Greyhound Taxi Co., Inc.

GREYHOUND TAXI CO Greyhound Taxi Co., Inc . and Robert J. Sans and Automotive Teamsters, Chauffeurs and Miscel- laneous Employees Local 165, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America and Harold L. Wakefield. Cases 20-CA-10868, 20-CA- 12909, 20-CA-10892, and 20-CA-11154 27 February 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 4 June 1982 Administrative Law Judge Wil- liam L. Schmidt issued the attached supplemental decision.' The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's supplemental deci- sion. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, findings, and conclusions as modified and to adopt the recommended Order as modified. In the underlying unfair labor practice proceed- ing the Board determined that the Respondent had constructively discharged Wakefield by threatening and assaulting him. The assault caused minor physi- cal injuries which apparently incapacitated Wake- field for approximately 2 weeks. The Respondent was liable for backpay during that period. Ameri- can Mfg. Co. of Texas, 167 NLRB 520, 522 (1967). Wakefield concededly remained out of the job market for over 5 years after that due to what a fo- rensic psychiatrist testifying for the General Coun- sel described as a psychological disability, which allowed him to go to college but not to work. The judge found that the Respondent caused and there- fore is liable for the psychological disability. We accept the judge's crediting of the evidence that Wakefield was disabled inasmuch as that evidence was uncontradicted. But we part company on the question of responsibility. Under American Mfg., supra, a respondent in a backpay proceeding meets its burden for the tolling of backpay by showing that the discriminatee was unavailable for employment. This the Respondent has shown here. At that point the burden shifted to the General Counsel to rebut his defense by show- ing that the unavailability was due to the Respond- ent's unlawful conduct. Ibid. Even when such a showing is made in rebuttal, we do not know that the Board should be in the business of making ' The Board's original Decision and Order is reported at 234 NLRB 865 (1978) 459 open-ended awards for disability in the manner of a court in a civil tort action. See Graves Trucking, Inc. v. NLRB, 692 F.2d 470, 476-477 (7th Cir. 1982). In any event, here the General Counsel has not sustained his burden as to the cause and effect. The judge grossly oversimplified the psychiatric testimony when he characterized Dr. Groesbeck's conclusion as being that Wakefield's emotional dif- ficulties "resulted directly from the circumstances surrounding the attack upon him and the loss of his job." It is undisputed that Wakefield had required psychiatric treatment before he was employed by the Respondent. His employment history was char- acterized by unhappiness with previous employers and with the Respondent for some time prior to any unfair labor practices. Dr. Groesbeck, the Gen- eral Counsel's principal psychiatric witness, testi- fied that Wakefield was predisposed to his recent psychiatric condition by his lifetime pattern-that he was not "a fully capable, functioning individ- ual"-before his experiences with the Respondent. Dr. Groesbeck testified that the recent disability was the cumulative effect of a series of incidents including some that preceded the unfair labor prac- tices and to a lesser extent some that did not even involve the Respondent. Difficult relations with his own union also affected Wakefield's emotional equilibrium. The General Counsel's attempt to isolate the unfair labor practices as the immediate triggering cause fell short. Dr. Groesbeck stated that: I felt very clearly that the primary element of causation was the work situation and the varie- ty of incidents that had taken place that built up over the previous two years . . . . Counsel for the General Counsel elicited on redi- rect examination a statement that "the direct as- sault would have to be said to be more significant" than the other incidents. But nowhere is there any evidence that this incident standing alone would have had the same effect. Indeed Wakefield had ex- hibited erratic behavior prior to the constructive discharge, especially in relation to employment sit- uations. For these reasons we find completely unjustified the judge's conclusion that "Wakefield's disability resulted solely from the circumstances surrounding his attack and unlawful termination." Not only is the evidence contrary to that conclusion, it is insuf- ficient to support a reasoned conclusion that Wake- field would have been fit for work had the unfair labor practices not occurred. In these circum- stances the Respondent's backpay obligations ter- minated when Wakefield recovered from his minor physical injuries but remained out of the job 274 NLRB No. 60 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD market because of a preexisting psychological dis- ability. As the judge has provided us with no basis for determining the net backpay due Wakefield for the period of his physical disability we shall remand the backpay proceeding as to Wakefield to the judge in order to have him make that determi- nation consistent herewith. We shall adopt his rec- ommended Order as to employee Sans. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Greyhound Taxi Co., Inc., Sacramento, California, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Delete paragraphs 2(a) and (b) and renumber the subsequent paragraph accordingly. IT IS FURTHER ORDERED that this proceeding is remanded to the administrative law judge for the purpose of determining the amount of backpay and other restoration of benefits due to Harold L. Wakefield consistent with this Supplemental Deci- sion and Order. MEMBER DENNIS, dissenting. Contrary to my colleagues, I would not overturn the judge's findings in this admittedly unusual case. The uncontradicted psychiatric testimony estab- lishes, at the very least, that the Respondent's un- lawful conduct aggravated Wakefield's nondisa- bling mental condition into a disabling one. Such an aggravation of a preexisting condition is all the proof the Board requires. See Fabric Mart Draper- ies, 182 NLRB 390 (1970); M.F.A. Milling Co., 170 NLRB 1079, 1080 (1968), enfd. sub nom. Laborers Local 676, 463 F.2d 953 (D.C. Cir. 1972). A wrongdoer takes its victims as it finds them. SUPPLEMENTAL DECISION AND ORDER STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. This supplemental proceeding to determine the amount of backpay due two employees whose employment the National Labor Relations Board (the Board) previously found to have been discriminatorily terminated was heard by me on October 7 and 8, 1981 at Sacramento, California.' The General Counsel and the Respondent i The Board's Decision and Order in Cases 20-CA-10868, 20-CA- 10892, and 20-CA-11154, reported at 234 NLRB 865 and referred to hereinafter as Greyhound 1, issued on February 10, 1978 The Board's Order in Case 20-CA-12909, wherein the Board adopted the decision and recommended order of the administrative law judge in the absence of exceptions, issued on April 11, 1978 It is not officially reported but is referred to hereinafter as Greyhound II entered into certain stipulations which provide, inter alia, that they are unable to agree upon the amount of back- pay due to Robert J Sans (Sans) and Harold L. Wake- field (Wakefield) under the terms of the Board's Orders, and in the event of further judicial proceedings are nec- essary to enforce said Orders, the only issue before the court would be the validity of the backpay computation. Based on the foregoing, the Acting Regional Director for Region 20 of the Board issued a backpay specifica- tion dated January 19, 1981, wherein it was alleged that the total backpay principal due Sans through the third quarter of the calendar year 1980 was $11,267.50 and that the Respondent was required to make retirement contributions on behalf of Sans through the same quarter in the amount of $283. In addition, the backpay specifica- tion (as amended by the Acting Regional Director on July 24, 1981) alleged that the backpay due to Wakefield through the fourth quarter of 1980 was $37,001 69 and that the retirement contributions required on behalf of Wakefield was $1282. The Respondent's operative an- swers dated May 18 and August 6, 1981, acknowledge a portion of the monetary liability alleged and deny that the Respondent is liable as to other portions. On the entire record in this matter, my observation of the demeanor of the witnesses who appeared before me, my careful consideration of the arguments of the General Counsel and the Respondent at the hearing and in their posthearing briefs, and my careful consideration of the decisions in the underlying cases, I make the following FINDINGS OF FACT 1. THE PRIOR PROCEEDINGS AND THE CONTENTIONS HERE Insofar as is pertinent here, the Board found in Grey- hound I that the Respondent violated Section 8(a)(1) of the Act on February 13, 1976, when its agents physically assaulted Wakefield and that it also violated Section 8(a)(3) of the Act when it terminated Wakefield on the same date. In that same decision, the Board found that the Respondent violated Section 8(a)(3) of the Act when it reduced Sans' wages on July 6, 1975, suspended Sans for I week on October 11, 1975, suspended Sans for 1 day on October 22, 1975, and discharged Sans on Janu- ary 28 , 1976. In Greyhound II, the Board adopted its ad- ministrative law judge's finding that the Respondent vio- lated Section 8(a)(3) and (4) of the Act by reemploying Sans on January 11, 1977, under conditions more onerous than his previous conditions of employment and that the Respondent further violated Section 8(a)(3) and (4) of the Act by again discharging Sans on May 17, 1977. To remedy the discriminatory conduct in Greyhound I, the Board ordered the Respondent to: (1) offer to each em- ployee "immediate, full and unconditional reinstatement to his former position"; and (2) to make each employee whole "by paying to each a sum of money equal to the amount he would have earned from the date of the dis- crimination . . . until such discrimination has been fully eradicated, less his net interim earnings during the period of such discrimination"; and (3) make Sans whole for the loss in earnings resulting from the July 1975 reduction in GREYHOUND TAXI CO 461 wages and the October 1975 suspensions To remedy the violations found in Greyhound II, the Board ordered the Respondent to pay Sans "for his loss of earnings which resulted from the unfair labor practices found [t]herein " 11. THE BACKPAY DUE ROBERT J SANS A The Pleadings and Issues The formula adopted by the General Counsel in the backpay specification for the computation of the gross backpay due Sans has two essential features. For all weeks since July 5, 1975, during which Sans was em- ployed, the General Counsel alleges that Sans is due an additional $8.50 to compensate him for the reduction in wages which was imposed on that date as found in Grey- hound I With respect to those periods when Sans was unemployed due to the unlawful discharges and suspen- sions, the General Counsel alleges that the appropriate measure of Sans' gross backpay is the contractual wage rate applicable for his position with the Respondent plus the $8.50 described above multiplied by the number of weeks, or portions thereof, Sans was not employed. z The backpay periods, for which the General Counsel applied this latter formula in the specification, are October 11 