Manhattan Graphic Productions

National Labor Relations Board - Board Decisions

Nov 26, 1986

282 N.L.R.B. 277 (N.L.R.B. 1986)

MANHATTAN GRAPHIC PRODUCTIONS 277
AVJ Graphics , Inc. d/b/a Manhattan Graphic Pro-
ductions and Allen Wiseman and Sherwin Win-
nick
SSS Typographers,, Inc., d/b/a Ace Typographers
and AVJ Graphics , Inc. d/b/a Manhattan
Graphic Productions and Reuben D. Lawrence
III and Paul Cohen . Cases 2-CA-16952, 2-
CA-17014, 2-CA-17244, 2-CA-17400, and 2-
CA- 17259
26 November 1986
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 31 March 1986 Administrative Law Judge
Raymond P. Green issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision and a response brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has, considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, SSS Typog-
raphers, Inc. d/b/a Ace Typographers and AVJ
Graphics, Inc. d/b/a Manhattan Graphic Produc-
tions, New York, New York, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
I Because we adopt the judge's finding that, discrimmatee Winnick's
backpay entitlement continues past his reinstatement due to the Respond-
ent's failure to include a general pay increase in his reinstatement wage,
we find it unnecessary to pass on whether Winnick quit the Respondent's
employ after his reinstatement because the Respondent did not give him
sick leave to which he was entitled as a reinstated employee.
In adopting the judge's recommended formula' for calculating Win-
nick's backpay, we note that no party excepts to the judge's use of $3000
as a minimum interim earnings figure for each quarter after Winnick's
"discharge" from Leland and Penn
The Respondent excepts to the General Counsel's and the judge's com-
putation of discnmmatee Lawrence's backpay for the first quarter of
1981, alleging that they failed to offset additional interim earnings of $160
which the Respondent established at trial. The final amended backpay
specification, however, does include the $160, proven by the Respondent
at trial.
David Pollack Esq., for the General Counsel.
David Lew, Esq. (Bart, Lew & Monat), of New York,
New York, for the Respondent.
Glenn E. Jenkins, Esq. (Wolff, Siminara & Mitherz), of
New York, New York, for Allen Wiseman , Reuben D.
Lawrence III, and Pau l Cohen.
SUPPLEMENTAL DECISION
RAYMOND P. GREEN, Administrative Law Judge.
These consolidated cases were heard by me in New
York, New York, on various days in June and December
1984 and March, April, and May 1985. The backpay
specification and notice of hearing was issued by the Re-
gional- Director for Region 2 on 17 December 1982.
Thereafter a first amended backpay specification was
issued on 14 December 1982 and a second amended
backpay specification was issued on 21 November 1984.
At various times during the hearing certain portions of
the backpay specification were 'amended . Ultimately on,,
17 May 1985, the General Counsel made a final amend-
ment which is in evidence as General Counsel's Exhibit
8. Accordingly if I or any other reader of this record
wishes to know the General Counsel's contentions, Gen-
eral Counsel's Exhibit 8 shall be referred interchangeably
as the backpay specification.
On consideration of the entire record in this supple-
mental proceeding, including consideration of the briefs
filed by the parties, the prior decisions of the Board, and
my observation of the demeanor of the witnesses, I make
the following
FINDINGS AND CONCLUSIONS
1. BACKGROUND
The initial complaint in Cases 2-CA-16952, 2-CA-
17014, 2-CA-17244, and 2-CA-12259 resulted in a deci-
sion by Administrative Law Judge James Morton on 13
March 1981 , which was affirmed by the Board in an un-
reported decision dated 29 April 1981 . In those cases,
Respondents were found to have unlawfully discharged
Allen Wiseman, Sherwin Winnick, and Paul Cohen.
They were ordered to offer these employees reinstate-
ment and to make them whole for any loss of earnings.
The complaint in Case 2-CA-17400 resulted in a
Board Decision and Order ' dated 26 March 1981 in
which Respondents were ordered to make whole and
offer reinstatement to Reuben Lawrence III.
A. Sherwin Winnick
Winnick was initially employed by the Respondents in
September 1979. He was discharged 18 January 1980.
During his employment, Winnick worked as a typositer
operator. As such, he used a machine to set large type
(larger than one-fourth inch in height). This kind of type
would, for example, be used in headlines. In addition, the
Company also employed another typositer operator,
namely, Gerald Ippolito, who was senior to Winnick and
who was also the nephew of the Company's president,
John Gagliardi.
By letter dated 1 April 1981, the Company uncondi-
tionally offered reinstatement to Winnick which he ac-
cepted by letter dated 10 April 1981.1 On 24 April Win-
Similar letters were sent to the other discriminatees on the same date.
282 NLRB No. 51
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nick returned to work at his predischarge salary of $235
per week.
During the period from 18 January 1980 to his return
to work on 24 April 1981, Winnick was employed during
the first quarter of 1980 at Equitable Blueprint where he
earned $1470. In the second quarter of 1980 he obtained
a job at Leland and Penn. In the second quarter of 1980
Winnick earned $2775 and in the third quarter he earned
$3000. In connection with Winnick's employment at
Leland & Penn, the General Counsel concedes that Win-
nick may have been discharged for cause and therefore
the General Counsel concedes that he should be charged
with a minimum of $3000 for any quarter after his dis-
charge from Leland and Penn irrespective of whether he
had any actual interim earnings.2
After his reinstatement by Respondents on 24 April
1981, Winnick continued to work for about 6 weeks until
5 June when he quit. Almost immediately thereafter
Winnick began working for a company called Typemen.
At Typemen Winnick's salary was $275 per week, or $40
more than his salary at Respondents. Following his
layoff from Typemen in September 1981, Winnick was
employed by a company called Qualitype where his
salary was $300 per week.
Among other things, the Respondents contend that
Winnick willfully concealed information from the
Board's Regional Office during the backpay investiga-
tion, namely, that he was discharged for cause by Leland
& Penn . In American Navigation Co., 268 NLRB 426
(1983), the Board held that it will withhold backpay
during any quarter when a discriminatee has "intention-
ally concealed employment from the Board." In the
present case Winnick did not conceal his interim employ-
ment at Leland and Penn; all he did was to soften the
reason for his leaving. Although he did not at first dis-
close fully the circumstances which led to his separation
from that company, he did so at a later date and before
the hearing opened. There is no showing that Winnick
failed to disclose his interim employment to the Board or
that he deliberately set out to mislead. Accordingly, I
cannot conclude that Winnick engaged in 'the kind of
concealment which would bar any of his backpay under
American Navigation Co., supra.
The Respondents contend that the backpay period for
Winnick should end as of 24 April 1981 when Winnick
returned to work. In this regard, they argue that Win-
nick voluntarily quit his job at Respondents to go to a
higher paying job at Typemen and therefore Respond-
ents should not be liable for any further backpay.
