Sacramento, all agreed that it
would be erroneous to attempt to correlate Wakefield's
success in school with his potential for success in the
competitive employment setting. In their view, Wake-
16 After discussions in therapy sessions, Estep obtained Wakefield's
agreement to file a job application at a local retail auto parts store Estep
said Wakefield reported back to him that, on completing the application
process at the store, he returned to the vicinity of his auto in the parking
lot and began vomiting
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
field's academic success resulted from the continuous
support Wakefield received from therapy, his tutors, and
his wife. Moreover, unlike the setting in the work world,
they noted that Wakefield was not always called upon to
respond in the academic setting and certainly not for 8
hours a day. Even in those instances when Wakefield did
encounter emotional difficulties at school he had the
option of withdrawing for sufficient periods to resolve
such matters either alone or together with his therapist
or his wife. Roseler, whose duty includes attempting to
secure employment for clients of the state agency which
employs her, testified that it was her own independent
judgment that Wakefield's progress would have been
damaged if he would have been required to withdraw
from school and secure work. As a consequence, Roseler
did not undertake to call employment opportunities to
Wakefield's attention until after he completed undergrad-
uate school. Sett's report likewise encouraged this ap-
proach to therapy
Following Wakefield's graduation from undergraduate
school, Roseler did notify Wakefield of certain potential
openings for which she felt he would be suited. Wake-
field made no attempt to apply for those positions inas-
much as his application at a local law school had been
accepted. At the time of the hearing Wakefield was at-
tending law school. His therapy with Meyers was like-
wise continuing. However, Wakefield made it clear in his
testimony that he has no dreams of becoming the
modern day Clarence Darrow. In Wakefield's own
words, his ambitions are as follows:
I could perhaps be an assistant to a professional
person who doesn't deal in-put money in front of
human dignity and I'd be fine. But according to
what I hear at law school it takes about two years
before you are even going to be given that type of
thing. I do have very little trust of nonprofessionals.
See, all the professionals around me have been very
supportive of me and I think they got my life
turned around 17
which Wakefield had purchased in June 1973, at his
wife's insistence. According to Wakefield, this policy
was for a term of 5 years and, as a consequence, the ben-
efit payments ceased in June 1978. Initially, the benefit
received by Wakefield under this policy was predicated
upon the physical injury he received as a result of the
assault upon him by Singh. Subsequently, the benefits
were predicated upon Wakefield's psychological disabil-
ity.
In June 1977, Wakefield commenced receiving a $76-
per-week payment under the California Unemployment
Insurance Disability program (UID) See California Un-
employment Insurance Code, Section 2600 et seq. When
Wakefield first received the benefit it was made retroac-
tive to February. As a consequence, he received an ini-
tial lump-sum payment of approximately $1000 18 This
benefit, allowed for the maximum period of 26 weeks,
expired in August 1976. However, Wakefield was re-
quired to repay $687.06 to the UID fund when he en-
tered into a compromise and settlement of his workmen's
compensation claim against the Respondent.19 That
amount was withheld from his workmen' s compensation
settlement to satisfy the UID lien.
In approximately September 1977, Wakefield' s claim
for social security disability benefits was approved and
he commenced receiving payments under that program.
It appears that there was an initial lump-sum payment of
approximately $4300 for the period between the expira-
tion of his UID benefits and the initial monthly social se-
curity payment. Since that time, the benefits have risen
from approximately $330 per month to approximately
$514 per month as the result of cost-of-living increases.
On September 1, 1977, Wakefield entered into a com-
promise and settlement agreement with the Eldorado In-
surance Company which served to resolve his work-
men's compensation claim Documents in evidence show
the gross amount of this settlement was $13,634. Wake-
field testified here that the net amount he received was
$10,300. This payment is discussed in detail at Section 4.
B. Wakefield's Interim Benefits
At various times following his discharge, Wakefield re-
ceived periodic payments from the California Unemploy-
ment Insurance and Social Security disability programs,
periodic payments under a privately owned insurance
policy and a lump-sum workmen's compensation settle-
ment In addition, funds were provided on his behalf to
purchase textbooks and to reimburse him for transporta-
tion expenses while he was in school Respondent con-
tends that all such payments and reimbursements should
be deducted from any amount of gross backpay deemed
owing The General Counsel argues that none of these
payments or reimbursements constitute interim earnings.
