Central Freight Lines, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Freight Lines, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 16-CA-8049 February 17, 1983 SUPPLEMENTAL DECISION AND ORDER On March 30, 1982, Administrative Law Judge Robert A. Gritta issued the attached Supplemental Decision in this proceeding. Thereafter, the General Counsel filed exceptions, a supporting brief, and a brief in support of the Administrative Law Judge's Decision. Respondent filed cross-exceptions, a supporting brief, and an answering brief to the General Counsel's exceptions. The Board has considered the record and the attached Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,¹ and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as set forth below. 1. Following a hearing regarding the amount of backpay due discriminatees Charles D. Barrett and Bruce B. Haire,2 the Administrative Law Judge found that the appropriate formula for calculating their gross backpay should be based on an average of the hours worked by all pickup and delivery helpers, whether part time or full time and without regard to employment tenure during the entire backpay period. The General Counsel excepts to the Administrative Law Judge's failure to utilize only full-time pickup and delivery helpers who were employed as full-time employees throughout the entire backpay period as the basis for computing gross backpay. We find merit in the General Counsel's exception. Respondent, during the backpay period, employed 81 pickup and delivery helpers, some of whom were classified as full-time employees and some as part-time employees. Twenty-one of those 81 worked the entire backpay period and were classified as full-time employees throughout that period. Barrett and Haire, who were long-term employees with Respondent, were classified as fulltime pickup and delivery helpers. 1 The General Counsel and Respondent have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Board's original Decision and Order finding that Respondent unlawfully discharged Barrett and Haire and directing Respondent to make them whole is reported at 246 NLRB 71 (1979). The Fifth Circuit Court of Appeals affirmed the Board's Decision. 624 F.2d 1301 (1980). Further, Respondent maintains a benefit program under which full-time employees receive 45 hours per week vacation pay and 9 hours per day holiday pay, while employees classified as part-time are entitled to 25 hours per week vacation pay and 5 hours per day holiday pay. Finally, according to unrebutted (see infra) testimony, inspection of the Company's records indicated that part-time employees worked fewer hours on an overall basis than did full-time employees. In choosing a representative group of employees, the General Counsel must select similarly situated employees.³ Here, the evidence that the hours worked by full-time and part-time employees differed significantly, the fact that part-time employees were paid for fewer hours for vacation and holiday pay, and the very existence of such a classification system are sufficient to establish a prima facie case that the full-time classification differed in substance from the part-time classification, and warrants the conclusion that the average number of hours worked by those employees classified as fulltime more closely approximates the number of hours the discriminatees (who were long-term, fulltime employees) would have worked during the backpay period than would a formula averaging the hours worked by the 81 employees. Indeed, we believe that, absent adequate rebuttal evidence, to include the remaining 60 employees in the representative group would be an arbitrary grouping of dissimilarly situated employees. Respondent's attempt to rebut this evidence fails to address the critical factors separating part-time from full-time employees. Thus, Respondent testified that an employee's classification as a part-time employee does not determine to what location that employee is assigned nor does it restrict the number of hours that employee may work. But these theoretical assertions fall short of being the specific statement (that part-time and full-time employees averaged overall a similar number of hours per biweekly period)4 necessary to dispute the specific testimony that part-time employees worked fewer hours than full-time employees on an overall basis.⁵ Respondent also failed to offer any convincing explanation for the fact that full-time status entitled an employee to almost twice the number of 3 See the Board's Casehandling Manual (Part Three), Compliance Proceedings, sec. 10542, et seq. 4 At most the record indicates that on occasion part-time employees may work as many or more hours than full-time employees. Such evidence does not rebut the testimony, based on observation of the Company's records, regarding the overall average of hours worked by part-time and full-time employees. 5 Evidence, such as the Company's records or credible testimony specific to the issue of actual hours worked, could rebut the General Counsel's specific testimony. Absent such evidence, the General Counsel's prima facie case stands unrebutted. 266 NLRB No. 31 CENTRAL FREIGHT LINES, INC. hours per week vacation pay and almost twice the number of hours for holiday pay that part-time employees received. We therefore find that the formula used by the General Counsel (i.e., the average hours worked by all full-time pickup and delivery helpers who worked throughout the entire backpay period as full-time employees)⁶ is reasonable, and shall order the calculation of gross backpay to be computed accordingly. 2. The Administrative Law Judge found that the General Counsel, by deducting vacation pay amounts from Barrett's and Haire's interim earnings, credited them with double earnings for the weeks of vacation. He, accordingly, ordered that the vacation entitlements not be deducted from interim earnings. Contrary to the Administrative Law Judge, we hold that credit for the discriminatees' vacation pay should be deducted from their interim earnings. Discriminatees Barrett and Haire were entitled to a third week of vacation in 1978, subsequent to their discharge. They were also entitled to 3 weeks each of vacation in 1979 and 1980. Respondent bases its argument that the discriminatees are not entitled to receive credit for their lost vacation pay on the following vacation policy: to receive vacation pay, an employee must actually take the time off; if a vacation is not taken during the year, it is forfeited. Respondent argues, and the Administrative Law Judge agreed, that the method of calculation used in the General Counsel's revised backpay specification results in a double payment to the discriminatees. It is well-settled law that vacation pay is properly included in a backpay award.⁷ The formula of crediting vacation pay by reducing the employee's interim earnings by the number of weeks of vaca- 6 The General Counsel's witnesses testified it was their experience that employees with long tenure have lower rates of absenteeism than employees with short tenure, and will generally have greater opportunity to perform available work during a business slowdown. On this basis, the General Counsel excluded employees who had not worked the entire backpay period. This approach is consistent with Board practice. See the Board's Casehandling Manual (Part Three), Compliance Proceedings, sec. 10542.2b. The General Counsel excluded those employees who worked 48 hours or less in a biweekly period. It is not clear from the record how many, if any, full-time employees worked 48 hours or less in a biweekly period. It does appear that there were no employees who were classified (and worked the entire backpay period) as full time who worked 48 hours or less in a biweekly period. The General Counsel's exclusion is consistent with Board practice. See the Board's Casehandling Manual (Part Three), Compliance Proceedings, sec. 10564. Based on the record, and for the reasons discussed by the Administrative Law Judge, we reject Respondent's argument that the hours worked by employees who replaced Barrett and Haire is the appropriate measure of backpay due in this case. 7 The Richard W. Kaase Company, 162 NLRB 1320, 1325 (1967). tion due each was upheld by the Board in Heinrich Motors, Inc.