Synergy Gas Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1991

302 N.L.R.B. 130 (N.L.R.B. 1991)

130
302 NLRB No. 21
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We grant the General Counsel’s unopposed motion to correct the tran-
script.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
1 Unless indicated otherwise, all dates referred to herein relate to the year
1987.
Synergy Gas Corp. and Frank Depolito. Case 2–
CA–22075
March 20, 1991
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On July 17, 1990, Administrative Law Judge Joel P.
Biblowitz issued the attached supplemental decision.
The Respondent filed exceptions and a supporting
brief. The Charging Party filed an answering brief, and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
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 briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Synergy Gas Corp., Cold
Spring, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Supple-
mental Order.
Margit Reiner, Esq. and David E. Leach III, Esq., for the
General Counsel.
Elloit J. Mandel, Esq. (Kaufman, Frank, Naness, Schneider
& Rosensweig, P.C.), for the Respondent.
Wendell V. Shepherd, Esq. (Roy Barnes, P.C.), for the
Charging Party.
SUPPLEMENTAL DECISION
JOEL P. BIBLOWITZ, Administrative Law Judge. This sup-
plemental proceeding was initiated by a backpay specifica-
tion and notice of hearing dated December 30, 1988, and an
amended backpay specification dated May 1, 1989. Respond-
ent filed timely answers and this matter was heard by me in
New York, New York, on May 1, July 6, August 17 and 18,
and September 28, 1989.
In the underlying case, the Board issued an Order (at 290
NLRB 900) dated August 22, 1988, affirming a Decision of
Administrative Law Judge Eleanor MacDonald finding that
Synergy Gas Corp. (Respondent) unlawfully discharged
Frank DePolito on February 4, 1987, and ordered that he be
reinstated and made whole from that date until his reinstate-
ment. DePolito was offered reinstatement by Respondent on
October 20, 1988, and returned to Respondent’s employ on
November 11, 1988, but at a wage rate below his rate at the
time of his discharge. This situation was rectified on May 16,
1989, when his wage rate was increased to the proper
amount. While admitting that the wage rate paid to DePolito
was less than it should have been between November 11,
1988, and May 16, 1989, Respondent defends, generally, that
DePolito should be denied any backpay here because he did
not make an adequate search for interim employment and be-
cause he fraudulently prepared the backpay forms submitted
to the Board and fraudulently concealed interim employment
and interim earnings.
FACTS AND ANALYSIS
There is one uncontested item here. A valid offer of rein-
statement was made on October 20, 1988, but DePolito did
not return to work for Respondent until November 11, 1988.
Therefore no backpay is due for the period October 20
through November 11, 1988. However, for the period from
November 11, 1988, through May 16, 1989, Respondent paid
DePolito a weekly salary of $444, rather than the $481 a
week he should have been paid. Absent any positive finding
on Respondent’s fraudulent concealment argument summa-
rized above, at least that much ($7 times 26.6 weeks, or
$984.20) is owing to DePolito.
A. Search for Interim Employment
The first of Respondent’s defenses to be discussed here is
that DePolito did not make an adequate search for interim
employment. As stated, supra, DePolito was unlawfully dis-
charged by Respondent on February 4, 1987.1 As will be dis-
cussed more fully below, although DePolito’s testimony is
not a model of clarity, and is often contradictory, his partner-
ship with William Alpi in County Wide Appliance Service
(CWAS) began on about April 1; from that time, until the
end of the year was a startup trial period for CWAS. Begin-
ning in November, December, or January 1988, when Alpi
left his full-time employment, both DePolito and Alpi de-
voted their full time to CWAS. The critical periods for
DePolito’s search for interim employment are therefore Feb-
ruary 4 through about April 1 (prior to the creation of
CWAS) and, to a lesser extent, April 1 through the end of
the year, at which time both DePolito and Alpi devoted their
full time to the operation.
DePolito filed for, and received unemployment benefits
beginning within a week of his termination by Respondent.