The record shows that when Winnick was reinstated
he was given his old job back at his predischarge salary
of $235 per week. Nevertheless, according to John Gag-
liardi all employees of the Company received salary in-
creases in each autumn of 1979, 1980, 1981, 1982, and
1983. As there seems to be no real dispute that the discri-
minatees would have each received a $25 raise in the fall
2 In his original submission of information to the Board 's Regional
Office in connection with the backpay claim, Winnick disclosed his em-
ployment at Leland & Penn and stated that he had been laid off due to a
slowdown in business. Apparently he did not disclose to the Region, until
sometime after the initial backpay specification had issued, the circum-
stances of his termination from Leland & Penn
of 1980 had they not been discriminatorily discharged,
Winnick's salary on reinstatement should have included
the $25-per-week raise. C-F Air Freight, 276 NLRB 481
(1985). Therefore, because Respondents' reinstatement of
Winnick did not include the $25-per-week pay increase,
it follows that the offer of reinstatement thereby became
defective. Accordingly, even if I were to agree with Re-
spondents' contention that Winnick quit his employment
to get a somewhat higher paying job at Typemen, I do
not see how that would cut off his backpay.3 For if Re-
spondents had reinstated Winnick with the proper salary
increase he might not have quit his employment at all.
Sumco Mfg. Co., 267 NLRB 253, 250-258 (1983).
The Respondents contend that the General Counsel's
backpay formula for Winnick is flawed and offers an al-
ternative which is discussed below. In this regard, the
General Counsel proposes a formula which projects
Winnick's earnings in the backpay period from his hours
and overtime hours during his predischarge period of
employment. The General Counsel postulates that Win-
nick, who prior to his discharge worked a 35-hour week
and had an average of 3.4 overtime hours per week,
would have continued to work the same amount of over-
time during the backpay period. (After the third quarter
of 1980 when the Company went to a 37.5-hour week,
the General Counsel postulates that Winnick would have
worked the new 37.5 hour week plus the same 3.4 hours
per week of overtime.) As part of the gross backpay for-
mula, the General Counsel postulates that Winnick each
autumn would have received a $25-per-week salary in-
crease. (See discussion above.)
The Company contends that in 1979, when Winnick
was still employed, it purchased a computer-based type-
setting system (CCI system), which, among other things,
could set large type more efficiently than a typositer. Al-
though acknowledging that the Company continued to
do typositer work the old fashioned way, Respondents
assert that this was done less often after the CCI system
became operational. Respondents therefore argue that be-
cause of the major way that production was altered by
the CCI system, Winnick not only would not have con-
tinued to work the same amount of overtime that he had
in the past, but that he would have been laid off at vari-
ous times during the backpay period for lack of work. In
this respect, the Company showed that after Winnick's
discharge in January 1980, it did not hire a replacement
until August 1981 and relied on Ippolito to do the typo-
siter work.4 Thereafter the Company hired a number of
successive typositers who worked with Ippolito . (It ap-
pears that the Company employed only one typositer, Ip-
polito, from the week ending 10/21/80 to the week
ending 3/6/81 and from the week ending 10/7/81 to the
week ending 12/29/82.)
3 The General Counsel contends that Winnick quit because the Re-
spondents did not give him the proper amount of sick leave that he was
entitled to as a reinstated employee and that the Respondents, in this re-
spect, treated him as if he was a newly hired employee Also, the Gener-
al Counsel contends that Respondents gave Winnick more onerous duties
Concerning these contentions, I find that the evidence supports the first,
while it fails to support the second. It is my belief, however, that Wimck
did quit to get a higher-paying job
4 This is reflected in summary which was received as R Exh. 25.
MANHATTAN GRAPHIC PRODUCTIONS 279
To the extent that the Company' contends that Win-
nick , notwithstanding his discriminatory discharge,
would nevertheless have been laid off at the same time
(until August 1981), for nondiscriminatory reasons, this is
a contention which could and should have been made in
the underlying unfair labor practice case. Moreover, I
note that John Gagliardi, the Company's president, testi-
fied, in effect, that the Company always needed people
and that even if a man was not assigned to do the job he
was hired for, the Company will find other work for him
to do. Thus, given Gagliardi's testimony, I conclude that
even if the CCI system reduced for a time the need for a
second typositer, that would not have resulted in ' the
layoff of Winnick who would have been used in some
other capacity.
There is more to be said for the Company's objection
to the way the General Counsel has projected Winnick's
overtime hours. Although I do not accept the Compa-
ny's contention that the use of the CCI system would
have caused Winnick 's nonemployment during any part
of the backpay period, I do think there is merit to the
contention that there was a significant change in the
shop 's operations as a result of the CCI system and also
the change, in November 1979, from a two-shift to a
three-shift schedule. Thus, for example, while the more
senior, typositer (and bosses' nephew),, Ippolito, worked
substantial amounts of overtime during 19,79, his over-
time hours were greatly reduced in 1980 and 1981.5
In light of the above, I shall conclude that it would be
more appropriate to use Ippolito as the comparable em-
ployee for backpay purposes rather than to project Win-
nick's predischarge average overtime hours into the
backpay periods For the years 1982 and 1983, I shall use
Yr./Qty:
1980/1 ................ .
2 .................
10.4 wks x ((6.718 x 35) x (10.079 x .7710)) .....................................
13 wks x ((6.71 x,35) x (10.07 x.88)) ...............................................
Formula
5 For the years 1980 and 1981 Ippohto's overtime hours were as fol-
lows
Yr./Qtr. Total OT Hrs. Avg. OT p/wk
1980:
1 ...................... .................. 10.00 .77
2 .................................... 11.50 .88
3 ........................ ........... . 7.75 .60
4.. ..... ............... . ................ 30.25 2.33
1981:
1 .............................. ... 2300 1.77
2 .................................. ...... 32.75 2 52
33.25 256'
33.50 2.58
8 The Board's Compliance Manual at Sec 10538 2 notes that the use of
a formula that projects into the backpay period the discrimmatee 's aver-
age earnings prior to discharge will not be appropriate when there has
been a change in the company's operations which likely would affect the
discriminatee 's earnings It also notes that the use of a projection is ap-
propriate when the backpay period is relatively short.
' R Exh 25 shows the following for Rodriguez
the work history of Nicholas Rodriguez as the compara-
ble (or replacement) employee for two reasons . First, the
record does not disclose Ippolito 's overtime hours during
those years . Second , Rodriguez , who was hired in late
1981 , was, like Winnick, the second and, therefore,
junior typositer. (The overtime hours of Rodriguez for
the years 1982 and 1983 are set forth in R. Exh. 25.)7
For the first two and a half quarters of 1980 I shall
calculate Winnick's hours, based on a 35-hour week.
Thereafter, and until his reinstatement, I shall assume
that Winnick, like all the other employees, would have
been shifted to a 37.5-hour workweek with,a proportion-
ate increase in,his weekly straight-time pay. For the
years 1980 and 1981, I shall assume that Winnick's over-
time hours would have been the same as Ippolito's and
that in the years 1982 and 1983 his overtime hours would
have been the same as Rodriguez, I shall also calculate
Winnick's backpay by assuming that each autumn he
would have received a $25-per-week raise as this amount
seems to be well within the range of increases given to
all other employees. Finally, although Winnick, during
the 6-week period when he was reinstated (during the
second quarter of 1982), chose to work a 35-hour, week,
I shall calculate his subsequent gross backpay based on
the 37.5-hour workweek applicable to all other employ-
ees. (I do so for administrative simplicity and also be-
cause I have previously concluded that his reinstatement
offer was invalid thereby making his employment condi-
tions during the reinstatement period largely irrelevant
for any subsequent period.)
