Manhattan Graphic Productions

MANHATTAN GRAPHIC PRODUCTIONS 277 AVJ Graphics, Inc. d/b/a Manhattan Graphic Pro- ductions and Allen Wiseman and Sherwin Win- nick SSS Typographers,, Inc., d/b/a Ace Typographers and AVJ Graphics, Inc. d/b/a Manhattan Graphic Productions and Reuben D. Lawrence III and Paul Cohen. Cases 2-CA-16952, 2- CA-17014, 2-CA-17244, 2-CA-17400, and 2- CA- 17259 26 November 1986 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 31 March 1986 Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision and a response 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, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, SSS Typog- raphers, Inc. d/b/a Ace Typographers and AVJ Graphics, Inc. d/b/a Manhattan Graphic Produc- tions, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I Because we adopt the judge's finding that, discrimmatee Winnick's backpay entitlement continues past his reinstatement due to the Respond- ent's failure to include a general pay increase in his reinstatement wage, we find it unnecessary to pass on whether Winnick quit the Respondent's employ after his reinstatement because the Respondent did not give him sick leave to which he was entitled as a reinstated employee. In adopting the judge's recommended formula' for calculating Win- nick's backpay, we note that no party excepts to the judge's use of $3000 as a minimum interim earnings figure for each quarter after Winnick's "discharge" from Leland and Penn The Respondent excepts to the General Counsel's and the judge's com- putation of discnmmatee Lawrence's backpay for the first quarter of 1981, alleging that they failed to offset additional interim earnings of $160 which the Respondent established at trial. The final amended backpay specification, however, does include the $160, proven by the Respondent at trial. David Pollack Esq., for the General Counsel. David Lew, Esq. (Bart, Lew & Monat), of New York, New York, for the Respondent. Glenn E. Jenkins, Esq. (Wolff, Siminara & Mitherz), of New York, New York, for Allen Wiseman, Reuben D. Lawrence III, and Paul Cohen. SUPPLEMENTAL DECISION RAYMOND P. GREEN, Administrative Law Judge. These consolidated cases were heard by me in New York, New York, on various days in June and December 1984 and March, April, and May 1985. The backpay specification and notice of hearing was issued by the Re- gional- Director for Region 2 on 17 December 1982. Thereafter a first amended backpay specification was issued on 14 December 1982 and a second amended backpay specification was issued on 21 November 1984. At various times during the hearing certain portions of the backpay specification were 'amended . Ultimately on,, 17 May 1985, the General Counsel made a final amend- ment which is in evidence as General Counsel's Exhibit 8. Accordingly if I or any other reader of this record wishes to know the General Counsel's contentions, Gen- eral Counsel's Exhibit 8 shall be referred interchangeably as the backpay specification. On consideration of the entire record in this supple- mental proceeding, including consideration of the briefs filed by the parties, the prior decisions of the Board, and my observation of the demeanor of the witnesses, I make the following FINDINGS AND CONCLUSIONS 1. BACKGROUND The initial complaint in Cases 2-CA-16952, 2-CA- 17014, 2-CA-17244, and 2-CA-12259 resulted in a deci- sion by Administrative Law Judge James Morton on 13 March 1981, which was affirmed by the Board in an un- reported decision dated 29 April 1981 . In those cases, Respondents were found to have unlawfully discharged Allen Wiseman, Sherwin Winnick, and Paul Cohen. They were ordered to offer these employees reinstate- ment and to make them whole for any loss of earnings. The complaint in Case 2-CA-17400 resulted in a Board Decision and Order ' dated 26 March 1981 in which Respondents were ordered to make whole and offer reinstatement to Reuben Lawrence III. A. Sherwin Winnick Winnick was initially employed by the Respondents in September 1979. He was discharged 18 January 1980. During his employment, Winnick worked as a typositer operator. As such, he used a machine to set large type (larger than one-fourth inch in height). This kind of type would, for example, be used in headlines. In addition, the Company also employed another typositer operator, namely, Gerald Ippolito, who was senior to Winnick and who was also the nephew of the Company's president, John Gagliardi. By letter dated 1 April 1981, the Company uncondi- tionally offered reinstatement to Winnick which he ac- cepted by letter dated 10 April 1981.1 On 24 April Win- Similar letters were sent to the other discriminatees on the same date. 282 NLRB No. 51 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nick returned to work at his predischarge salary of $235 per week. During the period from 18 January 1980 to his return to work on 24 April 1981, Winnick was employed during the first quarter of 1980 at Equitable Blueprint where he earned $1470. In the second quarter of 1980 he obtained a job at Leland and Penn. In the second quarter of 1980 Winnick earned $2775 and in the third quarter he earned $3000. In connection with Winnick's employment at Leland & Penn, the General Counsel concedes that Win- nick may have been discharged for cause and therefore the General Counsel concedes that he should be charged with a minimum of $3000 for any quarter after his dis- charge from Leland and Penn irrespective of whether he had any actual interim earnings.2 After his reinstatement by Respondents on 24 April 1981, Winnick continued to work for about 6 weeks until 5 June when he quit. Almost immediately thereafter Winnick began working for a company called Typemen. At Typemen Winnick's salary was $275 per week, or $40 more than his salary at Respondents. Following his layoff from Typemen in September 1981, Winnick was employed by a company called Qualitype where his salary was $300 per week. Among other things, the Respondents contend that Winnick willfully concealed information from the Board's Regional Office during the backpay investiga- tion, namely, that he was discharged for cause by Leland & Penn. In American Navigation Co., 268 NLRB 426 (1983), the Board held that it will withhold backpay during any quarter when a discriminatee has "intention- ally concealed employment from the Board." In the present case Winnick did not conceal his interim employ- ment at Leland and Penn; all he did was to soften the reason for his leaving. Although he did not at first dis- close fully the circumstances which led to his separation from that company, he did so at a later date and before the hearing opened. There is no showing that Winnick failed to disclose his interim employment to the Board or that he deliberately set out to mislead. Accordingly, I cannot conclude that Winnick engaged in 'the kind of concealment which would bar any of his backpay under American Navigation Co., supra. The Respondents contend that the backpay period for Winnick should end as of 24 April 1981 when Winnick returned to work. In this regard, they argue that Win- nick voluntarily quit his job at Respondents to go to a higher paying job at Typemen and therefore Respond- ents should not be liable for any further backpay. The record shows that when Winnick was reinstated he was given his old job back at his predischarge salary of $235 per week. Nevertheless, according to John Gag- liardi all employees of the Company received salary in- creases in each autumn of 1979, 1980, 1981, 1982, and 1983. As there seems to be no real dispute that the discri- minatees would have each received a $25 raise in the fall 2 In his original submission of information to the Board 's Regional Office in connection with the backpay claim, Winnick disclosed his em- ployment at Leland & Penn and stated that he had been laid off due to a slowdown in business. Apparently he did not disclose to the Region, until sometime after the initial backpay specification had issued, the circum- stances of his termination from Leland & Penn of 1980 had they not been discriminatorily discharged, Winnick's salary on reinstatement should have