Hacienda Hotel And Casino

HACIENDA HOTEL & CASINO Hacienda Hotel and Casino and Willow P. Bowe. Cases 31-CA-10521, 31-CA-10690, and 31- CA-11264 28 April 1986 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 23 May 1985 Administrative Law Judge James S. Jenson issued the attached supplemental decision.' The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in answer to the Re- spondent's exceptions and brief. 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 briefs and has decided to affirm the judge's rul- ings,2 findings,3 and conclusions4 as modified and to issue the Order as set forth below. ' Supplementing 264 NLRB 656 (1982), enfd 707 F 2d 390 (9th Cir 1983) 2 In adopting the judge's ruling that the Respondent has not shown that the backpay calculations should be adjusted to account for discrimin- atee Willow Bowe's absence rate, we do not rely on his finding that the years 1975, 1976, and 1977 are too remote However, we do find that the evidence provided by the Respondent does not support its claim that Bowe should be paid on the basis of a 4-day week rather than a 5-day week 3 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings 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 Although it did not affect his calculation of backpay, the judge found that Bowe worked for 3 days as a cocktail waitress at Stouffers Hotel during the first quarter of 1981 In her limited cross-exceptions the Gen- eral Counsel maintained, and the Respondent agreed, that Bowe did not work for Stouffers Based on all the evidence, we find that Bowe was advised by Stouffers that she had been hired to work for 3 days a week, but the job offer was rescinded ° We note that Bowe testified that she understated her tip income on her Federal income tax returns for the years 1975 through 1980 We find that the judge's formula for calculating tip income is neither unreasonable nor arbitrary In agreeing with the judge's computations, we are not con- doning Bowe's action or "ignor[ing] other and equally important Con- gressional objectives," as asserted by our dissenting colleague Although it is the responsibility of the Board to restore Bowe as accurately as pos- sible to the economic position she would have enjoyed absent the Re- spondent's discrimination during the backpay penod, we are not unmind- ful of other considerations However, the issue of Bowe's accuracy in completing her income tax returns is now a matter of public record and best left to the Internal Revenue Service, which will be furnished a copy of this decision To compute Bowe's backpay on the basis of her reported income, as suggested by Chairman Dotson, would frustrate the purpose of the Act by allowing the Respondent as wrongdoer to benefit from Bowe's failure to accurately report her income to the IRS 601 The judge recommended that the backpay owed to discriminatee Willow Bowe include the amount of her daily rate of pay plus an estimated amount of daily tips. Finding that the Respondent has not shown otherwise, the judge calculated the daily rate of pay on the basis of an 8-hour a day, 5-day week. While we adopt the judge's estimate of what Bowe would have earned as daily tips, we find merit in the Respondent's exceptions to the judge's conclusion that Bowe would have earned a daily rate of pay based on a 40-hour week. Bowe testified that she was regularly scheduled to work for 8-hour shifts on 4 days and normally signed out early on 1 day a week, after working 5 hours. Bowe also testified that she was only paid for the hours that she worked. Moreover, the con- tract provides that employees who voluntarily leave work early are paid only for the time actual- ly worked. We therefore find that Bowe's daily rate of pay should be based on a 37-hour week rather than on a 40-hour week.5 We also find that the amount which the Respondent owes to Bowe's pension account should be calculated on the basis of a 37-hour week. Additionally, the Respondent contends, and the General Counsel agrees, that it was stipulated that Bowe's net backpay for the first quarter of 1984 would be zero. The judge noted in Appendix A that Bowe's gross backpay for that quarter was miscalculated in the backpay specification. In cor- recting the error, the judge concluded that Bowe's net backpay for the quarter was $2156.16. In light of the stipulation and the fact that the General Counsel considers herself and the Charging Party to be bound by the stipulation, we find that Bowe's net backpay for the first quarter of 1984 is zero. We also point out that , in arriving at a formula for computing Bowe's backpay, the judge did not rely solely on Bowe's testimony He also based his calculations on the testimony of several witnesses who worked for the Respondent as waitresses Chairman Dotson disagrees with his colleagues on the resolution of the problem created by Bowe's admitted concealment of tip income , for Fed- eral income tax purposes, during the period on which her backpay enti- tlement is to be computed In Chairman Dotson 's view the majority's de- cision to compel the Respondent to pay Bowe on the basis of her newly claimed higher income during that period effectively condones Bowe's concealment and runs contrary to the Supreme Court admonition that the Board not "effectuate the policies of the Act so single-mindedly that it may wholly