Wayne Trophy Corp.

.OPHY 1 Corp. L o d 404, United Electrl- d, and Machine Worken America (UD. Cases 22- and 22-CA-7560 Grem Thereaher, filed findings,' Law lqc) Corp., officers, Rapondent hu uccpccd c c d n findings m d e A d m i i t i v e Law Judge. n Boud's atrblnhcd policy overmk administrative law rrrolutiona with r a p t credi- bility unlm c k u prepademme d l con- viaca UB t b cbe rrrolutiom u e m a . Stundad Drp MVL I=. 544 (19%). 1811 F.2d (M cuefully examined rrcorQ buir reversing him fdipl. RAYMOND GREEN, c . Jersey, 20 1980, backpay Director dimximinetees $109.1 $1,555.09. $747.60. backpay spears partial Am backpay parties parties, observation demurnor witnesses, issued Dcciisions alia, make Tejada, Louib Teevan, Redd loas earningr ruuron Rapondent's them.' April backpay Bolrd's Thereafter, backpay claim Tejada, 11. BACKrAY CLAlM OP AWlLDA Awilda 10, reinstated backpay runs md June earned $2.50 md r n b per partier 197677, used baais backpay . d less backpay hmd, In the Boud alm, t b t Rapondent had against Awilda Charla Tavan d k 10. 294, alb, that Reapondent diwcriminated agumt Arroyo dischuged aecond 2. After 10, reitmated former pasition 17. ' There diapute general determining averye weekly backpay In rsord cstmbliahes the hours carreaponding datn: 104 88 WAYNE TR CORP. Wayne Trophy and Radio of 22-CA-7 180, 22-CA-7347, CA-7517, February 1 1, 1981 SUPPLEMENTAL DECISION AND ORDER On September 29, 1980, Administrative Law Judge Raymond P. issued the attached Sup- plemental Decision in this proceeding. Respondent exceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, and conclusions of the Administrative Judge and to adopt his recommended Order. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Wayne Trophy Wayne, New Jersey, its agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. to credibility by the It the m t to an judge's to the of of the relevant evidence Wall 91 NLRB enfd. 362 Cir. 1951). We tuve the and find no for SUPPLEMENTAL DECISION P. Administrative Law Judge: These consolidated were heard before me in Newark, New on June and 24, pursuant to a specification and notice of hearing, which was issued by the Regional for Region 22 on October 19, 1979. At the hearing, a partial settlement was executed by the parties pursuant to which Respondent agreed to pay to Julio Tejado, Louis Torres, and Rich- ard Redd, respectively, the sums of 1, and On August 11, 1980, the General Counsel notified me that Respondent had complied with the set- tlement and moved to withdraw the allegations of the specification relating to these employees. As it to me that the settlement is reasonable and fair, I hereby approve the settlement and grant the Gen- eral Counsel's motion. to the remaining individuals encompassed by the specification, a hearing was held to resolve cer- tain disputed issues. At the hearing all were af- forded a full opportunity to be heard and to present evi- dence on the issues. Upon consideration of the briefs 254 NLRB No. filed by the the prior decisions of the Boud, and my of the of the I make the following: I. BACKGROUND On May 24, 1978, the Board, at 236 NLRB 294 and 236 NLRB 299, and Orders directing, inter Respondent to whole Awilda Arroyo, Julio Torres, Charles and Richard for any of they may have suffered by of discrimination against On 17, 1979, the Court of Appeals for the Third Cir- cuit entered a judgment enforcing the provi- sions of the Order. and as noted above, the of Torres, and Redd were settled. THE ARROYO Arroyo was initially discharged by Respon- dent on September 1976. She was to her former job on November 17, but was again discharged on March 2, 1977. On June 28, 1978, Respondent offered her reinstatement, which she refused. Accordingly, the period for this employee from September 10 to November 17, 1976, from March 2, 1977, to 28, 1978. It was stipulated that, at the time of her discharge, Arroyo per hour, that on January 1, 1978, by virtue of Federal and state minimum wage laws, Respondent would have been required to her rate of pay to $2.65 hour. The further stipulated to the number of hours per week she worked during her tenure of employment in which was as the to project the average weekly hours Arroyo would have worked during the period.' The General Counsel contends, however, that the average weekly hours for Arroyo should not include those weeks in which she worked than 24 hours. Therefore, the General Counsel argues that Arroyo's average weekly hours for the period should be 31.89 hours per week. Respondent, on the other 236 NLRB 