283 N.L.R.B. 444 (N.L.R.B. 1987)

Terpening Trucking Co., Inc.

National Labor Relations Board - Board DecisionsMar 31, 1987

283 N.L.R.B. 444 (N.L.R.B. 1987)

444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Terpening ,Trucking Co., Inc. and Terpening Drivers Association ' and Gene R. Lariviere. Cases 3- CA-11101 and 3-CB-4081 31 March 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON_ AND STEPHENS On 16 July 1986 Administrative Law Judge Ray- mond P. -Green issued' the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions but not to adopt the recommended Order. We agree with the judge's finding that it is ap.: propriate to calculate the gross backpay due discri- minatees Lariviere and Bagley on the basis of em- ployee Tickner's actual earnings .during the: back- pay period. The judge further found that employee Tickner did- not have any earnings for the second quarter of 1982, and therefore the-judge substituted the, earnings of employee Cummings in calculating the gross backpay for that quarter for the discimin- atees. It is clear from the record, however, that Tickner had earnings of $388 in the second quarter of 1982 and our Order reflects computations based on those earnings. In addition, because the record shows that both discriminatees used 2 days of sick leave during 1982 prior to their discharges, we have reduced their sick pay entitlement for 1982 by $50 each. In all other respects, we adopt the judge's backpay computations. ORDER The National Labor Relations Board orders that Respondent Terpening Trucking Co., Inc., Syra- cuse, New York, its officers, agents, successors, and assigns , and Respondent Terpening Drivers Association, Syracuse, New York, its officers, 1 The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law ,fudge's credibility resolutions unless the clear preponderance of all the relevant evidence 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 examined the record and find no basis for reversing the findings. Chairman Dotson finds that the judge implicitly credited Gene Lari- vlere's denial of any involvement in the writing or sending of a letter the Respondent alleges as postdischarge misconduct . The Chairman therefore finds it unnecessary to pass on the judge's alternative finding that the letter could not have affected the Respondent. agents, and representatives, jointly and severally, shall - 1. Pay to Gene R. Lariviere the sum of $38,228 net- backpay, plus, interest computed in the manner set forth in Florida-Steel Corp., 231 NLRB 651 (1977), less tax withholdings required by Federal and state laws. 2. Pay to Howard Bagley the sum of $42,618 net backpay, plus interest computed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977), less tax withholdings required by Federal and state laws. Doren G. Goldstone, Esq., for the General Counsel. Raymond W. Murray Jr. Esq. (Bond, Schoeneck & King), of Syracuse, New York, for Terpening Drivers Asso- ciation. - SUPPLEMENTAL' DECISION RAYMOND P. GREEN, Administrative- Law Judge. These consolidated cases were heard by me on 18, 19, and 20 November 1985 in Syracuse, New York, pursuant to a backpay specification and notice of hearing issued by the Regional Director for Region 3 of the National Labor Relations Board on 27 June 1985. Having consid- ered the entire record in this matter" including my obser- vation of the demeanor of the witnesses, and after con- sidering the briefs filed, I make the following findings and conclusions. 1. Background The Board in a decision reported at 271 NLRB 196 (1984), adopted the opinion of the administrative law judge who had concluded, inter alia, that Terpening Trucking Co. had unlawfully discharged its employees Gene Lariviere and Howard Bagley. The judge also con- cluded that the Union (the Terpening Drivers Associa- tion), had failed to represent in good faith these two em- ployees in relation to grievances about their discharges. Accordingly, the Board ordered, among other things, that both Respondents jointly and severally make whole Bagley and Lariviere for any lost earnings they may have suffered by reason of their discharges which oc- curred on 24 June 1982. Following the Board's Order, the United States Court of Appeals for the Second Circuit, on 31 December 1984, issued an order denying the Company's petiton for review and granting the Board's application for enforce- ment of its Order. On 14 February 1985 the court denied the Company's petition for a rehearing. Subsequently, there having developed a dispute regarding the amounts of backpay due to the discriminatees , the Regional Di- rector for Region 3 issued a backpay specification and a hearing was held before me. 1 The General Counsel's unopposed motion to correct the transcript is granted. See Appendix [omitted from publication]. 283 NLRB No. 61 TERPENING TRUCKING CO. 2. The issues The parties agree that the backpay period for both em- ployees commenced on 24 June 1982 and ended when the Company offered them reinstatement. Thus, for Bagley it is agreed that the backpay period ends on 6 March 1986. For Lariviere, it is agreed that the backpay period ends on 5 April 1985. Also, in Amended Exhibit 3 to the backpay specification, the General Counsel set forth certain amounts of interim earnings which he con- cedes each had during the backpay period. In the case of Lariviere, the General Counsel asserts that he first obtained interim employment in the first quarter of 1984. Using a formula for gross backpay based on the weekly gross earnings of all the Company's full- time drivers2 and including vacation and sick pay (in ac- cordance with the collective-bargaining agreement), the General Counsel contends that Lariviere's net backpay is derived as follows: Period- GrossBackpay Interim Earnings Net Backpay 1982: Q2 ............................................. 