Immediately following his discharge, Wakefield ap-
plied for and received a $10-per-day benefit pursuant to a
private disability plan offered by Mutual of Omaha
17 At this point in Wakefield's testimony he was emotionally overcome
and it was necessary to recess the hearing to allow him to recompose
himself There were similar occurences on two other occasions during
the course of his testimony
C The Reinstatement Offers
It is undisputed that Wakefield received three written
offers to return to work shortly following the dates
shown on the offers, namely, January 13 and February
17, 1977, and August 1978. However, there is a dispute
as to which, if any, of these offers should be treated as
sufficient to toll backpay.
Contrary to the Respondent, the General Counsel be-
lielves that both of the 1977 offers were defective. The
pertinent portions of the 1977 offers insofar as the Gener-
al Counsel's argument is concerned are as follows-
[January 13, 1977 offer signed by Mohinder Rye]
18 Wakefield's estimate of the weekly benefit, which was slightly
lower, appears to be an error of recollection Other evidence discloses
that he received $1976 in UID benefits altogether and when this amount
is divided by the maximum benefit period, the result is $76 per week
18 See California Labor Code, Sec 4903 (f) which creates a lien
against workmen's compensation benefits for previously paid UID bene-
fits
GREYHOUND TAXI CO
This letter is to notify you that we are appealing
the Administrative Law Judge's Decision that was
rendered in your favor. Of course, you repeatedly
stated at the hearing and at other times that you
will never again work for the Greyhound Taxi Co.
Inc.
Consider this as our last official offer to reinstate
you to full time employment at Greyhound Taxi ef-
fective January 21, 1977, if you are not presently
employed or January 28. 1977, if you are employed
at the present time.
[February 13, 1977, offer signed by E. A Hubbert.]
This office, as the present attorney of record for
the above-entitled Employer, has been authorized to
offer to you full reinstatement to your position with
the Company pursuant to the Decision of the Ad-
ministrative Law Judge issued in the matter.
You should be aware that the Employer has filed
Exceptions to the Decision, but is offering you
complete and full reinstatement pending the final
resolution of this matter
If we do not hear from you within ten (10) days
of the receipt of this letter, we will assume you do
not wish to be reinstated as an employee of Grey-
hound Taxi Co., Inc
The General Counsel concedes that the Respondent's
1978 offer to Wakefield was unconditional on its face but
argues that it should not serve to toll the backpay period
because Wakefield's illness precluded his acceptance of
the offer 20 Groesbeck, Estep, and Meyers were uniform
in their opinion that Wakefield's return to the Respond-
ent's employ would be at considerable risk to his mental
stability. At the time that Wakefield received the rein-
statement offers, Estep and Meyers recommended that he
not return
The Respondent urges that I find the 1977 offers to be
sufficient to toll the backpay period It contends that nei-
ther offer exhibits the Respondent's desire to keep Wake-
field away from work and asserts that Wakefield was
motivated in staying away from work for monetary rea-
sons, i.e., he was financially better off staying home than
he was going to work.
D Additional Findings and Conclusions
Without actually using the word, the Respondent
argues that Wakefield's lack of employment in the back-
pay period was the result of malingering and for this
reason he should be entitled to no backpay. Thus, the
Respondent states in its brief that after visiting Dr.
Groesbeck, Wakefield "discovered that he really would
prefer to be a college student, and has followed that
course to the present " This gossamer argument ignores
the overwhelming evidence to the contrary.