299, found. inter discriminated Arroyo and when it charged them on September 1976. In 236 NLRB the Board held, inter Awilda when it her a time on Much 1977. her discharge on September 1976. Arroyo w u to her of em- ployment on November 1976. is m about this method of Ar- royo's houn during the period. this connec- tion, the that Arroyo worked number of listed below on the lesa houn, p m backpay Lmmotiva Enginemea of Tminmen [Phelps Drrdge Corp.] N.LR.B., N.LR.B. Browa & Inc.. al., F.2d discriminatee backpay N.LR.B. Coca Cola Ca, F.2d ConiwlI (1968). albeit tima the backpay General filed assertions made hearing vuious compa- November 15, March 1978.5 any d l h a t i v e periods seek call witnesau any these has asscrts, born.' ' reporb fM W~cc National Labor RcLtiom Baud we harmy, w u objected Rupondcnt. evaluate assertions NI 3u Re- theac wmpanicl practice applicants and m e bccame WM Midwest Hanger Enginuring Corp. 1. 925 Conmlescmt Center. Inc., m y unlm medial reason otherwise. afier 1978.O the h a that d m leading shall backpay 1977." afbr backpay 1978), necesmry ratQ earning betn backpay for backpay Genaal those prediscrimination lue than houn. respect, weeks 0, r aberant these illnew. reason, loss u WM w u ' w u Ocneral docs seek backpay M testified ia ar rcgmtration backpay period. record clar M WM j o b fact Americon Compny. 116 (1956h Southern Mills, Inc.. 882 DECISIONS O F NATIONAL LABOR RELATIONS BOARD contends that the weekly average should include those waks that Arroyo worked than 24 unless due to a demonstrable illness, and that Arroyo's average should be 27.5 hours per week. The General Counsel also contends that in January 1978 Arroyo's hourly rate would have been $2.75 per hour, whereas Respondent argues that her hourly rate would have been $2.65 per hour. Finally, Respondent contends that for all or of the period Arroyo did not seek employment. and thereby incurred a willful loss of earnings. As to the question of Arroyo's alleged willful loss of earnings, Respondent has the burden of proving facts ne- gating either the existence of liability or the mitigation of liability. Brotherhood of and and Brotherhood Railroad v. 313 U.S. 177, 190-200 (1941); v. Root, et 311 447, 454 (8th Cir. 1963); Rice Lake Creamery Company, 151 NLRB 1 1 13, 1121 (1965). Moreover, the fact that a has low or even nonexistent interim earnings does not, of itself, prove his or her failure to seek employment during the period. v. Miami Bot- tling 360 569 (5th Cir. 1966); Compa- ny, Iac., 171 NLRB 342, 343 In the instant case, Arroyo testified, with some degree of hesitation and uncertainty, that she did seek employment at all during period. In addition, the Counsel offered into evidence, without objection by Respondent, a group of reports by Arroyo showing her prior to the that she sought employment et n i a from September 17 to 1976, and again from 7, 1977, to June 27, Respondent did not offer evidence that during the above of time Arroyo did not employment and did not, for example, as representative of the employers from whom Arroyo claimed to have sought employment, despite the fact that reports were turned over to Respondent by the General Counsel before the hearing.' I, therefore, conclude that Respon- dent not met its burden of proof regarding its claim that Arroyo did not seek employment during the periods from September 10 to November 17, 1976, and from March 2 to June 27, 1977. Respondent nevertheless, that when Arroyo became pregnant in June 1977 she did not seek employ- ment until well after the baby was In this regard, Although the by Arroyo with the Regional of the their introduction into evi- dence not to by Therefore. Ireceived the re- ports and will them for the truth of the nude therein. While Arroyo testified that she did not out employment applica- tion forms at any of the companies where wught employment. spondent might have shown that have a of having fill out such forms thereby wught to contradict Arroyo'a testimony. mere fact that Arroyo pregnant in June 1977 would not warrant the conclusion that she unavailable for work. Co. ond Liberty 221 NLRB 91 (1975); Awn 219 NLRB 1210, 12 17 (1975). In this re- spect. although some women choose to refrain from working during pregnancy, many others can and do work until shortly before delivery there is some specific to do There war no showing in Arroyo's case that her condition during pregnancy would have precluded her from being employed. Accordingly, it is my opinion Respondent offered into evidence interim earning reports submitted by Arroyo