Weldun International

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 666 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666
Weldun International, Inc. and United Steelworkers
of America, AFL–CIO–CLC. Cases 7–CA–
34343 and 7–CA–34805
September 30, 2003
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND SCHAUMBER
On April 11, 2001, Administrative Law Judge Paul
Bogas issued the attached supplemental decision. The
Respondent filed exceptions, a supporting brief, and a
reply brief. The General Counsel filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,1 and
conclusion, and to adopt the recommended Order.
The compliance specification at issue in this case im-
plements the remedy ordered in the Board’s decision in
Weldun International, 321 NLRB 733 (1996), enfd. in
relevant part NLRB v. Weldun International, 165 F.3d 28
(6th Cir. 1998). There, the Board found that the Respon-
dent violated the Act by, inter alia, discriminatorily ter-
minating 29 employees, telling employees that the termi-
nated employees would not be reinstated because of the
Union and the charges filed by the Union, and impliedly
threatening employees that the plant would be closed. In
reaching its decision, the Board rejected the Respon-
dent’s contentions, inter alia, that the layoffs, including
those in the machine department, were justified by valid
business reasons. The Board also found that private set-
tlement agreements entered into by some employees fol-
lowing their unlawful layoffs did not preclude a rein-
statement order or a backpay remedy here, but could po-
tentially limit the amount of backpay due the discrimina-
tees. As the judge correctly found, matters decided in the
Board’s decision underlying this compliance proceeding,
and enforced by a United States court of appeals, are
settled matters and may not be relitigated here. Trans-
port Service Co., 314 NLRB 458, 459 (1994).
The chief issue before us concerns the backpay for-
mula. We adopt the judge’s finding that the average
earnings formula used in the backpay specification is

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
fair, reasonable, and most accurately approximates the
earnings the discriminatees would have realized had they
not been unlawfully discharged.2 This formula calculates
backpay based on the prediscrimination hours worked by
the discriminatees. The Respondent contends that over-
time pay should have been calculated based on the actual
amount of overtime worked by a comparable group of
employees during the backpay period, and in considera-
tion of the reduced demand for work traditionally per-
formed by the unit employees and the length of time
covered by the backpay period. According to the Re-
spondent, such a formula would be more reasonable, fair,
and accurate than the formula used in the compliance
specification, because it would properly reflect decreases
in business over the backpay period attributable to staff
and overtime reductions in the assembly and machine
departments. We find no merit in these arguments.
As noted, in the Board’s underlying decision, enforced
by a United States court of appeals, the Board found
unlawful the restructuring of the machine department and
layoff of employees. The Board further found that the
Respondent significantly increased its use of subcontrac-
tors and temporary employees to perform unit work fol-
lowing the unlawful layoffs, a fact inconsistent with the
claimed decrease in unit work.3 The Board found “a
complete lack of evidence that the Respondent was even
considering such drastic action before it became aware of
the union campaign.” In affirming the Board’s decision,
the court of appeals emphasized the absence of evidence
to support the Respondent’s claim of a decrease in busi-
2 In agreement with the judge, we also find that the backpay entitle-
ment of employees Jim Doud, Robert Dunning, Delmar Kirksey, Kurd
Lindhorst, and Jerry Thomspon (who died during the backpay period)
has been established in the underlying Board and court decisions, and
that the only issue remaining at the compliance stage of these proceed-
ings is the effect of the severance amounts on the employees’ backpay
awards. Accordingly, we adopt the judge’s approval of the revised
compliance schedules for these employees, which reduce gross backpay
by the amounts of the severance payments.
We find no merit in the Respondent’s exceptions to the judge’s find-
ing that discriminatees Rex Jackson and Meryl Zion did not sustain
willful losses of earnings disqualifying them from receiving backpay.
Accordingly, we adopt the judge’s findings, conclusions, and recom-
mended remedy for these employees.
Chairman Battista agrees that the issues of the settlement agreements
and James Whitehead’s status as a discriminatee are res judicata. He
notes that he did not participate in the underlying unfair labor practice
case and, thus, takes no position regarding the validity of that decision.
3 The Respondent contends that it hired fewer employees than it laid
off during the backpay period and, in effect, that this fact shows that it
would have laid off some employees for lawful reasons. Because the
restructuring of operations and layoff were unlawful and tainted subse-
quent employment decisions, it is impossible to know whether this
contention is valid. We construe any such uncertainties against the
Respondent. La Favorita, Inc., 313 NLRB 902, 903 (1994), enfd. 48
F.3d 1232 (10th Cir. 1995).
340 NLRB No. 79
WELDUN INTERNATIONAL 667
ness unrelated to the unlawful restructuring and layoff.
The Respondent may not relitigate these settled matters
in this compliance proceeding.
Moreover, we agree with the judge’s finding in this
proceeding that, “even if the Respondent concluded dur-
ing the backpay period that it was cost effective to in-
crease its use of subcontractors, that conclusion was de-
pendent on the prior decisions to unlawfully layoff em-
ployees and to restructure to reduce the amount of work
performed.” The Respondent has not shown that it later
would have lawfully laid off employees, notwithstanding
any previous unlawful layoffs.4 The Board does not re-
duce a backpay award based on a reduction in work that
is, itself, the result of antiunion animus. Coronet Foods,
Inc., 322 NLRB 837, 840 (1997), enfd. in part 158 F.3d
782 (4th Cir. 1998).
The Respondent also contends that the backpay for-
mula is flawed in that it does not take into account the
long backpay period (approximately 5 years) and, thus,
the uncertainty of earnings so far into the future. We
find no merit in this contention for substantially the same
reasons discussed above. Further, we find distinguish-
able the cases cited by the Respondent for this proposi-
tion. In Woodline Motor Freight, 305 NLRB 6 (1991),
enfd. 972 F.2d 222 (8th Cir. 1992), the Board declined to
use a backpay formula based on preunfair-labor-practice
earnings because deregulation of the trucking industry,
contemporaneous with the lengthy backpay period, le-
gitimately rendered unreliable the use of such a formula.
Here, the Respondent has advanced no such legitimate
justification. The Respondent’s reliance on Boland Ma-
rine & Mfg. Co., 280 NLRB 454, 460–461 (1986), is
similarly misplaced. There, the employer’s work force
also declined for a valid reason, the completion of sev-
eral major projects.
Accordingly, we find the Respondent’s exceptions to
the backpay formula used in the compliance specification
lack merit.5

4 Accordingly, we need not further consider the Respondent’s con-
tention, properly rejected by the judge, that backpay should be calcu-
lated by dividing the number of hours actually worked during the back-
pay period by the aggregate number of employees working plus dis-
criminatees.
5 In his decision, rejecting the Respondent’s argument that the over-
time earnings of comparable employees during the backpay period
should be used as the measure of damages, the administrative law judge
commented:
Moreover, even if one assumes that some formula based on the earn-
ings of comparable employees could be more accurate in this case
than the formula used in the compliance specification, the precise
method chosen by the Respondent has been repudiated by the Board
and tends to overstate any decline in the hours the discriminatees
would have worked.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Weldun International, Inc.,
Bridgman, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Thomas W. Doerr, Esq., for the General Counsel.
Michael A. Taylor, Esq. (Verner, Lipfert, Bernhard, McPherson
& Hand), of Washington, D.C., for the Respondent.
Frederick A. Stuart, Esq., Broadview, Illinois, for the Respon-
dent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. On September
16, 1998, the U.S. Court of Appeals for the Sixth Circuit en-
forced that portion of the Order of the National Labor Relations
Board (the Board) that directed Weldun International, Inc. (the
Respondent) to provide make-whole relief to 29 individuals
who the Respondent unlawfully laid off in response to a union-
izing effort. The Acting Director for Region 7 of the Board
issued a compliance specification and notice of hearing on May
24, 2000, which stated that the Respondent owed backpay and
other monetary relief totaling $1,145,152.24 plus interest to the
29 individuals. Through various amendments to the backpay
schedules in the specification, the preinterest amount claimed
has been reduced to $948,731.69. The Respondent has filed an
answer to the compliance specification disputing the backpay
formula used by the Acting Regional Director and raising mul-
tiple other objections to the amounts stated in the compliance
specification. With respect to the formula, the Respondent’s
primary contention is that the Board should not have estimated
the discriminatees’ lost overtime earnings during the backpay
period based on the average earnings of the discriminatees dur-
ing a 1-year period prior to the unlawful layoffs, but rather
should have used the hours and earnings of comparable em-
ployees actually working during the backpay period. The Re-
spondent argues that the Company’s business was in decline
and that the discriminatees, if retained, would have worked
fewer overtime hours during the backpay period than they did
during the previolation period relied on in the compliance
specification. The General Counsel counters that the approach
used to create the compliance specification is more accurate
because, inter alia, the Respondent’s calculations do not take
into account the Respondent’s use of outside contractors and
temporary employees during the backpay period to perform
work previously done by the discriminatees, and because any
decline in the Respondent’s business during the backpay period

Member Schaumber agrees with the judge’s decision rejecting the
comparable approach for the reasons expressed in his decision. He
disagrees, however, with the above comment of the judge to the extent
he may be suggesting that the Board will focus on the precise method
chosen by a respondent even if a modification of the Respondent’s
method would produce a more accurate formula. However, in this case,
for the reasons given by the judge, no modification of the Respondent’s
method would have produced a more accurate formula.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
was tainted by the Respondent’s unfair labor practices. Among
the Respondent’s other objections to the compliance specifica-
tion are: that the backpay period for discriminatees from the
Respondent’s machine department should close at the end of
1993, rather than in October 1998; that the Region improperly
seeks backpay for claimants who signed private settlement
agreements; and that a number of claimants failed to mitigate
their losses. According to the Respondent, the correct figure
for backpay and other monetary relief is $391,136.83.
The compliance hearing in this case was held in Dowagiac,
Michigan, on October 10–13 and 24–25, 2000. On the entire
record,1 including my observation of the demeanor of the wit-
nesses, and after considering the briefs filed by the General
Counsel and the Respondent, I make the following
I. FINDINGS OF FACT
A. Background
The Respondent is a corporation that, until October 1998, had
a flexible assembly system (FAS) operation in Bridgman,
Michigan. It is a wholly owned subsidiary of Robert Bosch
Corporation, an Illinois corporation, owned by Robert Bosch, a
German corporation. The machine and assembly departments at
issue in the underlying unfair labor practices proceeding were
located at the Respondent’s Bridgman facility and were part of
the Respondent’s FAS division. On February 22, 1993, the
United Steelworkers of America, AFL–CIO, CLC (the Union)
made a written request that the Respondent recognize it as the
exclusive collective-bargaining representative for a unit of em-
ployees in the FAS division. As of that request, or shortly there-
after, 70 members of the prospective unit of approximately 140
employees had signed cards authorizing the Union to act as their
representative. On March 11 and 12, 1993, the Respondent
carried out an unprecedented permanent layoff of 29 of its em-
ployees. These laid-off employees represented over 20 percent
of the employees in the prospective unit and the layoffs occurred
just days before a representation hearing was to be held. During
the early part of 1993, prior to the layoffs, the Respondent’s
backlog of orders was somewhat smaller than it had been during
the same period of the prior 3 years. However, a number of the
discriminatees testified credibly that they had not noticed a sig-
nificant decrease in the number of hours being worked as com-
pared to the same timeframe during 1992.
On the day that the discriminatees were permanently laid off,
the Respondent presented some or all of them with a letter and
release offering enhanced severance benefits in exchange for
the discriminatees’ agreements to release the Respondent “from
any and all claims of any nature whatsoever” relating to their
employment, including any claims under the National Labor
Relations Act (the Act). The discriminatees were given 21 days
to review this proposal and an additional 7 days to consider
revoking it after signing. A number of the employees presented
with this proposal consulted with attorneys, and five of the
discriminates—Jim Doud, Robert Dunning, Delmar Kirksey,
Kurt Lindhorst, and Jerry Thompson—executed the releases
and received enhanced severance benefits. At the time that