As noted above, the three psychiatrists who examined
Wakefield (two of whom it must be remembered were
retained by interests adverse to Wakefield) all concluded
20 Presumably the General Counsel believes the same argument applies
to the 1977 offers but did not so state in her brief
469
that the level of traumatic anxiety stress which he suf-
fered as a consequence of the events surrounding his un-
lawful discharge rendered him disabled for employment,
and in need of psychotherapy and vocational rehabilita-
tion. Estep in essence testified that the schooling aspect
of Wakefield's treatment came about more or less by
chance following an unsuccessful attempt to secure other
employment. Thereafter, it was continued as a conse-
quence of a vocational rehabilitation plan developed by
the California Department of Rehabilitation. Contrary to
the insinuation in the Respondent's brief, steps related to
Wakefield's schooling did not even begin until more than
6 months after Dr. Groesbeck's evaluation. Apart from
the untenable argument spun by the Respondent, there is
absolutely no evidence in this record to support a finding
that Wakefield was malingering. When consideration is
given to the number and variety of evaluations of Wake-
field which have taken place over the past 5 years, the
lack of any impeaching evidence concerning the severity
of Wakefield's condition becomes all the more signifi-
cant With the massive amount of uncontradicted testi-
mony and evidence that Wakefield was disabled by the
events he endured with the Respondent, it would be
clear error for me to reject this evidence as improbable
merely because the evidence shows that a partially suc-
cessful program of psychotherapy and rehabilitation in-
cluded schooling K-Mart Corp., 110 LRRM 2167 (9th
Cir. 1982). Accordingly, I find on the basis of the fore-
going, and the entire record herein that Wakefield's fail-
ure to seek interim employment resulted from his disabil-
ity and that he incurred no willful loss of earnings by
reason of his failure to seek or secure interim employ-
ment.
Ordinarily gross backpay is tolled during periods of a
discrimmatee's illness or other unavailability for work
during the backpay period An exception to this general
rule is found in circumstances where the illness results,
inter alia , from the Respondent's unlawful conduct.
American Mfg. Co. of Texas, supra In that case, the
Board held that where an interim disability arose from
the unlawful discharge and is not a usual incident of the
hazards of living generally, the period of disability will
not be excluded from backpay. The evidence here shows
that Wakefield initially left work because of the physical
injury inflicted by Singh The findings in Greyhound I
show that he never returned because he was fearful of
doing so
When he submitted to a medical evaluation following
that hearing, it was determined that this fear had taken
on the characteristics of a severe neurosis Because it is
natural for the loss of one's job to produce a stressful sit-
uation , claims of psychological disabilities resulting
therefrom should be carefully scrutinized. The evidence
here establishes that Wakefield's psychological disloca-
tion was far more severe than that normally suffered
The evidence also establishes that the direct cause of
Wakefield's disability was the series of events culminat-
ing in Wakefield's termination and not, as the Respond-
ent claims in its brief, Wakefield's time-bomb personality
together with the refusal of the police department to take
action against Singh for the battery committed against
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wakefield. The Respondent' s argument in this regard
begs the question. Assuming, arguendo, that the Re-
spondent had introduced competent evidence to show
that to be the case, it does not follow that Wakefield's
disability is thereby attributable to the "hazards of
living." Neither employees nor employers should need
police protection from one another and where it is
shown that such a need arises as a result of the deliberate
conduct of one, the law must hold the other responsible
for the foreseeable consequences of his actions. The fore-
seeability of Wakefield's condition cannot be treated as
all that remote from the circumstances which caused it.
In the underlying case, the findings show that he was
threatened with murder and attacked by the same super-
visor within a 2-month time span . To the extent that his
resultant condition was unusual, the circumstances caus-
ing it were unusual . In addition, the medical testimony in
this case confirmed that the surfacing of latent personali-
ty factors, such as those which caused Wakefield to react
to events in the manner in which he did, is a totally un-
predictable variable. The fact of the matter is, however,
that Wakefield spent 6 years at his job with the Respond-
ent as a rather contented employee. Although Wake-
field's reaction might be termed unusual, it is not alto-
gether novel Thus, in at least one past case the Board
ordered a backpay remedy for an employee disabled by a
form of anxiety illness induced, or substantially caused,
by an employer's unlawful conduct. Becton-Dickinson
Co., 189 NLRB 787, 788 (1971). As it is my conclusion
that Wakefield's disability resulted solely from the cir-
cumstances surrounding his attack and unlawful termina-
tion , I find that backpay is not tolled during the period
of his disability. American Mfg. Co. of Texas, supra.