through October 17, 1975; January 28, 1976, through January 9, 1977; and May 17 through July 5, 1977 In ad- dition, the specification alleges that Sans is entitled to re- ceive a $10 Christmas bonus paid in December 1976; va- cation pay (normally paid in the first quarter) which he would have received in 1976 and 1977 in the amounts of $206.70 and $226.20, respectively, and contributions to the contractual pension program in the amount of $60 per calendar quarter for all of 1976 and $43 for the second quarter of 1977 In its answer, the Respondent admitted that the appro- priate measure of the gross backpay for the periods when Sans was not employed was as alleged by the General Counsel In addition, the Respondent admitted the Gen- eral Counsel's allegation concerning the 1976 Christmas bonus and the contributions due the pension program The Respondent's answer admitted that the vacation amounts due Sans, as alleged by the General Counsel, were accurate but alleged affirmatively that the Re- spondent was entitled to offset the sum of $100 against the vacation payment due for 1976, pursuant to the terms of a personal loan Sans received from Respondent's offi- cial, Mohinder Rye. The Respondent's answer denies that Sans is entitled to the $8.50 weekly payment for any period after he accepted reinstatement at the contractual wage rate on January 9, 1977.3 The Respondent's answer further alleged affirmatively that Sans failed, during the periods of his unemployment, to mitigate his losses by seeking or obtaining interim employment. At the hearing, the Respondent moved to amend its answer as it per- tained to the gross backpay formula adopted by the Gen- 2 The contractual wage rate refers to the collective-bargaining agree- ment in effect between Respondent and the labor organization listed in the caption which represents certain of Respondent's employees Hereaf- ter that organization is referred to as the Union 3 In its brief, the Respondent argues that the General Counsel failed to establish Sans' entitlement to the $8 50 per week "for any period whatso- ever " eral Counsel to measure Sans' losses for those periods when he was unemployed on the ground that the formu- la wrongfully assumed that Sans would have worked at all available times during these backpay periods and that Sans' prior work history did not support such an assump- tion Finally, the Respondent's answer denied knowledge of Sans' interim earnings and in its brief Respondent argued that the unemployment compensation collected by Sans should be deducted as interim earnings. Hence, as framed by the pleadings and arguments, the issues presented for decision with respect to the amount of Sans' backpay are as follows. 1. Whether the Respondent's amendment pertaining to the gross backpay formula should be permitted and, if so, whether the formula should be modified in accord with that amendment. 2. Whether Sans made a diligent search for interim employment. 3. Whether the admitted interim earnings in the speci- fication constitute all of the interim earnings. 4. Whether Sans is entitled to the $8 50 payment for those periods after January 9, 1977 5 Whether the Respondent is entitled to offset the loan amount against the vacation pay due in the first quarter of 1976. B. Sans' Gross Backpay Formula With regard to the gross backpay formula for those periods when Sans was not employed and, in particular, the Respondent's attempt to amend its answer at the hearing with respect thereto, it is my responsibility to consider whether the General Counsel 's formula is the proper one in view of all the facts adduced by the parties and to make recommendations to the Board as to the most accurate method of determining the amounts due. American Mfg Co of Texas, 167 NLRB 520 (1967). Al- though the Respondent did not address this question in its brief, that fact is not sufficient to relieve me of the responsibility imposed by the Board. In brief, the General Counsel argues that the amend- ment should not be permitted because of its belated nature and the provisions of Section 102 54(b) and (c) of the Board 's Rules and Regulations.' In effect, the thrust 4 The pertinent portions of Sec 102 54(b) and (c) provide (b) Contents of the answer to specification- The respondent shall specifically admit , deny, or explain each and every allegation of the specification , unless the respondent is without knowledge , in which case the respondent shall so state , such statement operating as a denial Denials shall fairly meet the substance of the allegations of the specification denied When a respondent intends to deny only a part of an allegation, the respondent shall specify so much of it as is true and shall deny only the remainder As to all matters within the knowledge of the respondent , including but not limited to the vari- ous factors entering into the computation of gross backpay, a general denial shall not suffice As to such matters, if the respondent disputes either the accuracy of the figures in the specification or the premises on which they are based , he shall specifically state the basis for his disagreement setting forth in detail his position as to the applicable premises and furnishing the appropriate supporting figures (c) Effect of failure to answer or to plead specifically and in detail to the specification If the respondent files an answer to the specifi- cation but fails to deny any allegation of the specification in the manner required by subsection (b) of this section , and the failure so Continued 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Respondent's original argument here was that the gross backpay formula for Sans' periods of unemploy- ment fails to account for the fact that Sans' past employ- ment record reflects occasional absences for illness and other personal reasons, and that he was not normally compensated for such absences. Although it is true that in applying the gross backpay formula the General Counsel has inaccurately determined that Sans was in fact available for employment during all of the periods when he was unemployed, that assumption does not render the formula invalid as a measurement tool. Under the General Counsel's formula, those occasions when Sans was actually available for employment during the backpay period could be ascertained and would result in a reduction of the amounts due to him. By contrast, any formula based upon a projection of Sans' past attendance record through the periods of unemployment he suffered as a result of the Respondent's discrimination bears a substantial potential for penalizing either Sans or the Re- spondent unduly. Thus, if an averaging formula proposed by the Respondent were adopted, factoring in Sans' actual unavailability during the backpay period would be inappropriate. In this circumstance, if Sans' actually un- availability exceeded the average of his past absenteeism, the Respondent would be penalized; if it were less, Sans would be penalized. Accordingly, I recommend that the Board adopt the gross backpay formula proposed in the specification but deduct equivalent amounts for periods when Sans was actually unavailable for work.5 By fol- lowing this procedure, I am satisfied that the General Counsel's gross backpay formula will most nearly ap- proximate the earnings Sans would have had in the ab- sence of the Respondent's discrimination. In this proceeding, Sans testified that he was in good health throughout the period of his unemployment from January 28, 1976, through January 9, 1977, but no testi- mony was elicited with respect to any other backpay period. Nevertheless, there is a specific finding in Grey- hound II (slip op. at 25) that Sans declined to report for work on July 1, 1977, following the resolution of the grievance related to his May 17, 1977 discharge because he was suffering from impetigo. Under these circum- stances, I find that the gross backpay due Sans for the third quarter of 1977 is $96.60 less than the amount al- leged in the backpay specification for the third quarter of 1977.6 I further recommend that the Board require the to deny is not adequately explained , such allegation shall be deemed to be admitted to be true, and may be so found by the Board without the taking of evidence supporting such allegation , and the respond- ent shall be precluded from introducing any evidence controverting said allegation Entirely aside from the conclusion that the General Counsel's formu- la is likely to produce the most accurate approximation of the backpay due Sans, the evidence proffered by the Respondent is totally insufficient to devise an alternate formula Thus, the only evidence presented by the Respondent was Sans' acknowledgment that he was occasionally absent from work as were others and Mohinder Rye's testimony that he had re- cently reviewed Sans' records and concluded that Sans was absent about 3 or 4 days per month in some unspecified period and for unspecified rea- sons 6 The backpay specification appears to base the 1977 third quarter losses on the assumption that between July 1 and 6, 1977, Sans lost wages equivalent to 3 days' work On that basis the $96 60 was calculated by multiplying Sans' daily rate (including $1 70 per day attributable to the General Counsel to ascertain the onset of the disabling nature of this illness and make any further necessary de- duction consistent herewith. A separate feature of Sans' gross backpay is the addi- tion of the $8.50 per week to his contractual wage rate for all periods since his wages were reduced by that amount on July 6, 1975. As noted, the Respondent con- tends that the General Counsel has failed to establish Sans' entitlement to the $8.50 per week "for any period whatsoever" (in its brief) or, in the alternative, for any period following Sans' reinstatement in January 1977. Over the General Counsel's objection, I permitted the Respondent to elicit testimony in the instant proceeding from its president, Mohinder Rye, to the effect that the $8.50 per week payment was a portion of a payment made to Sans for extra work which he previously per- formed and that his pay was reduced when he ceased doing the extra work. The General Counsel then offered Sans' testimony that he had ceased doing the extra work about 2 years before there was any reduction in his pay. Having carefully considered the decision in Greyhound I where the pay reduction issue is treated, I am in agree- ment with the General Counsel's contention that the finding sought by the Respondent as to this issue is barred by the principle of res judicata. In effect, the Re- spondent sought to establish that Sans' pay was reduced by $8.50 per week for nondiscriminatory reasons. It is clear that by doing so, the Respondent was attempting to relitigate a matter which had already been decided. Thus, in Greyhound I the administrative law judge found that Sans was originally paid $17.50 per week over the contract scale for his job classification. When that amount was reduced by $9 per week, Sans filed a griev- ance and a meeting ensued between the Union and the Respondent on July 6, 1975, concerning Sans' pay reduc- tion grievance. The administrative law judge then found: Sans began his presentation to the grievance com- mittee by explaining that when he refused Mo- hinder's order to dispatch part-tme drivers on "long-hauls," Mohinder had retaliated by reducing his weekly salary from $150 to $141. At this point, Mohinder, who was present in the union hall, "jumped up" and shouted that in addition to Sans' first reduction from $150 to $141, his salary was now being