1 I also take judicial notice of the findings that were upheld in the
underlying unfair labor practices case.
they executed the releases none of these employees was aware
that the Union had filed, or planned to file, a charge based on
the layoffs, and none had consulted with anyone associated
with the Union about the matter.
After the unlawful layoffs the union activities continued, and
eight more individuals signed union authorization cards, bring-
ing the total to 78. The Respondent’s opposition to the union
campaign also continued. On June 11, 1993, the Respondent’s
president and CEO, Frank Schoenwitz, called employees to-
gether for “communication” meetings, at which he told them
that the FAS operation would be “doomed” if the employees
selected the Union as their collective-bargaining representative.
In April 1993, two of the Respondent’s officials, Jerry Scroggins
and Russel Hansen, told employees that the discriminatees could
not be recalled because of the Union and the unfair labor prac-
tice charges filed by the Union. In June 1993 another company
official, Marlin Phillips, had conversations with employees in
which he blamed the Union for the layoffs.
By letters dated October 6, 1994, the Respondent informed
discriminatees that the Company had a limited number of open-
ings for skilled employees and invited them to contact the Re-
spondent’s human resources office. Some employees were ver-
bally offered, or informed about, available positions. One dis-
criminatee, Delmar Kirksey, accepted a position and was re-
employed by the Company doing the same type of work as he
had before the layoff. Although he was reinstated at the same
hourly wage he was earning before the layoff, Kirksey’s vaca-
tion time, which was based on seniority, was only restored at 75
percent of its prelayoff level. Other employees declined verbal
offers of employment for various reasons. One such employee
was Rex Jackson, who received the letter about openings and
subsequently visited the Respondent’s plant to seek employ-
ment. He was told he could have a job as a janitor on the second
shift making $7 per hour. At the time of his layoff Jackson was
a bench helper on the first shift making over $8 per hour.2 Jack-
son turned down the offer. Discriminatee Timothy James Hunt
2 I credit Jackson’s testimony regarding his position, shift, and wage
level, at the time of the unlawful layoff, and the position shift and wage
level, the Respondent offered him in October 1994. I base this on his
demeanor, which was calm and certain, and on the totality of the evi-
dence. I do not credit the testimony of Laurence Brown, the Respon-
dent’s human resources director in 1994, who testified that Jackson was
a janitor at the time of his layoff. Brown did not start with the Respon-
dent until August 1993, and conceded that he had no firsthand knowl-
edge of what Jackson was doing at the time of the layoff in March 1993.
Moreover, the payroll excerpts submitted by the Respondent show that
Jackson was classified as a “deburrer,” not a “janitor” at the time he was
laid off. R. Exh. 14. I found Brown’s assertion that the deburrer classi-
fication was consistent with Jackson being a janitor unconvincing on its
face and also in light of the evidence that another employee, Victor J.
Jackson, was explicitly classified as a janitor in the payroll excerpts.
Brown testified that the pay offered Jackson “would have been no less
than the same amount he was making” at the layoff, but he did not re-
member the precise pay offered to Jackson and his vague testimony was
outweighed by Jackson’s more confident and detailed recollection.
Brown did not recall what shift Jackson worked on prior to the layoff, or
on what shift Jackson was offered employment. Jackson’s claim that the
job he was offered was on a different shift than he was working prior to
the layoff was unrebutted.
WELDUN INTERNATIONAL 669
Sr. was a toolmaker or leadman toolmaker in the assembly de-
partment when he was unlawfully laid off, and he was offered
reemployment in October 1994 to a job in the machine depart-
ment. He was told that if he accepted reinstatement the Com-
pany would restore none of his seniority for the first year, and
that afterwards the Company would restore 75 percent of his
prelayoff seniority. The wage offered to him was the same as he
was earning at the time of the illegal layoff, but less than he
would have been receiving in October 1994 if he had never been
laid off. Hunt turned down the position because he believed that
the Respondent’s failure to restore his seniority would put him at
risk for layoff in the future.3 Discriminatee David Michael Sin-
ner was a toolmaker in the machine department at the time of his
unlawful layoff in 1993, and in October 1994 the Respondent
offered him reemployment as a general machinist operating a
“bridgeport” machine. The general machinist/bridgeport opera-
tor position involved more limited duties and tasks than the
toolmaker position. Dick Koziel, the vice president in charge of
the machine department, informed Sinner that his seniority
would not be restored for 12 to 18 months. Sinner did not ac-
cept the position.4 Another discriminatee, Meryl Ray Zion,
telephoned the Respondent in response to the October 6, 1994
letter, but the jobs that were described to him all required skills
that Zion believed he did not possess. Zion did not followup
further and received no job offer.
During the years following the mass layoff there were hir-
ings and terminations in the Respondent’s FAS division, how-
ever, the staff level never reached where it had been prior to
March 1993.
B. Prior Unfair Labor Practices Decisions
1. The decision of Administrative Law Judge Batson
The Union filed charges against the Respondent on March 15,
1993, and July 23, 1993, alleging violations of Section 8(a)(1),
(3), and (5) of the Act. On December 5, 1994, Administrative
Law Judge Robert C. Batson issued a decision in which he held
that the Respondent had committed numerous unfair labor prac-
tices in violation of the Act. Judge Batson concluded that after
the Respondent became aware of the unionizing effort in Febru-
ary 1993, it unlawfully opposed that effort by: discriminatorily

3 I found Hunt’s testimony regarding the 1994 job opening credible
based on his demeanor and the totality of the evidence. Brown’s con-
trary testimony was vague and uncertain, and I have not credited it.
Brown claimed that the position offered to Hunt would have been
equivalent to the one Hunt held before the 1993 layoff, but Brown
could not recall the position that was offered in 1994, and was not
working for the Respondent at the time of the Hunt’s 1993 layoff.
Brown testified that his recollection was that the reemployment offers
in 1994 would have included the restoration of the individual’s full
seniority, but he conceded that his recollection was “fuzzy” on this
score. I do not credit his fuzzy recollection regarding the restoration of
seniority. That recollection was contrary to the testimony not only of
Hunt, but also of Sinner and Kirksey.
4 I found Sinner a credible witness based on his demeanor and the to-
tality of the evidence and have credited his testimony to the extent
consistent with the facts found above. In particular, I credit his testi-
mony that he was told that his seniority would not be restored for 12 to
18 months. I discredit Brown’s testimony that restoration of prelayoff
seniority was part of the 1994 reemployment offers. See supra, fn. 3.
laying off 29 employees; telling employees that the terminations
were related to the union activity; telling employees that the
laid-off employees could not be recalled because of the Union
and the unfair labor practices charges filed by the Union; coer-
cively interrogating its employees about union and protected
activities; creating the impression that union activities were
under surveillance; threatening employees with loss of benefits
if they selected the Union to represent them; impliedly threaten-
ing employees with plant closure if they selected the Union; and
refusing to recognize and bargain collectively with the Union.
Judge Batson also found that the unit sought by the Union was
appropriate for purposes of collective bargaining and that the
Union had represented a majority of the employees in the unit at
an appropriate time. Commenting on the Respondent’s behavior,
Judge Batson stated that “[d]uring almost 30 years working in
the field of labor relations,” he had “seldom encountered a case
in which the employer responded more swiftly, blatantly, vi-
ciously, and indefensibly to the advent of union activities.”
In his decision, Judge Batson specifically rejected the Re-
spondent’s contention that a downturn in the Company’s eco-
nomic circumstances explained the decision to permanently lay
off the 29 employees. Judge Batson noted that shortly before
the layoffs the Respondent’s president and CEO, Frank Schoen-
witz, publicly announced that 1992 was the most successful
year in the history of the Company, and that the prospects for
1993 were bright although economic signals were mixed.
Schoenwitz stated that the Company expected steady growth in
employment in 1993. In Schoenwitz’ monthly reports to corpo-
rate headquarters for January and February 1993, he gave no
hint that a massive downsizing was on the horizon. The Febru-
ary report was actually issued on March 9, just 2 days before
the mass layoffs began. Judge Batson observed that other ac-
tions by the Respondent were also inconsistent with the Re-
spondent’s claim that a reduction in the amount of available
work explained the layoffs. He observed that after the layoffs
the Respondent increased its use of subcontractors significantly
and had brought in eight outside electricians to perform work
that was previously done by the laid-off employees. Judge
Batson conceded that the backlog of orders was down at the
beginning of 1993, but noted that the reports for January, Feb-
ruary, and March of earlier years showed that the backlog of
orders generally went down during the first 3 months of the
year and then rebounded.
The Respondent was found to have committed violations of
the Act subsequent to the unlawful layoffs (and, therefore, dur-
ing the backpay period at issue in this compliance proceeding).
Most significantly, Judge Batson found that at “communica-
tion” meetings with employees on June 11, 1993, Schoenwitz
impliedly threatened that the plant would be closed if the em-
ployees selected the Union as their collective-bargaining repre-
sentative. In addition, Judge Batson concluded that in April
1993 two of the Respondent’s officials violated Section 8(a)(1)
by telling current employees that the discriminatees could not
be recalled because of the Union and the Union’s unfair labor
practice charges. Judge Batson found that during a conversa-
tion with employees in June 1993, another official violated
Section 8(a)(1) by blaming the Union for the layoffs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
The remedy proposed by Judge Batson included reinstate-
ment and make-whole relief for all 29 of the discriminatees,
and an order directing the Respondent to recognize and bargain
in good faith with the Union. According to Judge Batson, the
latter remedy was warranted because the Respondent’s “outra-
geous” and “pervasive” violations had “made the likelihood of
a fair election remote if not impossible.”
2. The decision of the Board
The Respondent filed exceptions to Judge Batson’s decision.
The Board affirmed Judge Batson’s conclusions that the Re-
spondent had violated the Act by, inter alia, discriminatorily
terminating 29 employees, telling employees that the termi-
nated employees would not be reinstated because of the Union
and the charges filed by the Union, and impliedly threatening
employees that the plant would be closed if employees selected
the Union. Weldun International, 321 NLRB 733 (1996). The
Board reversed Judge Batson’s conclusion that the Respondent
had violated the Act by threatening one employee with unspeci-
fied reprisals and loss of benefits.
The Board stated that the Respondent had demonstrated a
willingness to “keep the Union out by any means necessary.”
Like Judge Batson, the Board rejected the Respondent’s con-
tention that the permanent layoffs of the 29 employees were
justified by business reasons. In particular, the Board consid-
ered and rejected the Respondent’s claim that the terminations
of 18 employees from the Respondent’s machine department
were based on a business decision to restructure its machining
operation to support the core business only—i.e., a business
decision to stop performing jobs for outside customers and do
machining work exclusively to meet the needs of companies
related to the Respondent’s parent corporation. The Board
stated that there was a “complete lack of evidence that the Re-
spondent was even considering [the layoffs] before it became
aware of the union campaign.” The Board did acknowledge
that “the demand for machining was down due to a shift to less-
heavily machined products and a decline in the general tool
business,” and that the backlog of orders was lower in early
1993 than it had been during the same periods of the previous
three years. However, the Board did not state that the size of
either of these changes was substantial enough to motivate any
layoffs at all. Rather, the Board stated that the evidence
showed that the Respondent used “the mass layoff to intimidate
its employees and to discourage them from voting for union
representation.” The Board also noted that the Respondent’s
decision to “restructure” the machining operation coincided
with the Union’s filing of the election petition.
The Board also considered the Respondent’s contention that
no remedies should be granted to five discriminatees (Doud,
Dunning, Kirksey, Lindhorst, and Thompson) who had exe-
cuted settlement agreements and releases after being perma-
nently laid off. The Board rejected this contention and ordered
the Respondent to provide offers of full reinstatement and
make-whole relief to these five discriminatees. 321 NLRB at
737. The Board stated that at the compliance stage the inquiry
would be “limited” to consideration “of the effect that the
amounts received shall have on these employees’ backpay
awards.” 321 NLRB at 734 fn. 6. The settlement agreements
in this case were, the Board explained, “distinguishable from
those at issue in Hughes Christensen Co., 317 NLRB 633,
(1995), [enf. denied 101 F.3d 28 (5th Cir. 1996)]”—a case in
which settlements were held to preclude any relief whatsoever
to claimants. The Board noted that in Hughes Christensen, the
former employees who signed the agreements had been mem-
bers of the union committee negotiating over a plant relocation
and downsizing, and that at the time the settlements were exe-
cuted the unfair labor practice charge had been dismissed by
the Board as lacking in merit.
3. The decision of the court of appeals
The Respondent appealed the Board’s decision to the U.S.
Court of Appeals for the Sixth Circuit, arguing that the March
1993 layoffs did not violate the Act, that Schoenwitz had not
unlawfully threatened employees with plant closure, and that
the issuance of the remedial bargaining order was improper. In
its decision, issued on September 16, 1998, the court of appeals
upheld the Board’s determinations that, inter alia, the 1993
layoffs violated the Act and that Schoenwitz had threatened
employees with plant closure in violation of the Act. (See GC
Exh. 1(b).) The court of appeals granted enforcement of the
Board’s order except for the portion requiring the Respondent
to recognize and bargain with the Union.
Regarding the Respondent’s defense that the mass layoff was
due to business reasons, the court stated that “[q]uite simply, no
contemporaneous evidence in the record corroborates [the Re-
spondent’s] claim that the layoffs were the result of alarm at an
unprecedented downturn in business.” The court also found
that substantial evidence supported the Board’s finding that
Schoenwitz had told employees that the FAS division would be
“doomed” if the Union were selected, and that Schoenwitz’
statement constituted an unlawful threat under the circum-
stances. Regarding its decision that a bargaining order was not
appropriate, the court stated that the Respondent’s “conduct has
been inexcusable,” but that the Board failed to demonstrate that
other “remedial measures [were] insufficient to ensure a fair
election.” Judge Cole dissented from the portion of the court’s
decision denying enforcement of the bargaining order, and
argued that such a remedy was appropriate given the Respon-
dent’s conduct.
4. Activities subsequent to the court of appeals’ decision
In 1998, the Respondent sold its FAS operation in Bridgman
to Precision Control (Precision). Precision assumed control of
the facility in late October or early November 1998, not as an
ongoing concern but as assets. Prior to when Precision took
over the facility, the Respondent sent letters, dated October 2,
1998, to the 29 discriminatees offering them unconditional
reinstatement. The letter told the discriminatees that the dead-
line for responding was October 12, 1998, and that they had to
report for work no later than October 26, 1998. The deadline
for responding may have been extended to October 16. Almost
all of the discriminatees accepted the offers. The only dis-
criminatee who the record establishes did not accept an offer of
reinstatement was Jerry Thompson, who had died. The em-
ployees reinstated in 1998 worked for just a few days before the
facility was turned over to Precision and operations ceased on
WELDUN INTERNATIONAL 671
about October 30, 1998. As a result of the brief period of rein-
statement the discriminatees qualified for a severance plan,
adopted by the Respondent’s parent corporation after the 1993
layoffs, which applied to employees who lost their jobs as a
result of plant closure and job elimination.5
Analysis and Discussion
The finding of an unfair labor practice is presumptive proof
that some backpay is owed. Beverly California Corp., 329
NLRB 977, 978 (1999). The General Counsel’s burden in
backpay cases is to show the amount of gross backpay due each
claimant. Hansen Bros. Enterprises, 313 NLRB 599, 600
(1993); Mastro Plastics Corp., 136 NLRB 1342, 1346 (1962).
The burden then shifts to the Respondent to establish facts that
negate or mitigate its liability. Id. The backpay claimant should
receive the benefit of any doubt rather than the respondent, the
wrongdoer responsible for the existence of any uncertainty and
against whom any uncertainty must be resolved. La Favorita,
Inc., 313 NLRB 902, 903 (1994), enfd. 48 F.3d 1232 (10th Cir.
1995).
The Respondent raises multiple objections to the amounts
stated in the compliance specification. A number of these are
general objections that apply to a group of the discriminatees.
Other objections are directed to specific discriminatees and the
validity of these objections depends on the facts relating to the
particular discriminatee involved. I will first consider the gen-
eral objections before turning to those involving individual
claimants.
II. THE BACKPAY FORMULA
The backpay formula used in the compliance specification,
and advocated by the General Counsel, estimates what the dis-
criminatees would have earned during the backpay period by
projecting from the average earnings each discriminatee re-
ceived from the Respondent during 1992, the last full calendar
year of their employment with the Respondent. More specifi-
cally, to arrive at gross backpay figures, the Acting Regional
Director divided the 1992 earnings of each discriminatee by the
number of weeks that the discriminatee was employed during
that year to arrive at his or her average weekly wages. Then the
average weekly wages were divided by the discriminatee’s
hourly wage rate to determine his or her average weekly hours.