ignore other and equally important Congressional objec- tives " See Southern Steamship Co v NLRB, 316 U S 31, 47 (1942) This principle was recently reaffirmed in Sure Tan, Inc v NLRB, 467 U S 883 (1984) Chairman Dotson also finds unsupportable the judge's credit- ing of Bowe's disputed testimony , given years after the fact, over the in- formation she reported in official Government tax documents close to the time involved He would therefore compute Bowe 's backpay on the basis of her reported income with the usual adjustments 5 We have not reduced the amount of vacation pay owed to Bowe, or the amount of backpay for the partial week that Bowe worked in the second quarter of 1980 We have not reduced the backpay owed Bowe for the second quarter of 1984 as the parties have stipulated to the amount for the first part of the quarter 279 NLRB No. 84 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, Hacienda Hotel and Casino, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall pay to Willow Bowe the sum of $81,529.56,6 with interest, less tax withholdings re- quired by Federal or state law. IT IS FURTHER ORDERED that the Respondent pay to the Southern Nevada Culinary and Bartend- ers Pension Trust the sum of $1630.85 to be cred- ited to the pension account of Willow P. Bowe. 6 In calculation of the total backpay owed to Bowe, there is an addi- tion error of $11 We have corrected this error in the Order Ann Reid Cronin, for the General Counsel. Michael P. Lindell (Raggio, Wooster & Lindell, Ltd.), of Reno, Nevada, for the Respondent. SUPPLEMENTAL DECISION JAMES S. JENSON, Administrative Law Judge. On 30 September 1982 the Board issued its Decision and Order in the above-captioned cases, ' in which it ordered that the Respondent make whole Willow P. Bowe for any loss of pay she may have suffered as a result of her dis- criminatory discharges on 28 May and 24 December 1980 and her discriminatory change in work assignment on 1 through 24 December 1980. On 24 May 1983 the Board's Order was enforced by the United States Court of Appeals for the Ninth Circuit.2 A controversy having arisen over the amount of backpay due Bowe, on 25 Oc- tober 1984, the Regional Director for Region 31 issued a backpay specification and notice of hearing in this matter. The Respondent filed an answer dated 16 No- vember 1984, generally denying certain allegations and alleging lack of knowledge or information with respect to other allegations. The General Counsel filed a Motion for Partial Summary Judgment dated 13 December 1984, which was not brought to my attention until 2 January 1985, the date this matter was assigned to me for hear- ing. On 4 January 1985 a conference call, initiated by me, was held with counsels for both the General Counsel and the Respondent . The Respondent's counsel outlined the substance of, and stated that, his opposition to the General Counsel's motion would be delivered to me promptly. The Respondent also agreed to admit certain allegations of the backpay specification previously denied. The parties were informed that I would rule on the motion at the hearing after receipt of the Respond- ent's opposition to the motion. On 8 January 1985 I re- ceived the Respondent's opposition to Motion for Partial Summary Judgment. At the start of the 2-day hearing on 10 January 1985, the General Counsel renewed her Motion for Partial Summary Judgment with respect to the Respondent's failure to swear to the answer and to state specifically and in detail the basis for its disagree- ment with the relevant formulas and definitions, and the ' 264 NLRB 656 (1982) 2 707 F 2d 390 (9th Cir 1983) accuracy of the figures contained in the specification as required by Section 102.54 of the Board 's Rules and Regulations. The General Counsel also amended the backpay specification in a number of respects which I considered, and the General Counsel admitted, were sub- stantial . As requested as an alternative in the Respond- ent's opposition to Motion for Partial Summary Judg- ment, I view the Respondent's opposition as an amended answer to the backpay specification . The answer as amended is verified and meets the requirement of Section 102.54 in that respect . In response to the Board's formula for computing calendar quarter gross backpay, the answer as amended alleges "the discrimmatees' work week was routinely less than 5 days/13 weeks per quar- ter." Attached to the answer as amended is a letter to the Board's compliance officer dated 29 December 1983 with attachments thereto, including a "schedule of income and tips, interim earnings and expenses , net back- pay, interest and total amounts due for the period in- volved," setting forth the Respondent's position with repect to those matters. It is clear that the gross salary computations in the backpay specification are premised, in part, on Bowe's having worked 100 percent of the available days for work, 5 days per week, 13 weeks per quarter, 4 quarters per year. The "schedule of income and tips [etc.]" attached to the Respondent's opposition to Motion for Partial Summary Judgment utilizes a 12- week quarter, which counsel for the Respondent at- tributes to Bowe's availability for work for less than a 100 percent of the time. In his argument opposing the General Counsel's motion, counsel for the Respondent acknowledged that he did not