Intl. Photographers, Local 659, IATSE

INTL. PHOTOGRAPHERS, LOCAL 659, IATSE 633 International Photographers of the Motion Picture Industries, Local 659 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (MPO-TV of California Inc., Y -A Pro- ductions, Inc.) and James N. Adler on behalf of Joel Colman and Vilis M. Lapenleks and Associa- tion of Motion Picture Producers, Inc., Party to the Contract. Cases 31-CB-189 and 31-CB-198 2 We find merit in the General Counsel's exception to the Administrative Law Judge's recommended Supplemental Order wherein he orders that taxes be withheld by Respondent from the backpay due as required by Federal and State laws. As the payment of backpay by a labor organization cannot legally be treated as wages paid by or on behalf of the Employer we shall delete that provision from the recommended Supplemental Order. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 249, AFL_CIO (Lancaster Transportation Company), 116 NLRB 399 (1956), enfd. 244 F.2d 292 (C.A. 3, 1957). SUPPLEMENTAL DECISION February 19, 1975 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 6, 1974, Administrative Law Judge Richard D. Taplitz issued the attached Supplemental Decision in this proceeding . Thereafter, both the General Counsel and the Respondent filed excep- tions and supporting briefs, ' General Counsel and the Charging Party also filed briefs in answer to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his recommended Supplemental Order, as modified herein.2 SUPPLEMENTAL ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Supplemental Order the recommended Supplemental Order of the Administrative Law Judge as modified herein and orders that Respondent, International Photographers of the Motion Picture Industries, Local 659 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, its officers, agents, and representatives, shall take the action set forth in the said recommended Supplemental Order, as so modi- fied: Delete the words "minus any tax withholding required by Federal and State laws" from the last line of the recommended Supplemental Order. 1 The Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 216 NLRB No. 120 STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge: On June 30, 1972, the Board issued its Decision and Order (197 NLRB 1187) directing that International Photogra- phers of the Motion Picture Industries, Local 659 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, herein called Respondent, make whole Joel Colman' for his losses resulting from certain unfair labor practices found to have been committed by Respondent. On June 21, 1973, the Board's Decision and Order was enforced by the United States Court of Appeals for the District of Columbia Circuit (477 F.2d 450). On January 21, 1974, Respondent's petition for certiorari to the United States Supreme Court was denied (414 U.S. 1157). The parties being unable to agree on the amount of backpay due under the terms of the Board's Order, the Regional Director for Region 31 issued a backpay specification dated April 4, 1974. Respondent filed an answer and two amendments thereto. At the opening of the hearing, an amended backpay specification was substituted for the original specification and Respondent's answer was further amended. A hearing was held before me at Los Angeles, California, on May 22, 23 and 24, 1974 . Briefs, which have been carefully considered, have been filed on behalf of the General Counsel, Respondent, and Joel Colman. Upon the entire record 2 and from my observation of the witnesses, I make the following: FINDINGS OF FACT A. The Board's Decision and Order and the Amended Backpay Specification The Board found that Respondent interfered with the employment rights of Colman because Colman was not on a certain eligibility roster. The Board held: 1 The Board also ordered that Vilis Lapenieks be made whole by Respondent. The General Counsel in his amended backpay specification admitted that Lapenieks has not suffered any loss of earnings as a result of the discrimination practiced against him. No claim is made on his behalf. 2 Because of certain errors in the transcript of the record and the exhibits that were part thereof, on August 8, 1974, I issued a "Notice Setting Time for the Filing of Motions." The notice stated in part that Resp. Exhs. 8(a), (b), and (c), 24, 25, and 28, as well as Charging Party Exhs. 10, 14 and 21 through 26 were admitted in evidence but were not physically present among the exhibits in the record . In addition, the notice stated that the transcript did not indicate that Resp. Exhs. 21 and 22 were admitted in evidence though they physically appeared in the exhibit file . An opportunity was given to all parties to inspect the exhibits and leave was granted for all parties to make any motion they deemed appropriate . By motion dated August 20, 1974, Respondent moves that all its exhibits identified in the (Continued) 