Another elementary principle in backpay matters is
that the backpay is tolled by an unconditional offer of re-
instatement . As construed by the Board, the intended
cutoff date is that date which affords a discriminatee a
reasonable penod of time to determine if he wishes to
accept or reject an unconditional offer and during which
he can, if he accepts, take those steps necessary to return
to work pursuant to the offer. Fredeman's Calcasieu
Locks Shipyard, 208 NLRB 839 (1974). In applying this
principle, a discnmmatee is usually not precluded from
accepting an offer if, at the time it is tendered, he is ill
and unable to return to work. Here, however, the evi-
dence shows that the nature of Wakefield's illness pre-
cluded any realistic option of returning to work for the
Respondent. Those directly involved in treating Wake-
field strongly recommended that he not return to the Re-
spondent's employ. This recommendation was clearly
reasonable under the circumstances. Hence, without
regard to whether or not any of the offers of reinstate-
ment were conditional or unconditional, the evidence
now available shows that it would have been totally im-
practical for Wakefield to return to his former position.
In these circumstances, if any of the reinstatement offers
are treated as sufficient to toll the backpay in this case,
the Respondent will benefit from an artificial and mean-
ingless act to limit its liability for the losses which its un-
lawful conduct actually caused Wakefield.
In my view the real problem, with respect to Wake-
field's backpay period, is determining the event which
should trigger its ending . Where, as here, there is no evi-
dence that the Board was ever previously made aware of
Wakefield 's medical condition , I refuse to assume that
the Board would treat this matter as governed by the
usual rule that backpay ends when there is an uncondi-
tional offer of reinstatement . In too many cases, the
Board has severed the holy bond of matrimony between
offers of reinstatement and the ending of backpay where
it has information before it showing that it would be un-
reasonable not to do so. See, e.g, Los Angeles Marine
Hardware Co., 235 NLRB 720, 738 ( 1978) (backpay not
ended for individuals for whom it was impractical to
travel to new employer location until they located sub-
stantially equivalent employment elsewhere); D. R.
Cooper & Son , 220 NLRB 287 ( 1975) (no reinstatement
ordered and backpay terminated on date of employee
vandalism against employer 's property); Gifford-Hill &
Co., 188 NLRB 337 (1971) (no reinstatement required
and backpay ended when employee was jailed for a
felony); Tomahawk Boat Mfg. Co., 144 NLRB 1344
(1963) (no reinstatement ordered where employee would
have been terminated lawfully when a replacement was
recruited and backpay ended when replacement was ac-
tually hired ). However , Graves Trucking, Inc., 246 NLRB
344 (1979), presents a factual pattern most analogous to
Wakefield 's case There, an employee was forced to
leave work after being physically choked by a supervisor
in response to the employee 's complaint about changes in
working conditions which affected a number of employ-
ees. As a result of the choking , the employee was inca-
pacitated for work with either the offending employer or
any other employer . In formulating a remedy , the Board
rejected the employer 's argument that backpay was pre-
cluded because of the availability of a common law tort
or workmen 's compensation remedy . The Board ob-
served that , although choking employees was not a
common form of unlawful conduct under the Act, it was
nonetheless a form of unlawful conduct which the Act
was designed to remedy . Accordingly , the Board fash-
ioned a remedy which required the employer to make
the disabled employee whole for the pay lost from the
date the employee was unable to work because of the
physical injury to him until a reasonable time after the
employee was deemed physically able to resume his
former or substantially equivalent job with the respond-
ent or any other employer . No reinstatement was or-
dered and the determination of the date backpay was to
be tolled was left to the compliance stage of the proceed-
ing. In view of the Graves case and the medical evidence
now available herein showing that the reinstatement of
Wakefield by the Respondent would only aggravate his
disabling mental condition, I can only conclude that, had
this information been before the Board, it would have
deemed a reinstatement remedy here to be impractical
and unwarranted . That being so, I do not deem it reason-
able to give effect to any reinstatement offer , conditional
or unconditional , for purposes of determining the length
of Wakefield 's backpay period.
