Overseas Motors, Inc.

552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Overseas Motors, Inc. and Miroljub Mitkovski. Cases 7-CA-18251, 7-CA-18355, and 7-CA- 18477 19 November 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 3 July 1985 Administrative Law Judge Robert W. Leiner issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings,2 find- ings,3 and conclusions and to adopt the recom- mended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Overseas Motors, Inc., Livonia, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Respondent has requested oral argument. The request is denied as the record , exceptions, and briefs adequately present the issues and the positions of the parties. 2 The Respondent contends that the judge's rulings and conduct of the hearing demonstrated bias against the Respondent . We disagree Our review of the record reveals no evidence that the judge prejudged the case, made prejudicial rulings, or demonstrated any bias . Contrary to the Respondent's contention, we find that the Respondent was accorded due process, including a fair hearing in all respects. We further find, in agree- ment with the judge, that the Regional Compliance Officer exhibited no bad faith, bias, or prejudice against the Respondent in formulating the backpay specifications in this case. s The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cit. 1951). We have carefully examined the record and find no basis for reversing the findings Jerome Schmidt, Esq., for the General Counsel. J. Leavin Weiner, Esq., C. Robert Wartell, Esq., and Wil- liam E. Sigler, Esq. (Maddin, Weiner, Hauser, Wartell & Roth), of Southfield, Michigan, for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge. On 20 October 1981, Administrative Law Judge Lowell Goerlich issued his decision in the above-captioned pro- ceeding on 11 March 1982 the Board adopted the judge's decision and recommended Order (260 NLRB 810), with modifications not pertinent herein. On 23 November 1983, the United States Court of Appeals for the Sixth Circuit enforced the Board's Order in its entirety (721 F.2d 570). The Board's Order, as enforced, required, inter alga, that Respondent offer reinstatement to and make whole the Charging Party, Miroljub Mitkovski, an individual, for any loss of earnings he may have suffered by reason of Respondent's unlawful conduct against him by payment to him of backpay plus interest, equal to that which he would have earned less interim earnings, if any, from the date of his unlawful termination to the date of an unconditional offer of reinstatement, to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950). Interest on any such backpay was to be computed as specified in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962). A dispute having arisen over the amount of backpay due the claimant under the Board's Order, the Regional Director for Region 7 of the National Labor Relations Board, on 7 November 1984, issued a backpay specifica- tion and notice of hearing to which Respondent filed an answer. During the hearing, I granted the General Coun- sel's motion to amend the backpay specification which was thereafter amended and filed on 26 February 1985. Respondent filed a timely answer to the amended back- pay specification on 4 March 1985. The hearing in this matter took place on five occasions on and between 13 February and 12 March 1985. At the hearing, all parties were represented by counsel who enjoyed full opportuni- ty to present evidence, to examine witnesses both indi- rect and on cross-examination, and to make argument on the record. At the close of the taking of testimony, coun- sel for the parties waived final argument and elected to submit posthearing briefs. Thereafter, the parties submit- ted timely briefs which have been fully considered. Based on the record as a whole, including my observa- tion of the witnesses and their demeanor as they testified, and upon consideration of the posthearing briefs, I make the following FINDINGS AND CONCLUSIONS I. BACKGROUND The introductory allegation of the original and amend- ed backpay specification alleges that the gross backpay due to the Charging Party is the amount of earnings he would have received but for the discrimination against him. In Respondent's original and amended answer, Re- spondent denies the allegation therein and alleges that (a) there was no discrimination against the Charging Party and, moreover, the Charging Party was entitled to no backpay because he was unemployable; because of (b) a 277 NLRB No. 61 OVERSEAS MOTORS poor driving record, lack of driver's license, and lack of mechanic's license, and (c) because his suspended driver's license rendered him uninsurable or insurable only at rates greatly in excess of standard insurance rates. Re- spondent further argues that (d) to have employed the Charging Party under these circumstances would have caused Respondent to lose its own license as an automo- bile repair facility because it would be operating in viola- tion of a Michigan statute. Further, arguendo, Respond- ent argues (e) that the alleged interim earnings in the backpay specification should be further reduced by other interim earnings including unemployment compensation payments. Moreover, the answer and Respondent's brief put in issue both the (f) formula, derived from the base period, with regard to the calculation of gross backpay and (g) the use of the particular "representative" em- ployee during the backpay period on which to apply the base period formula. Indeed, one of the few things upon which the parties agree is the backpay period itself. The backpay period commenced 15 September 1980 when the Charging Party was discriminatorily suspended and, except for pe- riods of intermediate reinstatement on at least two occa- sions thereafter, the exact configuration and dates being in dispute, the backpay period then commenced again on 23 October 1980 when the Charging Party was discri- minatorily discharged and continued until 11 July 1984 when he was offered reinstatement to his former posi- tion. In fact, the period between the date of entry of the court decree (23 November 1983) enforcing the Board Order requiring reinstatement, and 11 July 1984, when Respondent actually offered reinstatement, was occupied by proceedings by the Board in civil contempt , bringing to the court's attention Respondent 's failure and refusal to comply with the court's 23 November 1983 reinstate- ment Order. I mention this fact particularly to under- score both the hostility which, from Respondent and the Charging Party , pervaded the testimony of the witnesses in this proceeding carrying over from the underlying unfair labor practice case and the skepticism with which I regarded almost all the testimony . The effect of such hostility, of course, bears on the credibility of the wit- nesses. II. THE BASE PERIOD; BACKPAY FORMULA AND GROSS AND NET BACKPAY A. The Contentions of the Parties The General Counsel utilized as the "appropriate measure of gross backpay for the Charging Party" (par. 3(a) of the amended backpay specification) a ratio cre- ated by dividing the average weekly commissions earned by the Charging Party, an automobile mechanic ("a spe- cialty mechanic")' for a specified "base" period prior to ' The State of Michigan licenses and prescribes "specialties" for me- chanics State of Michigan Motor Vehicle Service & Repair Act, PA300 (1976). There are eight "specialties" Tune-up, front-end alignment, brakes; transmission; automatic transmission, engine repair , differential and rear axle; and heating, air-conditioning. After 1981, no major repair could be made in these specialty areas unless performed by a state-certified me- chanic or by a trainee holding a "permit" and working under a master 553 his discharge (from week ending 2 May 1980 to week ending 12 September 1980), by the average weekly com- missions earned by a fellow automobile mechanic, Arthur Miruzzi (a "master mechanic"), for the same specified "base" period. This fraction was then applied to and multiplied against the total quarterly earnings, in- cluding vacation pay, of Arthur Miruzzi as a "represent- ative employee" during the, backpay period (15 Septem- ber 1980 to 11 July 1984). In its original configuration in the first backpay specification, this base-period ratio of the Charging Party's earning to Miruzzi's earnings equaled 131.26 percent. This base period selected by the General Counsel, as above noted, commenced with the payroll period ending 2 May 1980. This starting date was chosen by the Gener- al Counsel, according to the testimony of the Regional Director's compliance officer, because it was at this point that Charging Party Mitkovski ceased receiving pay as an assistant