included the $25-per-week raise. C-F Air Freight, 276 NLRB 481 (1985). Therefore, because Respondents' reinstatement of Winnick did not include the $25-per-week pay increase, it follows that the offer of reinstatement thereby became defective. Accordingly, even if I were to agree with Re- spondents' contention that Winnick quit his employment to get a somewhat higher paying job at Typemen, I do not see how that would cut off his backpay.3 For if Re- spondents had reinstated Winnick with the proper salary increase he might not have quit his employment at all. Sumco Mfg. Co., 267 NLRB 253, 250-258 (1983). The Respondents contend that the General Counsel's backpay formula for Winnick is flawed and offers an al- ternative which is discussed below. In this regard, the General Counsel proposes a formula which projects Winnick's earnings in the backpay period from his hours and overtime hours during his predischarge period of employment. The General Counsel postulates that Win- nick, who prior to his discharge worked a 35-hour week and had an average of 3.4 overtime hours per week, would have continued to work the same amount of over- time during the backpay period. (After the third quarter of 1980 when the Company went to a 37.5-hour week, the General Counsel postulates that Winnick would have worked the new 37.5 hour week plus the same 3.4 hours per week of overtime.) As part of the gross backpay for- mula, the General Counsel postulates that Winnick each autumn would have received a $25-per-week salary in- crease. (See discussion above.) The Company contends that in 1979, when Winnick was still employed, it purchased a computer-based type- setting system (CCI system), which, among other things, could set large type more efficiently than a typositer. Al- though acknowledging that the Company continued to do typositer work the old fashioned way, Respondents assert that this was done less often after the CCI system became operational. Respondents therefore argue that be- cause of the major way that production was altered by the CCI system, Winnick not only would not have con- tinued to work the same amount of overtime that he had in the past, but that he would have been laid off at vari- ous times during the backpay period for lack of work. In this respect, the Company showed that after Winnick's discharge in January 1980, it did not hire a replacement until August 1981 and relied on Ippolito to do the typo- siter work.4 Thereafter the Company hired a number of successive typositers who worked with Ippolito . (It ap- pears that the Company employed only one typositer, Ip- polito, from the week ending 10/21/80 to the week ending 3/6/81 and from the week ending 10/7/81 to the week ending 12/29/82.) 3 The General Counsel contends that Winnick quit because the Re- spondents did not give him the proper amount of sick leave that he was entitled to as a reinstated employee and that the Respondents, in this re- spect, treated him as if he was a newly hired employee Also, the Gener- al Counsel contends that Respondents gave Winnick more onerous duties Concerning these contentions, I find that the evidence supports the first, while it fails to support the second. It is my belief, however, that Wimck did quit to get a higher-paying job 4 This is reflected in summary which was received as R Exh. 25. MANHATTAN GRAPHIC PRODUCTIONS 279 To the extent that the Company' contends that Win- nick, notwithstanding his discriminatory discharge, would nevertheless have been laid off at the same time (until August 1981), for nondiscriminatory reasons, this is a contention which could and should have been made in the underlying unfair labor practice case. Moreover, I note that John Gagliardi, the Company's president, testi- fied, in effect, that the Company always needed people and that even if a man was not assigned to do the job he was hired for, the Company will find other work for him to do. Thus, given Gagliardi's testimony, I conclude that even if the CCI system reduced for a time the need for a second typositer, that would not have resulted in ' the layoff of Winnick who would have been used in some other capacity. There is more to be said for the Company's objection to the way the General Counsel has projected Winnick's overtime hours. Although I do not accept the Compa- ny's contention that the use of the CCI system would have caused Winnick's nonemployment during any part of the backpay period, I do think there is merit to the contention that there was a significant change in the shop's operations as a result of the CCI system and also the change, in November 1979, from a two-shift to a three-shift schedule. Thus, for example, while the more senior, typositer (and bosses' nephew),, Ippolito, worked substantial amounts of overtime during 19,79, his over- time hours were greatly reduced in 1980 and 1981.5 In light of the above, I shall conclude that it would be more appropriate to use Ippolito as the comparable em- ployee for backpay purposes rather than to project Win- nick's predischarge average overtime hours into the backpay periods For the years 1982 and 1983, I shall use Yr./Qty: 1980/1 ................ . 2 ................. 10.4 wks x ((6.718 x 35) x (10.079 x .7710)) ..................................... 13 wks x ((6.71 x,35) x (10.07 x.88)) ............................................... Formula 5 For the years 1980 and 1981 Ippohto's overtime hours were as fol- lows Yr./Qtr. Total OT Hrs. Avg. OT p/wk 1980: 1 ...................... .................. 10.00 .77 2 .................................... 11.50 .88 3 ........................ ........... . 7.75 .60 4...................... . ................ 30.25 2.33 1981: 1 .............................. ... 2300 1.77 2 .................................. ...... 32.75 2 52 33.25 256' 33.50 2.58 8 The Board's Compliance Manual at Sec 10538 2 notes that the use of a formula that projects into the backpay period the discrimmatee's aver- age earnings prior to discharge will not be appropriate when there has been a change in the company's operations which likely would affect the discriminatee's earnings It also notes that the use of a projection is ap- propriate when the backpay period is relatively short. ' R Exh 25 shows the following for Rodriguez the work history of Nicholas Rodriguez as the compara- ble (or replacement) employee for two reasons . First, the record does not disclose Ippolito 's overtime hours during those years. Second, Rodriguez, who was hired in late 1981 , was, like Winnick, the second and, therefore, junior typositer. (The overtime hours of Rodriguez for the years 1982 and 1983 are set forth in R. Exh. 25.)7 For the first two and a half quarters of 1980 I shall calculate Winnick's hours, based on a 35-hour week. Thereafter, and until his reinstatement, I shall assume that Winnick, like all the other employees, would have been shifted to a 37.5-hour workweek with,a proportion- ate increase in,his weekly straight-time pay. For the years 1980 and 1981, I shall assume that Winnick's over- time hours would have been the same as Ippolito's and that in the years 1982 and 1983 his overtime hours would have been the same as Rodriguez, I shall also calculate Winnick's backpay by assuming that each autumn he would have received a $25-per-week raise as this amount seems to be well within the range of increases given to all other employees. Finally, although Winnick, during the 6-week period when he was reinstated (during the second quarter of 1982), chose to work a 35-hour, week, I shall calculate his subsequent gross backpay based on the 37.5-hour workweek applicable to all other employ- ees. (I do so for administrative simplicity and also be- cause I have previously concluded that his reinstatement offer was invalid thereby making his employment condi- tions during the reinstatement period largely irrelevant for any subsequent period.) Based on my calculations, this translates as follows: Gross Backpay Yr./Qtr $2524 3168 Interim Earnings $1470 2775 Total OT hrs. Net Backpay $1055 393 Avg. OThrs. p/wk 1982: 1 ..................................... 42 75 3.29 26.50 2.04 3 .................................... . 