O. K. Machine & Tool Corp. And Gyrotronics, Inc.

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD O.K. Machine & Tool Corp. and Gyrotronics, Inc. and Julio Garcia, Jose Allen, Keith Zukaitis, Luis Tirado and Hildo M. Melendez. Cases 2- CA-16004, 2-CA-16071, 2-CA-16088, and 2- CA-16093 25 April 1986 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 24 July 1984 Administrative Law Judge D. Barry Morris issued the attached supplemental de- cision. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed limited exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and brief and has decided to affirm the judge' s rulings, findings,' and conclusions and to adopt the recom- mended Order. 1. The judge recommended that the backpay award owed to discriminatee William Robinson be placed in escrow for 1 year and that the Regional Director shall make suitable arrangements for Rob- inson's appearance. The General Counsel does not except to these findings, but excepts to the judge's failure to find that if at the end of the year the money is returned to the Respondent that it contin- ues to be liable for any backpay owed Robinson. The General Counsel necessarily assumes that the Robinson backpay issues may be unresolved at the end of 1 year. When, as here, the parties know the location of the discriminatee, we see no reason for any direction concerning the Respondent's liability after 1 year as we expect the issue to be resolved within a year. To this end, the Regional Director is instructed, in accordance with the judge's decision, to arrange for the expeditious resolution of this backpay issue. After the issues have been resolved, the backpay due Robinson shall be paid to him and the remaining funds in the escrow account returned to the Respondent. 2. Because the discriminatees no longer work for the Respondent, having rejected reinstatement, the judge ordered that the Respondent pay the pension i 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 ,fudge'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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings fund contributions due on behalf of the discrimina- tees directly to the discriminatees rather than to the pension fund. We disagree. The Respondent is a participant in a multiem- ployer pension plan called the National Industrial Group Pension Plan (NIGPP) and, as such, is obliged to make contributions on behalf of its em- ployees. Had the discriminatees been in the Re- spondent's employ during the backpay period, as they should have been, the Respondent would have contributed into the fund the appropriate amounts owed on behalf of the discriminatees. Restoration of the status quo ante regarding the employees' pension rights usually requires that contributions made on behalf of the discriminatees be directed to the pension fund.2 Here, the discriminatees volun- tarily chose not to be in the Respondent's employ by refusing the Respondent's valid offers of rein- statement. Had they accepted reinstatement, their rights in the plan would be identical to those they would have acquired had they worked for the Re- spondent without interruption. The proper alloca- tion of the owed contributions should not rest on whether or not the discriminatees chose to accept valid offers of reinstatement. There are no other circumstances in this case that warrant departure from the Board's customary procedure of ordering that the contributions be paid to the pension fund.3 In addition, the discriminatees might benefit from contributions directed to the fund in future employ- ment with the Respondent or other employer-mem- bers of the NIGPP multiemployer plan. Accordingly, we shall order that the pension fund contributions owed by the Respondent be paid to the fund. 3. We find merit in the General Counsel's excep- tion that in determining the formula for the over- time hours worked by discriminatee Jose Allen prior to his discharge, the appropriate divisor is 8 rather than 47. In his supplemental decision, the judge concluded that where the record contained the accurate number of hours worked by the discri- minatees for the 47-week period prior to their ter- mination, that 47 should be the divisor used to de- termine the weekly overtime hours worked by each discriminatee. However, although the other discriminatees had been in the Respondent's 2 Merryweather Optical Co, 240 NLRB 1213 (1979), see generally Atlas Glass & Mirror Co, 273 NLRB 179 (1984), E G Sprinkler Corp, 268 NLRB 1241 (1984), Advance Installations, 257 NLRB 845 (1981) 9 The Board has ordered that contributions, which would ordinarily be paid to the fund, be paid to the employees when it appears that the em- ployees' rights in the plan might not be adequately restored Cf South- land Dodge, 232 NLRB 878 (1977) (fund unwilling to accept contribu- tions), and Rice Lake Creamery Co, 151 NLRB 113 (1965), enfd as modi- fied 365 F 2d 888 (D C Cir 1966) (employees had individual annuity in- surance policies and restoration of pension policies was conditioned on reemployment) 279 NLRB No. 69 O.K. MACHINE & TOOL CORP. 475 employ for the 47-week period prior to their termi- nation, Allen had been employed with the Re- spondent for only 16 weeks prior to his discharge. During 8 of those 16 weeks, overtime had been un- lawfully suspended and, as a result, Allen was not assigned any overtime. Consequently, because Allen worked overtime for only 8 weeks prior to his discharge, the divisor which appropriately re- flects the average overtime hours worked by Allen is 8 rather than 47. Accordingly, we shall order that in determining the average hours of overtime worked by Allen, the divisor to be used is 8 rather than 47. 