shop foreman or service manager and revert- ed to pay as a mere automobile mechanic. The base period ends with the payroll period ending 12 September 1980, the date on which Respondent embarked on its unfair labor practices against the Charging Party. Apply- ing this ratio (Schedule A) to Miruzzi's earnings in the calendar quarters in the backpay period (the third quar- ter in 1980 through the third quarter 1984) (Schedule B), meanwhile deducting therefrom the alleged interim earn- ings (Schedule C), the original backpay specification showed net backpay of $131,351.84. At the hearing, this figure was at the outset reduced, by diminutions from gross backpay in certain quarters in 1981, 1982, and 1984, to $127,639.53. Later in the hearing, between 13 and 15 February 1985, the General Counsel alleged that he had discov- ered, on notice from Respondent, that certain documents supplied by Respondent, utilized in the computation sup- porting the backpay specification, did not accurately re- flect the base period earnings of employee Arthur Mir- uzzi. It was upon the discovery of these alleged mathe- matical errors that I granted the General Counsel's motion, without Respondent's objection, to redefine and clarify the gross and net backpay. As above noted, on 26 February 1985, the General Counsel issued an amended backpay specification wherein the ratio (based upon the comparative earnings of Mitkovski to Miruzzi in the above base period (2 May-12 September 1980) was re- duced (to 1.0698), and when multiplied against Miruzzi's earning during the backpay period (1980-1984) resulted in a net backpay, taking into account the same interim earnings, of $101,740.83. When Respondent then demon- strated that, nevertheless, there existed a mathematical error with regard to the computation of gross backpay for the third quarter of 1981, the General Counsel agreed and thereafter reduced the net backpay figure, at the re- sumed hearing, to $101,105.93. Respondent's preliminary contentions as above noted are; (1) that there is no backpay whatever due to the Charging Party because of no discrimination against him. mechanic (certified in the eight specialties) Fred J Pirochta, Michigan director of repair facilities, testified that the State routinely and immedi- ately'grants trainee permits. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That defense is not available to Respondent because, as I mentioned on several occasions in the hearing to Re- spondent, the findings and Order in the underlying case, including enforcement in the court of appeals, demon- strated that Respondent was responsible for backpay be- cause of discrimination against Mitkovski. That issue in this mere supplementary proceeding has been resolved and is the "law of the case," NLRB v. Laredo Packing Co., 730 F.2d 405 (5th Cir. 1984) Respondent may not relitigate that defense in a supplementary proceeding to determine the amount of backpay. Respondent's further defense (2) is that the base period ratio formulated by dividing Mitkovski's earnings by Miruzzi's earnings is not an appropriate use of this device because Mitkovski was a mere "specialty" me- chanic whereas Miruzzi was a "master" mechanic, both having different qualifications, different pay rates, and performing different functions. Indeed, Respondent notes that Michigan lawn prohibits Respondent from permit- ting a mere specialty mechanic to perform work which is not within his various specialties but that a master me- chanic is allowed to practice his trade in all the special- ties. Thus, Respondent urges, it is mixing apples and or- anges to compare the earnings of Mitkovski (a specialty mechanic) with the earnings of Miruzzi (a master me- chanic). Instead, Respondent urges that if there is any backpay due to Mitkovski at all, both the appropriate, base period ratio and the backpay period application would be based upon employees of Respondent who had "comparable qualifications and held comparable positions to that of the Charging Party" (par. 3(a), Respondent's amended answer; Br. 48 et seq.). In this regard, Respond- ent points to its having hired, on various occasions during the 4-year backpay period, several specialty me- chanics whose average wages should be the wages used to create a gross backpay figure for Mitkovski. Respond- ent's amended answer (par. 12 et seq.) and brief would demonstrate that by utilization, during the backpay period, of the average earnings of specialty mechanics, the gross backpay would not exceed $61,772.28. Moreover (3) Respondent, in its answer and brief, re- peatedly further attacks the General Counsel's selection (through the Region's compliance officer) of the 2 May to 12 September 1980 base period as being one chosen in bad faith or by caprice because it creates a ratio which is the highest of any of nine possible ratios which could have been selected; and that this selection, whether in bad faith, ignorance, or merely arbitrary, should not be accepted.3 Thus, for instance, Respondent asserts that if the base period were actually 5 September to 12 Septem- ber 1980, the ratio would be in Miruzzi's favor as a mere 73.54 percent when multiplied against Miruzzi's backpay 2 See fn. 1, supra. 3 Whatever the alleged unsuitability in the General Counsel's selecting a base period and a formula, my observation of the demeanor and testi- mony of the compliance officer disclosed no suggestion of bad faith, ca- price, or negligence There is no evidence to support Respondent's re- peated allegation that the compliance officer demonstrated hostility to Respondent in the choice of the backpay period, the multiplying formula, a failure to fully investigate interim earnings , and other alleged wrongdo- ing. In its brief, Respondent also alleges that I was guilty of bias and prejudice As to that allegation, I refer Respondent to the Board's Rules and Regulations and refer the Board to the record herein period earnings. If the base period were 1 August through 12 September 1980, the base period ratio would be a mere 69.6 percent. If the period were 4 January through 12 September 1980 it would be 105.64 percent. By the General Counsel choosing the base period 2 May to 12 September 1980 the ratio is 106.98 percent, the highest ratio. The Regional Director's compliance officer testified that the selection of this period derived only from an unbroken, lengthy period during which, and commencing when, neither Miruzzi nor Mitkovski re- ceived any additional moneys for supervisory functions and ending with Respondent's engaging in its first unlaw- ful conduct against Mitkovski. There is no dispute that, at the beginning of the base period, in or about 5 May 1980, Miruzzi, a master me- chanic, certified in all eight specialties, was receiving from Respondent hourly wages at the rate of $10.10 per hour. At the same time, the Charging Party, Mitkovski, a mere specialty mechanic, was receiving hourly wages at the rate of $10.60 an hour, a 50-cent-per-hour difference in favor of the mere specialty mechanic, Mitkovski. In addition, Respondent was paying Mitkovski an additional 60 cents per hour to act as assistant foreman in the shop. In fact, therefore, Mitkovski's gross hourly pay was actu- ally at the rate of $11.20 per hour compared to Miruzzi's $10.10 per hour. It is the 60 cents per hour which Mit- kovski was being paid as assistant foreman, eliminated at the beginning of the base period, in or about 5 May 1980, which caused the Regional Director's compliance officer to choose that date for the purpose of commencing the base period for comparing Miruzzi's and Mitkovski's wages ($10.60 to $10.10). As the Board and the court of appeals noted, it was on 12 September 1980 that Re- spondent gave a pay raise to all its employees, the high- est paid of all mechanics, Mitkovski, receiving a pay raise of only 60 cents per hour (thus raising him to $11.20 per hour) whereas the other mechanics received greater pay increases so that Miruzzi, the master me- chanic, was receiving $11.20 per hour, the same pay rate as Mitkovski.4 The court of appeals noted that, in granting the pay raise, Respondent stated that the pay raise stood regard- less of the wishes of any of the employees and regardless of any suggestions that they were being in any way un- fairly dealt with. In addition, the Board, affirming Judge Goerlich (and thereafter particularly sustained by the court of appeals) found that Respondent threatened that if Mitkovski com- plained to the Labor Board he would not thereafter re- ceive "any desirable assignments"; and that Respondent considered Mitkovski to be a "good" auto mechanic. In this latter regard, in addition, the court of appeals also affirmed the Board's finding that Respondent had unlaw- 4 It was this pay raise inequitable in Mitkovski's eyes, that sent him to the Labor Board, resulting in Respondent's commission of the unfair labor practices. During the base period other specialty mechanics re- ceived $9.50/hour compared to Mitkovski at $10 60/hour (with an addi- tional 60 cents an hour as an assistant supervisor) OVERSEAS MOTORS fully threatened Mitkovski that he would "not get any jobs to make enough living so [he] would fire himself."5 B. Discussion and Conclusions 1. Base period and backpay period projections a. Base period..