In that connection, he reported to the job service every 2
weeks where he spoke to a counselor. He registered for serv-
ice mechanic or plumbers’ helpers positions. The counselor
had a computer, but with one exception, all the jobs that
DePolito found interesting paid $6 or $7 an hour, about half
what he had been earning with Respondent. The other job
was with Grand Union; by the time the counselor called, it
was no longer available. DePolito testified that he went to
the job service more often than the required (every 2 weeks)
number of times and went there on two or three occasions
after his benefits ended. In addition, DePolito looked through
131SYNERGY GAS CORP.
the help wanted section of the daily local newspaper every
day as well as the Pennysaver, which is published weekly.
He called some of the places listed in these newspapers, but
all except one were paying $6 or $7 an hour and he applied
no further. The only employer whom he could recollect that
he learned of through the newspapers was Appliance Plus;
DePolito testified that he thought they were looking for a re-
pairman. When he went to their facility, he learned that they
were interested in a deliveryman ‘‘I wasn’t interested . . . so
I didn’t take the job.’’ He testified that he remembers that
employer because he went there to ask about the job; the
others he simply called and only knew of the telephone num-
ber since the employer’s name is usually not listed in the
newspaper.
In addition to the above, DePolito sought the assistance of
Teamsters Local 456 (the Union) (which had been involved
in the underlying matter) in obtaining interim employment.
Beginning in about March, he called the Union about every
other day, but obtained no jobs; he was told that there were
no jobs because it was the slow season. Edward Doyle, the
Union’s secretary-treasurer, business manager, testified that
DePolito called the Union about two or three times a week
(although he, personally, spoke to him once or twice a
week), but he kept no records of these calls. The Union was
unable to provide him with any jobs because construction in
the area was slow and there were no jobs available over the
employees in the Union with seniority.
DePolito also contacted friends and acquaintances to assist
him in locating interim employment. In this manner, he con-
tacted the following: Rockland Appliance, but no jobs were
available; Tri-County and Resco, both restaurant supply
houses, but no jobs were available there either; DiMarsco
Pontiac, but nothing was available there, as well. In addition,
he knew the owner of New York Finest Security which, he
testified, pays security guards $15 an hour. He met the owner
and asked about a job. He was told that he would get back
to him; he never did. Shortly thereafter, DePolito called him
again and asked him if there were any jobs available; he said
that he would call him if something became available, but
he never did. In addition, DePolito fixed the dryers of two
friends—Ken Garon in the second quarter of 1987 for $35
and Tony Toaphah in the third quarter of 1987 for $50.
In addition to the above, beginning in about December, he
was given a rent free house to live in at Lost Lake, in ex-
change for which he did security. Lost Lake is a community
consisting of 28 cabins. Almost all the residents live there
only on weekends, thereby requiring some security during
weekdays. At the end of each day, DePolito or his wife
checked each cabin to be sure that they had not been dis-
turbed; this took about 45 minutes. In exchange for this, he
received the use of a house rent free. Other than the above,
the only interim employment for DePolito was CWAS,
which began about April, but was not in full operation until
about January 1, 1988.
When loss of employment is caused by a violation of the
Act, the finding by the Board that an unfair labor practice
was committed is presumptive proof that some backpay is
owed. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175–
176 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966). The
General Counsel’s burden for the backpay proceeding is ‘‘to
show the gross backpay due each claimant.’’ J. H. Rutter-
Rex Mfg. Co. v. NLRB, 473 F.2d 223, 230 (5th Cir. 1973),
cert. denied 414 U.S. 822 (1973). Once the General Counsel
has established gross backpay, the burden is on respondent
to establish affirmative defenses that would mitigate its li-
ability. NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th
Cir. 1963). Respondent has the burden of establishing such
matters as unavailability of jobs, willful loss of earnings, and
interim earnings to be deducted from the backpay award.
NLRB v. Mooney Aircraft, 366 F.2d 809, 812–813 (5th Cir.