4. The parties stipulated at the hearing that the Respondent owed the discriminatees certain amounts of money for Christmas bonuses. In set- ting forth the backpay awards, the judge inadvert- ently failed to include these amounts. We shall order that the stipulated Christmas bonus amounts be added to the backpay awards of the discrimina- tees. 5. We find merit in the General Counsel's excep- tion urging the Board to find that the Respondent is under a continuing obligation to reinstate Hildo Melendez inasmuch as Melendez never received the Respondent's valid offer of reinstatement.4 As the judge found, the backpay period for Hildo Melendez ended on 8 November 1982, the date on which the Respondent mailed Melendez a good-faith offer of reinstatement. Melendez, how- ever, did not receive the offer as he had ^ moved leaving no forwarding address. Although the Re- spondent's good-faith offer tolls the Respondent's backpay liability, it does not relieve the Respond- ent of its obligation to reinstate Melendez under the terms of the Board's 15 August 1980 Order en- forced by the Second Circuit. Burnup & Sims Inc., 256 NLRB 965, 966 (1981); Jay Co., 103 NLRB 1645, 1647 (1953), enfd. 227 F.2d 416 (9th Cir. 1954). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge with the modifications listed below and orders that the Respondent, O.K. Machine & Tool Corp. and Gyrotronics, Inc., Bronx, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Recompute the backpay for employees Gonza- lez, Melendez, Fahie, Allen, and Tirado in the fol- lowing manner: (a) The amounts included in the backpay awards of the discriminatees in the form of pension contri- butions shall be deducted from the discriminatees' backpay awards and, shall be paid directly to the pension fund. (b) In revising the overtime hours worked by the discriminatees as directed by the judge's Supple- mental Decision and Order, the divisor to be used in determining the average overtime hours worked by Jose Allen shall be 8 rather than 47. (c) The appropriate amounts owed to the discri- minatees in the form of Christmas bonuses shall be included in the backpay awards of the discrimina- tees. 2. Transmit to the Regional Director for Region 2 to be held in escrow the following amount repre-' senting the backpay due William Robinson: $7119, plus the Christmas bonus, minus the pension fund contributions, minus any deletions resulting from overtime recalculation, plus interest, and less tax withholding required by Federal and state law. Darrell S. Gay, Esq., for the General Counsel. Sanford E. Pollack, Esq., and Stuart M. Kirshenbaum, Esq. (Marshall M. Miller Associates), of Hewlett, New York, for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE D.' BARRY MORRIS, Administrative Law Judge. On August 15, 1980, the National Labor Relations Board issued an Order' directing O.K. Machine & Tool Corp. and Gyrotronics, Inc. (Respondent) to make whole Al- berto Gonzalez, Hildo Melendez, Alton Fahie, Jose Allen, William Robinson, and Luis Tirado (the discrimin- atees) for their losses resulting from Respondent's unfair labor practices. On February 8, 1982, the United States Court of Appeals for the Second Circuit entered its judg- ment enforcing the Board's Order. A controversy having arisen over the amount of backpay due each discrimina- tee, on October 28, 1982, the Regional Director for Region 2 issued a backpay specification and notice of hearing. Respondent filed its answer to the specification on November 11, 1982. The specification was amended on April 25, 1983, and further amended on July 8, 1983. A hearing was held before me in New York City on February 3 and 4, April 25, June 1, 2, and 3, July 8, and September 26, 1983. All parties were given full opportu- nity to participate, to produce evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs were filed by Respondent on October 15, 1983, and by the General Counsel on January 16, 1984. A reply brief was filed by Respondent on February 23, 1984. On the entire record of the case, including my obser- vation of the demeanor of the witnesses, I make the fol- lowing 4 The judge makes no findings with respect to the Respondent's con- tinuing obligation to reinstate Melendez after the 8 November 1982 offer ' 251 NLRB 208 (1980). 