- backpay formula (ratio) As noted in East Wind Enterprises, 268 NLRB 655 (1984), an administrative law judge must consider con- flicting backpay formula arguments and select the most accurate method of determining backpay.6 In selecting the most accurate method uncertainties will be assessed against the wrongdoer. Thus, the Board has rejected the- oretical formulas for determining backpay offered by various respondents which, while internally consistent, do not reflect the realities of the events involved. As I view the evidence, I conclude, as Respondent argues, that the use of a protracted base period is unnec- essary in this case notwithstanding that the General Counsel's compliance officer's testimony demonstrates a rational and good-faith choice in selecting the base period notwithstanding that it results in the highest ratio. As noted, this period was selected because it eliminated, commencing 5 May 1980, any inflation in Mitkovski's pay based upon his additional pay as an assisant shop foreman. The facts, without contradiction, show that prior to Respondent's unlawful discrimination, Mit- kovski, a mere specialty mechanic, was considered not only a good mechanic, but in the everyday workplace evaluation of the worth of work, i.e, rate of pay, the su- perior of Miruzzi. Thus, over an extended period, Re- spondent, without regard to supervisory pay, paid Mit- kovski at a higher rate as a mere specialty mechanic than it did Miruzzi, who, Respondent asserts, is Mitkovski's superior because Miruzzi is a "master mechanic." In so far as payment of wages reflects Respondent's own esti- mate of comparative value, I reject Respondent's argu- ment that the use of Miruzzi's earnings is improper. It is apparent that during the pleaded 4-month base period, Mitkovski was paid at the rate of $10.60 per hour where- as Miruzzi, supposedly his functional superior, was paid a mere $10.10 per hour. The record therefore shows, without contradiction, that during the base period, Respondent, whether as a matter of informed business judgment or otherwise, fa- vored Mitkovski, up through 5 September 1980, with a higher wage rate, notwithstanding that Mitkovski was a "mere specialty mechanic." This Respondent evaluation, in terms of the superior wage rate and earnings paid to 5 The court of appeals sustained the Board's finding that Respondent unlawfully suspended Mitkovski for 2 days on 15 September 1980 and 3 days on 16 October 1980 Any dispute that Respondent has raised in this backpay proceeding based upon an assertion that the length of those two intermediate suspensions (before the 23 October 1980 discharge) was in- correctly found may not be litigated in light of the Board's and the court's contrary findings. 6 It follows that, as directed in East Wind Enterprises, supra, calcula- tions offered by each party determine which formula and what calcula- tions produce the most accurate gross backpay amount, keeping in mind that uncertainties must be resolved against a respondent whose illegal conduct "produced both the uncertainties at issue and the injury the in- stant litigation is intended to remedy " 555 Mitkovski, I regard as exceptionally strong evidence to support the finding that Mitkovski, regardless of other specialty mechanics, was paid more than master mechan- ics. I reject Respondent's arguments that (1) Mitkovski should not be compared to Miruzzi because of their dis- tinctive qualifications and that (2) regardless of the base period, during the 4 years of the backpay period, special- ty mechanics were paid less than Miruzzi and the other master mechanics. I find and conclude that prior to the onset of unlawful discrimination, Respondent valued Mit- kovski as a mechanic worthy of pay superior to Miruzzi. It is clear from the Board's and court of appeals' deci- sions that Respondent used its discretion in assigning work to Mitkovski as a "good" mechanic. It is also clear on this record that he could and did make money most often equal to or surpassing Miruzzi notwithstanding Mitkovski's more limited qualifications. There is no sug- gestion in the evidence that any of the specialty mechan- ics thereafter hired in the backpay period were viewed by Respondent as "good" mechanics or, in any event, the equal, much less the superior, of Mitkovski. Lastly, only Miruzzi was employed throughout the base period and backpay period. Mitkovski's unlawful discharge makes it impossible for us to know whether Respondent might have applied a different, and perhaps a stricter, wage standard to Mit- kovski during the 4 years of the backpay period by low- ering his wages to rates enjoyed by specialty mechanics first hired in the backpay period. It is a matter of specu- lation. This uncertainty must be resolved against Re- spondent since it was Respondent that created this situa- tion. NLRB v. Westin Hotel, 758 F.2d 1126 (6th Cir. 1985); NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966). I am, therefore, prepared to find, and do find, that the use of a base period ratio comparing Miruzzi's earnings to that of Mitkovski is not unreason- able since, regardless of technical qualifications, Mit- kovski, even when not additionally paid as a supervisor, was an employee whom Respondent favored with a wage rate as high or higher than Miruzzi's, a master me- chanic; Mitkovski's base period earnings ordinarily equaled or surpassed Miruzzi's; other base period me- chanics were paid less than Mitkovski (i.e., $9.50/hour compared with Mitkovski at $10.60/hour) and since Mir- uzzi was the only employee employed during the base period and the entire backpay period. Yet, as above noted, while I conclude that a Mitkovski/Miruzzi base period ratio is proper, I agree with Respondent that the use of the base period (2 May to 12 September 1980) used by the General Counsel in computing the ratio is not the most accurate measure of ratio to be used. It cannot be denied that for the payroll period ending 5 September 1980, Respondent fortuitously created, for reasons on this record, of pure business ne- cessity, without taint of unlawful considerations, an exact equality in the pay rates of Mitkovski and Miruzzi. Each was paid $11.20 per hour. Thus, the ratio in this short, but untainted, period is exactly an integer; that is, with the equality of earnings, the ratio becomes "one." It is therefore unnecessary to use the Genei al Counsel's much longer base period, or any other period, to compare their 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wages. I therefore conclude that the most accurate "base period" use of the comparison between Miruzzi and Mit- kovski occurred when Respondent , on this record , equat- ed their wages for purely business reasons, a result which Mitkovski resented and which led ultimately to the unfair labor practices thereafter initiated by Respondent. In any event, I find that the most accurate earnings ratio between these two highest paid, longtime, skilled em- ployees is the ratio of their earnings in the period both most proximate and prior to Respondent 's unlawful con- duct, which period, the payroll period 5 September to 12 September, reveals an exact equality of earnings . I there- fore conclude that a ratio establishing exact equality of Mitkovski-Miruzzi earnings is the proper and most accu- rate ratio to be applied in the projected backpay period. b. Backpay period.