27.25 210 4 ........ ........................ 23.75 1.83 1983 1 ....................................... . 29 75 2.29 19.25 1.48 3 ...................................... 58.75 4.52 40.75 3 13 8 This would be Wmnick's hourly rate of pay (i e, $235 divided by 35), This would be Winnick's overtime hourly,rate All subsequent figures in this part of the formula would be the overtime rate calculated at 1 5 times the base rate 10 The figures in this, part of the formula are the average weekly hours of overtime worked in that particular quarter by the comparison employ- ee Thus 77 represents the average weekly overtime hours that Ippolito worked during the first quarter of 1980 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yr./Qtr. Formula Gross Backpay Interim Earnings Net Backpay 3 ................. 6.6 wks x ((6.71 x 35) x (10.07 x 60)) + 6 .4 wks x ((6.71 x 37.5) 3239 3000 239 x (10.07 x.60)). 4 ................. 13 wks x ((6.9311 x 37.5) x (10.40 x 2.33))........................................ 3693 3000 693 1981/1 .................. 13 wks x ((6.93 x 37.5) x (10.40 x 1.77))............................................ 3618 3000 617 2 ................. 6 wks x ((6.93 x 3512) x (10.40 x 2.52)) + 7 wks x ((6.93 x 37.5) 3615 333000 615 x ((10.40 x 2.52)). 3 ................. 13 wks x ((6.93 x 37.5) x (11.40 x 2.56))............................................ 3724 3000 724 4 ................. 13 wks x ((7.60 14 x 37.5) x (11.40 x 2.58))........................................ 4087 5400 0 1982/1 .................. 13 wks x ((7.60 x 37.5) x (11.40 x 3.29))........................................... 4193 3906 287 2 ................. 13 wks x ((7.60 x 37.5) x (11.40 x 2.04))............................................ 4007 3939 68 3 ................. 13 wks x ((7.60 x 37.5) x (11.40 x 2.10))............................................ 4016 3900 116 4 ................. 13 wks x ((8.2715 x 37.5) x (12 .40 x 1 .83))........................................ 4327 3100 1,227 1983/1 .................. 13 wks x ((8.27 x 37.5) x (12.40x2.29)).............................................. 4401 3268 133 2................. 13 wks x ((8.27 x 37.5) x (12.40 x 1.48)) ............................................ 4270 3216 1,054 3 ................. 13 wks x ((8.27 x 37.5) x (12.40 x 4.52))............................................ 4760 3000 1,760 4 ................. 13 wks x ((8.9316 x 37 .5) x (13.40 x 3.13))........................................ 4899 3000 1,899 Total ......... ........................................................................................................... $11,880 In addition to the above, the record establishes that Winnick was entitled to certain fringe benefits including sick pay, t v vacation pay,1 s and Christmas bonuses.19 As such I conclude that for the period 1980 through 1983 Winnick is owed the sums of $1945 for vacation pay, $654 for sick leave pay, and $400 for Christmas bonuses. As to these fringe benefits, the Respondent has not met its burden of proving that Winnick received similar bene- fits from his interim employers during the backpay period. Glen Raven Silk Mills, 101 NLRB 239, 250 (1951), modified on other grounds 203 F.2d 946 (4th Cir. 1953). However, although it is alleged in the backpay specification that Winnick had medical expenses of $150, no evidence was presented to support this claim that is therefore rejected. B. Paul Cohen Cohen began work at Respondents in January 1979. He was hired as an apprentice alphatype operator to assist Allen Wiseman. The alphatype machine was used 11 The $6.93 figure represents Wmnick's hourly wage rate taking into acount the $25-per-week raise he would have received It is calculated as $235 plus 25 divided by 37.5 which was, at this time, the standard work- week for all employees. 12 As noted above, Winnick was reinstated in the second quarter of 1980 and chose to work a 35-hour workweek rather than the 37.5 hour week 13 In the second quarter of 1981, Winnick had earnings of $1276 from Respondents and $1441 from Typeman. As this is less than the $3000 he would have earned but for his discharge from Leland & Penn, the larger $3000 figure is used for his interim earnings 14 This figure is based on the assumption that Winmck would have re- ceived a $25-per-week raise. is This figure is based on a $25-per-week raise 16 This figure is based on a $25-per-week raise 14 Respondent's policy regarding sick pay was that all employees after working 6 months were entitled to 3 days of sick leave per year If unused, they were paid for the 3 days 18 Respondent's policy regarding vacations is that all employees are entitled to a I-week vacation after 1 year's employment and are entitled to 2 weeks of vacation after 2 years' employment. 12 The record shows that, normally, employees have received a $100 Christmas bonus each year to do photographic typesetting as opposed to the tradi- tional hot metal typesetting that is called linotype. In mid-September 1979, the Company installed what is called a CCI phototypesetting system, which, through the use of a central computer and a number of terminals, enabled a number of people to do phototypesetting si- multaneously. In September and October 1979, the lino- type operators (Lisa Kirk, Eddie Potovin, and Allard Lovell), along with the alphatype operators (Allen Wise- man and Paul Cohen), began training on the new CCI system. Cohen was discharged on 16 May 1980 and Adminis- trative Law Judge Morton, in concluding that his dis- charge was unlawful, rejected the Company's contention that it discharged Cohen because he was an unproduc- tive worker. The record shows that during the period after his dis- charge, Cohen made a diligent search for work. He was unable to find a new job until the third quarter of 1980 when he was hired by a Company called Dollar Typographers that is located in Mamaroneck, New York. In this respect, the evidence establishes that Cohen registered at numerous employment agencies, responded to newspaper advertisements, and interviewed at pro- spective employers. I therefore reject as without merit, Respondents' contention that Cohen did not make a rea- sonable effort to mitigate his lost earnings. C-F Air Freight, 276 NLRB 481 (1985);20 American Medical In- surance Co., 235 NLRB 1417 (1978). In the amended backpay specification, the General Counsel seeks net backpay only for the second, third, and fourth quarters of 1980 and the first quarter of 1981. The General Counsel does not seek backpay for the second quarter of 1981 because he concedes that Cohen's interim earnings during that quarter exceeded his gross backpay. Also, the General Counsel does not seek back- 20 In C-F Air Freight, the Board held that a discrimmatee would not be penalized because he did not seek employment for 3 weeks after his dis- charge MANHATTAN GRAPHIC PRODUCTIONS pay thereafter, on the grounds that Respondents made a valid offer of reinstatement to Cohen on 1 April 1981.21 Because, according to the General Counsel, the intro- duction of the CCI system drastically changed Cohen duties, he asserts that the proper way to ascertain his backpay is to utilize a comparable employee. The only differences between the Respondents and the General Counsel on this score is whom to select as the compara- ble employee. In this regard, the Respondents object to the General Counsel's selection of `Allard Lovell (for- merly a linotype operator who was trained on the CCI system), for the following reasons. First, Respondents argue that although it is true that Cohen was given some training on the CCI system, they maintain that he was unable (or unwilling) to learn the system and therefore would never have performed this job had he remained in the Company's employ. They assert that as it became ap- parent that Cohen was unable to do this new job, he was given other less skilled duties to perform, such as repro work and being a 202 runner. Therefore, according to the Respondents, the proper comparable employer to use to determine Cohen's backpay would be Gerald Ippolito who, in addition to his typositer work,' did repro work and 202 running. Secondly, the