Based on my calculations, this translates as follows:
Gross Backpay
Yr./Qtr
$2524
3168
Interim
Earnings
$1470
2775
Total OT hrs.
Net Backpay
$1055
393
Avg. OThrs.
p/wk
1982:
1 ..................................... 42 75 3.29
26.50 2.04
3 .................................... . 27.25 210
4 ........ ........................ 23.75 1.83
1983
1 ....................................... . 29 75 2.29
19.25 1.48
3 ...................................... 58.75 4.52
40.75 3 13
8 This would be Wmnick's hourly rate of pay (i e, $235 divided by
35)
, This would be Winnick's overtime hourly,rate All subsequent figures
in this part of the formula would be the overtime rate calculated at 1 5
times the base rate
10 The figures in this, part of the formula are the average weekly hours
of overtime worked in that particular quarter by the comparison employ-
ee Thus 77 represents the average weekly overtime hours that Ippolito
worked during the first quarter of 1980
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yr./Qtr. Formula Gross Backpay
Interim
Earnings Net Backpay
3 ................. 6.6 wks x ((6.71 x 35) x (10.07 x 60)) + 6 .4 wks x ((6.71 x 37.5 ) 3239 3000 239
x (10.07 x.60)).
4 ................. 13 wks x ((6.9311 x 37 . 5) x (10.40 x 2.33))........................................ 3693 3000 693
1981/1 .................. 13 wks x ((6.93 x 37.5) x (10.40 x 1.77))............................................ 3618 3000 617
2 ................. 6 wks x ((6.93 x 3512) x (10.40 x 2 .52)) + 7 wks x ((6.93 x 37.5) 3615 333000 615
x ((10.40 x 2.52)).
3 ................. 13 wks x ((6.93 x 37.5) x (11.40 x 2.56))............................................ 3724 3000 724
4 ................. 13 wks x ((7.60 14 x 37.5) x (11.40 x 2.58))........................................ 4087 5400 0
1982/1 .................. 13 wks x ((7.60 x 37.5) x (11.40 x 3.29))........................................... 4193 3906 287
2 ................. 13 wks x ((7.60 x 37.5 ) x (11.40 x 2.04))............................................ 4007 3939 68
3 ................. 13 wks x ((7.60 x 37 . 5) x (11.40 x 2.10))............................................ 4016 3900 116
4 ................. 13 wks x ((8.2715 x 37 .5) x (12 .40 x 1 . 83))........................................ 4327 3100 1,227
1983/1 .................. 13 wks x ((8.27 x 37.5 ) x (12.40x2.29)).............................................. 4401 3268 133
2................. 13 wks x ((8.27 x 37 . 5) x (12.40 x 1.48)) ............................................ 4270 3216 1,054
3 ................. 13 wks x ((8.27 x 37.5) x (12.40 x 4.52))............................................ 4760 3000 1,760
4 ................. 13 wks x ((8.9316 x 37 . 5) x (13.40 x 3.13))........................................ 4899 3000 1,899
Total ......... ........................................................................................................... $ 11,880
In addition to the above, the record establishes that
Winnick was entitled to certain fringe benefits including
sick pay, t v vacation pay,1 s and Christmas bonuses.19 As
such I conclude that for the period 1980 through 1983
Winnick is owed the sums of $1945 for vacation pay,
$654 for sick leave pay, and $400 for Christmas bonuses.
As to these fringe benefits, the Respondent has not met
its burden of proving that Winnick received similar bene-
fits from his interim employers during the backpay
period. Glen Raven Silk Mills, 101 NLRB 239, 250
(1951), modified on other grounds 203 F.2d 946 (4th Cir.
1953). However, although it is alleged in the backpay
specification that Winnick had medical expenses of $150,
no evidence was presented to support this claim that is
therefore rejected.
B. Paul Cohen
Cohen began work at Respondents in January 1979.
He was hired as an apprentice alphatype operator to
assist Allen Wiseman. The alphatype machine was used
11 The $6.93 figure represents Wmnick's hourly wage rate taking into
acount the $25-per-week raise he would have received It is calculated as
$235 plus 25 divided by 37.5 which was, at this time, the standard work-
week for all employees.
12 As noted above, Winnick was reinstated in the second quarter of
1980 and chose to work a 35-hour workweek rather than the 37.5 hour
week
13 In the second quarter of 1981, Winnick had earnings of $1276 from
Respondents and $1441 from Typeman. As this is less than the $3000 he
would have earned but for his discharge from Leland & Penn, the larger
$3000 figure is used for his interim earnings
14 This figure is based on the assumption that Winmck would have re-
ceived a $25-per-week raise.
is This figure is based on a $25-per-week raise
16 This figure is based on a $25-per-week raise
14 Respondent's policy regarding sick pay was that all employees after
working 6 months were entitled to 3 days of sick leave per year If
unused, they were paid for the 3 days
18 Respondent's policy regarding vacations is that all employees are
entitled to a I-week vacation after 1 year's employment and are entitled
to 2 weeks of vacation after 2 years' employment.
12 The record shows that, normally, employees have received a $100
Christmas bonus each year
to do photographic typesetting as opposed to the tradi-
tional hot metal typesetting that is called linotype.
In mid-September 1979, the Company installed what is
called a CCI phototypesetting system, which, through
the use of a central computer and a number of terminals,
enabled a number of people to do phototypesetting si-
multaneously. In September and October 1979, the lino-
type operators (Lisa Kirk, Eddie Potovin, and Allard
Lovell), along with the alphatype operators (Allen Wise-
man and Paul Cohen), began training on the new CCI
system.
Cohen was discharged on 16 May 1980 and Adminis-
trative Law Judge Morton, in concluding that his dis-
charge was unlawful, rejected the Company's contention
that it discharged Cohen because he was an unproduc-
tive worker.
The record shows that during the period after his dis-
charge, Cohen made a diligent search for work. He was
unable to find a new job until the third quarter of 1980
when he was hired by a Company called Dollar
Typographers that is located in Mamaroneck, New
York. In this respect, the evidence establishes that Cohen
registered at numerous employment agencies, responded
to newspaper advertisements, and interviewed at pro-
spective employers. I therefore reject as without merit,
Respondents' contention that Cohen did not make a rea-
sonable effort to mitigate his lost earnings. C-F Air
Freight, 276 NLRB 481 (1985);20 American Medical In-
surance Co., 235 NLRB 1417 (1978).
In the amended backpay specification, the General
Counsel seeks net backpay only for the second, third,
and fourth quarters of 1980 and the first quarter of 1981.