5 The Respondent devotes a portion of its brief to arguing that the
Regional Office did not give fair consideration to the Respondents
contentions about a proper remedy before the Regional Director issued
the compliance specification. (R. Br. at 4–7.) The General Counsel
counters that despite the Regional Office’s repeated requests the “Re-
spondent failed to produce any records to support its claims.” GC Br.
at 4. I make no finding as to which side gets the better of this finger-
pointing skirmish. My determination about the proper remedy in this
case is based on all the evidence of record, including any that was
provided by the Respondent for the first time at the hearing, not on any
conclusion about who was to blame for information not being available
during the compliance phase in the Regional Office.
Similarly, the Respondent complains that the Regional Office did
not issue the compliance specification in a timely fashion. Even if the
Regional Office was responsible for delays, such delays are not a factor
to be considered in this proceeding. Unitog Rental Services, 318
NLRB 880, 884–885 (1995), affd. 105 F.3d 651 (5th Cir. 1996).
The average weekly hours figure was then multiplied by the
wage rate that the discriminatee would have earned at various
stages during the backpay period to determine the discrimina-
tee’s gross backpay.6
The Respondent has chosen not to dispute the calculation of
each discriminatee’s nonovertime hours that is implicit in the
General Counsel’s schedules, and which was based on the
nonovertime hours worked by the discriminatees themselves
during 1992. (Tr. 300–301.); Respondent’s Brief at 20.7 How-
ever, the Respondent advocates a different approach with re-
spect to estimating the overtime hours the discriminatees would
have worked for each year of the backpay period. The Respon-
dent’s method is based on the overtime hours worked during
the backpay period by employees in what the Respondent iden-
tifies as comparable positions. The Respondent’s method, as
described in the testimony of Frederick A. Stuart (Robert Bosch
Corporation’s chief counsel for labor relations and employ-
ment) is labyrinthine and I will recount only its major features.
The Respondent first determines the total number of overtime
hours that were worked collectively during each year of the
backpay period by a group of employees who held positions
comparable to those that one or more of the discriminatees held
before the layoffs. Those total collective hours are then divided
among both the employees working in the selected positions
during that year and the discriminatees who had been unlaw-
fully laid off from the same or comparable positions. That
figure is then divided by 52 weeks to generate what the Re-
spondent characterizes as the average number of overtime
hours per employee, per week, during that year for employees
in that classification/comparator group. The Respondent then
uses those figures for average weekly overtime hours, along
with the applicable wage rate, to arrive at a figure representing
the Respondent’s view of how much each discriminatee would
have earned in overtime pay during each year of the backpay
period had he or she continued to be employed. In order to
arrive at a total gross backpay figure for each discriminatee, the
Respondent adds the average earnings from nonovertime hours,
see supra footnote 7, to the earnings for overtime hours. The
grand total backpay figure generated for all the discriminatees
under the Respondent’s method is, according to Stuart’s testi-
mony, approximately $300,000 to $400,000 lower than the
figure generated using the method employed in the compliance
specification. (Tr. 312–313.)
“In solving many of the problems which arise in backpay
cases, the Board occasionally is required to adopt formulas
6 Since the 1992 earnings figure includes earnings derived from both
regular/nonovertime hours and overtime hours, this approach accounts
for both types of hours although it does not distinguish one from the
other in the average weekly hours figure. Essentially what happens
under this approach is that each overtime hour is converted into one and
a half regular hours, since the overtime hours were compensated at time
and a half. Then the average weekly hours figure is multiplied by the
hourly rate for regular/nonovertime hours.
7 Since the General Counsel’s method does not actually distinguish
between overtime and nonovertime hours, the Respondent uses a series
of a calculations to extract out that portion of the General Counsel’s
backpay specification that is attributable to the nonovertime hours of
each discriminatee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672
which result in backpay determinations that are close approxi-
mations because no better basis exists for determining the exact
amount due.” Buncher Co., 164 NLRB 340, 341 (1967), enfd.
405 F.2d 787 (3d Cir. 1968), cert. denied 396 U.S. 828 (1969).
Any formula that approximates what the discriminatees would
have earned had they not been discriminated against is accept-
able if it is not unreasonable or arbitrary given the circum-
stances. Kansas Refined Helium Co., 252 NLRB 1156, 1157
(1980), enfd. sub nom. Angle v. NLRB, 683 F.2d 1296 (10th
Cir. 1982). The Board’s discretion is broad in its selection of a
backpay formula that is reasonably designed to produce ap-
proximations of the backpay due. Bagel Bakers Council of
Greater New York v. NLRB, 555 F.2d 304 (2d Cir. 1977);
NLRB v. Carpenters Local 180, 433 F.2d 934, 935 (9th Cir.
1970); see also NLRB v. Seven-Up Bottling Co., 344 U.S. 344,
346 (1953) (Board has broad discretion in fashioning a rem-
edy). When the General Counsel and the Respondent offer
alternative formulas, the administrative law judge must deter-
mine the most accurate formula. Regional Import & Export
Trucking Co., 318 NLRB 816, 820 (1995); Woodline Motor
Freight, Inc., 305 NLRB 6 fn. 4 (1991), enfd. 972 F.2d 222 (8th
Cir. 1992). Where there are uncertainties, or ambiguities, they
are to be resolved in favor of the wronged party, rather than the
wrongdoer, La Favorita, Inc., 313 NLRB at 903; WHLI Radio,
233 NLRB 326, 330–331 (1977).
A backpay formula that, like the one used in the compliance
specification, projects the discriminatees’ earnings during the
backpay period based on the discriminatees’ prediscrimination
earnings is “both conventional and noncontroversial.” East
Wind Enterprises, 268 NLRB 655, 656 (1984). The use of this
type of formula should not be departed from absent special
circumstances. Chef Nathan Sez Eat Here, 201 NLRB 343, 345
(1973). The Respondent contends that there are special cir-
cumstances warranting departure in this case because of the
long backpay period and a decline in earnings for hourly em-
ployees in the assembly and machine departments. The Re-
spondent notes that the Board’s Compliance Casehandling
Manual, while listing the past average earnings approach as one
of the standard methods for calculating backpay, also states that
such a formula may not be appropriate when the backpay pe-
riod is long since the conditions that existed prior to the unlaw-
ful action may have changed.8 The Respondent cites a number
of decisions in which the Board has approved the use of calcu-
lations based on the hours worked by comparable employees
during the backpay period to assess the amount due to employ-
ees. See, e.g., Midwest Hanger Co., 221 NLRB 911, 915
(1975), enfd. in relevant part 550 F.2d 1101 (8th Cir. 1977),
cert. denied 434 U.S. 830 (1977); International Trailer Co.,
150 NLRB 1205, 1208–1211 (1965); East Texas Steel Castings