Instead it is my recommendation that Wakefield's
backpay period be continued until the time he completed
the vocational rehabilatation required as a consequence
GREYHOUND TAXI CO.
of the unlawful action the Respondent took against
him.21 Recognizing that the restoration of Wakefield to
his former type of employment was, for all practical pur-
poses, an impossibility in the foreseeable future, the most
that the medical experts, therapists, and vocational reha-
bilitation professionals felt they could achieve was that
Wakefield would be restored to a productive working
member of society. That was the aim of the treatment
plan devised which was endorsed by all three psychia-
trists who evaluated Wakefield. Accordingly, I find that
the appropriate measure of Wakefield's backpay would
be a sum equivalent to what he would have earned if
employed by Respondent from February 13, 1976, until
he completed the plan of vocational rehabilitation de-
vised by the California Department of Rehabilitation.
Roseler, a professional rehabilitation counsellor, testified
that time was approximately June 1, 1981. Although Dr.
Groesbeck was cautious in his concurrence, he essential-
ly agreed. I, therefore, recommend that Wakefield be
made whole for the loss of earnings suffered by him
from the date of his discharge until June 1, 1981.22
The next issue to be resolved is the treatment to be ac-
corded the benefits which were received by Wakefield
during the backpay period. The rationale of NLRB v.
Gullets Gin Co., supra, would appear to lay to rest most
of the issues with respect to those benefits received by
Wakefield which should be treated as interim earnings.
In that case, the Supreme Court held that unemployment
compensation benefits paid to a discriminatee were not
earnings from interim employment which should be de-
ducted from gross backpay. Upholding the Board's dis-
cretion under Section 10(c) of the Act in refusing to
treat regular unemployment compensation payments as
interim earnings , the Court reasoned (340 U.S. at 364):
Such action may reasonably be considered to ef-
fectuate the policies of the Act. To decline to
deduct state unemployment compensation benefits
in computing backpay is not to make the employees
more than whole, as contended by respondent.
Since no consideration has been given or should be
given to collateral losses in framing an order to re-
imburse employees for their lost earnings, manifest-
ly no consideration need be given to collateral bene-
fits which employees may have received.
But respondent argues that the benefits paid from
the Louisiana Unemployment Compensation Fund
were not collateral but direct benefits. With this
theory we are unable to agree. Payments of unem-
ployment compensation were not made to the em-
ployees by respondent but by the state out of state
funds derived from taxation. True, these taxes were
paid by employers, and thus to some extent re-
21 As this recommendation is predicated upon the conclusion that
Wakefield must , under the special circumstances present here, seek alter-
nate employment , it would be inappropriate to require that payments be
made to the pension program on Wakefield's behalf unless ( 1) such pay-
ments would affect a vested interest Wakefield already has in the pro-
gram, or (2) the program has a portability feature
22 This is not to say that Wakefield is no longer disabled Instead it
merely represents a demarcation point where those involved in his treat-
ment thought he could have at least attempted to return to the work
force Wakefield chose, however, to continue his schooling
471
spondent helped to create the fund. However, the
payments to the employees were not made to dis-
charge any liability or obligation of respondent, but
to carry out a policy of social betterment for the
benefit of the entire state See Dart's La. Gen. Stat.
1939, Section 4434.1; In re Cassaretakis, 289 N.Y.
119, 126; 44 N E.2d 391, 394-395, affd sub nom.