Respondents argue that even if Lovell would be a proper choice as a comparable employee for 1980, he would not be a suitable choice for the first quarter of 1981 because the overtime Lovell worked during that period was atypical and not repre- sentative of the other people who worked on the CCI system. There is some evidence that would tend to corrobo- rate the Company's argument that Cohen was having trouble learning the CCI system. Thus, Wiseman testified that of the group that was training, Cohen and Allard Lovell were the slowest to pick up the system Wise- man's testimony also revealed that Cohen's ability on the alphatype machine was not particularly advanced and as 281 there is a degree of similarity between each system's op- eration, Cohen's lack of ability on one could be translat- ed to a lack of ability on the other. There is to my mind some ambiguity in the evidence concerning whether Cohen ultimately would have suc- cessfully trained to use the CCI system had his employ- ment not been cut short by his unlawful discharge. Given this ambiguity, it is my opinion that the doubt should be resolved against the Company which is, after all, the wrongdoer. Accordingly, I conclude that, the General Counsel acted reasonably when he selected as a comparable employee a person who was trained to work on the CCI system. Although I will accept the selection of Allard Lovell as the most comparable employee to Cohen for the back- pay periods in 1980, I agree with the Respondents' con- tention that Lovell's overtime hours for the first quarter of 1981 were not representative and would unduly inflate Cohen's backpay. In this regard, the credible evidence establishes that in January 1981 Lovell began to come to work 2 hours early each day for the purpose of learning company procedures and CCI maintenance so as to enable him to take charge of production on the third shift. As such, the evidence, in my opinion, shows that Lovell in 1981 spent a substantial amount of his overtime hours on work that Cohen never would have performed had he remained employed by the Company. Therefore, it seems to me that it would be unfair to assume that Cohen would have, worked the same amount of overtime as Lovell.22 In my opinion, more representative in terms of a, comparable employee for the first quarter of 1981 would be Edward Potovin who also transferred from li- notype to operating the CCI system.23 During the first quarter of,1981, Potovin worked a total of 11.5 hours of overtime, or an average of .88 overtime hours per week. Based on the above, my calculations for Cohen are as follows: Yr./Qtr. Formula Gross Backpay Interim Earnings Net Backpay 1980/2 ................. 6.4 wks x ((5.7124 x 35) + (8.5725 x 2.15))26................................. $1398 0 $1398 3_ .............. 6.6 wks x ((5.71 x 35) + (8157 x 2,96)) + 6.4 wks x ((5.71 x 3020 0 3020 37.5) x 8.57x 2.96)). 4 ................. 5.6 wks x ((5.71 x 37.5 + (8.57 x 4.76)) + 7.4 wks x ((6.0027 x 3410 $1519 1891 37.5) + (9.00 x 4.76)). 1981/1 .................. 13 wks x ((6.00, x 37.5) x (9.10) x .88))28 .......................................... 3028 293868 0 Total ......... .......................................................................................................... $6309 21 Cohen returned to work at Respondents but voluntarily resigned after 3 days. I should note that Cohen claims that the tolling of his back- pay at this point is not proper and argues that the reinstatement offer was invalid. He further maintains that he was forced to leave the Company's employ because of discriminatory action against him. The General Coun- sel does not support these contentions and neither do I 22 I note that the General Counsel has the burden of proof regarding gross backpay. Mastro Plastics Corp, 136 NLRB 1342, 1346 (1962) 22 I note that Potovm, during the backpay period, worked on the second shift and not on the third shift to which Cohen had been assigned prior to his discharge. As such, he cannot be considered as the perfect comparable. Nevertheless, as I have only the number of overtime hours for CCI operators Potovin and Lovell for the first quarter of 1981, I have no choice but to use Potovin's figures 24 The figure $5.71 represents Cohen's hourly wage calculated by di- viding his weekly salary of $200 by 35 hours per week 21 The figure 8.57 is Cohen's overtime rate calculated by multiplying 5 71 x 1.5. 26 The figure in this position of the formula represents the average weekly overtime hours of Lovell for the second, third, and fourth quar- ters of 1980. 27 The figure of $6 represents Cohen's hourly rate during a part of the fourth quarter of 1980 and the first quarter of 1981 It is derived by as- suming that he would have received a $25-per-week raise and that he like all the other employees would have been on a 37 5-hour week. Thus $225 per week divided by a 37.5-hour week equals $6 per hour The corre- sponding overtime rate would therefore be $9 per hour. 28 The figure of .88 is the average weekly overtime hours of Eddie Potovin in the first quarter of 1981. 29 Deducted from interim earnings at Dollar Typographers is $130 in travel expenses. This represents the added cost Cohen expended by Continued 282, DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition to the above, I shall include as part of the backpay owed to Cohen the following amounts for fringe benefits. 1. Christmas Bonus (1980) ..................................................... 2. IRA Contributions at $5 per week ................................... 3. Vacation Pay ...................................................................... 4. Sick Leave Pay ................................................................... 5. Cost of Medical Insurance ................................................ Total ............................................................................. $100 245 400 40 319 $1104 I shall, however, exclude the amount of $130' which was Cohen's out-of-pocket cost for medical expenses in- curred during the backpay period. In this respect, the record shows that, after his discharge, -Cohen made an arrangement with the Insurance Company to assume, at his own cost, the exact same medical plan that he had while working for Respondents. Therefore, the figure of $130 that represents costs not covered by the plan would not have been covered had Cohen remained in the Com- pany's employ. However, as noted above, I have includ- ed in his claim the cost to Cohen of assuming the medi- cal insurance plan. C. Alan Wiseman Wiseman began working for Respondents in 1978 as an Alphatype operator. He was discharged on 25 November 1979. Prior to his discharge, the Company, as noted above, had purchased the CCI system that was to re- place both the Alphatype machine and the Linotype (hot metal) operation. Also, in the beginning of November 1979, the Company instituted a third shift from midnight to about 8 a.m. (called the lobster shift). This new shift was created in anticipation of increased business due to the expected added production from the CCI system. Also, the^new shift was designed to reduce, to a certain extent, the amount of overtime being worked by the em- ployees. Thus, in the new setup, the night shift was to be the main production shift and the lobster shift was to be, among other things, where the final corrections were made prior to the product being shipped to the custom- ers in the morning. Prior to his discharge, Wiseman was assigned to work on the night shift as it was felt that he was the fastest person on the CCI system and, therefore, could produce the most work. Potovin was assigned to the lobster shift.30 However, soon after Wiseman's discharge, Poto- having to take a train to Mamaroneck, New York, instead of taking a subway to work at Respondents. ao Because the lobster shift, among other things, cleared up and cor- rected the work done on the night shift, Wiseman's testimony that he spent a substantial amount of overtime prior to his discharge checking the production work is irrelevant, as that function would no longer have been done by anyone on the night shift after, the