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. HILDO MELENDEZ A. Offer of Reinstatement Prior to June 1979 Melendez' address was 855 Faile Street, Bronx, New York. In June Melendez moved to Puerto Rico, where his address was P.O . Box 743, Va- hardo. He did not return to New York until April 1, 1980, at which time he moved to 721 White Plains Road. On December 4, 1979, Sanford E. Pollack, counsel for Respondent, sent Melendez a letter requesting informa- tion about Melendez' efforts to find employment. The letter was addressed to P.O . Box 743, Vahardo, Puerto Rico, and was received by Melendez. On March 20, 1980, Respondent sent a letter to Melendez offering him immediate reinstatement. That letter was addressed to 855 Faile Street, Bronx, New York, and was returned by the post office with the notation, "moved, left no ad- dress." The letter indicated that a blind copy was fur- nished to "Marshall Miller Assoc. file." David Weltman, vice president of Respondent, testified that he took no steps to try to contact Melendez on the return of the en- velope. He further testified that he did not inform his counsel that he had failed to contact Melendez. Melendez testified that he never advised Respondent of an address other than the one on Faile Street in the Bronx. He further testified that when he moved to Puerto Rico in 1979 he did not advise the Bronx post office of the move. He testified , however, that before moving to Puerto Rico he advised the Regional Office of the National Labor Relations Board of the anticipated move. B. Efforts to Obtain Employment Melendez' employment with Respondent ended on November 27, 1978. The record shows that Melendez visited a number of business establishments starting De- cember 4, 1978. At each of the companies he applied for work he was told that no work was available. Melendez also testified that he read newspaper advertisements, but was unsuccessful in finding any work. Melendez was employed by Metropolis Metal Spin- ning and Stamping Company from April 19 to June 1, 1979. He testified that he left Metropolis because he was told by the foreman, David Wilson, that he would "not be accepted into the Union ." Melendez also testified that Wilson told him that he "didn't pass the trial period," and that there was "no work" for him . Although Re- spondent's Exhibit 28 has a notation that Melendez "quit" his employment, Arthur Puhn, the vice president of Metropolis, testified that other than what appeared on the exhibit he did not independently know whether or not Melendez quit. Puhn further testified that he did not know whether Melendez was a member of the Union and did not know the "exact circumstances" of Melen- dez' failure to return to work. As previously mentioned , Melendez moved to Puerto Rico in June 1979. The record shows that beginning on July 9 he contacted various business establishments in Puerto Rico. In April 1980 Melendez returned to New York and obtained employment with the Concord Hotel. He worked at the Concord from April until December 9, 1980. Melendez credibly testified that at that time he was told by Ismael Rodriguez , the kitchen supervisor, that "there was no more work." Rodriguez confirmed this testimony indicating that for several weeks before Christ- mas most of the kitchen staff is laid off. Rodriguez testi- fied, however, that he told Melendez , along with the other employees, to return to work on December 23. Melendez testified that he returned to work at the Con- cord on December 21 and worked there until January 18 or 20, 1981, at which time the employment ended be- cause Rodriguez said that "it was very slow" and that there was no more work. Melendez returned to the Concord on May 30 and worked there until December 7, 1981, when he was again told that there was no more work . Rodriguez cre- dibly testified that he told Melendez that the "hotel was going to be closed in December and to come back when they reopen again," on December 23. However, Melen- dez did not return to work on December 23. He next worked for the Concord beginning May 21, 1982, which employment continued through November 8, 1982, the end of the backpay period. II. LUIS TIRADO A. Efforts to Obtain Employment Tirado credibly testified that beginning November 27, 1978, he looked at newspaper advertisements and the record shows that he contacted various business estab- lishments and employment agencies. On January 5, 1979, he began employment with Eagle Machine and Tool Company, which employment lasted through the end of the backpay period. B. Medical Claim In July 1979 Tirado 's stepdaughter, Madeline Torres, required hospitalization. The hospital bill totaled $1352. Although at the time of the hospital visit Tirado was em- ployed by Eagle Machine, the claim was denied insur- ance coverage because the 11-month waiting period had not yet expired . The Blue Cross representative testified that had Tirado been employed