have a specific formula, but that he would present evidence which would estab- lish that Bowe would have been available for work only about 80 percent of the available work hours. In these circumstances, I denied the General Counsel's motion. In her posthearing brief, the General Counsel renewed her Motion for Partial Summary Judgment with respect to the specification's allegation that Bowe would have worked 5 days per week during the backpay period. Having reevaluated the Respondent's answer, its opposi- tion to Motion for Partial Summary Judgment, including attachments, and the record evidence, the motion is again denied. All parties were afforded full opportunity to be heard, to introduce evidence, and to examine and cross-exmaine witnesses. Briefs filed by both the General Counsel and the Respondent have been carefully considered. On the record before me, from my observation of the demeanor of the witnesses, and consideration of the con- tentions and arguments of counsel and their briefs, I make the following findings. The Issues The principal issues are: I What formula should be used for determining gross backpay. 2. The amount of daily tips Bowe would have earned but for the discrimination against her. 3. Calendar quarter expenses. 4. Whether Bowe has concealed interim earnings. HACIENDA HOTEL & CASINO 603 1. LEGAL PRINCIPLES It is well settled that the finding of an unfair labor practice is presumptive proof that some backpay is owed, NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert denied 384 U.S. 972 (1966), and that in a backpay proceeding the sole burden on the General Counsel is to show the gross amounts of backpay due- the amount the employees would have received but for the employer's illegal conduct. Virginia Electric Co. v. NLRB, 319 U.S 533, 544 (1984). Once that is estab- lished, "the burden is upon the employer to establish facts that would mitigate that liability." NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). Any for- mula which approximates what discriminatees would have earned had they not been discriminated against is acceptable if it is not unreasonable or arbitrary in the cir- cumstances The formula should be representative of the discriminatee's employment history and take into account intermittency of employment Iron Workers Local 378 (Judson Steel), 227 NLRB 692 (1977). When awards may be only close approximations, the Board may adopt for- mulas reasonably designed to produce such approxima- tions. NLRB v. Carpenters Local 180, 433 F.2d 934 (9th Cir. 1970). Another well-established principle is that "the backpay claimant should receive the benefit of any doubt rather than the Respondent, the wrongdoer responsible for the existence of any uncertainty and against whom any uncertainly must be resolved." My job is to consider whether the General Counsel's formula is the proper one in view of all the facts adduced by the parties and to make recommendations to the Board concerning the most accurate method of determining backpay. American Mfg. Co, 167 NLRB 520 (1967). 11. BACKPAY FORMULA Except for periods when she has been subjected to un- lawful discharge, Bowe has been employed by the Re- spondent as a cocktail waitress since 24 May 1974, during which time she has been a union member covered by a collective-bargaining agreement between Respond- ent and the Union. On 13 January 1981 the Board issued a Decision and Order in 254 NLRB 56, in which the Re- spondent was found to have unlawfully terminated and otherwise discriminated against Bowe in 1979 because of her union activity. Events leading to the unfair labor practices against Bowe in the instant proceedings com- menced shortly after the unfair labor practice hearing in that case Bowe's backpay period began on 28 May 1980 and ended 12 September 1984. In computing calendar quarter gross backpay, the General Counsel has made a projec- tion based on the contractual daily rate of pay plus an estimated amount of daily tips times the number of work- days (5) per week times the number of weeks per calen- dar quarter (13) The Respondent does not dispute Bowe's daily rate of pay, but disagreed with the amount of estimated daily tips and also argues that an adjustment should be made in the number of days or weeks per cal- endar quarter to take into account her history of ab- sences due to leave of absence and sickness . The Re- spondent has averaged percentage computations derived from three types of data covering different periods of time to conclude that Bowe worked only 81.53 percent of the time during the 5-year period from 1975 through 1979. Therefore, it is argued, the number of days that Bowe would have worked per week during the packpay period should be reduced to four. The overall objective in selecting a backpay formula is to restore the discriminatee, as accurately as possible, to the economic position he or she would have enjoyed, absent discrimination, during the entire backpay period. The time period preceding the discrimination is the one ordinarily utilized by the Board. The Board's decision in the earlier case3 discloses that Bowe was first subjected to discriminatory treatment in March 1979. Accordingly, 1979 was not a "normal" period and should therefore not be used as a basis in computing backpay. The earlier de- cision also discloses Bowe was terminated