to the Regional Office on April 25, 1979, wherein Arroyo listed a variety of employers with whom she sought employment. These reports indicate on their face that June 27, 1977, Arroyo recommenced her search for employment on October 2, Thus, taking into account all reports filed by Arroyo with the Regional Office concerning her search for employ- ment there is a gap from June 27, 1977, to October 2, 1978. Therefore, despite testimony in response to questions posed by the General Counsel to the effect she sought employment during the period from June 1977 to October 1978, Arroyo could not remember any companies where she sought employment during that period, and the reports she submitted on April 25, 1979, are inconsistent with her testimony. Given this inconsis- tency and because Arroyo's testimony concerning her search for employment was exceedingly vague and elicited through questions, I find that from the end of June 1977 and until October 2, 1978, she did not seek employment and had, in fact, withdrawn from the labor market. I therefare toll as of the end of June Inasmuch as I have concluded that Arroyo did not seek employment from the end of June 1977 until the period would otherwise have expired (by virtue of the offer of reinstatement received on June 28, it, therefore, is not to decide if h a hourly of would have increased to $2.75 on January 1, 1978. The final question regarding Arroyo's claim is whether in determining her average weekly hours the period, the Counsel correctly excluded waks of her employment when she worked 24 In thb we are talking about the ending December 29, 1976, and January 26 and February 2 and 23, 1977, when Arroyo respectively worked 16, 16, and 16 hours. It is appar- ent that, as to these weeks, the General Counsel takes the view that they were and not representative of Arroyo's general work pattern, and, therefore, should not be considered in computing her base average. When Arroyo was asked why she worked so few hours during weeks she could not give any explanation, although she conceded that it was not due to No evidence was presented to show that the lesser numbers of hours she worked during the weeks in question were due to temporary layoff, a decline in the company's business at such times, or any other which would have re- sulted in Arroyo's involuntary of work. Indeed, an that the critical question not whether Arroyo pregnant but wheth- er she available for and sought employment during her pregnancy. Arroyo's baby born in March 1977 and the Counsel not for the following 2 montha he concedes that Arroyo did not seek employment during that 2-month period. Although Arroyo that she registered with the New Jersey Employment Agency, the record not clear to when she registered or whether she kept her active during the Also the ia not to what extent she referred to by this state agency. The that she did regiater with that state agency is, in any event, not conclusive as to whether Arroyo made a diligent search for interim employment. Bottling NLRB 1303 Silk 116 NLRB 769 (1956). TR( 3PHY pat tends fo&ula backpay backpay DeLorean Inc., se (1968), discrimin- lcsa approach part discriminatee's absence backpay respect backpay due thnt absenteeism during backpay taken backpay. approach inclusion bare period c r u d illnesa. comparabk the backpay claimant market di- m d o n clahant's backpay, base ill- ncm reduction backpay. casea Tmiler Inc. Gi- bmltur Industrids Inc., 150 (1965), Harvut & Elemtor (1950). theae cases rule utilized. esacncc, backpay based houn backpay casa wm backpay discrimina- tees representative Inc.. supra backpay agree. cases department reasonable illness absence backpay reasonabk reason applm average.O backpay backpay when lihility $2.50 entitled $1,828.75, interest.* Conwlewenr Ine. Famet. Inc.. 1180 administrative law judgcq appmv- al B o d , avenge put houn leu than rheduled discriminatm houn w l s insuficimt ntablish absmcn reasons than illness. each thosc c u a , backpay w l s baaed a h o u r nude inm aocount a b m w a Rapon- ruvrted rewnably have been recur backpay clse, bnckpay specification, baud houn Teevan. bavd hour6 sheduled concedn p s t 344 WAYNE CORP. 883 examination of Arroyo's work record to estab- lish a fairly high degree of voluntary absenteeism which occurred on a regular basis. When the utilized is one which averages the actual prediscrimination hours of a discriminatee and projects that average into the period, the pur- pose served is to account for absences, lost houn, or other factors which, because of a pattern, may