- Miruzzi's earnings With regard to the ensuing 4-year backpay period, I have already noted my disagreement with Respondent that the earnings of Miruzzi are irrelevant because Mir- uzzi was a master mechanic. I accept, arguendo, Re- spondent's arguments that (1) specialty mechanics work only in their specialties whereas master mechanics can do all the work of all specialty mechanics ; (2) during the backpay period Respondent experienced almost 50 per- cent of its work in "tune-ups" and that Mitkovski was not certified in the specialty of "tune-ups"; and that the specialty mechanics hired during the 4-year backpay period received lower wage rates and earnings than did the master mechanics . The facts remain that the only un- controverted data and economic experience untainted by Respondent's unfair labor practices in the base period demonstrate that Mitkovski held a favorable position with Respondent. Respondent's testimony in the underly- ing unfair labor practice case went so far as to describe Mitkovski as a "very good " mechanic, then suspiciously diminshed to a mere "good mechanic ," the latter finding supported by the Administrative Law Judge, the Board, and the court of appeals. It is clear on this record that whatever Mitkovski's deficiencies in specialization as a mechanic, he regularly received , even excluding supervi- sory pay, during the entire base period pleaded in the General Counsel's specification, earnings superior to the master mechanic (Miruzzi) whom Respondent thereafter made an assistant foreman . It was only on the date in the payroll period ending 5 September 1980 (announced on 12 September 1980) that Miruzzi reached equality with Mitkovski in wage rate . To suggest that Mitkovski, en- joying this superior position, because of Respondent's use of untainted business discretion in assigning him work which led to his superior earnings, would have been rel- egated to lesser earnings as a mere specialty mechanic during the 4-year backpay period, is to indulge in the very speculation forbidden under Board law.7 Thus, absent proof by Respondent that the favored veteran, highly paid, Mitkovski, would " have been relegated to the pay rates and earnings of newly hired specialty mechan- ics, who came and went during the 4 -year backpay 7 I would especially avoid speculating on this uncertainty in the face of Respondent's repeated threats of economic reprisal against Mitkovski if he complained to the NLRB period, I cannot conclude that Respondent had submitted sufficient evidence to support this defense. This Re- spondent defense, in fact, is unsupported by any evidence in this regard outside the mere naked earnings of the spe- cialty mechanics employed in the 4-year backpay period. As noted, none of these enjoyed Respondent's accolade as "good" mechanics and none of them were employed during the base period so that a reasonable extrapolation could be made to demonstrate how they would have been treated during the 4-year backpay period . The only hard evidence is that Mitkovski 's base period wage rates were at least equal to Miruzzi's and higher than all other specialty mechanics employed alongside Mitkovski in the base period ($10.60/$9.65). On such evidence, I further conclude that the use of Miruzzi 's earnings, the earnings of a "representative employee" working during the entire backpay period , East Wind Enterprises, 268 NLRB 655, 656, was an accurate and reasonable method of as- certaining a gross backpay for Mitkovski during the base period, was paid higher than any specialty mechanic and at least as high as any other mechanic , including master mechanics, it would be improper to use, accurate and reasonable method of ascertaining a gross backpay for Mitkovski during the 4-year backpay period," and that because Mitkovski, at all times in the base period, was paid higher than any specialty mechanic and at least as high as any other mechanic, including master mechanics, it would be improper to use, much less average, the earnings in the backpay period of specialty mechanics es- pecially where they were not employed during the entire backpay period. Compare Central Freight Lines, 266 NLRB 182 (1983), with Berry-Mahurin Construction, 273 NLRB 1044 (1984). 2. Respondent's defenses; Mitkovski's loss of his driver's license and uninsurability The parties stipulated that Mitkovski's driver's license was suspended on 22 October 1980 and reinstated on 23 July 1981. In fact, the General Counsel conceded that, in that period, Mitkovski had no driver's license at all. To that extent, Respondent asserts that since a driver's li- cense was functionally necessary for the employment of Mitkovski as a mechanic, it should not be held liable for backpay in any quarter in which Mitkovski was without a driver's license. Mitkovski, without a driver's license, would be unable to certify that his repair work rendered the car fit to operate since he would be unable to drive it and check it out. The problem, however, is that Re- spondent made the same argument in the underlying s To the extent Respondent would diminish Miruzzi's earnings in the 4-year backpay by showing that he was paid moneys as a supervisor, Re- spondent's proof does not establish same . Payment for "policy" hours shows merely payment out of funds (insurance , "house" money) not from customers. Where money paid to Miruzzi for supervisory functions is es- tablished, such money should be deducted from any use in determining Mitkovski's backpay Respondent failed to prove that any backpay period payments to Miruzzi's were for supervisor functions ; and also failed to prove that any payments to Miruzzi were for any service other than to assure a rate of $11 20 per hour As the General Counsel notes , Respond- ent admitted that Miruzzi was paid the same hourly rate regardless whether working as a mechanic or allegedly overseeing the shop (Tr 308-309) OVERSEAS MOTORS unfair labor practice case: that, among the reasons for its discharge of Mitkovski, was that Mitkovski had lost his driver's license, or rather had it suspended; that in fact, he was without the ability to legally drive, and that this resulted in a threat by Respondent's insurance carrier to cancel its insurance. That argument, relating to the cause of Respondent discharging Mitkovski, was rejected by the Board and by the court of appeals and may not be relitigated under the guise of avoiding backpay in any quarter in which the loss of licence occurred. The underlying reason for this conclusion was that the Board and the court of appeals found that Respondent employed Mitkovski as a mechan- ic for long periods when it knew that he had a suspended license; was not legally permitted to drive; was neverthe- less driving cars he serviced; and in view of the Board's findings that Respondent testified that it was "doing ev- erything in my power [regarding insurability and license suspension] not to have him terminated." (Overseas Motors, 260 NLRB 810, 813 (1982).) The Board and the court of appeals quite clearly held that Respondent con- cealed Mitkovski's driving record from its insurance car- rier and it was only after he filed charges with the Labor oard that Respondent became "concerned'"' about Mit- kovski's driving record (the quotation marks surrounding concerned appear in the court of appeals' opinion). The defense of Mitkovski's loss of driver's license and his resulting uninsurability was explicitly the subject of litigation in the underlying unfair labor practice case. Thus, in cases where a respondent merely fails to raise a defense which would meet the allegations of unfair labor practice and thus indirectly eliminate the backpay liabil- ity (failure to reinstate an employee because of picket line misconduct where the picket line misconduct oc- curred prior to the hearing in an unfair labor practice proceeding), the respondent is collaterally estopped from raising that matter as a defense in the backpay proceed- ing. Compare Fibreboard Corp., 180 NLRB 142, 149-151 (1969), enfd. 436 F.2d 908 (D.C. Cir. 1970), cert. denied 403 U.S. 905 (1971), with Olson Bodies, Inc., 220 NLRB 756, 757, (1975). In the instant case, it is not a matter of mere collateral estoppel, for the defenses of loss of driver's license and resulting loss of insurability were explicitly litigated and expressly rejected in the underlying unfair labor practice case. Thus, I conclude that Respondent is not merely collaterally estopped from raising those defenses in the backpay proceeding but is barred from raising those de- fenses under the doctrine of "law of the case." The in- stant backpay proceeding is a continuation of, and a mere supplement to, the unfair labor practice case. Hence, this proceeding is not a "new" litigation requir- ing the application, if appropriate, of the rule of collater- al estoppel or res judicata. Indeed, in the recent NLRB v. Laredo Packing Co., 730 F.2d 405 (5th Cir. 1984), enfg. the backpay order in 271 NLRB 553 (1974), the court noted (at 407), in its per curiam enforcement, where the respondent's proof, inter alia, consisted of a relitigation of its contention that the employer was justified in its failure during the backpay period to offer driving jobs to truckers (because they were uninsurable and that its backpay liability was thereby tolled), that the uninsurabi- 557 lity issue had already been decided adversely against the employer in the underlying Board and court proceeding. The court held that rather than applying the doctrine of res judicata it would apply the doctrine of "law of the case" and that the uninsurability of the