⁸ In Sioux Falls Stock Yards Company,⁹ the Board was confronted, in a backpay case, with an employer that alleged it maintained a vacation policy virtually identical to that of Respondent. The Board, in awarding vacation pay in Sioux Falls, rejected the same defense offered by Respondent in this case. 10 The Board found in Sioux Falls that the employer's position "that employees could only receive vacation benefits by actually taking a vacation overlooks the fact that the discriminatees were precluded from exercising that option during the respective backpay periods by the [employer's] unlawful conduct." The Board also rejected the employer's argument that the discriminatees would be unjustly enriched, stating, in part, as follows: The further contention that, under the General Counsel's computation, there was provided a possibility that employees then might receive annual compensation in excess of 52 weeks in consideration of their vacation pay was considered in Heinrich Motors, Inc., where such a formula was upheld. In that case, it was noted that the discriminatee rather than the respondent should secure the benefit of working time in excess of that which he would have worked for the respondent. This is valid here, for any computation based upon an assumption that the [employer's] employees would have worked through their vacation periods without specifically being paid therefor would be based on a premise of unjust enrichment to the [employer]. Here, as in Sioux Falls, the discriminatees were denied an opportunity to take their vacations as a direct result of Respondent's discrimination against them. Thus, it is not that awarding vacation pay will place the discriminatees in a better pecuniary position than they otherwise would have been. Rather, the Administrative Law Judge has permitted Respondent-by means of its unlawful discrimination against Barrett and Haire-to require them 6 166 NLRB 783, 792-793 (1967), enfd. 403 F.2d 145 (2d Cir. 1968). 9 236 NLRB 543, 545 (1978). 10 The Administrative Law Judge's reasoning that there is an "evidentiary" difference between this case and Sioux Falls represents a clear misreading of the decision in Sioux Falls. In that case, it was noted that the employer's position with regard to vacation pay was "not supported by any language in the collective-bargaining agreement" nor was its position "otherwise supported or established in the record." However, the issue of awarding vacation pay was not decided solely-or even primarily-on that basis. Rather, the Board, in adopting the decision of Administrative Law Judge Schwarzbart in Sioux Falls, reached and rejected on the merits the same defense proffered by Respondent in this case. Clearly, the Board's decision in Sioux Falls mandates-as to the vacation pay issue-a result contrary to that reached herein by the Administrative Law Judge. DECISIONS OF NATIONAL LABOR RELATIONS BOARD to forfeit their vacation time. 11 Thus, Respondent is allowed to benefit from its unlawful acts. In sum, as in Sioux Falls, we refuse to permit the wrongdoer to gain from its unlawful acts, and therefore award vacation pay in this case. 3. The Administrative Law Judge found that Respondent must reimburse Haire for out-of-pocket medical expenses incurred as a result of an on-thejob injury he sustained during his interim employment. Although we find that Respondent must make Haire whole for the medical expenses, we do so on the following basis only. 12 A discriminatee is entitled to credit for out-ofpocket expenses incurred in seeking and maintaining interim employment. For example, the Board has allowed credit for transportation costs associated with finding and maintaining interim employment, Sargent Electric Company, 244 NLRB 763 (1979); board and lodging where the claimant's interim work is away from home, id.; and union dues required as a condition of interim employment, Carter Lumber, Inc., 227 NLRB 730 (1977). Such expenses are deducted from interim earnings. Haire, concededly, sustained an on-the-job injury during his interim employment as a carpenter. As a result of that injury, he incurred medical expenses of $2,002.98. The cost associated with a work-related injury sustained during interim employment is an expense incurred in maintaining interim employ- 11 Contrary to our dissenting colleague, Chairman Miller, our ruling regarding vacation pay in no way exceeds our remedial authority. Rather, the awarding of vacation pay is essential to make whole the discriminatees for the direct consequences of Respondent's discrimination against them. In N.L.R.B. V. Strong. d/b/a Strong Roofing & Insulating Co, 393 U.S. 357, 358-359 (1969), the Supreme Court stated, in part, as follows: Section 10(c) of the Act empowers the Board when it adjudicates an unfair labor practice to issue "an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act." 61 Stat. 147, 29 U.S.C. § 160(c). This grant of remedial power is a broad one. It does not authorize punitive measures, but "[m]aking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces." Phelps Dodge Corp. V. N.L.R.B., 313 U.S. 177, 197 (1941). See also Gullett Gin Company, Inc. V. N.L.R.B., 340 U.S. 361 (1951). Certainly, a failure to recognize that the discriminatees were unlawfully deprived of their vacations results in a partial remedy that leaves the discriminatees less than whole. Accordingly, to effectuate the purposes and policies of the Act, the remedy must include the awarding of compensation to the discriminatees for their lost vacations. 12 As Respondent points out, the injury herein was work related and therefore would not have been covered by the Company's health plan. That the expense is due to a work-related injury distinguishes this case from Sam Tanksley Trucking, Inc., 210 NLRB 656 (1974), Saginaw Aggregates, Inc., 198 NLRB 598 (1972), and related cases. Those cases deal with expenses arising from nonwork-related health problems. Respondents are obliged to bear those costs to the extent the claimants would have been covered by respondents' health insurance policies. An expense incurred in maintaining interim employment is, analytically, different from nonwork-related expenses. ment. 13 Accordingly, in accord with our practice in such cases, Haire's medical expenses incurred from the interim employment work-related injury shall be deducted from his interim earnings in the appropriate quarter. 