reason- ably be anticipated to recur during the period. As such, this is a traditional formula utilized by the Board absent unusual circumstances. Cadillac 231 NLRB 329, 332 (1977). Although the General Counsel urges that I exclude from Arroyo's average any weeks during the base period in which she worked less than 24 hours, in what amounts to a per rule, I have found no support for this proposition in the case law or logic when applied to the type of formula used herein. In Winn-Duie, 170 NLRB 1734 the Administrative Law Judge rejected the General Counsel's theory of ex- cluding from the base period weeks in which a atee worked than 24 hours. The Board in that case basically agreed with the Administrative Law Judge's except as to any of the base period where the was due to illness, a factor which cannot, of course, be reasonably expected to recur during the period. In this the Board stated at footnote 2: In computing claimants, the Trial Examiner concluded the pattern of which occurred during the base period was likely to recur the period and therefore should be into consideration in computing We agree with this except for the in the of absenteeism by demonstrable Since illness during period would remove from the labor and result in a of to compute aver- age pay during the period upon a period of would amount to a double of claim- ants The two cited by the General Counsel in his brief, namely, International Company, and NLRB 1205, 121 1 and Queen Mill Company, 90 NLRB 320, appear to be distinguishable. In both of a 24-hour was However, the formulas used were different from the formula used herein and, in was on the average weekly worked by comparable employees during the period. Since, in those a group of comparable em- ployees used to compute the average weekly hours and therefore was not based on the own past work experience, it makes a good deal more sense to exclude from the average the work experi- ence of particular individuals whose hours of work are not in fact of the group. As the Adminis- trative Law Judge stated in International Trailer Compa- ny. at 1211: In arriving at the number of hours for which is due, the Regional Director excluded any employee who worked fewer than 24 hours if, but only if, the department generally worked 24 hours or more. According to the Company, the hours for which the claimants should be compensated should be the average hours worked by all of the employ- ees in the department I do not In in which a minority of the employees in a worked fewer hours than the depart- ment generally, it is to assume that they did so for reasons not applicable to the group as a whole such as or because they were hired or fired in the middle of the week. Indeed, Respon- dents have not denied that the excluded employees worked fewer hours because of circumstances pecu- liar to themselves. Nor have they asserted that any of the claimants was in the habit of working fewer hours than the department generally nor did it pre- sent evidence indicating that any would in fact have worked fewer hours than the department generally. The of such evidence is, of course, signifi- cant since it is the kind of evidence which Gibraltar could and undoubtedly would have adduced ha3 it existed. If the hours worked by the employees who are the exceptions to the rule are included, they would reduce the hours (by lowering the average) for which is due. This would mean that the claimants would be made whole for a fewer number of hours than, it is to conclude, they would have worked. As the evidence herein establishes that Arroyo had a pattern of absenteeism prior to her discharges and that her absences during the disputed weeb were not attrib- utable to a demonstrable illness, I see no to a 24-hour rule and exclude those weeb in which she worked fewer than 24 hours from her base Ac- cordingly, I find that, during the period Arroyo would hove worked an average, was tolled as of the end of June 1977 she left the labor market, and that her vote of pay during the period for which is due was per hour. I therefore conclude that Arroyo is to the sum of plus In Awn Center 219 NLRB 1210 (1975). and 222 NLRB (1976). the with of the refused to weekly 40 hours where the regularly workweek for the consisted of 40 per week and where the evidence to a pattern of voluntary for other In of the on a week and no adjust- menu were to take alleged whkh dents could anticipated to in the periods. In the instant however, the General Counsel in drawing up his decided to utilize a formula on the average of both Arroyo and and not