Weldun International

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