by Respondent at the time of the hospitalization, the claim would have been covered under the contract. III. ALBERTO GONZALEZ Gonzalez credibly testified that after November 27, 1978, he read newspaper ads and visited a number of business establishments in search of work. In mid-De- cember he filled out an application with Eagle Machine and Tool Company and started working there on Janu- ary 5, 1979. His employment with Eagle Machine contin- ued through the end of the backpay period. IV. JOSE ALLEN Allen testified that after he left the employment of Re- spondent in November 1978 he worked part time at Car- tones Supermarket. He also sought employment at ap- proximately six business establishments . During the early O.K. MACHINE & TOOL CORP. 477 part of 1979 he worked for approximately 1 month at Superior Steel Door & Trim Co. He testified that he left Superior Steel because "the welding sickened my eyes and I couldn't see." The Superior Steel representative testified that he did not know the reason why Allen left the company's employment. V. EMPLOYMENT OPPORTUNITIES Michael Fiedler, placement manager of Marvalen Per- sonnel Agency, testified that during the backpay period jobs were available in the New York City area. He also testified that there were many advertisements in several local newspapers. He further testified that Tirado and Gonzalez were registered with his agency but that he did not place either of them in positions. Similarly, Joel Buckstein, vice president of Geneva Employment Agency, testified that during the backpay period there were many newspaper advertisements for jobs in the New York City area. VI. OVERTIME Melendez testified that in 1978 he worked approxi- mately 1-hour-per-day overtime. Tirado and Gonzalez testified that they worked 9 hours of overtime each week. David Weltman, vice president of Respondent, testified that during the 47-week period prior to Novem- ber 27, the discriminatees worked the following hours of overtime: Allen, 48.75; Gonzalez, 189; Melendez, 134.5; Tirado, 119; and Robinson, 186.5. Allen, Gonzalez, and Tirado did not dispute Weltman's figures. Melendez testi- fied that he did not know the total number of hours he worked in 1978. I credit Weltman's testimony and find that during the 47-week period prior to November 27 the discriminatees worked the hours of overtime as testified to by Weltman. VIi. DISCUSSION AND CONCLUSIONS A. Efforts to Obtain Employment An employer may mitigate his backpay liability by showing that a discriminatee "wilfully incurred" loss by a "clearly unjustifiable refusal to take desirable new em- ployment." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 199-200 (1941). This, however, is an affirmative defense and the burden is on the employer to prove the neces- sary facts . NLRB v. Mooney Aircraft, 366 F.2d 809, 813 (5th Cir. 1966); Sioux Falls Stock Yards Co., 236 NLRB 543, 551 ( 1978). The record contains evidence demon- strating the efforts made by the discriminatees in at- tempting to seek employment . I find that Respondent has not sustained its burden of showing that the discrimina- tees did not "make reasonable efforts to find interim work." NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 575-576 (5th Cir. 1966). lendez' testimony that he was told by the foreman either that he would "not be accepted into the Union ," or that he "didn't pass the trial period" and that there was "no more work" for him. Puhn did not dispute this testimo- ny. He testified that he did not know the "exact circum- stances" of Melendez' failure to return to work . Accord- ingly, I find that Melendez did not quit his employment at Metropolis but instead was told by the foreman not to return to work. On December 9, 1980 , Melendez was laid off from work at the Concord but was told to return on Decem- ber 23 . He returned on December 21 and worked until January 18 or 20, 1981, at which time the employment ended because Rodriguez said, "it was very slow" and there was no more work . I find, therefore, that in De- cember 1980 and January 1981 Melendez did not quit his employment at the Concord. I have credited Melendez' testimony that he was laid off from the Concord on December 7, 1981. However, I have credited Rodriguez' testimony that he told Melen- dez to return to work on December 23. Melendez did not return to work on December 23, but instead returned on May 21 , 1982. I believe that for the period December 23, 1981 , until January 20, 1982, Melendez failed to appear for work at the Concord without giving a justifi- able reason for so doing. Accordingly, for this period of time Melendez wilfully incurred a loss which bars him from recovery of backpay. For the period January 20 until May 21 , 1982, Re- spondent has not shown that Melendez would have been employed at the Concord . During the previous year Me- lendez was laid off on January 18 or 20 . Rodriguez testi- fied that in the "winter time it is slow." He further testi- fied