Standard Dredging Co. v. Murphy, 319 U.S. 306; Un-
employment Compensation Commission v. Collins, 182
Va. 426, 438, 29 S.E.2d 388, 393. We think these
facts plainly show the benefits to be collateral. It is
thus apparent from what we have already said that
failure to take them into account in ordering back
pay does not make the employees more than
"whole" as that phrase has been understood and ap-
plied. I
1 We note that some states permit recoupment of benefits paid
during a period for which the National Labor Relations Board sub-
sequently awards back pay E g , In re Skutnik , 268 App Div 357,
51 N Y S 2d 711 Recoupment in such situations is a matter be-
tween the State and the employees
In my judgment , this same rationale would preclude the
deductions sought by Respondent of any UID and social
security disability benefits, the private insurance benefits
and the reimbursements received from the California De-
partment of Rehabilitation from the gross backpay due to
Wakefield. These benefits have been established or pur-
chased privately by Wakefield to permit him to subsist
during the period of his rehabilitation. The purpose of
the public programs are, in the final analysis, designed to
spread the human costs of legitimate industrial activity
throughout society. I can perceive no public policy
which would be served by artificially terminating the
Respondent's liability and foisting the costs of its egre-
giously unlawful conduct upon the taxpayers and public
and private institutions as has been done here. Accord-
ingly, I find that UID and social security disability bene-
fits, Wakefield's private insurance benefits, and the De-
partment of Rehabilitation reimbursements are not inter-
im earnings which must be deducted from the gross
backpay due.23
However, as to workmen's compensation benefits, the
Board has accorded a different result to that portion of
such benefits which can be identified as temporary dis-
ability payments where, as here, it is inappropriate to toll
the accrual of backpay because the interim disability
arose from the unlawful discharge. In such cases, the
Board has held that it is appropriate to deduct from the
gross backpay "that portion of the workmen's compensa-
tion payments to [the employee] which were in replace-
ment of lost wages . .." American Mfg. Co. of Texas,
supra. This holding was clarified in Canova Moving &
Storage Co., 261 NLRB 639 (1982), wherein the Board,
relying on Russell v. Bankers Life Co., 46 Cal 3d 405
(1975), held that only the temporary disability benefits
23 As the court noted in Gullets, there may be procedures which
would permit recoupment of at least some of the benefits paid to Wake-
field from an award of backpay herein. However, that is, as the court
noted, a matter which would be between Wakefield and those agencies
from which he has received benefits
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the workmen's compensation scheme in California
constituted a replacement for lost wages. Regardless, the
General Counsel argues on the force of instructions con-
tained in an internal field manual (Compliance Manual,
sec. 10604 1) that none of the funds received by Wake-
field in the workmen's compensation matter should be
deducted from the gross backpay. The thrust of the Gen-
eral Counsel's argument is that because the payment
made to Wakefield resulted from a compromise and set-
tlement, it is not possible to identify the amount of the
temporary disability payment which was actually paid to
Wakefield I do not agree The applicable procedures in
California workmen's compensation compromise and set-
tlement cases where, as here, a UID disability lien was
filed, do provide a sound basis for calculating the amount
of Wakefield's temporary disability benefit.
The Board's decision in Canova, supra, requires that
the nature of the money paid to Wakefield be analyzed
from the perspective of California law which, in any
legal sense, governs the nature of the payment. Under
the California workmen's compensation procedures, a
compromise and settlement is not treated as an unex-
plained back room bargain especially where there are
outstanding liens such as those for UID disability bene-
fits and medical services. See California- Western States
Life Ins. Co. v. Industrial Accident Commission (the Baird
Case), 59 Cal 2d 257 (1963), for a discussion of the Cali-
fornia workmen's compensation compromise and settle-
ment procedures and the formula employed in reducing
the amount of UID liens. In the Baird case, the Califor-
nia Supreme Court held that a UID lien could be re-
duced by a specified ratio between the settlement and the
estimated total value of the case The estimated total
value of a case was specified as the sum of the amounts
allocated for permanent disability, temporary disability,
past medical treatment, and estimated future medical
treatment computed as if the claimant prevailed on all
contentions. In subsequent cases, the same court has held
that the estimates of potential recovery must be support-
ed by substantial evidence and legal contentions which
are not spurious See, e.g., Hegglin v. Workmen's Compen-
sation Appeals Board, 4 Cal. 3d 162 (1971); Place v. Work-
men's Compensation Appeals Board, 3 Cal 3d 372 (1970),
LeVesque v. Workmen's Compensation Appeals Board, 1
Cal. 3d 627 (1970), Smith v Workmen's Compensation Ap-
peals Board, 71 Cal. 2d 588 (1969)
Because of the standards established by California case
law, allocating the portion of a workmen's compensation
settlement to temporary disability benefits is rationally
possible and is not a mere stab in the dark. Thus, it is
reasonable to presume that the analysis which the parties
in Wakefield's compromise and settlement filed with the
WCAB represented the total value of his claim comput-
ed as if he had prevailed on all contentions supported by
substantial evidence and legal theories which are not
spurious. In the absence of contrary evidence, the docu-
ments in evidence demonstrate that these procedures
were employed in Wakefield's case. General Counsel's
Exhibit 5 reflects the calculation of the UID lien rule
against Wakefield's settlement using the Baird formula
That document reflects the separate amounts allocated to
the various elements in determining
Wakefield's case as follows.
