Local Union No. 277, International Brotherhood Of Painters And Allied Trades (Polis Wallcovering Co. Et Al.)

National Labor Relations Board - Board Decisions

Dec 10, 1986

282 N.L.R.B. 402 (N.L.R.B. 1986)

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local , Union , No. 277, 'International Brotherhood of
Painters and Allied Trades (Polis Wallcovering
Co. et al.) and Edward W. Pygatt and Jennings
V. Love
Local Union No. 277, International Brotherhood of
Painters , and Allied Trades (Del E. Webb New
Jersey, 'Inc.) and Edward W. Pygatt. Cases 4-
CB-4170 and 4-CB-4941
10 December 1986,
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 21 July 1982 the Board issued its Decision
and Order' in Case 4-CB-4170, finding, inter alia,
that the Respondent Union had violated Section
8(b)(1)(A) of the Act by refusing to refer Edward
W. Pygatt for employment because he had engaged
in conduct viewed by the Respondent's officials as
disloyal. The Board ordered, inter alia, that Pygatt
be made whole for any loss of earnings resulting
from the unfair labor practice. On 19 September
1983 the United States Court of Appeals for the
Third Circuit granted enforcement in part and re-
manded the matter in part to the Board.2 The
court directed the Board to determine if the Re-
spondent had carried its burden in establishing the
affirmative defense that no employers requesting
workers in Pygatt's job classification (paperhanger)
would have accepted Pygatt if he had been re-
ferred. On remand, the Board, in a Supplemental
Decision and Order3 issued .on 29 June 1984, con-
cluded that the Respondent had not carried its
burden of showing that it would slave been futile to
refer Pygatt. On 27 March 1985 the Third Circuit
granted enforcement of the Board's 29_ June 1984
Order.4
On 22 January 1986 the Board issued its Deci-
sion and Order5 in Case '4-CB-4941 finding, inter
alia, that the Respondent violated Section
8(b)(1)(A) and (2) of the Act by causing Del E.
Webb New Jersey, Inc. (manager of the Claridge
Hotel and Casino) to discharge Pygatt. The Board
ordered, inter alia, that Pygatt be made whole for
any loss of earnings resulting from the Respond-
ent's unfair labor practices.
There was a disagreement over the amounts
owed Pygatt in each case and on 4 April 1986 the
i 262 NLRB 1336 (1982).
2 717 F.2d 805 (3d Cit. 1983).
a 271 NLRB 58 (1984).
4 Memorandum Opinion , Nos. 84-3443 and, 84-3540
5 278 NLRB 169 (1986).
Regional Director, issued an order consolidating
Case 4-CB-4170 with Case 4-CB-4941 for hearing.
On 27 June 1986 Administrative Law Judge
Claude R. Wolfe issued the attached supplemental
decision 'in the consolidated backpay proceeding.
The .Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its- authority in this proceeding to a three-
member panel:
The Board has considered the judge's supple-
mental decision and the record in, light of the ex-
ceptions and brief and has decided to affirm the
judge's rulings, findings,6 and conclusions only to
the extent consistent with this Supplemental Deci-
sion and Order.
In calculating the backpay formula in Case 4-
CB-4170 the General Counsel first divided the
total number of hours worked by paperhangers
having at least one referral during the backpay
period by the total number of those paperhangers
to arrive at an average number of hours worked
(total average). The General Counsel then eliminat-
ed those paperhangers (and their hours) who did
not work at least 60 percent of the total average.
By dividing the remaining hours by the remaining
number of paperhangers, the General Counsel ar-
rived at an average number of hours for those pa-
perhangers who worked at least 60 percent of the
total average. The General Counsel then calculated
the percentage of this average that Pygatt worked
in the 1-year period preceding the unfair labor
practice. Thus, the General Counsel calculated that
Pygatt worked 83 percent of the average number
of hours of those paperhangers who worked at
least 60 percent of the total average. The General
Counsel applied this formula for each year of the
backpay period, awarding Pygatt 83 percent of the
hours averaged by those paperhangers who
worked at least 60 percent of the total average.
The General Counsel then multiplied this number
of hours by the wage rate in effect and arrived at
Pygatt's gross backpay.