reduced for a second time from $141 to $132.50 a week. See Greyhound I at 868. Based upon the administrative law judge's finding above, the Board concluded as follows: $8.50-per-week item) by 3. This deduction is not predicated upon a con- clusion that Sans had a duty to report for work immediately upon Rye's offer Rather, it is predicated upon the fact the the nature of the General Counsel's gross backpay formula makes it appropriate to proportionately reduce the amount of gross backpay for any time Sans was actually un- available for work due to an illness not attributable to interim employ- ment or his unlawful discharge. American Mfg Co of Texas, supra. Impe- tigo-for taxicab dispatchers-must be regarded as one of the "hazards of living generally " GREYHOUND TAXI CO We further conclude, however, on the basis of the Administrative Law Judge's findings, which he in- advertently omitted from his conclusionary findings, remedy, and recommended Order, that the Re- spondent additionally violated Section 8(a)(3) and (1) by reducing employee Sans' wages on July 6, 1975 . . . . See Greyhound I at 865. In accord with that conclusion, the Board specifically ordered that the Respondent remedy its action of discriminatorily reducing Sans' pay in July 1975, by making Sans whole. There is no evi- dence that the Respondent ever reinstated this payment I am not now at liberty to decide that Sans' pay was reduced for some reason other than the foregoing. Hence, contrary to the Respondent's contention, there is a clear basis for adding the $8.50 per week to Sans' gross backpay. In its answer, the Respondent asserted that that sum should be discontinued because Sans accepted rein- statement in January 1977 at his contractual wage rate. I also reject that contention. Entirely aside from the fact that the administrative law judge in Greyhound II found that Sans' reinstatement in January 1977 was to a more onerous shift and was made after Sans rejected a dis- criminatory reinstatment offer, there is absolutely no in- dication that Sans intended to waive his right to have his pay set on the basis of nondiscriminatory criteria. Ac- cordingly, I find that it is appropriate that Sans' gross backpay includes the additional $8.50-per-week payment for all periods since July 6, 1975.7 C. Other Issues Related to Sans' Backpay The Respondent believes that the unemployment com- pensation collected by Sans during the periods when he was not employed should be treated as interim earnings, and as such subtracted from Sans' gross backpay. It has long been settled that such an offset is not permitted and, accordingly, I shall not do so here. NLRB v. Gullett Gin Co., 340 U.S. 361 (1951); Amshu Associates, 234 NLRB 791 (1978). The Respondent's answer also sought to offset a per- sonal loan to Sans against the amount of vacation pay due to Sans in the first quarter of 1976. It is a well-estab- lished policy that such offsets are not permitted See, e.g, NLRB v. Mooney Aircraft, 366 F.2d 809 (5th Cir. 1966). Accordingly, I shall not do so here.8 There remains the question as to whether Sans made a diligent search for interim employment during the two periods when he was not employed-January 28, 1976 through January 9, and May 17, 1977, through July 5, 1977. Sans, who has been employed by Sacramento taxi- cab companies for 30 years, testified that following his initial discharge he registered for unemployment com- pensation and filed the required reports with the appro- priate state agency 'each 2 weeks concerning his search ' Of course, no such amount would be due for periods when Sans is not entitled to backpay for other reasons such as the strike period in Jan- uaiy 1976 and the period of Sans' illness in July 1977 However, backpay attributable to this aspect of the case will continue to accrue until the Re- spondent takes the necessary action to restore this payment 8 Moreover, Sans' testimony that the loan had previously been paid is uncontradicted 463 for work in order to maintain his eligibility for that bene- fit. In addition, Sans visited the unemployment office (which was about a block and a half from his home) on a daily basis for a considerable period in order to check over the jobs posted on the bulletin board at that office. Most of the posted jobs-according to Sans-required experience which he did not have. Sans was never re- ferred for job prospects by the state employment service. In addition, Sans testified that he registered on the Union's out-of-work list but was never referred for em- ployment by the Union. Otherwise, Sans testified that he unsuccessfully applied for several jobs he saw advertised in the newspaper. Specifically, Sans recalled applying for a dispatcher's job with the local city and county police agencies, a delivery job with a local florist, a job with a delivery service in West Sacramento, and jobs at several gasoline stations. Sans candidly acknowledged that he did not apply for positions with the two other taxicab companies in Sacra- mento-Courtesy and Yellow. Sans said he had previous- ly worked at both companies and departed under cir- cumstances which he believed would not result in his being favorably considered for reemployment. Thus, Sans testified that he left Yellow 25 years ago after it was discovered that he had embezzled $6000 from that company. Sans also testified that when he left his em- ployment at Courtesy a number of years ago, it was nec- essary for him to commence a state administrative pro- ceeding to recover unpaid vacation pay. As a conse- quence, Sans felt his prospects for employment at these two companies were nil and, accordingly, he did not seek employment with either company.9 In addition, fol- lowing his second discharge in May 1977, Sans did not seek other employment independent of registering with the state service. According to Sans, he learned on ap- proximately June 19 or 20, 1977, that he was to be rein- stated pursuant to a grievance proceeding related to his second termination and, as a consequence, he did not un- dertake to seek interim employment as a result of the action on that grievance. A discriminatee has the duty to minimize the losses in- curred during the backpay period by making a reasona- ble effort to seek interim employment. Phelps Dodge Corp. V. NLRB, 313 U.S. 177, 197 (1941); NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966). In backpay cases, the lack of a diligent search for interim employment is treated as an affirmative defense and the burden of proof is on the wrongdoer to show that the back ay claimant did not make a reasonable search to fins interim employment in light of all of the circumstances after the General Counsel produces the claimant for cross-examination. Virginia Electric v. NLRB, 319 U.S. 533, 544 (1943); NLRB v. Mastro Plas- tics Corp., 354 F 2d 170, 177 (2d Cir. 1965); NLRB Y. Brown & Root, 311 F.2d 447, 454 (8th Cir. 1963) Reason- able efforts to secure interim employment does not mean 9 The reasonableness of Sans' assessment in this regard-all other cir- cumstances aside-appears to be confirmed by the administrative law judge's finding in Greyhound II that the owner of Yellow testified in that case that he had "an unfavorable opinion of Sans' credibility " See Grey- hound II, slip op at 6 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the backpay claimant is held to the highest standard of diligence in seeking interim employment NLRB v. Ar- durnr Mfg. Corp., 394 F.2d 420, 423 (1st Cir 1968) Rather, the reasonableness of the backpay claimant's search for interim employment is measured in light of all the circumstances including the individual's skill, qualifi- cations, age, and the labor conditions in the area. Mastro Plastics Corp., 136 NLRB 1342, 1359 (1962) The back- pay claimant's registration with the state employment service is prima facie evidence of a reasonable search and evidence that the claimant did, in fact, seek work. Firestone Synthetic Fibers Co, 207 NLRB 810, 812 (1973); Madison Courier, 202 NLRB 808, 813 (1973). The lack of success in finding interim employment, the failure to make application at a particular location, the failure to follow certain practices and the inability to recall, while testifying, the number or names of locations where inter- im employment was sought have all been held to be in- sufficient to meet the burden of showing the backpay claimant's search was not reasonable. NLRB v. Pilot Freight Carriers, 604 F.2d 375 (5th Cir. 1979); NLRB v. Cashman Auto Co., 233 F.2d 832 (1st Cir. 1955); DeLor- ean Cadillac, 231 NLRB 329, 331 (1977); Southern House- hold Products Co., 203 NLRB 881 (1973); Cornwell Co., 171 NLRB 342, 343 (1968) In all cases where there is doubt as to the reasonableness of the search, the issue is to be resolved in favor of the backpay claimant as op- posed to the wrongdoer. NLRB v. NHE/Freeway, 545 F.2d 592, 594 (7th Cir. 1976) Sans has spent over 30 years in various aspects of the taxi industry in Sacramento and, as a consequence, he has little experience in other endeavors. In addition, the findings made in Greyhound II show that Sans relies pri- marily on the Sacramento public transit system as his principal mode of transportation. Notwithstanding, the evidence shows that Sans did search for other work by visiting the unemployment office more than required, making applications not only with potential interim em- ployers where his experience would be beneficial, but also at other enterprises where only minimal skill would be required. Under the circumstances, Sans' failure to make application at the other two taxi companies in Sac- ramento cannot be found to be a basis for concluding that his search was not diligent especially where, as here, no attempt was made to rebut the evidence that these employers in all likelihood harbor animus toward Sans for matters which occurred during his prior employment with them Moreover, the fact that Sans admittedly did not seek other employment in the period immediately following his second discharge when his grievance was actively pending or thereafter while awaiting reinstate- ment likewise cannot be regarded as a failure to mitigate his losses. In the latter period, the evidence is undisputed that Sans was actively pursuing a grievance seeking his reinstatement. 10 In these circumstances, I do not find 10 The findings in Greyhound II, slip op at 24, show that Sans' griev- ance was resolved on June 30, 1977 For purposes of this decision, I relied on that date rather than Sans' estimate of June 20, 1977, made in his testimony at the instant hearing that it was unreasonable for Sans to await the outcome of the grievance proceeding (which appears to have been resolved rather rapidly by some standards) before com- mencing an extensive search for interim employment in view of his prior experience seeking work Compare Keller Aluminum Chairs Southern, 171 NLRB 1252, 1257 (1968). Accordingly, I find that the Respondent has failed to meet its burden of establishing that Sans did not make a reasonable search for interim employment. On the basis of the foregoing findings, the amount of accrued backpay and retirement contributions with re- spect to Sans through May 31, 1982, is as calculated in Appendix A. III. THE BACKPAY DUE HAROLD L. WAKEFIELD A. The Contentions and Background At the instant hearing, the General Counsel conceded that Wakefield has never worked since the date of his unlawful termination (February 13, 1976) and sought to prove that the reason Wakefield has not worked (or for that matter, sought work with one minor exception) was due to the psychological dislocation suffered by Wake- field as a direct consequence of his discharge by the Re- spondent. The Respondent contends that Wakefield should receive no backpay because he did not seek inter- im employment; that if it is determined that Wakefield is entitled to backpay, the backpay period should terminate as of the date of any one of the three reinstatement offers Respondent made to Wakefield; and that sho'ild backpay be awarded the Respondent is entitled offset amounts re- ceived by Wakefield as unemployment compensation, workmen's compensation, and other disability pay- ments. 