the "total value" of
Estimated temporary
disability indemnity $7000
Estimated permanent
disability indemnity 8500
Estimated past
medical expense 2500
Estimated future
medical expense 3500
Total Estimated Case
Value $21,500
The compromise and settlement (R. Exh 3) shows that
the gross amount of Wakefield's workmen's compensa-
tion settlement was $13,634 and Wakefield's uncontra-
dicted testimony was that he actually received a payment
of $10,300. The compromise and settlement document re-
flects authorized deductions from the gross settlement
figure of $633 73 for reimbursement of costs expended by
Wakefield's lawyers, $687.06 to satisfy the UID disability
lien and an unspecified sum for attorney's fees 24 The
compromise and settlement further recites that Wakefield
had already paid $2500 for medical expenses and that
$3500 was estimated for future medical expenses which
were to be assumed by Wakefield. As the compromise
and settlement documents appear to meet the rigid allo-
cation standards of California case law, I find contrary to
the General Counsel, that the compromise and settlement
has apportioned the gross settlement for specific pur-
poses. By following the allocations made in the compro-
mise and settlement, the combined amount of the tempo-
rary and permanent disability benefits can be determined,
to wit25
Settlement amount
Less allocated UID lien $ 687 06
Less allocated case cost 633 73
Less allocated attorney's fees 2,103 21
Less allocated past and future medi-
cal expenses
Total allocated deductions
Amount of settlement appropriately
allocable for temporary and per-
manent disability
$13,634
9,334
4,300
Furthermore, in the original allocations of the total esti-
mated case value, the temporary disability indemnity was
24 Based on the gross amount, the known deductions and the net paid
to Wakefield, it appears the amount of the attorney fee for Wakefield's
attorney was $2,013 21
25 The Baird case specifies that such items as medical expenses, attor-
ney's fees, etc , are to be offset in the full amount in determining UID
lien values Moreover, the compromise and settlement in Wakefield's case
specifically allocates the sums specified for such purposes The Canova
case rationale strongly suggests that amounts allocated for specific pur-
poses by California will be treated in the same fashion by the Board
Hence, for this purpose, the above amounts deducted from the gross set-
tlement to determine the amount allocated for temporary and permanent
disability appears entirely consistent with California procedure and Board
law
6,00000
GREYHOUND TAXI CO.
45.16 percent of the total of the amounts allocated for
temporary and permanent disability, i.e., $7000 divided
by (7000 + 8500). Applying the same percentage to the
settlement amount properly allocable to temporary and
permanent disability as determined above is, in my judg-
ment, a reasonable means of measuring that portion of
the settlement which is for the temporary disability
aspect of Wakefield's workmen's compensation settle-
ment. As it is my view that the foregoing process is en-
tirely reasonable under Board and California law, I have
allocated the sum of $1941.88 ($4300 x 45.16 percent =
$1941.88) as interim earnings earned by Wakefield (on a
weekly basis) for the period from February 14, 1976,
through September 1, 1977, the date of the workmen's
compensation settlement. American Mfg. of Texas, supra,
Canova Moving, supra. Accordingly, the revised compu-
tation of the backpay which I find that is due to Wake-
field is as shown in Appendix B.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed26
ORDER
Respondent, Greyhound Taxi Co, Inc., Sacramento,
California, its officers, agents, successors, and assigns,
shall
1. Make Robert J. Sans whole
(a) By contributing the sum of $283 to the Penn
Mutual Retirement Program on his behalf.
(b) By paying to Sans the sum of $11,799.90 less any
further amount properly deductible as a consequence of
the illness suffered by him about July 1, 1977, together
with interest as prescribed in Isis Plumbing Co., 138
NLRB 716 (1962), and Florida Steel Corp., 231 NLRB
651 (1977);
(c) By paying to Sans such further amount of backpay
which accrues after May 31, 1982, by reason of its failure
to reinstate the $8.50-per-week wage payment which was
discontinued in July 1975, together with interest thereon
calculated in the same manner as is prescribed in 1 (b),
above.