The General Counsel does not seek backpay for the
second quarter of 1981 because he concedes that Cohen's
interim earnings during that quarter exceeded his gross
backpay. Also, the General Counsel does not seek back-
20 In C-F Air Freight, the Board held that a discrimmatee would not be
penalized because he did not seek employment for 3 weeks after his dis-
charge
MANHATTAN GRAPHIC PRODUCTIONS
pay thereafter, on the grounds that Respondents made a
valid offer of reinstatement to Cohen on 1 April 1981.21
Because, according to the General Counsel, the intro-
duction of the CCI system drastically changed Cohen
duties, he asserts that the proper way to ascertain his
backpay is to utilize a comparable employee. The only
differences between the Respondents and the General
Counsel on this score is whom to select as the compara-
ble employee. In this regard, the Respondents object to
the General Counsel's selection of `Allard Lovell (for-
merly a linotype operator who was trained on the CCI
system), for the following reasons . First, Respondents
argue that although it is true that Cohen was given some
training on the CCI system, they maintain that he was
unable (or unwilling) to learn the system and therefore
would never have performed this job had he remained in
the Company's employ. They assert that as it became ap-
parent that Cohen was unable to do this new job, he was
given other less skilled duties to perform, such as repro
work and being a 202 runner. Therefore, according to
the Respondents, the proper comparable employer to use
to determine Cohen's backpay would be Gerald Ippolito
who, in addition to his typositer work,' did repro work
and 202 running. Secondly, the Respondents argue that
even if Lovell would be a proper choice as a comparable
employee for 1980, he would not be a suitable choice for
the first quarter of 1981 because the overtime Lovell
worked during that period was atypical and not repre-
sentative of the other people who worked on the CCI
system.
There is some evidence that would tend to corrobo-
rate the Company's argument that Cohen was having
trouble learning the CCI system . Thus, Wiseman testified
that of the group that was training, Cohen and Allard
Lovell were the slowest to pick up the system Wise-
man's testimony also revealed that Cohen's ability on the
alphatype machine was not particularly advanced and as
281
there is a degree of similarity between each system's op-
eration, Cohen's lack of ability on one could be translat-
ed to a lack of ability on the other.
There is to my mind some ambiguity in the evidence
concerning whether Cohen ultimately would have suc-
cessfully trained to use the CCI system had his employ-
ment not been cut short by his unlawful discharge.
Given this ambiguity, it is my opinion that the doubt
should be resolved against the Company which is, after
all, the wrongdoer. Accordingly, I conclude that, the
General Counsel acted reasonably when he selected as a
comparable employee a person who was trained to work
on the CCI system.
Although I will accept the selection of Allard Lovell
as the most comparable employee to Cohen for the back-
pay periods in 1980, I agree with the Respondents' con-
tention that Lovell's overtime hours for the first quarter
of 1981 were not representative and would unduly inflate
Cohen's backpay. In this regard, the credible evidence
establishes that in January 1981 Lovell began to come to
work 2 hours early each day for the purpose of learning
company procedures and CCI maintenance so as to
enable him to take charge of production on the third
shift. As such, the evidence, in my opinion, shows that
Lovell in 1981 spent a substantial amount of his overtime
hours on work that Cohen never would have performed
had he remained employed by the Company. Therefore,
it seems to me that it would be unfair to assume that
Cohen would have, worked the same amount of overtime
as Lovell.22 In my opinion, more representative in terms
of a, comparable employee for the first quarter of 1981
would be Edward Potovin who also transferred from li-
notype to operating the CCI system.23 During the first
quarter of,1981, Potovin worked a total of 11.5 hours of
overtime, or an average of .88 overtime hours per week.
Based on the above, my calculations for Cohen are as
follows:
Yr./Qtr. Formula Gross Backpay InterimEarnings Net Backpay
1980/2 ................. 6.4 wks x ((5.7124 x 35) + (8.5725 x 2.15))26................................. $1398 0 $1398
3_ .............. 6.6 wks x ((5.71 x 35) + (8157 x 2,96)) + 6.4 wks x ((5.71 x 3020 0 3020
37.5) x 8.57x 2.96)).
4 ................. 5.6 wks x ((5.71 x 37.5 + (8.57 x 4.76)) + 7.4 wks x ((6.0027 x 3410 $1519 1891
37.5) + (9.00 x 4.76)).
1981/1 .................. 13 wks x ((6.00, x 37.5) x (9.10) x .88))28 .. ........................................ 3028 293868 0
Total ......... .......................................................................................................... $6309
21 Cohen returned to work at Respondents but voluntarily resigned
after 3 days. I should note that Cohen claims that the tolling of his back-
pay at this point is not proper and argues that the reinstatement offer was
invalid. He further maintains that he was forced to leave the Company's
employ because of discriminatory action against him. The General Coun-
sel does not support these contentions and neither do I
22 I note that the General Counsel has the burden of proof regarding
gross backpay. Mastro Plastics Corp, 136 NLRB 1342, 1346 (1962)
22 I note that Potovm, during the backpay period, worked on the
second shift and not on the third shift to which Cohen had been assigned
prior to his discharge. As such, he cannot be considered as the perfect
comparable. Nevertheless, as I have only the number of overtime hours
for CCI operators Potovin and Lovell for the first quarter of 1981, I have
no choice but to use Potovin's figures
24 The figure $5.71 represents Cohen's hourly wage calculated by di-
viding his weekly salary of $200 by 35 hours per week
21 The figure 8.57 is Cohen's overtime rate calculated by multiplying
5 71 x 1.5.
26 The figure in this position of the formula represents the average
weekly overtime hours of Lovell for the second, third, and fourth quar-
ters of 1980.
27 The figure of $6 represents Cohen's hourly rate during a part of the
fourth quarter of 1980 and the first quarter of 1981 It is derived by as-
suming that he would have received a $25-per-week raise and that he like
all the other employees would have been on a 37 5-hour week. Thus $225
per week divided by a 37.5-hour week equals $6 per hour The corre-
sponding overtime rate would therefore be $9 per hour.
28 The figure of .88 is the average weekly overtime hours of Eddie
Potovin in the first quarter of 1981.
29 Deducted from interim earnings at Dollar Typographers is $130 in
travel expenses . This represents the added cost Cohen expended by
Continued
282, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to the above, I shall include as part of the
backpay owed to Cohen the following amounts for
fringe benefits.
1. Christmas Bonus (1980) .....................................................
2. IRA Contributions at $5 per week ...................................
3. Vacation Pay ......................................................................
4. Sick Leave Pay ...................................................................
5. Cost of Medical Insurance ................................................
Total .............................................................................
$100
245
400
40
319
$1104
I shall , however, exclude the amount of $130' which
was Cohen's out-of-pocket cost for medical expenses in-
curred during the backpay period. In this respect, the
record shows that, after his discharge, -Cohen made an
arrangement with the Insurance Company to assume, at
his own cost, the exact same medical plan that he had
while working for Respondents. Therefore, the figure of
$130 that represents costs not covered by the plan would
not have been covered had Cohen remained in the Com-
pany's employ. However, as noted above, I have includ-
ed in his claim the cost to Cohen of assuming the medi-
cal insurance plan.
C. Alan Wiseman
Wiseman began working for Respondents in 1978 as an
Alphatype operator. He was discharged on 25 November
1979. Prior to his discharge, the Company, as noted
above, had purchased the CCI system that was to re-
place both the Alphatype machine and the Linotype (hot
metal) operation. Also, in the beginning of November
1979, the Company instituted a third shift from midnight
to about 8 a.m. (called the lobster shift). This new shift
was created in anticipation of increased business due to
the expected added production from the CCI system.
Also, the^new shift was designed to reduce, to a certain
extent, the amount of overtime being worked by the em-
ployees. Thus, in the new setup, the night shift was to be
the main production shift and the lobster shift was to be,
among other things, where the final corrections were
made prior to the product being shipped to the custom-
ers in the morning.