1 1 The issues raised with respect to Wakefield are unusu- al. As a consequence, a brief review of relevant facts in the underlying case is required to fully comprehend the findings which follow. In Greyhound I, the administrative law judge conclud- ed that Wakefield was, in effect, constructively dis- charged. Thus, the judge stated- In addition, there is interference, coercion, and re- straint practiced by Respondent in . . . rendering Wakefield's working conditions so intolerable which culminated in him being assaulted by Surinder Singh (a supervisor of Respondent and a cousin of its owners) and placed in such great fear that it caused him to involuntarily terminate his employ- ment. . . . See Greyhound I at 877. Certain findings in Greyhound I and evidence adduced in the instant proceeding disclose that Wakefield had a running dispute with the Respondent commencing in late t l The gross backpay formula in Wakefield's case is not in dispute It is grounded upon the average earnings of other taxi drivers during the backpay period whose earnings ranked immediately above and below Wakefield for a representative period while Wakefield was employed by the Respondent I find this method of measuring the gross backpay will provide an accurate estimate of what Wakefield would have earned had he not been unlawfully terminated GREYHOUND TAXI CO 1974 after his arm was broken (apparently by a passenger in a robbery attempt). While recuperating, Wakefield missed an extended period of work during which time he received workmen's compensation payments There is evidence that officials of the Respondent accused Wake- field of malingering at this time; that threats were made to the effect that the Respondent intended to get rid of Wakefield because of the expense he was causing the Re- spondent; that Wakefield , in response, became more active in the Union; that hostility toward Wakefield in- tensified thereafter; that Wakefield was discharged fol- lowing a minor accident in December 1975, but was rein- stated following a grievance proceeding ; and that in the course of the grievance proceeding Singh told Wakefield (from a distance about 4 inches from Wakefield's nose) that he "would murder anybody that gets in my friend's way." The findings in Greyhound I detail a brief scuffle involving Wakefield and Singh on his final day of work which, according to Wakefield, commenced in the pres- ence of Joginder Rye, one of the Respondent 's owners. This occurred following a brief exchange of comments by Joginder Rye, Singh, and himself concerning an NLRB matter The evidence shows that Singh put an arm lock around Wakefield's neck and, by simultaneous- ly kicking Wakefield's ankle, attempted to throw Wake- field to the concrete floor. Although Wakefield resisted sufficiently to prevent himself from being thrown down and worked himself free of Singh's grip , he asserted that immediately following the incident his neck was sore, and that it made it difficult for him to turn his head to look for traffic while driving. After working for a couple of hours, Wakefield left work and went to the emergen- cy room of a local hospital where he sought medical at- tention for the soreness in his neck . Wakefield testified that the diagnosis by the emergency room doctor was that he had "pulled his neck out of joint" and that it would heal by itself.12 Thereafter, Wakefield went to the local police department where he reported the assault by Singh and requested police action against Singh Eventu- ally, Wakefield was informed that there was nothing that the police could do about the incident . In the meantime, Wakefield also began to experience pain with the ankle which had been kicked by Singh and he visited a Dr. Patrick Clancy, the physician who treated him for his broken arm. According to Wakefield, Dr. Clancy diag- nosed his ankle problem as a sprain and recommended that he keep it wrapped with an elastic bandage and that he soak the ankle. When Wakefield expressed his great fear of returning to work, Clancy told him that he would put him on disability for a few days. Wakefield never re- turned to work because (according to the findings in Greyhound I) he was afraid to do so. To seek compensation for the losses suffered as a con- sequence of the minor physical injuries he suffered in the battery by Singh, Wakefield went to a local attorney who specializes in workmen's compensation matters. Fol- lowing an interview, the attorney told Wakefield he thought there was something the matter with him and re- quested that Wakefield visit a psychiatrist. Wakefield 12 A report in evidence describes the diagnosis as a contused (bruised) left sternocleidomastoid (neck) muscle 465 agreed to do so. Thereafter, in late May and June 1976, Wakefield had three sessions with Dr. C. Jess Groes- beck, an assistant professor of psychiatry at the Universi- ty of California, Davis, and a private practitioner of psy- chiatry (specializing in forensic psychiatry) in the Sacra- mento-Woodland, California area. Groesbeck specializes in forensic psychiatry. Groesbeck testified in this proceeding that it was his professional diagnosis following his evaluation of Wake- field in 1976 that he was suffering from traumatic anxiety neurosis with marked symptomatology in both the psy- chological and physical spheres. In lay terms, Groesbeck explained that Wakefield was suffering from an emotion- al disturbance which impaired his ability to function psy- chologically as a consequence of a traumatic incident. The trauma involved, according to Groesbeck, was the series of work incidents culminating in the battery com- mitted by Singh and his termination. The symtomatology referred to by Groesbeck included a highly agitated de- meanor, extreme concentration difficulties; continually ruminating about the loss of his job; and patient com- plaints about the lack of sleep, numerous nightmares in- volving attacks by animals , physical sensations of tin- gling and dizziness , impotence, severe headaches (which, on occasion , would last as long as a week), frequent gas- trointestinal upset acccompanied by diarrhea, feeling constantly anxious and intense so that it was difficult for him to drive, feelings of guilt over the loss of his job and fears that agents of the Respondent were going to phys- ically injure his wife and himself. Groesbeck testified that it was clear that the position which Wakefield had with the Respondent was the only job at which he had been successful and, as a consequence, Wakefield's job had come to mean a great deal to him 13 When condi- tions became so intolerable for Wakefield that he felt he could not return to work because of the threats made on his life and the battery, Groesbeck said that Wakefield "just blew . . . sky high emotionally, so to speak " Groesbeck also testified that a more recent examination of Wakefield disclosed some remission from the severity of his earlier condition but that elements of depression, anxiety neurosis, and paranoia remained. 14 Groesbeck conceded that Wakefield's emotional difficulties could have been brought on by another series of events as a result of his acquired personality makeup but, on the other hand , he asserted that they could have remained in a latent state much longer than they did . Notwithstand- ing, Groesbeck was of the view that Wakefield's emo- tional difficulties which surfaced in 1976 resulted directly from the circumstances surrounding the attack upon him and the loss of his job. Following Groesbeck's 1976 evaluation of Wakefield, Wakefield was examined by two additional psychia- trists-Dr. G. Edward Sebastian and Dr Ralph F. Sett. 13 Wakefield had been in the Respondent 's employ since August 1968 Prior to this employment , Wakefield held a variety of fobs, most for very short time periods, which he either quit in protest of perceived policies or practices or was discharged Wakefield testified that he 'loved " his job with the Respondent 14 These impressions are based on Groesbeck's September 1981 exami- nation of Wakefield This examination was requested by the General Counsel 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both of these psychiatrists were retained by insurance companies whose interests were adverse to Wakefield, namely, the Eldorado Insurance Company, the Respond- ent's workmen's compensation carrier, and Mutual of Omaha, which had insured Wakefield under a privately purchased disability plan in 1973. Although neither psy- chiatrist testified in this proceeding, their written evalua- tions were received in evidence without objection and Groesbeck testified that he knew them as respected prac- titioners in that locale If there are any significant differ- ences in either the diagnosis or the identification of the cause of Wakefield's illness between these two psychia- trists and Dr. Groesbeck, such differences are not dis- cernible by this trier of fact nor did the Respondent point to any such difference. Thus, following Sebastian's diagnosis that Wakefield was suffering from anxiety neu- rosis, his report continues as follows: Discussion: Mister Wakefield has had some diffi- culty finding himself in his life He was not interest- ed in scholastic achievement during his high school years. He was unable to settle down in a job or a type of job. Eventually he found a job which he en- joyed, that of a taxi-cab driver. He lost his job as a cab driver in Los Angeles because of his naivete re- garding people. In 1968 he started to work for Greyhound Taxi Company in Sacramento He ap- parently did a satisfactory job until October, 1974 when his left forearm was injured in a robbery at- tempt while he was driving his cab. From then on, his employment situation deteriorated. The owner of the company apparently felt that Mister Wake- field was using his injury to collect compensation funds. As more pressure was exerted to force him to leave the company, Mister Wakefield stubbornly clung to his job and to his principles. He became active in his union and tried to encourage changes in company management policies with the help of union backing. These attempts failed and Mister Wakefield began to feel that our legal system was in danger. At work he began to receive threats against his person He was told by one company official that if they were in India and Mister Wakefield be- haved toward his superiors as he has been behaving, he would be killed and the incident forgotten. He feared for his life and left his job in February 1976 after the alleged physical assault upon him. I see Mister Wakefield as a tense, nervous, emo- tionally immature person. However, he seemed to find a niche for himself in his taxi-cab job. He would probably have continued in that job for many years had not management taken such an un- reasonable attitude following his job-related injury. He was frustrated in his attempts to obtain justice through his union and through the courts. He learned the lesson that it is very difficult for an indi- vidual to successfully fight City Hall. He became tense, anxious, upset with the previously described symptomatology. He has had to receive counseling because of his emotional turmoil. Since he is no longer exposed to the work environment, he is not fearful for his life and his tension level is down. However, he still becomes very upset when he talks about the job situation. One benefit from this situa- tion is his enrollment in college where he is doing well academically Hopefully he will be able to find a vocation or profession which is more in keeping with his intellectual abilities Conclusion: 1. I feel that Mister Wakefield's job situation ag- gravated an underlying emotional condition. 