lobster shift was institut- ed. I also note that although the judge in the underlying case held that the Company illegally reduced, overtime in January 1980, he did not hold that the creation of the lobster shift in November 1979 was discriminator- ily designed to reduce overtime. vin was moved back to the night shift to replace Wise- man. Therefore based on this record it seems to me that Potovin is the perfect candidate to be the comparable employee for purposes of determining what hours Wise- man would have worked in 1979 and 1980. While employed at Respondents, Wiseman had certain fringe benefits such as 3 sick days per 'year, vacations, and medical insurance. Also, he received each year of his employment a Christmas bonus of $100 and he participat- ed in an IRA plan to which the Employer contributed $5 per week., After his discharge, Wiseman searched for work and, during the week ending 30 November 1979, he got a part-time job at Dollar Typographers, located in Ma- maroneck, New York. At this Company, in 1979, he earned $571. In 1980 he earned $2916, and in 1981 he earned $4474. In connection with his employment at Dollar Typo- graphers, the Respondents assert that Wiseman intention- ally failed to disclose his earnings for the fourth quarter of 1979 and therefore should be disqualified from any backpay during that quarter. I disagree. At most, Re- spondents have shown that Wiseman, more than 3 years after his discharge, listed in the backpay forms that he did not begin his employment at Dollar Typographers until 1980 rather than the last part of 1979. To this extent, I conclude that Respondents have merely shown that Wiseman made an error. This, to me falls far short of meeting their burden of establishing that Wiseman willfully intended to deceive the Board. On the other hand I can see no reason for not includ- ing as part of Wiseman's 1979 interim earnings his income, less travel expenses, from his employment at Dollar Typographers.31 Thus, for 1979 this would amount to $571 less travel expenses of $105 or $466. In the first quarter of 1980, Wiseman obtained a full- time job at a Company in Manhattan called Empire Cold Type where he worked on the night shift. He obtained this job on 7 February 1980 and has continued to work there, As Wiseman had little overtime at Empire, he would, after completing his duties there, drive up to Dollar Typographers to do some extra work at that Company. Prior to obtaining the job at Empire, Wise- man's earnings from Dollar in the first quarter of 1980 were $672. With respect to the above, it seems to me that Wise- man's earnings from Dollar Typographers (less travel ex- penses) from 1 January to 7 February 1980 should be in- cluded in his interim earnings ($672 minus travel ex- penses of $105 equals $566). However, once Wiseman obtained regular and full-time employment at Empire his 31 While employed at Respondents, Wiseman and Ippolito shared travel expenses. Thus, they alternately drove each week from Staten Island to the Company Based on the IRS mileage allowance at 22 cents per mile during the relevant years, the additional cost to Wiseman if he had had to drive his own car all the time to a job within a similar geo- graphic area would be about $21 or $22 per week In this regard it is true that Ippolito switched to the third shift in October 1980 and therefore would not have been available to share travel expenses with Wiseman, who at that time would not have been on the same shift. However, I shall assume that these two employees would have continued to share travel expenses until October 1980. MANHATTAN GRAPHIC PRODUCTIONS second job at Dollar should be treated as supplemental employment when such earnings are ordinarily not in- cluded as part of interim earnings.32 Cumberland Farms Dairy, 266 NLRB 855 (1983); JIB Industries, 245 NLRB 538 (1979); Henry Colder Co., 186 NLRB 1088 (1970). Regarding Wiseman the issue of most significance is whether the Company's offer of reinstatement terminated the backpay period. The facts concerning the offer are set forth below. By letter dated 1 April 1981, the Employer uncondi- tionally offered reinstatement to ,Wiseman. Wiseman, by letter dated 7 April 1981, stated, "This is to advise you that I am accepting reemployment and I am looking for- ward to hearing from you further." By letter dated 28 April 1981, the Employer told Wiseman to report to work at 6 p.m. on Monday, 4 May 1981. By letter dated ]l May 1981, Wiseman wrote: This is in response to your letter of April 28, 1981, which I received on April 30, 1981. I am looking forward to reinstatement, but unfor- tunately I must give at least two weeks notice and I have some prior commitments which will delay my return until Monday, May 25, 1981 at 6 p.m. I would also like to advise you that I have to make an extended trip to Florida at the end of June-beginning of July to make some medical ar- rangements for my father who is ill. Since reinstate- ment presumes continuous and unbroken employ- ment I am entitled to two weeks paid vacation and three sick days for each of the years 1979 and 1980 of which I will use the ,necessary time to make my trip to Florida. If this is unsatisfactory in any way please let me know why by return mail at once because in any case I must give at least Iwo weeks notice. John Gagliardi responded on 4 May 1981 as follows: This will acknowledge receipt of your letter of May 1, 1981. I can understand your desire to give your current employer reasonable notice of your intention to return to our employ. However, in this regard, I note our letter of April 1, 1981, offering you rein- statement. It would appear that you should have, in good conscience, informed your employer of your intention to leave at that time. Under the circum- stances, and in an effort to avoid further delay, I am willing to exend your reporting date to May 18, 1981 at 6:00 p.m. Certainly, this will give you the time you seek for notice. I have also considered your request for a grant of vacation within a few weeks of your return. Wheth- er or not you are entitled to paid vacation is a matter which the lawyers will have to resolve and should not stand in the way of your return to work. 32 Had I concluded that Wiseman would have worked the tremendous number of overtime hours claimed for him in 1981 and 1982,-l would be inclined, during such years, to include his supplemental income at Dollar as part of his interim earnings as this would have been, in effect, a substi- tution for his overtime hours at Respondents. 283 If you are legally entitled to vacation pay, you will be paid it and, of course, if you are not legally enti- tled to receive time off in late June and early July, that will depend, as it always has in the past, on the vacation needs of the other employees and the amount of work that must be performed during that period of time. I must advise you, however, that we are currently very busy and I cannot guarantee that any employee will be able to take a protracted va- cation in late June or July. Please contact me immediately to advise me if you intend to return to our employ by May 18, 1981. If I fail to hear from you within five (5) days of receipt of this letter, I 'will have no recourse but to conclude that you are not interested in returning to work for our Company and are refusing this offer of reemployment. On 8 May 1981 Wiseman wrote to the Company as follows: First let me restate my position, which is that I am positively looking forward to returning to your employ. Second let me apologize for not being too clear about my trip to Florida. I am not going on a vacation, I am going to get some medical consultations for my father who suf- fered a stroke recently and may have some other problems as a result. I can understand your situation in that to have an employee return to work for a few weeks and then have to leave for a while could disrupt the shop. However, this is not a trip of choice but rather a trip that I must make and it cannot be put off as my father's health is at a very serious point. If it will help you in any way and not disturb the continuity of the shop I will delay my return to