one on the they regularly were to work. In effect. this that neither worked a regular schedule, and that account should be taken of their patterns of voluntary absenteeism. Appendix A omitted from publication. i 111. BACKPAY TEEVAN after 25cent Teevan 1, a g m d Teevan reinstate- Teevan ment backpay backpay Sep- Teevan had been 10, charge and wM in a non- at the time of Teevan's discharge he was earning supewimry position, his rate of pay should be adjusted rate ihe Teevan parties use pre- detcr- backpay period."J Teevan, as Teevan's 10, houts Oeneral regarding Teevan; Tee- weeWy weeke worked Teevan 1, Teevan Teevan Teevan's weeWy weeke less because 'O hours Teevan 7. Teevan's hia Emnine offm 1978). ofices agent..lS stata looking settlement hh objactive W ~ c e bargaining Battag- ' discriminatees Teevan. Tejada, Teevan, Teevan Teevan Teevan, was Teevan Battaglia. ~ - l a Teevan's earning, concede quanen 1978. Teevan's earning backpay, period8 quarten fint quarten 8 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE CLAIM OF CHARLES September 10, 1976; (3) the inclusion of a 1978, is improper; (4) Respondent was discharged on September 10, 1976, and it raise on January made unconditional offers of reinstatement to in was that received an offer of period and; from Respondent on June 28, 1978. Therefore, the November 1976 thereby tolling the (5) because demoted prior to his din- outer limits of the period would be from t' tcmber 1976, to June 28, 1978. It was stipulated that $5.25 per hour, and that his overtime of pay was $7.87 per hour. There, also, was a stipulation concerning number of hours per week worked prior to his discharge, and the agree that the of his discrimination weekly hours is a proper basis for mining the average weekly hours he would have worked during the In addition to the above, it is noted that in the prior case involving 236 NLRB 299, it was concluded that, although he had been employed a supervisor for a substantial period of time, supervisory functions had been transferred to Allen Smith at the time of his discharge on September and that he was then employed as a maintenance me- chanic. ' ' Date Regular Overtime houn The Counsel makes the following contentions (I) that as to the computation of van's average hours, those when he less than 24 hours should not be counted; (2) that had continued being employed by Respon- dent he would have received a 25-cent raise on January 1978; (3) that regularly worked overtime before his discharge and he, therefore, would have con- tinued to work overtime had he not been discriminated against; and (4) that the only legitimate offer of reinstate- ment made by Respondent to was received on June 28, 1978. The Respondent, for its part, makes the following con- tentions: (1) in computing average hours, the when he worked than 24 hours should be included; (2) no provision should be included for overtime hours overtime was not available The number of per week worked by from May 19 to September 1976, are as follows: As such. Respondent's contention that discharge was not violative of the Act because of supervisory status was rejected. Interim With respect to the claimed of reinstatement (other than the one received on June 28, it appears that on November 16, 1976, shortly before the com- plaints were issued in Cases 22-CA-7180 and 22-CA- 7347, a settlement conference was held at the of Region 22 of the Board. According to the testimony of William Crivelli, a labor relations consultant who repre- sented the Company at that time, the meeting was held between himself, Jose Lugo for the Union and two Board He that he went into this meeting for a and that main was to convince the Union and the Region to hold a quick election rather than having the Regional seek, through litigation, a order against Respon- dent. Crivelli testified that he was authorized by lia to offer reinstatement to all five of the employees al- leged as at the "bottom line," and that he did make such an offer through Lugo to all five employ- ees. Battaglia testified that he authorized Crivelli to make such an offer and that on the following day, pursuant to Crivelli's instructions, he sent mailgrams offering rein- statement to all five individuals, including Jose Lugo's version of this conference is substantially different. He testified that although Crivelli told him that Arroyo, Torres, and Redd could go back to work, the offer explicitly excluded as Crivelli took the position that was a supervisor. testified that at the end of the meeting Lugo and a Board agent told the