2. He is disabled for his job as a taxi -driver for Greyhound Taxi. 3. The disability is job-related. 4. The disability for other jobs is temporary. 5 He should continue to receive treatment (pref- erably by a psychiatrist since the use of medication is involved) until symptoms relief and his readjust- ment to a new vocational life are attained Dr. Sett's evaluation is similar Thus, Sett's report reads in part as follows- Discussion- Mr. Wakefield is a man who shows overwhelming anxiety The anxiety is so severe that it leads to a scattering of his thought processes and disorganization He is given to obsessional rumina- tion with marked hostility and a paranoid stance es- pecially prominent when he talks about the turmoil related to his employment with the Greyhound Taxi Company. This is where the paranoia really surfaces and he relies upon projection as his pri- mary defense mechanism. All of this is superim- posed on an extremely dependent individual with tenuous ego-strengths It is my opinion that he does derive a tremendous amount of gratification of these dependency needs from his wife, his therapist, and the counselors who are working with him at school. Without this type of nurturing, Mr Wakefield would become extremely disorganized. This is borne out by the first interview in which he showed severe anxiety, disorganization to the point of physi- cal hyperactivity with pacing and eventually bump- ing into a bookcase in his efforts to gather the mate- rials which he brought to the interview; however, he appeared comfortable in the second session be- cause he felt that I was supportive of him and also because the second interview was much more struc- tured in order to gather the necessary background information without allowing him free reign. With- out this structure he takes off in rambling manner and he also documented this by saying that he did this at home with his wife. The clinical impression in this case is anxiety neu- rosis, severe, post-traumatic type with obsessional features and tendencies toward ego-fragmentation in a basically paranoid personality. This condition has been seriously aggravated by the series of events which took place during the course of his employ- ment. Based on the medical information available and my examination of this patient, it is my medical opinion that he is permanently disabled from per- GREYHOUND TAXI CO forming his duties as a taxi driver. The degree of psychopathology which is present would preclude him from performing this occupation for any em- ployer. It is extremely difficult to say what other occupation he could reasonably be expected to per- form in because of his need for supportive, warm environment with authority figures who would build his ego-strengths which are at a very low ebb He is obviously getting this support through his counselors at the present time and he did talk about the possibility of going into law, although I would question his reality testing in considering this par- ticular area of study. In addition, attached to Sett's report is another standar- ized reporting form in which Sett reported that Wake- field was 100-percent disabled at the time of the report for performing either his former or any other job and recommended that Wakefield continue in psychotherapy with medication, including the academic studies which he was engaged in at that time Other evidence supports the psychiatrists' evaluations of Wakefield. Ron Estep, a therapist who worked with Wakefield from June 1976 to March 1978, testified that when he initially met with Wakefield he found him to be "frankly paranoid" and gave consideration to having him hospitalized for treatment. After deciding that this course of action could always be undertaken if working with Wakefield on an outpatient basis proved unsuccessful, Estep soon sought to commence medication for Wake- field in order to make progress in therapy. This was ac- complished in conjunction with Dr Clancy who initially prescribed Sinequan and then switched Wakefield to varying dosages of Stelazine.is Certain other ancillary evidence supports a finding that Wakefield was severely disabled. Thus, in the months following Dr. Groesbeck's initial evaluation, Wakefield qualified for social security disability benefits where, it is reasonable to presume, the medical evidence of Wakefield's disability was carefully evaluated. In addi- tion, Wakefield sought and obtained aid from the Califor- nia Department of Rehabilitation Kathleen Roseler, the social worker from that state agency who was assigned to Wakefield's case, testified that, under normal proce- dures of that department, the supporting medical evi- dence is evaluated by that agency's staff psychiatrist before aid is provided and that procedure was followed in Wakefield's case. According to Roseler, approximately only 5 percent of her 100 active cases involved a psychi- atric disability. As noted, there is no dispute about the fact that Wake- field has not sought other employment since leaving the Respondent's employ. There is agreement likewise that, beginning at some unspecified time in 1977, Wakefield- 15 Stelazine is deemed effective in managing psychotic disorders and can be effective in controlling excessive anxiety, tension, and agitation seen in neurosis or somatic conditions Smequan is a psychotherapeutic agent normally used in the treatment of psychoneurotic patients with de- pression or anxiety, depression associated with alcoholism, or organic dis- eases and psychotic depressive disorders with associated anxiety Physi- cians Desk Reference, 34th Ed, Medical Economics Company, A Litton Div, Oradell, N J, 1980 467 who had not previously completed high school-entered the American River Junior College in Sacramento and subsequently transferred to Sacramento State University where he was awarded a bachelor's degree in May 1981. That fall, Wakefield entered a law school in Sacramento and was engaged in that endeavor at the time of the hearing. To say the least, the Respondent is highly skep- tical of Wakefield's true condition as a result of these ac- tivities and considerable evidence, discussed below, was developed concerning them. Following his examination of Wakefield in June 1976, Groesbeck recommended that Wakefield undertake psy- chotherapy treatment, including vocational rehabilitation. For this purpose, Groesbeck referred Wakefield to Ron Estep, a licensed marriage, family, and child counsellor, who was then practicing privately in Sacramento The course for Wakefield's therapy was essentially charted by Estep. According to Estep, once Wakefield's symptoms were brought more under control through the use of medication, he then moved on to probe the possibility of Wakefield seeking employment Estep testified that Wakefield was cooperative in this and other aspects of his therapy By early 1977, Estep testified, Wakefield agreed to his suggestion that he begin making applica- tions for employment The first effort in this regard re- sulted in severe regression of Wakefield's condition is Accordingly, Estep said that he abandoned this course and, instead, secured Wakefield's agreement to undergo a battery of examinations at the American River College in Sacramento. The tests disclosed that Wakefield had an above average intellect but would require remedial train- ing Subsequently, Wakefield was admitted to American River. The purpose of this approach, according to Estep, was to find something to occupy Wakefield's mind other than the difficulties which he had with the Respondent which, according to Estep, Wakefield ruminated about continuously. Although Wakefield had some initial ad- justment difficulties and later encountered instances of overresponding to some fellow students, Estep felt essen- tially that Wakefield's school activities served to keep his mind occupied and he showed further signs of progress. At the outset, Wakefield's schooling was not structured or directed toward an academic goal It appears that this came about at the time Wakefield became a client of the California Department of Rehabilitation. According to Roseler, based on Wakefield's performance at American River, the department developed a vocational rehabilita- tion plan in the community college system which con- templated that he would eventually continue in a 4-year college program, most likely at Sacramento State Groesbeck, Estep, and Ron Meyers, the therapist who succeeded Estep in working with Wakefield when Estep discontinued his practice in Sacramento, all agreed that it would be erroneous to attempt to correlate Wakefield's success in school with his potential for success in the competitive employment setting. In their view, Wake- 16 After discussions in therapy sessions, Estep obtained Wakefield's agreement to file a job application at a local retail auto parts store Estep said Wakefield reported back to him that, on completing the application process at the store, he returned to the vicinity of his auto in the parking lot and began vomiting 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD field's academic success resulted from the continuous support Wakefield received from therapy, his tutors, and his wife. Moreover, unlike the setting in the work world, they noted that Wakefield was not always called upon to respond in the academic setting and certainly not for 8 hours a day. Even in those instances when Wakefield did encounter emotional difficulties at school he had the option of withdrawing for sufficient periods to resolve such matters either alone or together with his therapist or his wife. Roseler, whose duty includes attempting to secure employment for clients of the state agency which employs her, testified that it was her own independent judgment that Wakefield's progress would have been damaged if he would have been required to withdraw from school and secure work. As a consequence, Roseler did not undertake to call employment opportunities to Wakefield's attention until after he completed undergrad- uate school. Sett's report likewise encouraged this ap- proach to therapy Following Wakefield's graduation from undergraduate school, Roseler did notify Wakefield of certain potential openings for which she felt he would be suited. Wake- field made no attempt to apply for those positions inas- much as his application at a local law school had been accepted. At the time of the hearing Wakefield was at- tending law school. His therapy with Meyers was like- wise continuing. However, Wakefield made it clear in his testimony that he has no dreams of becoming the modern day Clarence Darrow. In Wakefield's own words, his ambitions are as follows: I could perhaps be an assistant to a professional person who doesn't deal in-put money in front of human dignity and I'd be fine. But according to what I hear at law school it takes about two years before you are even going