Prior to his discharge, Wiseman was assigned to work
on the night shift as it was felt that he was the fastest
person on the CCI system and, therefore, could produce
the most work. Potovin was assigned to the lobster
shift.30 However, soon after Wiseman's discharge, Poto-
having to take a train to Mamaroneck, New York, instead of taking a
subway to work at Respondents.
ao Because the lobster shift, among other things, cleared up and cor-
rected the work done on the night shift, Wiseman's testimony that he
spent a substantial amount of overtime prior to his discharge checking
the production work is irrelevant, as that function would no longer have
been done by anyone on the night shift after, the lobster shift was institut-
ed.
I also note that although the judge in the underlying case held that the
Company illegally reduced, overtime in January 1980, he did not hold
that the creation of the lobster shift in November 1979 was discriminator-
ily designed to reduce overtime.
vin was moved back to the night shift to replace Wise-
man. Therefore based on this record it seems to me that
Potovin is the perfect candidate to be the comparable
employee for purposes of determining what hours Wise-
man would have worked in 1979 and 1980.
While employed at Respondents, Wiseman had certain
fringe benefits such as 3 sick days per 'year, vacations,
and medical insurance . Also, he received each year of his
employment a Christmas bonus of $100 and he participat-
ed in an IRA plan to which the Employer contributed $5
per week.,
After his discharge, Wiseman searched for work and,
during the week ending 30 November 1979, he got a
part-time job at Dollar Typographers, located in Ma-
maroneck, New York. At this Company, in 1979, he
earned $571. In 1980 he earned $2916, and in 1981 he
earned $4474.
In connection with his employment at Dollar Typo-
graphers, the Respondents assert that Wiseman intention-
ally failed to disclose his earnings for the fourth quarter
of 1979 and therefore should be disqualified from any
backpay during that quarter. I disagree. At most, Re-
spondents have shown that Wiseman, more than 3 years
after his discharge, listed in the backpay forms that he
did not begin his employment at Dollar Typographers
until 1980 rather than the last part of 1979. To this
extent, I conclude that Respondents have merely shown
that Wiseman made an error. This, to me falls far short
of meeting their burden of establishing that Wiseman
willfully intended to deceive the Board.
On the other hand I can see no reason for not includ-
ing as part of Wiseman's 1979 interim earnings his
income, less travel expenses, from his employment at
Dollar Typographers.31 Thus, for 1979 this would
amount to $571 less travel expenses of $105 or $466.
In the first quarter of 1980, Wiseman obtained a full-
time job at a Company in Manhattan called Empire Cold
Type where he worked on the night shift. He obtained
this job on 7 February 1980 and has continued to work
there, As Wiseman had little overtime at Empire, he
would, after completing his duties there, drive up to
Dollar Typographers to do some extra work at that
Company. Prior to obtaining the job at Empire, Wise-
man's earnings from Dollar in the first quarter of 1980
were $672.
With respect to the above, it seems to me that Wise-
man's earnings from Dollar Typographers (less travel ex-
penses) from 1 January to 7 February 1980 should be in-
cluded in his interim earnings ($672 minus travel ex-
penses of $105 equals $566). However, once Wiseman
obtained regular and full-time employment at Empire his
31 While employed at Respondents, Wiseman and Ippolito shared
travel expenses. Thus, they alternately drove each week from Staten
Island to the Company Based on the IRS mileage allowance at 22 cents
per mile during the relevant years, the additional cost to Wiseman if he
had had to drive his own car all the time to a job within a similar geo-
graphic area would be about $21 or $22 per week In this regard it is true
that Ippolito switched to the third shift in October 1980 and therefore
would not have been available to share travel expenses with Wiseman,
who at that time would not have been on the same shift. However, I
shall assume that these two employees would have continued to share
travel expenses until October 1980.
MANHATTAN GRAPHIC PRODUCTIONS
second job at Dollar should be treated as supplemental
employment when such earnings are ordinarily not in-
cluded as part of interim earnings.32 Cumberland Farms
Dairy, 266 NLRB 855 (1983); JIB Industries, 245 NLRB
538 (1979); Henry Colder Co., 186 NLRB 1088 (1970).
Regarding Wiseman the issue of most significance is
whether the Company's offer of reinstatement terminated
the backpay period. The facts concerning the offer are
set forth below.
By letter dated 1 April 1981, the Employer uncondi-
tionally offered reinstatement to ,Wiseman. Wiseman, by
letter dated 7 April 1981, stated, "This is to advise you
that I am accepting reemployment and I am looking for-
ward to hearing from you further." By letter dated 28
April 1981, the Employer told Wiseman to report to
work at 6 p.m. on Monday, 4 May 1981. By letter dated
]l May 1981, Wiseman wrote:
This is in response to your letter of April 28,
1981, which I received on April 30, 1981.
I am looking forward to reinstatement, but unfor-
tunately I must give at least two weeks notice and I
have some prior commitments which will delay my
return until Monday, May 25, 1981 at 6 p.m.
I would also like to advise you that I have to
make an extended trip to Florida at the end of
June-beginning of July to make some medical ar-
rangements for my father who is ill. Since reinstate-
ment presumes continuous and unbroken employ-
ment I am entitled to two weeks paid vacation and
three sick days for each of the years 1979 and 1980
of which I will use the ,necessary time to make my
trip to Florida.
If this is unsatisfactory in any way please let me
know why by return mail at once because in any
case I must give at least Iwo weeks notice.
John Gagliardi responded on 4 May 1981 as follows:
This will acknowledge receipt of your letter of
May 1, 1981.
I can understand your desire to give your current
employer reasonable notice of your intention to
return to our employ. However, in this regard, I
note our letter of April 1, 1981, offering you rein-
statement. It would appear that you should have, in
good conscience, informed your employer of your
intention to leave at that time. Under the circum-
stances, and in an effort to avoid further delay, I am
willing to exend your reporting date to May 18,
1981 at 6:00 p.m. Certainly, this will give you the
time you seek for notice.
I have also considered your request for a grant of
vacation within a few weeks of your return. Wheth-
er or not you are entitled to paid vacation is a
matter which the lawyers will have to resolve and
should not stand in the way of your return to work.
32 Had I concluded that Wiseman would have worked the tremendous
number of overtime hours claimed for him in 1981 and 1982,-l would be
inclined, during such years, to include his supplemental income at Dollar
as part of his interim earnings as this would have been, in effect, a substi-
tution for his overtime hours at Respondents.
283
If you are legally entitled to vacation pay, you will
be paid it and, of course, if you are not legally enti-
tled to receive time off in late June and early July,
that will depend, as it always has in the past, on the
vacation needs of the other employees and the
amount of work that must be performed during that
period of time. I must advise you, however, that we
are currently very busy and I cannot guarantee that
any employee will be able to take a protracted va-
cation in late June or July.
Please contact me immediately to advise me if
you intend to return to our employ by May 18,
1981. If I fail to hear from you within five (5) days
of receipt of this letter, I 'will have no recourse but
to conclude that you are not interested in returning
to work for our Company and are refusing this
offer of reemployment.
On 8 May 1981 Wiseman wrote to the Company as
follows:
First let me restate my position, which is that I
am positively looking forward to returning to your
employ.
Second let me apologize for not being too clear
about my trip to Florida.
I am not going on a vacation, I am going to get
some medical consultations for my father who suf-
fered a stroke recently and may have some other
problems as a result.
I can understand your situation in that to have an
employee return to work for a few weeks and then
have to leave for a while could disrupt the shop.