8 It is well settled that the provisions of the Casehandling Manual are
not binding rules and are merely intended to provide guidance. See
Belle of Sioux City, 333 NLRB 98 (2001), Queen Kapiolani Hotel, 316
NLRB 655, 656 fn. 5 (1995). The Manual itself specifically provides
that its provisions are not “a form of authority binding . . . on the
Board.” See National Labor Relations Board Casehandling Manual,
Purpose of Manual.
Co., 116 NLRB 1336, 1337 (1957), enfd. 265 284 (5th Cir.
1958).9
After carefully considering the matter I have concluded that
the gross backpay formula used in the backpay specification is
reasonable and more accurately approximates what the Re-
spondent would have paid the discriminatees during the back-
pay period than does the formula forwarded by the Respondent.
This is not to say that the Respondent’s arguments do not have
some facial appeal. Certainly, if an employer shows that it
suffered a decline in its business that was unrelated to antiunion
animus, and which reduced the amount of work the discrimina-
tees would have performed during the backpay period, then a
formula that accounts for that decline might well be more accu-
rate than a formula based on the discriminatees’ own average
earnings prior to the backpay period. In this case, however, the
evidence does not establish either that there was a necessary
decline in the amount of work that would have been available
during the backpay period to be performed by the discrimina-
tees, or that any such decline was unrelated to its proven anti-
union animus. Moreover, even if one assumes that some for-
mula based on the earnings of comparable employees could be
more accurate in this case than the formula used in the compli-
ance specification, the precise method chosen by the Respon-
dent has been repudiated by the Board and tends to overstate
any decline in the hours that the discriminatees would have
worked.
The Respondent supports its contention that the work avail-
able to be performed by the discriminatees declined during the
backpay period by introducing excerpts from payroll records
that show the overtime hours and earnings for permanent em-
ployees during the backpay period. It also introduced summary
charts showing that, although there were new hires during the
backpay period, the company’s staff of permanent employees in
the machine and assembly departments never again reached the
levels from prior to the unlawful layoffs. The main problem
with this is that in the underlying unfair labor practices case it
was found that the Respondent significantly increased its use of
subcontractors after the unlawful March layoffs. 321 NLRB at
750. For example, after the layoffs the Respondent brought in
eight outside electricians to perform work in the assembly de-
partment that had previously been performed by the laid-off
workers. Id. Management attorney and witness Frederick A.
Stuart conceded when explaining the Respondent’s formula that
his calculations did not account for work done by subcontrac-
tors and temporary workers during the backpay period. (Tr.
339.) Nor did the Respondent offer any comparison of the use
of subcontractors prior to the backpay period with their in-
creased use during the backpay period. Without such a com-
parison one cannot conclude that the amount of overtime that
9 In Midwest Hanger, International Trailer, and East Texas Steel
Castings, it was the Regional Director and/or the General Counsel (not
the wrongdoer/respondent) who advocated use of a formula based on
comparable employees, and in both Midwest Hanger and International
Trailer the Board explicitly relied on the fact that the Regional Director
and General Counsel had broad discretion to choose a backpay formula
reasonably designed to approximate the backpay due. Midwest
Hanger, 221 NLRB at 915, International Trailer Co., 150 NLRB at
1207.
WELDUN INTERNATIONAL 673
would have been available to be performed by the discrimina-
tees had they not been unlawfully terminated was actually less
than it was during the period prior to the layoffs. See Coronet
Foods, Inc., 322 NLRB 837, 840 (1977) (the Board concludes
that a backpay formula based on a projection of the claimants’
pretermination earnings is more accurate than a formula based
on earnings of replacement workers where the lower level of
earnings of replacement workers was a result of the Respon-
dent’s discriminatorily motivated subcontracting of work pre-
viously done by the claimants), enfd. in relevant part 158 F.3d
782 (4th Cir. 1998).
In addition, I believe that the evidence casts real doubt on the
Respondent’s assumption that any decline in the amount of
work available would have occurred absent the Respondent’s
unlawful actions. Backpay will not be reduced based on a re-
duction in work that is itself the result of antiunion animus.
Coronet Foods, Inc., 322 NLRB at 840. In the underlying un-
fair labor practices decision, the Board stated that the Respon-
dent did not decide to restructure its machine department in
such a way as to reduce work at the plant until “around the very
time that the Union filed its [representation] petition.” The
Board found that the layoffs in the machine department, which
the Respondent had claimed were related to the restructuring
and resulting reduction in work, were really designed “to in-
timidate its employees and to discourage them from voting for
union representation.” There was no credible evidence “indi-
cating that the Respondent was planning a layoff of any kind
before the Union filed its petition.” 321 NLRB at 734. The
Board stated that the Respondent had demonstrated a willing-
ness “to keep the Union out by any means necessary.” 321
NLRB at 736. Although the Board does not say it in so many
words, the implication is clear—the Respondent had taken ac-
tions to reduce the amount of work being performed in-house
as part of its effort to keep the Union out. Indeed, it is hard to
imagine that the Respondent could have laid off approximately
20 percent of the work force in the assembly and machine de-
partments for discriminatory reasons without also reducing the
amount of work being performed in those departments. Under
the circumstances, I believe that any reduction in the work be-
ing performed by comparable employees during the backpay
period is tainted by the Respondent’s unfair labor practices, and
that there is substantial uncertainty as to whether such reduc-
tions would have occurred in the absence of the unlawful anti-
union actions.
That uncertainty is compounded by the Respondent’s unfair
labor practices during the backpay period. In April and June
1993, company officials publicly stated that the Union and
union activities were to blame for the layoffs and were the rea-
son why the laid off employees could not be recalled. In June
1993, the Respondent’s president threatened employees with
plant closure if they selected the Union. These pronounce-
ments by the Respondent do nothing to quiet doubts that any
reductions in work at the plant were untainted by the unlawful
antiunion campaign. Uncertainty about the amount of work
that would have been available to be performed by the dis-
criminatees during the backpay period is the result of the Re-
spondent’s unlawful actions and such uncertainty should there-
fore be construed in favor of the innocent victims of those
unlawful actions. La Favorita, Inc., 313 NLRB at 903; WHLI
Radio, 233 NLRB at 329–331.
The Respondent presented the testimony of Robert William
Kynast, who began with the Respondent in December 1995 as
general manager, and continued in that position until the Com-
pany was sold. However, since Kynast was not employed by
the Respondent until several years after the layoffs, he was not
in a position credibly to compare the amount of work available
during the prelayoff period relied on in the compliance specifi-
cation with the level of work available during the backpay pe-
riod. He also had no personal knowledge of the reasons for the
Respondent’s decision to restructure and reduce work at the
plant in 1993. He acknowledged, moreover, that at times dur-
ing the backpay period the company had to subcontract out
machining work because the Respondent’s own assembly de-
partment had greater needs than the Respondent’s machine
department could meet. He conceded that the business calcula-
tion about whether it was cost effective to subcontract work out
depended in part on how many employees were already em-
ployed and how much work there was to do. Thus, even if the
Respondent concluded during the backpay period that it was
cost effective to increase its use of subcontractors, that conclu-
sion was dependant on the prior decisions to unlawfully layoff
employees and to restructure to reduce the amount of work
performed. For these reasons, Kynast’s testimony did not per-
suade me either that there was a necessary decline in the
amount of work available to be performed by the Respondent’s
employees or that any such decline was unrelated to the Re-
spondent’s unlawful antiunion campaign.
Even if I had concluded that a formula based on the over-
time worked by comparable employees during the backpay
period was preferable to one based on the prediscrimination
earnings of the discriminatees, I would have found that the
precise method employed by the Respondent was both unac-
ceptable under Board precedent and less accurate than the for-
mula employed in the compliance specification. In order to
come up with its per-employee average overtime figure the
Respondent divided the overtime hours worked during the
backpay period among not only the comparator employees
actually working during the backpay period, but also among the
discriminatees who did not work at all during that period. This
spreads the overtime hours across a larger group than actually
worked them and reduces the per-employee average to a level
below what was really worked by comparable employees. The
Board has repeatedly stated that it is not appropriate to prorate
the earnings of comparator employees among the comparators
and the discriminatees when calculating average earnings.
Woodline Motor Freight, 305 NLRB 6, 8 (1991); Franchi Bros.
Construction Corp., 237 NLRB 1475, 1476 (1978); American
Casting Service, Inc., 177 NLRB 105, 106 (1969).
The Respondent does not cite any contrary Board decisions
on this point, but contends that its approach is proper based on
the assumption that the total number of overtime hours worked
by the Respondent’s employees would have remained constant
regardless of whether the discriminatees had been unlawfully
laid off or not. This contention is not only contrary to the
Board law cited above, but unpersuasive given the facts present
here. During the backpay period, the Respondent hired 23 new
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674
employees in the assembly department, (R Exh. 18), and 7 new
employees in the machine department, (R Exh. 17). The over-
all overtime hours were divided not only among the discrimina-
tees and the incumbent employees who were spared from the
layoffs, but also among the employees newly hired during the
backpay period. However, it is safe to assume that some of the
new hires would not have been necessary if not for the fact that
the Respondent had depleted its staff through the unlawful lay-
offs. Therefore, even if I were to accept that the total overtime
hours worked by permanent employees would have remained
constant absent the discrimination, I would still conclude that
the Respondent divided the total overtime hours among a larger
group of employees than would have actually been working
absent the discrimination. The Respondent’s calculations result
in a substantially reduced average overtime figure.10 This is an
additional basis for finding the Respondent’s approach less
accurate than the one used in the compliance specification.
The Respondent argues that even if one were to use a for-
mula based on the discriminatees’ own prelayoff earnings, the
method used in the specification is unfair because it is based on
the discriminatees’ prelayoff earnings only during calendar year
1992, and ignores the discriminatees’ lower earnings during the
10 or 11 weeks in 1993 prior to the layoffs. I conclude that, to
the contrary, it would unfairly skew the calculation if the dis-
criminatees’ average earnings were based on the 15-month
period from January 1992 through March 1993. The reason is
that the Respondent’s business generally tended to decrease
during the first quarter of each year, but picked up as the year
progressed. 321 NLRB at 749. To arrive at an average by
counting two of the traditionally slow quarters, but only one
each of the three more active quarters, in the calculation would
therefore depress the estimation of average hours worked. At
any rate, former employees testified credibly that they remem-
bered being approximately as busy during the first quarter of
1993 as they were during the first quarter of 1992. I conclude
that the specification does not significantly or unfairly skew the
results by relying on the last full calendar year prior to the lay-
offs, rather than a 15-month period that includes the early part
of 1993.
The Respondent complains that the backpay specification in-
corporates general wage increases received by incumbents dur-
ing the backpay period, but ignores the decrease in overtime
hours during the same period, and argues that this shows that
the General Counsel improperly “cherry picked” postlayoff
facts that favored the discriminatees. This argument is facile
but without real merit. The General Counsel argues, and I
agree, that any decrease in the overtime hours worked by com-
parable employees during the backpay period is tainted by the