14 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent, Central Freight Lines, Inc., Irving, Texas, its officers, agents, successors, and assigns, shall pay to Charles D. Barrett the amount specified as net backpay due in the appendix to this Supplemental Decision and Order, plus interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977), less tax withholdings required by Federal and state laws. IT IS FURTHER ORDERED that this proceeding as it involves Bruce B. Haire be remanded to the Regional Director for Region 16 for further action consistent with the recommended Order of the Administrative Law Judge, as modified herein. CHAIRMAN MILLER, dissenting in part: I agree with the majority opinion in all but one respect. The majority has ordered that vacation pay for specified periods of time be deducted from interim earnings. I believe that, in the circumstances herein, this improperly provides the claimants with double earnings for those periods, and I accordingly dissent. It appears that the claimants did not work continuously during the backpay period. And no one disputes that Respondent maintains a policy which 13 American Manufacturing Company of Texas, 167 NLRB 520 (1967), does not compel otherwise. That case and its progeny deal only with the question of when a claimant becomes unavailable for work, and the resultant tolling of gross backpay. In determining whether a claimant injured on an interim job has become unavailable, we look to the nature of the injury suffered. It does not follow, from the fact that we toll the accumulation of gross backpay when a claimant (during interim employment) sustains an injury which he might have expected to suffer while working for respondent, that respondent is liable only for expenses (incurred during interim employment) associated with an injury not likely to have occurred if working for respondent. We believe responsibility for the expenses resulting from an on-the-job injury sustained during interim employment-which the claimant was forced by respondent's discrimination to seek and maintain-should be borne by respondent (rather than the claimant) in the same manner other expenses associated with maintaining interim employment are allocated. We do not intend by this ruling to alter our treatment of workmen's compensation payments received in calculating interim earnings. 14 We are unable to calculate the backpay due Haire, since the record does not disclose when he received $500 which the Administrative Law Judge ordered included in his interim earnings. We therefore shall remand this proceeding (as it relates to Haire) to the Regional Director to take action necessary to comply with the Administrative Law Judge's Decision as modified herein. CENTRAL FREIGHT LINES, INC. provides that an employee must actually take time off in order to receive vacation pay; if time is not taken off during the year, then the employee forfeits the vacation pay. In other words, an employee who is entitled to 3 weeks' vacation during the year may not collect 55 weeks of pay by working 52 weeks and receiving 3 additional weeks of pay for the vacation time he did not take. Given the above circumstances, I believe the majority's order improperly awards the claimants the 3 additional weeks of pay. Here, had the claimants continued to work for Respondent, they would have earned no more than the amount specified as gross backpay. Yet, the majority in effect credits them with substantially more than that amount by deducting 7 weeks' vacation pay from interim earnings, as well as calculating gross backpay as the maximum amount the claimants could have earned in Respondent's employ. The facts in this case are distinguishable from Sioux Falls Stock Yards Company, 236 NLRB 543 (1978). As the Administrative Law Judge herein noted, the Sioux Falls respondent's assertion that employees could only receive vacation benefits by actually taking a vacation was not supported by the record. 15 The Board presumed (absent evidence to the contrary) that an employee could receive annual compensation in excess of 52 weeks in consideration of his vacation pay in order to insure that the claimant rather than the respondent should secure the benefit of working time in excess of that which he would have worked for the respondent. Here, of course, such a vacation policy has been established. Further, as noted above, the claimants did not, in fact, work steadily throughout the backpay period. Thus, the Administrative Law Judge's recommended remedy does not deprive the claimants of compensation for time worked in excess of that which they would have worked for Respondent. On the contrary, by calculating backpay as the majority does, the Board places the claimants in a better position than they would have occupied had the discrimination never occurred. Such a result exceeds the Board's remedial powers, which are to restrain violations and to remove the consequences of violations found. Consolidated Edison Company of New York, Inc., et al. V. N.L.R.B., 305 U.S. 197, 236 (1938). I believe the Administrative Law Judge's recommended remedy accords with the Supreme Court's definition of the limits of the Board's remedial authority. Therefore, I would adopt his decision regarding the vacation entitlements issue. MEMBER HUNTER, dissenting in part: I join in the majority opinion except with respect to the issue of the deductibility of out-of-pocket medical expenses incurred by a discriminatee as a result of a work-related injury during interim employment. The majority finds that such expenses are to be deducted from interim earnings when computing a discriminatee's backpay award because they are deemed expenses "incurred in maintaining interim employment." I do not agree. The Board's ordinary remedy for discriminatory discharge is backpay, with interest, less interim earnings. Additional room and board expenses, transportation costs, and union dues incurred in obtaining and maintaining interim employment are properly deducted from interim earnings since they can be attributed directly to the original employer. That is, the discriminatee would not be seeking or continuing interim employment absent the discrimination against him by that employer. Out-of-pocket medical expenses incurred due to a work-related injury on an interim job, however, are not in any real sense causally related to the original discrimination. Although the discriminatee would not have been on the interim job and thus would not have been injured there, absent the original discrimination, the accident itself is the proximate, intervening cause of the injury. In my view, the causal connection between the discrimination and the injury is too attenuated to justify deducting such expenses from the discriminatee's interim earnings. Moreover, employers generally are liable under workers' compensation statutes for medical expenses incurred by those who are injured while in their employ. I see no basis for finding, as in essence the majority does, that a discriminatee's original employer is secondarily responsible and indeed thrust in the status of a guarantor for such medical expenses if the interim employer fails to pay them. Accordingly, I dissent on this issue. APPENDIX NAME: Charles D. Barrett 15 Given this critical factor which distinguishes Sioux Falls from the instant case, I believe that other comments purporting to dispose of a case not before the Board are mere dicta. Heinrich Motors, Inc., 166 NLRB 783 (1967), provides no underpinning for the dicta, since that case also did not involve the type of vacation policy at issue here. Net Gross Net Calendar Quarter Interim Backpay Backpay Earnings 1978/3 $2,925.86 $934.65 $1,991.21 1978/4 14,817.55 4,668.71 148.84 1979/1 5,426.33 4,405.50 1,020.83 1979/2 4,666.50 4,769.49 0 1979/3 5,518.37 4,382.01 1,136.36 1979/4 24,727.29 4,833.66 0 1980/1 5,679.08 4,919.48 759.60 1980/2 4,890.33 3,998.01 892.32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX-Continued NAME: Charles D. Barrett Net Gross Net Calendar Quarter Interim Backpay Earnings Backpay 1980/3 6,120.90 3,287.74 2,833.16 1980/4 1,311.99 2,240.60 0 1980/4 3 1,127.16 Net backpay due $9,909.48 1 Includes Christmas bonus of $35. 2 Includes Christmas bonus of $37.50. 3 Refund due for benefits from employees' profit-sharing and retirement plan. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge: On October 15, 1979, the National Labor Relations Board, hereinafter the Board, issued its Decision and Order¹ directing, inter alia, Central Freight Lines, Inc., hereinafter called Respondent, to reinstate and make whole, with interest, employees Charles D. Barrett and Bruce B. Haire for any loss of earnings suffered by reason of the discrimination against them. On August 27, 1980, the United States Court of Appeals for the Fifth Circuit entered its judgment denying Respondent's petition for review and enforcing the Board's Order. Agreement could not be reached as to the amount of backpay due Barrett and Haire, so the Regional Director for Region 16 of the Board issued a backpay specification and notice of hearing alleging the amounts of backpay due Barrett and Haire under the Order, as enforced. Respondent filed a timely answer denying the specifications.3 The matter was heard before me on November 4 and 5, 1981, in Fort Worth, Texas. Upon the entire record, including briefs submitted by both parties, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS I. ISSUES Respondent disputes the formula used by the Regional Director in determining the gross backpay. Respondent also denies that the claimants are entitled to receive credit for lost vacation pay and that such entitlement was properly calculated by the Regional Director. Respondent would mitigate its liability to Haire by not including his medical expenses, time off work due to an injury, moneys for a bad check received from an interim employer, nor the period of time in which he was selfemployed. Further, Respondent contends that Barrett should not be compensated for his lost vacation pay or 1 246 NLRB 71. 2 624 F.2d 1301. his time off work due to injury.4 The parties stipula to the accuracy of figures and the underlying data us by each in their respective pleadings as amended. 3 The specifications, although amended during the proceedings, are still in dispute. II. CALCULATION OF GROSS BACKPAY A. The Evidence Respondent employs 81 pickup and delivery helpers Dallas. Each pickup and delivery helper works at a c tomer's warehouse location which is separated from F spondent's home terminal in Dallas. Usually each CI tomer's warehouse is manned daily by two pickup a delivery helpers assigned to that particular warehou Barrett and Haire were so employed at the B. F. Goc rich warehouse prior to their termination. Although B: rett and Haire are full-time pickup and delivery helpe many of the 81 employees are part-time helpers w. may work as many or more hours than full-time help and for the same pay, but where holiday and vacati benefits are concerned, the part-time helpers receive It benefits. On average, Barrett and Haire worked 45 hot per week or 90 hours per biweekly pay period, althou their hours began reducing just prior to termination. B rett and Haire were replaced by employees Clem Ha and Tom Hopkins for 1 week then Donald Stracener ai Wayne Grunke were assigned to the warehouse. Grun worked at the warehouse until June 1, 1980, at whi time Stracener continued working alone through the I mainder of 1980. The replacement employees average less than 45 hours per week and 90 hours per pay perio The investigation of the backpay as ordered was co ducted by David E. Maynes and Billy M. Gibson Maynes was responsible for the calculations once a fo mula was determined. Maynes began his investigation t interviewing the claimants for their work history. R spondent was then asked to submit data upon which tl backpay could be calculated.⁷ Respondent submitted rej resentative hours of four employees who worked aft Barrett and Haire were terminated.⁸ Gibson and Mayn 4 The dates of the backpay periods for Barrett and Haire, the rates pay applicable during the periods, the Christmas bonuses and benefits di from the profit-sharing and retirement plans are not in dispute. Additio ally, Barrett declined reinstatement, whereas Haire was reinstated. 5 During the course of the hearing I requested an exhibit showing tl warehouse location of those employees selected by the Region as "repr sentative" during the backpay period. I anticipated cooperation betwer General Counsel and Respondent to compile such an exhibit. Althoug compiled by Respondent from interviews with the pickup and delive helpers involved, General Counsel elected not to join in a joint submi sion into the record due to lack of support from Respondent's record Respondent has offered the exhibit into the record without Gener Counsel's assent. Pursuant to my request, without agreement from bot counsels, there will be no joint exhibit. However, I will receive the con pilation as Resp. Exh. 6 for the limited purpose of showing various war houses where pickup and delivery helpers were employed. The exhib otherwise will not be considered. 6 The Regional Office experience of both Maynes and Gibson in baci pay matters is not questioned by Respondent. 7 Respondent has cooperated during the investigation and with no hii of any wrongdoing particularly as to actions involving the hours worke by any employees at any warehouse location. 8 Employees Grunke, Haun, Hopkins, and Stracener (replacements fc Barrett and Haire) worked at the B. F. Goodrich warehouse during th backpay period. CENTRAL FREIGHT LINES, INC. compared the submitted data with that information supplied by the claimants. A variance between the hours worked before termination and the hours worked by the replacements was discovered. Maynes and Gibson decided to check the payroll records for all pickup and delivery helpers employed out of the Dallas terminal. Maynes checked the records for all pickup and delivery helpers employed from August 1978 to October 1980. In addition, Maynes identified the employees as full time, part time and with any interim change in classification. Several questions dealing with the Company's policies on vacation, holiday pay, and the profit-sharing and retirement plans also needed resolution.9 Armed with information gleaned from Respondent's payroll records, Maynes returned to the Regional Office. Subsequently, Maynes and Gibson decided to only formulate the hours of the regular full-time pickup and delivery helpers who were employed during the entire backpay period and who worked in excess of 48 hours each biweekly pay period. Maynes testified that the limitations arrived at were equitable because, absent the discharge, Barrett and Haire would have worked the entire backpay period as fulltime employees. On cross-examination Maynes stated that initially he considered the formula proposed by Respondent utilizing the hours worked by the replacements for Barrett and Haire, but, when calculations were completed, the total hours were less than what Barrett and Haire thought they would have earned, so Maynes rejected the use of replacement employees as representative. Additionally, Maynes stated that he did not calculate backpay using all full-time pickup and delivery helpers with long tenure during the backpay period. Robert Aguirre testified that for the last 5 years of his 13-year employment with Respondent he has been assigned to the Shippers warehouse. Prior to 1976, the pickup and delivery helpers all reported to Respondent's main terminal to clock in and then went to their respective warehouse location or in some cases worked several hours at the main terminal before reporting to a warehouse. In 1976 the clocking in and timekeeping procedure was changed to have pickup and delivery helpers go directly to their assigned warehouse from their residence. 