However, this is not a trip of choice but rather a
trip that I must make and it cannot be put off as my
father's health is at a very serious point.
If it will help you in any way and not disturb the
continuity of the shop I will delay my return to
work until I get back from,rFlorida.
On 15 May the Company sent a mailgram to Wiseman
as follows:
I have today received your letter of May 8, 1981
postmarked May 12, 1981.
I had offered you immediate reinstatement on
May 4, 1984 which I extended to May 18, 1981 at
your request. I cannot hold the job open beyond
that date. If you wish to be reemployed you must
return to work on May 18, 1981. Failure to do so
will be considered a refusal on your part to accept
our unconditional offer of reemployment.
On 19 May 1981 Wiseman responded -to the telegram
as follows:
This is in answer to your telegram which arrived
at my home friday evening , the fifteenth of May,
while I was at work.
First I will reiterate my position which is that I
positively want to return to your employ.
In your telegram you stated that you acceded to
my request for returning to work . But that is not so,
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you set your own arbitrary deadline on my return
and you inferred that I would not be allowed to
leave after a few weeks to go on a "vacation", as
you put it, because it would disrupt the shop. It is
unfortunate that I am faced with a serious family
health problem at this time. I certainly did not plan
it this way.
While I have always tried to be fair and reasona-
ble to you, I feel that, in light of what has tran-
spired, your attitude has been neither fair nor rea-
sonable. However, I stand ready, as soon as I return
from Florida, to return to work for you and to con-
tinue ,to do my very best (as you know I have
always done) in every way possible for you.
Thereafter on 2 July Wiseman again wrote:
Having not received any response to my letter of
May 19 to you, I would at this time like to reaffirm
my position which has always been that I most defi-
nitely want to return to work for you.
I am leaving for Florida on July 7 and at this
moment I do not have a return trip reservation but
do expect to be able to consult with my father's
doctor and review the results of any tests that have
been and might be taken and hopefully consult with
other specialists and I feel this can be accomplished
and I can;be back in New York and ready to report
for work at, 6,p.m., on July 27, 1981.
Please advise me at once whether this is accepta-
ble to you or whether you will accept me back in
your employ.
The Company responded on 6 July 1981 as follows:
In response to your letter of July 2, 1981 which I
received 'today, and as set forth in our telegram of
May 15, 1981 your failure to report to work was
considered a refusal to accept our unconditional
offer of reemployment and the position has since
that time been filled.
The record shows that during the period of the above-
described correspondence the Company was experienc-
ing an increased demand for its services and that it hired
John Bohanan on 19 May 1981 as a typesetter to fill the
job offered to Wiseman. (Bohanan began work on 8
June.)
It seems to me that the initial offer of reinstatement on
1 April was valid on its face. Once made, it thereupon
became the responsibility of Wiseman to respond within
a reasonable period of time. Under the law , Wiseman
would be entitled to a reasonable period of time before
he actually returned to work once he accepted the rein-
statement offer. The question then is what constitutes a
reasonable period of time given the Company's desire to
have him back by 18 May 1981 and Wiseman's desire to
come back on 7 July 1981. In Fredeman's Calcasieu
Locks Shipyard, 208 NLRB 839 (1974), the Board stated.
What constitutes the "reasonable time" will depend
essentially on the situation in which an employee
finds himself as a result of the discrimination against
him, and thus no precise fixed date can be set by
formula.
For example, an employee may be employed by
an interim employer at the time he receives the
offer of reinstatement. In that situation, we would
allow him a reasonable time within which to con-
sider the offer and to make appropriate arrange-
ments for terminating his interim employment with-
out imposing an undue hardship on his temporary
employer. Or the offer may set a definite time limi-
tation by which he must accept it and report to
work or else forfeit both his reinstatement and back-
pay rights. Here again we will look to the employ-
ee's availability and immediate circumstances before
determining whether the date set in the offer termi-
nates those rights. Obviously, if there is no valid
reason for his not being able to return to work at
the fixed date, we will likely view' that date as dis-
positve of the issue . By the same token, however,
the date for accepting the offer and returning to
work may have to be extended by us in deciding
the backpay cutoff date if the terms in which the
offer is couched fail to provide any reasonable time
within which the employee can act thereon. The
most extreme example of this kind of offer is one
that demands the employee accept it and return to
work on the same day he receives it. That would,
except in unusual situations , be an unreasonable
condition to which we would not require strict
compliance by the employee; nor would we find
such an offer to have terminated the backpay
period.
Thus, as the above illustrations show, the terms
of each offer and the circumstances affecting the in-
dividual employee at the time of receipt such offer
will have to be weighed and considered in deter-
mining what constitutes the end of the backpay
period.
It is my opinion that the Respondents gave Wiseman a
reasonable time to return to work that he failed to do. In
this regard, although one can sympathize with Wise-
man's desire to delay his return to work, in order to be
with his sick father, that circumstance must be balanced
against the Company 's demonstrated need to hire a quali-
fied person to do its production work. (In fact, the Com-
pany did -hire someone else after on 18 May 1981.) The
facts show that the Company offered to delay the date
that Wiseman was to return to work (from 4 May to 18
May), whereas Wiseman desired to delay his return until
the beginning of July, over a month later.
The General Counsel contends that the offer of rein-
statement was invalid because on one occasion in the
past, the Company had granted a 2- or 3-day leave of ab-
sence to Lawrence so that he could visit his grandmoth-
er who had suffered a stroke.33 Therefore, according to
33, Lawrence , in response to a question about his absences, testified that
he believed he was out for about 2 or 3 days in April 1980 because his
grandmother had suffered a stroke
MANHATTAN GRAPHIC PRODUCTIONS 285
the General Counsel it would be reasonable to conclude
that had Wiseman returned to work by the deadline set
by the Company, he would have been' granted a leave of
absence to take care of his sick father. As to this, I shall
commend the General Counsel for the ingenuity of his
argument, but conclude that it is based on the slenderest
of an evidentiary 'straw. In short, I find that this single
bit of evidence regarding Lawrence's alleged "leave of
absence," to be insufficient to establish that the Company
would or should have granted a several week leave of
absence to Wiseman on his return to work.34'
I note that had Wiseman returned to work he probably
would have been paid his old salary without the inclu-
sion of the $25 raise given to all employees in the fall of
1980. Thus, ' had he returned, his reinstatement offer
would likely have been invalidated by the probable fail-
ure of the Company to pay him the proper salary. Nev-
ertheless, as this did not occur because he did not return
to work, this speculative event can not serve to invali-
date the offer of reinstatement. See Florida Steel Corp.,
273 NLRB 889 (1984); Eastern Die Co., 142 NLRB 602,
'604 (1963); Research Designing Service, 141 NLRB 211,
216, 217 (1963).