10 The Respondent’s approach, moreover, is incoherent to the extent
that the Respondent argues that the total overtime hours worked by
comparable employees during the backpay period should be divided
among those workers and the discriminatees, but does not argue that the
total regular hours should be divided in the same manner. The Respon-
dent does not explain why it believes that the total number of overtime
hours would have remained constant and should be spread among both
discriminatees and nondiscriminatees, but that the total “pie” of regular
hours would have somehow expanded to provide an undiminished
average number of regular hours per week to each employee.
Respondent’s unfair labor practices. In contrast, the Respon-
dent does not even argue that there was reason to believe the
discriminatees would have been denied any of the wage in-
creases granted to comparable employees during the backpay
period. Nor did I see any basis in the record for suspecting that
the discriminatees would have been denied such raises. Thus,
the decision to include the salary increases in the backpay cal-
culations and the decision to exclude the alleged decreases in
available overtime, are each justified by the record evidence
relevant to that particular decision.
I conclude that the average earnings formula used in the
backpay specification and advocated by the General Counsel is
reasonable and is a more accurate approach than the Respon-
dent’s for estimating what the discriminatees would have
earned with the Respondent had they not been unlawfully laid
off. Therefore, I reject the Respondent’s objection to the back-
pay formula used in the backpay specification.
III. DISPUTES ABOUT AMOUNTS DUE TO
DISCRIMINATEES
A. The Backpay Period
The compliance specification is based on a backpay period
that begins at the time of the layoffs in March 1993 and extends
for most discriminatees until October 16, 1998. The latter date
is 2 weeks after the date of the Respondent’s letters offering the
discriminatees unconditional reinstatement. The Respondent
raises three general objections to the use of this backpay period.
First, the Respondent claims that, even absent the discrimina-
tion, the 18 discriminatees who worked in the machine depart-
ment would have been laid off by the end of 1993 as a result of
the decision to limit machining work to jobs for companies
related to the Respondent’s parent corporation. Therefore, the
Respondent argues, the backpay period for these discriminatees
should terminate on December 31, 1993. Second, the Respon-
dent contends that the backpay period for other discriminatees
should end immediately as of the date of the October 2, 1998
letters offering unconditional reinstatement, not 2 weeks later
on October 16. Third, the Respondent alleges that in October
1994 offers of reinstatement, or communications regarding
reinstatement, sufficient to toll the backpay period were made
to four discriminatees.
1. Machine department discriminatees
A respondent may limit its backpay liability by showing that
employees laid off for unlawful reasons would have been laid
off for lawful reasons at a later date. So-White Freight Lines,
301 NLRB 223 (1991), enfd. 969 F.2d 401 (7th Cir. 1992).
However, “the burden [is] on [the Respondent] to prove with
certainty when the discriminatees would have been laid off,
absent discrimination.” Fruin-Colnon Corp., 244 NLRB 510,
512 (1979); see also Daniel Construction Co., 276 NLRB 1093,
1097 (1985) (“The burden is on the Respondent to show that,
following a discriminatory layoff or discharge, the discrimina-
tees would have been laid off nondiscriminatorily.”); Masco
Products, Inc., 198 NLRB 424 (1972) (respondent did not meet
its burden to prove that discriminatee would have been lawfully
discharged at a later date had his discriminatory discharge not
occurred); Buncher Co., 164 NLRB at 340–341 (the burden of
WELDUN INTERNATIONAL 675
proving that jobs were not available for discriminatees during
the backpay period is generally on the Respondent). A respon-
dent cannot succeed in closing the backpay period based on
mere speculation that the discriminatee would have subse-
quently been laid off for legitimate reasons. F&W Oldsmobile,
272 NLRB 1150, 1151 (1984).
As noted above, the Respondent argues that its decision to re-
structure the Company’s machine department to perform work
exclusively to meet the needs of companies related to its parent
corporation, and not for outside customers as well, would have
led the Respondent to discharge the machine department dis-
criminatees by the end of 1993 even if those discriminatees had
not been discharged for unlawful reasons in March 1993. This
contention is not persuasive for a number of reasons. First, it is
the same argument that the Respondent offered in the underlying
unfair labor practice proceeding to justify the March 1993 lay-
offs, and it was rejected by the Board. Sumco Mfg. Co., 267
NLRB 253, 254 fn. 2 (1983) (a respondent is not permitted to
relitigate in a compliance proceeding issues that have been liti-
gated in the underlying unfair labor practice proceeding), enfd.
746 F.2d 1189 (6th Cir. 1984), cert. denied 471 U.S. 1100
(1985). The Board stated that there was a complete lack of evi-
dence that the Respondent had even considered laying off em-
ployees for this reason before it became aware of the union
campaign. The Board noted that the Respondent did not make
the decision to restructure the machine operation until the end of
February—”around the very time that the Union filed its [repre-
sentation] petition.” Now the Respondent raises precisely the
contention previously rejected by the Board, except that the
Respondent claims the same restructuring justifies the layoffs in
December 1993, instead of in March 1993. The Respondent
does not tie this assertion to any event occurring between the
March layoffs and December that would make the argument
more persuasive for the later date than for the earlier one. In-
deed, it is not clear why the Respondent picks December 31,
1993, as the supposed cutoff rather than any other date during
1993, or for that matter, during the entire backpay period. Not
only were there no further layoffs between March and the end
1993,11 (R. Exh. 17), but during that period the Respondent was
publicly stating that the real reason the discriminatees had been
laid off and were not being recalled was the Union and the un-
fair labor practices charges, not a lack of work. During the hear-
ing on the compliance specification, the Respondent did not call
a single Weldun official who was personally involved in the
1993 decision to lay off the discriminatees and restructure the
machine department to testify about the reasons for those deci-
sions. The Respondent’s contention that it would have laid off
the machine department employees by the end 1993 for legiti-
mate reasons, even if it had not previously laid them off for

11 The Respondent notes that Sec. 10535.5 of the Compliance Case-
handling Manual recognizes that the Region should take into account
whether an employer’s operations and employee complement are re-
duced during the backpay period. It is well settled that that the provi-
sions of the Casehandling Manual are not binding rules and are merely
intended to provide guidance. See supra, fn. 8. At any rate, in this case
there were no reductions in employee complement between the unlaw-
ful layoffs and the end of 1993.
unlawful and discriminatory reasons, is speculative and lacks
merit.
Another infirmity with the Respondent’s contention is that
the Respondent fails to show that if it had laid off employees
for lawful reasons at the end of 1993 the discriminatees, rather
than other employees, would have been the ones laid off. See
Buncher, 405 F.2d 787, 790 (3d Cir. 1968), cert. denied 396
U.S. 828 (1969). Following the unlawful layoffs in March
1993, the Respondent retained 34 of the 53 employees working
in the machine department and there were no further layoffs in
1993.12 No evidence was presented at the compliance hearing
regarding the standards that would have guided the Respon-
dent’s selection of particular machine department employees
for layoff or retention at the end of 1993 and the Respondent
did not present evidence at the compliance hearing to show that
any of the discriminatees had shortcomings that the retained
employees did not have.13 The Respondent’s claim that the
discriminatees from the machine department would have been
the ones selected for any lawful layoff at the end of 1993 is
“mere speculation” and does not justify closing the backpay
period as of that time.
Even if one believes that there is uncertainty as to whether
some of the discriminatees would have been retained after the
end of 1993, that uncertainty does not justify closing the back-
pay period. The Board is not infrequently faced with situations
where it is impossible to know with certainty what would have
happened in the absence of a respondent’s unfair labor practices,
and in such situations the Board has broad discretion to devise a
remedy that effectuates the purposes of the Act. International
Paper Co., 319 NLRB 1253, 1278 (1995), enf. denied 115 F.3d
1045 (D.C. Cir. 1997); see also Bagel Bakers Council of Greater
New York v. NLRB, 555 F.2d 304 (2d Cir. 1977); NLRB v. Car-
12 In the assembly department, 73 of the 83 employees remained af-
ter the March layoffs and there were no further layoffs in 1993. R.
Exh. 18.
13 In its brief, the Respondent makes the remarkable claim that: the
“Board specifically found that Weldun selected the 29 employees for
layoff for legitimate reasons and not because of their union activities.
The employees were selected because they did not possess as [sic] the
higher skills or level of performance as those employees who remained
working in the machine department.” R. Br. at 23. It is not surprising
that the Respondent does not state where the Board “specifically found”
this since the Board did not do so. Rather the Board found that while
the Respondent did not select particular employees for layoff because
of their individual union or protected activities, the Respondent carried
out the mass layoff “to intimidate its employees and to discourage them
from voting for union representation.” The Board stated that the record
was “devoid of any documentation or credited testimony indicating that
the Respondent had plans for a layoff of any kind prior to the filing of
the [representation] petition.” The Board did not state or suggest that
there were “legitimate” reasons based on “skill or level of perform-
ance” for the terminations of any of the discriminatees. Indeed, a num-
ber of the workers terminated from the machine department in the
unlawful layoff had over 15 years experience with the Respondent, and
at least two had worked for the Company for more than 20 years. See
Tr. 65 (Robert Dunning began with Respondent November 29, 1965);
Tr. 97 (David Mensinger began with Respondent April 28, 1970); Tr.
124 (David Pecoraro began with Respondent July 7, 1977); Tr. 133
(Kurt Lindhorst started with Respondent August 30, 1977); Tr. 179–
180 (Delmar Kirksey began with Respondent in 1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676
penters Local 180, 433 F.2d 934, 935 (9th Cir. 1970). In this
case the uncertainty regarding this issue was caused by the Re-
spondent’s own decision to unlawfully lay off the discriminatees
in March 1993. It is appropriate, therefore, to construe such
uncertainty against the Respondent, whose unlawful action cre-
ated it, rather than against the innocent victims of the unlawful
action.” The most elementary conceptions of justice and public
policy require that the wrongdoer shall bear the risk of the un-
certainty which his own wrong has created.” Bigelow v. RKO
Radio Pictures, 327 U.S. 251, 265 (1946); see also International
Paper Co., 319 NLRB at 1278 (same).
I conclude that the Respondent has failed to meet its burden
of showing that the discriminatees in the machine department
would have been laid off for lawful reasons at the end of 1993.
Therefore, I reject the Respondent’s objection that the backpay
period should close for those discriminatees as of December 31,
1993.
2. 1998 reinstatements
The Respondent also argues that, for any discriminatees
whose entitlement to backpay did not end earlier, the backpay
period should close on October 2, 1998,—the date of the letters
offering unconditional reinstatement to all discriminatees. The
compliance specification closes the backpay period 2 weeks
later on October 16, 1998. The General Counsel argues that the
date used in the compliance specification is reasonable because
after a layoff period of over 5 years the discriminatees are per-
mitted a reasonable period of time to get their affairs in order
before returning to work. The General Counsel argues that the
Respondent itself recognized that a period of adjustment would
be necessary since the Respondent gave the discriminatees until
October 16, 1998, to respond to the offers of reinstatement.14
The offers of reinstatement did not require the discriminatees to
report before October 26, 1998, but did not prohibit them from
returning earlier.
The Board has held that the backpay period is not tolled
when an offer of reinstatement is made, but rather continues to
run until the date of actual reinstatement, the date of rejection
of the offer of reinstatement, or, if the offeree does not reply,
the date of the last opportunity to accept. C-F Air Freight, Inc.,
276 NLRB 481, 482 (1985); Seyforth Roofing Co. of Alabama,
263 NLRB 368, fn. 2 (1982); Southern Household Products,
203 NLRB 881, 882 (1973).Therefore, the Respondent’s argu-
ment that backpay should be tolled immediately as of the date
of the October 2, 1998 letter, fails. The Respondent did not
establish that any of the discriminatees for whom relief is
sought during the 2-week period had actually been reinstated by
October 2, or had declined reinstatement by October 2, or had
allowed a deadline for response to pass by October 2 or any
other date prior to October 16.15 Indeed, the Respondent has

14 The October 2, 1998 letter offering reinstatement gave the dis-
criminatees until October 12, 1998, to respond. However, Robert Ky-
nast, who signed the offers, testified that a subsequent letter may have
extended that deadline to October 16, 1998.
15 One of the discriminatees, Meryl Ray Zion, testified credibly that
after being reinstated he worked only 3 days before the Respondent
ceased operations, which occurred on or about October 30. This indi-
cates that, at least in Zion’s case, actual reinstatement did not occur
not shown that as of October 2, the discriminatees had even
received the letters offering reinstatement. Under the circum-
stances, including the lengthy backpay period and the lack of
evidence that any of the triggers for closing the backpay period
were satisfied prior to October 16, I conclude that the October
16 date allows a reasonable period of readjustment and effectu-
ates the policies of the Act. The purpose of a Board remedy is
to undo the effects of a violation of the Act. NLRB v. Seven-Up
Bottling Co., 344 U.S. at 346; Phelps Dodge Corp v. NLRB,
313 U.S. 177, 194 (1941). That purpose would not be ad-
vanced if the backpay period were tolled before the discrimina-
tees could reasonably be expected to return to work pursuant to
an offer of reinstatement.16