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In determining whether an employee is eligible to be placed on the roster, his work experience with employ- ers other than those who signed [a contract with Respondent and/or IATSE] is not considered. Thus, qualifying experience is generally limited to experience with employers having a collective-bargaining agree- ment with Respondent and/or IATSE. [footnote omitted.] There can be no doubt that the actions of Respond- ent in applying the roster restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act .. . Specifically with regard to Colman, the Board found: Melvin Dellar of MPO-TV of California, an Inde- pendent, in August 1966 sought permission from Respondent to hire Colman as a director of photogra- phy for a 2-day assignment on August 4 and 5. Alter [Respondent's business representative ] refused, since Colman was not on the roster, and said further that if MPO used Colman all IATSE people would be pulled off the stage. Colman was not hired for this assignment. Dellar had been authorized by Arnold Kaiser, president of MPO, to negotiate a contract with Colman for his services as director of photography for MPO. Dellar and Colman reached agreement on a 3-year contract which included a salary of $750 per week, subject to approval by Respondent. On August 11, 1966, Dellar notified Respondent by letter that he desired to sign the aforementioned contract with Colman and requested that Colman be allowed to become a member of Respondent for this purpose. After receiving no response , Dellar again wrote Respondent concerning this matter. On Septem- ber 15, Respondent replied that, since Colman's name did not appear on the roster, he could not be hired by MPO. The above illustrates that initial employment in a unit represented by Respondent is based strictly on union considerations. No matter what qualifications an employee brings with him, if he has not in the past been represented by Respondent, he cannot gain employ- record except for those where a specific objection to admissibility was sustained, be.received in evidence. The motion specifically requests that Reap. Exh. 22(a) and (b) be received. In a response dated August 27, 1974, the General Counsel urged that Reap. Exha. 21 and 22 be marked rejected, because they were not admitted in evidence. Either the transcript is in error in indicating that Reap. Exhs . 21 and 22(a) and (b) were not received in evidence or those exhibits were not received through inadvertence. In either case, they should be part of the record and they are received in evidence. As indicated above, they are a part of the exhibit fle. Respondent's motion also requests that "General Counsel be directed to supply the Administrative Law Judge with a complete set of all exhibits and, ment with any employer who is party to a collective- bargaining agreement with Respondent and/or IATSE. Accordingly, we conclude that Respondent, by apply- ing the seniority provisions against any Association or Independent employer as if all such employers com- prise a single bargaining unit, and in particular by the manner in which Respondent has applied the roster provisions with respect to Colman and Lapenieks, has unlawfully restrained and coerced employees in the exercise of their statutory rights and thereby violated Section 8(bx1)(A) of the Act. The Board ordered Respondent to "Cease and desist from applying its collective-bargaining contracts with the Association of Motion Picture Producers, Inc., its member- employers, or nonmember-employers outside the Associa- tion in any manner which discriminates against any employee with respect to his initial employment and/or placement on the Industry Experience Roster on the basis of union representation." The Board further ordered Respondent to make Colman whole for any loss of pay he may have suffered by reason of Respondent's interpreta- tion and application of the seniority provisions of the Industry Experience Roster. The Board specified that in making Colman whole backpay was to be computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The amended backpay specification sets forth a backpay period beginning on August 11 , 1966, when it is alleged Colman would have been hired for a 3-year term under a contract with MPO-TV of California, Inc., but for the discrimination practiced against him by Respondent, and ending on May 7, 1968 , the date Colman was placed on the Industry Experience Roster. The specification uses the $750 per week salary provided for in the contract as a basis for determining what Colman would have earned but for the discrimination. Interim earnings, primarily derived from self-employment, as well as expenses to be deducted from the interm earnings are also set forth. The appendix to the amended backpay specification sets forth the figures upon receipt of notification from other counsel as regards copies of exhibits not in their possession, to supply counsel