other employees that they could go back to work, but that he, told that he was not offered reinstatement. As to the purported mailgram, testified that he never received the mailgram de- scribed by There is no dispute concerning interim which were as follows: As the General Counsel that for the second and fourth of 1977 and for all of interim exceeded the amounts of his the only quarterly in issue are the third and fourth of 1976 and the and third of 1977. Teevan thL that Battaglk Teevan Battaglia oppoeed Teevan. Also, direct tbat off- Teevan; offer Teevan Cri- velli all, wm respect Teevan's ~8 particular recall, wrta said a u l d ce- j u t w u wm Charlie Teevan. nay Y a said, well in case everybody can back wm sai4 Teevan, wm said. e x p r d w u mid mean Li, wait Joe s a p things wordr, can sryin~, wm impression Mid. wm discusrion deal whm w u said come sor& Teevan? wmes want djust mean, wa acwmmo- exactly derstand. clearly me. Them positio~ Teevan's okay? vuiour me&& to wan an& people'a waa cm't was, m know g a t d d faced unfortu~tely, w u became h a p p e d other mid, thh interested Thb is haa t o b c my? A. Teevan. backpay, All had indicaed thb offerd that Teevan n supervieor? that. as aboda hen possibly after d, have resolve then really kind firm Teevan. revealed 885 WAYNE TROPHY CORP. Notwithstanding the assertion by Crivelli and Battaglia that an offer of reinstatement was made to through Lugo on November 16, 1976, and that this offer was confirmed by a mailgram sent the following day, I do not credit their testimony. In regard, Crivelli, al- though testifying ultimately authorized an offer to if one had to be made,he conceded that just prior to that conference was to re- instating while Crivelli's testimony on examination was he made an to reinstate all of the employees, including his later testimo- ny regarding an to was much more prob- lematical and indicates to me a decided degree of ambi- guity as to whether such an offer was in fact made. testified: Q. Well, do you recall either whether or not or to what extent, if at there any discussion with to Mr. status an employee or not an employee during that meeting? A. I don't Your Honor, whether it stated or just my conclusion drawn. But when I that everyone come tuck, people, and I don't recall who, whether it was everyone or Joe, referring to Lugo, or a Board agent, but somebody there surprised that I including Q. You somebody was surprised? A. There was no question that when I then jumped to the bottom line and that come to work tomorrow, there . . . now, whether somebody you mean too, I don't recall whether that But it was. . . . Q. What do you recall? First of all, do you know who it to be a surprise? A. I think it Mr. Lugo who did. I'm not cer- tain. I don't . . . think it was he; I think he was the one who something to that effect. You everybody? a minute, I thought, you know, you didn't want . . . but it wasn't said. with . . . how can I say it? . . . two he convey to me, and I understand what he is and that the I drew from what be had That he surprised that I willing . . . after this about trying to make a and let's work it out and let's do this and let's do that, that all said and done that I actually ev- erybody could back, rather than the juggling and, you know, that of thing. Q. Well, when you said everybody can come back, was that different from an earlier position you had taken? A. Oh, yes. Q. Well, all right. Then you've got to tell me the earlier position that you took. A. Well, the first position was something to the effect that everybody could come back to work, and no back pay, of course. I'm sure we said that Charlie could come back to work at one point as a supervisor; you know, if he would reassume his su- pervisory duties. And then. . . . Q. You're talking about Charlie A. Right; and then at another point we would have said, well, if he tuck without supervi- sory status, then we may to his rate somehow. I in other words, we took both po- sitions alternatively. It didn't work. It was in the framework of trying to see if could date the situation. Q. All right; but I'm not sure I quite un- I want you to explain it, you know, very to were apparently a number of taken with respect to Mr. coming back to work, At points during this Now, I want know what your position tho other position and how it came about. A. Your Honor. I really precisely tell you what my position stated. I I went into the meeting with a of flexibility. What I was with, no' flexibility. That very . . . that very quickly. The side is what we want. We're not