drivers was not a matter to toll backpay liability: that matter had been re- jected in the case-in-chief. Likewise, in the instant case, to permit the defenses of loss of drivers's license and un- insurability with regard to Respondent's allegation that Respondent's insurance carrier (Central Insurance) would no longer insure him, would be to permit relitiga- tion of the reason for the pretextual discharge under the guise of tolling backpay. This was expressly rejected by the court of appleals in NLRB v. Laredo Packing Co., supra, and there have been no reasons advanced here to not apply the rule of that case. Therefore, as a first reason, as a matter of law, I may not entertain Mitkovs- ki's lack of a driver's license or his uninsurability by Re- spondent's insurance carrier, if true, as a tolling element in this backpay proceeding. Secondly, as above noted, Respondent demonstrated, in fact, that it would ignore Mitkovski's loss of license and uninsurability and would even conceal that status in order to keep him as a mechanic. If it was willing to follow such a course of conduct prior to unlawfully dis- charging Mitkovski, I find that Respondent has shown no reason it would not have followed the same course of conduct during the backpay period. Thirdly, there was no evidence adduced in this backpay proceeding, nor does the face of the unfair labor practice proceeding show, that Respondent's insurance carrier actually can- celed Respondent's insurance or even threatened to cancel it. Fourthly, there was no effort, on any record herein, demonstrating that Respondent sought to appeal any declaration either by its insurance agent or the insur- ance carrier that the insurance would be canceled or that Mitkovski would be excluded. This failure shows that there has been no proof that the driver (Mitkovski) was in fact uninsurable (NLRB v. Laredo Packing Co., supra, 730 F.2d at 407) by Respondent's own carrier. Thus, added to "law of the case," and Respondent's avowed willingness to conceal Mitkovski's shortcomings, there is the additional ground that there was no proof that Mit- kovski was in fact or in law "uninsurable" by Respond- ent's own carrier or by any carrier. The burden of proof to show overall insurability is on Respondent. Overseas Motors, 260 NLRB 810, 815 fn. 12. The one exception to the use of the argument tolling backpay based on "uninsurability" appears in footnote 12 of the Administrative Law Judge Goerlich's decision adopted by the Board and enforced by the United States Court of Appeals (ibid.): Respondent is not precluded, in subsequent com- pliance proceedings, from contending that, after a good-faith exploration of Mitkovski's insurability, he is actually uninsurable with any carrier, and that its backpay liability should be commensurably reduced See Golden Beverage of San Antonio, Inc. [256 NLRB 469 (1981).] See also Viele & Sons, Inc., 227 NLRB 1940, 1950, 1951 (1977). 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Respondent called as its witnesses its insur- ance agent (Donald E. Spain), as well as its insurance carrier (David Hoerauf), both admitted that they never sought coverage for Mitkovski with any other insurance carrier; Respondent never requested its agent to place its insurance coverage with any carrier other than Citizen's Insurance Co.; and no effort was made to place Mitkovs- ki's coverage with a high-risk carrier or with a "pool" insurance group which would insure high-risk employ- ees. Moreover, Respondent' s carrier, Citizen's Insurance Co., never threatened to cancel Respondent' s insurance, never was asked to pass on Mitkovski's insurability, and was never presented with the option of ignoring Mit- kovski or getting Respondent to waive his coverage. The fact that Respondent's insurance agent (Spain) believed Mitkovski's insurance would cause any ordinary carrier to cancel all of Respondent's liability insurance hardly meets the burden of Respondent proving that Mitkovski was "actually uninsurable with any carrier." Thus, there is a complete failure of proof that Mit- kovski was actually "uninsurable with any carrier" since neither Respondent nor its agent nor its insurance carrier made any effort to see if he would be insurable with "any carrier" within the meaning of the footnoted excep- tion provided by the Board. Thus, not only did Respond- ent fail to make any exploration with regard to Mitkovs- "ki's insurability but there has been no showing of a "good-faith exploration" of that issue with any other car- rier or agent, with the insurance "pool," or with Citi- zen's for an exception or a waiver. I thus conclude that there was a failure of proof with regard to the tolling of Respondent's backpay liability based upon Mitkovski's failure to have a driver's license or his "uninsurability" and that, in fact, in the instant case, as in Golden Beverage of San Antonio, 256 NLRB 469 (1981), Respondent had "used alleged problems involving insurance coverage to mask its real reasons." Thus, there shall be no tolling based on those propositions. Finally, Respondent argues that even if alternative in- surance was available if it continued to employ Mit- kovski, the substantially higher cost of the insurance would have placed an unfair burden on Respondent. There is no proof in this record as to what the asserted "substantially higher cost" of alternative insurance would be and therefore Respondent has failed to meet its burden on this ground as well. Therefore there shall be no tolling of backpay liability based upon Mitkovski's failure to have a driver' s license during the backpay period or his "uninsurability." 3. The failure of Mitkovski to renew his mechanic's certificate on 17 October 1980 Respondent notes that Mitkovski failed to renew his mechanic's certificate on 17 October 1980 and that he re- mained without certification until 3 November 1983 when he did renew it. Respondent argues that to have employed Mitkovski during this period as a mechanic would have violated the Michigan Motor Vehicle Serv- ice and Repair Act (Michigan Public Act, 1974, No. 33) and could have led to loss of Respondent 's license. Re- spondent concludes that, the mechanic's certificate having been not renewed for 3 years, Mitkovski was thus rendered unemployable by Respondent in that period and that no backpay could be accrued in that period. As with the case of the loss of Mitkovski's driver's li- cense as a reason to discharge him, Respondent, in the 22 and 23 July 1981 hearings in the underlying unfair labor practice case, raised as an additional reason for lawfully discharging Mitkovski his "horseplay, use of the tele- phone, an expired mechanic's license, and fondling of female customers" (emphasis added). These excuses were rejected because the Board found these reasons "had been overlooked by Respondent prior to Mitkovski's contact with the Board and which had not been initially cited as reasons for his discharge," Overseas Motors, 260 NLRB 810, 813. Thus, Mitkovski's October 1980 failure to renew his mechanic's license was actually raised and litigated in 'the July 1981 unfair labor practice hearings and rejected. I conclude that, as in the matter of his failure to have a driver's license and his "uninsurability," Mitkovski's lack of a mechanic's license has already been litigated and re- jected by the Board and the court of appeals. As the "law of the case" it cannot be resurrected in the guise of tolling backpay in this backpay proceeding. Further- more, in view of Respondent's willingness, prior to its unfair labor practices, to conceal Mitkovski' s licensing shortcomings, I conclude it would have continued in such conduct during the backpay period. The credited and uncontroverted evidence adduced at the hearing was that, under Michigan law, after January 1981 (testimony of Fred J. Pirochta, Michigan Bureau of Automotive Regulation), a mechanic could not perform major repairs unless certified in that specialty or unless he obtained a trainee permit to perform the work under a specialty or master mechanic. The evidence is undis- puted that a mechanic can immediately receive a "trainee permit" by applying for it and the grant of the permit is a routine matter. Further evidence showed that after Jan- uary 1981, a mechanic with a "trainee permit" working under a certified mechanic, including a master mechanic, could do the major repairs in which he received the "trainee permit." Mitkovski's failure to have a current mechanic's li- cense was not a deficiency which rendered him inherent- ly unfit for work in the repair facility, such as his being out of the country, incarcerated, or ill. Such conditions would toll Respondent's backpay liability. As a first conclusion, therefore, to permit Respondent to