with such copies." General Counsel's response dated August 27, 1974 (which appears to supercede a response dated August 26, 1974), states "I am sending today original and xerox copies of Respondent's Exhibits 8(a), (b), (c), 24, 25 and 28 and Charging Party's Exhibits 10, 14, and 21-26. Xerox copies of said Exhibits are being sent today to counsel for the other parties." As the exhibits in question have now been received by the Administrative Law Judge and as the General Counsel has stated that copies of those exhibits have been sent to all parties, no further action appears needed. INTL. PHOTOGRAPHERS, LOCAL 659, IATSE on a quarterly basis. The total net backpay claimed to be due is $38,659.57 together with interest at 6 percent. B. The Backpay Period and the Gross Backpay The amended backpay specification begins the backpay period on August 11, 1966.3 As set forth above, the Board found that an agreement had been reached between MPO and Colman on a 3-year contract subject to approval by Respondent ; that on August 11, 1966, Dellar notified Respondent that he desired to sign the contract with Colman and requested that Colman be allowed to become a member of Respondent for that purpose; and that on September 15 Respondent replied that as Colman's name did not appear on the roster he could not be hired by MPO. Colman credibly testified that on or about August 11, 1966, he was available to work for MPO as a staff cameraman. Based on the Board's findings and on the testimony of Colman, the conclusion is warranted that the contract would have been signed on August 11, 1966, but for the need for Respondent's approval. The fact that Respondent waited until September 15, 1966, to notify MPO of Respondent's disapproval cannot be used by Respondent to delay the beginning of the backpay period. Respondent had refused to allow Colman to work on August 4 and 5, 1966, because Colman was not on the roster and had told MPO that if it used Colman all IATSE people would be pulled off the stage. On August 11, 1966, when MPO asked Respondent for approval of the 3-year contract, the threat to pull employees off the stage if Colman was hired, had not dissipated. Respondent's silence from August 11 to September 15, 1966, was not merely a nonaction but was a continuation of the prior threat. Respondent's September 15, 1966, letter to MPO to the effect that Colman could not be hired because he did not appear on the roster, was simply a reaffirmation of its prior position. Respondent urges a number of arguments against finding that the backpay period began August 11, 1966. Its major contention is that there was no agreement as to when a contract between MPO and Colman should begin and more generally that there was no agreement at all concerning a 3-year contract. Respondent was given an opportunity to present evidence concerning the terms, conditions, and details of the 3-year contract. Dellar testified in that regard, but he acknowledged that all his testimony concerning arrangements with Colman in August and September of 1966 were predicated upon his belief that there was no contract for $750 a week. In effect, Respondent was attempting to relitigate matters that had already been fully determined by the Board in its decision. The Board specifically found that an agreement on a 3- year contract, which included a salary of $750 per week, had been reached subject to approval by Respondent. That matter is not subject to relitigation in a supplemental backpay proceeding. I am bound by the Board's findings. Respondent also argues that its actions were related to Dellar's August 11 , 1966, letter which requested that Colman be allowed to become a member of Respondent 3 Though the Board found that Colman lost 2-days work on August 4 and 5, 1966, because of Respondent's unfair labor practices, no backpay 635 and that it had no duty to allow membership. Though the August 11 letter does mention membership, it is clear from Respondent's September 15 response that Colman was not to be hired because his name did not appear on the roster. Respondent's refusal to allow Colman to be hired on August 4 and 5, 1966, had the same thrust. The Board's decision unequivocally finds that the unfair labor practice was keyed to Respondent's position with regard to the roster. I find that the backpay period commences August 11, 1966. Respondent argues that there was no agreement for the payment of $750 a week. As is noted above, that matter is not subject to relitigation in this proceeding. The Board has found that MPO and Colman had reached an agreement on a 3-year contract which included a salary of $750 per week under a 3-year contract, but for the unfair labor practice. Respondent was given full opportunity to develop evidence which might indicate that the contract was subject to early termination or some other condition that would affect its length or compensation. Instead of evidence of that nature, Respondent