work until I get back from,rFlorida. On 15 May the Company sent a mailgram to Wiseman as follows: I have today received your letter of May 8, 1981 postmarked May 12, 1981. I had offered you immediate reinstatement on May 4, 1984 which I extended to May 18, 1981 at your request. I cannot hold the job open beyond that date. If you wish to be reemployed you must return to work on May 18, 1981. Failure to do so will be considered a refusal on your part to accept our unconditional offer of reemployment. On 19 May 1981 Wiseman responded -to the telegram as follows: This is in answer to your telegram which arrived at my home friday evening, the fifteenth of May, while I was at work. First I will reiterate my position which is that I positively want to return to your employ. In your telegram you stated that you acceded to my request for returning to work. But that is not so, 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you set your own arbitrary deadline on my return and you inferred that I would not be allowed to leave after a few weeks to go on a "vacation", as you put it, because it would disrupt the shop. It is unfortunate that I am faced with a serious family health problem at this time. I certainly did not plan it this way. While I have always tried to be fair and reasona- ble to you, I feel that, in light of what has tran- spired, your attitude has been neither fair nor rea- sonable. However, I stand ready, as soon as I return from Florida, to return to work for you and to con- tinue ,to do my very best (as you know I have always done) in every way possible for you. Thereafter on 2 July Wiseman again wrote: Having not received any response to my letter of May 19 to you, I would at this time like to reaffirm my position which has always been that I most defi- nitely want to return to work for you. I am leaving for Florida on July 7 and at this moment I do not have a return trip reservation but do expect to be able to consult with my father's doctor and review the results of any tests that have been and might be taken and hopefully consult with other specialists and I feel this can be accomplished and I can;be back in New York and ready to report for work at, 6,p.m., on July 27, 1981. Please advise me at once whether this is accepta- ble to you or whether you will accept me back in your employ. The Company responded on 6 July 1981 as follows: In response to your letter of July 2, 1981 which I received 'today, and as set forth in our telegram of May 15, 1981 your failure to report to work was considered a refusal to accept our unconditional offer of reemployment and the position has since that time been filled. The record shows that during the period of the above- described correspondence the Company was experienc- ing an increased demand for its services and that it hired John Bohanan on 19 May 1981 as a typesetter to fill the job offered to Wiseman. (Bohanan began work on 8 June.) It seems to me that the initial offer of reinstatement on 1 April was valid on its face. Once made, it thereupon became the responsibility of Wiseman to respond within a reasonable period of time. Under the law , Wiseman would be entitled to a reasonable period of time before he actually returned to work once he accepted the rein- statement offer. The question then is what constitutes a reasonable period of time given the Company's desire to have him back by 18 May 1981 and Wiseman's desire to come back on 7 July 1981. In Fredeman's Calcasieu Locks Shipyard, 208 NLRB 839 (1974), the Board stated. What constitutes the "reasonable time" will depend essentially on the situation in which an employee finds himself as a result of the discrimination against him, and thus no precise fixed date can be set by formula. For example, an employee may be employed by an interim employer at the time he receives the offer of reinstatement. In that situation, we would allow him a reasonable time within which to con- sider the offer and to make appropriate arrange- ments for terminating his interim employment with- out imposing an undue hardship on his temporary employer. Or the offer may set a definite time limi- tation by which he must accept it and report to work or else forfeit both his reinstatement and back- pay rights. Here again we will look to the employ- ee's availability and immediate circumstances before determining whether the date set in the offer termi- nates those rights. Obviously, if there is no valid reason for his not being able to return to work at the fixed date, we will likely view' that date as dis- positve of the issue. By the same token, however, the date for accepting the offer and returning to work may have to be extended by us in deciding the backpay cutoff date if the terms in which the offer is couched fail to provide any reasonable time within which the employee can act thereon. The most extreme example of this kind of offer is one that demands the employee accept it and return to work on the same day he receives it. That would, except in unusual situations, be an unreasonable condition to which we would not require strict compliance by the employee; nor would we find such an offer to have terminated the backpay period. Thus, as the above illustrations show, the terms of each offer and the circumstances affecting the in- dividual employee at the time of receipt such offer will have to be weighed and considered in deter- mining what constitutes the end of the backpay period. It is my opinion that the Respondents gave Wiseman a reasonable time to return to work that he failed to do. In this regard, although one can sympathize with Wise- man's desire to delay his return to work, in order to be with his sick father, that circumstance must be balanced against the Company's demonstrated need to hire a quali- fied person to do its production work. (In fact, the Com- pany did -hire someone else after on 18 May 1981.) The facts show that the Company offered to delay the date that Wiseman was to return to work (from 4 May to 18 May), whereas Wiseman desired to delay his return until the beginning of July, over a month later. The General Counsel contends that the offer of rein- statement was invalid because on one occasion in the past, the Company had granted a 2- or 3-day leave of ab- sence to Lawrence so that he could visit his grandmoth- er who had suffered a stroke.33 Therefore, according to 33, Lawrence, in response to a question about his absences, testified that he believed he was out for about 2 or 3 days in April 1980 because his grandmother had suffered a stroke MANHATTAN GRAPHIC PRODUCTIONS 285 the General Counsel it would be reasonable to conclude that had Wiseman returned to work by the deadline set by the Company, he would have been' granted a leave of absence to take care of his sick father. As to this, I shall commend the General Counsel for the ingenuity of his argument, but conclude that it is based on the slenderest of an evidentiary 'straw. In short, I find that this single bit of evidence regarding Lawrence's alleged "leave of absence," to be insufficient to establish that the Company would or should have granted a several week leave of absence to Wiseman on his return to work.34' I note that had Wiseman returned to work he probably would have been paid his old salary without the inclu- sion of the $25 raise given to all employees in the fall of 1980. Thus, ' had he returned, his reinstatement offer would likely have been invalidated by the probable fail- ure of the Company to pay him the proper salary. Nev- ertheless, as this did not occur because he did not return to work, this speculative event can not serve to invali- date the offer of reinstatement. See Florida Steel Corp., 273 NLRB 889 (1984); Eastern Die Co., 142 NLRB 602, '604 (1963); Research Designing Service, 141 NLRB 211, 216, 217 (1963). For the same reasons as in Winnick's case, I think that it is not appropriate to simply project' into the backpay period Wiseman's predischarge overtime hours. Rather, in Wiseman's case it seems to me that as Potovin was specifically assigned to take over Wiseman's job upon the latter's discharge, the best way of determining Wise- man's ,backpay is to use Potovin as the comparable em- ployee for purposes of calculating the number of over- time hours during the backpay period. My calculations are as follows Yr./Qtr. Gross Backpay Interim Earnings Net Backpay 1979: 4 ........................ 