litigate the question of Mitkovski's failure to have a current mechanic's certificate or license would be to permit relitigation of a defense rejected in the underlying unfair labor practice proceeding in the guise of tolling backpay in the supplementary backpay proceeding. This, the Board rule, enforced by the courts, prohibits. Moreover, Respondent may not be heard to argue that backpay should be tolled because of the intervening pro- visions of the Michigan Motor Vehicle Service and Repair Act, 1976, with relation to tolling the backpay even after 1 January 1981, after the 23 October 1980 dis- charge. That statute requires only that an uncertified me- chanic work under a master mechanic or a certified-me- chanic. As in the case of Mitkovski's uninsurability and OVERSEAS MOTORS failure to have a current driver's license, Respondent would be prohibited from now interposing this defense on the theory of "law of the case" or, if it was not actu- ally raised and litigated in the underlying case, on the theory that Respondent would have to be, and is collat- erally estopped from raising that defense since it was availiable to Respondent at the unfair labor practice hearing. Thus, if the statute went into effect in 1976 and if the provisions of the statute requiring uncertified me- chanics to work under certified mechanics or a master mechanic went into effect only on and after 1 January 1981, those facts would have clearly been available to Respondent in the unfair labor practice case which was not heard until 22 July 1981. Respondent's failure to raise the defense of the application of the statute was either, therefore, prohibited as a defense because it was litigated in the underlying unfair labor practice case Overseas Motors, supra at 810, 813 fn. 10, or should have been interposed as a defense and Respondent is now col- laterally estopped. Fibreboard Corp., 180 NLRB 142, 149-151 (1969), citing Justice Frankfurther in NLRB v. Donnelly Garment Co., 330 U.S. 219 (1947) ("and the Wagner Act does not require that ground be covered a second time, or piecemeal"). Compare Olson Bodies, Inc., supra, with Rogers Furniture Sales, 213 NLRB 834 fn. 8 (1974). In short, since the applicability of the statute commenced in January 1981 and since the unfair labor practice proceeding did not commence until 6 months later in July 1981, Respondent's failure to plead and prove the existence and effect of the Michigan statute must now be collaterally estopped, assuming, arguendo, that the matter was not actually particularly raised and litigated in the unfair labor practice case. Lastly, since the grant of the trainee permit was a matter of mere routine, as Respondent's witness Pirochta testified, Respondent may not toll the backpay since an offer of reinstatement would have presumably cured the licensing defect. 4. Tolling of backpay because of conflicts with dates of layoff in the Board decision and court decree Respondent, on several occasions, in its pleadings and proof, alluded to the allegedly incorrect statement of conclusions in the Board order and court decree regard- ing the duration of Respondent's unlawful layoffs of Mit- kovski in September and October 1980, preceding his 23 October 1980 discharge. This matter likewise was specifi- cally, litigated before the Board and the court and is barred from relitigation under the guise of a tolling Re- spondent's backpay obligation in this supplementary pro- ceeding . To the extent Respondent argues that periods after the September and October unlawful layoffs but prior to 23 October 1980, when Mitkovski was not un- lawfully suspended, should not be included in the back- pay computation of gross backpay, the short answer is that they were not. The third quarter of 1980 was treat- ed entirely as a quarter in which backpay accrued and all of Respondent's payments of wages to Mitkovski were included as interim earnings throughout the period. Thus, Respondent's assertion that periods between the unlawful layoffs and the unlawful discharge should not 559 be included in the computation of gross backpay was rectified by treating the quarter as starting with the pay- roll period ending 19 September and then including as interim earnings all the wages paid by Respondent to Mitkovski in that quarter. Thus, all wages paid to Mit- kovski represent what Mitkovski actually earned in the quarter during the period of unlawful suspension and therefore takes account of the fact that during that period he was paid by Respondent. 5. Tolling because of periods of alleged unavailability (a) To the extent that Respondent pleaded (Respond- ent's amended answer, p. 6, par. 10) that Mitkovski was unavailable for work during 5 to 6 days in the period ending 6 July 1984, that defense, in partial tolling of the backpay computation, was withdrawn during the hear- ing. (b) To the extent that Respondent argues that the backpay should be tolled for the pay period ending 8 April 1983, when Mitkovski was unable to work for 3 of the 6 days, the Regional Director's compliance officer testified that this matter was rectified by the computation showing that Mitkovski was out of the country from 21 November 1982 to 2 April 1983 and that Mitkovski was able to work commencing Monday, 3 April 1983. Re- spondent called Mitkovski as its witness and Mitkovski thereafter again appeared in rebuttal. There was no testi- mony, controverting the General Counsel's pleadings and assertions, that Mitkovski was not back in the coun- try on or about 3 April. Under American Mfg. Co. of Texas, 167 NLRB 520, 522 (1967), in order to toll back- pay, Respondent has the burden of showing the periods that the discriminatee was unavailable for employment. See Greyhound Taxi Co., 274 NLRB 459 (1985). I am therefore unable to conclude that Respondent has pro- duced any evidence to show that Mitkovski was not in the country and available for work commencing on or about 3 April 1983. There is no proof, consistent with Respondent's answer (amended answer, p. 6, par. 9), that Mitkovski was unable to work for 3 of the 6 days in the pay period ending 8 April 1983. The backpay period may therefore not be tolled on that basis. 6. Interim earnings As noted in Sioux Falls Stock Yards Co., 236 NLRB 543, 545 (1978), the burden of proof is on Respondent to establish its affirmative defenses including, the obligation to show that Mitkovski did not make a bona fide effort to seek employment and was therefore willfully idle, NLRB v. Westin Hotel, 758 F.2d 1126 (6th Cir. 1985); Aircraft & Helicopter Leasing & Sales, 227 NLRB 644, 646 (1976); NLRB v. Mooney Aircraft, 366 F.2d 809, 815 (5th Cir. 1966), and Respondent does not meet that burden by presenting evidence of a lack of an employee's success in the gaining of interim employment or low in- terim earnings. Rather, Respondent must affirmatively demonstrate that the employee, Mitkovski, neglected to make reasonable efforts to find interim work, NLRB v. Westin Hotel, 267 NLRB 244 (1983), enfd. 758 F.2d 1126 (6th Cir. 1985); NLRB v. Miami Coca-Cola Bottling Co., 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 360 F.2d 569, 575-576 (5th Cir. 1966). The alleged discri- minatee must make only "reasonable efforts to mitigate the loss of income and not undertake the highest stand- ard of diligence," NLRB v. Arduini Mfg. Co., 394 F.2d 420, 422-423 (1st Cir. 1968). In determining the reason- ableness of the effort, the employee's skills and qualifica- tions must be taken into account, Mastro Plastics, 136 NLRB 1342, 1359 (1962). The backpay specification alleged, and Mitkovski testi- fied, that in the approximately 4 years constituting the backpay period, Mitkovski received $4,061 (in the 26- week period following his 23 October 1980 discharge) as unemployment compensation from the State of Michigan. This sum, repayable'to the State of Michigan, was not included in Mitkovski's interim earnings. He testified that he received no substantial moneys as gifts and he lived off loans. He further testified that during the backpay period he was self-employed, worked as a part-time me- chanic (Lincoln Park Foreign Car Co.), and as an out- side salesman for an employer (Woodruff and Associates) selling "stop a flat" materials in 1981 or 1982. Mitkovski also testified that commencing in the summer of 1981 he began doing mechanical repairs at his home. He paid a fee for such right in 1983 and again in 1984. He could not specify how many cars he averaged per week but stated that he averaged at least one car a week and, at most, two cars per week but not in every week. He also was unable to say which auto repairs he did at particular times but asserted that he repaired brakes, alternators, and changed oil. In the entire 4 years he worked on two