6 The Respondent argues that the representative employee formula ap-
proved by the judge in Case 4-CB-4941 did not take into account the
excessive absenteeism and tardiness of Pygatt . The judge stated that there
was no evidence to support this contention . R Exh. 11, however, is a
warning notice issued by the Claridge Hotel and Casino (Pygatt's em-
ployer during the relevant backpay period ) dated 14 February 1985. It
states that Pygatt had a record of excessive tardiness and absences since
starting work 18 September 1984. This does not change the result in Case
4-CB-4941 , however, because the warning notice did not specify when
Pygatt's absences and tardiness occurred. Since the backpay period in
that case was from 7 to 14 November 1984 and the representative em-
ployees were credited by the judge as having worked the same hours as
Pygatt worked immediately before and after the backpay period, the
most accurate estimate of Pygatt's backpay for that period is achieved by
using the representative employee formula.
282 NLRB No. 60
PAINTERS LOCAL 277 (POLIS WALLCOVERING) 403
The Respondent argues that the, number of hours
Pygatt would have worked absent the unfair labor
practice is inflated by eliminating the paperhangers
who worked less than 60 percent of the total aver-
age. We agree.
The basis for eliminating the paperhangers with
hours below 60 percent of the total average was
explained at the hearing by the Board's compliance
officer, who stated:?
Normally when calculating backpay in a
sort of straight production type area, you don't
include individuals who worked less than 24
hours, so I figured 24 over-24 over 40 comes
to a 60% average.
And what I did was I looked at the individ-
uals who worked much less than 60% of the
average, okay?
Thus, the compliance officer applied a statistical
technique used in straight production industry
cases to the instant construction industry case.
In straight production industry cases this tech-
nique helps the Board reach the most accurate
backpay estimate by assuring that part-time work-
ers do not artificially lower the backpay due full-
time discriminatees.
This rationale does not apply in construction in-
dustry cases, however, where, as here, the work is
intermittent and even employees willing and able
to work fill time may not have the opportunity to
do so. Indeed, there was testimony at the hearing
that the demand for paperhangers fluctuated great-
ly during the backpay years because the initial
building/renovation boom associated with the
casino industry in Atlantic City had dropped off.
In order to eliminate the artificial increase in Py-
gatt's hours caused by the exclusion of the paper-
hangers with referrals below 60 percent of the total
average, the average number of hours for the back-
pay period should be calculated by dividing the
total hours worked by all paperhangers having at
least one referral by the total number of those pa-
perhangers.8
In addition to preventing an artificial increase in
Pygatt's backpay, this formula achieves the most
accurate estimate of what Pygatt would have re-
ceived, absent the unfair labor practice, in that it
protects against an artificial decrease of Pygatt's
backpay by eliminating the paperhangers who had
no referrals.
Accordingly, the backpay formula for Case 4-
CB-4170 is changed to reflect the average number
of hours worked by the paperhangers who had at
least one referral during each calendar year of the
backpay period.
ORDER
The National Labor Relations Board orders that
the Respondent, Local No. 277, International
Brotherhood of Painters and Allied Trades, its offi-
cers, agents, and representatives, shall make
Edward W. Pygatt whole by paying him
$23,360.90 for wages lost9 and amounts expended
by him to secure replacement medical health insur-
ance,1 ° with interest to be computed thereon in the
manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977). The Respondent shall make the
appropriate deductions' from this amount of any tax
withholdings required by state and Federal laws,
and shall submit the withholdings to the appropri-
ate authorities.
IT IS FURTHER ORDERED that the Respondent
pay $4900 into the I.B.P.A.T. Union and Industry
National Pension Fund'! as contributions on behalf
of Edward W. Pygatt and shall also pay into that
fund an, additional 12 percent of the delinquent
contributions for the period I May 1982 through 14
November 1984 as required by article XI, section
11.17, of the collective-bargaining agreement cov-
ering that period. The prior agreement contains no
such penalty provision, and it is therefore ordered
that the Respondent shall pay into the pension fund
the monetary penalties, if any, required under the
Agreement and Declaration of Trust dated 1 April
1967 for the delinquent pension fund payments for
the period 1 July 1980 through 30 April 1981.