3$366 $0 $366 Q3 ............................................. 6,964 0 6,964 Q4 ............................................. 6,860 0 6,860 1983: Ql ............................................. 6,631 0 6,631 Q2 ............................................. 6,695 0 6,695 Q3 ....................................... ...... 7,178 0 7,178 Q4 ............................................. 6,341 2,482 3,859 1984: Q1 ............................................. 6,279 4,050 2,229 Q2 ............................................. 6,068 2,947 3,120 Q3 ............................................. 6,580 3,525 3,055 Q4 ............................................. 6,222 3,417 2,805 1985: - Q1 ............................................. 6,766 5,792 974 Q2 ...........................................:. 520 312 208 Totals ......:........................ $73,475 $22,525 $50,950 As to Bagley, the General Counsel's contentions, based on,the same formula are as follows: 2 In accordance with standard procedure, the General Counsel did not include in his calculations workweeks of employees when they worked 24 or fewer hours. See NLRB Casehandling Manual , Comphance, Sec. 10564(a) ` 3 1 have rounded off all figures to the nearest dollar. 445 Period GrossBackpay Interim Earnings Net Backpay 1982: Q2 ........................................... 366 0 366 Q3 ............................................. 6,964 0 6,964 Q4'****"*"***"'*"*'*"********'******* ..... 6,866 0 6,866 1983: Q1 ............................................. 6,631 0 6,631 Q2 ............................................. 6,695 0 6,695 Q3 ............................................ 7,178 0 7,178 Q4 ............................................. 6,341 0 6,341 1984: Q1 ............................ ........... 6,279 0 6,279 Q2 .......... ............................. 6,068 0 4,512 Q3 ............................................. 6,580 6,707 0 Q4 ............................................. 6,222 7,114 0 1985: Q l ............................................. 4,555 3,638 917 Totals ............................... $71,764 $19,015 $52,749 The Respondents make the following contentions: , 1. Neither discriminatee made a reasonable search for work after their discharge. 2. Lariviere engaged in misconduct after his discharge which would disqualify him for reinstatement and back- pay from the time of the misconduct. Essentially Re- spondents argue that Lariviere caused a false and libelous letter to be-sent to the United States Highway Adminis- tration and to a local newspaper. 3. The gross backpay' formula used by the General Counsel unduly inflates the discriminatees' backpay. Re- spondents assert that both employees during the course of their employment consistently had lower earnings than the other drivers, this being due to their absentee- ism. Thus, Respondents, propose as an alternative formu la that I reduce the gross backpay figure for each discri- minatee, as calculated by the General Counsel's formula, by the percentage amount that each discriminatees' pre- discharge earnings deviated from the average earnings of all the other drivers during the same period. Pursuant to this concept, Respondents assert that Lariviere's gross backpay would be $58,267 and that Bagley's gross would be $53,837. As a second alternative formula, the Re- spondents propose that I simply project each discrimina- tee's average pay during a representative predischarge period into the backpay period. Using this' alternative, the Respondents claim,a gross backpay figure of $56,138 for Lariviere and $53,215 for Bagley. 446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. Neither discriminatee is entitled to vacation pay for 1982 as this had already been paid to them at the time of their discharges. (This amounts to $366 for each employ- ee.) 5. Neither discriminatee is entitled to sick pay during the backpay period. (Like the vacation pay item, this is relatively minor. In each person's case it amounts to $225.) 3. Alleged willful loss of earnings As noted above, the Respondents assert that the two discriminatees did not make a reasonable search for work after their discharges on 24 June 1982. In this regard, however, the Respondents have the burden of proving facts showing a willful loss of earnings. Phelps Corp. v. NLRB, 313 U.S. 177, 190-200 (1941), NLRB x Brown & Roo4 Inc., 311 F.2d 447, 454 (8th Cir. 1963); Rice Lake Creamery, Co., 151 NLRB 1113, 1121 (1965). Further, the fact that a discriminatee has not obtained employment for a significant portion of the backpay period, does not, of itself, establish his or her failure to seek interim em- ployment. NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966); Cornwell Co., 171 NLRB 342, 343 (1968). Both Lariviere and Bagley testified that subsequent to their discharges they searched- for work by registering with the State Employment Service, by visiting and making telephone calls to companies which employed drivers, by talking to friends, and by reviewing want ads in the local newspapers. The Employer's