1966). When there are uncertainties or ambiguities, doubt
should be resolved in favor of the wronged party rather than
the wrongdoer. United Aircraft Corp., 204 NLRB 1068
(1972). Innumerable cases, by now, have stated that an em-
ployer can mitigate his backpay liability be establishing that
the claimant willfully incurred losses by failing to adequately
search for interim employment or by unjustifiably refusing to
accept new employment; this is, of course, an affirmative de-
fense and it is the employer’s burden to establish these facts.
The mere fact that an individual had little or no success in
locating interim employment is not enough to satisfy this
burden; rather the employer must affirmatively demonstrate
that the employee ‘‘neglected to make reasonable efforts to
find interim work.’’ NLRB v. Coca Cola Bottling Co., 360
F.2d 569, 575 (5th Cir. 1966). Additionally, a discriminatee
is held only to reasonable exertions in this regard, not to the
highest standards of diligence. In determining the reasonable-
ness of a discriminatee’s efforts, the employee’s skills and
qualifications, his age and labor conditions in the area are
factors to be considered. Aircraft & Helicopter Leasing &
Sales, 227 NLRB 644 (1976).
Within a few days of his termination DePolito had reg-
istered for unemployment and began speaking to the coun-
selor about available positions. With the exception of the
Grand Union job, which was no longer available, all the
other positions paid about half what he had earned with Re-
spondent. At least, during this initial period of search for in-
terim employment, a discriminatee is not required to ‘‘lower
his sights’’ and accept employment at half his pretermination
wage rate. Sioux Falls Stock Yards Co., 236 NLRB 543, 562
(1978). In addition to seeking employment through the coun-
selor at unemployment, DePolito made calls to employers
listed daily in the local newspaper and weekly through the
Pennysaver. The fact that he could only recollect one em-
ployer (Appliance Plus) whom he contacted in this manner
does not detract from his attempts or his credibility. Rather,
it comports with my observation of DePolito as a generally
credible, but inexact individual (as will be discussed more
fully below). In addition, DePolito testified to five other spe-
cific employers whom he solicited for work, all unsuccess-
fully. My observation of DePolito convinces me that his in-
ability to name other employers does not mean that he did
not apply to others; rather, like his bookkeeping methods (or
the lack thereof) described more fully below, he kept few,
if any, records. In addition to the above, beginning shortly
after his termination, DePolito sought the assistance of the
Union in obtaining employment (surprisingly unsuccessfully)
and beginning about April 1, he devoted part of his time and,
beginning about January 1, 1988, devoted his full time to
CWAS. In Heinrich Motors, 166 NLRB 783 (1967), the
Board stated: ‘‘That self employment is an adequate and
proper way for the injured employee to attempt to mitigate
loss of wages hardly requires citation . . . and a claimant in
that category need not seek other employment.’’ In NLRB v.
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I find that the rent free house DePolito received at Lost Lake is not con-
sidered an offset against his backpay. At the time both he and Alpi were de-
voting their full time to CWAS. The responsibilities at Lost Lake only took
about 45 minutes daily (apparently, it could be performed day or night) and
either he or his wife could do it.
Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955), the
court stated: ‘‘But the principal of mitigation of damages
does not require success; it only requires an honest good
faith effort.’’ Here too, as will be seen more fully below,
there is no evidence that DePolito and (later) Alpi gave less
than an honest, good-faith effort to make a success out of
CWAS; the fact that they were unsuccessful in this does not
detract from their efforts or DePolito’s backpay. I therefore
find that Respondent has not satisfied its burden of establish-
ing that DePolito made an inadequate search for interim em-
ployment.2
B. CWAS and the Alleged Fraudulent Concealment
On April 1, DePolito and Alpi executed a General Partner-
ship Agreement stating that the business, appliance service,
will be carried on at 245 Arthur Street, Peekskill, New York
(DePolito’s address at the time), and that each will have a
50-percent interest in the Company. CWAS was operational
(in different degrees) between that time and November 30,
1988, when DePolito and Alpi executed an Agreement to
Dissolve Partnership.