' Tr. 65.
a This average, once broken down by year and quarter, is then multi-
plied by the wage rate in effect to arrive at Pygatt's gross backpay. See
Appendix A attached hereto.
s This figure is the sum of the wages lost in the consolidated cases and
the amount required to reunburse Pygatt for replacement medical health
insurance. Since the formula in Case 4-CB-4170 has been changed by
this Supplemental Decision and Order a recalculation of the wages owed
in that case was required . This recalculation is contained in Appendix A
of this opinion.
10 The amount the Respondent owes Pygatt for replacement medical
health insurance ($4399.90) is not affected by the change in the formula,
so no recalculation of this figure is required.
11 This figure includes $43 for pension, payments lost during the back-
pay period in Case 4-CB-4941. The pension amount in Case 4-CB-4941
is unaffected by the change in formula ordered herein, so no recalcula-
tion is required The recalculation of the pension figures in Case 4-CB-
4170 necessitated by the change in the formula used in that case is con-
tained in Appendix B of this opinion.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Category'
Yr. Qtr.'
1980 ......................................................
3d ....................................................
4th ..................................................
1981 ......................................................
1st ...................................................
2d ....................................................
3d ....................................................
4th ...................... ......................
1982 ......................................................
1983
1st ...................................................
2d ....................................................
3d ....................................................
4th ..................................................
......................................................
1st ...................................................
2d ....................................................
3d ....................................................
4th ..................................................
1984 ......................................................
1st ...................................................
2d ....................................................
'3d ....................................................
1 2 3 4 5 6
Total Total
Hrs. of # of
Paper- pHs
hanger w/at Avg.
(PH) Least Hrs.
w/at 1
Least 1 Re-
Referral ferral
Avg. Hr. Gross
Qtr. Wage Back-
Hrs. Rate pay
17,981 - 15 = 1199-4 = 300
300 $13.20 = $3960
300 x 13.20 = 3960
17,011 - 14 = 1215-4 = 304
304 x 13.20 = 4013
304 x 13.74 = 4177
304 x 14.00 = 4256
304 x 14.00 = 4256
9,791 - 13 = 753-4 = 188
7 8
Inter-
im Net
Earn- Backpay
ings
$272 = $3,688.00
408 = 3,552.00
408 = 3,605.00
408 = 3,769.00
3000 = 1,259.00
4296 = (40.00)
1,88 x 14.00 = 2632 - 4,296 = (1,664.00)
188 x 14.67 = 2758 - 4296 = (1,538.00)
188 x 15 .00 = 2820 - 4022 = (1,202.00)
188 x 15.00 = 2820 - 3885 = (1,065.00)
10,943 - 11 = 995-4 = 249
12,550 - 7 = 1793-4 =
249 x 15.00 = 3735 - 3885 = (150.00)
249 x 15.87 = 3952 - 3885 = 67.00
249 x 16.30 = 4059 - 5503 = (1,444.00)
249 x 16.30 = 4059 - 6312 = (2,253.00)
448
448 x 16.30 = 7302 - 6312 = 990.00
448 x 17.34 = 7768 - 6312 = 1,456.00
448 x 17.85 = 7997 - 8788 = (791.00)
Wage/Insurance
Totals
Total Net Backpay owed in Case 4-CB-4170 $18,386.00
Replacement medical health insurance reimbursement owed in Case 4-CB-4170 4,399.90
Total net backpay owed in Case 4-CB-4941 575.00
$23,360.90
Pension
Fund
Totals
Pension fund contribution owed in Case 4-CB-4170 4,857.00
Pension fund contribution owed in Case 4-CB-4941 43.00
$4,900.00
' The figures used in categories 1, 2, 5, and 7 were derived from G.C. Exhs. 5 and 14 admitted into evidence at the hearing.
PAINTERS LOCAL 277 (POLIS WALLCOVERING) 405
APPENDIX B.-CASE 4-CB--4170 PENSION FUND
CALCULATION
Yr./Qtr.
Avg.
Qtr.
Htx
Contribution Rate' AmtOwed
300
300
304
304
304
188
188
188
188
188
249,
249,
249
249
448
449
449
$.95 ...................................................
.95 ......................................................
.95 ....................................................