to be given that type of thing. I do have very little trust of nonprofessionals. See, all the professionals around me have been very supportive of me and I think they got my life turned around 17 which Wakefield had purchased in June 1973, at his wife's insistence. According to Wakefield, this policy was for a term of 5 years and, as a consequence, the ben- efit payments ceased in June 1978. Initially, the benefit received by Wakefield under this policy was predicated upon the physical injury he received as a result of the assault upon him by Singh. Subsequently, the benefits were predicated upon Wakefield's psychological disabil- ity. In June 1977, Wakefield commenced receiving a $76- per-week payment under the California Unemployment Insurance Disability program (UID) See California Un- employment Insurance Code, Section 2600 et seq. When Wakefield first received the benefit it was made retroac- tive to February. As a consequence, he received an ini- tial lump-sum payment of approximately $1000 18 This benefit, allowed for the maximum period of 26 weeks, expired in August 1976. However, Wakefield was re- quired to repay $687.06 to the UID fund when he en- tered into a compromise and settlement of his workmen's compensation claim against the Respondent.19 That amount was withheld from his workmen' s compensation settlement to satisfy the UID lien. In approximately September 1977, Wakefield's claim for social security disability benefits was approved and he commenced receiving payments under that program. It appears that there was an initial lump-sum payment of approximately $4300 for the period between the expira- tion of his UID benefits and the initial monthly social se- curity payment. Since that time, the benefits have risen from approximately $330 per month to approximately $514 per month as the result of cost-of-living increases. On September 1, 1977, Wakefield entered into a com- promise and settlement agreement with the Eldorado In- surance Company which served to resolve his work- men's compensation claim Documents in evidence show the gross amount of this settlement was $13,634. Wake- field testified here that the net amount he received was $10,300. This payment is discussed in detail at Section 4. B. Wakefield's Interim Benefits At various times following his discharge, Wakefield re- ceived periodic payments from the California Unemploy- ment Insurance and Social Security disability programs, periodic payments under a privately owned insurance policy and a lump-sum workmen's compensation settle- ment In addition, funds were provided on his behalf to purchase textbooks and to reimburse him for transporta- tion expenses while he was in school Respondent con- tends that all such payments and reimbursements should be deducted from any amount of gross backpay deemed owing The General Counsel argues that none of these payments or reimbursements constitute interim earnings. Immediately following his discharge, Wakefield ap- plied for and received a $10-per-day benefit pursuant to a private disability plan offered by Mutual of Omaha 17 At this point in Wakefield's testimony he was emotionally overcome and it was necessary to recess the hearing to allow him to recompose himself There were similar occurences on two other occasions during the course of his testimony C The Reinstatement Offers It is undisputed that Wakefield received three written offers to return to work shortly following the dates shown on the offers, namely, January 13 and February 17, 1977, and August 1978. However, there is a dispute as to which, if any, of these offers should be treated as sufficient to toll backpay. Contrary to the Respondent, the General Counsel be- lielves that both of the 1977 offers were defective. The pertinent portions of the 1977 offers insofar as the Gener- al Counsel's argument is concerned are as follows- [January 13, 1977 offer signed by Mohinder Rye] 18 Wakefield's estimate of the weekly benefit, which was slightly lower, appears to be an error of recollection Other evidence discloses that he received $1976 in UID benefits altogether and when this amount is divided by the maximum benefit period, the result is $76 per week 18 See California Labor Code, Sec 4903 (f) which creates a lien against workmen's compensation benefits for previously paid UID bene- fits GREYHOUND TAXI CO This letter is to notify you that we are appealing the Administrative Law Judge's Decision that was rendered in your favor. Of course, you repeatedly stated at the hearing and at other times that you will never again work for the Greyhound Taxi Co. Inc. Consider this as our last official offer to reinstate you to full time employment at Greyhound Taxi ef- fective January 21, 1977, if you are not presently employed or January 28. 1977, if you are employed at the present time. [February 13, 1977, offer signed by E. A Hubbert.] This office, as the present attorney of record for the above-entitled Employer, has been authorized to offer to you full reinstatement to your position with the Company pursuant to the Decision of the Ad- ministrative Law Judge issued in the matter. You should be aware that the Employer has filed Exceptions to the Decision, but is offering you complete and full reinstatement pending the final resolution of this matter If we do not hear from you within ten (10) days of the receipt of this letter, we will assume you do not wish to be reinstated as an employee of Grey- hound Taxi Co., Inc The General Counsel concedes that the Respondent's 1978 offer to Wakefield was unconditional on its face but argues that it should not serve to toll the backpay period because Wakefield's illness precluded his acceptance of the offer 20 Groesbeck, Estep, and Meyers were uniform in their opinion that Wakefield's return to the Respond- ent's employ would be at considerable risk to his mental stability. At the time that Wakefield received the rein- statement offers, Estep and Meyers recommended that he not return The Respondent urges that I find the 1977 offers to be sufficient to toll the backpay period It contends that nei- ther offer exhibits the Respondent's desire to keep Wake- field away from work and asserts that Wakefield was motivated in staying away from work for monetary rea- sons, i.e., he was financially better off staying home than he was going to work. D Additional Findings and Conclusions Without actually using the word, the Respondent argues that Wakefield's lack of employment in the back- pay period was the result of malingering and for this reason he should be entitled to no backpay. Thus, the Respondent states in its brief that after visiting Dr. Groesbeck, Wakefield "discovered that he really would prefer to be a college student, and has followed that course to the present " This gossamer argument ignores the overwhelming evidence to the contrary. As noted above, the three psychiatrists who examined Wakefield (two of whom it must be remembered were retained by interests adverse to Wakefield) all concluded 20 Presumably the General Counsel believes the same argument applies to the 1977 offers but did not so state in her brief 469 that the level of traumatic anxiety stress which he suf- fered as a consequence of the events surrounding his un- lawful discharge rendered him disabled for employment, and in need of psychotherapy and vocational rehabilita- tion. Estep in essence testified that the schooling aspect of Wakefield's treatment came about more or less by chance following an unsuccessful attempt to secure other employment. Thereafter, it was continued as a conse- quence of a vocational rehabilitation plan developed by the California Department of Rehabilitation. Contrary to the insinuation in the Respondent's brief, steps related to Wakefield's schooling did not even begin until more than 6 months after Dr. Groesbeck's evaluation. Apart from the untenable argument spun by the Respondent, there is absolutely no evidence in this record to support a finding that Wakefield was malingering. When consideration is given to the number and variety of evaluations of Wake- field which have taken place over the past 5 years, the lack of any impeaching evidence concerning the severity of Wakefield's condition becomes all the more signifi- cant With the massive amount of uncontradicted testi- mony and evidence that Wakefield was disabled by the events he endured with the Respondent, it would be clear error for me to reject this evidence as improbable merely because the evidence shows that a partially suc- cessful program of psychotherapy and rehabilitation in- cluded schooling K-Mart Corp., 110 LRRM 2167 (9th Cir. 1982). Accordingly, I find on the basis of the fore- going, and the entire record herein that Wakefield's fail- ure to seek interim employment resulted from his disabil- ity and that he incurred no willful loss of earnings by reason of his failure to seek or secure interim employ- ment. Ordinarily gross backpay is tolled during periods of a discrimmatee's illness or other unavailability for work during the backpay period An exception to this general rule is found in circumstances where the illness results, inter alia, from the Respondent's unlawful conduct. American Mfg. Co. of Texas, supra In that case, the Board held that where an interim disability arose from the unlawful discharge and is not a usual incident of the hazards of living generally, the period of disability will not be excluded from backpay. The evidence here shows that Wakefield initially left work because of the physical injury inflicted by Singh The findings in Greyhound I show that he never returned because he was fearful of doing so When he submitted to a medical evaluation following that hearing, it was determined that this fear had taken on the characteristics of a severe neurosis Because it is natural for the loss of one's job to produce a stressful sit- uation, claims of psychological disabilities resulting therefrom should be carefully scrutinized. The evidence here establishes that Wakefield's psychological disloca- tion was far more severe than that normally suffered The evidence also establishes that the direct cause of Wakefield's disability was the series of events culminat- ing in Wakefield's termination and not, as the Respond- ent claims in its brief, Wakefield's time-bomb personality together with the refusal of the police department to take action against Singh for the battery committed against 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wakefield. The Respondent' s argument in this regard begs the question. Assuming, arguendo, that the Re- spondent had introduced competent evidence to show that to be the case, it does not follow that Wakefield's disability is thereby attributable to the "hazards of living." Neither employees nor employers should need police protection from one another and where it is shown that such a need arises as a result of the deliberate conduct of one, the law must hold the other responsible for the foreseeable consequences of his actions. The fore- seeability of Wakefield's condition cannot be treated as all that remote from the circumstances which caused it. In the underlying case, the findings show that he was threatened with murder and attacked by the same super- visor within a 2-month time span . To the extent that his resultant condition was unusual, the circumstances caus- ing it were unusual . In addition, the medical testimony in this case confirmed that the surfacing of latent personali- ty factors, such as those which caused Wakefield to react to events in the manner in which he did, is a