until after both the date forwarded by the Respondent and the date
forwarded by the Regional Director and the General Counsel. In addi-
tion, since essentially all of the discriminatees accepted reinstatement
there is not any issue about the backpay period closing because a dis-
criminatee declined reinstatement or failed to respond. The only dis-
criminatee who the record definitively shows did not accept a rein-
statement offer was Jerry Thompson, who had died. The General
Counsel seeks no backpay for Thompson for the period after the first
quarter of 1998, see General Counsel’s Amended Schedule E26 (at-
tachment to General Counsel’s brief), and therefore, the offer of rein-
statement in October of 1998 is not an issue with respect to the backpay
sought for Thompson. One discriminatee, Eugene Boone, had moved
from Michigan to Virginia prior to when the Respondent offered him
reinstatement in 1998. However, Boone’s uncontradicted testimony
was that he accepted the reinstatement offer and returned to work with
the Respondent.
16 The Respondent cites Citizen’s Hotel Co., 131 NLRB 834 fn. 3
(1961), enfd. 313 F.2d 708 (5th Cir. 1963), a 40-year-old decision in
which the Board denied two discriminatees backpay for the period
between the time of the employer’s requests that the discriminatees
return to work immediately and the discriminatees’ actual returns to
work. In that case, the employer asked the two discriminatees to return
to work “immediately,” but the Board found that the discriminatees did
not return “promptly.” To the extent that Citizen’s Hotel may have
once stood for the general principle that backpay is always tolled im-
mediately as of the date when an offer of unconditional reinstatement is
made, it has been overruled by subsequent decisions such as C-F Air
Freight, Inc., 276 NLRB at 482, Seyforth Roofing Co. of Alabama, 263
NLRB at 368 fn. 2, and Southern Household Products, 203 NLRB at
882. Moreover, the facts in Citizen’s Hotel, are different in significant
ways from those present here. In Citizen’s Hotel the period between
the layoffs and the offers of reinstatement was less than two months.
Under those circumstances one would expect that the discriminatees
would need little if any time to adjust before returning to work. In the
instant case, by contrast, it was over five years before the Respondent
offered unconditional reinstatement to the discriminatees. Under those
circumstances, a return to work as of October 16—2 weeks after the
offer—is still “prompt.” Secondly, in Citizen’s Hotel the employer
asked the discriminatees to return “immediately.” In the instant case
the Respondent did not ask the discriminatees to return to work imme-
diately. Rather the Respondent informed the discriminatees that they
had until October 26 to report for work. While the Respondent did not
state that the discriminatees were precluded from returning immedi-
ately, it also did not state that the discriminatees’ immediate return was
either possible or desired. Even if one believes that Citizen’s Hotel has
not been overruled, its extension to the set of facts present here would
not be reasonable or fair.
WELDUN INTERNATIONAL 677
I conclude that the Respondent’s objection to the specifica-
tion’s grant of backpay for the period from October 2 to Octo-
ber 16, 1993, must be rejected.
3. 1994 reinstatement offers and inquiries
The Respondent alleges that it made an earlier round of rein-
statement offers and inquiries in October 1994, and that those
contacts were sufficient to toll the backpay period for four indi-
viduals—Rex Jackson, Timothy Hunt Sr., David Sinner, and
Meryl Zion.17 An offer of reinstatement does not toll backpay
unless the position offered is substantially equivalent to the
position the person held previously. Thalbo Corp., 323 NLRB
630, 637–638 (1997), enfd. 171 F.3d 102 (2d Cir. 1999); Sumco
Mfg. Co., 267 NLRB at 258. A position is not substantially
equivalent if it is on a different shift, id., Associated Grocers,
295 NLRB 806, 807 (1989), does not offer equivalent compen-
sation, or does not include restoration of the seniority acquired
prior to an unlawful discharge, Thalbo Corp., 323 NLRB at
637–638, Sumco Mfg. Co., 267 NLRB at 258.
In 1994, the individuals at issue were not offered reinstate-
ment to positions substantially equivalent to the ones they had
prior to the unlawful layoff, and therefore their backpay periods
are not tolled. Discriminatee Jackson was offered reinstatement
to a different position than he held before the unlawful layoff, at
a lower rate of pay, on a different shift. Discriminatee Hunt was
offered reinstatement to a position in a different department
from the one he had worked in before the layoff, and was told
that he would have no seniority for the first year and only 75
percent of his prediscrimination seniority after the first year.
Discriminatee Sinner was offered reinstatement to a position that
involved more limited duties and tasks than his prelayoff posi-
tion, and was told that his seniority would not be restored for 12
to 18 months. These offers were not for substantially equivalent
employment and do not toll the backpay periods for Jackson,
Hurt, and Sinner. Nor should amounts that the discriminatees
might have earned had they accepted the positions offered by the
Respondent in 1994 be deducted from their backpay awards.
The Board has held that an employee may decline to work for a
respondent in a position that is not substantially equivalent to his
or her prediscrimination position without affecting backpay.
Sumco Mfg. Co., 267 NLRB at 258.
Zion was never offered reinstatement to any position. He
telephoned the Respondent in response to the October 1994
letter, and was told what openings the Respondent was seeking
to fill. It is well settled that an offer of employment must be
specific, unequivocal and unconditional in order to toll backpay
and satisfy a respondent’s remedial obligation.” Holo-Krome
Co., 302 NLRB 452, 454 (1991), enf. denied 947 F.2d 588 (2d
Cir. 1991). “Merely indicating that [the company] ha[s] an
immediate opening is not the same as offering the position to
[the discriminatee].” Thalbo Corp., 323 NLRB at 637. More-
over, Zion testified without contradiction that he lacked the
skills required to perform any of the jobs that were mentioned
to him when he telephoned the Respondent. Under the applica-

17 A fifth discriminatee, Delmar Kirksey, was actually reinstated at
this time, however, the General Counsel seeks no backpay for him for
the period after such reinstatement.
ble standards, Zion’s contact with the Respondent does not toll
his backpay.
I conclude that the Respondent’s objection based on the of-
fers of reinstatement and inquiries regarding reinstatement in
October 1994 must be rejected.
B. Settlement Agreements
On the same day that the discriminatees were permanently
laid off, the Respondent presented them with written settlement
agreements offering enhanced severance benefits in exchange
for the discriminatees releasing the Respondent “from any and
all claims of any nature whatsoever” relating to their employ-
ment, including any claims under the National Labor Relations
Act. Five of the discriminates—Jim Doud, Robert Dunning,
Delmar Kirksey, Kurt Lindhorst, and Jerry Thompson executed
the releases and received enhanced severance benefits. The
Respondent argues now, as it did in the unfair labor practices
proceeding, that the private settlement agreements preclude any
backpay to these five employees. The General Counsel argues
that the private settlement agreements should not preclude these
five discriminatees from receiving backpay awards, but that the
amount of severance pay received should be deducted from the
backpay awards in order to prevent unjust enrichment.18 The
General Counsel argues that in the underlying unfair labor prac-
tices case the Board already considered, and rejected, the Re-
spondent’s claim that all backpay is precluded by the settlement
agreements.
I agree with the General Counsel that the Respondent is at-
tempting to relitigate a matter that was already ruled on by the
Board in the underlying unfair labor practices case. The Board,
in its prior decision, discussed the Respondent’s contention
regarding the private settlement agreements, but issued an Or-
der that specifically provided that Doud, Dunning, Kirksey,
Lindhorst and Thompson were all entitled to both reinstatement
and make-whole relief. 321 NLRB at 734 fn. 6 and 737. The
Board stated that it was “limiting the inquiry” at the compliance
stage to how the amounts provided by the settlement agree-
ments would affect the backpay available, and the Board ex-
plicitly rejected the Respondent’s argument that the agreements
would preclude the reinstatement remedy. Id. Moreover, the
Board distinguished the settlements in this case from those in
18 The General Counsel states that the severance payments received
by the discriminatees who did not execute settlement agreements
should also be deducted from their backpay awards in order to avoid
unjust enrichment. GC Br. at 18; see also Sheller-Globe Corp., 296
NLRB 116, 117 (1989) (severance payments legitimate offset to back-
pay). The original compliance specification did not provide for such a
setoff and the Respondent submitted a response which argued that it
should have. GC Exh. 1(i), par. 17(b). The General Counsel has sub-
mitted revised schedules for the claimants who received severance
benefits, and these schedules setoff the severance payments against the
backpay claimed. There no longer appears to be disagreement between
the parties regarding this objection.
At trial the Respondent withdrew its argument that there should be a
setoff for vacation pay received at the time of the terminations. Tr.
364. It became clear from the testimony of witnesses that the discrimi-
natees accumulated the full year’s worth of vacation pay at the begin-
ning of each calendar year. Therefore, the vacation pay was already
due them at the time of the terminations and should not be set off.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
Hughes Christensen, 317 NLRB 633 (1995), a case in which
the agreements were found to bar a remedy. The Board noted
that in Hughes Christensen the employees who signed the set-
tlements were members of a union negotiating committee and
that they did not agree to the settlements until after their
charges had been dismissed by the Board’s regional director for
lack of merit. In the instant case, the discriminatees not only
did not belong to a union negotiating committee, but at the time
they signed the agreements they were apparently unaware that
the Union had filed or was intending to file charges relating to
the layoffs. In addition, the discriminatees in the instant case
signed the releases before the Board had reached any decision
at all regarding the legality of the layoffs. The Board’s Deci-
sion and Order in the underlying unfair labor practices case are
susceptible to only one reasonable interpretation—i.e., that the
agreements were not enforceable to completely preclude a
backpay remedy.
The Respondent argues that Hughes Christensen controls the
instant case, and dictates that I deny any backpay at all to the
five discriminatees who signed settlement agreements. The
Respondent states that in the underlying unfair labor practices
case the Board only held that there “might” be significant dis-
tinguishing features between the instant case and Hughes
Christensen. (R. Br. 27.) Contrary to the Respondent’s repre-
sentation, the Board did not state that Hughes “might” be dis-
tinguishable from the instant case. Rather, the Board stated that
the “settlement agreements [in the instant case] are distinguish-
able from those at issue in Hughes” 321 NLRB at 734 fn. 6
(emphasis added), and indicated that this was a basis for limit-
ing the inquiry regarding the effect of those settlements on the
remedy. The Board has already made its decision on this issue,
and has held that the settlement agreements do not preclude
make-whole relief for the five employees who signed them. I
am not free to re-visit the merits of the Respondent’s arguments
that the agreements meet standards for enforceability or that
Hughes controls the instant case. Rather, I accept the General
Counsel’s revised schedules in which the added severance pay
amounts provided for under the settlements are deducted from
the gross backpay.19
I conclude that the Respondent’s objection that the settle-
ment agreements preclude any relief for the five discriminatees
who signed them must be rejected.

19 Pursuant to the settlement agreements, the Respondent also made
payments to cover the cost to the employees of continuing their cover-
age under the Respondent’s health plans. Since these payments were
made in lieu of the insurance that that the Respondent would have
provided to the discriminatees if not for the unlawful layoffs, I find that
those amounts should not be offset against the backpay awards.
C. Issues Affecting Individual Discriminatees20
1. Eugene Boone
Facts: At the time he was unlawfully laid off, Eugene Boone
was working for the Respondent in the assembly department
earning $11.50 per hour. Soon after being laid off, Boone be-
gan interim employment with Detroit Tool Industries (Detroit
Tool). Boone continued working there until he voluntarily
ended his employment on April 5, 1996, so that he and his wife
could move to Jonesville, Virginia, and care for his wife’s ail-
ing mother. At the time Boone left Detroit Tool Industries he
was earning $12.50 per hour. Had he continued to work for the
Respondent until that time he would, apparently, have been
earning approximately $13.10 per hour.
After moving to Virginia, Boone was unemployed briefly
and then began a job with a tree service at a wage of $5 per
hour. He subsequently left that job for a position with an elec-
trical contractor where he started at $8.50 per hour and eventu-
ally was paid $10.50 per hour.
Analysis: The compliance specification, as amended, in-
cludes $17,628.15 in net backpay and $4961.65 in medical
costs for Boone. These sums cover the period from the unlaw-
ful layoff through October 16, 1998. The Respondent argues
that backpay ceases to accrue when a discriminatee leave the
area for personal reasons, rather than as part of an effort to
obtain employment, and cites precedent supporting that posi-
tion. (R. Br. at 30), citing Laborers Local 158, (Contractors
Assn. of E. Pa.), 301 NLRB 35, 41 (1991), enfd. 952 F.2d 1393
(3d Cir. 1991); Duroyd Mfg., 285 NLRB 1, 2 (1987) (discrimi-
natee’s backpay period tolled when he moved from the Re-
spondent’s vicinity to his invalid parents’ home, where he
planned to stay, “job or no job”). The General Counsel con-
cedes that Boone voluntarily reduced his earnings when he left
Detroit Tool on April 5, 1996, and went to work in lower pay-
ing jobs in Virginia. With its brief the General Counsel has
submitted amended backpay schedules to reflect interim earn-
ings at the higher level Boone would have received had he con-
tinued to work for Detroit Tool. Under this approach Boone
would still receive backpay for the period that he worked in
Virginia, but only for the difference between what he would
have earned had he continued to be employed by the Respon-
dent and what he would have earned had he remained at his job
in Michigan with Detroit Tool.
The evidence indicates that Boone did not leave Michigan
and his job with Detroit Tool because of any dissatisfaction
with that job or because of a desire to mitigate backpay, but
rather because of the unrelated personal reasons described
above. At the time he left he was earning wages almost as high
20 During he compliance hearing, the Respondent withdrew its objec-
tions: that the medical expenses for Jerry Boone had been discharged in
bankruptcy and would not have been covered under the Respondent’s
insurance plan, Tr. 428; that the out-of-pocket expenses for Steven
Collins were excessive and not accurate, Tr. 368; that the medical ex-
penses for John Delaney were improper, Tr. 156; that the medical ex-
penses for David Mensinger were excessive and not accurate, Tr. 100–
101; and that Jeff Steinke was not entitled to backpay after the end of
1993, Tr. 11. The General Counsel withdrew the claim for $104,736.40
in principal for discriminatee Dennis Meyers. Tr. 8.
WELDUN INTERNATIONAL 679
as he would have received had he been retained by the Respon-
dent. I believe the evidence gives every reason to believe that
Boone would have left the Michigan area for personal reasons
when he did even if he had still been working for the Respon-
dent. The precedent cited by the Respondent supports the
proposition that backpay is tolled when an individual leaves the
area for personal reasons unrelated to the unfair labor practices.
The General Counsel has offered no contrary authority to sup-
port its approach regarding this issue. Therefore, I conclude
that the Respondent is correct that Boone’s backpay should be
tolled after the first quarter of 1996.21
The General Counsel also seeks compensation for certain
out-of-pocket medical expenses incurred by Boone during the
backpay period that would have been paid by his health insur-
ance had he continued to be employed by the Respondent. In
its response to the compliance specification, the Respondent
contended that Boone was not entitled to some of these ex-
penses because they were not covered by the Respondent’s
health insurance, and because Boone’s debts, including his
medical-related debts, were discharged in bankruptcy. During
the compliance hearing, the Respondent withdrew those objec-
tions. (Tr. 428.) I conclude that Boone is entitled to the medi-
cal expenses claimed for the period prior to when he relocated
to Virginia for personal reasons.22
2. Dawn Condon
Facts: Dawn Condon was an electrical technician in the Re-
spondent’s assembly department prior to being unlawfully laid
off on March 11, 1993. After the layoff she worked at Wal-
Mart for 2 weeks and then as an electrical technician at Excel
Controls (Excel) from November 1993 until April 1994. Both
Wal-Mart and Excel were farther from her home than the Re-
spondent’s facility. After Condon left Excel she started work
for Dane Systems (Dane), which was about the same distance
from her home as was the Respondent.
Analysis: The compliance specification includes an assess-
ment of the additional commuting expenses that Condon in-
curred in order to maintain her interim employment. The Board
considers these types of expenses to be an offset to the amount
of interim earnings and thus recoverable. Sargent Electric Co.,
255 NLRB 121 (1981), enfd. 676 F.2d 687 (3d Cir. 1982); Air-
craft & Helicopter Leasing & Sales, 227 NLRB 644, 644-645
(1976), enfd. 570 F.2d 351 (9th Cir. 1978). In its response to
the compliance specification, the Respondent objected that the
expenses claimed for Condon were excessive and not accurate.
The burden of establishing that such expenses were not in-