.95 thru Apr.-1!00 May/June..........
1.00 ....................................................
1.00 ....................................................
1.00 ....................................................
1.00 .....................................................
1.00 .....................................................
1.00 .................................................
1.00 ....................................................
1.00 ....................................................
1.00 ................ ...............................
1.00 ....................................................
1.00 ....................................................
1.00 ...................................................
Total pension fund contributions owed in Case
4-C13-4170.
`$285
285
289
96
202
304
304
188
188
188
188
249
249
249
249
448
448
448
$4857
' The contribution rate figures are derived from G.C. Exh. 17
admitted into evidence at the hearing.
Margarita Navarro-Rivera, Esq., for the General Counsel.
Robert F. O'Brien, Esq., for the Respondent.
SUPPLEMENTAL DECISION
CLAUDE It WOLFE, Administrative Law Judge. This
backpay proceeding was litigated before me at Philadel-
phia, Pennsylvania, on 30 April and 1 May 1986. On the
entire record, the demeanor of the witnesses as they tes-
tified, and after carefully considering the posttrial briefs
filed by the parties, I make the following findings 'and
conclusions.
1. HISTORY OF THE CASE
On 27 July 1982 the National Labor Relations Board
(Board) issued its Decision and Order' directing Local
Union No . 277, International Brotherhood of Painters
and Allied 'Trades (Respondent) to make Edward W.
Pygatt whole for losses resulting from Respondent's un-
lawful refusal to refer Pygatt for employment. On 19
September 1983 the United States Court of Appeals for
the Third Circuit remanded the matter to the Board for
the purpose of determining whether Respondent had car-
ried its burden of proving there were no requests for em-
ployees in Pygatt 's job classification (paperhanger) from
employers who would accept Pygatt if he were re-
ferred . 2 On reconsideration the' Board , by Supplemental
Decision and Order of 29 June 1984, affirmed its previ-
ous decision , specifically fording that "the Respondent
presented no credible or probative evidence demonstrat-
' Polls Wallcovering Co., 262 NLRB 1336.
2 717 F. 2d 805.
ing that referring Pygatt would have been futile because
no area contractors with jobs available would have hired
him," and again directing Respondent to make, Pygatt
whole.3 Respondent filed a petition for review with the
United States Court of Appeals for the Third Circuit.
The court then issued its judgment and memorandum
opinion on 27 March 1985 dismissing the petition for
review and granting enforcement of the Board's Order of
24 June 1984.4
The parties were unable to agree on the appropriate
amount of backpay due Pygatt. Accordingly, the Re-
gional Director for Region 4 issued a backpay specifica-
tion and notice of hearing in Case 4-CB-4170 on 30 Sep-
tember 1985. Respondent filed an answer on 31 October
1985 and an amended answer on 15 January 1986. The
Regional Director then, on 3 March 1986, issued amend-
ments to backpay specification. Respondent filed an
answer to the amendments on 19 March 1986.
In the midst of the foregoing exchange of backpay
specifications and answers thereto, the Board, on 22 Jan-
uary 1986, issued its Decision and Order in Case 4-CB-
4941.5 finding, inter alia, that Respondent had violated
Section 8(b)(1)(A) and (2) of the National Labor Rela-
tions Act (the Act) by causing an employer to discharge
Edward W. Pygatt, and directing Respondent to make
Pygatt whole for losses suffered by reason of this unlaw-
ful conduct. As in the earlier case, there was disagree-
ment over the amounts due Pygatt. The Regional Direc-
tor therefore issued an order consolidating cases, consoli-
dated backpay specification and notice of hearing in
Cases 4-CB.-4170 and, 4-CB-4941 on 4 April 1986. Re-
spondent filed its answer to this consolidated specifica-
tion on 24 April 1986. Thus matters stood when the pro-
ceeding came before me.
II. CONTENTIONS AND DISCUSSION
Respondent agrees , with the backpay specification's al-
legation that the appropriate periods for computing any
moneys due Pygatt are 1 July 1980 to 24 September 1984
in Case 4-CB-4170 and 7 to 14 November 1984 in Case
4-CB-4941 , but makes the following contentions:
Case 4-CB-4170
1. There were no paperhanging employers will-
ing to provide employment for Pygatt during the
relevant time frame.