5.4 wks x ((375) + (16 x 8.235))........................................................ $2733 $ 571 $ 2162 1980: 1 ........................ 13 wks x ((375) + (16 x.88)) ............................................................. 5056 3562 1494 2 ........................ Interim Earnings Exceed Gross Backpay......................................... 0 3 ........................ 13 wks x ((375 + (l6 x 2.i2))............................................................ 5316 4832 484 4 ........................ 4.6 wks x ((375 + (16 x 2.85)) + 8.4 wks x ((400) x (17 x 2.85)).. 5702 5039 663 1981: 1 ........................ 13 wks x 400......................................................................................... 5200 5061 139 2 ........................ Interim Earnings Exceed Gross Backpay......................................... 0 Total ......... ........................................................................ ................................... $4942 I also conclude that the fringe benefits to which Wise- man would have been entitled during the backpay period are as follows: Christmas bonuses in 1979 and 1980 ................................. 200 Vacation pay (2 weeks in 1980) ........................................ 800 Paid sick leave for 1980 and half' of 1981 .:....................... 345 IRA contributions at $5 per week for 110 weeks............ 580 Total ........................................................................ $1925 D. Rueben Lawrence III Lawrence began his employment at Respondents in July 1979. He was assigned to the night shift as a proof- reader. His initial salary was $175 per week but at the time of his discharge on 11 July 1980 his salary had been raised to $190 per week. Lawrence's testimony shows that after his discharge he sought other employment by a variety of means in- cluding newspaper advertisements, the use of a union's hiring hall of which he was a member, and telephone calls to magazines and law offices which might employ proofreaders. His first regular employment after his dis- charge was with a company called Video Review in the first quarter of 1981, although, he did have some limited earnings from Time Inc. during the fourth quarter of 1980. Based on the record as a whole, I conclude that Lawrence made a reasonable search for work and that 'Respondents have not met their burden of showing the contrary. NLRB v. Pilot Freight Carriers, 604 F.2d 375 (5th Cir. 1979); NLRB Y. Mastro Plastics Corp., 354 F.2d 170 (3d Cir. 1965). By letter dated 1 April 1981, the Company offered to reinstate Lawrence. He accepted and returned to work on 4 May 1981. On his return, Lawrence was put on the night shift and shared the proofreading duties with Mi- nerva Durham. Lawrence's salary was set at $190 per week and he elected to remain on a 35-hour week rather than to go to the 37.5-hour week that the Company had instituted some time prior to his reinstatement . His salary upon reinstatement was set at his predischarge rate de- spite the fact that all the Company's employees had re- ceived salary increases in the autumn of 1980. Also the evidence establishes that Respondents treated Lawrence as a newly hired employee rather than a reinstated em- 34 I also conclude that the Company's refusal, on 4 May, to guarantee 35 For the fourth quarter of 1979 I computed the average overtime Wiseman his choice of vacation did not invalidate the offer of reinstate- hours of Potovin simply by substituting Potovin's hours for the week ment, as there was no showing that this did not conform to the Compa - during that period that were not worked by Wisemen because of his dis- ny's normal practice. charge. That is, the week ending 11/22/79 through the week ending 12/28/79 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee who is entitled to retain his seniority rights. This is evidenced by the fact that Lawrence was denied sick pay on two occasions and was also denied his vacation request.36 On 4 June 1981 Lawrence, by letter made certain re- quests of the Company. One was that the Company con- tinue to pay for the health insurance that he had pur- chased while out of work. The other was for an increase in pay. On 5 June 1981 the Company denied these re- quests. On 14 September 1981 Lawrence quit his employment at Respondents and went to work immediately for a Company called Gerard Assts where his salary was $270 or $280 per week. (Lawrence was hired by Gerard before he quit Respondents.) He continued to work at Gerard until laid off in June 1982. Lawrence, despite ef- forts to seek new employment, did not get another job until hired by Empire in the third quarter of 1982. Thereafter, he worked at Continental Word Processing in the third and fourth quarters of 1982 and the first quarter of 1983, but returned to Empire in the second quarter of 1983. In connection with Lawrence's quitting of his job at Respondents, they contend that this quitting was entirely voluntarily on his part and therefore tolls his backpay. The General Counsel contends that the backpay contin- ued thereafter. He makes this contention on two grounds; first that the Respondents' reinstatement offer was not valid and second that Lawrence was discrimina- 36 The testimony shows that on two occasions after Lawrence was re- instated he was out sick but was not paid sick leave. Pursuant to Compa- ny policy, employees are entitled to 3 sick leave days per year after being employed for 6 months Also Lawrence's request for a vacation was turned down on the grounds that he was not entitled to vacation leave. The Companys' policy was that an employee was entitled to a 1-week vacation after 1 year and a 2-week vacation after 2 years of employment As Lawrence had initially been hired in July 1979, he was at the time of his vacation request an employee of 2 years' tenure and therefore entitled to a 2-week vacation The Company's response to Lawrence's vacation request was sent to him on 28 July 1981 as follows: Please be advised that so far as we are concerned at the present time, you are not entitled to any vacation As you are aware, the National Labor Relations Board may, in a subsequent backpay pro- ceeding deal with this issue We are prepared to meet the issue at that time and to comply with the ultimate decision rendered by the National Labor Relations Board. torily harassed after his reinstatement. As I agree with the first ground, it is not necessary to resolve the second. It is my conclusion that the offer of reinstatement to Lawrence was defective essentially for the same reasons as in Winnick's case. That is, the record shows that, on his reinstatement, Lawrence was paid his predischarge salary and was not given the raise that all employees had gotten during the interim. Also by denying him the vaca- tion and sick leave benefits to which he was entitled based on his accrued seniority, the Company essentially treated Lawrence as a newly hired, rather than a rein- stated, employee. Because I conclude that the reinstate- ment offer was invalid (even though accepted), it follows that Lawrence's quitting cannot affect his right to back- pay and his right to receive a valid offer of reinstate- ment. There is a dispute about how to treat certain self-em- ployment of Lawrence during the backpay period. In this respect, the record shows that while initially em- ployed at Respondents Lawrence, with a partner, was engaged in the business of selling used books. According to Lawrence, he conducted this business (called Pandra- gon Books) from his home, and mainly on the weekends. In 1979 his net income from this business was $381. In 1980 after the partnership had dissolved, Lawrence's tax returns show that Pandragon Books had gross sales of $4162, but net income of $1313.80. In 1981 Pandragon Books had gross sales of $7334.80, but net income of $996.75; in 1982 it had gross sales of $1161 and net