that on January 21, 1981, a list was posted contain- ing the names of the employees who would be kept working. He could not remember whether Melendez' name was included on that list. Rodriguez testified that if an employee's name was not on the list, he was effective- ly told that there was no work for him. Accordingly, for the period December 23, 1981, until January 20, 1982, I find that Melendez is not entitled to backpay. See Gary Aircraft Corp., 211 NLRB 554, 557 (1974); Knickerbocker Plastic Co., 132 NLRB 1209, 1215 (1961). With respect to the period after January 20, it is well established that any uncertainty in the evidence is to be resolved against the Respondent as the wrongdoer. Sioux Falls Stock Yards, supra, 236 NLRB at 551; Flite Chief Inc., 258 NLRB 1124, 1128 (1981). C. Respondent's Alleged Offer of Reinstatement to Melendez on March 20, 1980 On March 20, 1980, Respondent sent a letter to Melen- dez offering him immediate reinstatement . Although the letter was sent to the address given Respondent by Me- lendez, in fact 3 months earlier Respondent's counsel2 B. Respondent's Contention that Melendez Quit His Interim Employment Respondent contends that Melendez quit his employ- ment at Metropolis in June 1979 and quit his employ- ment several times while working for the Concord Hotel . With respect to Metropolis, I have credited Me- 2 In its reply brief Respondent contends that Pollack is not Respond- ent's "attorney" and that Marshall Miller Associates is not a law firm It should be noted, however, that both Pollack and Kirshenbaum represent- ed Respondent at the hearing In addition , the record contains a letter in connection with this proceeding from the law firm of Milman , Naness & Pollack (R Exh 18) Both Pollack and Kirshenbaum are listed as attor- neys with that law firm. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sent Melendez a letter in connection with the backpay proceeding using Melendez' Puerto Rico address. That letter was received by Melendez. The letter sent on March 20, 1980, by Respondent was returned by the post office with the notation, "moved, left no address." In Link v. Wabash Railroad Co., 370 U.S. 626, 634 (1962), the Supreme Court, citing Smith v. Ayer, 101 U.S. 320 stated: each party is deemed bound by the acts of his lawyer-agent and is considered to have "notice of all facts, notice of which can be charged upon the attorney." The knowledge of Melendez' correct address was ob- tained while counsel was actively engaged in handling the instant matter. Indeed, counsel's letter was written to ascertain whether Melendez was engaged in a job search "in an effort to evaluate properly" backpay liability. Counsel's knowledge of the correct address clearly came to him within the "duration and scope of the attorney- client relationship." Bell v. Brown, 557 F.2d 849, 856 fn. 61 (D.C. Cir. 1977). Under certain circumstances a reinstatement offer may be considered valid for purposes of tolling the backpay period even if the offer is not received by the employee. Marlene Industries Corp., 234 NLRB 285, 288 (1978); Burnup & Sims, 256 NLRB 965, 966 (1981). It must be remembered, however, that it is the employer's unlawful conduct which gave rise to the discharge. Therefore, it is the employer, rather than the employee, which must bear the consequences of its unlawful act. The employer should be required to exercise due deligence in contact- ing employees at their proper current addresses. Carruth- ers Ready Mix, 262 NLRB 739, 757 (1982). When other sources are available, the employer should go beyond its own records, once it has received notice of their incorrectness, to ascertain the employee's correct address. This holds true even in a situation as here, when the incorrect address was initially supplied by the em- ployee himself and when the employee had failed to notify the employer of a change of address. Monroe Feed Store, 122 NLRB 1479, 1480-1481 (1959); Gladwin Indus- tries, 183 NLRB 280, 281 (1970). Inasmuch as Respondent 's counsel was aware of Me- lendez' correct address, in accordance with the above- cited cases, I find that Respondent's communication of March 20, 1980, was not a valid offer of reinstatement. Accordingly, the backpay was not tolled at that time. D. Medical Claim In July 1979 Tirado's stepdaughter required hospitali- zation . Although at the time of the hospital visit Tirado was employed by an interim employer, the claim was denied insurance coverage because the requisite waiting period had not yet expired. The Blue Cross representa- tive testified that had Tirado been employed by Re- spondent at the time of the hospitalization, the claim would have been covered under Respondent's contract. I find that the medical claim is properly chargeable to Re- spondent. See Matlock Truck Body Corp., 248 NLRB 461, 474 (1980). E. Jose Allen Respondent alleges that Allen unjustifiably quit his em- ployment with Superior Steel in 1979. I credit