21 I conclude that Boone’s net backpay is $4817.95. This is based on
the backpay figures for the period from the first quarter of 1993 through
the first quarter of 1996 that are stated in the General Counsel’s
amended schedule E-1, which was attached to the General Counsel’s
Brief. Amended Schedule E-1 states a total net backpay figure of
$17,628.15, but this is for the longer backpay period that I have re-
jected.
22 I conclude that Boone is entitled to $2002.00 in medical expenses.
This is based on the figures stated in General Counsel’s schedule F-1
for the period ending with the first quarter of 1996. GC Exh. 1(c). The
schedule states total medical expenses of $4961.65, but that includes
medical expenses for the longer backpay period that I have rejected.
curred, or were excessive or inaccurate is on the Respondent.
United Enviro Systems, 323 NLRB 83, 86 (1997); Sargent
Electric, 255 NLRB at 121. The fact that expense computa-
tions are based on estimates does not preclude their acceptance.
Aircraft & Helicopter, 227 NLRB at 645.
At the hearing, the General Counsel withdrew its claim that
Condon was entitled to any commuting expenses for the period
she worked at Dane, (Tr. 151), but maintains that Condon is
entitled to commuting expenses for the periods when she
worked at Wal-Mart and Excel. Based on Condon’s uncontra-
dicted testimony that her commutes to Wal-Mart and Excel
were both significantly longer than her commute to the Re-
spondent, I conclude that the revised expenses for Condon
stated in the General Counsel’s amended schedule E-3 are
proper, and reject the Respondent’s objection.
3. Robert Dunning
Facts: Robert Dunning worked for the Respondent from
November 29, 1965, until the Respondent unlawfully laid him
off on March 12, 1993. At the time he was laid off, Dunning
was a group leader/top bench man in the machine department.
Dunning was one of the individuals who signed the settlement
agreement that the Respondent presented to him at the time of
the unlawful layoff. Under this settlement Dunning received,
inter alia, an insurance premium advance of $2000 to continue
his coverage under the Respondent’s health insurance plan for a
period of 6 months. Dunning testified that he chose not to use
the advance premium for that purpose because he was covered
under the health insurance that his wife had with her employer,
and because the cost of continuing the insurance he had with
the Respondent was high.
In 1993, Dunning paid $1.59 per week for the family dental
plan he had through the Respondent. That family dental plan
covered 100 percent of preventive and maintenance dental ser-
vices. Although Dunning found interim employment after be-
ing unlawfully laid off by the Respondent, his interim employer
did not have a dental plan and his wife’s health plan covered
only a small portion of dental expenses.
Analysis: The compliance specification includes $899.3023
in dental expenses for Dunning. Compliance specification,
schedule F-5 (GC Exh. 1(c)). In its response to the compliance
specification, the Respondent argues that not all the dental ex-
penses that the Respondent claims for Robert Dunning were
covered by the Respondent’s health insurance.
It is customary to include medical expenses that would have
been covered under a fringe benefit plan as part of make-whole
relief. G. Zaffino & Sons, 289 NLRB 571, 573 (1988). The
General Counsel has the burden of showing the medical ex-
penses and of showing that the Respondent’s insurance pro-
gram would have covered them. Big Three Industrial Gas &
Equipment Co., 263 NLRB 1189, 1198 (1982). The Respon-
dent then has the burden of introducing any evidence that
would negate or mitigate its liability. G. Zaffino & Sons, 289
NLRB at 573.
23 The compliance specification provides for a total of $1649.30 in
medical expenses for Dunning. This figure includes chiropractic ex-
penses that the Respondent is not contesting, as well as the dental ex-
penses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680
I believe that the General Counsel has presented sufficient
evidence to substantiate the amount of covered dental expenses
claimed in the compliance specification. The General Counsel
introduced an account summary from the dental office where
Dunning and his wife were treated. (GC Exh. 4.) Although the
charges there do not correspond precisely to the expenses in-
cluded in the compliance specification, the records indicate that
Dunning made payments of over $1800 for dental services from
October 199324 until the end of the backpay period. As noted
above, Dunning’s plan would have covered 100 percent of all
preventive and maintenance dental services. The premiums he
would have paid for dental insurance over the course of the
291-week backpay period had he continued to work for the
Respondent would have totaled $462.69, assuming that the
weekly cost to Dunning of $1.59 had remained constant.
Therefore, if one deducts the premiums that Dunning did not
have to pay from the covered dental expenses he did have to
pay, see Stage Employees IATSE Local 644 (King-Hitzig), 272
NLRB 1234, 1235 (1984) (premiums the discriminatees would
have paid for medical insurance are deductible from gross
backpay), the result is a figure in excess of that sought in the
compliance specification.
William H. Davis III, who oversaw employee benefits and
compensation for the Respondent, testified at the compliance
hearing. Davis did not opine that any of the dental expenses
listed for Dunning in the compliance specification or the dental
account history would not have been 100- percent covered un-
der the family dental plan that Dunning had with the Respon-
dent.25 Nor does the Respondent’s brief allude to any evidence
showing that specific dental expenses claimed for Dunning
would not have been fully covered under its plan.26
I conclude that the dental expense figure of $899.30 included
in the compliance specification is reasonable and supported by
the record.

24 I do not include dental expenses for the first 6 months after Dun-
ning agreed to the settlement, since those presumably would have been
covered had Dunning used the $2000 insurance premium advance that
the Respondent provided to him for the intended purpose of continuing
his health insurance for 6 months. As noted supra, I have accepted the
General Counsel’s argument that the $2000 was paid in lieu of insur-
ance that the Respondent would have provided had it not unlawfully
terminated Dunning, and therefore have not deducted the $2000 from
the backpay award. Given that, I believe that it would be unfair to also
hold the Respondent responsible for medical expenses that would have
been paid by the plan during the 6-month period after the layoff if
Dunning had used the $2000 insurance premium advance to continue
his insurance. The medical expenses stated for Dunning in the compli-
ance specification also do not include any expenses incurred during that
6-month period, schedule F-5 (GC Exh. 1(c)), suggesting that Acting
Regional Director may have reached the same conclusion.
25 Davis testified that for orthodoncia work there was a $50 deducti-
ble, after which the plan would pay 50 percent of the costs up to a
lifetime total of $1000. Orthodoncia refers to the dental specialty of
correcting abnormally aligned or positioned teeth. The American Heri-
tage Dictionary, College Edition (1976), p. 928. None of the services
indicated in the account history for Dunning appear to fall into this
category.
26 The Respondent does maintain that Dunning is entitled to no relief
at all since he executed a settlement agreement. As discussed supra,
that contention has been rejected by the Board.
4. David Lyle Mensinger
Facts: David Lyle Mensinger began working for the Re-
spondent on April 28, 1970, and was unlawfully laid off on
March 12, 1993. Mensinger found interim employment with
South Shore Tool, and subsequently had surgery that prevented
him from working during a period of recovery lasting 6 weeks
from Thanksgiving until the end of the year. Mensinger testi-
fied that the 6-week period “probably” occurred in 1998, but
that it could also have occurred in 1997. (Tr. 103.)
Analysis: The compliance specification, as amended, in-
cludes net backpay of $34,674.49 for Mensinger. The Respon-
dent states that Mensinger is not entitled to the portion of this
backpay figure attributable to the 6-week period when
Mensinger was recuperating from surgery “in 1997.” The
Board has held that a discriminatee is not entitled to backpay
for a period during which he or she was unavailable for work.
See Superior Export Packing Co., 299 NLRB 61, 65–66
(1990); American Mfg. Co., 167 NLRB 520 (1967). The Re-
spondent has the burden of establishing the defense that a dis-
criminatee was unavailable for work during the backpay period.
Superior Export Packing, 299 NLRB at 66;
NLRB v. Brown & Root, 311 F.2d 447, 454 (8th Cir. 1963). I
conclude that the Respondent has failed to meet this burden.
Mensinger testified that the period when he was unavailable to
work for medical reasons was “probably” in 1998, during the
period from Thanksgiving to the end of the year. If so, it was
outside the backpay period, which ended in October 1998, and,
thus, would not affect the backpay amount owed. Mensinger
did allow that the period of unavailability may actually have
occurred in 1997, in which case it would be within the backpay
period and would justify a setoff. There was no evidence how-
ever, other than the ambiguous testimony of Mensinger him-
self, about which year included the period of incapacity. That
testimony was that the incapacity “probably” occurred outside
of the backpay period. There was no basis in the record to
conclude that Mensinger’s period of recuperation probably
occurred in 1997, and Mensinger’s demeanor and testimony did
not suggest to me that he was being purposely vague about the
timing of his incapacity. The interim earnings figures con-
tained for Mensinger in the compliance specification, and
which have not been challenged by the Respondent, showed
that he had no drop in earnings during the fourth quarter of
1997. This supports, to some extent at least, Mensinger’s belief
that the incapacity occurred at the end of 1998. Since the Re-
spondent has the burden of establishing the defense based on
incapacity, and has not done so, no setoff is proper.
I conclude that the Respondent has failed to show that
Mensinger had a period of incapacity during the backpay pe-
riod, and therefore I reject the Respondent’s objection.
5. David Bruce Pecoraro
David Bruce Pecoraro worked for the Respondent from June
7, 1977, until the Respondent unlawfully laid him off from the
machine department on March 12, 1993. In its response to the
compliance specification, the Respondent objected that the
amounts sought for Pecoraro were not accurate, but did not
specify which amounts or why. In the brief it submitted after
the compliance hearing, the Respondent does not dispute the
WELDUN INTERNATIONAL 681
specific amounts sought for Pecoraro other than to argue that he
would have been discharged for lawful reasons at the end of
1993 along with the rest of the machine department discrimina-
tees.27
I conclude that the Respondent has not supported its objec-
tion based on the accuracy of the specific amounts sought.
Therefore, I reject the Respondent’s objection.
6. Norman Shayne Smith
Facts: Norman Shayne Smith started working for the Re-
spondent on August 3, 1992, and was unlawfully laid off in
March 1993. During the period of his employment with the
Respondent, he attended college on a part-time basis. After the
unlawful layoff he continued to attend college parttime until
May 1993, and then in September 1993, he began at another
college on a full-time basis. Prior to starting as a full-time col-
lege student, Smith actively sought interim employment.
Analysis: In its response to the compliance specification, the
Respondent argued that Smith should not receive backpay be-
cause he removed himself from the job market on March 12,
1993, when he applied for college and did not seek interim
employment. The Respondent has withdrawn this argument for
the period prior to September 1993 when Smith began attend-
ing college full time, but still argues that backpay should be
denied thereafter. Accordingly, the Respondent has submitted
an amended backpay schedule for Smith that provides backpay
only for the period prior to September 1993. The General
Counsel apparently agrees with this backpay period for Smith,
and has submitted an amended backpay schedule for him that
provides backpay only for the period prior to September 1993.
The total backpay amount stated in the General Counsel’s
amended schedule is $7265.76. There no longer appears to be a
dispute between the parties regarding the backpay period appli-
cable to Smith, and the evidence supports their joint conclusion
regarding his backpay period.
I conclude that Smith’s entitlement to backpay ends as of
September 1993.
7. James Wade Whitehead
Facts: James Wade Whitehead began working for the Re-
spondent in 1989. During the unfair labor practices trial the
parties stipulated that Whitehead was transferred from an as-
sembly position to one in the engineering department on Febru-
ary 22, prior to his layoff in March 1993. During the compli-
ance hearing the Respondent questioned Whitehead about this,
and Whitehead denied being transferred to the engineering
department. He stated, rather, that he had agreed to help out in
the engineering department’s print room on a temporary basis
at the request of his supervisor. He further stated that if he had
been asked to permanently transfer from his toolmaker position
to one in the print room he would have declined since the print
room pay was much lower than what he was earning.
Analysis: The compliance specification, as amended, in-
cludes backpay and medical expenses for Whitehead totaling