consistently main- tained the position that there was no contract, despite the fact that the issue concerning the existence of the contract was not subject to relitigation in this proceeding. Respondent pointed to the fact that Colman was employed on various occasions by MPO after the August 11 date 4 and argues that backpay should be terminated as of that first employment. That argument is without substance. Though such employment must be considered with regard to interim earnings the occasional employment by MPO on a per day basis was in no way equivalent to the employment Colman would have received under the 3-year contract. Based on the Board's decision, it would appear that gross backpay would include payment at $750 a week for the 3 year period of the contract. While the General Counsel could have chosen to base its backpay formula on such a criteria, he chose to end the backpay period on May 7, 1968, when Respondent granted Colman roster status. General Counsel stated on the record that the backpay period was ended on May 7, 1968, not only because Colman was put on the roster but because his interim earnings from that date were such that there would be no more net backpay after that time. In his brief, counsel for Colman stated that he did not fully subscribe to the May 7, 1968, date for ending the backpay period, but that he accepted that date on -the alternative ground that after that date, for the remainder of the relevant period, Colman's interim net earnings equalled or exceeded the gross backpay he would have earned absent the discrimination. As neither General Counsel nor counsel for Colman request a finding that the backpay period extended for a full 3 years, I find that the backpay period extended from August 11 , 1966, to May 7, 1968. I also find that the figure to be used in determining the gross backpay is $750 a week. claim has been made for those dates. 4 The details of Cohnan's earnings from MPO are set forth below. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Legal Principles In situations such as the instant one, where loss of employment is caused by violations of the Act, the finding by the Board that an unfair labor practice was committed is presumptive proof that some backpay is owed. N.L.R.B. v. Mastro Plastics Corporation and French American Reed Manufacturing Company, 345 F.2d 170, 178 (C.A. 2, 1965), cert. denied 384 U.S. 972 (1966). The General Counsel's burden for the backpay proceedings is "to show the gross back-pay due each claimant." J. H. Rutter Rex Manfactur- ing Company, Inc. v. N.LR.B., 473 F.2d 223, 230 (C.A. 5, 1973), cert. denied 414 U.S. 822 (1973). The General Counsel has met his burden in this case. The backpay period and the weekly pay that Colman would have received but for the unfair labor practices has been established as is set forth above. The General Counsel's amended backpay specification calculates the gross back- pay on a quarterly basis as is required by the Board Order. In addition the General Counsel has admitted that Colman earned a substantial amount in interim earnings during the backpay period. After deducting expenses incurred in obtaining those interim earnings, the General Counsel has credited the net interim earnings against the gross backpay claim. General Counsel called Colman to the stand in order to allow Respondent an opportunity to cross- examine him. That cross-examination extended over the better part of 3 days. Colman produced, during that cross- examination, extensive documents and records including his income tax returns, in order to allow Respondent an opportunity to question him concerning his interim earnings and expenses. Many of those documents are in the record as exhibits. Once the General Counsel had established the gross backpay, the burden is upon Respondent to establish affirmative defenses that would mitigate its liability. N. L R. B. v. Brown & Root, Inc., etc., 311 F.2d 447, 454 (C.A. 8, 1963). Respondent has the burden of establishing such matters as unavailability of jobs because of nondiscri- minatory factors, willful loss of earnings and interim earnings to be deducted from the backpay award. N.L.R.B. v. Mooney Aircraft, Inc., 366 F.2d 809, 812-813 (C.A. 5, 1966). When there are uncertainties or ambiguities, doubts should be resolved in favor of the wronged party rather than the wrongdoer. As the Board held in United Aircraft Corporation, 204 NLRB 1068 (1973): ". . . 