Up through the first day of hearing, all the evidence and
testimony was that DePolito and Alpi began operating
CWAS on about January 1, 1988. That is what DePolito told
the Region’s compliance officer in August 1987 and what
DePolito testified to, on numerous occasions, on May 1,
1989. However, as a result of a thorough investigation by
counsel for Respondent (together with the fruits of numerous
subpoenas), it soon appeared that CWAS was begun in about
April. When DePolito was recalled to testify on September
28, 1989, he was asked why he withheld testimony that they
began the operation earlier. He testified: ‘‘I didn’t withhold
anything. I didn’t make any money in 1987.’’ A few minutes
later he was asked:
Q. Mr. DePolito, can you tell me why your testi-
mony previously was that this company didn’t start
working until January 1988?
A. Sure.
Q. Why?
A. It didn’t make any money.
When questioned further, he testified: ‘‘I don’t know what
the legal term is to starting a business.’’
Alpi was also questioned about this discrepancy in
DePolito’s testimony. He was asked whether DePolito’s testi-
mony that CWAS began in January 1988 was incorrect. He
testified, ‘‘It was between July and December that the busi-
ness—to me and Frank, was a trial situation . . . we didn’t
make any money. What we put in, went out. I don’t know
the legal aspects of whether you consider someone in busi-
ness or not.’’
Counsel for Respondent, in his brief, repeatedly argues
that DePolito should be denied backpay because he fraudu-
lently concealed the existence of CWAS for the period prior
to January 1, 1988, alleging that DePolito (together with his
accountant/attorney, Brian Eisen), ‘‘attempt[ed to perpetrate
a fraud upon Region 2, the Administrative Law Judge, and
the Respondent.’’ There is no question that the information
DePolito supplied to the Region in 1988, and his testimony
on the first day of the hearing was incorrect and resulted in
confusion and the lengthening of the hearing. In American
Navigation Co., 268 NLRB 426 (1093), the Board stated:
We find that a remedy which denies backpay for the
quarters in which concealed employment occurred will
discourage claimants from abusing the Board’s proc-
esses for their personal gain and will also deter re-
spondents from committing future unfair labor prac-
tices. This remedy will be applied, of course, only in
cases where the claimant is found to have willfully de-
ceived the Board, and not where the claimant, though
inadvertence fails to report earnings.
In a footnote to this statement, the Board states that it is
confident that the judges are capable of distinguishing honest
error from deceit. In Ad Art, Inc., 280 NLRB 985 (1986), the
Board reaffirmed the principle of American Navigation, and
added that the Board would ‘‘deny all backpay to claimants
whose intentionally concealed employment cannot be attrib-
uted to a specific quarter or quarters because of the claimants
deception.’’ In Allied Lettercraft Co., 280 NLRB 979 (1986)
(decided the same day as Art) the administrative law judge
stated: ‘‘The Board will only cut off backpay for deliberate
and perfidious misrepresentations.’’
It should initially be noted that American Navigation and
Ad Art refer to ‘‘concealed earnings’’; what is present in this
matter is not concealed earnings, but unreported employment
by CWAS. The unrebutted testimony of DePolito, Alpi
(whose credibility, even, Respondent does not attack), and
the documentary evidence establishes that CWAS (and, cor-
respondingly, DePolito and Alpi) did not make any money
in 1987; rather it lost money during the period April 1
through December 31. As there were no earnings, there was
nothing to fraudulently conceal. In addition, in American
Navigation, the Board distinguished between willful decep-
tion and inadvertence and deceit from honest error. I find
that DePolito’s failure to mention CWAS’ existence at an
earlier time was not the result of willful deception or a delib-
erate misrepresentation. Rather, I find that it was the result
of inadvertence. This is supported by my observation of
DePolito for the substantial period of his testimony, together
with the testimony itself. This reveals an individual with a
mediocre (at best) memory attempting to recollect events that
occurred 2 years earlier. Even worse than his memory was
his bookkeeping habits; he testified, for example, that he
does not know if he had a checking account in 1987 and
1988 and: ‘‘I don’t keep track of my bank statements and
stuff like that.’’ In what was the understatement of the hear-
ing, DePolito testified: ‘‘I’m very bad with books.’’ Alpi was
an extremely credible witness, but only a little better when
it came to recordkeeping; when he and DePolito created
CWAS in April, they had a lot of enthusiasm, but little
knowledge and experience with operating a business. In this
regard, CWAS failed to file a tax return for 1987. I found
Alpi to be an extremely credible witness who had nothing to
gain in this proceeding and his testimony further convinces
133SYNERGY GAS CORP.