27 The Respondent’s general argument that all the unlawfully termi-
nated machine department employees would have been terminated for
lawful reasons by the end of 1993 applies to Pecoraro. I have rejected
this argument for the reasons discussed above.
$31,567.08. Whitehead was identified as a discriminatee enti-
tled to make-whole relief in the orders of both Judge Batson and
the Board. The court of appeals enforced that portion of the
Board’s order which granted make-whole relief to Whitehead.
Nevertheless, the Respondent argues that Whitehead is not a
proper discriminatee and should not be accorded make-whole
relief in this compliance proceeding, because he had been trans-
ferred to the engineering department at the time of the layoff and
therefore was no longer an employee of the prospective bargain-
ing unit. The Respondent’s position, essentially, is that White-
head’s layoff cannot logically have been part of the Respon-
dent’s unlawful effort to discourage members of the prospective
unit from supporting the Union since Whitehead was no longer
in the prospective unit when he was laid off.
Once again, the Respondent is improperly attempting to use
this compliance proceeding to relitigate an issue already de-
cided unfavorably to it in the underlying labor practices pro-
ceeding. As the General Counsel notes, the Respondent had the
opportunity to argue to both the Board and the court of appeals
that Whitehead was not a valid discriminatee and the Respon-
dent either did not do so, or the argument was rejected. The
issue of Whitehead’s status as a discriminatee has already been
decided by the Board and the court of appeals and is res judi-
cata. Carrothers Construction Co., 274 NLRB 762, 762-763
(1985); United Air Conditioning Co., 141 NLRB 1278, 1280
(1963), enfd. 336 F.2d 275 (6th Cir. 1964).
The Respondent states that even if I do not overrule the
Board’s decision, I should recommend that the Board “at least
reconsider its findings about Whitehead.” I decline this invita-
tion. I note that the Respondent itself, over the General Coun-
sel’s objection, elicited testimony from Whitehead about the
transfer and Whitehead stated that he had merely been helping
out in the engineering department, not permanently transferred
there. In addition, even if Whitehead was transferred out of the
prospective unit shortly before his layoff as was stipulated to in
the unfair labor practices trial, that does not foreclose the possi-
bility that his discharge was part of the Respondent’s unlawful
effort to use a mass layoff to intimidate other employees and
discourage union support within the prospective unit.
I conclude that the Respondent’s objection that Whitehead is
not a proper discriminatee has already been decided adversely
to the Respondent in the underlying unfair labor practices case,
and may not be relitigated in this compliance proceeding.
Therefore, I reject that objection.
8. Meryl Ray Zion
Facts: Meryl Ray Zion was employed by the Respondent
from 1980 until the Respondent unlawfully laid him off in
March 1993. At the time of his discharge, Zion was working in
the Respondent’s machine repair department earning $14.50
per hour. His duties consisted almost exclusively of a special-
ized type of machine refurbishing referred to as “scraping.”
Scraping is a technique for restoring components of certain
machines to their original tolerances by leveling or straighten-
ing surfaces that have become worn. Zion began working as a
scraper in 1968 and worked in this field until, at the age of 51,
he was laid off by the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682
Immediately after being laid off, Zion sought work as a
scraper. However, he did not secure any permanent scraping
work. It was not until late 1994 that he found any scraping
work at all, and then only on a temporary, out-of-state, project
that ended after 6 weeks. In 1995, Zion purchased business
cards that he used to try to find work scraping as a contractor,
but this effort was unsuccessful. According to Zion, the de-
mand for the specialized type of refurbishing he was trained to
do was disappearing due to changes in the machines used by
manufacturers.
Beginning in 1994, Zion also started a business selling
sandwiches and other food items from a truck. He bought the
equipment and supplies to do this and traveled to various out-
door events where he sold his product. Zion continued with
this business until 1996, but the business lost money every year
that it operated.
In 1997 and 1998, the Respondent heard that trailer factories
were hiring, and he approached a number of these companies
for work. However, the companies were primarily hiring per-
sons with plumbing, welding, or other skills that Zion did not
possess. These companies did have some lower skilled “piece
work” jobs, but according to Zion none of these high-volume
jobs were not offered to him, apparently because the companies
believed that a man of Zion’s age could not keep pace with the
work. In 1998, a friend of Zion’s trained him in basic welding
techniques. Zion applied for welding work, but was turned
away by employers who were seeking only certified welders.
In October of 1998, Zion accepted the Respondent’s uncondi-
tional offer of reinstatement, and worked for 3 days before the
Respondent shut the plant down.
Analysis: The compliance specification, as amended, in-
cludes $181,180.05 in backpay and medical expenses for Zion
for the period from his unlawful layoff until October 16, 1998.
The Respondent argues that Zion failed to mitigate damages
and that his backpay should therefore be tolled. The Respon-
dent contends that Zion did not seek machinist work after being
laid off, but rather “embarked on a self-employment path which
provided him with no actual or net income.” The Respondent
cites Associated Grocers, 295 NLRB at 810–811; and
NHE/Freeway Inc., 218 NLRB 259, 260 (1975), enfd. 545 F.2d
592 (7th Cir. 1976), for the proposition that an individual must
seek work in his specialty. The Respondent notes that Zion
said that some of the companies had “line” jobs available, but
that Zion did not seek these positions because he believed he
was unqualified.
The burden is on the Respondent to show that a backpay
claimant incurred a willful loss of earnings by refusing to take
new employment or by neglecting to make reasonable efforts to
find interim work. Thalbo Corp., 323 NLRB at 635; Inland
Empire Meat Co., 255 NLRB 1306, 1308 (1981), enfd. mem.
692 F.2d 764 (9th Cir. 1982). The claimant is required to “make
reasonable efforts to find substantially equivalent employment,”
but “[t]here is no requirement . . . that their efforts meet with
success,” Ryder System, 302 NLRB 608, 609 (1991) (citing
Mastro Plastics Corp., 136 NLRB at 1349), enfd. 983 F.2d 705
(6th Cir. 1993). The claimant is only required to make an “hon-
est, good faith effort.” Lloyd’s Ornamental & Steel Fabricators,
211 NLRB 217 (1974). Self-employment is an acceptable way
to attempt to mitigate, and there is no requirement that the self-
employment be a financial success. Aircraft & Helicopter Leas-
ing, 227 NLRB at 646–647.
The Respondent’s contention that Zion failed to mitigate his
damages is not supported factually or legally. The only testi-
mony on the subject is Zion’s own. He stated that he sought
work in his specialty immediately after being unlawfully laid
off and for the remainder of 1993, (Tr. 231–232), that he found
some temporary work in that specialty in 1994, (Tr. 232), and
that he began a renewed effort to find that type of work in
1995, (Tr. 239). Because his efforts to find work in his spe-
cialty were not proving successful Zion invested his savings
into starting his own food service business, but this business
failed. Then he tried to learn a new skilled trade—welding—
but could not find work in that field either. Zion managed to
find out about some lower skilled jobs, but despite his inquiries
he was never offered any of those jobs.
Based on the evidence of record, I conclude that Zion made
an “honest, good effort,” to find interim employment in his
former specialty, and in other fields. His efforts were largely
unsuccessful, but success is not the necessary result of reason-
able effort. I conclude that the Respondent has not met its bur-
den of showing that Zion failed to make reasonable efforts to
mitigate his damages by finding interim employment. There-
fore, I reject the Respondent’s objection based on Zion’s al-
leged failure to mitigate.
CONCLUSION OF LAW
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended28
ORDER
The Respondent, Weldun International, Inc., Bridgman,
Michigan, its officers, agents, successors, and assigns, shall
make whole the discriminatees by payment to them of the
amounts set forth below, plus interest calculated in manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). The names of the employees to whom payment shall be
made and the amounts to be paid plus interest, are as follows:29

28 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
29 Consistent with the findings and conclusions in the body of this
supplemental decision, the amounts stated are generally taken from the
figures set forth in GC Exh. 5 (the Second Amended Compliance
Specification submitted by the General Counsel at the compliance
hearing), as further amended by the revised schedules submitted as
attachments to the General Counsel’s brief. The one exception relates
to discriminatee Boone, with respect to whom the Respondent properly
contends that no relief should be provided for the period after the first
quarter of 1996 when Boone left Michigan for personal reasons unre-
lated to the Respondent’s unlawful conduct. See supra notes 21 and 22.
For a breakdown of the remedy for each discriminatee by calendar
quarter, the parties are directed to refer to the schedules and amended
schedules submitted by the General Counsel. See Attachments to Gen-
eral Counsel’s Brief; GC Exh. 1(c); GC Exh. 2; GC Exh 5.
WELDUN INTERNATIONAL 683

NAME BACKPAY MEDICAL INSURANCE TOTAL

Jerry Boone 4,817.95 2,002.00 6,819.95
Steven Collins 29,944.85 29,944.85
Dawn Condon 30,724.43 418.42 31,142.85
Kenneth Curtis 47,572.36 47,572.36
John Delaney 5,914.75 4,845.88 10,760.63
Jim Doud 77,293.44 448.16 77,741.60
Robert Dunning 21,875.45 1,649.30 23,524.75
Donald Hill, Jr. 2,124.20 2,124.20
Timothy Hunt, Sr. 23,203.95 439.50 23,643.45
Rex Jackson 68,306.77 734.16 69,040.93
Delmar Kirksey 49,765.27 49,765.27
Kurt Lindhorst 1,944.92 1,944.92
Gene Matz 21,103.83 21,103.83
David Mensinger 34,674.49 7,746.65 42,421.14
Dennis Meyers 273.80 2,089.00 2,362.80
David Pecoraro 35,961.29 2,641.02 38,602.31
Jeffery Pomeroy 44,440.42 44,440.42
Roger Reitz 22,969.11 1,592.25 24,561.36
Randall Roach 3,868.48 3,868.48
Douglas Rouse 7,186.42 4,938.91 12,125.33
David Sinner 27,453.06 7,641.04 35,094.10
Norman Smith 7,265.76 7,265.76
Jeff Steinke 2,482.75 8,272.05 10,754.80
BillTaylor 10,950.51 2,135.68 13,086.19
Robert Taylor 9,411.20 9,411.20
Jerry Thompson 1,430.14 5,160.48 59,000.00 65,590.62
Keith Vander Ploeg 4,037.89 11,462.75 15,500.64
James Whitehead 24,265.83 7,301.25 31,567.08
Meryl Ray Zion 168,655.61 12,524.44 181,180.05

TOTALS $ 789,918.93 $ 84,042.94 $ 59,000.00 $932,961.87