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." As is set forth in detail below, the bulk of Colman's earnings during the backpay period came from self- employment. As the Second Circuit Court of Appeals held in Heinrich Motors, Inc. v. N.LRB., 403 F.2d 145, 148 (1968): "It is indisputable that self-employment is an adequate and proper way for the injured employee to attempt to mitigate his loss of wages . Self-employment should be treated like any other interim employment in measuring backpay liability." (Citations omitted.) In Heinrich Motors, Inc., 166 NLRB 783 (1967), the Board held that full-time self-employment could not be construed as a withdrawal from the labor market and was not equivalent to a willful loss of earnings. In addition, the Board held that a claimant in that category need not seek other employment. As is indicated below, Colman met with a substantial degree of success in his self-employment. However, even if he had not, "the principle of mitigation of damages does not require success; it only requires an honest good-faith effort ...." N.L.R.B. v. Cashman Auto Company and Red Cab Company, 223 F.2d 832, 836 (C.A. 1, 1955). See also Lloyd's Ornamental and Steel Fabricators, Inc., 211 NLRB 217 (1974); United Aircraft Corp., supra, and cases cited therein. Colman's testimony as well as his records which have been received in evidence indicate that his bookkeeping methods were casual and unsophisticated . However, poor record keeping does not in itself prevent recovery by a wronged party . In Arduini Mfg., Corp., 162 NLRB 972, 975 (1967), the Board held: ... the record shows that (the discriminatee) may have had some difficulty in recalling past events, and kept poor records, he nevertheless testified openly and fully to the best of his recollection and maintained that he had disclosed all of his interim earnings and withheld nothing. The burden is on the Respondent to show otherwise, and it is clear to us that this burden has not been met . . . . [footnotes omitted.] The Board went on to discuss certain discrepancies in the discriminatee's records and held: This may well disclose the inevitable frustrations of an individual untutored in the methods of keeping errorless business records, but certainly cannot be taken as evidence of a plan to conceal earnings. D. Interim Earnings and Expenses to be Deducted Therefrom 1. The background The amended backpay specification admits that Colman earned a total of $60,479.18 during the backpay period. The specifications deduct therefrom a total of $35,388.75 for expenses incurred in obtaining the interim earnings. It alleges that Colman's net earnings but for the discrimina- tion would have been $63,750 and that the total net backpay due is $38,659.57. These figures are broken down on a quarterly basis. Figures for the third quarter of 1966 show $400 earned from Eddie Colman and Associates. Colman credibly testified that these earnings were from a business run by his father, which was unrelated to his self-employment. The figures for the first quarter of 1968 show $7,692.30 earned from Regan Associates, Inc., and those for the second quarter of 1968 to the end of the backpay period show that interim earnings equalled or exceeded backpay. All of the interim earnings except for the $400 and $7,692.30 are attributed to self-employment. Colman began working for Regan Associates, Inc., on January 22, 1968. That employment was governed by a 1-year contract for salary of $40,000 per year. The contract provided that except with regard to leaves of absence without pay for periods not INTL. PHOTOGRAPHERS, LOCAL 659, IATSE exceeding 4 months for the purpose of performing services on feature motion picture, T.V. specials, and similar work, Colman was to devote his entire time to the business of his employer. Colman credibly testified, however, that he was given the opportunity to maintain a motion picture company as long as it was for work which did not conflict with his employer's work. His employer dealt with commercials . Regan Associates, Inc., was one subdivision of MPO Videotronics. MPO-TV of California was another subsidiary of that parent. Employees often worked back and forth between those companies. For pay and other purposes they were all considered one company. Until he was employed by Regan Associates, Inc., Colman was self- employed as a sole proprietor under the name Colman Productions. General Counsel asserts that the figures arrived at in the amended backpay specification were based on Colman's tax returns, other supporting documents and consultation with Colman, his attorney and his accountant. The General Counsel also maintains that expenses were based on tax returns except that there were some expenses in the 1967 returns such as legal fees that were not counted with his expenses. The amended backpay specification indicates that much of the expense figures were broken down into quarterly amounts by averaging expense figures for longer periods where quarterly expense figures were not available. The amended backpay specification also indicates that the figures for total earnings from self-employment for 1967 were not available on a quarterly basis so that an average was used based on total income for that year. During the backpay period, Colman sought work as a director of photography, an operator, and as a packager.5 In seeking work, he advertised and entertained potential customers. During that time he