3 An additional factor supporting DePolito’s credibility (as pointed out in
counsel for the General Counsel’s brief) is that it was not until about the time
that the hearing commenced that DePolito informed counsel for the General
Counsel that the salary Respondent paid him on his return to its employ was
less than he had previously been receiving before being unlawfully terminated
by Respondent, as discussed, supra. As counsel for the General Counsel states
in her brief, only poor recordkeeping or poor memory could account for this
omission, which could mean more money for him.
4 It was not explained why this printout was dated 4 months after the meet-
ing.
5 The original spec did not list any interim earnings at Respondent for the
fourth quarter of 1988 because the Region assumed that his backpay ended
at that time upon reinstatement. Only later, when it was revealed that he was
taken back at a lower salary than he previously had, did the amended spec
have to list his interim earnings with Respondent together with his gross back-
pay, in order to show the deficiency.
me that DePolito was a credible witness,3 albeit, one who
was unlikely, to be appointed to be chancellor of the Excheq-
uer. Respondent therefore has not sustained its burden of es-
tablishing fraudulent concealment by DePolito.
There are a number of other allegations made by counsel
for Respondent which he claims should disqualify DePolito
from receiving backpay from his client. One is that there is
a conflict in the information that DePolito and Eisen gave to
the Region’s compliance officer, Reinertsen. When
Reinertsen originally met with DePolito and Eisen on August
31, 1988, Eisen gave her a computer printout stating: ‘‘Coun-
ty Wide Appliance Service, Cash Receipts/Cash Disburse-
ments 12/31/88.’’4 This printout lists the following draw for
DePolito from January through July 1988, chronologically:
$1006, $800, $300, $605, $400, $100, and $100. By letter
dated November 16, 1988, Eisen wrote, inter alia, to
Reinersten: ‘‘Enclosed, please find the documents which you
requested involving Frank DePolito.’’ Enclosed was a com-
puter printout with the same caption as the prior one turned
over on August 31, 1988; the only changes were for January
1988. The latter printout listed no draw for DePolito, and
made some changes in disbursements, merchandise, and gen-
eral expenses for CWAS, as well. Reinertsen testified that at
the August 31 meeting, Eisen told her that the printout was
a temporary sheet and that he would give her a new form
when he ‘‘redid’’ the books. DePolito testified that he cannot
explain why the August 31, 1988 printout states that he re-
ceived a draw of $1006 in January 1988, while the later
printout states that he received no draw in that month. He
testified that he did not get any draw in that month. Counsel
for Respondent also refers to the difference between the in-
terim earnings on the original backpay specification and the
amended specification to illustrate the alleged fraudulent con-
cealment by DePolito. They follow:
Period/Qtr. Original Spec.Source/Amt.
Revised Spec.
Source/Amt.
1987
1st None None
2d Garon—$35 Garon—$35
3d Toaphah—$50 Toaphah—$50
4th None None
1988
1st CWAS—$1100 CWAS—$1200
2d CWAS—$1105 DCWAS—$1100
3d CWAS—$100 CWAS—$500
4th5 CWAS—None CWAS—$350
Eisen testified that he is not certain why the figures given
to Reinertsen in November 1988 are different than the fig-
ures originally given at the August 31, 1988 meeting. How-
ever, he testified that he ‘‘might have reviewed some of the
substantiation and back-up in a review in preparation for
whatever I was doing and I might have made changes.’’ He
testified that November printout is accurate.
I have previously discussed the credibility of DePolito and
Alpi. Eisen, who lists his occupation as tax preparer, ac-
countant, lawyer, mortgage broker, and real estate broker was
evasive, uncooperative, and a totally obnoxious witness.