totally un- predictable variable. The fact of the matter is, however, that Wakefield spent 6 years at his job with the Respond- ent as a rather contented employee. Although Wake- field's reaction might be termed unusual, it is not alto- gether novel Thus, in at least one past case the Board ordered a backpay remedy for an employee disabled by a form of anxiety illness induced, or substantially caused, by an employer's unlawful conduct. Becton-Dickinson Co., 189 NLRB 787, 788 (1971). As it is my conclusion that Wakefield's disability resulted solely from the cir- cumstances surrounding his attack and unlawful termina- tion, I find that backpay is not tolled during the period of his disability. American Mfg. Co. of Texas, supra. Another elementary principle in backpay matters is that the backpay is tolled by an unconditional offer of re- instatement. As construed by the Board, the intended cutoff date is that date which affords a discriminatee a reasonable penod of time to determine if he wishes to accept or reject an unconditional offer and during which he can, if he accepts, take those steps necessary to return to work pursuant to the offer. Fredeman's Calcasieu Locks Shipyard, 208 NLRB 839 (1974). In applying this principle, a discnmmatee is usually not precluded from accepting an offer if, at the time it is tendered, he is ill and unable to return to work. Here, however, the evi- dence shows that the nature of Wakefield's illness pre- cluded any realistic option of returning to work for the Respondent. Those directly involved in treating Wake- field strongly recommended that he not return to the Re- spondent's employ. This recommendation was clearly reasonable under the circumstances. Hence, without regard to whether or not any of the offers of reinstate- ment were conditional or unconditional, the evidence now available shows that it would have been totally im- practical for Wakefield to return to his former position. In these circumstances, if any of the reinstatement offers are treated as sufficient to toll the backpay in this case, the Respondent will benefit from an artificial and mean- ingless act to limit its liability for the losses which its un- lawful conduct actually caused Wakefield. In my view the real problem, with respect to Wake- field's backpay period, is determining the event which should trigger its ending . Where, as here, there is no evi- dence that the Board was ever previously made aware of Wakefield's medical condition , I refuse to assume that the Board would treat this matter as governed by the usual rule that backpay ends when there is an uncondi- tional offer of reinstatement . In too many cases, the Board has severed the holy bond of matrimony between offers of reinstatement and the ending of backpay where it has information before it showing that it would be un- reasonable not to do so. See, e.g, Los Angeles Marine Hardware Co., 235 NLRB 720, 738 (1978) (backpay not ended for individuals for whom it was impractical to travel to new employer location until they located sub- stantially equivalent employment elsewhere); D. R. Cooper & Son, 220 NLRB 287 (1975) (no reinstatement ordered and backpay terminated on date of employee vandalism against employer's property); Gifford-Hill & Co., 188 NLRB 337 (1971) (no reinstatement required and backpay ended when employee was jailed for a felony); Tomahawk Boat Mfg. Co., 144 NLRB 1344 (1963) (no reinstatement ordered where employee would have been terminated lawfully when a replacement was recruited and backpay ended when replacement was ac- tually hired). However, Graves Trucking, Inc., 246 NLRB 344 (1979), presents a factual pattern most analogous to Wakefield 's case There, an employee was forced to leave work after being physically choked by a supervisor in response to the employee's complaint about changes in working conditions which affected a number of employ- ees. As a result of the choking, the employee was inca- pacitated for work with either the offending employer or any other employer . In formulating a remedy, the Board rejected the employer's argument that backpay was pre- cluded because of the availability of a common law tort or workmen's compensation remedy . The Board ob- served that, although choking employees was not a common form of unlawful conduct under the Act, it was nonetheless a form of unlawful conduct which the Act was designed to remedy . Accordingly, the Board fash- ioned a remedy which required the employer to make the disabled employee whole for the pay lost from the date the employee was unable to work because of the physical injury to him until a reasonable time after the employee was deemed physically able to resume his former or substantially equivalent job with the respond- ent or any other employer . No reinstatement was or- dered and the determination of the date backpay was to be tolled was left to the compliance stage of the proceed- ing. In view of the Graves case and the medical evidence now available herein showing that the reinstatement of Wakefield by the Respondent would only aggravate his disabling mental condition, I can only conclude that, had this information been before the Board, it would have deemed a reinstatement remedy here to be impractical and unwarranted . That being so, I do not deem it reason- able to give effect to any reinstatement offer, conditional or unconditional , for purposes of determining the length of Wakefield 's backpay period. Instead it is my recommendation that Wakefield's backpay period be continued until the time he completed the vocational rehabilatation required as a consequence GREYHOUND TAXI CO. of the unlawful action the Respondent took against him.21 Recognizing that the restoration of Wakefield to his former type of employment was, for all practical pur- poses, an impossibility in the foreseeable future, the most that the medical experts, therapists, and vocational reha- bilitation professionals felt they could achieve was that Wakefield would be restored to a productive working member of society. That was the aim of the treatment plan devised which was endorsed by all three psychia- trists who evaluated Wakefield. Accordingly, I find that the appropriate measure of Wakefield's backpay would be a sum equivalent to what he would have earned if employed by Respondent from February 13, 1976, until he completed the plan of vocational rehabilitation de- vised by the California Department of Rehabilitation. Roseler, a professional rehabilitation counsellor, testified that time was approximately June 1, 1981. Although Dr. Groesbeck was cautious in his concurrence, he essential- ly agreed. I, therefore, recommend that Wakefield be made whole for the loss of earnings suffered by him from the date of his discharge until June 1, 1981.22 The next issue to be resolved is the treatment to be ac- corded the benefits which were received by Wakefield during the backpay period. The rationale of NLRB v. Gullets Gin Co., supra, would appear to lay to rest most of the issues with respect to those benefits received by Wakefield which should be treated as interim earnings. In that case, the Supreme Court held that unemployment compensation benefits paid to a discriminatee were not earnings from interim employment which should be de- ducted from gross backpay. Upholding the Board's dis- cretion under Section 10(c) of the Act in refusing to treat regular unemployment compensation payments as interim earnings, the Court reasoned (340 U.S. at 364): Such action may reasonably be considered to ef- fectuate the policies of the Act. To decline to deduct state unemployment compensation benefits in computing backpay is not to make the employees more than whole, as contended by respondent. Since no consideration has been given or should be given to collateral losses in framing an order to re- imburse employees for their lost earnings, manifest- ly no consideration need be given to collateral bene- fits which employees may have received. But respondent argues that the benefits paid from the Louisiana Unemployment Compensation Fund were not collateral but direct benefits. With this theory we are unable to agree. Payments of unem- ployment compensation were not made to the em- ployees by respondent but by the state out of state funds derived from taxation. True, these taxes were paid by employers, and thus to some extent re- 21 As this recommendation is predicated upon the conclusion that Wakefield must, under the special circumstances present here, seek alter- nate employment , it would be inappropriate to require that payments be made to the pension program on Wakefield's behalf unless (1) such pay- ments would affect a vested interest Wakefield already has in the pro- gram, or (2) the program has a portability feature 22 This is not to say that Wakefield is no longer disabled Instead it merely represents a demarcation point where those involved in his treat- ment thought he could have at least attempted to return to the work force Wakefield chose, however, to continue his schooling 471 spondent helped to create the fund. However, the payments to the employees were not made to dis- charge any liability or obligation of respondent, but to carry out a policy of social betterment for the benefit of the entire state See Dart's La. Gen. Stat. 1939, Section 4434.1; In re Cassaretakis, 289 N.Y. 119, 126; 44 N E.2d 391, 394-395, affd sub nom. Standard Dredging Co. v. Murphy, 319 U.S. 306; Un- employment Compensation Commission v. Collins, 182 Va. 426, 438, 29 S.E.2d 388, 393. We think these facts plainly show the benefits to be collateral. It is thus apparent from what we have already said that failure to take them into account in ordering back pay does not make the employees more than "whole" as that phrase has been understood and ap- plied. I 1 We note that some states permit recoupment of benefits paid during a period for which the National Labor Relations Board sub- sequently awards back pay E g , In re Skutnik, 268 App Div 357, 51 N Y S 2d 711 Recoupment in such situations is a matter be- tween the State and the employees In my judgment , this same rationale would preclude the deductions sought by Respondent of any UID and social security disability benefits, the private insurance benefits and the reimbursements received from the California De- partment of Rehabilitation from the gross backpay due to Wakefield. These benefits have been established or pur- chased privately by Wakefield to permit him to subsist during the period of his rehabilitation. The purpose of the public programs are, in the final analysis, designed to spread the human costs of legitimate industrial activity throughout society. I can perceive no public policy which would be served by artificially terminating the Respondent's liability and foisting the costs of its egre- giously unlawful conduct upon the taxpayers and public and private institutions as has been done here. Accord- ingly, I find that UID and social security disability bene- fits, Wakefield's private insurance benefits, and the De- partment of Rehabilitation reimbursements are not inter- im earnings which must be deducted from the gross backpay due.23 However, as to workmen's compensation benefits, the Board has accorded a different result to that portion of such benefits which can be identified as temporary dis- ability payments where, as here, it is inappropriate to toll the accrual of backpay because the interim disability arose from the unlawful discharge. In such cases, the Board has held that it is appropriate to deduct from the gross backpay "that portion