10 Aguirre stated that before the timekeeping change when his warehouse duties did not fill an entire day he sometimes could finish out the day at the main terminal. On occasions, he could fill out his usual 9-1/2- hour day. After the change in timekeeping was made, whenever he had a day's work of less than the usual hours, he called in his time and went home. Such short days would result in weeks of less than 45 hours. However, there were times when work would be available at the main terminal so he could realize a full day's work and thereby maintain a full workweek of 45 hours. 9 Respondent submitted answers to all of Maynes' inquiries accompanied by company records when needed. 10 The parties stipulated that in the fall of 1978 the method of timekeeping and clocking in for pickup and delivery helpers was changed. The new method allowed pickup and delivery helpers to go directly to their assigned warehouse from home. Upon arrival at the warehouse, each pickup and delivery helper called in to the main terminal to report his arrival at his work station. Billy Gibson, Region 16 Compliance Officer, testified that one of the replacement employees for Barrett and Haire was a part-time employee, at least for a portion of the backpay period. It was this part-time status in conjunction with the different job classification that made the use of any part-time employees to calculate gross backpay inappropriate. 11 The use of full-time pickup and delivery helpers who had not worked the entire backpay period was not considered since Barrett and Haire were long-term employees and the Region felt that a long tenure for employees yields a greater opportunity for available work as well as less absenteeism. Respondent's records did reflect a slowdown of business at the various warehouse locations beginning in the second quarter of 1979; however, where any doubt exists in calculating backpay, it is resolved against the entity that caused the discrimination. Albeit the records reflected less hours worked at some warehouses and a continuation of hours worked at other warehouses, the overall average for all warehouses was the yardstick. Gibson testified: Since there was a doubt with regard to the formula that was proposed (replacement employees) with regard to the hours that were worked, I consciously resolved it in favor of the discriminatees and used the formula that appears in the backpay formula. Gibson stated that the Region did not know the extent to which the replacement employees would have been allowed to work the hours that the claimants would have worked had they continued employment. In fact, in all his years he has not used a replacement employee formula, nor in this case were the replacements for Barrett and Haire included in the calculations for gross backpay. Charles Barrett testified that approximately 4 months prior to his termination he replaced Clem Haun at the B. F. Goodrich warehouse on a permanent basis. Barrett's usual starting procedure was to clock in at the main terminal and then proceed to the Goodrich warehouse. At the end of his day he would return to the main terminal and clock out. The Goodrich warehouse was engaged in shipments of tires for vehicles. His usual workweek at Goodrich was 45 hours or more. On occasion, when the Goodrich workload was short, he may be dispatched to another warehouse where the workload was heavy or return to the main terminal to clock out. If no other warehouse work was available, he would simply go home. The availability of other warehouse work could occur from once a week to once a month, depending upon the amount of freight moving, although in recent years the amount has dwindled. At Goodrich there has been a steady decline in shipments which began prior to his termination. After his termination Barrett sought and secured employment at several freight lines which lasted throughout the backpay period. Bruce Haire testified that prior to his termination he averaged 45 hours per week based upon 9-1/2 hours per day. Each day he clocked in at the main terminal and 11 The parties stipulated that Grunke was a part-time employee from August 16, 1978, to February 25, 1979 (a portion of the backpay period) and Stracener was a full-time employee the entire backpay period. DECISIONS OF NATIONAL LABOR RELATIONS BOARD then reported to his assigned warehouse, B. F. Goodrich. On short days at Goodrich, Haire did not report to any other warehouse or to the main terminal for extra work to fill out such short days. Prior to termination, Haire was getting less hours per day at Goodrich due to a decline in shipping which resulted in less hours each biweekly period. Haire was only paid for hours he worked at the B. F. Goodrich warehouse, and he was expected to work 8, 8-1/2, 9, or 9-1/2 hours, whatever it took to get the customer's freight out. Although Haire worked at several different warehouses during his tenure, he only worked at one on any given day. There were no bidding practices nor benefits accrued based upon seniority or length of service, particularly as either related to hours of work available or locations of work available. Since his reinstatement, Haire reports directly to his assigned warehouse and reports his starting time to the main terminal upon arrival at his station. At the end of the day he, likewise, calls in his quitting time. The new method reduced his paid for hours by 45 minutes per day. W. W. Callan, chairman of the board of Respondent, testified that several of the warehouses¹ serviced by the main terminal require extra hours by the pickup and delivery helpers to accommodate computer selection of shipments, whereas the other warehouses including B. F. Goodrich decide daily what will be shipped and ship nothing more. In some cases these special warehouses function on Saturdays and require the services of a pickup and delivery helper an extra day. Callan stated that the change in method of clocking in and out made in 1978 resulted in the Company not paying pickup and delivery helpers for the time spent traveling from the main terminal to their respective warehouses. Callan further stated that Respondent has no seniority or job bidding procedure anywhere in its system. Additionally, a pickup and delivery helper's tenure does not bestow any transfer rights upon the individual. Unless there is a mutual agreement between Respondent and employee, the original assignment of a warehouse remains unchanged. However, management of a given department may decide to transfer an employee at any time to a different location. An employee's request for a transfer would be considered, but the final determination is made by management. Callan further testified that a full-time status as opposed to a part-time status is not distinguishable when making assignments of pickup and delivery helpers to warehouses. Neither classification has any limitation on the number of hours it can work in a day or week. Both classifications will perform the work that is available without regard to the total hours involved. Callan also stated that the work performed by pickup and delivery helpers at B. F. Goodrich was not similar in functions nor volume to other warehouses dealing with different materials. 