Allen's testimony that he left Superior Steel because "welding sickened my eyes and I couldn't see." The Superior Steel representative testified that he did not know the reason Allen left the company's employment. I find that Allen left his employment with Superior Steel because of health reasons. This does not constitute a "willfully in- curred" loss. See Big Three Industrial Gas Co., 263 NLRB 1189, 1216 (1982). F. Employment Opportunities The record contains copies of newspaper advertise- ments and listings of employment agencies in the New York City area. In addition, several personnel agency representatives testified that during the backpay period jobs were advertised and were available in the area. Re- spondent argues that under such circumstances, failure to find employment indicates a lack of a "good faith job search" on the part of the discriminatees. In Laidlaw Corp., 207 NLRB 591, 594 (1973), enfd. 507 F.2d 1381 (7th Cir. 1974), cert. denied 422 U.S. 1042 (1975), the Board agreed with the following definition of the employer's burden as stated by the administrative law judge: With the exception of a bundle of unassimilated newspaper advertisement[s] and a letter from the state authorities concerning the relative levels of un- employment in [the area], Respondent produced no evidence of any employment available to any discri- minatee, nor of the willful failure of any to accept such employment . . . . It is not enough that the Respondent thinks that employees should have been able to secure jobs. Suspicion and surmise are no more valid bases for decision in a backpay hearing than in an unfair labor practice hearing. Similarly, in Airport Service Lines, 231 NLRB 1272, 1273 (1977), the Board held that the existence of newspa- per advertisements did not establish that the jobs would have been available had the discriminatees applied or that they would have been selected for any available po- sitions. See also Sioux Falls Stock Yards Co., 236 NLRB at 550-551; S.E. Nichols Inc., 258 NLRB 1, 13-14 (1981), enfd. 704 F.2d 921 (6th Cir. 1983). Accordingly, I find that Respondent has not sustained its burden of showing that the discriminatees "wilfully incurred" loss by a "clearly unjustifiable refusal to take desirable new employment." Phelps Dodge Corp. v. NLRB, supra, 313 U.S. at 199-200. G. Pension Payments The parties stipulated that pension fund contributions were made by Respondent on behalf of both male and female production employees. Therefore, had the discn- minatees been employed by Respondent during the back- pay period, pension fund contributions would have been made on their behalf. Accordingly, the only question to be decided is whether an award of pension payments O.K. MACHINE & TOOL CORP. should be made directly to the fund or to the discrimina- tees. The General Counsel has recommended that the payments be made directly to the discriminatees because they are no longer employed by Respondent and would therefore be unlikely to benefit from Respondent's pen- sion plan. The Board has held that when the restoration of pension benefits to the discriminatees is highly unlike- ly, it is a more appropriate and reasonable method of ef- fectuating compliance with the Board's order that the discriminatees be made whole to require Respondent to pay the contributions directly to the discriminatees. Southland Dodge, Inc., 232 NLRB 878, 880 (1977); Rice Lake Creamery Co., 151 NLRB 1113, 1128-1129 (1965), enfd. as modified 365 F.2d 888 (D.C. Cir. 1966). Accord- ingly, I shall order the pension fund payments to be paid directly to the discriminatees. H. Overtime I have found that for the 47-week period to November 27, 1978, the discriminatees worked the following hours of overtime: Allen, 48.75; Gonzalez, 189; Melendez, 134.5; Tirado, 119; and Robinson, 186.5. Average hours of overtime per week were: Allen, 1.04; Gonzalez, 4.02; Melendez, 2.86; Tirado, 2.53; and Robinson, 3.97. The actual earnings of employees in a representative period prior to their discharge is a formula traditionally used by the Board in determining the amount of backpay due discriminatees. See Chef Nathan Says Eat Here, 201 NLRB 343, 345 (1973). In DeLorean Cadillac, 231 NLRB 329, 332 (1977), enf. granted in part and denied in part on other grounds 614 F.2d 554 (6th Cir. 1980), the Board adopted as the proper formula the average monthly earn- ings of the discriminatees during the year prior to their termination. The record in this proceeding contains accu- rate figures of overtime for the 47-week period prior to the termination of the discriminatees. Accordingly, I be- lieve that it is the proper measure to be used. I. William Robinson On January 24, 1983, Robinson, who at the time re- sided in Compton, California, was served with a subpoe- na issued on behalf of counsel for Respondent. On Janu- ary 26 Robinson responded to Respondent's counsel, "I am willing to appear but lack the funds to make the trip. If you desire