2. No backpay is due Pygatt because he failed to
look for or seek interim employment during the
period of no work referrals by the Union from 1
July 1980 through September 1984.
3. No backpay is appropriate during Pygatt's
period of insurance business employment.
4. Foremen's hours should not be used in calcu-
lating backpay.
5. If any backpay is found appropriate, the ad-
ministrative law judge should calculate all hours
worked or not worked by all journeymen paper-
hangers on the Union's referral list.
2 Painters Local 277 (Polls Wallcovering), 271 NLRB 58.
° Local Union 277 v. NLRB, Nos. 84-3443 and 84-3540 (3d Cis 1985).
s Painters Local 277 (Webb New Jersey, Inc), 278 NLRB 169 (1986).
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Case 4-CB-4941
Pygatt's backpay for time lost from the Claridge
Hotel casino job should be substantially reduced.
With respect to Respondent's contention that there
were no employers willing to hire Pygatt during the
backpay period in Case 4-CB-4170, the same contention
was raised before the Board and the court as a defense to
the refusal to refer Pygatt and was rejected in each in-
stance. Defenses rejected in the underlying unfair labor
practice proceeding may not be entertained as reasons to
toll backpay liability because it is the law of the case.6
Moreover, although given leave at hearing to do so, Re-
spondent adduced no credible or probative evidence to
supplement its claims in the prior proceedings of inability
to refer.? This contention is therefore again rejected.
The argument that Pygatt must be denied backpay be-
cause he failed to seek interim employment is similarly
without merit. It is Respondent's burden to establish
facts in mitigation of liability, and the Board has no
burden of negativing matters of defense or mitigation
that Respondent has not, proved.8 Respondent has nei-
ther shown, as it is required to do, that there was work
available to Pygatt during the backpay period,9 or that
Pygatt would have been hired if he had applied for such
work." ° It is true that Pygatt testified he did not look for
nonunion paperhanging work, but there is no persuasive
showing any was available. Moreover, Pygatt, by his in-
creased activity in his insurance business, which he had
conducted during his employment as a paperhanger,
sought and obtained substantial additional income that
was treated in the backpay specification as interim, earn-
ings amounting to $66 ,28811 and resulted in the complete
elimination of any backpay due in the entire year of
1982, the third and fourth quarters of 1983 and the first
and third quarters of 1984 as well as total deductions of
$22,874 during the remainder of the backpay period.
That Pygatt drew these additional earnings from self-em-
ployment does not obscure the simple fact that his in-
creased activity was interim employment drastically re-
ducing Respondent's potential backpay liability.
With respect to contention number 3, Respondent
"suggests" that the corporate tax returns for Pygatt's
business be examined "and those figures , including gross
receipts, be examined and used as offset against back-
pay." Respondent further states that I am required to
carefully scrutinize the corporate gross earnings as well
as net profits to ascertain interim earnings . I am well
aware that an administrative law judge is required to de-
6 Overseas Motors, Inc., 277 NLRB 552 (1985); NLRB v. Laredo Pack-
ing Co., 730 F.2d 405 (5th Or. 1984), enfg. backpay order in 271 NLRB
553 (1984).
7 The testimony of Respondent 's business manager, James T. Brennan,
that there was no place to send Pygatt was specifically discredited in the
unfair labor practice proceeding , and I perceive no reason to credit that
general claim now.
s NLRB v. Brown & Root, Inc., 311 F.2d 447 (8th Or. 1963).
McLaughlin Mfg. Corp., 219 NLRB 920, 922 (1975); and see Newport
News Shipbuilding, 278 NLRB 1030 ( 1986).
10 Champa Linen Service Co, 222 NLRB 940, 942 (1976).
11 Longstanding Board precedent supports this treatment of additional
income during the backpay period from secondary employment previous-
ly held Rice Lake Creamery Co., 151 NLRB 1113 , 1114 in. 4 (1965); AAA
Dental Laboratory, 41 NLRB 263, 285 (1942).
termine whether the General Counsel's backpay formula
is proper and to make recommendations to the Board as
to the most accurate method of determining the
amounts,12 but I am not required to prove interim earn-
ings . That responsibility to prove and compute offsetting
earnings is Respondent's, and I must decline the invita-
tion to become its surrogate. Furthermore, neither facts
nor law were proffered or adduced to support Respond-
ent's suggestion that the gross receipts of the corporation
are all income to Pygatt.