13 B. Analysis and Conclusions The backpay specification alleges that Respondent is obligated to pay Barrett and Haire the sums of $9,909.48 and $23,263.85, respectively, plus interest. General Counsel contends that the use of representative employees in computing gross backpay is an approved Board formula. Moreover, General Counsel argues that the formula used to compute the gross backpay due Barrett and Haire was the most desirable formula available. Respondent contends that the most appropriate formula for calculating gross backpay of Barrett and Haire is the biweekly average of the hours worked by their replacements at the B. F. Goodrich warehouse location. There is no requirement that any special formula be employed to compute backpay nor does the formula chosen have to provide a method of determining backpay due with mathematical exactitude. All that is required is that the formula be reasonably designed to arrive at as close an approximation of the amount of backpay due as possible. Further, a formula may include different classifications or work functions from that of the claimant, and such inclusion is not dependent upon the existence of a seniority policy or tenure policy. Once General Counsel has selected a formula to use, the calculation of gross backpay becomes an arithmetical function. In a backpay proceeding General Counsel's main burden is to establish the amounts of backpay due. His prima facie burden of proof is met when he demonstrates what would not have been taken from the employee if the company had not contravened the Act. 14 The burden is now on Respondent to establish facts which would negate the existence of liability to a given employee or which would mitigate that liability. Further, as here, where Respondent questions General Counsel's formula for calculating the gross backpay, he must show by a preponderance of the evidence that the General Counsel has acted unreasonably and arbitrarily resulting in an unfair liability. 15 The mere suggestion by Respondent that a formula previously found appropriate be used is not sufficient, for the fact that one of several methods of computation available is used, rather than another, is not tantamount to an abuse of discretion requiring rejection of the chosen method. Where, as here, the parties adduce facts in support of their respective positions, it is for the Administrative Law Judge to consider whether General Counsel's formula is the proper one in view of all the facts and to make recommendations to the Board as to the most accurate method of determining the amounts due. 16 The record clearly shows that each pickup and delivery helper is permanently assigned to a particular customer's warehouse with no rights of transfer. No rights accrue to helpers as a result of seniority or longevity albeit an employee's length of service may be considered when employee requests are made. There is no guarantee of hours per week to any helper nor is there any guarantee of allowance for helpers to work additional hours 12 Southwest warehouse, Texas Cartage Company, Trammel Crow, Morgan warehouse, Alford warehouse, J. C. Penney warehouse, Bristol- Meyers warehouse, and Abbott Laboratories warehouse. 13 The parties stipulated that the B. F. Goodrich and Goodyear warehouses were the only locations shipping or receiving tires. 14 N.L.R.B. V. Virginia Electric & Power Company, 319 U.S. 533, 544 (1941). 15 N.L.R.B. V. Mooney Aircraft Inc., 366 F.2d 809 (5th Cir. 1966). 16 American Manufacturing Company of Texas, 167 NLRB 520 (1967). CENTRAL FREIGHT LINES, INC. away from their assigned warehouse location. Further, the record does not show that part-time pickup and delivery helpers work less hours per day or week than fulltime pickup and delivery helpers. More particularly, the record does not reveal that part-time helpers are limited or restricted in the hours they may work in whatever location to which they are assigned. The record does reveal that helpers are assigned to warehouse locations without regard for their part-time or full-time status, and once assigned are required to work whatever hours are necessary to handle the shipments of the customer. It is a fact that part-time helpers do not receive the same vacation nor holiday benefits as full-time helpers, but both receive the same hourly wage. Further, the record shows that not all customers' warehouses require identical hours of work each day. Indeed, several require extra hours as well as extra days. It is clear, and I conclude, that each warehouse location may attempt to provide a full 8 hours' work to its assigned helpers, but in the last analysis the amount of hours worked on any given day is determined by the volume of shipments made by and for the customer. 17 I conclude and find that the formula utilized by General Counsel was unreasonable, arbitrary and, therefore, not conducive to accuracy in determining backpay amounts. In so concluding, I note particularly the following: Rejection of work histories of part-time employees due to less hours worked is not supported by the record evidence; thus, all pickup and delivery helpers work whatever hours are necessary to service the customer, and part-time status is a technical distinction related only to vacation and holiday benefits, not a substantive distinction related to work functions; rejection from computations of all pickup and delivery helpers who worked 48 hours or less in any biweekly pay period is arbitrary and completely overlooks and disregards General Counsel's usual approach to computations, whereby the discriminatees are given the benefits of averaging the highs and lows, the peaks and the valleys, of the earnings of the comparable employees in a sense of fair play; rejection from computations of al! pickup and delivery helpers who were employed less than the entire backpay period without regard for their respective history of weekly hours is again arbitrary and not in keeping with the averaging of the highs and lows to take advantage of complete comparability; General Counsel's representative group of 21 pickup and delivery helpers were the highest producers of hours worked-not a cross section of the 81 pickup and delivery helpers employed and, therefore, not representative nor average; General Counsel speculates that Barrett and Haire may not have remained at the B. F. Goodrich warehouse because of the uncontrollable reduction in working hours, but whether each would have received more hours somewhere else is speculation upon speculation and not supportive of accuracy in devising a formula to determine gross backpay; 18 General Counsel's argument that Barrett and Haire would have worked more hours than their replacements is not supported by record-in fact, the opposite is clearly shown; General Counsel failed to consider the replacement employees as a representative group simply because they averaged less hours than the claimants did prior to their termination; Gibson's statement that in 15 years he has not used replacement employees does not establish inappropriateness. The Sioux case relied upon by Gibson and Maynes found replacement employees appropriate as a representative group; General Counsel improperly questions the bona fides of the reduction in hours and labels it "unknown," but only because no inquiry was made into the "whys and wherefores." For General Counsel to base his rejection of the proposed use of replacement employees upon a circumstance subject to his investigation while characterizing it as "uncertain" so it can be resolved against Respondent, in my view is a prostitution of the Board's holding that "In the event amounts claimed to be in mitigation of backpay liability are uncertain, doubts must be construed against the wrongdoer." I view the "uncertainty" referred to by the Board as that advanced by Respondent, but lacking the requisite proof or incapable of proof. Further, I do not accept General Counsel's bootstrap argument suggesting that any and all circumstances involved in the backpay investigation, which tend to be speculative or uncertain, can and should be resolved in favor of the claimants. 