income of $41.75; and in 1983 it had gross sales of $646.87 and net income of $50. In describing his side business, Lawrence explained that the relatively large gross sale figures in 1980 and 1981 simply represented the selling off (at discount) a portion of his inventory. He also testified that his activi- ties on behalf of Pandragon Books during the backpay period were done in much the same manner (on week- ends) as had been done while employed at Respondents. It is therefore my opinion that Lawrence's self-employ- ment should be considered as analogous to supplemental employment which he did not work during his normal working hours and therefore should not be included in his interim earnings. NLRB v. Miami Coca-Cola Co., 360 F.2d 569, 573-574 (5th Cir. 1966); Cumberland Farms Dairy, 266 NLRB 855 (1962); S.E. Nichols of Ohio, 258 NLRB 1, 15 (1981). MANHATTAN GRAPHIC PRODUCTIONS 287 As to the gross backpay formula for Lawrence, the parties are in partial agreement . Thus, they agree that his gross backpay for the third quarter of 1980, using Marion Powers as the comparable employee, would be $2534. They also agree that Lawrence's gross backpay for the first quarter of 1981 (using D. Abel as a compara- ble employee) should be $3329. Further, as the General Counsel claims no net backpay for the third quarter of 1981; the fourth quarter of 1982; and the first quarter of 1983 (because interim earnings would have exceeded gross backpay), any disagreement that Respondents would have with the General Counsel's formula would be immaterial for such periods. Respondents argue, quite rightly in my opinion, that if the General Counsel selects Powers to be the compara- ble employee for the third quarter of 1980, he should stick with that employee, who like Lawrence, worked as a proofreader on the night shift for the fourth quarter of 1980. Because the General Counsel has not demonstrated to my satisfaction any good reason for shifting to an- other employee during the fourth quarter of 1980, I shall modify the gross backpay for that quarter by using Powers' average weekly overtime hours during that quarter and using the same methodology used earlier in Winnick's case. Thus, 13 weeks x ((37.5 x 6.1437) + (9.2138 x .11539)) = $3007. Respondents object to the General Counsel's calcula- tion of,gross backpay for the second quarter of 1981 and for every quarter thereafter on the argument that be- cause Lawrence, during his reinstatement, refused sever- al requests to work overtime, it therefore follows that he should not be credited with any overtime after the second quarter of 1981. Although there is evidence that Lawrence on a number of occasions did refuse overtime, there also is evidence that on other occasions he worked overtime. Based on this record, I cannot conclude that if Lawrence had continued to be employed by Respond- ents he invariably would have refused to work all over- time. I therefore find no merit to Respondents' argument on this point. Calculating Lawrences gross backpay and net backpay in the same manner as I did in Winnick's case, including what agreements that do exist, I come up with the fol- lowing:40 Yr./Qtr Formula Gross Backpay Interim Earnings Net Backpay 1980/1 ......... ..... ...... .............. ...................... . .................................. $ 2534 $ 2,534 2 ............... . ............... ..................... . ............................................ 3007 $ 388 2,619 1981/1. . ..... ................. ............... .................................... .. 3329 2411 918 2 ......... 9 wks x ((35 x 6 14) + (9.21 x 77)) + 2.4 wks x ((37.5 x 6 14) 2568 2251 317 + (9 21 x 77)). 3...... ..... Interim Earnings Exceed Gross... ... . ................. 0 4..... . 13 wks x ((37.5 x 640) + (9.60 x 1.80)). . . ...................... 3346 2251 1,095 1982/1 .......... 13 wks x ((37.5 x 6.30) + (9 60 x 3.23)) . .. 3523 582 2,941 2..... .. .. 13 wks x ((37.5 x 6.40) + (9 60 x .73)) .. .... . .................. 3211 0 3,211 3. . ... 4.2 wks x ((37.5 x 640)+(9.60 x .71)) + 8 8 wks x (37.5 x 7.06) 3435 1367 2,068 + (1060 x .71)) 4..... Interim Earnings Exceed Gross .... .... .... .. 0 1983/1 ... Interim Earnings Exceed Gross....... 0 2.... 13 wks x ((37.5 x 7 06) + (10 60 x .48)) 3511 3500 11 3...... . 4.2 wks x ((37.5 x 7.06) + 8 8 wks x 290)) . . . ............... 3665 3750 0 4 . ....... 13 wks x ((37 5 x 7.73) + (11.6 x .87)) . .. 3902 3750 152 Total .. .... .......... . ........ $15,866 In addition, I conclude that for the period 1980 through 1983 Lawrence would have received certain fringe benefits from Respondents which should be in- cluded in his backpay. These are as follows 'Total $1533 Vacation pay $ 910 Sick pay 41273 Christmas bonus 42350 37 The figure $6 14 represents Lawrence's hourly wage rate by divid- ing 215 by 35 It assumes that during this period of time he would have received a $25-per-week raise 38 The figure $9 21 represents the overtime rate 39 The figure 115 represents the average weekly overtime of Powers 40 In using the formula, I made the following assumptions First, I as- sumed that each autumn Lawrence would have received a salary increase of $25 per week For the initial period of his reinstatement , I calculated his hourly rate of pay with the $25-per-week raise as $6 14 per hour by dividing $215 by 35 1 used the 35 diviser because he opted, with the Company's permission , to stay on the 35-hour workweek However, in computing Lawrence's hourly wage rate after his reinstatement period ended, I assumed that but for the original unlawful discharge , he would have worked a 37 5-hour week and therefore his hourly rate should be his prospective weekly salaries divided by 37 5 Thus, for the fourth quarter of 1981, I assumed that Lawrence 's weekly salary would have risen to $240 per week which, divided by 37 5 would give an hourly rate of $640 and an overtime rate of $9 60 As to the average weekly overtime hours, I have accepted the figures on the Amended App C-I to G C Exh 8 as the parties agreed that the figures represented on the appendix were accurate 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. MISCELLANEOUS ISSUES The Respondents argue that interest on the backpay amounts should be excluded because of the "unconscion- able delay" of the NLRB's Regional Office in issuing the specification. Without determining the reasons for the delay (although the issues herein are very complex indeed), the fact of the matter is that the Board has always included interest irrespective of delay. E.g., Car- rothers Construction Co., 274 NLRB 762 fn. 3 (1985). Further, in accordance with my conclusions that valid reinstatement offers were not made to Lawrence and Winnick, it is concluded that their backpay shall contin- ue to accrue until such time as Respondents make valid offers of reinstatement. 41 It appears that at Respondents, Lawrence would have received sick leave pay of $129 in 1981, $144 in 1982, and' $159 in 1983. However, he testified that while employed at Empire he got five sick leave days per year. Therefore I shall conclude that Lawrence's sick leave for Empire in 1983 offset what he would have gotten in sick leave at Respondents during the same year. 42 For purposes of this proceeding it appears that most employees of Respondents got a $100 Christmas bonus each year. I, therefore, shall assume that Lawrence would have received the same during the period 1980 through 1983 However, as he testified that he got about a $50 Christmas bonus from Empire, I shall deduct that sum On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed43 ORDER 1. Make payment to Sherwin Winnick the sum of $14,879 plus interest, less tax withholdings required by Federal and state laws. 2. Make payment to Paul Cohen the sum of $7414 plus interest, less tax withholdings required by Federal and state laws. 3. Make payment to Alan Wiseman the sum of $6867 plus interest, less tax withholdings required by Federal and state laws. 4. Make payment to Rueben Lawrence III the sum of $17,399 plus interest, less tax withholdings required by Federal and state laws. 48 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.