2. Make Harold L. Wakefield whole
(a) By contributing the sum of $1360 plus an additional
sum equivalent to the specified monthly contribution for
1981 multiplied by 5 to the Penn Mutual Retirement Pro-
gram on his behalf if, under the provisions of that Pro-
gram, such sum will affect in any manner a vested inter-
est Wakefield had in that program at the time of his ter-
mination, or that Program contains a provision of any
kind which would permit Wakefield to benefit now, or at
some future date, from the Program even though he was
terminated by the Respondent on February 13, 1976;
(b) By paying to Wakefield the sum of $38,766.74 to-
gether with interest thereon in the same manner as pre-
scribed in 1 (b), above.
26 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
473
3. Withhold and remit such tax payments as are re-
quired by law for the sums specified in 1(b), 1(c), and
2(b), above.
APPENDIX A
Robert J. Sans' Backpay
Year Quar- Gross
Interim
Earn-
Net Retire-
ment
1975
ter
III
Backpay
$ 10200
lugs
$ -0-
Backpay
$ 102 00
program
N/A
IV 269 50 -0- 269 50 N/A
1976 I 1,641 00 1500 1,626.00 $60.00
II 1,99550 -0- 1,995.50 6000
III 1.995.50 -0- 1,995.50 60.00
IV 2,005.50 -0- 2,005.50 6000
1977 I 518.00 -0- 518.00 N/A
II 1,117.00 -0- 1,117.00 43.00
III 105 40 -0- 105 40 N/A
From the fourth quarter 1977 thru May 31, 1982, the quarterly
gross and net backpay is $110 50 for reduced weekly wage
rate: 18 quarters, 9 weeks x $11040 = $2,065.50
Net Backpay (to May 31, 1982)• $11,799 90
Retirement Contributions Due, $283.00
APPENDIX B
Harold L Wakefield's Backpay
JV.- Quar-
ter
Gross
Backpay
Interim
Earn-
ingsi
Net
Backpay
Retire-
ment
Contri-
bution
1976 I $ 818.86 $16779 $ 651 07 $4000
II 1,695.90 311 61 1,38429 6000
III 1,454 16 311 61 1,142 55 6000
IV 1,846 16 31161 1,534.55 6000
1977 I 1,673.91 311.61 1,362 30 64.50
II 1,936 47 311 61 1,624,86 6450
III 1,77700 21604 1,55396 64 50
IV 2,047 84 -0- 2,047.84 64 50
1978 I 1,718.98 -0- 1,718 98 69.00
II 1,699 26 -0- 1,69926 69.00
III 1,77299 -0- 1,772.99 6900
IV 2,135.10 -0- 2,135.10 6900
1979 1 2,002.43 -0- 2,002.43 73 50
II 1,97823 -0- 1,97823 73 50
III 1,825 57 -0- 1,825 57 73 50
IV 1,982.09 -0- 1,982 09 73 50
1980 I 1,913.33 -0- 1,91333 7800
II 2,118 .14 -0- 2,118.14 7800
III 2,342 21 -0- 2,342 21 7800
IV 2,263 06 -0- 2,263.06 78 00
1981 I 22,164.35 -0- 2,164.35 Monthly
rate not
II 31,549.58 -0- 1,549.58 shown in
record
NET BACKPAY DUE: $38.766.74
Retirement Contribution Through 1980 1,3 .00
Amounts represent a weekly allocation of workmen's com-
pensation temporary disability payment of $1,941 88 at the
weekly rate of $23 97 except for the final week where the sum
of $24 28 was allocated to account for fractional rounding off.
2 Amounts of backpay computed pursuant to the gross back-
pay formula for first three quarters of 1981 are contained in
474 DECISIONS '.OF NATIONAL LABOR RELATIONS BOARD '
Joint Exhibit 1 The remaining gross backpay figures are shown 3 Amount shown is 9/13 of total backpay for 1981, Quarter
in the,amendment to the backpay specification . II, as feflected ; in Joint Ex15ibith1