in what you want to do. what Q. Well, what did they How did they . . . . Oh, everybody goes back to work including Mr. Everybody goes back to wort and pay the you know, to the penny, and we agreed to bargain with the union immediately. Q. right; now, you that at some point during meeting you Mr. come back a Is that right or is . . . A. No, that's not my way. What I did was to at- tempt to show, you do in negotiations, inclina- tions. Well, you know, what we're concerned are the people. If we could get every- one back, wouldn't that really go a long way to- wards our getting this damn thing . . . excuse me . . . this darn thing resolved, and if the people really want the union we an election. We can have an election in two or three weeks, you know, and this whole thing. And turn to the union and say, isn't that what you want to do, Joe, and, you know, that of . . . so it's never really a offer. It's like an indica- tion with a hope that the other side will then say, well, maybe yes. Q. All right; so what I want to know is what your indications were with respect to Charlie A. The indications were that even under some circumstances he could come back. That was going t o . . . . Q. Well, tell me. A. . . . be my bottom line. I didn't reveal it. I don't think I would have it. I don't re- member the specificity . That was going to be the top one, as it were. fide All Teevan Teevan, received mailgrams employees hrnish $1.50 Nevertheless, businem transactions, these mailgrams, dispute weeb above- Teevan Teevan convenation, Teevan's Teevan kcam former mechanic.14 Teevan conclude valid.16 Teevan wan Teevan's backpay Teevan 25cent 1, isaue Teevan in- c r a w , backpay 1, Tee- Teevan's backpay, increase backpay backpay Teevan first, I * Teevan testified toM &tuglu back be as have some protection." I' Markers Inc.. Teevan ( 1 1 Teevan unauthorizad Teevan nm. am Responden1 case, Teevan's estal lishes Teevan, testifit Teevan's encompassed t machinet P testifit machinex Teevan's fund tion Teevan's tf hi employees doin whic Tecvan h o w then fore backpay overtim hours rate $7.87 hour.'@ Finally, Teevan backpay less c becaw supervise; how eve^ Teevan dif pry Teevan tion, mr jority expertis i Based Teevan backpay purposes backpa l a lnapmuch ar backpay 1. increase bad necessary find that 1, Teevan S8.15 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Oh, so you never explained under what cir- cumstances he could come back? Or it wasn't dis- cussed or explored or finally said? A. It was never absolutely offered and said in that fashion, no. The only bona absolute offer was at the bottom line. That was the only offer that was really made. Q. right, but notwithstanding that, you didn't say, at any time, apparently, that Charlie Tecvan can come back to work? A. By name, no. As to the claim by Battaglia that he sent a mailgram to on the day after the conference, who impressed me as a forthright and honest witness, denied that he ever the mailgram. Moreover, Respon- dent could neither produce a copy of the mailgram nor find it. Thus, Battaglia, who claims he was told by his own counsel to send to all five as confirmations of the offers of reinstatement made at the conference, testified that he did not request Western Union to him with confirmation copies because he felt a "deal" had been made at the conference and be- cause he did not want to spend an additional per telegram. Battaglia also testified that he re- tains copies of all important letters or documents reflect- ing Respondent's and I find it in- credible that he would not have obtained and kept copies of if in fact they were sent. There is no that about 2 after the described conference, spoke with Battaglia on the phone. While Battaglia claims that he again offered reinstatement to during this I credit testimony that Battaglia offered him a su- pervisory position outside the bargaining unit which did not accept he desired reinstatement to his position as maintenance As this offer to was not an offer to the position of employment he held at the time of his unlawful dis- charge on September 10, 1 that the offer was not Therefore, based on the above, I conclude that the only valid offer of reinstatement made to the one he received on June 28, 1978. Accordingly, I find that was not tolled at any time prior to June 28. As to the contention that would have received a raise on January 1978, this is moot. Even if were to be credited with the wage the amended specification of the General Counsel, which takes into account the raise, shows that for each and every