exhaust systems and did tuneups. In performing repairs, he charged for his labor only and either had the submitting car owner purchase the parts or he charged the parts to the car owner. With regard to his work at the repair shop of Lincoln Park Foreign Cars, he testified that he last worked there in 1981; that he never wrote down his interim earnings and that the interim earnings that he told the General Counsel of, in preparation of the backpay specification, amounted to about $12,000 in the entire 4-year period. He further testified that his trips to his native Yugo- slavia were either gifts from his relatives or were heavily subsidized by his relatives. Mitkovski also testified that with regard to some of those trips to Yugoslavia, he was licensed as a sales person by Overseas International Co., a business enterprise in the State of Michigan. He testi- fied however, that he never received any pay from Overseas International (engaged in the importation of Yugoslavian liquor). Mitkovski also testified that prior to his discharge by Respondent, he often was approached by the owners of Lincoln Park Foreign Cars to work for it, but thereafter, after the discharge, Lincoln Park's principles always told him, when he requested employment, that there was no work for him. As a result of Mitkovski's statements to the NLRB, the Regional Office, commencing with the first quarter of 1981 and ending with the third quarter of 1984, deter- mined that Mitkovski earned approximately $13,000 in the 14 quarters in which he was available for employ- ment during the backpay period (other than in the third and fourth quarters of 1980 in which the discrimination occurred). Thus, the Regional Office divided Mitkovski's asserted interim earnings commencing January 1981 into equal parts, arriving at the figure of $923.07 per quarter in each quarter he was available for work (thus exclud- ing the first quarter of 1983 in which Mitkovski was out of the country). The grand total of interim earnings was $14,621.46 (Schedule C). Respondent attacked Mitkovski's veracity and the amount of alleged interim earnings through the testimo- ny of a mechanic with whom Mitkovski worked after being reinstated by Respondent in the summer of 1984. Thus, Respondent's witness, Howard M. Gardella, tes- tified that he first met Mitkovski when Mitkovski re- turned to employment. Within a short time, Mitkovski learned that Gardella wanted a different job where he could earn more money and Mitkovski told him that he would try to get him a job at Lincoln Park. This oc- curred after Mitkovski was reinstated, when the principal at Lincoln Park was at Respondent's place of business and told Mitkovski that he was looking for a mechanic. Although Mitkovski took Gardella to Lincoln Park and although Gardella received an offer of employment, Gar- della turned it down because Lincoln Park was too far away as a workplace and was not offering enough money. However, in various conversations with Mit- kovski, Gardella testified that Mitkovski told him that Lincoln Park was a good place to work and that Mit- kovski made $700 a week at Lincoln Park, being "paid under the table." He told Gardella that he did not want Respondent to know that he had worked there. On sev- eral occasions after Mitkovski was unlawfully terminat- ed, he applied for work at Lincoln Park but was turned down. Although Mitkovski at first testified that he did not recall telling Gardella that he received money under the table, he ultimately admitted that he "might have" (Tr. 861). He absolutely denied having received money under the table from Lincoln Park but he admitted that he might have told that to Gardella to make the job attrac- tive to Gardella and to have Gardella leave Respondent and thus have more work available for Mitkovski at Re- spondent. Although Mitkovski denied that he would lie under oath to hurt Respondent, he admitted that he would lie to somebody else (i.e., Gardella) about condi- tions in ,order to hurt Respondent (Tr. 262-263). I find that Mitkovski did tell Gardella that he was paid $700 per week "under the table" in order to have Gar- della leave Respondent's employ thereby providing more work for Mitkovski. I also credit him that he did not, in fact, either receive $700 per week or $700 per week under the table because I credit his testimony that he in fact did not receive $700 per week at Lincoln Park (or any other place) because he would not leave a job which paid him $700 a week, since such a job would make him a "king today" (Tr. 864). I also credit Mitkovski's further uncontradicted testimony (Tr. 864-865) that prior to his discharge from Respondent, employers were seeking to employ him but that after he filed the charges alleging unlawful action against him by Respondent he went to many dealerships in the Detroit area (which sold Fiat and Lancia cars like Respondent) and these employers OVERSEAS MOTORS told him that they had no opening "at this time" (Tr. 865). I also accept as credible his testimony that he re- turned to Respondent's employ pursuant to the offer of reinstatement because he could not get a job elsewhere after trying to do so and that his earnings after return have been lower than other employees at Respondent's shop and lower than he previously earned. In short, I do not find credible evidence that Mit- kovski earned $700 a week while employed by Lincoln Park in or about 1981, or any other time, or that he was paid "under the table." Respondent made no effort to subpoena Lincoln Park's payroll records or personnel in order to contradict or, in any case, to undermine, Mit- kovski's denials and assertions. Other testimony regarding Mitkovski's attempt to engage in the radio business with Zoran Mihailovich (Tr. 932 et seq.) demonstrated that the use of time bought from a local radio station to entertain the Yugoslav com- munity resulted in a losing proposition (Tr. 934-935). The record shows that Mitkovski, nevertheless, made at- tempts to earn a living. I have examined the record with regard to Mitkovski's testimony as to how he supported himself in the 4-year backpay period and I was met principally with $4000 of Michigan unemployment compensation," $14,000 worth of interim earnings, and the remainder , loans. The evi- dence showed that it took a minimum of approximately $9000 a year for Mitkovski's expenses and therefore there is an $18,000 to $20,000 gap in the 4-year period ($36,000 minus $18,000) in loans and earnings to be ex- plained by "loans." The burden on Respondent, howev- er, is not merely to litigate the question of the existence or nonexistence of "loans," but to show that there were other interim earnings or proof of Mitkovski's failure to engage in reasonable efforts to gain interim employment. Mitkovski's uncontradicted testimony was that he sought employment. Mitkovski's uncontradicted testimony was that he sought employment in the Detroit area from Lancia and Fiat dealers who had previously sought him as an employee and was turned down, with the implica- tion tht he was being blackballed for having engaged in the activity of pursuing his NLRB unfair labor practice. It is unnecessary to answer that question but merely to find, as I do, that he sought employment as a mechanic, his trade, while he was engaged in self-employment as a mechanic and a salesman of radio time and a flat-tire cure from his home. His engaging in self-employment did not take him out of the labor market nor prevent him from seeking further employment in the Detroit area as an automobile mechanic. Nevertheless, Respondent urges that, as a matter of in- ference, I should conclude that Mitkovski did engage in other interim employment, did receive other net earnings therefrom, and that his lack of credibility on the witness stand demonstrated that he did have such interim earn- ings and that the backpay should be tolled to the extent B Respondent persists in alleging the General Counsel 's and the compli- ance officer's error in not including, as interim earnings, payments of Michigan unemployment compensation to Mitkovski. It has been the law for 35 wears that state unemployment compensation payments are not in- terim earnings and are not deducted from backpay . Gullet Gin Co. Y. NLRB, 340 U S. 361 (1951) 561 that such unreported earnings in any quarter prevent Mitkovski from being considered as eligible for backpay. American Navigation Co., 268 NLRI) 426 (1983). Re- spondent's argument, however, does not rest upon proof of Mitkovski failing to report interim earnings, which failure would require elimination of backpay for any such quarter. In the absence of evidence of a failure to disclose, however, there is no substantial evidentiary base on which to erect that inference. Absent such