counsel for his part demonstrated that both Lariviere and Bagley were extremely vague about their recollections concerning where they looked for work and when they did so. The problem with cases of this sort is that the discri- minatees were called on to testify concerning the details of 'their respective job searches more than 3 years after their discharges. Also they were not requested to make records of their job searches until receiving question- naires from the Board's Regional Office more than a year after their discharges. In such circumstances it is not surprising that they had a difficult time recalling the details of their searches for interim employment, and I therefore conclude that the Respondents have not ' met their burden of proof on this issue. Teamsters Local 164, 274. NLRB 909 (1984); Canova Moving & Storage, 261 NLRB 639, 642 (1982); Wayne Trophy Corp., 254 NLRB 881, 882 (1981). . In the case of Bagley, I also conclude that he was jus- tified in rejecting a job offer from Neil Trucking in April 1984. In this regard the evidence shows that unlike his job .at Terpening,, the job at Neil Trucking would have required him to be on the road overnight for about 5 days per week. Also after accounting for expenses, Bag- ley's expected weekly earnings from this job would have been about $200 per week, an amount significantly lower than what he earned at Terpening. I therefore find that Bagley's rejection of the Neil Trucking job offer did not affect his entitlement to backpay. Neeley's Car Clinic, 255 NLRB 1420, 1421 (1981). 4. Alleged postdischarge misconduct of Lariviere The Respondents contend that Lariviere sent a libelous letter to the United States Highway Administration with a copy to a local newspaper.'They contend that this con- stitutes misconduct by which Lariviere forfeited his right to reinstatement and backpay. I do not agree. The letter to the Government, which was unsigned, reads as follows: To Whom it may concern I understand your agency will look into cases when a trucking co. makes its employees drive more than the legal amount of time allowed by law. Almost every week I have to drive more than 70 hours. I can not complain to the bosses because I would be fired. Some of our drivers like it for the extra money, but its really dangerous because we haul gasoline. The company makes us fill in the log books so it looks like we only work the legal amount of time. I hope something can be done to make them stop working us so long before there is a bad accident with this gasoline. Our union president will not do anything about it because he is one of the drivers who like to work that many hours. Some drivers were fired last year because they spoke up to the company. Last week I almost went off the road because I started to fall asleep at the wheel, thats what made me decide to write this letter. I hope I am sending this letter to the right place. I read about your agency in a trucking maga- zine and I am enclosing part of the article so you can see if I have contacted the right place. I do not want to see the company get a fine, but if thats what it takes to straighten things out I think they could handle it because I heard they made 3 million dollars last year but never paid us overtime for all those extra hours. In the event I have contacted the wrong agency, I am also sending a copy of this letter to the newspaper because they sometimes help people to get in touch with the right place. Also I would appreciate it if you could forward it to the right place if I am wrong. The name of the company I work for is Terpening Trucking Co. Charles Ave. Syracuse, N.Y. As you can understand, I cannot sign my name. A TIRED TERPENING DRIVER Subsequently on 11 May 1982 an article was written in the Syracuse Herald Journal by Columnist Rick Case, in which he referred to and quoted extensively from the above-described letter. He did not however, name the company. There are cases in which the Board and/or the courts have terminated a discriminatee's right to reinstatement and backpay on his or her postdischarge misconduct. For example in Alumbaugh Coal Corp. v. NLRB, 635 F.2d 1380 (8th Cir. 1980), the court, although sustaining the Board's findings that an employee had been illegally discharged, concluded that the reinstatement and back- pay remedy was improper because of the employer's TERPENING TRUCKING CO. 447 postdischarge misconduct. In that case the employee had dishonestly failed to report his earnings to a state agency in connection wit unemployment benefits and the court stated that the' enloyee's "dishonesty, although not di- rected at the company, nevertheless adversely affected his employer because the company's unemployment re- serve account was initially charged $250 for benefits wrongfully paid." In O. R. Cooper & Sons, 220 NLRB 287 (1975), the Board held that two employees who were illegally discharged were not entitled to backpay after the time that they had engaged in postdischarge misconduct consisting of slashing tires. In Colorado Forge Corp., 260 NLRB 25, 36 (1982), an employee was denied backpay after he forged his employer's signature on a bank loan application. Even assuming for argument's sake that Lariviere au- thored the letter and assuming arguendo that some parts of the letter are untrue, I cannot see how either the letter to the Government or the article published in the news- paper adversely affected the Company. Although