and later rein- stated on two occasions during 1978. I conclude that 1978 was not a "normal" period for use in computing backpay. Further, the Respondent's exhibits do not sup- port its claim regarding the number of days Bowe missed work due to leaves of absence and sickness during either 1975, 1976, or 1977. In any event, I consider those years too remote in time to consider in determining Bowe's at- tendance rate during the backpay period As earlier noted, the backpay specification alleges Bowe would have worked 5 days per week throughout the backpay period. Bowe testified, however, that al- though she was normally scheduled for 8-hour shifts on 4 days, on Fridays she normally worked 5 hours and signed out early after relieving the other cocktail wait- resses during their lunchbreaks It was not shown, how- ever, that Bowe was not paid the 8-hour daily rate called for in the collective-bargaining agreement, also alleged in the backpay specification and admitted by the Respond- ent As all doubts must be resolved against the wrongdo- er responsible for the existence of any uncertainty, I reject the Respondent's argument that Bowe's wages throughout the backpay period should be computed on the basis of a 4-day workweek III DAILY TIPS The unfair labor practice proceedings disclose that Bowe was working the day shift at the time of her 28 May 1980 unlawful discharge; that she was on the grave- yard shift when discriminatorily assigned to work the "outside" area when recalled on 29 November 1980, and worked there until she was unlawfully discharged again on 24 December 1980. The backpay specification alleges, and the record shows, that Bowe was reemployed again on 20 August 1983 and assigned to work the "outside" area until terminated again on 12 October 1983. Al- though there has been no unfair labor practice finding that the 12 October 1983 termination was unlawful, it is clear that by reassigning Bowe to the "outside" area in August, Respondent was still failing to comply with the Board's reinstatement order Accordingly, it is immateri- al that there has been no finding that the 12 October 1983 termination was unlawful. Moreover, the Respond- 3 254 NLRB 56 (1981) 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent has admitted that the backpay period began on 28 May 1980 and did not end until 12 September 1984. There was considerable testimonial conflict surround- ing the amount of tips cocktail waitresses receive. When issued, the backpay specification alleged Bowe's tips amounted to $50 per day throughout the entire backpay period. On the opening day of the hearing, the General Counsel amended the backpay specification to allege Bowe would have received tips of $80 per day for the entire period. The role of the cocktail waitress is to serve free drinks to gambling patrons, for which they sometimes receive tips. The "pit," which contains roulette, "21," and "craps" tables, is considered to be the better tip area. The "mini pit" is located off to the side of the pit and has a roulette table and several "21" tables. It is consid- ered a part of the pit and is open only during busy peri- ods. The "outside" area covers keno, the poker tables, and slot machines. It was found in the unfair labor prac- tice proceeding, and it also appears from the record here, that tips in the "outside" area are generally less than those in the "pit " The General Counsel seeks to base the amount of tips Bowe would have received throughout the backpay period on Bowe's testimony that she earned a minimum of $80 and a maximum of about $ t 18 on two nights per week she worked alone in the pit on the graveyard shift after her reemployment on 20 August through 18 Sep- tember 1983, and on one night when she "split the pit" with Katherine Curtis when she earned over $100. The Respondent argues that Bowe's testimony regard- ing tips was "wholly uncorroborated," was inconsistent with the amount of tips reported on her income tax re- turns, and supported only by her own discredited testi- mony. In contradiction of Bowe's testimony, the Re- spondent introduced several of Bowe's Federal income tax returns and elicited testimony regarding tips she re- ported to the IRS in other years. The Respondent also called four cocktail waitresses to testify regarding tips on the three shifts. The Respondent argues that although Bowe should be limited to the amount of tips she de- clared on her income tax returns, the highest amount should not exceed the average tip income received by the other cocktail waitresses. Bowe testified on direct examination that day-shift cocktail waitresses serve many more drinks than those on graveyard shift; that on the day shift "I'd get eighteen drinks and carry them out as fast as I could and get an- other eighteen drinks and take them out as fast as I could. This happened all day. On graveyard, I'd take six drinks, and ten minutes later another five. . . . I'm car- rying a capacity load all day long on day shift. You rarely have to do that on grave." She claimed she made about $50 a day in earlier years during the week on day shift On weekends, she testified, she averaged $100 per day in tips . Working the mini pit on day shift she made "$40, $45, $50 during the week." On graveyard shift she made "a little over a hundred dollars" on the single Sat- urday night when she "split