For the same reasons as in Winnick 's case, I think that
it is not appropriate to simply project' into the backpay
period Wiseman's predischarge overtime hours. Rather,
in Wiseman's case it seems to me that as Potovin was
specifically assigned to take over Wiseman's job upon
the latter's discharge, the best way of determining Wise-
man's ,backpay is to use Potovin as the comparable em-
ployee for purposes of calculating the number of over-
time hours during the backpay period. My calculations
are as follows
Yr./Qtr. Gross Backpay InterimEarnings Net Backpay
1979:
4 ........................ 5.4 wks x ((375) + (16 x 8.235))........................................................ $2733 $ 571 $ 2162
1980:
1 ........................ 13 wks x ((375) + (16 x.88)) ............................................................. 5056 3562 1494
2 ........................ Interim Earnings Exceed Gross Backpay......................................... 0
3 ........................ 13 wks x ((375 + (l6 x 2.i2))............................................................ 5316 4832 484
4 ........................ 4.6 wks x ((375 + (16 x 2.85)) + 8.4 wks x ((400) x (17 x 2.85)).. 5702 5039 663
1981:
1 ........................ 13 wks x 400......................................................................................... 5200 5061 139
2 ........................ Interim Earnings Exceed Gross Backpay......................................... 0
Total ......... ........................................................................ ................................... $4942
I also conclude that the fringe benefits to which Wise-
man would have been entitled during the backpay period
are as follows:
Christmas bonuses in 1979 and 1980 ................................. 200
Vacation pay (2 weeks in 1980) ........................................ 800
Paid sick leave for 1980 and half' of 1981 .:....................... 345
IRA contributions at $5 per week for 110 weeks............ 580
Total ........................................................................ $1925
D. Rueben Lawrence III
Lawrence began his employment at Respondents in
July 1979. He was assigned to the night shift as a proof-
reader. His initial salary was $175 per week but at the
time of his discharge on 11 July 1980 his salary had been
raised to $190 per week.
Lawrence's testimony shows that after his discharge
he sought other employment by a variety of means in-
cluding newspaper advertisements, the use of a union's
hiring hall of which he was a member, and telephone
calls to magazines and law offices which might employ
proofreaders. His first regular employment after his dis-
charge was with a company called Video Review in the
first quarter of 1981, although, he did have some limited
earnings from Time Inc. during the fourth quarter of
1980. Based on the record as a whole, I conclude that
Lawrence made a reasonable search for work and that
'Respondents have not met their burden of showing the
contrary. NLRB v. Pilot Freight Carriers, 604 F.2d 375
(5th Cir. 1979); NLRB Y. Mastro Plastics Corp., 354 F.2d
170 (3d Cir. 1965).
By letter dated 1 April 1981, the Company offered to
reinstate Lawrence. He accepted and returned to work
on 4 May 1981. On his return, Lawrence was put on the
night shift and shared the proofreading duties with Mi-
nerva Durham. Lawrence's salary was set at $190 per
week and he elected to remain on a 35-hour week rather
than to go to the 37.5-hour week that the Company had
instituted some time prior to his reinstatement . His salary
upon reinstatement was set at his predischarge rate de-
spite the fact that all the Company's employees had re-
ceived salary increases in the autumn of 1980. Also the
evidence establishes that Respondents treated Lawrence
as a newly hired employee rather than a reinstated em-
34 I also conclude that the Company's refusal, on 4 May, to guarantee 35 For the fourth quarter of 1979 I computed the average overtime
Wiseman his choice of vacation did not invalidate the offer of reinstate- hours of Potovin simply by substituting Potovin's hours for the week
ment, as there was no showing that this did not conform to the Compa - during that period that were not worked by Wisemen because of his dis-
ny's normal practice. charge. That is, the week ending 11/22/79 through the week ending
12/28/79
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee who is entitled to retain his seniority rights. This
is evidenced by the fact that Lawrence was denied sick
pay on two occasions and was also denied his vacation
request.36
On 4 June 1981 Lawrence, by letter made certain re-
quests of the Company. One was that the Company con-
tinue to pay for the health insurance that he had pur-
chased while out of work. The other was for an increase
in pay. On 5 June 1981 the Company denied these re-
quests.
On 14 September 1981 Lawrence quit his employment
at Respondents and went to work immediately for a
Company called Gerard Assts where his salary was $270
or $280 per week. (Lawrence was hired by Gerard
before he quit Respondents.) He continued to work at
Gerard until laid off in June 1982. Lawrence, despite ef-
forts to seek new employment, did not get another job
until hired by Empire in the third quarter of 1982.
Thereafter, he worked at Continental Word Processing
in the third and fourth quarters of 1982 and the first
quarter of 1983, but returned to Empire in the second
quarter of 1983.
In connection with Lawrence's quitting of his job at
Respondents, they contend that this quitting was entirely
voluntarily on his part and therefore tolls his backpay.
The General Counsel contends that the backpay contin-
ued thereafter. He makes this contention on two
grounds; first that the Respondents' reinstatement offer
was not valid and second that Lawrence was discrimina-
36 The testimony shows that on two occasions after Lawrence was re-
instated he was out sick but was not paid sick leave. Pursuant to Compa-
ny policy, employees are entitled to 3 sick leave days per year after being
employed for 6 months Also Lawrence's request for a vacation was
turned down on the grounds that he was not entitled to vacation leave.
The Companys' policy was that an employee was entitled to a 1-week
vacation after 1 year and a 2-week vacation after 2 years of employment
As Lawrence had initially been hired in July 1979, he was at the time of
his vacation request an employee of 2 years' tenure and therefore entitled
to a 2-week vacation
The Company's response to Lawrence's vacation request was sent to
him on 28 July 1981 as follows:
Please be advised that so far as we are concerned at the present
time, you are not entitled to any vacation As you are aware, the
National Labor Relations Board may, in a subsequent backpay pro-
ceeding deal with this issue We are prepared to meet the issue at
that time and to comply with the ultimate decision rendered by the
National Labor Relations Board.
torily harassed after his reinstatement. As I agree with
the first ground, it is not necessary to resolve the second.
It is my conclusion that the offer of reinstatement to
Lawrence was defective essentially for the same reasons
as in Winnick's case. That is, the record shows that, on
his reinstatement, Lawrence was paid his predischarge
salary and was not given the raise that all employees had
gotten during the interim. Also by denying him the vaca-
tion and sick leave benefits to which he was entitled
based on his accrued seniority, the Company essentially
treated Lawrence as a newly hired, rather than a rein-
stated, employee. Because I conclude that the reinstate-
ment offer was invalid (even though accepted), it follows
that Lawrence's quitting cannot affect his right to back-
pay and his right to receive a valid offer of reinstate-
ment.
There is a dispute about how to treat certain self-em-
ployment of Lawrence during the backpay period. In
this respect, the record shows that while initially em-
ployed at Respondents Lawrence, with a partner, was
engaged in the business of selling used books. According
to Lawrence, he conducted this business (called Pandra-
gon Books) from his home, and mainly on the weekends.
In 1979 his net income from this business was $381. In
1980 after the partnership had dissolved, Lawrence's tax
returns show that Pandragon Books had gross sales of
$4162, but net income of $1313.80. In 1981 Pandragon
Books had gross sales of $7334.80, but net income of
$996.75; in 1982 it had gross sales of $1161 and net
income of $41.75; and in 1983 it had gross sales of
$646.87 and net income of $50.
In describing his side business, Lawrence explained
that the relatively large gross sale figures in 1980 and
1981 simply represented the selling off (at discount) a
portion of his inventory. He also testified that his activi-
ties on behalf of Pandragon Books during the backpay
period were done in much the same manner (on week-
ends) as had been done while employed at Respondents.