quarter after January 1978, van's interim earnings exceeded even with the wage computed into the gross obligation. Thus, the General Counsel in his amended specification concedes that there is no net owing to for the second, and third quarters of 1978. that he "that the only wry I would even think about coming would a mechanic in the Union so I'd Wonder 236 NLRB 787 (1978). As noted above Respondent contends that the avera, weekly hours worked by should be computed the basis of all the weeks set forth above in footnote including the weeks ending July 7, September and 1976. In this respect Battaglia testified, without contr diction, that took time off during these weeks take an vacation. Accordingly, w voluntarily absent from work for reasons other than i I, therefore, inclined to agree with contention for basically the same reasons set forth in A royo's and I therefore conclude that ave age weekly hours, exclusive of overtime hours, wou have b a n 34.69. With respect to the issue of overtime, the record that prior to his discharge, worked ove time on a regular basis. In this regard, Battaglia that overtime generally work did before the normal hours in setting up the and maintenance work done after his normal hours. to the situation after September 10, Battaglia that he took on the work of setting up the before work, and that he also took over of doing hydrolic maintenance. He testified tha after discharge, electrical maintenance of machinery, which is frequent and was done by Teeva after normal hours, was contracted out because ne ther he nor any other were capable of such work. It therefore appears that the work had done during his overtime before h discharge was still available had he continued his en ployment with Respondent and that he would have cox tinued to work overtime as he had in the past. I conclude that during the period Teeva should be credited with an average of 3.87 at the of per I reject Respondent's contention that rate of pay for purposes should be somewhr than his hourly rate of $5.25 per hour at the time his discharge. Respondent argues that Teeva was not willing to come back to work as a his rate of pay should be adjusted accordingly. the record discloses that when was demoted t the position of maintenance mechanic prior to his charge on September 10, his rate of was not low ered. Moreover, the record indicates that wa paid $5.25 per hour not because of his supervisory func which Respondent asserts did not comprise the of his work, but because of his technical as a maintenance mechanic. In this respect, after Teeva was fired, his work had to be shared by three individual including Battaglia, and even then some of the work h performed had to be contracted out because no one the Company's employ had his skills. on the above, I find that accrued back pay until June 28, 1978; that his hourly rate of pay fo was $5.25 per hour; that the averag weekly hours he would have worked during the no net is claimed for 1978 even if the allege January 1978, wage were included to compute the gross pay figure. it is not to after January 1978. overtime rate would have been per hour. period wes houn week necessary Teevan Counel even Teevan's earnings backpay from quarter Accordins- Teevan $5,232.83, interest. l7 Corp., ita omcen, successors, migns, Make Awilda $1,828.75, required Teevan $5,323.83 plus less a entire conclurions, and recommended Order herein shall, n pmvidad " Appmdix publication. Ss. 102.1 Ruln md Reguhtions, adopted Bard and a* III nrrnt cxceptbm am filed n ~ c c . of w e i a findimp, m n c l e mOrda ud .I1 obpetwm thmco the Ruba ud Rcgulatiom Natiorul labor Rchtionm Bmrd, ahdl b deemed waived for dl Purpacr 887 WAYNE TROPHY CORP. 34.69; that his average overtime per Wayne Trophy Wayne, New Jersey, would have been 3.87; and that his overtime rate agents, and shall: of pay would have been $7.87 per hour. I further find 1. payment to Arroyo the sum of that it is not to determine whether plus interest, less tax withholdings by would have received a wage increase in January 1978 in- Federal and state lawn asmuch as it is conceded by the General in his 2. Make payment to Charles the sum of specification that with a wage increase, in- interest, tax withholdings required by terim would have exceeded his claim Federal and state laws. the fourth of 1977 to June 1978. ly, I conclude that is owed the sum of plus ORDER Upon the record, and in accordance with the foregoing finding, I recommend thnt the Respondent, finding* B omitted from in of the be by the the m provided by 102.46 of the the