the pit" with Katherine Curtis. Bowe testified on cross-examination that in 1975 and 1976 she made a minimum of $200 in tips per week ($40 per day).4 She declared tip income of $600 on her Feder- al income tax returns for each of those years. Her tips for 1977 were $3000 to $4000 more than in 1976. She de- clared $600 or $700 tip income on her 1977 tax return. She claimed she earned $250 a week ($50 a day) in tips in 1978 . She declared $520 on her income tax return. She testified she made about $350 a week in 1979 ($70 a day). She declared $500 tip income on her annual tax return. She testified that although she made an attempt to keep an accurate record of tips in 1983, she "got lax," and now gives the IRS what it asks for. Cynthia Norman, a cocktail waitress on the day shift, testified that her tips ran between $ 1500 to $2000 a year for 1981, 1982, and 1983. Three days a week she was in the pit and on 2 days relieved the other cocktail wait- resses working at all the stations . Tipping in the pit is generally better than at the other stations , but not neces- sarily so. She testified that about 25 percent of the people tip and that tips generally vary in size from a few pennies to Si. On rare occasions, may be twice a year, she has received $5 tips. Senior citizens are poor tippers. Katherine Curtis works in the pit on the graveyard shift and has been in Respondent's employ 10 years. She testified she earned approximately $1200 per year in tips in 1981, 1982, and 1983, which she reported to the IRS. She testified her tip income may vary from nothing to $20 a shift during the week and up to $40 on weekends. Other than one time 2 years ago when she made $100 on New Year's Eve, she has never made as much as $60 in a night. Although Curtis testified she keeps a daily tip record, she had just moved, and was unable to locate it. From February 1975 to July 1984, Peggy Newman worked the swing shift on the outside during the week and in the mini pit on weekends. She testified her tips were between $2000 and $2500 per year for the last 5 years, which she reported to the IRS. She testified that about a fourth of the people tip. Amounts vary in the mini pit from 25 cents to $1. Because the betting stakes are higher in the pit , tips are generally better but rarely reach $5. She might serve 75 cumstomers on the outside in a half hour on a busy night, a fourth of whom would tip averaging 25 cents. Although she kept a record of her tips beginning in 1978, they have been destroyed be- cause she no longer works as a cocktail waitress. Sue Geary has been employed by the Respondent for 8 years and works the outside on the day shift . Because of low seniority, she has worked the pit for only short periods. She does not work on Saturdays or Sundays. On a busy day, she testified, she might serve 15 to 20 cus- tomers in a half hour, and on an average day 10 to 15. She claimed it was only possible to give a percentage es- timate of the number who would tip, but that it would vary from nothing to 10 to 25 percent. Customers who arrive by the busload are poor tippers. She testified her tip income for the years 1981 and 1982 was $10 a day and for 1983 was close to $15.5 ' $40 per day x 260 workdays = $10,400 for years 1975 and 1976 3 The 1981 and 1982 total tips computed on a 260-day work year is $2600 and $3900 for 1983 HACIENDA HOTEL & CASINO On the foregoing evidence, I draw the following con- clusions: 1. But for the discrimination against her, Bowe would have worked 2, 8-hour and 1, 5-hour weekdays and 2, 8- hour weekend days throughout the backpay period. 2. The day shift is the busiest and most desirable. 3. Tips are best in the pit, followed by the mini pit, and lastly the outside. 4 Tips in the pit vary from 25 cents to $1, with $5 tips a rarity. 5. Twenty-five percent of the customers tip. 6. Conservatively up to 75 customers can be served per hour on a busy shift.6 7. Tips, for income tax purposes, have been grossly un- derstated. In determining the amount of daily tips Bowe would have earned absent the discrimination against her, I am mindful of the fact that exactitude is not possible and that any two or three methods of computation will yield different results In my view, the most reasonable method for arriving at Bowe's tip income is to utilize the above conclusions. As doubt must be resolved in Bowe's favor, I conclude that but for the discrimination against her, Bowe could have served approximately 75 custom- ers per hour on weekdays, or 600 per 8-hour shift; that 25 percent, or 150, would have tipped her in amounts which would have varied between 25 cents and $1; that the tips would average out to 50 cents a piece, which would amount to $75 each for the 2 weekdays she worked on an 8-hour shift; that on Friday when she worked a 5-hour shift, she would have served 375 cus- tomers (5 hours x 75 per hour), a quarter, or 94 of whom would have tipped her an average of 50 cents, or $47; that she would have averaged $100 per day on Saturdays and Sundays, for a weekly total of $397, or an average of $79.40 per day. I therefore conclude that the amount of $80 per day alleged in the backpay specification is a rea- sonable approximation, which is all that the Board and courts require. IV. EVIDENCE AND FINDINGS ABOUT INTERIM EARNINGS, INTERIM EXPENSES, AND NET BACKPAY The backpay