an eviden- tiary base, and absent such inference, Mitkovski's having lived on loans and modest earnings from self-employ- ment does not, as a matter of proof, necessarily suggest, as a matter of law, or of necessary inference, that he is not disclosing interim earnings . In the absence of such evidence, even in the presence of reasonable suspicion that Mitkovski could well have had other income, I cannot conclude that any period during the backpay period should be tolled because of his failure to disclose interim earnings. Compare McDonnell Douglas Corp., 270 NLRB 1204 (1984), and Flite Chief Inc., 246 NLRB 407 (1979), with American Navigation Co., 268 NLRB 426, (1983), and Great Plains Beef Co., 255 NLRB 1410 (1981). Miscellaneous Defenses (a) Respondent also urges that to the extent that Mir- uzzi was paid money as a supervisor during the 4-year backpay period, his earnings, as reflected in Schedule B of the amended backpay specification, should be low- ered, thus lowering Respondent's gross and net backpay obligation to Mitkovski. As a matter of fact, however, the evidence failed to disclose that Miruzzi was, in fact, paid as a supervisor. Rather, the evidence showing that he was paid for "shop labor," or for "policy" matters merely demonstrated, on Mitkovski's uncontradicted and credited testimony, that the money flowing io Miruzzi was payment out of funds from sources other than cus- tomers, such as from insuracne companies and from Re- spondent's own sources. Where, however, payment to Miruzzi was for work as "service manager" or similar designation, his earnings, and thus Mitkovski's projected earnings, should be reduced. The evidence shows no definite payment to Miruzzi as a supervisor. Rather, the evidence shows payments to Miruzzi to maintain his pay at the rate established for that period. (b) Respondent also argues that during the backpay period, 50 percent of its business was in engine tuneups. If a mechanic, like Mitkovski, was not certified in engine tuneups, his earnings necessarily would be substantially diminished. In fact, however, Respondent adduced only general testimony (proving that 50 percent of its business during the backpay period for mechanics was in engine tuneups) from Demrovsky. This testimony was not supported by Respondent's books and records. It is not necessary to reject Demrovsky's unsupported testimony as incredible since Mitkovski, though not certified in "tune-ups" would have been fully able to acquire that trainee status as a matter of simple application according to the testi- mony of Respondent's own witness, Fred J. Pirochta, of the Bureau of Automotive Regulation of the State of 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michigan . Pirochta testified that a noncertified mechanic could perform such functions „ in the certification special- ty merely by requesting and obtaining a "trainee permit" which was granted as a matter of routine . There is no proof that, as a matter of function, Mitkovski could not do "tune-up." Indeed, Demrovsky testified that even though 50 percent of Respondent's work became "tune- ups," he would not have fired Mitkovski because he had no certificate in tuneups (Tr. 199-201). Lastly, two further facts are noteworthy: (a) Respond- ent, prior to terminating Mitkovski, assigned him tuneup work even without certification (Tr. 239); and (b) in view of Respondent's practice of equalizing work assign- ments (Tr. 236), there is no reason to believe that Mit- kovski's backpay period income would have been re- duced even 'if he were not assigned tuneup work' in the backpay period. Moreover, Mitkovski's lack of certification in "tune- up" must be measured against the Board finding, sup- ported by the court of appeals, that immediately before Respondent embarked on its unfair labor practices against Mitkovski, his earnings and wage rate were higher than all other specialty mechanics (Gonterman, Tr. 262-263) and equal to or higher than that of Miruz- zi's, at $11.20 per hour. The Board, again supported by the court of appeals, noted that, after Demrovsky learned tht Mitkovski went to the NLRB, Demrovsky threatened Mitkovski that he would "not receive any de- sirable assignments"; and that Demrovsky considered Mitkovski to be at least a "good " mechanic. On the basis of these findings, I conclude that Respondent would have used its discretion , during the 4-year backpay period, as it had prior to unlawfully dealing with Mit- kovski, to see to it that Mitkovski 's earnings did not fall below earnings to which he was accustomed prior to the discrimination against him, i.e., to be kept at a high level, as high as Miruzzi. Thus, during the backpay period, Re- spondent must be held to award Mitkovski sufficient work, even apart from "tune-ups," to keep him at a wage level consistent with his wage level prior to -Respond- ent's discrimination against him as measured by Miruzzi's compensation (apart from any supervisory pay). It should be noted, in this regard, that the pay rates of the specialty mechanics hired before and during the backpay period were appreciably below the rates and earnings of Mitkovski. None of them was favored by Re- spondent's characterization of Mitkovski as a "good" me- chanic and none of them had pay rates or earnings at the rate of Mitkovski. These specialty mechanics (Nemir- ovsky, Pervine, Gardella, Wambough, and Becoskey, Respondent's amended answer, pp . 17-18; and see Gon- terman, Tr. 262-263) also were not favored with receiv- ing "desirable assignments " which Mitkovski historically received, as noted by the court of appeals and the Board, and none of them was threatened by Respondent that they would "not get any jobs to make enough living so that [Mitkovski] would fire [himself]," as found by the court of appeals. Thus, as a matter of Mitkovski's histori- cally high earning record, the explicit exercise of Re- spondent's prediscrimination business discretion in the base period and its various subsequent threats and predic- tions, I conclude that Mitkovski would have had earn- ings higher than the intermediately hired specialty me- chanics in the backpay period ; and that specialty me- chanics hired in the backpay period are not "similarly situated" employees or a "representative group." Com- pare Berry-Mahurin Construction , 273 NLRB 1044 (1984), with Central Freight Lines, 266 NLRB 182 (1983). That proof of this reconstructed level of earnings rests on an evidentiary basis derived from Respondent's prediscri- mination conduct is not a bar to its utility. Respondent's unfair labor practices are at the root of the quality of proof requiring projection . It may not be heard to com- plain on the point since , in backpay cases, Respondent may not be allowed to benefit from the uncertainties caused by its own misconduct. Berry-Mahurin Construc- tion, 273 NLRB 1044 (1984). In sum, I conclude that Respondent has failed to sup- port its burden of proving10 that Mitkovski failed to make reasonably diligent efforts to seek interim employ- ment; that he failed to disclose earnings from interim em- ployment and that the pleaded gross backpay and net backpay assertions in the amended backpay specification, as amended at the hearing, were to be tolled by circum- stances alleged by Respondent. Accordingly , I conclude that Mitkovski's earnings in the backpay period should be calculated by applying a base period ratio of 100 per- cent to Miruzzi's earnings in the backpay period ($108,270.19) against which must be deducted the net in- terim earnings ($ 14,621.46); issue the following recom- mended" ORDER On the basis of the foregoing findings and conclusions, it is ordered that Respondent, Overseas Motors, Inc., its successors, officers, agents, and assigns, shall pay to Mir- oljub Mitkovski, the sum of $93,648.73 together with in- terest on that sum as provided in Florida Steel Corp., 231 NLRB 615.12 10 To the extent that Respondent asserts that the compliance officer specifically acted in bad faith or was negligent in investigating the extent of Mitkovski's interim earnings, such argument is rejected The obligation to prove mitigation, in general, and undisclosed interim earnings , in par- ticular, is on Respondent, not on the compliance officer The evidence discloses neither bad faith nor negligence on the part of the compliance officer While, as above noted, it is arguable that Mitkovski's testimony, that he met much of his expenses with "loans" and that his foreign trips were financed by "gifts," leaves one in doubt whether there were other interim earnings, such a record does not reflect on the compliance offi- cer's honesty or capacity 1 r 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 12 See generally Isis Plumbing Co, 138 NLRB 716 (1962)