it is true that the Company was subjected to an audit by the Highway Administration, there was no showing that this was caused by the letter. Indeed it is more probable that the audit came about simply because the Company had, shortly before the audit, been granted authorization to engage in interstate trucking. I also do not see how the newspaper article damaged or in anyway adversely af- fected the Company. For one thing the Company's name was not mentioned. Further, there was no showing that the Company's business declined as a result of the article. I also have substantial doubts that Lariviere was in fact the author of the letter. The Company produced an expert witness, Victor McNett, who testified that the letter to the Government (R. Exh. 5) was typed on the same typewriter as a letter concededly sent by Lariviere to the Union. (The second letter is identified in this,pro- ceeding as R. Exh. 4.) McNett's testimony to the effect that Respondent's Exhibits 4 and 5 came from the same typewriter was based on the number of similar defects in the typewritten letters on each page. In this regard he testified that in examining the two exhibits (using a mag- nifying glass), he saw that there were identical defects in each exhibit in the letters g,I,k,r, and w. Given the number of corresponding defects, it was McNett's opin- ion that the odds were very, high that the two letters came from the same typewriter. McNett did not, however, offer any opinion concern- ing whether the typist of, the two letters was the same, and it appears to me that they were not. Thus, the typing style and the ' number of = typographical errors on Re- spondent's Exhibit 5 as compared to Respondent's Exhib- it 4 leads me to believe that there were two typists,, one for each letter.4 Respondents would still maintain that even if two typ- ists were involved, the evidence still leads to the conclu- sion that Lariviere was the author of the disputed letter. In this regard, they assert that Lariviere conceded that his woman friend (with whom he lives), typed the letter 4 I note that in typing the number 1, the typist of R. Exh. 5 used the capital L key, whereas the typist of R. Exh 4 used the key for the number 1. whiinlMs Respondent's Exhibit 4. They argue that if the two letters were from the same typewriter, then Re- spondent's Exhibit 4 can only have been typed by Lari- viere's friend at his direction or by himself. Although this is possible, the fact that the evidence points to two different typists, the fact that Lariviere denies any in- volvement in the letter, and the possibility that the letter may have originated elsewhere leads me to conclude that the Respondents have-not met their burden of proof on this question. 5. The backpay formula As noted above, the, General Counsel contends that the proper formula for backpay is one which uses the av- erage of all the Company's full-time drivers during the backpay period excluding weeks' in which a driver worked less than 24 hours. In this manner, the General Counsel derives an average weekly pay rate during each quarter of the backpay period, which is then' assigned as the expected earnings of Bagley and Lariviere. Vacation and sick pay are also added. The' Respondents proposed ` two alternative formulas which, while conceptially different, nevertheless yield re- sults which are remarkably similar to each other. In the first proposed formula, they propose that I determine the average earnings of all the Company's drivers during ,the backpay period. They then propose that I reduce the av- erage amounts by about 21 percent in Lariviere's case and reduce it by about 24 percent in Bagley's case. The discounts are, in essence, arrived at by computing the percentage difference between the average weekly earn- ings of the other drivers during a predischarge period from the respective average weekly earnings of Lariviere and Bagley during the same predischarge period. As a second alternative formula, the Respondents contend that I determine the average weekly earnings of the two dis- criminatees during a representative period before their discharges and project-those averages for each of them into the backpay period. I must say that, to my mind, this second alternative formula is far more preferable than Respondents first alternative formula because (1) it requires, far fewer calculations (with a concomitant lower probability of error), and (2) it is one of a number of tra- ditional formulas which has been adopted by the Board in the past. The General Counsel argues that both of Respondent's proposed formulas should be rejected for a number of reasons which I think have some merit. First, the evi- dence shows that seniority was taken into account for purposes of job assignment. As there was a significant degree of turnover during the backpay period, the two discriminatees would have improved their relative se- niority. This in turn would have permitted both men to get longer runs with a concomitant increase in mileage reimbursements during the backpay period had they con- tinued to be employed. Thus given their relative rise in seniority had they remained employed, it is not at all cer- tain that the two discriminatees' would have continued to earn the same percentage difference during the backpay period as they had done during the predischarge period. 