specification, as amended, sets forth in detail the amounts and sources of earnings which the General Counsel contends were derived from interim employment during the backpay period. It also sets forth the nature and amounts of interim expenses incurred in seeking or holding such interim employment. These amounts are broken down into calendar quarters, and the net backpay sought is derived by deducting interim earn- ings less interim expenses from gross backpay. Respondent questions both the interim earnings and in- terim expenses, contending the interim earnings figures are unreliable and incomplete and that the interim ex- penses are also unreliable. Respondent claims Bowe failed to properly seek employment during the backpay period and improperly relinquished employment. These and corollary matters are considered hereafter with re- spect to each of the calendar quarters in dispute. Respondent's witness Newman testified that on a busy night she could serve 75 customers in a half hour working the outside 605 Third and Fourth Quarters 1980 and First Quarter 1981 Following her unlawful termination in May 1980, Bowe registered on the Union's out-of-work list in the cocktail waitress category but received no job referrals. She also applied for work in nonunion casinos in Las Vegas. Unable to find a job in the Las Vegas area, in early No- vember 1980, she flew to Nassau, Bahamas, in search of work where living accommodations were available through her former husband, a Bahamian citizen. She testified she applied for work there without success and returned to Las Vegas in late November 1980 on receipt of an offer of reinstatement from Respondent. She worked for Respondent until 24 December 1980 when she was again unlawfully discharged. After registering on the Union's out-of-work list and finding no jobs avail- able, she again flew to Nassau in search of work. On learning that she had lost Bahamian citizenship when she was divorced, and therefore no longer eligible for Baha- mian employment, she flew to Houston, Texas, in Janu- ary 1981 in search of work. She made application for employment at several stores before finding employment as a maid at Howard Johnson's Motel, for which she re- ceived $33.25 for 2 days work. She quit that job on the belief she had secured a better job as linen room attend- ant at the Sheraton Hotel. Although that job fell through, she worked for 3 days as a cocktail waitress at Stouffers Hotel, but was denied further employment after that facility contacted Respondent.? She returned to Las Vegas in March 1981. Respondent contends the amount of tips Bowe re- ceived in December 1980 after her reinstatement by Re- spondent are understated and should be increased by 50 percent. Bowe testified on cross-examination that she made more than the $225 in tips alleged in the backpay specification; that she did not think she made double that amount; that she did not keep a record and could not say whether she made $100 more. In these circumstances and in agreement with Respondent, I find that a reasonable approximation of her tip income in the fourth quarter of 1980 was $335. Respondent also contends that Bowe failed to properly seek employment and improperly relin- quished employment. It is argued that her chances for employment were better in Las Vegas; that Bowe knew she could not find employment in Nassau and that she went there on both occasions to vacation. Therefore, it is claimed, the air fares between Las Vegas-Nassau-Hous- ton-Las Vegas, alleged to be $655.60 in the fourth quar- ter of 1980, and $279.45 in the first quarter of 1981, should be denied. The Respondent has failed to show suitable employment was available for Bowe in Las Vegas, and the record shows that registering on the out- of-work list with the Union and by seeking employment in Las Vegas, Nassau, and Houston, she did not remove herself from the labor market . Being unable to find work in Las Vegas, it was proper for her to seek employment elsewhere and to be reimbursed for her expenses in doing so. See, e.g., Firestone Synthetic Fibers, 207 NLRB 810 (1973). Accordingly, Respondent's contentions with re- 7 The backpay specification fails to list interim earnings from Stouffers and the Respondent failed to establish the amount Therefore, no deduc- tion is made for interim earnings from Stouffers 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spect to denying reimbursement for expenses incurred in seeking work in Nassau and Houston are rejected. With respect to any contention that Bowe should be charged for a willful loss of earnings when she quit her job as a maid at Howard Johnson 's in Houston, one of the factors considered by the Board in determining the suitability of interim employment is whether the job paid wages com- parable to the one held with the original employer. Bowe's 2-day wage of $33 .25 at Howard Johnson's is hardly comparable to the earnings she would have made working for Respondent had she not been unlawfully discharged. Accordingly, by quitting the Howard John- son job, she did not incur a willful loss of earnings. Respondent contends that Bowe intentionally con- cealed employment during the third quarter of 1980, the first and second quarters of 1981 , and the first quarter of 1982, and should therefore be denied all backpay for those quarters . The record shows that Bowe filed appli- cations for employment with the Golden Gate Casino on 30 July 1981 , with the Mint on 9 February 1982, the California Hotel on 21 May 1982, and the Frontier Hotel on 27 May 1983 . In the Golden Gate application, she listed postemployment by Ronnie's Rebel Room in Nassau from February 1978 to January 1981, and by Desmond's in Houston from March to May 1981. On the Mint application, she listed employment by Desmond's in Houston from February 1980 to May 1981 . On the Cali- fornia Hotel application , which she filed in her maiden name (Thames), she listed employment by Howard John- son's in Houston from 31 December 1980 to 6 May 1981. In the Frontier application , she listed employment by Desmond's, Houston, from 31 December 1980 to March 1982, and by Circus Circus in Las Vegas from March to May 1982 . Except for the 2 days she worked for Howard Johnson 's in the first quarter of 1981, Bowe denied having been employed by any of the mentioned employers at any time . With the exception of the Howard Johnson earnings , social security records also failed to disclose employment by any of those entities. Bowe readily admitted she deliberately filed the applica- tions with a fictitious employment history because she had been without a job for a substantial period of time and felt she had to "wipe out the Hacienda as a job ref- erence" and get Respondent as far in her background as possible. Further, her credited testimony and social secu- rity records show that she was employed by other em- ployers during at least a part of the same time periods. Accordingly, the Respondent has failed to meet its burden of showing nonreported interim earnings throughout the entire backpay period from Ronnie's Rebel Room, Desmond's Circus Circus, or Howard Johnson's. Second Quarter 1981 : Respondent claims, but failed to show, nonreported interim earnings for this quarter. Bowe testified that she went from Nassau to Houston in March and returned to Las Vegas in May. Her expenses seeking work in Houston amounted to approximately $10 per week. The dates of her arrival and departure are not revealed in the record . I conclude, therefore, that the $55 alleged in the backpay specification as calendar quar- ter expenses covers Bowe's entire expenses seeking work while in Houston and also in Las Vegas after her return there in May. The record also shows that she expended $100 airfare in returning from Houston to Las Vegas, which is properly chargeable to the second quarter for a total of $155 second quarter interim expense. Third Quarter 1981 : Although the backpay specifica- tion alleges Bowe spent $50 searching for work this quarter. Bowe testified she did not recall any expenses for the quarter . Accordingly no deduction is allowed. The backpay specification alleges she earned tips amounting to $72 at the Four Queens . Bowe testified she worked 3 nights at the Four Queens and knew she made more than $72 but did not recall how much . She was unable to state whether she earned double that amount. In agreement with the Respondent , I find that a reasona- ble approximation of her tip income should include a 50- percent increase to $108. First Quarter 1982: Bowe was employed at the Mint Hotel for a short period. As Respondent points out in its brief, she incurred a weekly bus expense of $5.25 in going to the union hall twice a day for rollcall, for a quarterly total of $63. Calendar Quarter Expenses for Balance of Backpay Period: Although Bowe testified that she incurred certain expenses seeking and maintaining interim employment through the second quarter of 1983, the evidence is far too unclear to arrive at reliable figures . Accordingly, cal- endar quarter expenses will be limited to amounts alleged in the backpay specification for the second quarter of 1982 and subsequent quarters. Second Quarter of 1983: The backpay specification admits that Bowe made $1500 in tips working at the Frontier Hotel this quarter. Bowe testified that figure was inaccurate and that $1500 was closer . Accordingly, it is appropriate to adjust the calendar quarter earnings upward to include $1500 in tips from the Frontier. Third and Fourth Quarters of 1983: On 20 August 1983 Bowe was reemployed and assigned to work the outside area, an action which I have found failed to comply with the Board 's Order as enforced by the court , resulting in fewer tips than she would have earned by working the pit. After working several days, Bowe requested her va- cation in order to visit her mother in Detroit. It was denied on the ground the collective-bargaining agree- ment requires that vacation requests must be submitted 30 days prior to the employee's anniversary date, which in Bowe's case was May. Bowe then requested a leave of absence in lieu of vacation from 19 September to 3 No- vember 1983. The General Counsel seeks to include in gross backpay the daily wages Bowe would have re- ceived from 19 September to 10 October 1983, had Bowe been granted the leave to which she was entitled. No backpay is sought for the period 10 October to 3 No- vember 1983 , the period Bowe would have been on leave of absence from Respondent after her vacation ended, regardless of Respondent's conduct . I find no merit in Respondent's argument that its denial of the va- cation was proper or required under the terms