Turning to Respondent's contentions that the basic
computation of gross backpay in Case 4-CB-4170 is in
error because it does not include all hours worked or not
worked by all journeyman paperhangers, and because it
does include hours worked by foremen, it is helpful to
first consider some basic and well-established principles
relating to the computation of backpay. The sole burden
of the General Counsel is to show the gross amounts of
backpay due, but it has long been recognized that this is
an inexact science not readily lending itself to specific
formula for each and every situation. The General Coun-
sel may use as close approximations as possible, and may
adopt formulas reasonably designed to produce such ap-
proximations, so long as the formula selected is not arbi-
trary or unreasonable in the circumstances. 13 Here the
General Counsel, utilizing a list furnished by Respondent
of all paperhangers referred by Respondent during the
backpay period, calculated the average annual hours
worked per paperhanger, excluding those individuals
who either did not work at all during the year for which
such hours were calculated and those who did not, work
at least 60 percent of the average hours worked by pa-
perhangers as a group in a given year. As to those who
did not work at all during a relevant period there is no
evidence of the reasons they did not work and it cannot
be presumed they were available for work absent proof
they were. I am persuaded it was neither arbitrary nor
unreasonable to ' exclude them. The exclusion of those
who worked less than 60 percent of the average hours
actually worked by all paperhangers is consistent with
Board precedent permitting the elimination of employees
from a representative complement if their hours worked
are so small that their inclusion would result in a distort-
ed rather than reasonably accurate approximation of the
wages lost by the disciiminatee or discriminatees as the
case may be.14 Considering Board precedent together
with the fact that during the period 1 July 1979 to 30
June 1980 Edward Pygatt worked 83 percent of the av-
erage annual hours worked during that period by paper-
hangers working more than 60 percent of the time, and
that Pygatt during that period worked approximately 106
percent of the average if all working paperhangers'
12 J. S. Alberici'Construction Co., 249 NLRB 751 In. 3 (1980); accord:
East Wind Enterprises, 268 NLRB 655, 656 (1984).
12 See, e.g., Pipeline Local 38 (Hancock Northwest), 268 NLRB 167, 168
(1983); Everspray Enterprises Inc., 253 NLRB 922 (1980), enfd. 692 F.2d
760 (7th Or. 1982); C-F Air Freight, 276 NLRB 481 (1985)..
14 See, e.g , Champa Linen Service Co., 222 NLRB 940 (1976), Golay &
Co, 184 NLRB 241, 272 (1970), enfd. sub noire. Golay & Co. Y. NLRB,
447 F. 2d 290 (7th Or. 1971), cert. denied 79 LRRM 2314, No. 71-617
(Jan. 24, 1972) No. 71-617, International Trailer Co., 150 NLRB ,1205,
1211 (1965).
PAINTERS LOCAL 277 (POLIS WALLCOVERING)
hours are utilized, I conclude that the'General Counsel's
exclusion of those working less than 60 percent of the
average hours and his subsequent computation of gross
backpay on the basis of 83 percent of the average annual
hours worked-by those paperhangers working at least 60
percent of the average hours available were reasonably
calculated to produce a fair and more nearly accurate ap-
proximation of gross backpay due Pygatt. Respondent
has sustained no reasonable challenge to the validity of
the basic formula, and I conclude and find the formula is
not arbitrary or unreasonable but is fair and equitable.
The 83 percent of the annual figure was divided by the
General Counsel into four equal quarters on which quar-
terly gross backpay was computed by multiplying these
hours by the established wage rate, which is not in ques-
tion.