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The projection formula proposed by the Respondents similarly does not take account of the relative rise in se- niority that the discriminatees would have enjoyed had they not been discharged. Additionally it does not take account of the fact that. both the load rate and mileage rates were increased after the two men had been dis- charged. Frankly, whatever problems I see with the Respond- ents' formulas, I have an even greater problem with the General Counsel's proposed formula. To my mind, the essential difficulty with his formula is that the evidence shows that there were two categories of drivers, one on a 6-day-per-week schedule and the other on a 5-day-per- week schedule. The record also shows (particularly G.C. Exhs. 3 and 4), that those employees on a 6-day schedule generally had higher earnings than the drivers on a 5-day schedule. Thus, as both Lariviere and Bagley had elected to be on a 5-day schedule, it seems to me that to calcu- late their backpay based on the average earnings of all drivers, irrespective of what schedule they were on, would be to unduly inflate their backpay . (I am unper- suaded and unmoved by Lariviere's testimony that prior to, his discharge he was thinking about the possibility of returning to a 6-day schedule.) In connection with the above, I suggested during the hearing that perhaps the fairest way of determining gross backpay was to base it on the average earnings, during the backpay period, of those drivers who were on a 5- day schedule. All parties, however, assured me that this was not a good idea because there was insufficient data to do so and because in some instances drivers moved back and forth, at undertermined times , from a 6-day schedule. In reviewing this record, I realized that prior to the time when all drivers were allowed to choose between a 5- or 6-day schedule there were two drivers who were on a 5-day schedule whereas all the others' were on a 6- day schedule. These two were Tickner and Cummings. Moreover both Tickner and Cummings continued to work a 5-day schedule when some of the others, includ- ing the two discriminatees, elected to go on the same schedule. Also, the records show that after the discharge of Lariviere and Bagley, Tickner continued to work on a 5-day schedule throughout the entire backpay period al- though Cummings left the Company about the third quarter of 1982. Finally and most significantly,, Cum- mings, and even more particularly Tickner (both of whom would have similar relative seniority as the discri- minatees during the backpay period for purposes of mile- age' rates and job assignments), had remarkably similar earnings ranking as the two discriminatees. This is evi- denced by General Counsel's Exhibits 3 and 4. It seems to me that as the earning ranking of the two discriminatees were almost identical to Tickner's during the predischarge period (all being on a 5-day schedule)5 b The evidence strongly suggests that prior to the agreement that al- lowed drivers to choose a 5- or 6-day schedule, both Lanviere and Bagley had unilaterally adopted a 5-day schedule for themselves by virtue of absenteeism it is highly probable that the discriminatee 's, earnings would have been almost the same as Tickner's during the backpay_ period had they not been discharged. Further, the similarity is strengthened because1of the similarity in relative seniority among Tickner and the two _discrimina- tees vis-a-vis other drivers for purposes of mileage rates and job assignments. Based on the above, I conclude that the fairest method of determining gross backpay in this case , is to base it on the actual earnings of Tickner during the backpay period except for the second quarter of 1982 when, for some reason unknown to me, he had no earnings. Thus for the second quarter of 1982, I shall substitute the earnings of Cummings. Accordingly, the .gross backpay on quarterly basis would be computed as follows: 1982: Q2 ............................................... $238 x 1/2 $119 Q3 ............................................... 6422 x 13 = 5,486 Q4 ............................................... 428 x 13 = 5,564 1983: Q1 ............................................... 414 x 13 = 5,82 Q2 ................................................ 383 x 13 = 4,979 Q3 ............................................... 410 x 13 = 5,330 Q4 ............................................... 368 x 13 = 4,784 1984: Ql ............................................... 413 x 13 = 5,369 Q2 ............................................... 387 x 13 = 5,031 Q3 ............................................... 408 13 = 5,304 Q4 ............................................... 410 x 13 = 5,330 1985: Q1 ............................................... 437 x 13 = 5,681 Q2 ............................................... 