my appearance, you will have to send the money and make the necessary travel and hotel accom- modations." At the hearing Respondent moved to dis- miss the complaint with respect to Robinson. The Gener- al Counsel argued that the subpoena was invalid because there was no tender of fees. Section 11 (4) of the Act provides that witnesses sum- moned before the Board shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. Section 102.32 of the Board's Rules and Regulations provides that these fees are to be paid by the party at whose instance the witness appears Rule 45(c) of the Federal Rules of Civil Procedure provides that the tendering of such fees shall accompany the service of the subpoena. At the hearing I denied Respondent's motion to dis- miss. I reaffirm that decision. No reason has been ad- 479 vanced why witness fees and mileage should not have been required with respect to the instant subpoena. See Brennan v. Heard, 491 F.2d 1, 4 (5th Cir. 1974). In Saper v. Hague, 186 F.2d 592, 593 (2d Cir. 1951), the court held that nonpayment of witness fees and mileage was a valid excuse for not obeying a subpoena unless this defect in service was waived. I believe that the nonpayment of fees was at no time waived by Robinson. To the con- trary, Robinson immediately advised Respondent's coun- sel that he was willing to appear but that he would re- quire the funds to do so. I conclude that service of the subpoena was invalid inasmuch as there was no tender of the appropriate fees.3 CONCLUSIONS OF LAW I have found that for the period December 23, 1981, until January 20, 1982, Melendez is not entitled to back- pay. In addition, I have found that the discriminatees' average weekly hours of overtime during 1978 were, as follows: Allen, 1.04; Gonzalez, 4.02; Melendez, 2.86; Tirado, 2.53; and Robinson, 3.97. Otherwise, I find that the backpay computation set forth in the specification, as amended, is appropriate. With respect to Robinson, consistent with Board policy,' I shall award him the amount of backpay set out in the specification and shall order Respondent to pay it to the Regional Director for Region 2 to be held in escrow for a period of 1 year. The Regional Director shall make suitable arrangements to afford Respondent, together with the General Counsel, an opportunity to ex- amine Robinson, and any other witnesses with relevant testimony, and to introduce any relevant and material evidence bearing on the amount of backpay due. The Regional Director shall make a final determination whether any interim earnings or other amounts, in excess of those shown in the specification, or any other factors are revealed which may reduce the amount of backpay due under existing Board precedent. In the event the Re- gional Director determines that reductions are warrant- ed, the amount so deducted shall be returned to Re- spondent. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, O.K. Machine & Tool Corp. and Gyrotronics, Inc., Bronx, New York, their officers, agents, successors, and assigns, shall 3 Respondent further contends that even if service of the subpoena was defective, the General Counsel was under the obligation to have pro- duced Robinson as a witness The Board has held , however, that the General Counsel "does not have the obligation to produce the discrimin- atees at the hearing to testify in this regard " Woonsocket Health Centre, 263 NLRB 1367 (1982) See also Steve Alm Ford, 190 NLRB 661 (1971) 4 See Woonsocket Health Centre, supra, 263 NLRB at 1368. 5 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 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Pay to each of the following employees as net back- pay the amount set forth opposite each name,e plus inter- est computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977),7 less tax withholdings re- quired by Federal and state laws: Alberto Gonzalez $ 2,2008 Hildo Melendez 33,559 6 An appropriate amount shall be deducted for each discriminatee to reflect the revised average overtime hours as stated above in Conclusions of Law section In addition , an appropriate amount shall be deducted from Melendez' backpay for the period December 23, 1981, until January 20, 1982 , during which time I have found that Melendez is not entitled to backpay 7 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962) s Includes $ 152 pension benefit payment Alton Fahie 8559 Jose Allen 5,066 Luis Tirado 7,28110 2. Transmit to the Regional Director for Region 2, to be held in escrow as provided in this Supplemental Deci- sion, the sum of $7,11911 representing the gross backpay due William Robinson , plus interest, 12 and less tax with- holdings required by Federal and state laws. 9 The parties stipulated that Fahie is entitled to a total payment of $855, representing $550 as backpay, $275 as interest , and $30 as a Christ- mas bonus 10 Includes $ 161 pension benefit payment " Includes $145 pension benefit payment 12 As specified in par I of this Order