The argument that foremen's hours should be excluded
from the computation because they received additional
work hours per day pursuant to the relevant collective-
bargaining agreements fails because the collective-bar-
gaining agreements in question merely show that fore-
men receive 8 hours a day at straight time on workdays
when the size of the work force exceeds 10 employees
and 8 hours straight time for all holidays listed in the
agreement . There ' is no evidence that any of these al-
leged foremen, worked with a crew of more than 10 em-
ployees and no evidence of the exact times any of them
may have actually worked as, foremen. James' T. Bren-
nan's bare general testimony that they were foremen will
not suffice. The failure to show exactly when they
worked as foremen.and the size of their crew at relevant
times destroys any significance the collective-bargaining
agreements' provision for extra pay might have in this
proceeding. That foremen receive 10 percent more than
the prevailing hourly wage, as the contracts indicate, is
irrelevant because their hours, not their wages, were uti-
lized for the backpay computation.
Respondent also contests the computation of backpay
in Case 4-CB-4941. All backpay owing in this case ac-
crued during the period 7 to 14 November 1984. Re-
spondent argues that the General Counsel improperly
presumed Pygatt was entitled to overtime pay, and
Pygatt had a work history of lateness, absences, and
leaving work early, which should have been considered
by the General Counsel. In discussing these contentions
in his posttrial' brief, Respondent offers testimony of the
Region's compliance officer at pages 87 and 88 of the of-
ficial record as authority for his assertion that "Indeed,
Mr. Pygatt during the 80 days of employment had eight
days of absence, five days which he left early and 39
days in which he arrived late." There is not one shred of
testimony or evidence on those pages or elsewhere in the
record to support` this argument. Pygatt expressly denied
this history of absence is accurate and Respondent pro-
duced no evidence to' the contrary other than its bare
ipse dixit, which has no evidentiary worth. Robert
Curley, the Region's compliance officer and a believable
witness, credibly testified that Pygatt and coworkers
407
Sturges and Melero worked the same hours immediately
before and after the backpay period, and he therefore
averaged the hours of Sturges and Melero during the
backpay period to arrive at the hours Pygatt probably
would have worked. This is a completely reasonable
method for arriving at a fair approximation of Pygatt's
backpay, and I specifically find he is entitled to backpay
for any overtime hours produced by the averaging of the
hours of Sturges and Melero. Respondent offers' no alter-
-native computation nor any good cause to question the
General Counsel's computation," s
In addition to wages lost the specification requests
pension contributions covering both. periods of discrimi-
nation and reimbursement of Pygatt for premiums he
was required to pay to obtain replacement medical
health insurance in lieu of the employer-paid insurance
lost by reason of the discrimination against him. Re-
spondent agrees that the contributions -to the pension
fund should be made if Pygatt is entitled to 750 hours an-
nually during the backpay period, and further agrees that
the arithmetic employed by the General Counsel is cor-
rect if the formulas and the hours alleged are correct. I
find that the formulas are fair and reasonable and the
result of their application is therefore a fair approxima-
tion of the amounts due . Accordingly, I further find that
the computation of moneys due the pension fund is arith-
metically accurate, and based on a reasonable computa-
tion of back wages due. With respect to the costs of re-
placement medical health insurance, Respondent is, as a
matter of law,16 liable for reimbursement of sums ex-
pended by Pygatt in securing replacement insurance.
There is no contention that he did not secure essentially
comparable insurance or that the amounts set forth in the
specification as expenditures therefor are inaccurate. I
therefore find the specification accurately reflects the
amounts paid for insurance for which Respondent 'must
reimburse Pygatt.
Conclusion'
Respondent has not met its burden of adducing sub-
stantial evidence mitigating its liability, nor has it suc-
cessfully attacked the validity of the General Counsel's
formulas and computations, or shown them to be arbi-
trary or unreasonable. The General Counsel has shown
that the formulas set forth in the backpay specification
are reasonable and that reimbursement to the pension
fund and for medical insurance premiums is required.
The computations are arithmetically accurate.' The back-
pay specification is therefore adopted.
[Recommended Order omitted from publication.]
15 Respondent notes that Pygatt should receive no backpay for Sunday
or Monday because these were his days off, Inasmuch as Pygatt is cred-
ited with no backpay for the Sunday and Monday in the brief backpay
period in question, I do not know the purpose of Respondent 's notation
other than it might be a friendly reminder.
16 Sheet Metal Workers Local 418 (Young Plumbing), 249 NLRB 898,
902 (1980); Artim Transportation System, 193 NLRB 179, 194 (1971).