of the col- lective-bargaining agreement. Bowe's failure to apply for vacation on her anniversary date is directly attributable to Respondent's unlawful conduct against her. In addi- tion to failing to reinstate Bowe to her former position, HACIENDA HOTEL & CASINO Respondent has further failed to comply with the Board's Order and court's judgment by denying her a vacation, a benefit to which she was entitled. This is an- other in a growing list of harassing tactics which Re- spondent has taken against Bowe. She is entitled to her vacation pay as set forth in the backpay specification. Respondent discharged Bowe again on 12 October 1983 while she was working as a cocktail waitress at the Frontier Hotel and on leave of absence from Respond- ent. Respondent argues that under the terms of the col- lective-bargaining agreement, it was required to termi- nate her for accepting outside employment while on a leave of absence.8 Inasmuch as Respondent had not yet complied with the reinstatement order referred to above, there is no merit to Respondent' s argument . This is yet one more instance of Respondent's harassment of Bowe. Conclusions 607 Based on the foregoing and the whole record, I con- clude that the Respondent's obligations to make whole Willow P. Bowe shall be satisfied by payment to her the amount of $85,777. 32 as detailed in Appendix A hereto, and by payment to the Southern Nevada Culinary and Bartenders Pension Trust, which it shall credit to the pension account of Willow P. Bowe, the amount $1852.50, as detailed in Appendix B hereto . Interest shall be paid to Bowe and to the Southern Nevada Culinary and Bartenders Pension Trust computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977),9 and accrued to the date of payment, minus tax withhold- ings required by law. his employment with the Employer terminated immediately " (G C Exh 6 Art 13 01(h) of the contract provides in pertinent part that "Any em- 5) ployee on leave of absence who accepts outside employment shall have 9 See generally Isis Plumbing Co, 138 NLRB 716 (1962) APPENDIX A C l d Daily Daily Days Qtr. a en ar Qtr. Rate Tips per in Qtr Bac p y 1980/2 28.80 80 5 4 wks + 3 days ..... ... $2,502.40 1980/3 28.80 80 5 13 7,072.00 1980/4 28.80 80 5 13 7,072.00 1981/1 28.80 80 5 13 7,072 00 1981/2 31.60 80 5 13 7,254 00 1981/3 31.60 80 5 13 7,254.00 1981/4 3160 80 ' 5 13 7,254.00 1982/1 31 .60 80 5 13 7,254.00 1982/2 34.40 80 5 13 7,436.00 1982/3 34.40 80 5 13 7,436.00 1982/4 34.40 80 5 13 7,436.00 1983/1 34.40 80 5 13 7,436.00 1983/2 36 80 80 5 13 7,592.00 1983/3 36.80 80 5 7 4,088.00 3680 80 5 4 2,336.00 36.80 -0 5 2 Vacation due 368.00 1983/4 36.80 -0 5 1 Vacation due 184.00 36.80 36.80 80 5 8 4,672.00 1984/1 36.80 80 5 13 27,592.00 1984/2 37 60 80 5 4 2,352.00 Qtr. penes - 0 - - 0 - 655.00 279.45 155.00 - 0 - - 0 - 63.00 65.00 60.00 65.00 65.00 250.00 - 0 - - 0 - -0- Calendar Qtr. Interim Earnings and Employer -0- -0- Hacienda Hotel $435.60 salary, $335 tips. Howard Johnson $33.25; Coin Castle $246.20. Royal Properties $575.80; Washington Inventory $33.95. Golden Gate Casino $263.12 salary, $220 tips; Four Queens $64.30 salary, $108 tips. -0- Mint Hotel $137.60 salary, $112 tips. California Casino $ 1,007.40........ California Casino $2,376.15........ California Casino $2,693.71....... California Casino $2,403.53........ California Casino $2,472.90; Frontier Hotel $848.16 salary, $ 1,500 tips. Frontier Hotel $1 ,207.92 salary, $875 tips. Hacienda Hotel $697 salary, $795 tips. -0- -0- Qtr. Net Interim Earn- ings Qtr. Net Backpay - 0 - $2,502.40 -0- 7,072.00 115.00 6,956.40 -0- 7,072.00 454.75 6,799.25 655.42 6,598.58 -0- 7,254.00 186.60 7,067.40 942.40 16,493.60 2,316.15 5,119.85 2,628.71 4,807.29 2,338.56 5,097.47 4,571.06 3,02094 2,892.92 2,005.08 1,492.00 844.00 -0- 368.00 -0- 184.00 -0- - 0 - - 0 - - 0 - Leave of absence from Haci- - 0 - enda Hotel. Interim earnings exceeded -0. backpay. Frontier Hotel $2,120.84 5,435 84 2,156.16 salary, $3,315 tips. Coin Castle $348.40 ................. 34840 2,003.60 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A-Continued Daily Daily Days Qtr. Qtr Calendar Qtr Rate Tips per Wks in Qtr. Backpay penses 1984/3 Qtr. Net Calendar Qtr Interim Interim Qtr Net Earnings and Employer Earn- Backpay ings 37 20 80 5 6 3,516.00 - 0 - Westward Ho $1,169 70 1,169 70 2,34630 -0- Intenm earnings exceeded - 0 - backpay -0- -0- $85,777 32 ' Miscalculated in Backpay Specification 2 Miscalculated in Backpay Specification. APPENDIX B 1 2 3 4 5 6 7 8 9 10 11 12 ame Backpay Calendar Period Qtrs Pension Contribu- tion Rate Hours er Wk p Wks in Qtr Qtr Gross Pension Hrs Interim Employ- er Hrs Net Pension Hrs Net Total Total Pension Pension Pension Payment Hrs Payment Willow 5-28-80 4297 $1852 50 Bowe to 9-12-84 80/2 $ 40 40 4 + 184 0 184 $7360 80/3 40 40 3 days 13 520 0 520 20800 80/4 40 40 13 520 121 399 15960 81/1 40 40 13 520 0 520 20800 81/2 45 40 13 520 0 520 23400 81/3 45 40 13 520 118 402 18090 81/4 45 40 13 520 0 520 23400 82/1 45 40 13 520 1110 ---- ----- ----- ----- ----- 82/2 45 40 13 520 for ---- ----- ---- ----- ----- 82/3 45 40 11 440 entire 890 400 50 ---- ----- ----- ----- ----- 82/4 45 40 13 520 year 83/1 83/2 * * 0 0 ---- ----- ----- ----- 83/3 • 83/4 84/1 .45 40 13 520 84/2 .45 40 13 520 1138 342 15390 84/3 45 40 11 440 Contributions equal pension due