of the workmen's compensa- tion payments to [the employee] which were in replace- ment of lost wages . .." American Mfg. Co. of Texas, supra. This holding was clarified in Canova Moving & Storage Co., 261 NLRB 639 (1982), wherein the Board, relying on Russell v. Bankers Life Co., 46 Cal 3d 405 (1975), held that only the temporary disability benefits 23 As the court noted in Gullets, there may be procedures which would permit recoupment of at least some of the benefits paid to Wake- field from an award of backpay herein. However, that is, as the court noted, a matter which would be between Wakefield and those agencies from which he has received benefits 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the workmen's compensation scheme in California constituted a replacement for lost wages. Regardless, the General Counsel argues on the force of instructions con- tained in an internal field manual (Compliance Manual, sec. 10604 1) that none of the funds received by Wake- field in the workmen's compensation matter should be deducted from the gross backpay. The thrust of the Gen- eral Counsel's argument is that because the payment made to Wakefield resulted from a compromise and set- tlement, it is not possible to identify the amount of the temporary disability payment which was actually paid to Wakefield I do not agree The applicable procedures in California workmen's compensation compromise and set- tlement cases where, as here, a UID disability lien was filed, do provide a sound basis for calculating the amount of Wakefield's temporary disability benefit. The Board's decision in Canova, supra, requires that the nature of the money paid to Wakefield be analyzed from the perspective of California law which, in any legal sense, governs the nature of the payment. Under the California workmen's compensation procedures, a compromise and settlement is not treated as an unex- plained back room bargain especially where there are outstanding liens such as those for UID disability bene- fits and medical services. See California- Western States Life Ins. Co. v. Industrial Accident Commission (the Baird Case), 59 Cal 2d 257 (1963), for a discussion of the Cali- fornia workmen's compensation compromise and settle- ment procedures and the formula employed in reducing the amount of UID liens. In the Baird case, the Califor- nia Supreme Court held that a UID lien could be re- duced by a specified ratio between the settlement and the estimated total value of the case The estimated total value of a case was specified as the sum of the amounts allocated for permanent disability, temporary disability, past medical treatment, and estimated future medical treatment computed as if the claimant prevailed on all contentions. In subsequent cases, the same court has held that the estimates of potential recovery must be support- ed by substantial evidence and legal contentions which are not spurious See, e.g., Hegglin v. Workmen's Compen- sation Appeals Board, 4 Cal. 3d 162 (1971); Place v. Work- men's Compensation Appeals Board, 3 Cal 3d 372 (1970), LeVesque v. Workmen's Compensation Appeals Board, 1 Cal. 3d 627 (1970), Smith v Workmen's Compensation Ap- peals Board, 71 Cal. 2d 588 (1969) Because of the standards established by California case law, allocating the portion of a workmen's compensation settlement to temporary disability benefits is rationally possible and is not a mere stab in the dark. Thus, it is reasonable to presume that the analysis which the parties in Wakefield's compromise and settlement filed with the WCAB represented the total value of his claim comput- ed as if he had prevailed on all contentions supported by substantial evidence and legal theories which are not spurious. In the absence of contrary evidence, the docu- ments in evidence demonstrate that these procedures were employed in Wakefield's case. General Counsel's Exhibit 5 reflects the calculation of the UID lien rule against Wakefield's settlement using the Baird formula That document reflects the separate amounts allocated to the various elements in determining Wakefield's case as follows. the "total value" of Estimated temporary disability indemnity $7000 Estimated permanent disability indemnity 8500 Estimated past medical expense 2500 Estimated future medical expense 3500 Total Estimated Case Value $21,500 The compromise and settlement (R. Exh 3) shows that the gross amount of Wakefield's workmen's compensa- tion settlement was $13,634 and Wakefield's uncontra- dicted testimony was that he actually received a payment of $10,300. The compromise and settlement document re- flects authorized deductions from the gross settlement figure of $633 73 for reimbursement of costs expended by Wakefield's lawyers, $687.06 to satisfy the UID disability lien and an unspecified sum for attorney's fees 24 The compromise and settlement further recites that Wakefield had already paid $2500 for medical expenses and that $3500 was estimated for future medical expenses which were to be assumed by Wakefield. As the compromise and settlement documents appear to meet the rigid allo- cation standards of California case law, I find contrary to the General Counsel, that the compromise and settlement has apportioned the gross settlement for specific pur- poses. By following the allocations made in the compro- mise and settlement, the combined amount of the tempo- rary and permanent disability benefits can be determined, to wit25 Settlement amount Less allocated UID lien $ 687 06 Less allocated case cost 633 73 Less allocated attorney's fees 2,103 21 Less allocated past and future medi- cal expenses Total allocated deductions Amount of settlement appropriately allocable for temporary and per- manent disability $13,634 9,334 4,300 Furthermore, in the original allocations of the total esti- mated case value, the temporary disability indemnity was 24 Based on the gross amount, the known deductions and the net paid to Wakefield, it appears the amount of the attorney fee for Wakefield's attorney was $2,013 21 25 The Baird case specifies that such items as medical expenses, attor- ney's fees, etc , are to be offset in the full amount in determining UID lien values Moreover, the compromise and settlement in Wakefield's case specifically allocates the sums specified for such purposes The Canova case rationale strongly suggests that amounts allocated for specific pur- poses by California will be treated in the same fashion by the Board Hence, for this purpose, the above amounts deducted from the gross set- tlement to determine the amount allocated for temporary and permanent disability appears entirely consistent with California procedure and Board law 6,00000 GREYHOUND TAXI CO. 45.16 percent of the total of the amounts allocated for temporary and permanent disability, i.e., $7000 divided by (7000 + 8500). Applying the same percentage to the settlement amount properly allocable to temporary and permanent disability as determined above is, in my judg- ment, a reasonable means of measuring that portion of the settlement which is for the temporary disability aspect of Wakefield's workmen's compensation settle- ment. As it is my view that the foregoing process is en- tirely reasonable under Board and California law, I have allocated the sum of $1941.88 ($4300 x 45.16 percent = $1941.88) as interim earnings earned by Wakefield (on a weekly basis) for the period from February 14, 1976, through September 1, 1977, the date of the workmen's compensation settlement. American Mfg. of Texas, supra, Canova Moving, supra. Accordingly, the revised compu- tation of the backpay which I find that is due to Wake- field is as shown in Appendix B. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed26 ORDER Respondent, Greyhound Taxi Co, Inc., Sacramento, California, its officers, agents, successors, and assigns, shall 1. Make Robert J. Sans whole (a) By contributing the sum of $283 to the Penn Mutual Retirement Program on his behalf. (b) By paying to Sans the sum of $11,799.90 less any further amount properly deductible as a consequence of the illness suffered by him about July 1, 1977, together with interest as prescribed in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977); (c) By paying to Sans such further amount of backpay which accrues after May 31, 1982, by reason of its failure to reinstate the $8.50-per-week wage payment which was discontinued in July 1975, together with interest thereon calculated in the same manner as is prescribed in 1 (b), above. 2. Make Harold L. Wakefield whole (a) By contributing the sum of $1360 plus an additional sum equivalent to the specified monthly contribution for 1981 multiplied by 5 to the Penn Mutual Retirement Pro- gram on his behalf if, under the provisions of that Pro- gram, such sum will affect in any manner a vested inter- est Wakefield had in that program at the time of his ter- mination, or that Program contains a provision of any kind which would permit Wakefield to benefit now, or at some future date, from the Program even though he was terminated by the Respondent on February 13, 1976; (b) By paying to Wakefield the sum of $38,766.74 to- gether with interest thereon in the same manner as pre- scribed in 1 (b), above. 26 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 473 3. Withhold and remit such tax payments as are re- quired by law for the sums specified in 1(b), 1(c), and 2(b), above. APPENDIX A Robert J. Sans' Backpay Year Quar- Gross Interim Earn- Net Retire- ment 1975 ter III Backpay $ 10200 lugs $ -0- Backpay $ 102 00 program N/A IV 269 50 -0- 269 50 N/A 1976 I 1,641 00 1500 1,626.00 $60.00 II 1,99550 -0- 1,995.50 6000 III 1.995.50 -0- 1,995.50 60.00 IV 2,005.50 -0- 2,005.50 6000 1977 I 518.00 -0- 518.00 N/A II 1,117.00 -0- 1,117.00 43.00 III 105 40 -0- 105 40 N/A From the fourth quarter 1977 thru May 31, 1982, the quarterly gross and net backpay is $110 50 for reduced weekly wage rate: 18 quarters, 9 weeks x $11040 = $2,065.50 Net Backpay (to May 31, 1982)• $11,799 90 Retirement Contributions Due, $283.00 APPENDIX B Harold L Wakefield's Backpay JV.- Quar- ter Gross Backpay Interim Earn- ingsi Net Backpay Retire- ment Contri- bution 1976 I $ 818.86 $16779 $ 651 07 $4000 II 1,695.90 311 61 1,38429 6000 III 1,454 16 311 61 1,142 55 6000 IV 1,846 16 31161 1,534.55 6000 1977 I 1,673.91 311.61 1,362 30 64.50 II 1,936 47 311 61 1,624,86 6450 III 1,77700 21604 1,55396 64 50 IV 2,047 84 -0- 2,047.84 64 50 1978 I 1,718.98 -0- 1,718 98 69.00 II 1,699 26 -0- 1,69926 69.00 III 1,77299 -0- 1,772.99 6900 IV 2,135.10 -0- 2,135.10 6900 1979 1 2,002.43 -0- 2,002.43 73 50 II 1,97823 -0- 1,97823 73 50 III 1,825 57 -0- 1,825 57 73 50 IV 1,982.09 -0- 1,982 09 73 50 1980 I 1,913.33 -0- 1,91333 7800 II 2,118.14 -0- 2,118.14 7800 III 2,342 21 -0- 2,342 21 7800 IV 2,263 06 -0- 2,263.06 78 00 1981 I 22,164.35 -0- 2,164.35 Monthly rate not II 31,549.58 -0- 1,549.58 shown in record NET BACKPAY DUE: $38.766.74 Retirement Contribution Through 1980 1,3 .00 Amounts represent a weekly allocation of workmen's com- pensation temporary disability payment of $1,941 88 at the weekly rate of $23 97 except for the final week where the sum of $24 28 was allocated to account for fractional rounding off. 2 Amounts of backpay computed pursuant to the gross back- pay formula for first three quarters of 1981 are contained in 474 DECISIONS '.OF NATIONAL LABOR RELATIONS BOARD ' Joint Exhibit 1 The remaining gross backpay figures are shown 3 Amount shown is 9/13 of total backpay for 1981, Quarter in the,amendment to the backpay specification . II, as feflected;in Joint Ex15ibith1