19 In the last analysis, it is the purpose of backpay to put the claimant in his former position absent the discrimination; no more, no less. I, therefore, conclude that the appropriate formula in light of all the facts and a desire for accuracy is to calculate gross backpay based upon an average of the hours worked by all pickup and delivery helpers, whether part time or full time and without regard to which warehouse location they are assigned. Further, the pickup and delivery helpers' hours are to be included without regard to employment tenure during the entire backpay period, or not, and without regard to any lesser number of hours in any given pay period. In applying this formula General Counsel is to include all pickup and delivery helpers' hours worked during each and every quarter of the backpay period. Respondent has not adduced facts on this record to support a constant or certain change which would require adaptation of the backpay remedy to such change. Therefore, contrary to Respondent, I do not conclude nor find that the replacement employees are a representative group. The evidence shows that Barrett and Haire could have moved from the B. F. Goodrich warehouse to some other location hoping to get more hours of work than existed at Goodrich during the backpay period. Since any number of hours Barrett and Haire may have received due to a transfer is not readily ascertainable by ordinary methods, an averaging formula 17 If Gibson were correct in his recall that the part-time employees tended to have fewer hours, that in itself supports the proposition that a difference does exist among the warehouse locations, especially the B. F. Goodrich location. 18 As shown by the exhibits, the majority of those employees in the representative group were long-tenure employees and would not have been subject to giving up their hours to Barrett or Haire. Any location not among the 21 in the group would have yielded less than the 90 hours' average sought by the compliance officer and, therefore, the presumption that a transfer would have benefited Barrett and Haire is unfounded 19 E.g., if the shipment level of the warehouse had lowered, then the reduction in hours was substantiated. Once substantiated, the yardstick of replacement employees is more reasonable. DECISIONS OF NATIONAL LABOR RELATIONS BOARD would best serve the calculations. Such a formula is found above. III. MITIGATING FACTORS A. The Evidence Maynes testified that during the backpay period both Barrett and Haire were injured while engaged in interim employment. Without regard for whether either received workmen's compensation for the injuries, Respondent was charged for backpay during the period of injury. Barrett's injury covered approximately 3 weeks, and Haire's injury covered approximately 1 month. Neither Barrett nor Haire was able to work while injured.2⁰ With regard to calculation of vacation pay, Maynes stated that he first determined the amount of vacation eligibility and when each employee would have taken the vacation then deducted the amount due from each employee's interim earnings in the respective quarters. Maynes was aware of Respondent's vacation policy which required employees to take the time off or forfeit the vacation pay which in effect limits all employees to no more than 52 weeks' pay per calendar year. 21 Maynes further stated that an additional determination in calculating Haire's backpay was to exclude $500 from interim earnings on the basis that the paycheck representing the $500 earnings from Larry Smith, d/b/a Selco, was bad and Haire represented to Maynes that he did not intend to pursue a course of action on the check. Barrett testified that he had additional interim earnings in 1979 and 1980 from Lee Way Motor Freight and Sullivan Transfer. The amounts were evidenced by W-2 forms. 22 During the second quarter of 1980 Barrett was injured in the course of his employment with Yellow Freight and was off work, with compensation, for 3 weeks. After the 3-week layoff he returned to Yellow. Haire stated that after his termination he sought employment at several companies and signed up with the unemployment commission. He received several job offers at $3.50 to $4.50 an hour, but turned them down because he had determined that $6 an hour was the least he could accept. Within several weeks he did obtain employment with P & L Development Co. at $6 an hour, which he sought due to his desire to improve his carpentry skills. After a year and a half, with raises to $7 an hour, he quit P & L, over a personality clash with a new partner (an architect), and became self-employed, subcontracting carpentry work and also worked for several general contractors engaged in home construction and/or remodeling. Although all wages received by Haire for self-employment were tendered to the Regional Office during the backpay investigation, Haire did neglect to include such wages in his tax return for 1979. Haire's 1980 self-employment wages were reported for all purposes in all respects. 20 The parties stipulated that Barrett's injury occurred during the second quarter of 1980, and Haire's injury occurred during the second quarter of 1979. 21 The parties stipulated that Respondent's vacation policy was as Maynes understood it to be. 22 The error was unintentional and was cured by General Counsel's revised backpay specification. Haire sustained an injury during 1979 while work for P & L Development Co. and was hospitalized : off work for approximately 1 month. P & L did carry workmen's compensation or hospitalization ins ance; therefore, Haire did not receive any compensat for his injury or accompanying medical bills. Haire, while working for Larry Smith, d/b/a Sele received a $500 paycheck which was returned for insus cient funds. He attempted to collect on the check, t was unsuccessful at that time. However, Haire is cc tinuing his effort to collect the funds due him frc Selco. B. Analysis and Conclusions 1. Time off work due to injury/medical benefits It is admitted that both Barrett and Haire suffered ii juries while employed during the backpay period. Like wise, there is no dispute that Barrett received workmen compensation for his injuries through his interim employ er's benefits plan, whereas Haire's interim employer di not have any benefits plan which resulted in Haire cov ering all necessary expenses himself. Respondent argue that, while such injuries existed, the claimants were unable to work and, therefore, voluntarily not in the labor market. Thus, neither would be entitled to gross backpay allowance for the time of the injury resulting in a reduction in Respondent's liability. General Counsel correctly argues that in both cases, but for the discrimination, neither would have been put in a position to incur the injury; therefore, the onus rests with Respondent. To do otherwise would penalize the claimants for doing that which each must do; i.e., mitigate the damages due them as a result of the discrimination. Moreover, in Haire's case his injury was not compensated, causing him an out-of-pocket loss. Respondent argues that its medical plan specifically precludes coverage of an employee injured while engaged in employment or occupation for a wage or profit. Admittedly, Haire was engaged in employment for a wage contrary to the admitted terms of Respondent's medical plan, but, again, not only was Haire attempting to minimize his wage loss from Respondent, he was also doing what Respondent's discrimination forced him to do. Respondent's medical plan was obviously designed to discourage moonlighting by employees. Interim employment during a backpay period is not synonomous with moonlighting and would not violate the plan terms in any event. Respondent cannot cause Haire's search for other employment and then complain of his success in finding work. I, therefore, conclude and find that neither claimant was taken out of the labor market as a result