did not take any vacations and he was generally able to find work . There was never more than 2 or 3 weeks between jobs. He took all expenses incurred in getting work as deductions on his income tax returns. Respondent contends that Colman could have obtained status on the experience roster if he had desired to do so even before August 11, 1966. Respondent argues that Colman's failure to obtain roster status constituted, in effect, a willful loss of employment that he could have obtained through the roster. Colman on the other hand testified that his understanding was that in order to secure roster status he had to have 30 days working with a signatory to the contract but in order to get those 30 days he had to be on the roster, so that in effect he was ineligible. I do not believe Respondent's argument has substance. The Board found that Respondent's require- ment of experience with a signatory employee to obtain status on the roster was unlawful. Experience of that nature could not be required as a condition of employment and it is therefore immaterial whether Colman did or did not have such experience . Even if Colman did have 30-days experience with a signatory employer he would have had no obligation to come forward and claim roster status on the basis of an unlawful standard. In any event, the record does not reflect any willful loss of employment by Colman. S A director of photography is traditionally referred to as a cameraman or a first cameraman . A second cameraman, also called an operator, 637 His testimony, as well as the amount of the admitted gross interim earnings, establish that he made a serious and largely successful effort to find work. 2. Questions concerning interim earnings Respondent has raised some substantial issues concern- ing the gross interim earnings . MPO records establish that Colman worked for MPO on three separate occasions in 1966. On September 6, 1966, he was paid $2,190.69 and on September 6, 1966, he was paid $705.55. Although he earned $2,896.25 from MPO on those two occasions, his own records indicate that on September 10, 1966, he received $2,000 and $700 from MPO for a total of $2,700. He attempted to explain this discrepancy of $186.25 by testifying that he used round figures for those records but used the exact figures for tax purposes. MPO's records also show that Colman was paid $392 on November 18, 1966. Colman's records do not show that he received it. MPO's records establish that Colman was paid for four separate jobs in 1967. He was paid $261 on February 22; $7,183 on March 13; $832 on June 26 and $575 on October 27, 1967. That totals $8,851. However, Colman's records show that he earned $7,000 from MPO during 1967. There is, therefore, a discrepancy of $1,851. Colman averred that he brought with him all of his records that were available but that there appeared to be other documents, worksheets, deposit slips or check stubs with exact amounts. It is noted that the unavailable records are for 1966 and 1967, some 7 years ago. Colman claims that the tax returns, upon which the amended backpay specification was largely based, were made from records showing exact amounts. In support of this contention, Colman points to the fact that the records relied on by Respondent for 1967 income (the only full year involved) show a total income of $43,387 while his federal tax return for that year shows gross receipts from business or profession of $44,537. Thus, Colman reported for tax purposes $1,150 more than the records in question showed. As it is uncommon for taxpayers to report more income than they actually earn, an inference is warranted that Colman did in fact use other records in determining his taxable income for that year. I believe and find that the discrepancies are attributable to poor recordkeeping rather than attempts at concealment by Colman. MPO's records also show that on January 23, 1968, Colman was paid $900. There is no showing that the $900 was not included in Colman's 1968 tax returns. However, the amended backpay specification lists only two items under interim earnings for the first quarter of 1968. The first is an $800 figure for self-employment. Colman testified that he believed that came from some Canadian company. The other is a $7,692.30 item from Regan Associates, Inc. There is no mention of $900 from MPO. However, Regan Associates and MPO-TV of California were both subdivi- sions of MPO's Videotronics. For many purposes they were considered the same. Colman credibly testified that he received some checks from Regan Associates and some from MPO. It is not at all unlikely that the $900 check from MPO can be accounted for within the $7,692.30 physically operates the camera 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payment by Regan Associates. The invoice date for the $900 check was January 23, 1968, and Colman began working for Regan Associates on January 22, 1968. In suni, I do not believe that Respondent has met its burden with regard to establishing interim earnings beyond those admitted by the amended backpay specification. 