437 x 1 = 437 In addition to the above, the record shows that all drivers were entitled to sick pay in the amount of $75 per year if they did not use their sick leave during the year. Therefore, the discriminatees are entitled to this amount in each year of the backpay period. Also, the record establishes that all drivers were entitled to vaca- tion pay (in the amounts of 1 or 2 weeks depending on seniority), the weekly amounts determined by dividing an employee's annual earnings by '52 weeks,'' As the evi- dence establishes to my satisfaction that both discrimina- tees received their vacation pay for 1982 at the time of their discharges, they each would be entitled to vacation ' Pursuant to the bargaining agreement , drivers employed for more than 1 year but less than 2 years were entitled to I week of vacation pay. Drivers employed more than 2 years were entitled to 2 weeks of vacation pay. As both discriminatees, in 1983 and 1984 would have been employed for more than 2 years but for their unlawful discharges , they each would be entitled to 2 weeks vacation pay in 1982 and 1984 TERPENING TRUCKING CO. 449 pay for the years 1983 and 1984 . (The amounts deter- mined by dividing their gross backpay in each year by 52 weeks and then multiplying by two .) Thus in 1983 each would be entitled to $787 .50 and in 1984 each would be entitled to $809. Summarizing all the above and taking into account in- terim earnings , it is concluded that the total backpay for Lariviere, exclusive of interest , would be as follows: Period and Gross Backpay Interim Earnings Net Backpay 1982: Q2 $119 ................................................................................................................................................................. $0 $119 Q3 $5,486 .............................................................................................................................................................. 0 5,486 Q4 $5,564 + $75 (sick pay) = $5,639 ............................................................................................................... 0 5,639 1983: Q1 $5,382 + $197 (vacation pay) = $5 ,579 ...................................................... ..................................... ........... 0 5,579 Q2 $4,979 + $ 197 (vacation pay) = $5 , 176 ...................................................................................................... 0 5,176 Q3 $5,330 + $ 197 (vacation pay) = $5 ,527 ...................................................................................................... 0 5,527 Q4 $4,784 + $197 (vacation pay) + $75 (sick pay) = $5,056 ........................................................................ 2,482 2,574 1984: Q1 $5,369 + $202 (vacation pay) = $5 , 571 ...................................................................................................... 4,050 1,521 Q2 $5,031 + $202 (vacation pay) = $5 ,233 ...................................................................................................... 2947 2,286 Q3 $5,304 + $202 (vacation pay) = $5 ,506 ...................................................................................................... 3 ,525 1,981 Q4 x$5,330 + $202 (vacation pay) + $75 (sick pay) = $5,607 ........................................................................ 3,417 2,190 1985: Q1 $5,681 ..............................................................................................................:.............................................. 5,792 0 Q23437 ................................................................................................................................................................. 312 125 Total ................................................................................................................................................................... $38,203 Using the same formula for Bagley results in the fol- lowing: Period and Gross Backpay Interim Earnings Net Backpay 1982: Q2 $119 ......................................................................................................................................................... $0 $119 Q3 $5,486 ..................................................................................................................................................... 0 5,486 Q4 $5,564 + $75 (sick pay) = $5,639 ........................................................................................................ 0 5,639 1983: Q1 $5,382 + $197 (vacation pay) = $5 ,579 .............................................................................................. 0 5,579 Q2 $4,979 + $197 (vacation pay) = $5 , 176 .............................................................................................. 0 5,176 Q3 $5,330 + $ 197 (vacation) _ $5,527 ..................................................................................................... 0 5,527 Q4 $4,784 + $197 (vacation pay) + $75 (sick pay) = $5,056 ............................................................... 0 5,056 1984: Q1 $5,369 + $202 (vacation pay) = $5 ,571 ............................................................................................. 0 5,571 Q2 $5,031 + $202 (vacation pay) = $5 ,233 ............................................................................ ........... 1 ,556 3,677 Q3 $5,304 + $202 (vacation pay) = $5 , 506 .............................................................................................. 6,708 0 450 DECISIONS OF THE -NATIONAL LABOR RELATIONS BOARD Period and Gross Backpay InterimEarnings Net Backpay Q4 $5,330 + $202 (vacation pay) + $75 (sick pay) = $5,607 ................................................................ 7,114 0 1985: Q1 $4,401 .................................................................................................:.................................................... 3,638 763 Total .............................................................................................................................................................................. $42,593 [Recommended Order omitted from publication.]