of the on-theinterim-job injury, 23 and further that Respondent shall reimburse Haire $1,614.38 for his out-of-pocket expense of medical bills associated with his aforementioned injury.24 23 The result of an illness unrelated to the interim employment may very well cause a reduction in backpay liability, but that is not the case here. 24 The amount of Haire's medical expenses was stipulated by the parties and incorporated in the revised backpay specification. Since the Continued CENTRAL FREIGHT LINES, INC. 2. Vacation pay General Counsel included full entitlement of vacation pay for both claimants in his computations of backpay and did so by allowing a full quarter's gross backpay while at the same time deducting the vacation pay amount from interim earnings for the quarter, relying upon Sioux Falls Stock Yerds Company, 236 NLRB 543, 545 (1978). Respondent contends that neither claimant is entitled to vacation pay because the established policy is that vacations must be taken to be paid. Failure to take the time off results in a forfeiture of vacations. In the alternative, Respondent argues that if the claimants are entitled to vacation pay, the method of General Counsel's computation is in error in that each claimant receives double vacation allowance, in effect getting more than entitled to if the discrimination had not occurred. In this record there is no dispute that Respondent's vacation policy limits an employee to receipt of no more than 52 weeks' pay per year. General Counsel argues that the Board rejected the same argument in Sioux Falls so it has no efficacy here. General Counsel's contention overlooks the fact that the trier of fact in Sioux Falls was not faced with any record evidence to establish or support the vacation policy as argued. In my view, such evidentiary omission distinguishes Sioux Falls from the instant case. Here, it is clear that, without regard to discrimination and with no augmentable option, an employee must forfeit vacation pay if time off is not taken. 25 Therefore, General Counsel's computation erroneously places each claimant in a better pecuniary position as a result of the vacation entitlement than he would otherwise have been in. I conclude and find that General Counsel's method of vacation pay computation violates the Board's remedial provisions for backpay and shall require Region 16 to recompute vacation entitlement by including such weeks in gross backpay for the respective quarter with no correlative deduction from interim earnings for the quarter. In this way the claimant does not receive more vacation pay than he would have had he remained employed. 3. Haire's "bad check" interim earnings The record testimony shows that Maynes did not include the $500 represented by the bad check in Haire's interim earnings because Haire had stated during the investigation that he did not intend to pursue payment demand. However, while testifying, Haire stated that he did intend to pursue recovery of the $500 wages owed. Thus, General Counsel's failure to include the $500 in Haire's interim earnings is based upon a false premise and Company's medical plan was noncontributory, there is no cost for coverage during the backpay period. 25 The Richard W. Kaase Company, 162 NLRB 1320, 1326 (1967), cited by Respondent, involved the very vacation computation employed by General Counsel herein; however, in Kaase the claimants clearly had an option to take the time off with pay or work and receive the vacation pay in addition to regular wages. Therefore, the method of allowing gross wages to include full weeks and in turn deducting an amount of vacation pay from interim earnings in the same quarter is an accurate picture of what the claimant may have earned if employment had continued uninterrupted. requires Respondent to assume an obligation which is legally owed by a separate and distinct employment entity. I conclude and find, therefore, that the $500 represented by the bad check from interim employer Larry Smith, d/b/a Selco, be included with Haire's interim earnings for the respective quarter as any other wage is so included. Only then is Haire's gross backpay properly debited by his interim employment. 4. Self-employment-wilful loss Respondent contends that Haire's actions following his discharge did not constitute the good-faith effort required by the Board. Also, Respondent argues that Haire's voluntary departure from his interim employer, P & L Development Co., constitutes a willful loss of earnings for the period subsequent to his quitting. In support of its positions Respondent cites several cases;26 however, factually Respondent relies on the testimony of claimant Haire. The record shows that Haire made efforts to find interim work and did so. The Board law requires that a claimant make reasonable efforts to mitigate his loss of income by seeking employment. The reasonableness of his efforts are not measured by the highest standards of diligence, but rather by weighing all the factors such as skill, qualifications, age, and labor conditions in the area. Thus, a claimant's success in finding interim employment is not a measure of sufficiency since the law only requires a good-faith effort. Contrary to Respondent, I conclude and find that the evidence, in toto, establishes that Haire diligently sought other employment during the entire backpay period and particularly when he applied for and accepted employment at P & L Development Co. I do not find Haire's employment choice even remotely similar to the claimants' in Armstrong who made no efforts within the labor market. Further, Respondent equates Haire's voluntary quit at P & L with a willful loss of earnings and, therefore, he is ineligible for backpay for the remainder of the period. On its face, Haire's quit appears to be one of personal convenience, but when scrutinized, it clearly evolves to a job related difficulty. The late-arriving member of the P & L team was an architect who began changing established methods of performing the carpentry work. Albeit Haire was only required to alter his methods, not his skills application (it would be a habitual application, possibly daily)-and Haire possessed the capability to implement the changes-I perceive Haire's action as motivated by his pride of accomplishment and his knowledge that he did a job as well as it could be done. I conclude that Haire's conduct was job related and otherwise out of Haire's control or other area of compromise and, therefore, not tantamount to a willful loss of earnings. I find, therefore, that Respondent is obligated to Haire for the entire backpay period. On the basis of the foregoing and the entire record in this proceeding, I hereby issue the following recommended: 26 N.L.R.B. V. Armstrong Tire and Rubber Co., The Test Fleet Branch, 263 F.2d 680 (5th Cir. 1959); Knickerbocker Plastic Co., Inc., 132 NLRB 1209, 1215 (1961). DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER27 The Respondent, Central Freight Lines, Inc., Irving, Texas, its officers, agents, successors, and assigns, shall make the claimants involved in this proceeding whole by payment to them of amounts of backpay computed in 27 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. accord with this Supplemental Decision, plus interest, prescribed in F. W. Woolworth Company, 90 NLRB 2 (1950), and Florida Steel Corporation, 231 NLRB 6 (1977). In addition, Ressondent shall restore, if it has I already done so, the required redeposits to the Com₁ ny's profit-sharing and retirement plans for complains Bruce B. Haire. The backpay amount as computed sh be subject to any Federal, state, or local taxes requir by law to be deducted and remitted to the proper a thorities.