It is therefore my opinion that Lawrence's self-employ-
ment should be considered as analogous to supplemental
employment which he did not work during his normal
working hours and therefore should not be included in
his interim earnings. NLRB v. Miami Coca-Cola Co., 360
F.2d 569, 573-574 (5th Cir. 1966); Cumberland Farms
Dairy, 266 NLRB 855 (1962); S.E. Nichols of Ohio, 258
NLRB 1, 15 (1981).
MANHATTAN GRAPHIC PRODUCTIONS 287
As to the gross backpay formula for Lawrence, the
parties are in partial agreement . Thus, they agree that his
gross backpay for the third quarter of 1980, using
Marion Powers as the comparable employee, would be
$2534. They also agree that Lawrence's gross backpay
for the first quarter of 1981 (using D. Abel as a compara-
ble employee) should be $3329. Further, as the General
Counsel claims no net backpay for the third quarter of
1981; the fourth quarter of 1982; and the first quarter of
1983 (because interim earnings would have exceeded
gross backpay), any disagreement that Respondents
would have with the General Counsel's formula would
be immaterial for such periods.
Respondents argue , quite rightly in my opinion, that if
the General Counsel selects Powers to be the compara-
ble employee for the third quarter of 1980, he should
stick with that employee, who like Lawrence, worked as
a proofreader on the night shift for the fourth quarter of
1980. Because the General Counsel has not demonstrated
to my satisfaction any good reason for shifting to an-
other employee during the fourth quarter of 1980, I shall
modify the gross backpay for that quarter by using
Powers' average weekly overtime hours during that
quarter and using the same methodology used earlier in
Winnick' s case . Thus, 13 weeks x ((37.5 x 6.1437) +
(9.2138 x .11539)) = $3007.
Respondents object to the General Counsel's calcula-
tion of,gross backpay for the second quarter of 1981 and
for every quarter thereafter on the argument that be-
cause Lawrence, during his reinstatement , refused sever-
al requests to work overtime, it therefore follows that he
should not be credited with any overtime after the
second quarter of 1981. Although there is evidence that
Lawrence on a number of occasions did refuse overtime,
there also is evidence that on other occasions he worked
overtime. Based on this record, I cannot conclude that if
Lawrence had continued to be employed by Respond-
ents he invariably would have refused to work all over-
time. I therefore find no merit to Respondents' argument
on this point.
Calculating Lawrences gross backpay and net backpay
in the same manner as I did in Winnick's case , including
what agreements that do exist, I come up with the fol-
lowing:40
Yr./Qtr Formula Gross Backpay
Interim
Earnings Net Backpay
1980/1 ......... ..... ...... .............. ...................... . .................................. $ 2534 $ 2,534
2 ............... . ............... ..................... . ............................................ 3007 $ 388 2,619
1981/1. . ..... ................. ............... .................................... .. 3329 2411 918
2 ......... 9 wks x ((35 x 6 14) + (9.21 x 77)) + 2.4 wks x ((37.5 x 6 14) 2568 2251 317
+ (9 21 x 77)).
3...... ..... Interim Earnings Exceed Gross... ... . ................. 0
4..... . 13 wks x ((37.5 x 640) + (9.60 x 1.80)). . . ...................... 3346 2251 1,095
1982/1 .......... 13 wks x ((37.5 x 6.30) + (9 60 x 3.23)) . .. 3523 582 2,941
2..... .. .. 13 wks x ((37.5 x 6.40) + (9 60 x .73)) .. .... . .................. 3211 0 3,211
3. . ... 4.2 wks x ((37.5 x 640)+(9.60 x .71)) + 8 8 wks x (37.5 x 7.06) 3435 1367 2,068
+ (1060 x .71))
4..... Interim Earnings Exceed Gross .... .... .... .. 0
1983/1 ... Interim Earnings Exceed Gross....... 0
2.... 13 wks x ((37.5 x 7 06) + (10 60 x .48)) 3511 3500 11
3...... . 4.2 wks x ((37.5 x 7.06) + 8 8 wks x 290)) . . . ............... 3665 3750 0
4 . ....... 13 wks x ((37 5 x 7.73) + (11.6 x .87)) . .. 3902 3750 152
Total .. .... .......... . ........ $15,866
In addition, I conclude that for the period 1980
through 1983 Lawrence would have received certain
fringe benefits from Respondents which should be in-
cluded in his backpay. These are as follows
'Total $1533
Vacation pay $ 910
Sick pay 41273
Christmas bonus 42350
37 The figure $6 14 represents Lawrence's hourly wage rate by divid-
ing 215 by 35 It assumes that during this period of time he would have
received a $25-per-week raise
38 The figure $9 21 represents the overtime rate
39 The figure 115 represents the average weekly overtime of Powers
40 In using the formula, I made the following assumptions First, I as-
sumed that each autumn Lawrence would have received a salary increase
of $25 per week For the initial period of his reinstatement , I calculated
his hourly rate of pay with the $25-per-week raise as $6 14 per hour by
dividing $215 by 35 1 used the 35 diviser because he opted, with the
Company's permission , to stay on the 35-hour workweek However, in
computing Lawrence 's hourly wage rate after his reinstatement period
ended, I assumed that but for the original unlawful discharge , he would
have worked a 37 5-hour week and therefore his hourly rate should be
his prospective weekly salaries divided by 37 5 Thus, for the fourth
quarter of 1981, I assumed that Lawrence 's weekly salary would have
risen to $240 per week which, divided by 37 5 would give an hourly rate
of $640 and an overtime rate of $9 60
As to the average weekly overtime hours, I have accepted the figures
on the Amended App C-I to G C Exh 8 as the parties agreed that the
figures represented on the appendix were accurate
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. MISCELLANEOUS ISSUES
The Respondents argue that interest on the backpay
amounts should be excluded because of the "unconscion-
able delay" of the NLRB's Regional Office in issuing the
specification. Without determining the reasons for the
delay (although the issues herein are very complex
indeed), the fact of the matter is that the Board has
always included interest irrespective of delay. E.g., Car-
rothers Construction Co., 274 NLRB 762 fn. 3 (1985).
Further, in accordance with my conclusions that valid
reinstatement offers were not made to Lawrence and
Winnick, it is concluded that their backpay shall contin-
ue to accrue until such time as Respondents make valid
offers of reinstatement.
41 It appears that at Respondents, Lawrence would have received sick
leave pay of $129 in 1981, $144 in 1982, and' $159 in 1983. However, he
testified that while employed at Empire he got five sick leave days per
year. Therefore I shall conclude that Lawrence's sick leave for Empire in
1983 offset what he would have gotten in sick leave at Respondents
during the same year.
42 For purposes of this proceeding it appears that most employees of
Respondents got a $100 Christmas bonus each year. I, therefore, shall
assume that Lawrence would have received the same during the period
1980 through 1983 However, as he testified that he got about a $50
Christmas bonus from Empire, I shall deduct that sum
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed43
ORDER
1. Make payment to Sherwin Winnick the sum of
$14,879 plus interest, less tax withholdings required by
Federal and state laws.
2. Make payment to Paul Cohen the sum of $7414 plus
interest, less tax withholdings required by Federal and
state laws.
3. Make payment to Alan Wiseman the sum of $6867
plus interest, less tax withholdings required by Federal
and state laws.
4. Make payment to Rueben Lawrence III the sum of
$17,399 plus interest, less tax withholdings required by
Federal and state laws.
48 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.