However, that, alone, should not detract from the General
Counsel’s case, and I find no positive evidence from Eisen’s
testimony to establish that the preliminary errors in this mat-
ter was due to anything more than inadvertence or incom-
petence, and that they were corrected during the hearing.
Counsel for Respondent argues in his brief: ‘‘The General
Counsel has clearly admitted through the Amended Backpay
Specification that DePolito concealed employment in the
third and fourth quarter of 1987, the first, third and fourth
quarter of 1988.’’ I do not understand the initial portion of
this argument as there was no change in the specs for the
third and fourth quarter of 1987—$50 and none. The total
change for the first, third, and fourth quarter of 1988 is mini-
mal $850 and my observation of the witnesses convinces me
that it was the result of inadvertence rather than willful de-
ception.
Another point raised by counsel for Respondent in his
brief was that the CWAS 1988 tax return was a sham and
was part of the overall effort to perpetrate a fraud on the
NLRB; I reject this as well. It is true, of course that, even
though CWAS did not make a profit in 1987, the partners
were still obligated to file tax returns for the year. However,
their failure to do so in the instant situation further reestab-
lishes their inexperience and lack of sophistication in the
area. It certainly cannot be considered as an attempt to per-
petrate a fraud on the NLRB; rather, if CWAS has made a
profit for the period it might be considered an attempt to per-
petrate a fraud on the IRS.
C. DePolito’s Interim Earnings
The amended backpay spec lists DePolito’s interim earn-
ings from February 4 through his reinstatement as $3235 (al-
though the spec lists it by quarters, of course); all but $85
of this was earned through CWAS in 1988. While not deny-
ing, at least, this much in interim earnings, counsel for Re-
spondent argues that DePolito’s interim earnings were really
substantially more than this. In NLRB v. Brown & Root, Inc.,
supra, the court stated that ‘‘in a backpay proceeding, the
burden is on the General Counsel to show the gross amounts
of back pay due. When that has been done, however, the
burden is on the employer to establish facts which would
negative the existence of liability to a given employee or
which would mitigate that liability.’’ In A & T Mfg. Co.,
280 NLRB 916, 917 (1986), the administrative law judge
stated: ‘‘The burden of proving any mitigation of damages
is on Respondent herein, and any uncertainty is resolved
against the wrongdoer whose conduct made certainty impos-
sible.’’
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The difficulty in this analysis is that the copies of the checks sent by the
bank are, often, difficult to make out and it is impossible to differentiate be-
tween checks made out to DePolito for service rendered, and personal checks
of DePolito, and his wife.
7 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 objec-
tions to them shall be deemed waived for all purposes.
This is a burden that is difficult to surmount. Because
DePolito, Alpi, and Eisen were able to produce so few of
CWAS’ records, counsel for Respondent subpoenaed, and
obtained, numerous of these records. Some of these records
establish that checks made out to CWAS for work performed
were deposited directly into DePolito’s bank account. Coun-
sel for Respondent argues that this amount represents addi-
tional interim earnings for DePolito.
For example, the record establishes that in 1987, CWAS
wrote checks to DePolito in the amount of $1006; during
about the same period (ending in December) customer
checks, in the amount of $1916, apparently,6 for services
rendered by CWAS, were deposited directly into DePolito’s
bank account. However, it is clear that CWAS was a com-
pany, like other companies, that required capital to get start-
ed, and the capital was contributed by DePolito and Alpi on
a 50-50 basis. Although the CWAS records are sometimes
difficult to read and interpret, it is clear that CWAS lost in
excess of $5000 in 1987, and DePolito’s contribution to
CWAS in that period exceeded the above-mentioned sum
that he received from CWAS and its customers. I therefore
find that Respondent has not sustained its burden of estab-
lishing that DePolito’s interim earnings were in excess of
those set forth in the amended backpay specification for ei-
ther 1987 or 1988.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Synergy Gas Corp., Cold Spring, New
York, its officers, agents, successors, and assigns, shall pay
to Frank DePolito the sum of $41,549 plus interest to be
computed in accordance with Florida Steel Corp., 231
NLRB 651 (1977), and New Horizons for the Retarded, 283
NLRB 1173 (1987).