3. The question of expenses that were deducted from gross interim earnings From the commencement of the backpay period until he began working for Regan Associates, Inc., on January 22, 1968, Colman had interim earnings both as a cameraman and as a packager of finished films. As part of his expenses he hired assistant cameramen, gaffers (head electricians) and assistants, grips (people who handle the mechanical aspects of production) and assistants, sound men, makeup men, drivers, wardrobe people, and production managers. He supplied meals and transportation, rented trucks and buses, and paid location fees. Where he received lump sums for the finished product, he had to pay his own expenses, including rental equipment such as lights and camera equipment. He had expenses of advertising and entertainment. From August 1966 until January 1968, he maintained two offices, one at his home and another elsewhere . There were other expenses related to the operation of business. Many of the same type of deduc- tions that Colman took on his 1966, 1967, and 1968 tax returns had been taken by him in prior years. Respondent argues in its brief that Colman admitted on the record that in 1968 , 1969, and 1970 Regan and MPO paid all of his expenses. That assertion is not supported by the record .6 Melvin Dellar, who at the time in question was production manager for MPO-TV of California, testified as to that issue. At one point in his testimony, he averred that the company paid for everything. However, later in his testimony, he averred that in about half of the jobs, payment to Colman included payment for crews, camera and similar expenses and that Colman paid such expenses as crew assistant, cameraman, and gaffer. In his testimony concerning particular vouchers which showed payments to Colman, he acknowledged that in many of them payments were made to reimburse Colman for expenses he had paid. Still further, irk his testimony he acknowledged that throughout the 1960's when Colman worked for him, Colman sometimes hired his own crew and that at other times the crew was supplied for him. In the light of the subsequent testimony, Dellar's original assertion that the company paid all of the expenses is not worthy of credence. Colman credibly testified that throughout the period in question he had various arrangements with MPO. Dellar acknowledged as much at one point in his testimony by averring that on some of the jobs Colman had to get his own crew which Colman paid for. Dellar also credibly testified that Colman's relations with MPO with regard to his work remained substantially the same both before August 11, 1966, and after that, up to the time he joined Regan Associates. Thus, it appears that throughout that 8 The brief indicates that Colman made that admission on p. 107 of the transcript On that page, Colman testified that when he worked for MPO and Regan in 1968, 1969, and 1970, Regan or MPO paid location expenses and that during 1968, Colman did not hire employees for MPO or Regan. entire period, Colman did have legitimate expenses. Dellar also testified that whatever the arrangement was with regard to the $750 a week (keyed to the August 11, 1966, contract) it was clear that that compensation did not include expenses. I credit that assertion. When Colman went to work for Regan Associates on January 22, 1968, his expenses were sharply reduced. The amended backpay specification alleges expenses for the fourth quarter of 1967 at $7,730.37. For the first quarter of 1968, the expenses were reduced to $2,244.43. That quarter includes the first 3 weeks of January 1968 which preceded Colman's employment by Regan Associates, Inc. There is no backpay claimed for the second quarter of 1968, which is the end of the backpay period. Schedule C of Colman's 1967 Federal Income Tax Return, shows expenses for outside services of $10,045.33, while his 1968 return shows expenses for outside services of $686. Colman credibly explained this in terms of having to supply and pay for crews in 1967, while except for the first few weeks in 1968, his employer supplied the crews. In a similar vein, his 1967 return shows an expense of $1,925.03 for film processing while his 1968 return shows an expense for that item of $592. Colman's 1967 return shows $3,029.97 for props and location expenses, while his 1968 return shows $643. Again, Colman explained these differences in terms of his having to pay the expenses in 1967, while the employer paid them after January 22, 1968. Colman also credibly testified that he is on a cash basis for tax purposes and that some of his 1968 expenses were based on payments he made in 1968 for expenses incurred in late 1967. One of the expenses claimed by Colman does raise a substantial issue. On February 13, 1967, Colman wrote out a check to "cash" for $1,000 with a notation on it that it was for "Morgan-Lites, C-711." He testified that the check was made for "cash" because he had to rent $18,000 to $20,000 worth of lighting equipment from Morgan Manu- facturing Company and Morgan was willing to accept cash payment of $1,000 to pay a bill of $1,585. The bill for $1,585 was marked "Pd 2/13/67" in Colman's handwrit- ing. Colman did not have available a rental agreement to support the use to which the $1,000 was put. However, I attribute this to either poor bookkeeping or poor business practices, and I credit Colman's testimony that the $1,000 in cash was in fact used to pay for rented lighting equipment that he needed to perform his work.? As Respondent has the burden of showing interim earnings to diminish its backpay liability, it follows that Respondent also has the burden of showing that interim earnings are more than is admitted by establishing that expenses should not be deducted from the interim earnings. I find that Respondent has not met that burden. E. The Interest Respondent argues in its brief that because of delays in processing this case, because the Board disagreed with the findings of the Administrative Law Judge, and because no malice, animus or illegalityper se exists, interest should run T Respondent, in its brief, asserts that Colman wrote off both the cash payment of $ 1,000 and the bill for $1,585 as expenses. There is absolutely no factual support for that assertion in the record. INTL. PHOTOGRAPHERS, LOCAL 659, IATSE only from the date of the Board decision . I am unable to agree. The remedy provision contained in the Board Order requires interest payment as is prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The Isis decision provides that interest at 6 percent is "to accrue commencing with the last day of each calendar quarter of the backpay period on the amount due and owing for each quarterly period." I do not have authority to modify the Order of the Board in the original proceeding.8 F. Conclusions For the reasons set forth above, I find that the General Counsel has established the gross backpay due Colman, and the Respondent has failed to meet its burden to show by credible evidence that the conduct or events it has asserted as grounds for mitigation of its backpay liability warrant any diminution of the amounts set forth as due in the amended backpay specification. I further find that the amended backpay specification correctly states the amount of backpay due to Colman. I find that Respondent's obligation to Colman will be discharged by the payment to him of the sum of $38,659.57, plus interest at the rate of 6 percent per annum to accrue commencing with the last day of each calendar quarter of the backpay period on the amount due and owing for each quarterly period as set forth in "Appendix A" of the amended backpay specification, a copy of which is annexed hereto, and continuing until the date this decision is complied with, minus any tax withholding 639 required by Federal and State laws .9 Upon the basis of the foregoing fmdings and conclu- sions, and upon the entire record in this proceeding, I hereby issue the following recommended: SUPPLEMENTAL ORDER 10 The Respondent, International Photographers of the Motion Picture Industries, Local 659 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, its officers, agents, and representatives, shall: Satisfy its obligation to make Joel Colman whole by payment to him of net backpay in the amount of $38,659.57, plus interest at the rate of 6 percent, in the manner set forth in the section of this decision entitled "Conclusions," minus any tax withholding required by Federal and State laws. b In addition, I believe that Respondent's argument cannot.be sustained under the law as established by the Courts . See N.LRB. v. J. H. Rutter-Rex Manufacturing Company, Inc., 346 U.S. 258 (1%9). 9 As is provided for in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and legulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A The chart below shows the computations for the total backpay due Joel Colman , which is $38 ,659.57, for the backpay period August 11, 1966, to May 7, 1968. 1 2 3 4 5 6 7 8 Qtrs. Wks. Earn- Otr. Qtr. Qtr. Interim Qtr. Net Qtr* in ings Gross Expenses Earnings; Interim Net Qtr. Backpay Employer Earnings Backpay 3d - 7 $750 $5,250 $ 848.50 $400 Eddie 4,351.50 $893.50 1966 Colman & Assoc. , $4,800 Self 4th 13 750 9,750 1,371.94 $2,200 Self 828.06 8 ,921.94 1966 1st 13 750 9,750 7,730.97 $11,146.72 3,415.75 6,334.25 1967 Self 2d 13 750 9,750 7,730.97 $11,146.72 3,415.75 6,334.25 1967 Self 3d 13 750 9,750 7,730.97 $11,146.72 3,415.75 6,334.25 19671 -- Self 4th 13 750 9,750 7,730.97 $11,146.72 3,415.75 6,334.25 1967 Self 1st 13 750 9,750 2,244.43 I $300 Self 6,247.87 3,502.13 1968 7,692.30 Pecan Assoc 2d Interim Interim 1968 earnings earnings to end equal or equal or of exceed exceed backpay backpay backpay period 5-7-68